STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS

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1 STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS In the matter of Bureau of Health Services, Petitioner v Karen Elizabeth Kloker, LPN, Respondent / Docket No Agency No Agency: Bureau of Health Services Case Type: Sanction Summary Suspension Issued and entered this 3 rd day of May, 2001 by Andrew W. Foster, Jr. Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY: Karen E. Kloker, Respondent herein, is licensed to practice as a licensed practical nurse. The Department of Consumer and Industry Services, Bureau of Health Services (BHS), Petitioner, filed an Administrative Complaint against Respondent. In its Complaint, BHS alleged that Respondent violated provisions of the Public Health Code, 1978 PA 368; MCL et seq; MSA (1101) et seq; hereinafter the Code, and/or certain applicable Administrative Rules. Pursuant to MCL ; MSA 14.15(16232), a hearing was scheduled to address the issues raised in the Administrative Complaint and Order of Summary

2 Page 2 Suspension. The hearing was conducted on October 10, Jack Blumenkopf, an Assistant Attorney General, appeared on behalf of BHS. Hayim I. Gross and Steven Rabinovitz, Attorneys at Law, appeared on behalf of Respondent. Andrew W. Foster, Jr. presided as Administrative Law Judge (ALJ). EXHIBITS: Petitioner s Exhibits: 1. Hospital Report 2. MHPRC Report, 6/14/00 3. MHPRC Report, 1/4/01 4. MHPRC Report, 1/25/01 5. MHPRC letter, 1/25/01 ISSUES and APPLICABLE LAW: The Board of Nursing issued an Administrative Complaint and Order of Summary Suspension on August 18, Essentially, the Complaint alleges Ms. Kloker failed to comply with the Final Order of the Board issued May 11, 2000, in resolution of the Administrative Complaint of April 27, The terms of probation required, in part, that Ms. Kloker enter into a monitoring agreement within 60 days after the effective date, with Michigan Health Professionals Recovery Corporation (MHPRC). Ms. Kloker has failed/refused to enter into a monitoring agreement required by the probationary terms of the Final Order, in violation of: MCL et seq; MSA 14.15(1101) et seq

3 Page 3 FINDINGS OF FACT: State of Michigan. AACS, R and Section Violation of a final order issued by a disciplinary committee, board, or task force constitutes a violation of this rule. Section The department may investigate activities related to the practice of a health profession by a licensee... The disciplinary subcommittee shall proceed under section if it finds that 1 or more of the following grounds exist: (g) A violation, or aiding or abetting in a violation, of this article or of a rule promulgated under this article. Karen Elizabeth Kloker, Respondent herein, is a licensed practical nurse in the On April 27, 1999, an Administrative Complaint with the Disciplinary Subcommittee of the Michigan Board of Nursing charged Respondent with violating 1996 MR 7, R (8) and Section (9) of the Public Health Code, 1978 PA 368, as amended, and Section 16221(9), supra. After the hearing, the Board issued a Final Order on May 11, The Order in part ordered Respondent s license to practice nursing in the State of Michigan is LIMITED for a minimum period of one year. Respondent s license was placed in PROBATION for a minimum of three years. The terms of paragraph 1 of the probation report are as follows: 1. MONITORING AGREEMENT/EVALUATION: Within 60 days after the effective date of this Order, Respondent shall contact the Michigan Health Professional Recovery Corporation (Contractor), telephone number , and enter into

4 Page 4 a disciplinary, non-confidential treatment monitoring agreement with the Contractor. To the extent that the terms of the monitoring agreement call for reports which are also required by this order, Respondent shall submit all reports in the manner specified by the monitoring agreement. If Respondent fails to enter into or comply with the terms of the monitoring agreement, the Contractor shall immediately so notify the Department s designee in writing of such confirmed non-compliance. All information and documentation acquired by the Program Administrator in developing and implementing the monitoring agreement required herein, including but not limited to, reports of mental and physical evaluations, employer reports, therapist reports, shall be made available to the Department upon request to establish Respondent s compliance or non-compliance with the monitoring agreement and this order. Upon Respondent s successful completion of the monitoring agreement, the Contractor shall promptly notify the Department in writing. Ms. Kloker testified she was a graduate of the York County Vocational Technical Practical Nursing Program, a one-year course. Pursuant to the Final Order, supra, she contacted Dr. Landlau at MHPRC. Dr. Landau recommended Respondent see Dr. Lee Young, at Brighton Hospital, for assessment/evaluation. Following the evaluation, Dr. Lee recommended Respondent enter into an Intensive Out-patient Program (IOP) before entering into an MHPRC agreement. Dr. Lee made Dr. Landau aware of the IOP recommendation. Respondent contacted her insurance company to determine where to obtain treatment, more particularly, where her insurance coverage, OMNI Care, would pay for

