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 Marie L. Falquet, Respondent / Docket No Agency No Agency: Bureau of Health Services Case Type: Sanction Summary Suspension Issued and entered this 26 th day of March, 2001 by Michael R. Corman Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY Marie Falquet, Respondent herein, is licensed to practice as a registered nurse in the State of Michigan. 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. On August 3, 2000, the matter was dismissed without prejudice to afford the parties an opportunity to resolve the issues

2 Page 2 giving rise to this case. The parties were unable to reach a settlement and, accordingly, the matter was remanded for hearing. A Notice of Hearing was sent to the parties on January 10, The hearing was conducted on March 5, Jack Blumenkopf, an Assistant Attorney General, appeared on behalf of BHS. Respondent appeared in pro per. Michael R. Corman presided as Administrative Law Judge (ALJ). The ALJ notes that Respondent did not contest all of the allegations set forth in the BHS administrative complaint. Indeed, Respondent conceded that she violated Section 16221(b)(v), in that she was convicted of operating an automobile while under the influence of a controlled substance, hereinafter OUI, on April 14, This constitutes a violation of Section (b)(v) of the Code. She also conceded that she failed to notify the Department of this conviction within 30 days of the conviction date. However, she denied that her conduct evidenced a condition which impaired or adversely affected her ability to safely practice nursing. In light of Respondent s aforesaid admissions, the hearing, to a certain extent, took on the form of a Mitigation Hearing. WITNESSES Marie Falquet ISSUES and APPLICABLE LAW 1. Whether Respondent, a licensed registered nurse, violated Sections 16221(a), (b)(v), (xi) and (h) and 16222(3) of the Code. 2. Whether Respondent has shown mitigating factors to demonstrate that she can safely practice nursing at this time.

3 Page 3 The cited statutes provide as follows: Sec The department may investigate activities related to the practice of a health profession by a licensee, a registrant, or an applicant for licensure or registration. The department may hold hearings, administer oaths, and order relevant testimony to be taken and shall report its findings to the appropriate disciplinary subcommittee. The disciplinary subcommittee shall proceed under section if it finds that 1 or more of the following grounds exist: (a) A violation of general duty, consisting of negligence or failure to exercise due care, including negligent delegation to or supervision of employees or other individuals, whether or not injury results, or any conduct, practice, or condition which impairs, or may impair, the ability to safely and skillfully practice the health profession. (b) Personal disqualifications, consisting of 1 or more of the following: (v) Conviction of a misdemeanor punishable by imprisonment for a maximum term of 2 years; a misdemeanor involving the illegal delivery, possession, or use of a controlled substance; or a felony. A certified copy of the court record is conclusive evidence of the conviction. (xi) Conviction of a misdemeanor that is reasonably related to or that adversely affects the licensee's ability to practice in a safe and competent manner. A certified copy of the court record is conclusive evidence of the conviction. (h) Failure to comply with a subpoena issued pursuant to this part, failure to respond to a complaint issued under this article or article 7, failure to appear at a compliance conference or an administrative hearing, or failure to report under section or

4 Page 4 FINDINGS OF FACT Section 16222(3) A licensee or registrant shall notify the department of a criminal conviction or a disciplinary licensing or registration action taken by another state against the licensee or registrant within 30 days after the date of the conviction or action. This subsection includes, but is not limited to, a disciplinary action that is stayed pending appeal. 1. Marie Falquet, Respondent herein, is licensed to practice as a registered nurse in the State of Michigan. Respondent currently resides in Athens, Ohio, and is employed, as a registered nurse, in an assisted living facility in that State. 2. On or about June 15, 2000, the Department of Consumer and Industry Services, BHS filed an Administrative Complaint against Respondent charging Respondent with violations of the Code; essentially, BHS asserted that Respondent was convicted of OUI and failed to notify the Department of the conviction within 30 days of its date. The Department also alleged that the aforesaid conduct evidenced a condition which could impair or adversely affect Respondent s ability to safely practice nursing. 3. Respondent admitted certain of the factual allegations set forth in the BHS Administrative Complaint; however, Respondent denied that her conduct evidenced a condition which impaired or adversely affected her ability to safely practice nursing. 4. Since Respondent did not contest the fact that she was convicted of OUI, this hearing, to a certain extent, took on the form of a mitigation hearing. 5. On January 2, 2000, Respondent was arrested for OUI. At that time, she was driving her vehicle while under the influence of M.S. Cotin, a morphine derivative.

5 Page 5 6. Respondent was convicted of OUI on April 14, 2000, as a result of the aforesaid arrest. This conviction constitutes a violation of Section 16221(b)(v) of the Code. 7. Respondent did not report her aforesaid conviction to the Department within 30 days of its date. This constitutes a violation of Section 16222(3) and 16221(h) of the Code. 8. Respondent suffers from severe rheumatoid arthritis and, at the time of her arrest for OUI, was taking M.S. Cotin pursuant to a prescription from her physician, Dr. Gary Zikinsky. 9. After her conviction, Respondent was placed on probation by the 43 rd Judicial District Court and ordered to complete a program and follow all recommendations of the treatment agency. 10. In accordance with the aforesaid probation order, Respondent consulted a physician (Dr. Inge) and a counselor (Ms. Clark) in Ohio. The physician did not believe that Respondent was in need of any treatment or counseling for use or abuse of controlled substances. 11. Other than the arrest and conviction giving rise to this complaint, Respondent has never been arrested or convicted for any criminal offense and has never been the subject of any disciplinary action by the nursing board. 12. Respondent s use of the aforesaid controlled substance at the time of her arrest was for pain management. Neither Respondent s use of the drug, nor her resulting

