M. Freeman v. BPOA, State Board of Nursing ( 2018 )


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  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Mardea Freeman,                           :
    Petitioner             :
    :
    v.                           : No. 1004 C.D. 2017
    : Submitted: June 4, 2018
    Bureau of Professional                    :
    and Occupational Affairs,                 :
    State Board of Nursing,                   :
    Respondent             :
    BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY PRESIDENT JUDGE LEAVITT                                     FILED: July 20, 2018
    Mardea Freeman, L.P.N. (Freeman) petitions for review of an
    adjudication of the State Board of Nursing (Board) that suspended her license for
    three years, to be served in a five-month active suspension and followed by 31
    months of probation. Freeman argues that the Board erred and abused its discretion
    in imposing this discipline because it relied on facts not supported by the record and
    disregarded her mitigating evidence.
    Freeman has held a practical nursing license in Pennsylvania since July
    26, 2013. On December 18, 2013, Freeman was charged with two misdemeanor
    offenses, theft by deception and criminal conspiracy to commit theft by deception,
    as a result of an incident at a Home Depot store. She was admitted into an
    Accelerated Rehabilitative Disposition (ARD) program.
    On March 15, 2014, Freeman applied for a renewal of her practical
    nursing license. On the renewal application, Freeman was asked whether she had
    “received … [ARD] as to any felony or misdemeanor ... or do you have any criminal
    charges pending and unresolved in any state or jurisdiction?” Reproduced Record
    at 151 (R.R. __). Freeman answered “No.” Id.
    One month later, Freeman was arrested for stealing jewelry and bank
    account information from a patient. As a result of these charges, Freeman was
    dismissed from ARD on the Home Depot incident.1 On October 20, 2014, Freeman
    was convicted of theft by deception, a first-degree misdemeanor, for using a patient’s
    checking account information to pay Freeman’s electric and phone bill. The jewelry
    theft charge was nolle prossed. The trial court sentenced Freeman to 24 months
    probation and directed that Freeman was “not to be employed taking care of senior
    citizens.” R.R. 149.
    On March 27, 2015, the Board issued an order to Freeman to show
    cause why her license should not be suspended, revoked, restricted and a civil
    penalty imposed, for her violation of the Practical Nurse Law,2 and the Criminal
    History Record Information Act (CHRIA), 18 Pa. C.S. §§9101-9183. Freeman
    answered the order to show cause and requested a hearing. The Board appointed a
    Hearing Examiner to conduct a hearing and issue a recommended adjudication.
    At the hearing, the Bureau of Professional and Occupational Affairs
    (Bureau) offered into evidence the order to show cause, Freeman’s answer, and the
    records of Freeman’s convictions and sentences. It also introduced a copy of
    Freeman’s license renewal application. The Bureau recommended that Freeman be
    1
    After being removed from the ARD program, Freeman was convicted of criminal conspiracy to
    commit theft by deception, a second-degree misdemeanor, and sentenced to six months probation.
    R.R. 12-13.
    2
    Act of March 2, 1956, P.L. (1955) 1211, as amended, 63 P.S. §§651-667.8.
    2
    placed on probation for three years but allowed to continue to work. Notes of
    Testimony (N.T.), 7/2/2015, at 97; R.R. 124.
    Freeman testified on her own behalf. Regarding the Home Depot
    incident, Freeman explained that a friend had asked her to drive her to Home Depot
    to return an item for which she did not have a receipt. In that situation, the store
    required a driver’s license. Because her friend did not have her driver’s license,
    Freeman presented her license. While Freeman processed the return, her friend
    placed shoplifted merchandise into Freeman’s car.
    Regarding the other criminal episode, Freeman acknowledged that she
    used a patient’s personal financial information to pay two utility bills.          She
    explained:
    Well, at the time, I was raising my son on my own as a single
    mother. Everything was on the verge of being cut off. You
    know, I didn’t want to have to go back to the shelter. I made a
    stupid decision to do that.
    N.T. at 33; R.R. 60. Freeman acknowledged this did not excuse her action:
    I do regret the --- some of the decision[s] that I’ve made, because
    I love my career. I love helping people. I love what I do, and
    based on the decisions that I’ve made, it’s just jeopardizing my
    whole career…. But yes, I do regret being here today, in the
    situation that I’m in today, I mean.
