Mississippi Bd. of Nursing v. Belk

• Court: Mississippi Supreme Court
• Writing for the Court: DAN M. LEE; PATTERSON
• Citation: Mississippi Bd. of Nursing v. Belk, 481 So.2d 826 (Miss. 1985)
• Decision Date: 11 December 1985
• Docket Number: No. 55856,55856
• Parties: MISSISSIPPI BOARD OF NURSING v. Eunice BELK.

Page 826

481 So.2d 826

MISSISSIPPI BOARD OF NURSING v. Eunice BELK.

No. 55856.

Supreme Court of Mississippi.

Dec. 11, 1985.

Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellant.

John L. Hatcher, Cleveland, for appellee.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

DAN M. LEE, Justice, for the Court:

Eunice Belk appeared before the Mississippi Board of Nursing on January 17, 1979, to answer charges that she was guilty of professional misconduct in failing to follow the Board's procedures for certification as a nurse anesthetist. The Board found her guilty of professional misconduct, and held that she would not be allowed to practice as a nurse anesthetist in Mississippi until she complied with the Board's certification procedures. Belk appealed to the Chancery Court of Bolivar County, assigning the following as error:

(1) The record contains no copies of any rules or regulations of the Board pertaining to a grandfather clause for anesthetists, certified or otherwise, but only some correspondence on the subject.

(2) The purported rules and regulations of the Board regarding a more stringent grandfather clause for anesthetists is beyond the scope and authority of the Mississippi Nursing Practice Law, and there is no proof of their joint adoption by the State Board of Health.

(3) The purported rules and regulations of the Board are unconstitutional and in violation of the due process and equal protection clauses of the Federal and State constitutions by providing a more restrictive grandfather clause for anesthetists than the legislature provides itself for other registered nurses.

(4) Section 73-15-29(f), Miss.Code of 1972, as amended, providing for revocation of license for 'professional misconduct' is unconstitutionally vague and uncertain and without sufficient specific criteria for a person to know in advance what constitutes grounds for revocation of license.

(5) The findings of the Board are not supported by credible evidence and its decision that appellee was guilty of professional misconduct is unreasonable, arbitrary and capricious.

The Board of Nursing moved to dismiss the appeal on the grounds that it was taken out of the statutory time limit. The chancellor found that the delay in taking the appeal was justifiable, and the Board of Nursing took an interlocutory appeal on that issue to this Court. That appeal was dismissed on July 30, 1980, 386 So.2d 400, in case # 51,907, in an opinion not designated for publication. Finding that the appeal would not dispose of the entire cause, it was dismissed by this Court and remanded to the Chancery Court of Bolivar County.

On May 24, 1984, the chancellor issued his order, finding for Eunice Belk on all of the aforementioned assignments of error. He reversed the decision of the Mississippi Board of Nursing and reinstated Belk's license to practice as a nurse anesthetist. The Board of Nursing has appealed, and assigns the following as error:

Proposition 1. The chancellor erred in considering matters outside the record.

Proposition 2. The rules and regulations of the Mississippi Board of Nursing are proper and not beyond the scope and authority of the Board.

Proposition 3. The rules and regulations of the Board are not more restrictive toward certified registered nurse anesthetists.

Proposition 4. The lower court erred in finding that the term "professional misconduct" is without specific criteria.

Proposition 5. The lower court erred in finding that the Board's decision was unreasonable, arbitrary, and capricious.

FACTS

At the time of her hearing before the Mississippi Board of Nursing, in 1979, Eunice Belk had been a registered nurse for twenty-one years. She had been a nurse anesthetist for sixteen years, having graduated from the school of anesthesia of Charity Hospital in New Orleans in 1962. At the time she graduated from school, special certification as a nurse anesthetist was not required, so Belk did not take the examination which would have qualified her as a member of the anesthetist association. Until 1975, the association was merely a professional society, and membership in the association did not denote special professional qualifications. Belk testified that her failure to take the qualifying examination was not due to lack of interest, but due, rather, to the fact that the staff shortage at the Bolivar County Hospital prevented her from taking time off to study for it.

