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DONNA ELIZABETH MATTHEWS a.k.a. DONNA E. JACOBSON

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					                                    BEFORE THE

                           BOARD OF REGISTERED NURSING

                         DEPARTMENT OF CONSUMER AFFAIRS

                               STATE OF CALIFORNIA



In the Matter of the Second Amended Accusation
 Against:
                                                              Case No. 2010-267
DONNA ELIZABETH MATTHEWS                                      OAHNo. L-2010031913
a.k.a. DONNA E. JACOBSON
a.k.a. DONNA McSHANE
a.k.a. DONNA McSHARE
794 Azela Court
San Luis Obispo, CA 93401

Registered Nurse License No. 493776

                                     Respondent



                                      DECISION AND ORDER


The attached Stipulated Settlement and Disciplinary Order is hereby adopted by the Board of

Registered Nursing, Department of Consumer Affairs, as its Decision in this matter.



This Decision shall become effective on January 20, 2012.


IT IS SO ORDERED December 21, 2011.



                                                    Board of Registered Nursing
                                                    Department of Consumer Affairs
                                                    State of California
   1     KAMALA D. HARRIS

         Attorney General of California

   2
    KAREN B. CHAPPELLE

         Supervising Deputy Attorney General

   3
    GLORIA A. BARRIOS

        Supervising Deputy Attorney General

   4
   State Bar No. 94811

         300 So. Spring Street, Suite 1702

   5     Los Angeles, CA 90013

         Telephone: (213) 897-2540

   6
    Facsimile: (213) 897-2804

        Attorneys for Complainant
   7

   8
                                       BEFORE THE

                                    BOARD OF REGISTERED NURSING

   9
                             DEPARTMENT OF CONSUMER AFFAIRS

                                        STATE OF CALIFORNIA

 10
        11----------------...,
 11
    In the Matter of the Second Amended
                Case No. 2010-267

        Accusation Against:
                                OAHNo. L-20100~1913

 12


 13
    DONNA ELIZABETH MATTHEWS
                           STIPULATED SETTLEMENT
        aka DONNA E. JACOBSON
                              AND DISCIPLINARY ORDER
 14
    aka DONNA McSHANE

        aka DONNA McSHARE

 15     794 Azela Court

        San Luis Obispo, CA 93401

. 16


 17
    Registered Nurse License No. 493776


 18
                                         Respondent.
 19


 20            IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

 21
     entitled proceedings that the following matters are true:

 22
                                                  PARTIES

 23
           1.    Louise R. Bailey, M.Ed., RN ("Complainant") is the Executive Officer of the Board

 24
     of Registered Nursing, Department of Consumer Affairs. She brought this action solely in her

 25      official capacity and is represented in this matter by Kamala D. Harris, Attorney General of the

 26
     State of California, by Gloria A. Barrios, Supervising Deputy Attorney General.

 27
           2.    Respondent Donna Elizabeth Matthews, also known as Donna E. Jacobson and

 28
    Donna E. McShane and Donna E. McShare ("Respondent") is represented in this proceeding by

                                                           1

                                       STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
  1    attorney Mark B. Connely, of Hall, Hieatt & Connely whose business address is: 1319 Marsh

  2    Street, Second Floor, San Luis Obispo, CA 93401.

  3          3.    On or about August 31, 1993, the Board of Registered Nursing issued Registered

  4    Nurse License No. 493776 to Respondent Donna Elizabeth Matthews aka Donna E. Jacobson aka

  5    Donna E. McShane aka Donna E. McShare. The Registered Nurse License was in full force and

  6    effect at aU times relevant to the charges brought in the Second Amended Accusation No. 2010­

  7    267, and will expire on June 30, 2013, unless renewed.

  8                                            JURISDICTION

  9          4.    On December 30,2010, Second Amended Accusation No. 2010-267 was filed before

 10    the Board of Registered Nursing, Department of Consumer Affairs, and is currently pending

 11    against the Respondent. The original Accusation and all other statutorily required documents

 12    were properly served on Respondent on February 26, 2010. Respondent timely filed her Notice

 13    of Defense contesting the Accusation. A copy of the Second Amended Accusation No. 2010-267

·14    is attached as Exhibit "A" and incorporated herein by reference.

