BOARD OF NURSING. The above-entitled matter came on for a prehearing conference by teleconference on

Transcription

1 .. BEFORE THE MINNESOTA BOARD OF NURSING In the Matter of Jane E. Krahn, R.N. License No FINDINGS OF FACT, CONCLUSIONS, AND FINAL ORDER The above-entitled matter came on for a prehearing conference by teleconference on March 17,2011, before Administrative Law Judge ("AU") Barbara L. Neilson at the request of the Minnesota Board of Nursing ("Board") Review Panel. The matter was initiated pursuant to the Notice and Order for Prehearing Conference and Hearing ("Notice of Hearing") issued by the Board Review Panel on January 27, Careen Martin, former Assistant Attorney General, represented the Board Review Panel. Daphne A. Lundstrom, Assistant Attorney General, currently represents the Board Review Panel in this matter. Jane E. Krahn, R.N. ("Respondent"), appeared via telephone without counsel. On June 30, 2011, the AU issued an Order on Motion for Partial Summary Disposition ("ALJ's report"), recommending that the Board Review Panel's Motion for Partial Summary Disposition be granted and that the Board take disciplinary action against the nursing license of Respondent. (A true and accurate copy of the AU's report is attached hereto and incorporated herein as Exhibit A.) The Board convened to consider the matter on August 11, 2011, in Conference Room A on the fourth floor of University Park Plaza, 2829 University Avenue S.E., Minneapolis, Minnesota. Daphne A. Lundstrom, Assistant Attorney General, appeared on behalf of the Board Review Panel. Respondent did not appear. Former Board member Bradley Haugen did not participate in deliberations and did not vote in the matter. Mary J. Squires, Nursing Regulations

2 Analyst for the Board, did not participate in the deliberations. Karen B. Andrews, Assistant Attorney General, was present as legal advisor to the Board. FINDINGS OF FACT The Board has reviewed the record of this proceeding and finds that the facts may be stated as follows: 1. In September 1994, February 1996, and February 1999, the Board issued Stipulations and Consent Orders, suspending Respondent's license to practice nursing. The bases of the orders included Respondent's history of chemical dependency and practice concerns. 2. In June 2001, the Board issued Respondent an Order to Reinstate License, which suspended her nursing license but stayed the suspension with limitations and conditions. On June 6, 2002, the Board issued Respondent a Stipulation and Consent Order, which suspended her nursing license but stayed the suspension with limitations and conditions and imposed a $200 civil penalty. On August 6, 2004, the Board issued Respondent an Order of Unconditional License. 3. On June 7, 2007, the Board issued a Stipulation and Consent Order (''2007 Consent Order"), to which Respondent agreed, suspending Respondent's license to practice nursing. The bases of the 2007 Consent Order included Respondent's practicing while impaired, termination from two nursing positions for practice-related concerns, admitted difficulty in maintaining sobriety, and discharge from an inpatient treatment facility for consuming alcohol while in treatment. 4. On July 12,2007, Respondent pleaded guilty to one felony count of driving while intoxicated ("DWI") in Clay County District Court. The conditions of Respondent's probation 2

3 included no alcohol use. In November 2007 and September 2008, Respondent was found to be in violation of her probation. S. On January 29, 2010, Respondent submitted to the Board a petition for reinstatement of her license. By letter dated June 24, 2010, Respondent informed the Board that she relapsed with alcohol in June 2008 and again in October On September 30, 2010, Respondent met with a Board Review Panel to discuss her petition for reinstatement. Respondent informed the Panel she relapsed with alcohol on June 7, 2008, and in August 2008 but stated she had not relapsed in October Respondent reported that her last use of alcohol was August After the conference and Respondent's assertion that she had two years of sobriety, the Board issued an Order to Reinstate on October 14,2010 ("2010 Order"). The 2010 Order reinstated Respondent's license to practice nursing but suspended her license and stayed the suspension with conditions. Among other things, the 2010 Order required Respondent to sign, within 60 days, a 36-month Participation Agreement with and successfully participate in the Health Professionals Services Program ("HPSP"). 7. On November 4,2010, Respondent contacted Board staff and stated she "needed to be honest with the Board regarding her sobriety." Respondent stated that she had relapsed with alcohol prior to the September 10, 2010, conference with the Board Review Panel. Respondent stated she relapsed with alcohol two times in August 2010 and once in September 2010, even though she had previously reported that her last use of alcohol was August On December 8, 2010, Respondent signed a Participation Agreement with the HPSP. On January 4, 2011, Respondent was discharged from the HPSP for Voluntary Withdrawal. The Board received notification of the discharge on January S,

