State ex rel. Protective Health Services v. Vaughn, 104,704.

CourtSupreme Court of Oklahoma
Citation2009 OK 61,222 P.3d 1058
Docket NumberNo. 104,704.,104,704.
PartiesSTATE of Oklahoma ex rel., PROTECTIVE HEALTH SERVICES STATE DEPARTMENT OF HEALTH, Complainant, v. Bernadine VAUGHN, Nurse Aide, Certification No. 372381800990E, Respondent.
Decision Date15 September 2009

¶ 0 Plaintiff, a certified nurse aide, photocopied pages of an Epworth Villa nursing home resident's medication record and provided it to the Equal Employment Opportunity Commission in support of her claim against Epworth Villa. When Epworth Villa learned of the incident, it fired the plaintiff and reported the act to the Oklahoma Department of Health. The Department of Health initiated administrative proceedings, alleging that the plaintiff had violated 42 U.S.C. §§ 1396r(e)(2), 1396r(g)(1)(C) and 42 C.F.R. §§ 483.13, 483.156, 488.301 (2003). The Administrative Law Judge found that plaintiff had violated the rules prohibiting the misappropriation of a resident's property and ordered the finding to be placed on the Oklahoma Nurse Aide Registry. The district court and the Court of Civil Appeals affirmed. This Court granted certiorari to review the issue of first impression.


Mark Hammons, Tamara Gowens, Hammons, Gowens & Associates, P.C., Oklahoma City, OK, for appellant.

Tom L. Cross, Deputy General Counsel, Oklahoma State Department of Health, Oklahoma City, OK, for appellee.


¶ 1 The first impression issue in this case is whether a certified nurse aide's photocopying a resident's medication record and releasing it to the Equal Employment Opportunity Commission (EEOC) requires the Oklahoma State Health Department (the Department) to make a finding of misappropriation of a resident's property and place the finding on the Oklahoma Nurse Aide Registry pursuant to title 42, sections 1396r(e)(2) and 1396r(g)(1)(C) of the United States Code; title 42, sections 483.13, 483.156, and 488.301 of the Code of Federal Regulations (CFR); title 63, section 1-1951 of the Oklahoma Statutes; and sections 310:677-1-2, 310:677-7-4, and 310:677-7-4 of the Oklahoma Administrative Code (OAC).


¶ 2 The relevant facts at all stages of the proceedings, including appellate review, are undisputed. While employed by the Epworth Villa (Epworth) nursing home as a certified nursing assistant, Bernadine Vaughn filed a complaint with the EEOC, alleging racial discrimination. Thereafter and while still working at Epworth, Ms. Vaughn saw a patient's medication record on a copier. Ms. Vaughn believed that the medication record showed that Caucasian nurses had made errors for which they were not disciplined, although Ms. Vaughn had been disciplined for similar errors. Ms. Vaughn photocopied two pages of the medication record1 and gave them directly to the EEOC to support her claim of racial discrimination. Ms. Vaughn did not take the original record off Epworth's premises. Epworth's personnel policies defined the records as Epworth's property. There was no evidence that the patient or the patient's family knew about the incident, let alone suffered any harm.2

¶ 3 During the EEOC proceeding,3 Epworth discovered that Ms. Vaughn had given the photocopies to the EEOC and terminated her employment. Epworth reported to the Department that Ms. Vaughn had misappropriated a resident's property. The Department commenced administrative proceedings against Ms. Vaughn.

¶ 4 The Department asserted that Ms. Vaughn, a certified nurse aide, "is required to comply with the rules and other applicable laws as set out in 63 O.S. §§ 1-1901 et seq.[,] Public Health Code-Nursing Home Care Act." The Department alleged that on May 24, 2005, Ms. Vaughn had misappropriated a resident's property by "making copies of a resident's medication records and taking them outside the facility without permission to copy records[,]" which allegation it says it verified. The Department alleged that these acts violated title 42, sections 1396r(e)(2)4 and 1396r(g)(1)(C)5 of the United States Code and title 42, sections 483.13,6 483.156,7 and 488.3018 of the Code of Federal Regulations (CFR).9 It did not allege that Vaughn had violated any state statutory or regulatory laws. The Department requested a hearing "to determine whether the facts as alleged sustain a finding against [Ms. Vaughn] requiring the posting of said finding upon the Nurse Aide Registry of the Oklahoma State Department of Health."