 15                                    ADVISEMENT AND WAIVERS

 16          5.    Respondent has carefully read, fully discussed with counsel, and understands the

 17    charges and allegations in the Second Amended Accusation No. 2010-267. Respondent has also

 18    carefully read, fully discussed with counsel, and understands the effects of this Stipulated

 19    Settlement and Disciplinary Order.

. 20         6.    Respondent is fully aware of her legal rights in this matter, including the right to a

 21    hearing on the charges and allegations in the Accusation; the right to be represented by counsel at

 22    her own expense; the right to confront and cross-examine the witnesses against her; the right to

 23    present evidence and to testify on her own behalf; the right to the issuance of subpoenas to

 24    compel the attendance of witnesses and the production of documents; the right to reconsideration

 25    and court review of an adverse decision; and all other rights accorded by the California

 26    Administrative Procedure Act and other applicable laws.

 27          7.    Respondent voluntarily, knowingly, and intelligently waives and gives up each and

 28    every right set forth above.

                                                       2
                                      STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1                                            CULPABILITY

 2         8.    Respondent understands and agrees that the charges and allegations in the Second
 3   Amended Accusation No. 2010-267, if proven at a hearing, constitute cause for the Board of
 4   Registered Nursing to impose discipline upon her Registered Nurse License.
 5         9.    Respondent agrees that at a hearing, the Complainant could establish a factual basis
 6   for every charge and allegations in the Second Amended Accusation No. 2010-267, with the
 7   clarification that the alleged four causes of action occurred during the period of January 3, 2003
 8   through August 16, 2006, when the Respondent was employed at Central Coast Laser Center in
 9   San Luis Obispo, CA as a registered nurse. Respondent hereby gives up her right to contest all
10   the charges and allegations.
11         10.   Respondent agrees that her Registered Nurse License is subject to discipline and she
12   agrees to be bound by the Board of Registered Nursing probationary terms as set forth in the
13   Disciplinary Order below.
14                                           CONTINGENCY
15         11.   This Stipulated Settlement and Disciplinary Order shall be subject to approval by the
16   Board of Registered Nursing. Respondent understands and agrees that counsel for Complainant
17   and the staff of the Board of Registered Nursing may communicate directly with the Board of
18   Registered Nursing regarding this Stipulated Settlement and Disciplinary Order, without notice to
19   or participation by Respondent or her! counsel. By signing the Stipulated Settlement, Respondent
20   understands and agrees that she may not withdraw her agreement or seek to rescind the Stipulated
21   Settlement prior to the time the Board of Registered Nursing considers and acts upon· it. If the
22   Board of Registered Nursing fails to adopt this Stipulated Settlement as its Decision and Order,
23   the Stipulated Settlement and Disciplinary Order shall be of no force or effect, except for this
24   paragraph, it shall be inadmissible in any legal action between the parties, and the Board of
25   Registered Nursing shall not be disqualified from further action by having considered this matter.
26         12.   This Stipulated Settlement and Disciplinary Order is intended by the parties to be an
27   integrated writing representing the complete, final, and exclusive embodiment of their agreement.
28   It supersedes any and all prior or contemporaneous agreements, understandings, discussions,

                                                     3
                                    STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1   negotiations, and commitments (written or oral). This Stipulated Settlement and Disciplinary

 2   Order may not be altered, amended, modified, supplemented, or otherwise changed except by a

 3   writing executed by an authorized representative of each of the parties.

 4         13.    The parties understand and agree that facsimile copies of this Stipulated Settlement

 5   and Disciplinary Order, including facsimile signatures thereto, shall have the same force and

 6   effect as the originals.

 7         14.    In consideration of the foregoing admissions and stipulations, the parties agree that

 8   the Board of Registered Nursing may, without further notice or formal proceeding, issue and

 9   enter the following Disciplinary Order:

10
11                                      DISCIPLINARY ORDER

12         IT IS HEREBY ORDERED that Registered Nurse License No. 493776 issued to

13   Respondent Donna Elizabeth Matthews aka Donna E. Jacobson aka Donna E. McShane aka

14   Donna E. McShare is revoked. However, the order of revocation is stayed and Respondent is

15   placed on probation for five (5) years on the following terms and conditions.

16         Severability Clause.     Each condition of probation contained herein is a separate and

17   distinct condition. If any condition of this Disciplinary Order, or any application thereof, is

18   declared unenforceable in whole, in part, or to any extent, the remainder of this Disciplinary

19   Order, and all other applications thereof, shall not be affected.          Each condition of this

20   Disciplinary Order shall separately be valid and enforceable to the fullest extent permitted by law.

21         1.     Obey All Laws. Respondent shall obey all federal, state, and local laws. A full and

22   detailed account of any and all violations of law shall be reported by Respondent to the Board in

23   writing within seventy-two (72) hours of occurrence. To permit monitoring of compliance with

24   this condition, Respondent shall submit completed fingerprint forms and fingerprint fees within

25   45 days of the effective date of the decision, unless previously submitted as part of the licensure

26   application process.