4 9. The Board Review Panel served a Notice of Hearing on Respondent by mail on January 27, The Notice of Hearing identified three bases for disciplinary action against Respondent: (1) Respondent has an actual or potential inability to practice nursing with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, or chemicals, or as a result of any mental or physical condition in violation of Minnesota Statutes section , subdivision 1(9); (2) Respondent violated a rule adopted by the Board, an order of the Board, or a state or federal law relating to the practice of professional, advanced practice registered, or practical nursing, or a state or federal narcotics or controlled substance law; (3) Respondent made a false statement or knowingly provided false information to the Board, failed to make reports as required by Minnesota Statutes section , or failed to cooperate with an investigation of the Board as required by Minnesota Statutes section On March 17, 2011, a prehearing conference was held by telephone conference call in which the AU, Respondent, and counsel for the Board Review Panel participated. During the prehearing conference, Respondent argued that she had completed every program successfully and urged the Board to focus on the good things she has accomplished and the progress she has made rather than on the mistakes she had made. Among other things, the Board Review Panel indicated during the conference that it intended to file a Motion for Summary Disposition in this matter. A schedule was adopted under which the Board Review Panel was required to file its Motion by April 25, 2011; Respondent was required to file her Response in Opposition to the Review Panel's Motion by May 23, 2011; and the Board Review Panel was required to file its reply brief, if any, by May 31, The AU issued a First Prehearing Order which confirmed these dates, provided information concerning the nature of a motion for summary disposition and the requirement that a party opposing the entry of summary judgment 4

5 "present specific facts showing that there is a genuine issue for trial," and warned Respondent that, "if the Review Panel's Motion is granted, no further hearing will be held and the Administrative Law Judge will issue a report recommending that the Board of Nursing impose disciplinary action against Ms. Krahn's R.N. license." CONCLUSIONS 1. The Board has jurisdiction in this matter pursuant to Minnesota Statutes sections to The Board and the Review Panel gave proper notice in this matter and have fulfilled all relevant substantiated and procedural requirements of the law and rules. 3. The Board adopts and incorporates by reference the AU's determination on the Board Review Panel's Motion for Summary Disposition and Analysis in the June 30, 2011, ALJ's report. ORDER Based on the foregoing Findings of Fact and Conclusions and upon the recommendation of the AU, the Board issues the following Order: 1. NOW, THEREFORE, IT IS HEREBY ORDERED that the license of Respondent as a registered nurse in the State of Minnesota is SUSPENDED immediately for an indefmite period of time. 2. IT IS FURTHER ORDERED that during the period of suspension Respondent shall not engage in any conduct which constitutes the practice of professional nursing as defined in Minnesota Statutes section , subdivision 15, and shall not imply to any persons by words or conduct that Respondent is authorized to practice nursing in the State of Minnesota. 5

6 3. IT IS FURTHER ORDERED that Respondent surrender to the Board her nursing registration certificate. Respondent shall personally deliver or mail the certificate to the Minnesota Board of Nursing, c/o Shirley A. Brekken, Executive Director, 2829 University Avenue S.E., Suite 200, Minneapolis, Minnesota 55414, within ten days of the date of this Order. 4. IT IS FURTHER ORDERED that Respondent may petition the Board to have the suspended status removed from her license at such time as she is willing to respond to the Findings of Fact set forth above and following 36 months from the date of this Order. Her license may be reinstated, if at all, as the evidence dictates and based upon the need to protect the public. The burden of proof shall be upon Respondent to demonstrate by a preponderance of the evidence that she is capable of conducting herself in a fit and competent manner in the practice of professional nursing, is successfully participating in a program of chemical dependency rehabilitation, and has been sober and free from mood-altering chemicals during the 24 months immediately preceding her petition. At the time of Respondent's petition, Respondent must meet with a Board Review Panel to review her response to the Findings of Fact and provide documentation of 24 months of uninterrupted sobriety. In petitioning for removal of the suspension, Respondent shall comply with or provide the Board with, at a minimum, the following: a. A response to each separate fact set forth in the Findings of Fact. b. Evidence of compliance with the provisions of this Order. As part of the proof of compliance, Respondent shall submit the following in support of her petition: 1) Respondent shall provide evidence of monitoring by an agency that specifically monitors chemical dependency recovery for a minimum of 12 months immediately preceding Respondent's petition for reinstatement of her license. Respondent shall 6

7 submit to the Board the name of the agency and the terms of her monitoring agreement for preapproval before enrolling in the program. Respondent shall provide certified results of at least six negative bodily fluid or tissue evaluations per quarter from an independent testing facility approved in advance by the Board during the 12 months immediately preceding Respondent's petition for reinstatement of her license. Respondent shall comply with all monitoring requirements, successfully complete the program, and cause her complete monitoring record to be submitted to the Board at the time of her petition. 2) Reports from two adult persons, at least one of whom is not related to Respondent, who can attest to Respondent's sobriety. Each report shall provide and address: a) Respondent's active participation in a chemical dependency rehabilitation program; b) Respondent's sobriety, including the date she last used mood-altering chemicals, including alcohol; and c) Any other information the reporter believes would assist the Board in its ultimate review of this matter. 3) A report from Respondent's employment supervisor(s), if any, during the 12 months immediately preceding the petition. This report shall provide and address: a) Respondent's attendance and reliability; b) Respondent's ability to carry out assigned functions; c) Respondent's ability to handle stress; d) Respondent's sobriety; and e) Any other information the supervisor believes would assist the Board in its ultimate review of this matter. 7

