Md. State Bd. of Nursing v. Sesay

224 Md.App. 432

121 A.3d 140

MARYLAND STATE BOARD OF NURSING

v.Mabinty SESAY.

No. 393, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Aug. 27, 2015.

Anthony DeFranco (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellant.

Theodore Nkwenti, Silver Spring, MD, for Appellee.

Panel: KRAUSER, C.J., DEBORAH S. EYLER, and LEAHY, JJ.

Opinion

LEAHY, J.

In this appeal, we address the obligations of the Maryland State Board of Nursing (“the Board”) to provide a practical nurse with notice of an evidentiary hearing concerning her violations of the Nurse Practice Act. In 2010, Mabinty Sesay, a licensed practical nurse, was alleged to have committed several violations of the Nurse Practice Act, and the Board, in 2011, issued charges against Ms. Sesay. The Board mailed notice of the charges and instructions on how to request an evidentiary hearing to Ms. Sesay. Ms. Sesay received notice of the charges, requested an evidentiary hearing and provided an address to which she directed the Board to send further correspondence. In 2013, the Board mailed Ms. Sesay notice of the evidentiary hearing to the address she provided, via certified and first-class mail. Ms. Sesay did not receive the notices because she had not provided the Board with her current address, as she was required to do by statute, and the notices were returned to the Board. The Board held a hearing regarding Ms. Sesay's license, without Ms. Sesay's presence, concluded that Ms. Sesay had violated the Nurse Practice Act, and ordered discipline for Ms. Sesay, including probation. Ms. Sesay filed a notice for petition of review of the Board's decision in the Circuit Court for Montgomery County. After a hearing, the court concluded that that the Board did not comply with due process requirements and was required to take further reasonable steps upon the return of both mailings. The court vacated the Board's decision and order.

In its timely appeal,¹ Appellant Maryland State Board of Nursing (“the Board”) raises two questions for our review:

I. Did the Board provide Ms. Sesay with legally sufficient notice of an evidentiary hearing concerning her violations of the Nurse Practice Act, when the Board sent notice to the last address that Ms. Sesay had provided the Board, and after Ms. Sesay failed to comply with a duty imposed on her by Maryland law to inform the Board of any change of address?

II. Did substantial record evidence support the Board's findings that, by falling asleep while caring for a quadriplegic child and later falsifying that child's medical record to bill for time in which she was not working, Ms. Sesay violated the Maryland Nurse Practice Act?

We hold that the Board provided Ms. Sesay with legally sufficient notice of an evidentiary hearing and further hold that substantial evidence supported the Board's findings that Ms. Sesay violated the Maryland Nurse Practice Act. Our holding recognizes the State's responsibility to protect the public health and instructs professionals licensed by the State that they may not, especially in the midst of administrative proceedings in which charges have been brought against them, fail to update their address with the appropriate regulatory body and thereby avoid accountability.² Therefore, we reverse the judgment of the Circuit Court for Montgomery County.

BACKGROUND

A. Ms. Sesay's Provision of Nursing Care in November, 2010

In November 2010, Mabinty Sesay was a practical nurse licensed by the State of Maryland and employed by Maxim Health Care Services (“Maxim”). On the dates of November 27–28, Ms. Sesay was assigned to provide in-home, overnight nursing care to E.C., a young man with quadriplegia who has no movement, aside from weak use of his biceps and triceps, from the chest down. He also has autonomic dysreflexia, which can cause a dangerous, rapid increase in blood pressure when he has a full bladder.

E.C.'s mother (“Ms. C.”) had several grievances regarding Ms. Sesay's performance. According to Ms. C., on the night of November 27, Ms. Sesay failed to wash her hands until asked, had difficulty performing tasks, and was observed sleeping at 4:00 a.m. On the night of November 28, at around 11:00 p.m., E.C. had been calling out for Ms. Sesay because he needed to urinate, but Ms. Sesay had fallen asleep and did not respond. At around 2:00 a.m., E.C. began calling out again for Ms. Sesay for about 15 minutes, but Ms. Sesay did not respond because she had fallen asleep in a bed she made for herself on the living room floor. Upon waking Ms. Sesay at around 2:15 a.m., Ms. C. dismissed her for sleeping. Ms. C. noticed, however, that Ms. Sesay had documented on her flow chart that she provided nursing care for E.C. at 5 a.m. and left at 6:30 a.m. She also noticed that Ms. Sesay had signed Ms. C's name on the document. Ms. Sesay, on the other hand, maintained that she had not been sleeping while working and that she was permitted to stay until her shift was over at 6 a.m.