27   ///

28   ///

                                                      4
                                   STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1          Criminal Court Orders: If Respondent is under criminal court orders, including probation

 2   or parole, and the order is violated, this shall be deemed a violation of these probation conditions,
 3   and may result in the filing of an accusation and/or petition to revoke probation.

 4         2.     Comply with the Board's Probation Program. Respondent shall fully comply with

 5   the conditions of the Probation Program established by the Board and cooperate with
 6   representatives ofthe Board in its monitoring and investigation of the Respondent's compliance
 7   with the Board's Probation Program. Respondent shall inform the Board in writing within no
 8   more than 15 days of any address change and shall at all times maintain an active, current license
 9   statUs with the Board, including during any period of suspension.
10         Upon successful completion of probation, Respondent's license shall be fully restored.
11         3.     Report in Person. Respondent, during the period of probation, shall appear in

12 . person at interviews and meetings as directed by the Board or its designated representatives.
13         4.     Residency, Practice, or Licensure Outside of State.           Periods of residency or
14   practice as a registered nurse outside of California shall not apply toward a reduction of this
15   probation time period. Respondent's probation is tolled, if and when she resides outside of
16   California. Respondent must provide written notice to the Board within 15 days of any change of
17   residency or practice outside the state, and within 30 days prior to re-establishing residency or
18   returning to practice in this state.
19         Respondent shall provide a list of all states and territories where she has ever been licensed
20   as a registered nurse, vocational nurse, or practical nurse. Respondent shall further provide
21   information regarding the status of each license and any changes in such license status during the
22   term of probation. Respondent shall inform the Board if she applies for or obtains a new nursing
23   license during the term of probation.
24         5.     Submit Written Reports. Respondent, during the period of probation, shall submit

25   or cause to be submitted such written reports/declarations and verification of actions under
26   penalty of perjury, as required by the Board. These reports/declarations shall contain statements
27   relative to Respondent's compliance with all the conditions of the Board's Probation Program.
28   Respondent shall immediately execute all release of information forms as may be required by the

                                                       5
                                     STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1   Board or its representatives.
 2         Respondent shall provide a copy of this Decision to the nursing regulatory agency in every
 3   state and territory in which she has a registered nurse license.
 4         6.       Function asa Registered Nurse. Respondent, during the period of probation, shall
 5   engage in the practice of registered nursing in California for a minimum of 24 hours per week for
 6   six (6) consecutive months or as determined by the Board.
 7         For purposes of compliance with the section, "engage in the practice of registered nursing" .

 8   may include, when approved by the Board, volunteer work as a registered nurse, or work in any
 9   non-direct patient care position that requires licensure as a registered nurse.·
10         The Board may require that advanced practice nurses engage in advanced practice nursing
11   for a minimum of 24 hours per week for six (6) consecutive months or as determined by the

12   Board.
13         If Respondent has not complied with this condition during the probationary .term, and
14   Respondent has presented sufficient documentation of her good faith efforts to comply with this
15   condition, and ifno other conditions have been violated, the Board, in its discretion, may grant an
16   extension of Respondent's probation period up to one year without further hearing in order to
17   comply with this condition. During the one-year extension, all original conditions of probation
18   shall apply.
197.                Employment Approval and Reporting Requirements. Respondent shall obtain
20   prior approval from the Board before commencing or continuing any employment, paid or
21   voluntary, as a registered nurse.     Respondent shall cause to be submitted to the Board all
22   performance evaluations and other employment related reports as a registered nurse upon request
23   ofthe Board.
24         Respondent shall provide a copy of this Decision to her employer and immediate
25   supervisors prior to commencement of any nursing or other health care related employment.
26         In addition to the above, Respondent shall notify the Board in writing within seventy-two
27   (72) hours after she obtains any nursing or other health care related employment. Respondent·
28   shall notify the Board in writing within seventy-two (72) hours after she is terminated or

                                                       6
                                     STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1   separated, regardless of cause, from any    nu~sing,   or other health care related employment with a
 2   full explanation ofthe circumstances surrounding the termination or separation.
 3         8.     Supervision.    Respondent shall obtain prior approval from the Board regarding
 4   Respondent's level of supervision and/or collaboration before commencing or continuing any
 5   employment as a registered nurse, or education and training that includes patient care.
 6         Respondent shall practice only under the direct supervision of a registered nurse in good

 7   standing (no current discipline) with the Board of Registered Nursing, unless alternative methods
 8   of supervision and/or collaboration (e.g., with an advanced practice nurse or physician) are

 9   approved.
10         Respondent's level of supervision and/or collaboration may include, but is not limited to the