8 4) A report from Respondent herself. This report shall provide and address: a) Respondent's sobriety, including the date she last used mood-altering chemicals, including alcohol, and the circumstances surrounding any use while this Order is in effect; b) Respondent's treatment and weekly participation in a chemical dependency support group such as Alcoholics Anonymous during the 24 months preceding the petition. Evidence of participation shall include, but need not be limited to, attendance sheets (on a form provided by the Board) which have been signed or initialed and dated by a participant who has attended the weekly meeting; c) Respondent's ability to handle stress; d) Respondent's employment, if any; e) Respondent's future plans for nursing and the steps she has taken to prepare herself to return to nursing practice; f) Evidence Respondent has maintained the knowledge, skills, and ability to practice professional nursing safely; and g) Any other information Respondent believes would assist the Board in its ultimate review of this matter. S) A report from any mental health treatment professional whom Respondent consults during the 12 months preceding her petition. This report shall provide and address: a) Verification the mental health treatment professional has reviewed this Order; 8

9 b) Identification of a plan of treatment, including any medications, devised for Respondent; c) A statement of the involvement between Respondent and the mental health treatment professional, including the number and frequency of meetings; d) Respondent's progress with therapy and compliance with the treatment plan; e) The mental health treatment professional's conclusion as to the need for continuing therapy and Respondent's discontinuance of therapy; and f) Any other information the mental health treatment professional believes would assist the Board in its ultimate review of this matter. 6) A report from Respondent's probation officer. The report shall provide information regarding Respondent's compliance with all terms of her probation, including results of random drug testing and any criminal charges against her. 7) A report from any health care provider whom Respondent consults for physical health, mental health, or chemical dependency treatment during the 12 months preceding her petition. Each report shall provide and address: a) Verification the provider has reviewed this Order; b) Identification of diagnoses and any plans of treatment, including medications, devised for Respondent; c) Respondent's progress with therapy and compliance with the treatment plan; d) A statement regarding Respondent's mental health status; e) A statement regarding Respondent's sobriety; 9

10 f) Recommendations for additional treatment, therapy, or monitoring; and the Board in its ultimate review of this matter. g) Any other information the provider believes would assist 8) Within 60 days prior to petitioning, Respondent shall undergo a chemical dependency evaluation performed by a chemical dependency professional. shall submit, or cause to be submitted, the credentials of the chemical dependency Respondent evaluator for review and preapproval by Board staff for purposes of this evaluation. Respondent is responsible for the costs of the evaluation. The results of the evaluation shall be sent directly to the Board and must include a statement verifying the evaluator has reviewed this Order and all previous orders prior to the evaluation. 9) Respondent shall comply with any recommendations for additional evaluation and treatment made by the chemical dependency evaluator. 10) Within 60 days prior to petitioning, Respondent must undergo a mental health evaluation performed by a psychiatrist or a licensed psychologist. Respondent shall submit, or cause to be submitted, the credentials of the evaluator for review and preapproval by Board staff for purposes of this evaluation. The evaluation shall include the Minnesota Multiphasic Personality Inventory ("MMPI") and an interview. Respondent is responsible for the cost of the evaluation. The results shall be sent directly to the Board and shall provide and address: a) Verification the evaluator has reviewed a copy of this Order, all previous orders, and any evaluation and/or treatment records deemed pertinent by the Board or the evaluator prior to the evaluation; 10

11 b) Diagnosis and any recommended treatment plan; c) Interpretation of Respondent's MMPI test; d) Respondent's ability to handle stress; e) Recommendations for additional evaluation or treatment; and 1) Any other information the evaluator believes would assist the Board in its ultimate review of this matter. 11) Respondent shall comply promptly with any recommendations for additional evaluation and treatment made by the mental health evaluator. 12) At any time during the petition process, the Board may direct Respondent, without prior notice, to submit to laboratory hair, blood, and urine screenings to determine the presence or absence of alcohol or drugs. Respondent shall arrange with her employer for release from work for purposes of fulfilling the requirements of the laboratory screening. The Board may contact Respondent by telephone, letter, or through personal contact by an agent to direct her to submit to the tests within two hours after she is contacted by the Board. The hair, blood, and urine screens shall be: (1) observed in their drawing; (2) handled through legal chain-of-custody methods; and (3) paid for by Respondent. The results of the screens shall be reported directly to the Board. The biological fluid testing shall take place at Hennepin County Medical Center, 701 Park Avenue South, Minneapolis, Minnesota If Respondent is farther than 30 miles from Hennepin County Medical Center and the blood and urine testing is to be completed through the mail, the drug screening tests used must be those obtained from Hennepin County Medical Center. All blood and urine tests processed through 11

