Sovulewski v. Mo. State Bd. of Nursing, ED 109889

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLisa P. Page, Judge
Citation642 S.W.3d 373
Decision Date29 March 2022
Docket NumberED 109889
Parties Katherine SOVULEWSKI, Appellant, v. MISSOURI STATE BOARD OF NURSING, Respondent.

642 S.W.3d 373

Katherine SOVULEWSKI, Appellant,
v.
MISSOURI STATE BOARD OF NURSING, Respondent.

ED 109889

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: March 29, 2022


David F. Barrett, P.O. Box 104151, Jefferson City, MO 65110, for appellant.

Ryan M. Russell, 3605 Missouri Blvd., P.O. Box 656, Jefferson City, MO 65102, for respondent.

Lisa P. Page, Judge

Katherine Sovulewski (Sovulewski) appeals from the trial court's judgment affirming an order of the Missouri State Board of Nursing (Board) setting terms of probation regarding drug and alcohol testing. We reverse and remand.

BACKGROUND

Sovulewski first received her license from the Board as a Registered Nurse (RN) in 2005. In early 2012, her employer discovered she was taking Hydromorphone home with her. She tested positive for the drug and resigned. The Board placed her nursing license on probation for a period of five years with specified terms and conditions. On June 9, 2016, the Board revoked Sovulewski's license for violating the terms of her probation multiple times by failing to check in with a third-party administrator and testing positive for metabolites of alcohol.

In late 2017, Sovulewski reapplied to the Board for an RN license, which was denied on May 2, 2018. Sovulewski appealed the Board's decision to the Administrative Hearing Commission (AHC). After a hearing, the AHC issued its decision. Although it found cause to deny Sovulewski's license on multiple grounds, the AHC exercised its discretion to grant her application for a license subject to a three-year probationary period, concluding:

Sovulewski presented sufficient evidence to convince us to exercise our discretion and grant her application for a license. We believe that a three-year probationary period is appropriate for the protection of the public. The terms of probation should include a prohibition on the consumption of controlled substances for which Sovulewski does not have a legitimate prescription and a prohibition on working under the influence of alcohol. Monitoring shall include drug and alcohol testing at the discretion of the Board.

On January 31, 2020, the Board issued an order pursuant to the AHC's decision setting forth the terms of Sovulewski's

642 S.W.3d 376

probation (Probation Order). The Probation Order required daily check-ins with a third-party administrator and submitting to random drug and alcohol testing, and inter alia , stated:

I. During the disciplinary period, Licensee shall abstain completely from the use or consumption of alcohol in any form, including over the counter products. The presence of any alcohol whatsoever in any biological sample obtained from the Licensee, regardless of the source, shall constitute a violation of Licensee's discipline.

Sovulewski filed a petition in the circuit court of Jefferson County seeking judicial review of the Probation Order pursuant to Sections 536.100 through 536.140 RSMo (2016).1 The trial court considered the case on the basis of the record developed before the AHC and took no additional evidence. The trial court entered its judgment on July 20, 2021, finding:

Great deference is given to administrative decisions. The reviewing court must not substitute its judgment on factual matters for that of the administrative agency. Owens v. Missouri State Board of Nursing, 474 S.W.3d 607, 611 (Mo. App. W.D. 2015). The Court cannot substitute its judgment for that of the agency, and "when the evidence before the administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination ...." Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). In this case, the Board of Nursing granted a license to the Petitioner, but did so on a probationary basis due to the Petitioner's previous substance abuse issues. The Court finds that the action of the Commission is reasonable and appropriate under the circumstances in order to ensure the safety of patients and to help the Petitioner maintain her sobriety.

The Court has reviewed the Administrative Hearing Commission's Decision and finds that the action of the agency is not (1) in violation of any constitutional provisions, (2) in excess of the agency's statutory authority or jurisdiction, (3) unsupported by competent and substantial evidence upon the whole record, (4) unauthorized by law, (5) made upon unlawful procedure or without a fair trial, (6) arbitrary, capricious or unreasonable, or (7) an abuse of discretion.

The trial court affirmed the AHC's decision in all respects. Sovulewski appeals.

DISCUSSION

Sovulewski raises two points on appeal. First, she argues the Board erred in imposing probationary terms on her nursing license that exceeded those allowed by the AHC's decision. Second, she asserts the Board erred in imposing probationary terms on her nursing license that violated her rights under the Americans with Disabilities Act.

However, Sovulewski made a fundamental error in characterizing this matter as a contested case, which was not challenged by the Board nor corrected by the trial court. This improper characterization renders us unable to review either of the points raised. Thus, we reverse and remand this case for further proceedings pursuant to non-contested case procedures.

Analysis

A court's first step in exercising judicial review over a governmental agency's action pursuant to the Missouri Administrative Procedure Act (MAPA) is to

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