11   following:
12         (a)    Maximum - The individual providing supervision and/or collaboration is present in
13   the patient care area or in any other work setting at all times.
14         (b)    Moderate - The individual providing supervision and/or collaboration is in the patient
15   care unit or in any other work setting at least half the hours Respondent works.
16         (c)    Minimum - The individual providing supervision and/or collaboration has person-to­
17   person communication with Respondent at least twice during each shift worked.
18         (d)     Home Health Care - If Respondent is approved to work in the home health care
19   setting, the individual providing supervision and/or collaboration shall have person-to-person

20   communication with Respondent as required by the Board each work day. Respondent shall
21   maintain telephone or other telecommunication contact with the individual providing supervision
22   and/or collaboration as required by the Board during each work day. The individual providing
23   supervision and/or collaboration shall conduct, as required by the Board, periodic, on-site visits to

24   patients'homes visited by Respondent with or without Respondent present.
25         9.     Empioyment Limitations. Respondent shall not work for a nurse's registry, in any

26   private duty position as a registered nurse, a temporary nurse placement agency, a traveling nurse,
27   or for an in-house nursing pool. Respondent shall not work for a licensed home health agency as
28   a visiting nurse unless the registered nursing supervision and other protections for home visits

                                                        7
                                    STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1    have been approved by the Board. Respondent shall not work in any other registered nursing
 2    occupation where home visits are required.
 3          Respondent shall not work in any health care setting as a supervisor of registered nurses.
 4    The Board may additionally restrict Respondent from supervising licensed vocational nurses
 5    and/or unlicensed assistive personnel on a case-by-case basis.
 6          Respondent shall not work as a faculty member in an approved school of nursing or as an
 7·   instructor in a Board approved continuing education program.
 8          Respondent shall work only on a regularly assigned, identified, and predetermined
 9    worksite(s) and shall not work in a float capacity.
10          If Respondent is working or intends to work in excess of 40 hours per week, the Board may
11    request documentation to determine whether there should be restrictions on the hours of work.
12          10.   Complete a Nursing Course(s). Respondent, at her own expense, shall enroll and
13    successfully complete a course(s) relevant to the practice of registered nursing no later than six
14    months prior to the end of her probationary term.
15          Respondent shall obtain prior approval from the Board before enrolling in the course(s).
16    Respondent shall submit to the Board the original transcripts or certificates of completion for the
17    above required course(s). The Board shall return the original documents to Respondent after
18    photocopying them for its records.
19          One course shall focus on the scope of practice for registered nurses in California. The
20    second course shall focus on ethics for registered nurses.
21          11.   Cost Recovery.      Respondent shall pay the Board of Registered Nursing fifteen
22    thousand dollars ($15,000.00) as the reasonable cost of the investigation and enforcement of this
23    case, pursuant to Business and Professions Code section 125.3. Respondent shall be permitted to
24    pay these costs in a payment plan approved by the Board, with payments to be completed no later
25    than three (3) months prior to the end ofthe probation term.
26          If Respondent has not complied with this condition during the probationary term, and
27    Respondent has presented sufficient documentation of her good faith efforts to comply with this
28    condition, and if no other conditions have been violated, the Board of Registered Nursing, in its

                                                       8

                                    STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1   discretion, may grant an extension of Respondent's probation period up to one year without
 2   further hearing in order to comply with this condition. During the one-year extension, all original

 3   conditions of probation will apply.
 4         12.   Violation of Probation. If Respondent violates the conditions of her probation, the

 5   Board after giving Respondent notice and an opportunity to be heard, may set aside the stay order

 6   and impose the stayed discipline (revocation) of Respondent's license.
 7         If during the period of probation, an accusation or petition to revoke probation has been

 8   filed against Respondent's license or the Attorney General's Office has been requested to prepare
 9   an accusation or petition to revoke probation against Respondent's license, the probationary
10   period shall automatically be extended and shall not expire until the accusation or petition has
11   been acted upon by the Board.
12         13.   License Surrender. During Respondent's term of probation, if she ceases practicing

13   due to retirement, health reasons or is otherwise unable to satisfy the conditions of probation,
14   Respondent may surrender her license to the Board. The Board reserves the right to evaluate
15   Respondent's request· and to exercise its discretion whether to grant the request, or to take any
16   other action deemed appropriate and reasonable under the circumstances, without further hearing.
17   Upon formal acceptance of the tendered license and wall certificate, Respondent will no longer be

18   subject to the conditions of probation.
19         Surrender of Respondent's license shall be considered a disciplinary action and shall
20   become a part of Respondent's license history with the Board. A registered nurse whose license
21   has been surrendered may petition the Board for reinstatement no sooner than the following
22   minimum periods from the effective date of the disciplinary decision:
23         (1)   Two years for reinstatement of a license that was surrendered for any reason other

24   than a mental or physical illness; or
25         (2)   One year for a license surrendered for a mental or physical illness.

