IN THE MATTER OF THE LICENSE OF KEVIN MCCAFFERTY, ETC., TO PRACTICE NURSING IN THE STATE OF NEW JERSEY (DIVISION OF CONSUMER AFFAIRS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2141-15T1
IN THE MATTER OF THE
LICENSE OF
KEVIN McCAFFERTY, A.P.N., R.N.,
R.N. #26NR04704300
A.P.N. #26NJ00276800
TO PRACTICE NURSING IN THE
STATE OF NEW JERSEY.
____________________________________
Argued March 21, 2017 – Decided November 16, 2017
Before Judges Messano and Suter.
On appeal from the State Board of Nursing,
Department of Law & Public Safety, Division
of Consumer Affairs.
Mary Ann C. O'Brien argued the cause for
appellant Kevin McCafferty (Crammer, Bishop,
& O'Brien, attorneys; Ms. O'Brien, on the
briefs).
Barbara J.K. Lopez, Deputy Attorney General,
argued the cause for respondent New Jersey
State Board of Nursing (Christopher S.
Porrino, Attorney General, attorney; Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Ms. Lopez, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Kevin McCafferty appeals the December 14, 2015 State Board
of Nursing (Board) Final Order to "undergo comprehensive mental
health and substance abuse evaluation and monitoring to ascertain
whether [he] is fit and competent to practice nursing in the State
of New Jersey." He also appeals the denial of reconsideration and
of a stay. We affirm.
I.
McCafferty is licensed by the Board as a registered
professional nurse and an advanced practice nurse, and is a
certified registered nurse anesthetist (CRNA).1 He works at a
surgical center in New Jersey. In 2012, the Board's Enforcement
Bureau commenced an investigation after receiving information
about possible drug or alcohol abuse by McCafferty. A doctor who
previously worked with him certified that "[o]n multiple
occasions," she smelled "alcohol on McCafferty's breath while at
work and while he was taking care of patients." She claimed he
was "often erratic in the medical care he provided" and would
"make a number of mistakes." She was "suspicious" about the abuse
of controlled substances because "the waste narcotics did not
match up." She observed that he came into work with his face
1
A CRNA is a registered nurse who is certified to administer
anesthesia under certain circumstances. They also must be advanced
practice nurses. See N.J.A.C. 13:37-7.1 to -7.2.
2 A-2141-15T1
"busted" after "a physical altercation on his off time while
intoxicated." She complained that his "behavior was often erratic
and sloppy and he is a danger to patients." This doctor revealed
that McCafferty "reeked" of alcohol on September 3, 2012, and
smelled of alcohol on September 11, 2012.
An interview with a second doctor revealed that "she had
known him to smell of alcohol" but did not observe him drinking
on the job. This doctor observed him "bullying other employees,"
using "foul language" and "[making] inappropriate statements in
the presence of patients." She also raised a concern about his
narcotic wasting procedures. The Board's interview with a
professional nurse revealed that she had "never experienced Mr.
McCafferty smelling of alcohol." However, he "behaved in a loud
and obnoxious manner." In addition, on "one occasion" he "asked
her to sign a narcotic waste" that she did not witness and she
refused. Although he would "frequently go out of his way to help
people," he also "frequently spoke disrespectfully" about others.
McCafferty was interviewed and "denied drinking to excess." He
contended the allegations were false.
In 2013, the Board contacted McCafferty, advising it
"reviewed information which reveals that [he] may have problems
related to mental health and/or substance abuse that could have
affected and/or might subsequently affect [his] nursing
3 A-2141-15T1
activities." It offered to resolve the issue by private letter
agreement which would include agreement by McCafferty to enroll
in the Recovery and Monitoring Program of New Jersey (RAMP) 2 "for
a minimum of [ninety] days." RAMP would require McCafferty to
submit to "random observed urine screens" or hair screens, to
prepare monthly self-evaluation reports, and to regularly attend
peer support meetings. Additional requirements included a
comprehensive mental health and substance abuse evaluation, which
would be forwarded to the Board. He would be required to follow
the recommendations of RAMP. All the evaluations were to be at
his own cost. He would agree to stay enrolled in RAMP until
successful completion or release.