12 the mail must be directed to the attention of the toxicology supervisor at Hennepin County Medical Center. 13) At any time while this Order is in effect and at the request of the Board, Respondent shall complete and sign health records waivers and chemical dependency waivers supplied by the Board to allow representatives of the Board to discuss Respondent's case with and to obtain written evaluations and reports and copies of all of Respondent's health, mental health, and chemical dependency records from her physician, therapist, chemical dependency counselor, or others from whom Respondent has sought or obtained support or assistance. 14) Any additional information relevant to Respondent's petition reasonably requested by the Board Review Panel. 5. IT IS FURTHER ORDERED that Respondent shall pay a CIVIL PENALTY in the amount of $ The Board has determined a civil penalty is appropriate based on the facts herein and will serve to discourage repeated violations. The civil penalty shall be paid by cashier's check or money order made payable to the Minnesota Board of Nursing and shall be delivered personally or by mail to the Minnesota Board of Nursing, c/o Shirley A. Brekken, Executive Director, 2829 University Avenue S.E., Suite 200, Minneapolis, Minnesota 55414, prior to petitioning for reinstatement. 6. IT IS FURTHER ORDERED that Respondent shall meet all reregistration requirements in effect at the time of her petition, including but not limited to completing the appropriate application, paying the requisite fees, and completing any necessary continuing education requirements. 12

13 7. IT IS FURTHER ORDERED that, pursuant to Minnesota Statutes section , subdivision 4, when Respondent petitions for reinstatement of her registered nurse license, she must pay to the Board the $ civil penalty and the costs of the proceedings which resulted in the suspension of her license, including the costs paid by the Board to the Office of Administrative Hearings. The total costs of the proceedings are $ and shall be paid by cashier's check(s) or money order(s) made payable to the Minnesota Board of Nursing, c/o Shirley A. Brekken, Executive Director, 2829 University Avenue S.E., Suite 200, Minneapolis, Minnesota IT IS FURTHER ORDERED that Respondent's violation of this Order shall constitute the violation of a Board order for purposes of Minnesota Statutes section , subdivision 1(18), and provide grounds for further disciplinary action. 9. IT IS FURTHER ORDERED that the Board may, at any regularly scheduled meeting following Respondent's petition for reinstatement of her license and her meeting with a Board Review Panel, take any of the following actions: a. Issue a nursing registration certificate to Respondent. b. Issue a nursing registration certificate to Respondent with limitations placed upon the scope of Respondent's practice andlor conditional upon further reports to the Board. 13

14 the burden of proof. c. Continue the suspension of Respondent's license upon her failure to meet Dated: ~,t l/oj 2.0 II STATE OF MINNESOTA BOARD OF NURSING AG: tl2868s6s vl 14

15 THIS DOCUMENT IS NOT PUBLIC OAH Docket No STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE BOARD OF NURSING In the Matter of Jane E. Krahn, R.N. License No ORDER ON MOTION FOR PARTIAL SUMMARY DISPOSITION This matter came before Administrative Law Judge Barbara L. Neilson on the Motion for Partial Summary Disposition filed by the Board of Nursing Review Panel on April 15, The OAH record remained open until June 3, 2011, for the receipt of response and reply briefs pertaining to the motion, but no further submissions were received. Careen Martin, Assistant Attorney General, appeared for the Minnesota Board of Nursing Review Panel (Review Panel). Jane E. Krahn (Respondent) appeared on her own behalf without counsel. Based upon all the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following: RECOMMENDED ORDER AND ORDER 1. It is hereby RECOMMENDED that the Review Panel's Motion for Partial Summary Disposition be GRANTED and that the Board take disciplinary action against Respondent's license to practice professional nursing in Minnesota. 2. It is hereby ORDERED that this matter is certified to the Minnesota Board of Nursing for a final decision pursuant to Minn. R B (2009). Dated: June 30, BARBARA L. NEILSON Administrative Law Judge EXHIBIT I-_;;...: - 1J 1

16 MEMORANDUM I. Factual Background In September 1994 and again in February 1996, the Board and the Respondent entered into Stipulation and Consent Orders suspending Respondent's license to practice nursing based on chemical dependency and practice-related _concerns. The Respondent's license was subsequently reinstated with conditions in March 1995 and May In February 1999, the Respondent's license was once again suspended based upon entry of a Stipulation and Consent Order. 2 In June 2001, the Board issued an Order to Reinstate the Respondent's license. Although that Order suspended the Respondent's license, the suspension was stayed and certain limitations and conditions were imposed.' On June 6, 2002, the Board and the Respondent entered into a Stipulation and Consent Order which suspended the Respondent's nursing license, but stayed the suspension upon certain limitations and conditions and also imposed a $200 civil penalty." On August 6, 2004, the Board issued the Respondent an Order of Unconditional License to practice nursing in Minnesota. 5 On June 7, 2007, the Board and the Respondent entered into a Stipulation and Consent Order which again suspended the Respondent's license based upon the Respondent's practicing while impaired, her termination from two nursing positions for practice-related concerns, her admitted difficulty in maintaining sobriety, and her discharge from an in-patient treatment facility for consuming alcohol while in treatment." On July 12, 2007, the Respondent pleaded guilty to one count of driving while intoxicated (OWl) in Clay County District Court. She was sentenced to 365 days in Clay County jail, 275 days of which were stayed for six years, and placed on supervised probation for six years. The conditions of her probation included no alcohol use. In November 2007 and September 2008, the Respondent was found to be in violation of her probation," On January 29, 2010, the Respondent submitted a petition to the Board requesting that her license be relnstated." By letter dated June 24, 2010, the Respondent informed the Board that she had relapsed with alcohol in June 2008 and October On September 30, 2010, the Respondent met with a Board Review Panel to discuss her petition for reinstatement. The Respondent informed the panel that she had relapsed with alcohol on June 7,2008, and in August 2008, but stated that 1 Affidavit of Careen Martin, Exs. A, B, and C. 2 Id. at Ex. C. 3/d. at Ex. D. 4 Id. at Ex. E. sid. at Ex. F. 6 Id. at Ex. G. 7 Id. at Ex. H. 8 Affidavit of Mary J. Squires, 1}2 and Ex. A. 9 Id., 11 3 and Ex. B. 2