26   III
27   III
28   III

                                                      9
                                   STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-20I003I913)
 1         14.      Restricted Practice.   Respondent shall not operate any laser machines for any

 2   cosmetic hair removal procedure or treatment. Within 30 days from the effective date of this

 3   decision, Respondent shall submit to the Board, for prior approval, a plan to implement this

 4   restriction. Respondent shall submit proof satisfactory to the Board of compliance with this term

 5   of probation.

 6                                             ACCEPTANCE
 7         I have carefully read the above Stipulated Settlement and Disciplinary Order and have fully
 8   discussed it with my attorney, Mark B. Connely. I understand the stipulation and the effect it will

 9   have on my Registered Nurse License. I enter into this Stipulated Settlement and Disciplinary

10   Order voluntarily, knowingly, and intelligently, and agree to be bound by the Decision and Order

11   of the Board of Registered Nursing.

12    DATED:         9. -l 6 -. \\
           ~~,~~~~

                                              DONNA ELIZABETH MATTHEWS
13                                            aka DONNA E. JACOBSON
                                              aka DONNA E. McSHANE
14
                                              aka DONNA E. McSHARE
15                                            Respondent

16         I have read and fully discussed with Respondent Donna Elizabeth Matthews aka Donna E.
                                                                                      c

17
     Jacobson aka Donna E. McShane aka Donna E.McShare the terms and conditions and other
18   matters contained in the above Stipulated Settlement and Disciplinary Order. I approve its form
19
     and content.
20    DATED:          9fG/';(
21                     I    I	                MARK B. CONNELY, Esq.
                                              Attorney for Respondent
22
23   ///

24   ///

25   ///

26   ///

27   ///

28   ///

                                                     10

                                      STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1
                                      ENDORSEMENT

 2
         The foregoing Stipulated Settlement and Disciplinary Order is hereby respectfully

 3
   submitted for consideration by the Board of Registered Nursing, Department of Consumer

 4
   Affairs.

 5    Dated: Septembert1/, 2011                       Respectfully submitted,

 6
                                                   KAMALA D. HARRIS
                                                      Attorney General of California
 7
                                                   KAREN B. CHAPPELLE
                                                      Supervising Deputy Attorney General
 8


 9


10
                                                      t        -h·L
                                                      Guo A A. BARRIOS
                                                      Su\ ervising Deputy Attorney General
                                                      Attorneys for Complainant
11

      LA2009602649
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                Exhibit A
28
   Second Amended Accusation No. 2010-267


                        12

        STIPULATED SETTLEMENT AND DISCIPLINARY ORDER (L-2010031913)
 1     EDMUND G. BROWN JR.
      Attorney General of California
 2    ALFREDO TERRAZAS
      Special Assistant Attorney General
 3    GLORIA A. BARRIOS
      Supervising Deputy Attorney General
 4    State Bar No. 94811
       300 So. Spring Street, Suite 1702
 5     Los Angeles, CA 90013
       Telephone: (213) 897-2540
 6     Facsimile: (213) 897-2804
      Attorneys for Complainant
 7
                                         BEFORE THE

 8                               BOARD OF REGISTERED NURSING

                               DEPARTMENT OF CONSUMER AFFAIRS

 9                                   STATE OF CALIFORNIA


10
      In the Matter of the Accusation Against:           Case No. 2010-267
11
      DONNA ELIZABETH MATTHEWS, aka                      SECOND AMENDED
12    DONNA E. JACOBSON aka DONNA E.
      McSHANE                                            ACCUSATION
13
      794 Azela Court
14    San Luis Obispo, California 93401
15
      Registered Nurse License No. 493776
16
                                         Respondent.
17
     11--------------------1
18
            Complainant alleges:
19
                                                  PARTIES
20
            1.    Louise R. Bailey, M.Ed., RN ("Complainant") brings this Second Amended
21
      Accusation solely in her official capacity as the Executive Officer of the Board of Registered
22
      Nursing ("Board"), Department of Consumer Affairs.
23
            Registered Nurse License
24
            2.    On or about August 31, 1993, the Board issued Registered Nurse License Number
25
      493776 to Donna Elizabeth Matthews, also known as Donna E. Jacobson, and Donna E. McShane
26
      ("Respondent"). The registered nurse license was in full force and effect at all times relevant to
27
      the charges brought herein and will expire on June 30, 2011, and has not been renewed.
28

                                                       1

                                                                                                Accusation
 1                                               JURISDICTION

 2           3.    This action is brought before the Board, under the authority of the following laws.
 3     All section references are to the Business and Professions Code unless otherwise indicated.