When McCafferty did not enroll in RAMP, the program notified
the Board that McCafferty "has been noncompliant" and that it
could not "assure the [Board] or the public that Mr. McCafferty
is safe to practice."
McCafferty was subpoenaed to appear before a committee of the
Board to be questioned about "allegations that [he] appeared at
[his] place of employment smelling of alcohol on occasion, that
[his] practice of 'wasting' narcotics was defective, and that [he]
spoke disrespectfully of [his] colleagues and made inappropriate
2
RAMP is a private, voluntary program that contracts with the
Board of Nursing.
4 A-2141-15T1
statements in the presence of patients." McCafferty denied all
the allegations and stated he was "flabbergasted" by them. He
supplied the committee with recommendations and evaluations that
attested to his performance. His counsel suggested that his use
of breath mints might account for the smell of alcohol.
The Board again proposed a private letter agreement to
McCafferty, allowing him to participate in RAMP. He did not sign
the agreement. On April 6, 2015, the Board issued a provisional
order of discipline. The order recounted the statements that had
been made by the two doctors and a nurse. Under N.J.S.A. 45:1-
22(f), McCafferty was ordered to submit to "evaluation and
monitoring to evaluate whether continued practice may jeopardize
the safety and welfare of the public." He was given thirty days
to enroll in RAMP and to undergo its mental health and substance
abuse evaluation procedures. The order would be finalized in
thirty days unless he requested a modification or dismissal,
setting forth his reasons. The Board would determine if additional
proceedings were necessary, and if no "material discrepancies"
were raised, the order would be finalized.
McCafferty requested dismissal of the provisional order. He
challenged the credibility of one of the doctors who complained.
He said the second complaining doctor had asked him to join her
on a clinical healthcare network. He submitted ten other
5 A-2141-15T1
certifications from doctors and nurses attesting to his competence
and that they had not smelled alcohol. He noted all of the
complaints about him were dated prior to January 2, 2013. A Deputy
Attorney General for the Board responded that it was seeking an
evaluation because three medical professionals reported
questionable conduct, not that the Board had found McCafferty
"engaged in any misconduct, or worked while impaired."
On December 14, 2015, the Board issued a Final Order, which
required McCafferty to enroll in RAMP at his own expense. The
order noted that, "[a]lthough ten medical professionals have
indicated that they have not seen any evidence of alcohol or drug
abuse or impairment, three have. In order to fulfill its mandate
to protect the public, an evaluation is warranted." The Board
stated that it did not cite to N.J.S.A. 45:1-21(l) and did not
make findings that McCafferty was engaged in drug and alcohol
abuse although a question had been raised about his possible drug
or alcohol abuse. The Board's Final Order was posted to the
National Practitioner Data Bank (NPDB),3 and reported a "Complaint
3
The NPDB is a permanent registry that maintains information about
any negative performance by a medical professional. 42 U.S.C.A.
§§ 11101-52; see also U.S. Dep't of Health & Human Serv., Health
Res. and Serv. Admin., NPDB Guidebook (2015), available at
www.npdb.hrsa.gov/guidebook (citing 42 U.S.C.A. §§ 11101-52 for
its authority).
6 A-2141-15T1
Received Alleging Impairment" by the Board, noting the licensee
was required to "undergo comprehensive mental health and substance
abuse evaluation within [thirty] days" of December 14, 2015.
McCafferty asked the Board to stay the Final Order and for
reconsideration. Both of his requests were denied although the
Board advised it would not enforce the Final Order during the
pendency of his appeal. McCafferty appeals the Final Order and
the denial of his stay and reconsideration.