17 she had not relapsed in October She reported that her last use of alcohol was in August of After the conference, the Review Panel recommended to the full Board that it reinstate the Respondent's license under an order for a stayed suspension based in part upon the Respondent's assertion that she had been sober for approximately two years." On October 14, 2010, the Board issued an Order to. Reinstate the Respondent's license to practice nursing, -suspending the license, and staying the suspension with conditions. Among other things, the Order required the Respondent to sign a 36-month Participation Agreement with the Health Professionals Services Program (HPSP) within 60 days and successfully participate in that Program. 12 On November 4, 2010, the Respondent contacted Board staff and reported that she "needed to be honest with the Board regarding her sobriety." The Respondent stated that she had relapsed with alcohol prior to the September 10, 2010, conference with the Review Panel. She also told Board staff that she relapsed with alcohol two times in August 2010 and once in September 2010, even though she had previously reported that her last use of alcohol was August On December 8, 2010, the Respondent signed a Participation Agreement with the HPSp. 14 On January 4, 2011, the Respondent was discharged from the HPSP for Voluntary Withdrawal. The Board received notification of her discharge on January 5, The Review Panel served a Notice and Order for Prehearing Conference and Hearin~ (Notice and Order for Hearing) on the Respondent by mail on January 27, The Notice and Order for Hearing identified three bases for disciplinary action against the Respondent: (1) the Respondent has an actual or potential inability to practice nursing with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, or chemicals, or as a result of any mental or physical condition in violation of Minn. Stat , subd. 1(9); (2) the Respondent violated a rule adopted by the Board, an order of the Board, or a state or federal law relating to the practice of professional, advanced practice registered, or practical nursing, or a state or federal narcotics or controlled substance law; (3) the Respondent made a false statement or knowingly provided false information to the Board, failed to make reports as required by Minn. Stat , or failed to cooperate with an investigation of the Board as required by Minn. Stat Id., Id., Martin Aft., Ex. I. 13 Squires Aft. 1IB. 14 Martin Aft. Ex. J. 15 Martin Aft. Ex. K. 16 An Amended Notice and Order for Prehearing Conference and Hearing correcting the Respondent's name was served by mail on the Respondent on February IJ J

18 On March 17, 2011, a prehearing conference was held by telephone conference call in which the Administrative Law Judge, the Respondent, and counsel for the Review Panel participated. During the prehearing conference, the Respondent argued that she had completed every program successfully and urged the Board to focus on the good things she has accomplished and the progress she has made rather than on the mistakes she had made. Among other things, the Review Panel indicated during the conference that it intended to file a Motion for Summary Disposition in this matter. A schedule was adopted under which the Review Panel was required to file its Motion by April 25, 2011; the Respondent was required to file her Response in Opposition to the Review Panel's Motion by May 23, 2011: and the Review Panel was required to file its reply brief, if any, by May 31, The Administrative Law Judge issued a First Prehearing Order which confirmed these dates, provided information concerning the nature of a motion for summary disposition and the requirement that a party opposing the entry of summary judgment "present specific facts showing that there is a genuine issue for trial," and warned the Respondent that, "if the Review Panel's Motion is granted, no further hearing will be held and the Administrative Law Judge will issue a report recommending that the Board of Nursing impose disciplinary action against Ms. Krahn's R.N. Iicense.','7 II. Motion for Summary Disposition On April 15, 2011, the Review Panel filed a Motion for Partial Summary Disposition. In its Motion, the Review Panel argues that it is entitled to summary disposition on two grounds: (1) the Respondent did not comply with the portion of the 2010 Board Order that required her to successfully participate in the HPSP and thereby violated Minn. Stat , subd. 1(18); and (2) the Respondent provided false information to the Board at the September 10, 2010, conference and thereby violated Minn. Stat , subd. 1(23). As of the date of this Order, the Respondent had not submitted any response in opposition to the Review Panel's Motion. Summary disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. '8 The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested case matters.19 A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case. 20 The moving party has the initial burden of showing the abse~e of a genuine issue concerning any material fact. To successfully resist a motion for summary 17 Letter from AU to Ms. Krahn and C. Martin (March 18,2011). 18 Sauterv. Sauter, 70 N.W.2d 351,353 (Minn. 1955); Minn. R K; Minn. R. Civ. P See Minn. R Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630,634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W.2d 804, 808 (Minn. App. 1984), 4 A-Jf