    N.T. at 43-44; R.R. 70-71.
    Freeman recounted that after graduating from high school, she became
    involved in an abusive relationship. She moved to a shelter, where she lived for two
    years. While living at the shelter, Freeman enrolled in a certified nursing assistant
    (CNA) training program and obtained a CNA license. Her employment enabled her
    to leave the shelter. Shortly thereafter, Claimant gave birth to a son, for whom she
    3
    is solely responsible because the father is incarcerated. Freeman worked several
    jobs while continuing her education and, in April 2013, earned her practical nursing
    license.
    Freeman testified that she currently cares for two pediatric patients.
    One of these patients is non-ambulatory and needs assistance with eating, taking
    medications and toileting. Freeman works with him approximately 47 hours a week.
    Freeman assists another patient who is on a ventilator with a tracheostomy tube,
    approximately 16 hours per week at nighttime, administering medication and
    recording the patient’s vital signs.
    Freeman offered the testimony of several character witnesses. Her
    classmate and co-worker testified that Freeman enjoyed a reputation for being
    hardworking and diligent, explaining “she’s always maintained a sense of integrity
    … always … making sure she has [the patients’] best interests at heart.” N.T. at 21;
    R.R. 48.        Several other witnesses attested to Freeman’s good character and
    reputation: Freeman’s husband; her brother; her pastor; and her long-time friend.
    On November 19, 2015, the Hearing Examiner issued a proposed
    adjudication. He concluded that Freeman was subject to disciplinary action under
    authority of the Practical Nurse Law and CHRIA for her convictions for conspiracy
    to commit theft at Home Depot and theft of property from a patient in her care, which
    was a serious violation of patient trust.3 After balancing the seriousness of the
    3
    Specifically, the Hearing Examiner concluded:
    [Freeman] is subject to disciplinary action under Count One because [Freeman]
    violated Section 16(a)(5) of the [Practical Nurse Law], 63 P.S. §666(a)(5), by her
    conviction for Criminal Conspiracy, 18 Pa.C.S. §903, related to Theft By Deception
    – False Impression, a crime of moral turpitude.
    [Freeman] is subject to disciplinary action under Count Two because [Freeman]
    violated Section 16(a)(5) of the [Practical Nurse Law], 63 P.S. §666(a)(5), because
    4
    offenses against Freeman’s mitigation evidence, the Hearing Examiner
    recommended that her license be suspended for three years, with the suspension
    immediately stayed in favor of probation for three years.
    The Hearing Examiner advised the parties that the Board would review
    the proposed adjudication and order. Neither Freeman nor the Bureau filed a brief
    or exceptions.
    On July 26, 2016, the Board adopted the Hearing Examiner’s findings
    of fact and conclusions of law but rejected his recommended discipline. The Board
    imposed a three-year license suspension to be served by a six-month active
    suspension followed by 30 months of probation. Freeman petitioned for this Court’s
    review of the Board’s adjudication.
    [Freeman] was convicted of Theft by Deception – False Impression, 18 Pa. C.S.
    §3922(a)(1), a crime of moral turpitude.
    [Freeman] is subject to disciplinary action under Count Three because [Freeman]
    violated Section 9124(c)(2) of [CHRIA], 18 Pa.C.S. §9124(c)(2), because
    [Freeman] has been convicted of a misdemeanor related to the practice of the
    profession.
    [Freeman] is subject to disciplinary action under Count Four because [Freeman]
    violated Section 16(a)(4) of the [Practical Nurse Law], 63 P.S. §666(a)(4), because
    [Freeman] committed fraud or deceit in securing her admission to such practice by
    answering falsely on her application for renewal of her license.
    [Freeman] is subject to disciplinary action under Count Five because [Freeman] has
    been [found] guilty of unprofessional conduct under Section 16(a)(8) of the
    [Practical Nurse Law], 63 P.S. §666(a)(8), because she stole checking account
    information from a patient.