In December, 1978, Belk received a letter from the Mississippi Board of Nursing, in which she was informed that the Board would seek the revocation or suspension of her nursing license. The Board charged her with a violation of Miss.Code Ann. Sec. 73-15-29(f) (1972) in practicing nursing beyond the authorized scope of her license. The statute, as it read at that time, stated:

The board shall have power to deny, revoke or suspend any license to practice nursing issued by the board or applied for in accordance with the provisions of this chapter, or to otherwise order and enforce suspension or other discipline less than revocation, upon proof that such person:

* * *

(f) is guilty of professional misconduct.

The Board of Nursing defines "professional misconduct" as, among other things: "Practicing nursing beyond the authorized scope of the license or directing others to practice beyond their authorized scope."

In 1977, the Board of Nursing promulgated new rules and regulations with regard to the certification of nurse anesthetists. A letter from the Board, dated March 25, 1977, indicated that certain documents were to be sent to the Board for certification in certain "expanded roles," and indicated that a certified registered nurse anesthetist was to be considered as working in an expanded role. However, at the time the letter was sent, Belk was not a certified registered nurse anesthetist because she had never taken the qualifying exam. Another letter, dated April 21, 1977, further explained these requirements. Also included in the record was a copy of administrative procedures for the expanded role of the registered nurse. Those procedures included, for the nurse educated outside Mississippi, evidence of national certification or state certification. The Board also promulgated a "grandfather clause" which would exempt certain nurses from being required to comply with the new certification procedures. The grandfather clause allowed for certification of nurses who had practiced in the capacity of a nurse anesthetist prior to 1970 and who had practiced for a continuous period of fifteen years. However, to take advantage of this clause, the applicant had to notify the Board of Nursing by February 1, 1978, and submit to the Board a protocol listing all medical acts and types of anesthesia being administered. At the hearing, Belk contended that she had never received any of these documents, nor was she informed of them by her supervisors.

When the hearing began, Belk made two motions to the Board. The first was a motion to dismiss, based upon two grounds: first, that the grandfather clause was unconstitutional, in that it differed substantially from the grandfather clause for registered nurses or licensed practical nurses, which were both unlimited in time; and, second, that the new regulations were beyond the scope of authority of the Board, in that the Board was authorized to regulate conduct, but not to require special licensing. The second motion was a motion for an extension of time. The basis for that motion was that Eunice Belk was unaware of the new requirements for certification, but would be happy to comply with them if given ample time. Belk accompanied her motions with a letter from the active medical staff of Bolivar County Hospital, where she had worked for fifteen years and which was, of course, her employer. In that letter, eleven medical doctors expressed their support for Belk, stating that she was "qualified to administer anesthesia in a highly competent manner." The letter also requested that the Board permit Belk to remain licensed as an anesthetist because of the acute need in the area. The Board overruled both motions.

Both Bobby Flynt, Chief Anesthetist at the Bolivar County Hospital and Belk's immediate supervisor, and James Townsend, the Administrator of the hospital, testified. Flynt testified that, although he and one other anesthetist who were previously certified had complied with the new procedures, he was unaware of how the new procedures applied to Belk. For that reason, he had never spoken with her regarding the new requirements for certification; however, he had mentioned them to Townsend. Townsend testified that he had received a letter from the Board regarding certified nurse anesthetists, but he also did not know if this applied to Belk. Both Townsend and Flynt testified that Belk was an outstanding nurse anesthetist.

John Savage, the Executive Secretary of the Mississippi Certified Nurse Association, testified that Belk was not required to take the certification examination for registered nurse anesthetists prior to the change in the Board's procedures. He also testified that four other people had been allowed certification under the grandfather clause who had no formal training. Since Belk had formal training from Charity Hospital in New Orleans, Savage recommended that she be allowed an extension of time to complete her certification requirements under the grandfather clause.

The Board's decision was as follows:

It is the decision of the Board of Nursing that you be informed that the Board will adhere to our previous position on qualifications being met to perform as a nurse anesthetist and that you will not be allowed to practice as an anesthetist in Mississippi until you have met the current standards.

LAW

The Board's first assignment of error is that the chancellor, in finding inadequate documentation of the Board's rules and regulations, considered matters which...