19 judgment, the non-moving party must show that there are specific facts in dispute which have a bearing on the outcome of the case." The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party's burden under Minn. R. Civ. P The evidence presented to defeat a summary disposition however, need not be in a form that would be admissible at trial. 23 When considering a motion for summary judgment, the Administrative Law Judge must vi:w the facts in the light most favor~ble to the n~n-moving rarty.24 All doubts and factual Inferences must be resolved against the moving party.2 If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted. 26 III. Analysis Minn. Stat , subd. 1(18) and (23), permits the Board to "deny, revoke, suspend, limit, or condition the license and registration of any person to practice '" nursing" when the nurse has violated an order of the Board or has made a false statement or knowingly provided false information to the Board. The Respondent has not filed any response in opposition to the Motion or otherwise disputed the contentions of the Review Panel in any way. The Respondent has raised no genuine issues of material fact regarding her violation of the provision of the 2010 Board Order requiring successful participation in the HPSP. The documentary evidence demonstrates that she voluntarily withdrew from the HPSP on January 5, 2010, and thereby failed to successfully participate in the program as required by the Board's 2010 Order.27 The Administrative Law Judge finds that the Review Panel has demonstrated that it is entitled to summary disposition with respect to its assertion that the Respondent has violated a Board Order and therefore is subject to discipline under Minn. Stat , subd. 1(18). There also are no genuine issues of material fact regarding the Respondent's provision of false information to the Board during a September 2010 conference. It is undisputed that the Respondent admitted to Board staff in November 2010 that she in fact relapsed with alcohol two times in August 2010 and once in September This report was directly contrary to the statement the Respondent made during a 21 Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Hunt v. IBM Mid-America Employees Federal, 384 N.W.2d (Minn. 1986). 22 ki.; Murphy v. Country House. Inc Minn. 344, ,240 N.W.2d 507, 512 (Minn. 1976); Carlisle v. City of Minneapolis. 437 N.W.2d 712, 75 (Minn. App. 1988). 23 Carlisle, 437 N.W.2d at 715 (citing. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986». 24 Ostendorfv. Kenyon. 347 N.W.2d 834 (Minn. App. 1984). 2S See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876,878 (Minn. 1971): Thompson v. Campbell, 845 F. Supp. 665, 672 (0. Minn. 1994). 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986). 27 Squires Aft. Ex. C. 28 Squires Aft., A--'

20 September 30, 2010, conference with the Review Panel that her last use of alcohol was in August Although it is commendable that the Respondent ultimately came forward and provided accurate information to the Board about her recent alcohol use, there is no dispute that she provided false information to the Board during the September 30, 2010, conference about the length of her sobriety. The Review Panel pointed out that the Board's 2007 Order required the Respondent to be sober and free from mood-alterin~ chemicals during the 12 months immediately preceding her petition for reinstatement, 0 and argued that it would not have recommended reinstatement of the Respondent's license if it had been aware of the Respondent's recent alcohol use. 31 Under these circumstances, the Administrative Law Judge concludes' that the Review Panel has also demonstrated that it is entitled to summary disposition with respect to its assertion that the Respondent made a false statement or knowingly provided false information to' the Board and is therefore subject to discipline under Minn. Stat , subd. 1(23). The Review Panel has shown that it is entitled to partial summary disposition on these two grounds and that discipline of Respondent's nursing license is warranted. Because the Review Panel has not moved for summary disposition on the further allegation included in the Notice of Hearing that discipline is warranted because the Respondent is actually or potentially unable to practice nursing with reasonable skill and safety, the Administrative Law Judge concludes that the Panel has decided to waive its reliance on those allegations for purposes of determining how Respondent's license should be disciplined. This Recommended Order is accordingly certified to the Board of Nursing for a final decision pursuant to Minn. R B (providing for certification of motions to an agency when a final determination on the motion would materially advance the ultimate termination of the hearing). B. L. N. 29ld. 30 Martin Aft. Ex. G at

21 w -, '. BEFORE THE MINNESOTA BOARD OF NURSING In the Matter of Jane E. Krahn, R.N. License No ORDER TO REINSTATE The Minnesota Board of Nursing ("Board") convened on October 14, 2010, to review and consider the evidence submitted by Jane E. Krahn, R.N. ("Licensee") in support of her petition for reinstatement as a registered nurse in the State of Minnesota. Based on the evidence presented, the Board issues the following ORDER: 1. IT IS HEREBY ORDERED that the Stipulation and Consent Order issued to Licensee on June 7, 2007, ("2007 Order") suspending her licensee as a registered nurse, is hereby RESCINDED and shall have no further force and effect except as incorporated and restated herein. 2. IT IS FURTHER ORDERED that the license of Licensee as a registered nurse in the State of Minnesota is REINSTATED. 3. IT IS FURTHER ORDERED that the Board hereby SUSPENDS Licensee's license to practice professional nursing. The suspension is STAYED upon the following terms: a. Participation in HPSP. Licensee shall successfully participate in the Health Professionals Services Program ("HPSP"). Licensee is required to contact the HPSP at (651) to initiate enrollment in the program within 14 days of the date of this Order. Licensee is further required to sign a 36-month Participation Agreement with the HPSP no later than 60 days following the date of this Order. The requirements of the HPSP Participation Agreement shall include, but are not limited to, the following: 1) Licensee shall attend a 12-step chemical dependency support group at least once each week.