    [Freeman] is subject to disciplinary action under Count Six because [Freeman]
    violated Section 16(a)(3) of the [Practical Nurse Law], 63 P.S. §666(a)(3), because
    [Freeman] misappropriated equipment, materials, property, drugs or money from
    an employer or patient.
    Proposed Adjudication, 11/19/2015, at 7-8, Conclusions of Law 4-9; R.R. 282-83 (internal
    notations omitted).
    5
    On appeal, this Court vacated the Board’s adjudication. See Freeman
    v. Bureau of Professional and Occupational Affairs (Pa. Cmwlth., No. 1341 C.D.
    2016, filed April 20, 2017) (unreported). This Court did so because one of the
    Board’s stated bases for its harsher discipline was unfounded. Specifically, the
    Board had attributed its harsher sanction to the fact that Freeman was convicted of
    jewelry theft. However, she was not so convicted. This Court remanded the matter
    to the Board with instructions “to impose a sanction consistent with findings of fact
    and conclusions of law that are supported by the record.” Id., slip op. at 13.
    Following remand, the Board again imposed a three-year suspension to
    be served by a five-month active suspension followed by 31 months of probation.
    Board Adjudication, 6/22/2017, at 15; R.R. 353. The Board explained:
    In this case, [Freeman] has demonstrated an escalation in
    criminal misconduct, from conspiring with another to steal from
    a home improvement store to personally stealing bank account
    information from a patient and using that information for her own
    pecuniary gain. The escalation of misconduct serves as an
    aggravating factor. The specific crime which [Freeman]
    committed involved theft from a patient in a nursing home,
    certainly a very vulnerable individual….
    [Freeman] compounded her criminal misconduct by providing
    false information to the Board when she submitted her licensure
    renewal application on March 15, 2014. By failing to disclose
    that she was in an ARD program related to the Home Depot
    matter on her license renewal application, [Freeman] again
    demonstrated dishonesty and lack of good moral character.
    Id. at 13-14; R.R. 351-52. Regarding Freeman’s mitigating evidence, the Board
    stated:
    [Freeman] testified credibly about her personal background and
    history of housing insecurity, and how she had made a better life
    for herself and her son by attending nursing school and working
    in the profession. [Freeman’s] fortitude is to be commended;
    6
    however, it cannot erase the fact that [Freeman] put her needs
    above the needs of the Majestic Oaks resident from whom she
    stole – conduct that is antithetical to the nursing profession.
    Id. at 14-15; R.R. 352-53. The Board acknowledged that Freeman’s character
    witnesses uniformly attested to her
    reputation for honesty and trustworthiness in the community.
    This mitigating evidence speaks to [Freeman’s] ability to
    rehabilitate herself and not pose a threat to vulnerable patients in
    the future.
    Id. at 15; R.R. 353.
    On appeal,4 Freeman raises two arguments. First, she contends that the
    Board erred and abused its discretion in suspending her license because, again, the
    stated factual basis for its discipline conflicts with the record. Specifically, the
    Board’s statement that Freeman was on ARD when she submitted her license
    renewal application is incorrect because she entered ARD after she submitted her
    renewal application. Second, Freeman contends that the Board failed to consider all
    of her mitigating evidence in rejecting the Hearing Examiner’s recommended
    discipline, in favor of a harsher sanction.
    Section 16 of the Practical Nurse Law authorizes the Board to suspend
    or revoke a license where the licensee has been convicted of or has pleaded guilty or
    nolo contendere to a crime of moral turpitude. 63 P.S. §666(a)(5). It also authorizes
    4
    Our review determines whether there has been an error of law or a violation of constitutional
    rights, or whether the findings of fact are supported by substantial evidence. Bethea-Tumani v.
    Bureau of Professional and Occupational Affairs, 
    993 A.2d 921
    , 925 n.6 (Pa. Cmwlth. 2010)
    (citations omitted). Our review of the Board’s disciplinary sanction is deferential, i.e., it is “limited
    to the determination of whether there has been a manifest and flagrant abuse of discretion or a
    purely arbitrary execution of the agency’s duties or functions.” 
    Id.
     (citing Goldberger v. State
    Board of Accountancy, 
    833 A.2d 815
    , 817 n.1 (Pa.Cmwlth. 2003) (quoting Slawek v. State Board
    of Medical Education and Licensure, 
    586 A.2d 362
    , 365 (Pa. 1991)).