 4                                        STATUTORY PROVISIONS

 5           4.    Section 2025(a) of the Code provides that notwithstanding section 146, any person

 6     who practices or attempts to practice, or who advertises or holds himself or herself out as .
 7     practicing, any system or mode of treating the sick or afflicted in this state, or who diagnosis,

 8     treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement,
 9     disorder, injury, or other physical or mental condition of any person, without having at the time of
10     so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without
11     being authorized to perform the act pursuant to a certificate obtained in accordance with some
12     other provision of law is guilty of a public offense, punishable by a fine not exceeding ten

13".   thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail
14     not exceeding one year, or by both the fine and either imprisonment.
15           5.    Section 2725 of the Code provides in pertinent part:
16                    (a)   In amending this section at the 1973-74 session, the Legislature recognizes
17     that nursing is a dynamic field, the practice of which is continually evolving to include more
18     sophisticated patient care activities. It is the intent of the Legislature in amending this section at

19     the 1973-74 session to provide clear legal authority for functions and procedures that have
20     common acceptance and usage. It is the legislative intent also recognize the existence of
21     overlapping functions between physicians and registered nurses and to permit additional sharing
22     of functions within organized health care systems that provide for collaboration between
23     physicians and registered nurses. These organized health care systems include, but are not
24     limited to, health facilities licensed pursuant to Chapter 2 (commencing with Section 1250) of
25     Division 2 of the Health and Safety Code, clinics, home health agencies, physicians' offices, and
26     public or community health services.
27                    (b) The practice of nursing within the meaning of this chapter nleans those
28     functions, including basic health care, that help people cope with difficulties in daily living that

                                                          2
                                                                                                    Accusation
 1   are associated with their actual or potential health or illness problems or the treatment thereof,
 2   and that require a substantial amount of scientific knowledge or technical skill, including all of
 3   the following:
 4                      (2) Direct and indirect patient care services, including, but not limited to, the

 5   administration of medications and therapeutic agents, necessary to implement a treatment, disease
 6   prevention, or rehabilitative regimen ordered by and within the scope of licensure of a physician,
 7   dentist, podiatrist, or clinical psychologist, as defined by Section 1316.5 of the Health and Safety

 8   Code.
 9                      (3)   The performance of skin tests, immunization techniques, and the withdrawal

10   of human blood from veins and arteries.
11                      (4)   Observation of signs and symptoms of illness, reactions to treatments,
12   general behavior, or general physical condition, and (A) determination of whether the signs,
13   symptoms, reactions, behavior, or general appearance exhibit abnormal characteristics, and (B)
14   implementation, based on observed abnormalities, of appropriate reporting, or referral, or
15   standardized procedures, or changes in treatment regimen in accordance with standardized

16   procedures, or the initiation of emergency procedures.
17                (c)     "Standardized procedures," as used in this section, means either of the

18   following:
19                      (l)   Policies and protocols developed by a health facility licensed pursuant to
20   Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code through
21   collaboration among administrators and health professionals including physicians and nurses.
22                      (2)   Policies and protocols developed through collaboration among administrators
23   and health professionals, including physicians and nurses, by an organized health care system

24   which is not a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of
25   Division 2 of the Health and Safety Code .
26                      The policies and protocols shall be subject to any guidelines for standardized
27   procedures that the Division of Licensing of the Medical Board of California and the Board of

28
                                                          3

                                                                                                    Accusation
 1   Registered Nursing may jointly promulgate. Ifpromulgated, the guidelines shall be administered
 2   by the Board of Registered Nursing.
 3               (d) Nothing in this section shall be construed to require approval of standardized
 4   procedures by the Division of Licensing of the Medical Board of California, or by the Board of
 5   Registered Nursing.
 6         6.    Section 2725.1 of the Code provides, in pertinent part that notwithstanding any other
 7   provision of law, a registered nurse may dispense drugs or devices upon an order by a licensed
 8   physician and surgeon if the nurse is functioning within a licensed clinic defines in paragraphs (1)
 9   and (2) of subdivision (a) of Section 1204 of, or within a clinic as defined in subdivision (b) or (c)

10   of Section 1206, of the Health and Safety Code. No clinic shall employ a registered nurse to
11   perform dispensing duties exc,lusively. No registered nurse shall dispense drugs in a pharmacy,
12   keep a pharmacy, open shop, or drugstore for the retailing of drugs or poisons. No registered
13   nurse shall compound drugs. Dispensing of drugs by a registered nurse, except a certified nurse­

14   midwife who functions pursuant to a standardized procedure or protocol described in Section
15   2746.51, or protocol described in Section 2746.51 or a nurse practitioner who functions pursuant
16   to a standardized procedure described in Section 2836.1, or protocol, shall not include substances
17   included in the California Uniform Controlled Substances Act (Division 10 (commencing with
18   Section 11000) of the health and Safety Code). Nothing in this section shall exempt a clinic form
19   the provisions of Article 13 (commencing with Section 4180) of Chapter 9.