22 ị 2) Licensee shall obtain a sponsor within 60 days of the date of her Participation Agreement. b. Mental Health Evaluation. Within 60 days of the date of this Order, Licensee must undergo a mental health evaluation performed by a psychiatrist or a licensed psychologist. Licensee shall submit, or cause to be submitted, the credentials of the evaluator for review and pre-approval by Board staff for purposes of this evaluation. The evaluation shall include the Minnesota Multiphasic Personality Inventory ("MMPI"). Licensee is responsible for the cost of the evaluation. The results shall be sent directly to the Board and shall provide and address: 1) Verification the evaluator has reviewed a copy of this Order, the 2007 Order, and any evaluation and/or treatment records deemed pertinent by the evaluator prior to the evaluation; 2) Diagnosis and any recommended treatment plan; 3) Interpretation of Licensee's MMPI test; 4) Licensee's ability to handle stress; 5) Recommendations for additional evaluation or treatment; and 6) Any other information the evaluator believes would assist the Board in its ultimate review of this matter. c. Compliance With Evaluator's Recommendations. Licensee shall comply promptly with any recommendations for additional evaluation and treatment made by the mental health evaluator. d. Abstention From Mood-Altering Chemicals. At all times while this Order is effect, Licensee shall completely abstain from all mood-altering chemicals, including alcohol, unless expressly prescribed in writing by a physician, dentist, or other authorized health care professional who is providing care and treatment to Licensee. Within three days of when a physician, dentist, or other authorized health care professional prescribes controlled substances 2

23 I to Licensee, Licensee must inform the HPSP in writing of the prescription and the condition being treated. e. Waivers. If requested by the Board at any time while this Order is in effect, Licensee shall complete and sign health records waivers and chemical dependency treatment records waivers supplied by the Board to allow representatives of the Board to discuss Licensee's case with and to obtain written evaluations and reports and copies of all of Licensee's health, mental health, or chemical dependency records from her physician, mental health professional/therapist, chemical dependency counselor, or others from whom Licensee has sought or obtained treatment, support, or assistance. 4. IT IS FURTHERORDEREDthat Licensee shall meet all reregistrationrequirements in effect at the time of reinstatement, including but not limited to completing the appropriate application, payment of requisite fees, and completion of any necessary continuing education requirements. 5. IT IS FURTHER ORDERED that Licensee shall notify each present and future nursing supervisor of this Stipulation and Consent Order and the 2007 Order within ten days of the date of this order or commencing employment. Licensee shall provide the supervisor with an entire signed copy of each order. 6. IT IS FURTHER ORDERED that the stayed suspension on Licensee's license shall be administratively removed upon the HPSP's written notification to the Board of Licensee's successful completion of the terms of the Participation Agreement and upon written notification to Licensee by the Board of the removal of the stayed suspension. 7. IT IS FURTHER ORDERED that if Licensee has not been employed as a professional nurse within twelve months from the date of this Order, Licensee shall be required to meet with the Review Panel to review her health status and plans for nursing and to amend the present Order accordingly. 3

24 I 8. IT IS FURTHER ORDERED that Licensee's violation of this Order shall be considered a violation of Minnesota Statutes section and shall constitute grounds for further disciplinary action. 9. IT IS FURTHER ORDERED that if the Review Panel has probable cause to believe Licensee has failed to comply with or has violated any of the requirements for staying the suspension as outlined in paragraph 3 above or has failed to comply with the Participation Agreement, or is subject to a positive chemical screen, the Review Panel may, as stipulated by Licensee in a Stipulation and Agreement dated October 5, 2010, ("2010 Stipulation"), remove the stayed suspension pursuant to the procedures outlined in paragraph 10 below, with the following additions and exceptions: a. If the HPSP discharges Licensee from the program for any reason other than Licensee's successful completion of the terms of the Participation Agreement, there will be a presumption of a preponderance of the evidence that Licensee has failed to comply with the requirements for staying the suspension. b. The removal of the stayed suspension shall take effect upon service of an Order of Removal of Stayed Suspension ("Order of Removal"). Licensee agreed in the 2010 Stipulation that the Review Panel is authorized to issue an Order of Removal, which shall remain in effect and shall have the full force and effect of an order of the Board until the Board makes a final determination pursuant to the procedures outlined in paragraph 10 below. The Order of Removal shall confirm the Review Panel has probable cause to believe Licensee has failed to comply with or has violated one or more of the requirements for staying the suspension of Licensee's license. Licensee further agreed an Order of Removal issued pursuant to this paragraph shall be deemed a public document under the Minnesota Government Data Practices Act. Licensee waived any right to a conference or hearing before removal of the stayed suspension. c. The Review Panel shall schedule the hearing pursuant to paragraph 10.a. below to be held within 60 days of the notice. 4