On appeal, McCafferty contends his substantive due process
rights were violated by the Board's entry of a Final Order of
discipline under N.J.S.A. 45:1-22, without first listing a
statutory ground under N.J.S.A. 45:1-21 for the violation or making
findings in support of that statutory basis. He contends the
Board's Final Order should have been dismissed because all the
allegations were made more than a year before the Board's action,
disqualifying them under N.J.S.A. 45:1-21(l) from any disciplinary
action. He contends the Board had no authority to order his
enrollment in RAMP, that the Board erred in entering its Final
Order because it did not have substantial evidence to support its
order, and it made no findings. He contends the Board erred by
entering the Final Order without conducting further proceedings
after a hearing was requested, that the Final Order was inherently
inconsistent, that the Board erred by not staying the action or
7 A-2141-15T1
reconsidering its Final Order, and the Board acted in a vindictive
manner by making a report to the NPDB while the appeal was pending.
II.
Our review of the Board's Final Order is limited. An agency
decision should not be overturned unless there is "a showing that
it was arbitrary, capricious or unreasonable, or that it lacked
fair support in the evidence[.]" In re Carter, 191 N.J. 474, 482
(2007) (citation omitted). "Deference is appropriate because of
the 'expertise and superior knowledge' of agencies in their
specialized fields and because agencies are executive actors." In
re Zahl, 186 N.J. 341, 352 (2002) (citation omitted). In reviewing
agency decisions, we are to give "considerable weight to an
agency's interpretation of a statute the agency is charged with
enforcing." G.S. v. Dep't of Human Servs., 157 N.J. 161, 170
(1999). We are not, however, bound by "an agency interpretation
of a strictly legal issue when that interpretation is inaccurate
or contrary to legislative objectives." Ibid. (citation omitted)
(citing N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544,
562-63 (1978)).
"The Board maintains oversight of professional licensing for
nurses" pursuant to the Nurses Practice Act (the Act), N.J.S.A.
45:11-23 to -52. In re Eastwick Coll. LPN to RN Bridge Program,
225 N.J. 533, 537 (2016). To be licensed as a professional nurse
8 A-2141-15T1
an applicant must not be "a habitual user of drugs." N.J.S.A.
45:11-26(a)(2). "To become licensed as a CRNA, an individual must
meet both the general nurse licensing requirements, N.J.S.A.
45:11-26, as well as specified nurse anesthetist licensing
requirements, N.J.A.C. 13:37-13.1." N.J. State Ass'n of Nurse
Anesthetists, Inc. v. N.J. State Bd. of Med. Exam'rs, 372 N.J.
Super. 554 (App. Div. 2004), aff'd o.b., 183 N.J. 605 (2005).
McCafferty does not question that as a professional nurse and
CRNA, he may not abuse drugs or alcohol.
The Act was amended in 2005 to allow the Board to "establish
an Alternative to Discipline Program for board licensees who are
suffering from a chemical dependency or other impairment."
N.J.S.A. 45:11-24.10(a). Under the program, licensees can disclose
their dependency to an intervention program designated by the
Board, "which shall provide confidential oversight of the licensee
during the period that the licensee seeks treatment for, and
follows a plan for recovery from the dependency or impairment."
Ibid. Members of the public may also report licensees "who may
be suffering from chemical dependencies or other impairments."
N.J.S.A. 45:11-24.10(c)(3)(a). Each referral is reviewed to
determine "if participation in the program is appropriate."
N.J.S.A. 45:11-24.10(c)(1)(d). This information is to be
9 A-2141-15T1
transmitted to the Board. N.J.S.A. 45:11-24.10(h). The Board
contracted with RAMP as an intervention program.4
McCafferty's contentions center on the Board's application
of the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-18 to -27, and
not the Board's powers under the Act. The UEA is a remedial
statute that is intended to provide uniformity in the investigative
and enforcement powers of all professional boards "located within
the Division of Consumer Affairs." Del Tufo v. J.N., 268 N.J.
Super. 291, 297 (App. Div. 1993) (citing N.J.S.A. 45:1-14). It
is to be afforded a liberal construction. N.J.S.A. 45:1-14; In
re Kim, 403 N.J. Super. 378, 386 (App Div. 2008).
The Board's authority under the Act and the UEA are to be
read in pari materia. See Kim, supra, 403 N.J. Super. at 384. "The
UEA . . . does not abrogate the powers of the Board to license,
regulate and investigate members of the medical profession." Del
Tufo, supra, 268 N.J. Super. at 297. Among the Board's duties and
powers, it "shall in its discretion investigate and prosecute all
violations of provisions of the [A]ct." N.J.S.A. 45:11-24(d)(9).