Ms. C. thereafter called Maxim about the events at the C. residence, and, Maxim, after unsuccessfully trying to meet with Ms. Sesay about the situation, terminated Ms. Sesay's employment on November 30, 2010. The following week, on December 6, 2010, Ms. C. filed a complaint against Ms. Sesay with the Board. Attached to her complaint was a photograph that she claimed she took of Ms. Sesay sleeping on their living room floor. Also attached to the complaint were signed, hand-written statements from E.C., E.C.'s father, and E.C.'s brother detailing Ms. Sesay's poor performance.

B. The Board Files Charges Against Ms. Sesay and Provides Notice of the Evidentiary Hearing

After conducting an investigation into the complaint, the Board issued formal charges against Ms. Sesay on September 21, 2011. The document alleged that she “[w]illfully and knowingly (i) [f]ile[d] a false report or record of an individual under the licensee's care”; that she acted “inconsistent[ly] with generally accepted professional standards in the practice of registered nursing or licensed practical nursing”; that she “[s]ubmit[ted] a false statement to collect a fee”; and that she “[e]ngage[d] in conduct that violates the professional code of ethics” set forth in COMAR 10.27.19.02, requiring a nurse to “[a]ssume responsibility and accountability for individual nursing judgments and actions;” and “[not p]ractice nursing if unfit to perform procedures or make decisions because of physical or mental impairment [.]”

That same day, the Board sent a “NOTICE OF AGENCY ACTION–Charges under the Maryland Nurse Practice Act” via first-class and certified mail³ to two known addresses for Ms. Sesay: (1) 7333 New Hampshire Ave. # 3, Takoma Park, MD 20912; and (2) 601 # 3 Silver Spring Ave., Silver Spring, MD 20910. The letter explained how to request an evidentiary hearing before the Board took any disciplinary action against her license and provided that “[i]f you request a hearing, the Board will notify you in writing, at your address last known to the Board, of the date, time and location of the hearing.”

Ms. Sesay timely requested an evidentiary hearing before the Board on September 26, 2011. She listed her then-current mailing address as:

11407 July Dr. Apt 203

Silver Spring MD 20904

(“the July Drive address”). She also provided two phone numbers. It appears from the record that a settlement conference was held on January 10, 2012, but Ms. Sesay and the Board could not reach a resolution.⁴

On September 1, 2012, Ms. Sesay moved from her July Drive address to 2005 Treetop Lane # 41, Silver Spring, MD 20904 (hereinafter “the Treetop Lane address”). Ms. Sesay did not advise the Board of her change of address. Ms. Sesay was required by law to notify the Board of her move within 60 days of her change of address. H.O. § 8–312(e).

On May 17, 2013, the Board mailed a “NOTICE OF HEARING: In the Matter of Mabinty Sesay” to Ms. Sesay at her July Drive address, the last-known address on record, via first-class and certified mail, with the return receipt requested. The notice advised Ms. Sesay that the hearing would be held on Tuesday, July 23, 2013, at 10:00 a.m. at the offices of the Board, 4140 Patterson Avenue in Baltimore, Maryland, 21215. Both notices were returned as undeliverable.

C. The Board's Evidentiary Hearing and Decision, and Ms. Sesay's Appeal

On July 23, 2013, the Board held a hearing regarding Ms. Sesay's license, and Ms. Sesay was not present. The Department of Health and Mental Hygiene⁵ (“the State”), representing the State, called Ms. C. to testify (via telephone)⁶ about E.C. and the incidents that occurred on the nights of November 27–28, 2010. Ms. C. testified that, on November 27, she found Ms. Sesay sleeping and told her that she could not sleep on the job. Ms. C. also recalled that Ms. Sesay slept through E.C.'s yelling at 11:00 p.m., her husband was required to awaken Ms. Sesay, and that E.C.'s yelling awakened her husband and other son again at 2:00 a.m., whereupon they found Ms. Sesay sleeping once again. At this point, Ms. C.'s testimony reflects that she dismissed Ms. Sesay. Ms. C. also testified that the flow sheet Ms. Sesay submitted showing that she stayed at the C. residence and continued to perform tasks until 6:30 a.m. was false. Ms. C.'s complaint, hand-written statements,⁷ and pictures were submitted as evidence.

The State also called Stephanie Nogle, the Board employee who conducted the investigation into Ms. Sesay. Ms. Nogle testified about the interview she conducted of Ms. Sesay and the complaint that Ms. C. submitted to the Board, as well as Ms. Sesay's conditions of employment with her former nursing employer, Maxim. The Board also admitted into evidence the disciplinary action report from Maxim that Ms. Nogle had obtained in her investigation of Ms. Sesay. In addition to the conduct discussed supra, this report detailed that, after Maxim contacted Ms. Sesay, she refused to return to the Maxim office to discuss her conduct because she claimed the office was...