    7
    a license suspension for any violation of the Practical Nurse Law, such as providing
    a false answer on a license renewal application. 63 P.S. §666(a)(4).
    In her first issue, Freeman argues that the Board erred and abused its
    discretion by basing its license suspension upon her failure to disclose her ARD on
    her license renewal application. The Board responds that Freeman waived this issue
    because she did not file exceptions to the hearing examiner’s proposed report. In
    the alternative, the Board contends that its discipline is otherwise supported by the
    record and that the mistake about the timing of her ARD constitutes harmless error.
    We begin with the Board’s waiver argument. The Board’s proceedings
    are governed by the General Rules of Administrative Practice and Procedure
    (GRAPP), 
    1 Pa. Code §§31.1
    –35.251. See 
    49 Pa. Code §21.146
    . Following the
    issuance of the hearing examiner’s proposed report, the parties may file exceptions.
    If a party does not file exceptions, Section 35.123 of GRAPP provides, in relevant
    part:
    Failure to file a brief on exceptions within the time allowed under
    §35.211 (relating to procedure to except to proposed report)
    shall constitute a waiver of all objections to the proposed report.
    Objections to any part of a proposed report which is not the
    subject of exceptions may not thereafter be raised before the
    agency head in oral argument, or in an application for agency
    rehearing or reconsideration, and shall be deemed to have been
    waived.
    
    1 Pa. Code §35.213
     (emphasis added).
    It is true that Freeman did not file exceptions to the Hearing Examiner’s
    recommended report. Simply, she was not aggrieved by it. In any case, Freeman
    challenges the Board’s stated reasons for imposing its sanction, not the Hearing
    Examiner’s proposed report. We reject the Board’s waiver contention and address
    the merits of Freeman’s appeal.
    8
    On or about March 15, 2014, Freeman submitted a license renewal
    application to the Board. The following question was on the application:
    Since your initial application or last renewal, whichever is later,
    have you been convicted, found guilty or pleaded nolo
    contendere, or received probation without verdict, or accelerated
    rehabilitative disposition (ARD) as to any felony or
    misdemeanor, including any drug law violations, or do you have
    any criminal charges pending and unresolved in any state or
    jurisdiction? You are not required to disclose any ARD or other
    criminal matter that has been expunged by order of a court.
    R.R. 24 (emphasis added). Freeman answered “No,” even though criminal charges
    were pending against her in the Home Depot incident and she was placed into an
    ARD program two days later. Id. at 12-13, 24, 215.
    In the order to show cause, the Board charged Freeman with deceit for
    being untruthful in her answer to the question about her pending criminal charges.
    In the answer to the order, Freeman stated that she “was unaware” that the Home
    Depot incident constituted a pending criminal charge, explaining that she thought
    “being in the ARD Program [meant] her case was the subject of a potential
    expungement [and] did not require her to respond to the [question] affirmatively.”
    R.R. 155-56. Erroneously, in its adjudication, the Board concluded that Freeman
    was in an ARD program related to the Home Depot incident at the time she submitted
    her license renewal application. Board Adjudication, 6/22/2017, at 5, Finding of
    Fact No. 15; R.R. 343. The record does not support this fact.
    This Court has explained that “reversible error requires the
    determination ‘must not only be erroneous, but also harmful or prejudicial to the
    complaining party.’” Garner v. Pennsylvania Human Relations Commission, 
    16 A.3d 1189
    , 1200 (Pa. Cmwlth. 2011) (quoting D.Z. v. Bethlehem Area School
    9
    District, 
    2 A.3d 712
    , 726 (Pa. Cmwlth. 2010)). “[A]n order of an administrative
    agency will not be disturbed for harmless error.” D.Z., 
    2 A.3d at 725-26
    .
    The Board argues that it was Freeman’s untruthful answer, not her
    being in an ARD program, that guided its exercise of discretion. In determining the
    appropriate sanction, the Board explained that Freeman “compounded her criminal
    misconduct by providing false information to the Board when she submitted her
    licensure renewal application on March 15, 2014.” Board Adjudication, 6/22/2017,
    at 14; R.R. 352. The Board stated that her “criminal convictions and fraud on her
    application must be met with a sanction appropriate to the severity of her
    misconduct.” 