Under the UEA, a board also may "require any board licensee . . .
to submit to an assessment of skills to determine whether the
4
About RAMP, see NJSA.org, http://njsna.org/ramp/about-ramp/ .
10 A-2141-15T1
board licensee . . . can continue to practice with reasonable
skill and safety." N.J.S.A. 45:1-18(g).
The UEA provides in Section 21, N.J.S.A. 45:1-21, that a
professional board may "refuse to issue or may suspend or revoke
any . . . license" upon proof of any of the grounds enumerated in
that section. These include "professional or occupational
misconduct", N.J.S.A. 45:1-2(e); a licensee who is not capable "of
discharging the functions of a licensee in a manner consistent
with the public's health, safety and welfare," N.J.S.A. 45:1-
21(i); and a licensee who "is presently engaged in drug or alcohol
use that is likely to impair the ability to practice the profession
. . . with reasonable skill and safety" where "presently" is
defined as "at this time or any time within the previous 365 days,"
N.J.S.A. 45:1-21(l).
Under N.J.S.A. 45:1-22, Section 22 of the UEA, the Board may
"[i]n addition or as an alternative . . . to revoking, suspending
or refusing to renew any license, registration or certificate
issued by it, . . . after affording an opportunity to be heard[,]"
do other things such as "issue a letter of warning, reprimand or
censure," order a person violating any provision of an act to
"cease and desist," or to take affirmative corrective action.
N.J.S.A. 45:1-22(a), (c). The Board may
11 A-2141-15T1
[o]rder any person, as a condition for
continued, reinstated or renewed licensure, to
submit to any medical or diagnostic testing
and monitoring or psychological evaluation
which may be required to evaluate whether
continued practice may jeopardize the safety
and welfare of the public[.]
[N.J.S.A. 45:1-22(f) (emphasis added).]
McCafferty contends that the alternatives set forth in
Section 22 of the UEA cannot be used unless the Board first
identifies a ground for discipline under Section 21 and makes a
finding of a violation under that section. He bases his argument
on use of the word "penalties" in the headnote of Section 22. The
headnote reads "Additional or alternative penalties to revocation,
suspension or refusal to renew; temporary order suspending or
limiting license; subpoena." (Emphasis added). However, "[t]he
title of a statute, more properly called its 'headnote', is deemed
not 'to be part of' it, N.J.S.A. 1:1-6." State v. Malik, 365 N.J.
Super. 267, 279 (App. Div. 2003). The headnotes "are not included
in the laws when enacted by the Legislature but are added by others
in the course of the classification and incorporation into the
annotated statutes." State v. Brown, 188 N.J. Super. 656, 660
(Law Div. 1983). As such, the headnote is not part of the
legislature's enactment.
12 A-2141-15T1
Nothing in the language of Section 22 restricts its
application unless and until there is a violation under Section
21. The provisions of Section 22 may be in addition to or as an
alternative to revoking, suspending or refusing to renew a license.
That the statute authorizes something short of the institution of
formal action against the licensee under Section 22 is made clear
from its language. Subsection (a) of Section 22, N.J.S.A. 45:1-
22(a), allows the Board to "issue a letter of warning, reprimand
or censure with regard to any act, conduct or practice which in
the judgment of the board upon consideration of all relevant facts
and circumstances does not warrant the initiation of formal
action." Under subsection (f), N.J.S.A. 45:1-22(f), the licensee
can be ordered to submit to testing or an evaluation to evaluate
if the licensee's continued practice "may jeopardize the safety
and welfare of the public." All of that language is anticipatory,
designed to authorize the Board to evaluate if other action is
needed.
McCafferty's interpretation of Sections 21 and 22 would
significantly limit the Board's express and implied5 investigatory
5
Administrative agencies have such implied incidental powers as
may reasonably be adapted to that end. In re Commn'r of Banking
& Ins. v. Parkwood Co., 98 N.J. Super. 263, 272 (App. Div. 1967);
see also Sheeran v. Progressive Life Ins. Co., 182 N.J. Super.