5 Page 5 treatment. Her insurance carrier recommended a facility in downtown Detroit. She was concerned about the location and did not go. Respondent desired to continue treatment with Dr. Young. She denied having money to continue treatment. She believed if her income tax refund had been received, at that time, plans could have been made to continue to treat (IOP) at Brighton. Respondent submits it would cost $2,000 to $2,500 to continue treatment with Dr. Young. At this time, Respondent had not complied with the treatment requirements of the monitoring agreement. The ALJ finds Respondent has failed to follow the requirements of the Final Order. Respondent further submits, she contacted OMNI Care again for a reference to another treatment facility. She was referred to Eastwood Clinic in Livonia. June 2 or June 5, 2000, was her appointment date. Respondent alleges the reason she did not keep her appointment was she was terminated from her employment with the Four Seasons Nursing Center. The termination from employment coincided with the termination of insurance of the same date. Respondent worked for Four Seasons Nursing Center from October 1998 until June 5, According to Respondent, she attempted to reach Dr. Landau to explain the problem that she no longer had Omni Care coverage and therefore, was not able to enter into an IOP program. Also, Respondent claimed transportation problems. Again, the ALJ finds Respondent failed to parcipate in an IOP treatment program, although she had Omni Care coverage during the period of October 1998 until the last day worked, June 5, Respondent knew IOP treatment was required to facilitate entry into an MHPRC contract.

6 Page 6 Subsequent to employment at Four Seasons, Respondent began working as a charge nurse, July 17, 2000, at Charter House. On August 15, 2000, Respondent was issued a Summary Suspension. Because she was no longer able to function as a nurse, Respondent s duties were changed to laundry and housekeeping, effectively reducing her wages from $1,725 a month to $8.32 per hour. Respondent submits, she was employed long enough at Charter House so that by September 20, 2000, she enrolled in the Blue Care Network. Respondent persisted, she had obtained authorization from Blue Care Network to commence a six-week IOP program at either Maplegrow or Oakland Family Services. She planned to enroll on October 11, 2000, the day after this hearing commenced, at Maplegrove. Ms. Kloker contends some of her problems stem from her relationship with her former roommate who was tampering with her mail. Correspondence from the Department did not always reach her. The Summary Suspension of August 18, 2000 was served at her job. The ALJ found, after extensive questioning of Respondent, the testimony not to be credible with respect to this allegation. Interim Motion with Interim Procedural Findings of Fact At the conclusion of Respondent s testimony, Respondent s attorney requested a continuance in order to provide an opportunity to Ms. Kloker to follow through with entry into the Maplegrown IOP program, based on her testimony that Blue Care Network had authorized treatment. In the meantime, an Order Dissolving Summary Suspension will issue in order

7 Page 7 to give Respondent a final opportunity to enter into the required terms of the monitoring agreement. The Order was issued October 10, On January 29, 2001, the Department was informed that Respondent had failed to enter into the required monitoring agreement and therefore, issued an Order of Summary Suspension, February 23, Further, Respondent failed to appear for hearing on January 27, 2001 and March 8, 2001, the dates of the continuance. Hayim I. Gross, Respondent s attorney, made a motion to withdraw as Respondent s attorney. There being no objection, the motion is granted. CONCLUSIONS OF LAW: I find Ms. Kloker has failed to comply with the Final Order that she enter into and comply with a MHPRC monitoring agreement. the Final Order: Respondent has recited a litany of reasons and excuses for not complying with 1. She did not like the location of the IOP facilities; 2. Not reasonable to go to facilities she did not choose; 3. Brighton s IOP program was expensive; 4. She lacked transportation to go to Eastwood; 5. She had no insurance; 6. Awaiting income tax refund in order to pay for non-insurance-funded IOP; 7. Respondent s roommate interfered with receipt of mail;

8 Page 8 8. When job was terminated her income was substantially reduced; 9. She was paying child support from her income; and so on. The principles that govern judicial proceedings also apply to administrative hearings. The burden of proof is upon the Petitioner to prove, by a preponderance of the evidence, that the Respondent violated the Public Health Code as alleged, and that grounds exist for imposition of sanctions. Smith v Lansing School District, 428 Mich 248; 406 NW 2d 825 (1987). The Bureau of Health Services has established by a preponderance of the evidence that Karen Elizabeth Kloker, failed to comply with a Final Order of the Board s Disciplinary Subcommittee issued on May 11, Therefore, Ms. Kloker has violated Rule and Code Section 16221(g). I find Respondent has had four admission opportunities for entry to the IOP/ MHPRC program, and she has not supplied proof of entry to date. Moreover, Respondent has been employed continuously from October 1998, except for approximately one months, to date of hearing. I further find Respondent has shown indifference and/or disdain for the legal process by failing to appear at or conclude the hearing. EXCEPTIONS: Within 15 days after service of this Proposal for Decision, a Party may file Exceptions and present written arguments. Within 5 days thereafter, an opposing Party may file a response to the Exceptions and written arguments. Any such Exceptions and

9 Page 9 Response should be submitted to the opposing party and to:

10 Page 10 Bureau of Health Services 611 West Ottawa St., 1 st Floor PO Box Lansing, MI Attn: Ray Garza Andrew W. Foster, Jr. Administrative Law Judge