¶ 5 Both Ms. Vaughn and the Department filed motions for summary judgment.10 In her motion, Ms. Vaughn recited the definition of misappropriation found at section 310:677-1-2 of the OAC and stated that this definition applied. She did not rely on the federal definition of misappropriation found at title 42, section 488.301 of the CFR. As discussed later, the federal and state definitions of misappropriation differ significantly. Ms. Vaughn argued (1) that the medication records were not the patient's property, but Epworth's property; (2) that the photocopying of medication records for use as evidence before the EEOC was beyond the scope of the state and federal rules and regulations; and (3) that her actions were protected by the "special evidentiary privileges which attach to EEOC proceedings."

¶ 6 The Department filed a response and counter motion for summary judgment. It argued that the photocopied pages' content was the resident's property, that the content was confidential under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); that Ms. Vaughn took the medical information without entitlement or the resident's consent and distributed it to a third party; and that Ms. Vaughn's actions constituted misappropriation of property as defined by section 310:677-1-2 of the OAC, requiring a confirmed finding of misappropriation to be placed on Ms. Vaughn's record on the Oklahoma Nurse Aide Registry (Registry). At the hearing on the motions, the Department clarified that its position is Ms. Vaughn transferred the resident's medical information to a third party. Ms. Vaughn's response to the Department's position was, among other things, that the state statutes and regulations governing the Registry cannot be extended to cover disclosures of patient information because such disclosures are governed by HIPPA.11

¶ 7 The Administrative Law Judge (ALJ) found Ms. Vaughn "guilty of the act of misappropriation of property belonging to a Resident." He ordered that the "Nurse Aide Registry shall reflect in its official record and registry that [Ms. Vaughn] is found to have committed the act of misappropriation of property of a Resident." Ms. Vaughn petitioned for review in the district court. Without providing reason or analysis, the district court affirmed the ALJ's decision. Ms. Vaughn filed her petition in error in this Court seeking review of the district court's order. The appeal was assigned to the Court of Civil Appeals. The Court of Civil Appeals focused only on the issue of whether a person has a property right in the person's medical information and found such a right exists. Stating that Ms. Vaughn's acts were an "unauthorized disclosure" and without analyzing the other elements of misappropriation, the Court of Civil Appeals affirmed the trial court.


¶ 8 Review of an agency decision is governed by the APA, title 75, section 322. It provides that a reviewing court

may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or

(f) arbitrary or capricious; or

(g) because findings of fact, upon issues essential to the decision were not made although requested.

75 O.S.2001, § 322(1).

¶ 9 In the present case there are no disputed facts, so we must determine if the ALJ's order was free of legal error and was within the Department's authority. Because the issue presented is purely a matter of law, we employ a de novo standard. In re Estate of Jackson, 2008 OK 83, ¶ 9, 194 P.3d 1269, 1272. Such review is plenary, independent, and non-deferential. Id. The Department does not posit that there is a longstanding construction of an ambiguous or uncertain statute such that its interpretation is entitled to deference. See Bradshaw v. Oklahoma State Election Bd., 2004 OK 69, n. 5, 98 P.3d 1092, 1094 ("An agency's longstanding construction of an ambiguous or uncertain statute will not be disturbed without cogent reason.").

¶ 10 This Court has consistently acknowledged: "Where it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license, once granted, and thus destroy in a measure the means of a livelihood, is penal and therefore should be strictly construed." State ex rel. Okla. State Bd. of Embalmers and Funeral Dirs. v. Guardian Funeral Home, 1967 OK 141, ¶ 19, 429 P.2d 732, 736 (quoting Moore v. Vincent, 1935 OK 763, ¶ 8, 174 Okla. 339, 50 P.2d 388, 389). The loss of a license which is required to work in a given field negatively impacts both a person's...

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