25 10. IT IS FURTHER ORDERED that if Licensee violates or fails to comply with the terms of the order or the Participation Agreement, the Review Panel may, in its discretion, seek additional discipline either by initiating a contested case proceeding pursuant to Minnesota Statutes chapter 14 or by bringing the matter directly to the Board pursuant to the following procedure: a. The Review Panel shall schedule a hearing before the Board. At least 20 days prior to the hearing, the Review Panel shall mail Licensee a notice of the violation(s) alleged by the Review Panel. In addition, the notice shall designate the time and place of the hearing. Within ten days after the notice is mailed, Licensee shall submit a written response to the allegations. If Licensee does not submit a timely response to the Board, the allegations may be deemed admitted; b. The Review Panel, in its discretion, may schedule a conference with Licensee prior to the hearing before the Board to discuss the allegations and attempt to resolve the allegations through agreement; c. Prior to the hearing before the Board, the Review Panel and Licensee may submit affidavits and written argument in support of their positions. At the hearing, the Review Panel and Licensee may present oral argument. Argument shall not refer to matters outside the record. The evidentiary record shall be limited to the affidavits submitted prior to the hearing and this Order. The Review Panel shall have the burden of proving by a preponderance of the evidence that a violation has occurred. If Licensee has failed to submit a timely response to the allegations, Licensee may not contest the allegations, but may present argument concerning the appropriateness of additional discipline. Licensee waives a hearing before an administrative law judge, discovery, cross-examination of adverse witnesses, and other procedures governing hearings pursuant to Minnesota Statutes chapter 14; d. Licensee's correction of a violation prior to the conference, hearing, or meeting of the Board may be taken into account by the Board but shall not limit the Board's authority to impose discipline for the violation. A decision by the Review Panel not to seek s

26 discipline when it first learns of a violation will not waive the Review Panel's right to later seek discipline for that violation, either alone or in combination with other violations, at any time while this Order is in effect; e. Following the hearing, the Board will deliberate confidentially. If the allegations are not proved, the Board will dismiss the allegations. If a violation is proved, the Board may impose additional discipline, including additional conditions or limitations on Licensee's practice, suspension, or revocation of Licensee's license; f. Nothing herein shall limit the Review Panel's or the Board's right to temporarily suspend Licensee's license pursuant to Minnesota Statutes section , subdivision 3, based on a violation of this order or based on conduct of Licensee not specifically referred to herein. Similarly, nothing herein shall limit the Review Panel's or the Board's right to automatically suspend Licensee's license pursuant to Minnesota Statutes section , subdivision IT IS FURTHER ORDERED that this Order constitutes disciplinary action by the Board and is classified as public data pursuant to Minnesota Statutes section 13.41, subdivision 5. Data regarding this action will be provided to data banks as required by Federal law or consistent with Board policy. While this Order is in effect, information obtained by the Board pursuant to this Order is considered active investigative data on a licensed health professional, and as such, is classified as confidential data pursuant to Minnesota Statutes section 13.41, subdivision 4. MINNESOTA BOARD OF NURSING '

27 BEFORE THE MINNESOTA BOARD OF NURSING In the Matter of Jane E. Krahn, R.N. License No STIPULATION AND CONSENT ORDER STIPULATION Jane E. Krahn, R.N. ("Licensee"), and the Minnesota Board of Nursing Review Panel ("Review Panel") agree the above-referenced matter may be resolved without trial of any issue or fact as follows: I. JURISDICTION 1. The Minnesota Board of Nursing ("Board") is authorized pursuant to Minnesota Statutes sections to (2006) to license and regulate registered nurses and to take disciplinary action as appropriate. 2. Licensee holds a license from the Board to practice professional nursing in the State of Minnesota and is subject to the jurisdiction of the Board with respect to the matters referred to in this Stipulation and Consent Order. II. BACKGROUND 3. On April 10, 2007, the Health Professionals Services Program C"HPSP") discharged Licensee for non-compliance with the terms of her monitoring agreement. Following a thorough review of all available information, the Review Panel, composed of Marybeth O'Neil, Board member, and Kimberly S. Miller, Nursing Practice Specialist for the Board, determined

28 the matter could be resolved by mail with a Stipulation and Consent Order for suspension of Licensee's nursing license. 4. Licensee was advised by the Board's representatives that she may choose to be represented by legal counsel in this matter. Licensee knowingly waived legal representation. Stephen B. Masten, Assistant Attorney General, represented the Review Panel in this matter. III. FACTS 5. The parties agree this Stipulation and Consent Order is based upon the following facts: a. In September 1994, February 1996, and February 1999, the Board issued Licensee a Stipulation and Consent Order for suspension of her nursing license. The bases of the Stipulation and Consent Orders were Licensee's chemical dependency and practice concerns. An Order to Reinstate License was issued by the Board in June 2001, which suspended Licensee's license but stayed the suspension with limitations and conditions on the license. On June 6, 2002, the Board issued Licensee a Stipulation and Consent Order suspending Licensee's license but staying the suspension with limitations and condition and imposing a civil penalty. The civil penalty was assessed for falsifying a Chain of Custody form for a toxicology screen. On August 6, 2004, the Board issued Licensee an Order of Unconditional License. b. On May 21, 2006, Licensee was admitted to inpatient chemical dependency treatment at Prairie S1. John's ("PSJ"), Fargo, North Dakota, and transitioned to participate in the Partial Hospitalization Program from May 23, 2006, until her successful discharge on June 2, Licensee's diagnosis included alcohol dependence. 2