20         7.    Section 2726 ofthe Code provides:
21   Except as otherwise provided herein, this chapter confers no authority to practice medicine or

22   surgery.
23         8.    Section 2750 of the Code provides, in pertinent part, that the Board may discipline
24   any licensee, including a licensee holding a temporary or an inactive license, for any reason
25   provided in Article 3 (commencing with Code section 2750) of the Nursing Practice Act.
26         9.    Code section 2764 provides, in pertinent part, that the expiration of a license shall not
27   deprive the Board ofjurisdiction to proceed with a disciplinary proceeding against the licensee or

28

                                                       4

                                                                                                 Accusation
 1   to render a decision imposing discipline on the license. Under Code section 2811, subdivision

 2   (b), the Board may renew an expired license at any time within eight years after the expiration.

 3         10.   Code section 2761 states, in pertinent part:

 4                     The board may take disciplinary action against a certified or licensed
           nurse or deny an application for a certificate or license for any of the following:
 5
                        (a) Unprofessional conduct, which includes, but is not limited to, the
 6         following:

 7                     (1) Incompetence, or gross negligence in carrying out usual certified or
           licensed nursing functions.


 9
                        (a) Obtain or possess in violation oflaw, or prescribe, or except as directed by
10
     a licensed physician and surgeon, dentist, or podiatrist administer to himself or herself, or furnish
11
     or administer to another, any controlled substance as defined in Division 10 (commencing with
12
     Section 11000) of the Health and Safety Code or any dangerous drug or dangerous device as
13
     defined in Section 4022.
14

15
                        (e) Falsify, or make grossly incorrect, grossly inconsistent, or unintelligible
16
     entries in any hospital, patient, or other record pertaining to the substances described in
17
     subdivision (a) of this section.
18
           12.   Code section 4022 states in pertinent part:
19
                 "Dangerous drug" or "dangerous device" means any drug or device unsafe for self-
20
     use, except veterinary drugs that are labeled as such, and includes the following:
21
           (a)   Any drug that bears the legend: "Caution: federal law prohibits dispensing without
22
     prescription" "Rx only," or words of similar import.
23
           (b)   Any device that bears the statement: "Caution: federal law restricts this device to sale
24
     by or on the order of a                      "" "Rx only," or words of similar import, the blank to
25
     filled in with the designation of the practitioner licensed to use or order use of the device.
26
           (c)   Any other drug or device that by federal or state law can be lawfully dispensed only
27
     on prescription or furnished pursuant to Section 4006.
28

                                                        5
                                                                                                   Accusation
 1         13.    California Code of Regulations, title 16, section 1442, states:

 2                      As used in Section 2761 of the code, 'gross negligence' includes an
           extreme departure from the standard of care which, under similar circumstances,
 3         would have ordinarily been exercised by a competent registered nurse. Such an
           extreme departure means the repeated failure to provide nursing care as required or
 4         failure to provide care or to exercise ordinary precaution in a single situation which
           the nurse knew, or should have known, could have jeopardized the client's health or
 5         life.
 6                                              COST RECOVERY

 7         14.   Code section 125.3 provides, in pertinent part, that the Board may request the

 8   administrative law judge to direct a licentiate found to have committed a violation or violations of

 9   the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

10   enforcement of the case.

11                  CONTROLLED SUBSTANCE AND DANGEROUS DRUGS

12         15.   Vicodin is a combination drug containing hydrocodone and acetaminophen, a

13   Schedule III controlled substance as designated by Health and Safety Code, section 11056, .

14   subdivision (e)(4). Vicodin is also a dangerous drug within the meaning of Code section 4022 in

15   that it is available by prescription only. It is also used to suppress pain. It is also known as

16   Vicodin ES and Vicodin HP.

17         16.   Tretinoin or Retin A (0.1 %,0.05%,0.025% tretinol) is a dangerous drug within the

18   meaning of Code section 4022 in that it is available by prescription only. It is a cream used in the

19   treatment of acne.

20         17.   Benzocaine is a dangerous drug within the meaning of Code section 4022 in that it is

21   available by prescription only. It is in a cream used in a topical anesthetic.

22         18.   Lidocaine is a dangerous drug within the meaning of Code section 4022 in that it is

23   available by prescription only. It is in a cream used in a topical anesthetic.

24         19.   Vaniqa (Eflornithine Hydrochloride 13.9%) is a dangerous drug within the meaning

25   of Code section 4022 in that it is available by prescription only. It is in a cream used in hair

26   removal.