237, 247-248 (App. Div. 1981). When the task of a regulatory agency
13 A-2141-15T1
powers under the Act and UEA, where allegations are made that a
licensee may have an alcohol or drug problem. Under his
interpretation, the Board could only order a nurse to submit to
an evaluation if it first had a plenary hearing to determine the
validity of the allegations of abuse. That procedure is not
required by the statutes nor by due process, and it would produce
a limitation on the Board's ability to protect the public.
As we said in the context of the Medical Board,
the Board is vested not only with the greater
power to deny, revoke, or suspend a
physician's medical license, N.J.S.A. 45:1-
21, but also with the power to invoke the
lesser sanctions of warnings, reprimands, or
censure. N.J.S.A. 45:1-22(a). We conclude
that to limit the exercise of the power to
grant or deny licensure, separate from the
imposition of a lesser and perhaps more
appropriate action is irrational and may
thwart the effectiveness of the Board's
fundamental dual purpose-to permit qualified
physicians licensure while protecting the
State citizenry.
[Kim, supra, 403 N.J. Super. at 387.]
Here, the Board has the discretion to investigate and
prosecute violations of the Act. N.J.S.A. 45:11-24(d)(9). It has
"'is to protect the health and welfare of members of the public'
by assuring that all licensed practitioners are qualified,
competent and honest, the grant of implied powers is particularly
important." In re Polk, 90 N.J. 550, 574 (1982) (quoting In re
Suspension of Heller, 73 N.J. 292, 303-04 (1977)).
14 A-2141-15T1
an alternative to discipline program that evaluates referrals on
issues of chemical dependencies and reports to the Board, making
recommendations on participation in RAMP. N.J.S.A. 45:11-24.10.
It has the investigative power to require a licensee to submit to
an assessment of skills. N.J.S.A. 45:1-18. The Board has the
power to order an evaluation to determine whether continued
practice may jeopardize the safety or welfare of the public.
N.J.S.A. 45:1-22(f). Given these express powers, we reject as
inconsistent with a facial reading of these statutes, McCafferty's
contention that a violation under Section 21 must be found before
the Board can utilize the powers set forth in Section 22. Rather,
if there is some evidence that a licensee may have a chemical
dependency, and after the opportunity to be heard, we agree with
the Board that it has statutory authority under Section 22 to
order a licensee to undergo an evaluation even if that evidence
would not support a violation under Section 21.
McCafferty was not denied the due process of law. He was
aware of the allegations against him, given the ability to appear
with counsel before an investigative panel and made multiple
submissions to the Board, which included an application for a stay
and for reconsideration. We reject his substantive due process
claim in light of the process he was afforded and the public
interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334-
15 A-2141-15T1
35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18, 33 (1976) (balancing
private interests, the risk of erroneous deprivation and the state
interest to determine if substantive due process required
additional procedural safeguards).
McCafferty's remaining points require brief comment. Because
the Board's action was not initiated under Section 21 of the UEA,
the 365 day limitation in subsection (l), N.J.S.A. 45:1-21(1), has
no applicability. Given the allegations by three professionals,
there was evidence to support the Board's order that he undergo
an evaluation for possible alcohol or drug abuse. The Board had
clear statutory authority to establish an alternative to
discipline program and to contract for the provision of those
services. McCafferty contends that RAMP is "intrusive" because
it requires monitoring, observed urine testing, hair follicle
tests, and attendance at peer groups. He does not contend that
the Board abused its discretion in contracting with RAMP, nor did
he argue that it acted in an arbitrary, capricious or unreasonable
manner by using RAMP for licensees with drug or alcohol problems.
He was not entitled to a contested case hearing because this was
not an action to revoke, suspend or non-renew his license. See
N.J.S.A. 52:14B-11. We are satisfied the Board did not abuse its
discretion by denying the stay of enforcement or reconsideration.
There was no evidence that the Board's report to the NPDB was
16 A-2141-15T1
vindictive. It had authority to make the report and did so
accurately. We conclude that McCafferty's further arguments are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
17 A-2141-15T1