    Id.
     The Board’s decision to sanction Freeman was based on her failure
    to be truthful on the application.
    Importantly, Freeman was required to answer “yes” to the question on
    the license application regardless of whether or not she was in an ARD program
    because there were criminal charges pending against her related to the Home Depot
    incident. She did not do so. Moreover, the Board did not accept, apparently, the
    statement in Freeman’s answer that she did not understand that the charges arising
    from the Home Depot incident had to be reported on her renewal application.
    Because it was her failure to answer truthfully that prompted the Board’s discipline,
    Freeman is not prejudiced by the Board’s error.
    In her second issue, Freeman argues that the Board abused its discretion
    by not considering all her mitigating evidence, including the facts that she accepted
    responsibility for her actions and has established a support network in her
    community. Further, the Board erred in characterizing her failure to disclose her
    ARD status as an “aggravating factor[.]” Freeman Brief at 18.
    10
    The Board “exercises considerable discretion in policing its licensees.”
    Ake v. Bureau of Professional and Occupational Affairs, State Board of
    Accountancy, 
    974 A.2d 514
    , 519 (Pa. Cmwlth. 2009). The “weight the Board
    assigns to evidence offered to mitigate the severity of a penalty is a matter within its
    discretion.” Burnworth v. State Board of Vehicle Manufacturers, Dealers and
    Salespersons, 
    589 A.2d 294
    , 296 (Pa. Cmwlth. 1991). This Court has explained as
    follows:
    While [this Court] is required to correct abuses of discretion in
    manner or degree of penalties imposed, absent a manifestly
    unreasonable exercise of judgment, we will not substitute our
    discretion for that of the Board, an administrative body endowed
    with expertise in matters subject to its jurisdiction.
    Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 
    578 A.2d 1355
    , 1359 (Pa. Cmwlth. 1990).
    Section 16(b) of the Practical Nurse Law authorized the Board to
    revoke or suspend Freeman’s license upon holding that she violated Section 16(a)
    of the Law. 63 P.S. §666(b). The Board imposed a three-year suspension but
    “[b]ased on the strength of the mitigating evidence presented,” it limited the penalty
    to “a five-month period of active suspension[, with] the remaining 31 months [to] be
    served on probation.” Board Adjudication, 6/22/2017, at 15; R.R. 353. The Board’s
    discipline was authorized by statute.
    Nevertheless, Freeman contends that the Board did not consider all of
    her mitigating evidence.     We disagree.      The Board acknowledged Freeman’s
    testimony related to her “personal background and history of housing insecurity, and
    how she had made a better life for herself and her son by attending nursing school
    and working in the profession.” Id. at 14; R.R. 352. The Board also considered
    11
    Freeman’s present reputation for honesty and trustworthiness in the community,
    which it found relevant.      The Board found that Freeman had the “ability to
    rehabilitate herself and not pose a threat to vulnerable patients in the future.” Id. at
    15; R.R. 353.
    The Board gave more weight to the seriousness of her crimes than it did
    to her mitigating evidence. Whether this Court agrees that Freeman, whose evidence
    of rehabilitation has been credited, should be forced to stop working at her profession
    for five months matters not. We cannot substitute our judgment for that of the Board.
    We cannot say that the Board’s chosen discipline signifies “a manifestly
    unreasonable exercise of judgment.” Foose, 
    578 A.2d at 1359
    .
    For these reasons, we affirm the Board’s adjudication.
    ______________________________________
    MARY HANNAH LEAVITT, President Judge
    12
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Mardea Freeman,                         :
    Petitioner            :
    :
    v.                          : No. 1004 C.D. 2017
    :
    Bureau of Professional                  :
    and Occupational Affairs,               :
    State Board of Nursing,                 :
    Respondent           :
    ORDER
    AND NOW, this 20th day of July, 2018, the adjudication and order of
    the State Board of Nursing, in the above-captioned matter, dated June 22, 2017, is
    AFFIRMED.
    ______________________________________
    MARY HANNAH LEAVITT, President Judge