6 Page 6 arrest for driving under the influence of the drug, evidences a condition which impairs or adversely affects Respondent s ability to safely practice nursing. 13. Respondent no longer uses a controlled substance for pain management. She currently takes Lortabs, per her physician, Dr. Robert Godfried. CONCLUSIONS OF LAW A licensed registered nurse is required to comply with the Public Health Code, 1978 PA 368, as well as applicable Administrative Rules. If the licensed registered nurse violates the Act or applicable Rules, sanctions may be imposed by the Board. MCL : MSA (16226). Before imposing sanctions, the Department is required to provide the affected health care professional with an opportunity for a hearing before an Administrative Law Judge (ALJ). MCL ; MSA (16232). In the hearing, the Department must prove, by a preponderance of the evidence, that grounds exist for the imposition of sanctions against the Respondent AC R The ALJ is responsible for evaluating the testimony and evidence and for determining whether the registered nurse (Respondent) did, in fact, violate any of the applicable rules and regulations. BHS alleges that Respondent violated provisions of the Public Health Code. As noted above, Respondent did not contest all the allegations of the Formal Complaint. Hence, to a certain extent, the hearing evolved into a mitigation hearing. Section 16221(b)(v) BHS first alleges that Respondent violated Section 16221(b)(v) of the Code. Pursuant to his section of the Code, a conviction of a misdemeanor involving the use of a

7 Page 7 controlled substance is considered a Code violation. Respondent conceded that on January 2, 2000, she was operating her vehicle while under the influence of M.S. Cotin, a morphine derivative. She also concedes that she was arrested for OUI on that date and, ultimately, convicted of that offense on April 14, Hence, there is no dispute regarding the violation of this section of the Code. Section 16221(a) and (b)(xi) BHS also alleges that Respondent s use of the controlled substance described above evidences a condition which impairs or adversely affects her ability to safely practice nursing in violation of Sections 16221(a) and (b)(xi). Respondent denies this allegation. The testimony revealed that Respondent suffers from severe rheumatoid arthritis. At the time of her arrest for OUI, Respondent was taking the M.S. Cotin, pursuant to a prescription from her physician, Dr. Gary Zikinsky. Respondent s use of the aforesaid controlled substance at the time of her arrest was for pain management. Further, at or about the time in question, Respondent suffered from severe pneumonia and was eventually hospitalized for that condition. Respondent believed that her weakened condition exacerbated the effect of the M.S. Cotin she had taken. In any event, it does not appear that Respondent s use of the drug, nor her resulting arrest for driving under its influence, evidenced a condition which impaired or adversely affected Respondent s ability to safely practice nursing. Further, as noted above, Respondent has never been arrested or convicted for any offense, including the unlawful use or possession of any controlled substance.

8 Page 8 Additionally, Respondent has never been the subject of any disciplinary action by the nursing Board in her approximate 40 years of practicing as an LPN and an RN. Finally, the physician Respondent consulted subsequent to her conviction indicated that he did not believe that Respondent was in need of any treatment or counseling for use or abuse of controlled substances. Section 16221(h) and 16222(3) Next, BHS asserts that Respondent failed to report her OUI conviction to the Department within 30 days of its date. This, BHS alleges, is a violation of Section 16222(3) and Section 16221(h). At the hearing, Respondent did not contest this charge. However, Respondent asserted that she was unaware of her responsibility to report the conviction to the Department. Her testimony in this regard appeared to be credible. Further, Respondent did report the offense to the licensing authorities in Ohio where she currently practices as a registered nurse. The ALJ also notes that there is some question regarding the responsibility of Respondent to report a criminal conviction in Michigan, since the statute only appears to require the reporting of convictions in another state. COUNT I By this Count, Petitioner alleges that Respondent s aforesaid conduct (OUI) evidences a condition which may impair her ability to safety and skillfully practice as a nurse, in violation of Section 16221(a). The testimony has not demonstrated a violation of this Section of the Code.

9 Page 9 COUNT II By this Count, Petitioner alleged that Respondent was convicted of a misdemeanor involving the use of a controlled substance in violation of Section 16221(b)(v). Respondent has not contested this Count. However, as noted above, Respondent has demonstrated mitigating factors that the Board might wish to consider in deciding upon what disciplinary action to take in this case. That is, Respondent was using a controlled substance prescribed by her physician for pain management at the time of her arrest for OUI. COUNT III By this Count, Petitioner alleged that Respondent s aforesaid conduct (OUI) constitutes a conviction of a misdemeanor that adversely affects Respondent s ability to practice nursing in a safe and competent manner, in violation of Section 16221(b)(xi). The testimony has not demonstrated a violation of this section of the Code for the reasons set forth above. COUNT IV Respondent concedes that she failed to notify the Department of her aforesaid conviction within 30 days of its date. As noted above, Respondent was unaware of her responsibility to report the conviction. She is now practicing as a registered nurse in Ohio and has informed the Ohio nursing board of this matter. Thus, although Respondent has seemingly violated Section 16222(3) and Section 16221(h), there are mitigating factors which the Board might wish to consider in deciding upon disciplinary action.

10 Page 10 As noted above, Respondent did not contest the violation giving rise to this Count. However, there is a question as to whether Respondent has an obligation to report a conviction in the State of Michigan, pursuant to the cited section of the Code. That is, Respondent s OUI conviction is not a conviction in another state. Accordingly, there is a question as to whether Respondent has the responsibility to report this conviction to the Department. This is consistent with the Michigan Court of Appeals ruling in Department of Consumer & Industry Services v Shah, MD, 236 Mich App 381, 600 NW 2d 406 (1999). 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 Response should be submitted to: Department of Consumer & Industry Services Bureau of Health Services c/o Ray R. Garza P.O. Box Lansing, MI Michael R. Corman Administrative Law Judge

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