27

28

                                                        6
                                                                                                  Accusation
 1         20.    Obagi-C (Hydroquinone 4%) is a dangerous drug within the meaning of Code section

 2   4022 in that it is available by prescription only. It is in a serum used for skin bleaching, removing

 3   age spots, and hyper pigmentation.

 4         21.    EpiQuin Micro (Hydroquinone 4%) is a dangerous drug within the meaning of Code

 5   section 4022 in that it is available by prescription only. It is in a cream used for skin bleaching,

 6   removing age spots, and hyper pigmentation.

 7         22.    Retinoic Acid is a modified form of Vitamin A used to treat a severe form of acne

 8   known by its trade name Accutane or Roaccutane. It is a dangerous drug within the meaning of

 9   Code section 4022 in that it is available by prescription only.

10         23.   Ultravate cream is a dangerous drug within the meaning of Code section 4022 in that

11   it is available by prescription only. It is used to treat skin inflammation.

12         24.    Diprolene AF cream is a dangerous drug within the meaning of Code section 4022 in

13   that it is available by prescription only. It is a topical steroid for relief of inflammation.

14                                             BACKGROUND

15          25. Between August 2002, and December 2004, Respondent was employed by Central

16   Coast Laser Center, Inc., (Center), San Luis Obispo, California, as a registered nurse. She
17   provided medical laser hair removal and medical laser skin treatments (Intense Pulse Light)

18   (IPL). There was not a supervising physician present at the Center. Jeff LeMoine, owner of the

19   Center fraudulently represented himself as a registered nurse.
20               The staff generally conducted an initial patient consultation to determine treatment

21   for medical laser hair removal or medical laser treatment. The staff would explain the laser

22   procedure. Patients would fill out a questionnaire where they would self-assess their skin type,

23   reviewed by the staff. Patients signed consent forms. No physician was present during this initial

24   examination.
25                Prior to receiving medical laser treatment, patients at the Center did not provide

26   comprehensive medical history to a physician or anyone supervised by a physician. Prior to
27   receiving treatment, patients did not receive a physical examination by a physician or anyone

28   supervised by a physician. Prior to receiving medical laser treatment, patients were not assessed

                                                         7

                                                                                                      Accusation
 1   or diagnosed by a physician to determine whether they were suitable candidates for medical laser

 2   hair removal or medical laser treatment procedures. No treatment plan was made by a physician

 3   to a patient receiving treatments.

 4                 The staff lwas encouraged to sell prescription medication2, without physician

 5   approval, orders, or examination, including but not limited to the following;

 6                 a). Tretinoin cream, Retin A (0.1 %, 0.05%, 0.025% tretinol);

 7                 b). AHS Triple Anesthetic Base (topical aesthesia), (Benzocaine 20%, Lidocaine 6%,

 8   Tretacaine 4%);

 9                 c). Vaniqa (Eflornithine Hydrochloride 13.9%);

10                 d).Obagi-C (Hydroquinone 4%);

11                 e). EpiQuin Micro (Hydroquinone 4%);

12                 f). Retinoic acid;

13                 g). Ultravate cream; and

14                 h). Diprolene AF cream.

15                                      FIRST CAUSE FOR DISCIPLINE

16                                            (Gross Negligence)

17         26.     Respondent is subject to discipline under Code section 2761, subdivision (a)(l), on

18   the grounds of unprofessional conduct, in that between August 2002, through December 2004,

19   while on duty as a registered nurse at the Center, Respondent committed acts constituting gross

20   negligence, as defined in California Code of Regulations, title 16, section 1442, as follows:

21                 a).   Respondent exceeded the scope of the practice of nursing;

22                 b).   Respondent performed laser treatments without a supervising physician;

23                 c).   Respondent performed laser treatments without any training by a physician;

24                 d).   Respondent performed laser treatments without written protocols/standardized

25   procedures;

26

27          1   Staff received commissions for the sale of medications to patients.
            2   All medications were clearly marked with the legend, "Rx".
28

                                                       8
                                                                                               Accusation
 1               e).   Respondent furnished or prescribed Vicodin for patients treated at the Center

 2   .without a physician taking a medical history, performing a medical examination, and ordering

 3   such medication for such patients;

 4               f).   Respondent encouraged, recommended and/or sold prescription medications to

 5   patients without a physician taking a medical history, performing a medical examination, and

 6   ordering such medication for such patients,

 7               g).   Respondent applied, furnished, administered prescription medication to patients

 8   without a physician taking a medical history, performing a medical examination, and ordering

 9   such medication for such patients;

10               h).   Respondent caused injury and harm to patients through her laser treatments and

11   by furnishing prescriptive medication to them including but not limited to the following;

12               1).   Burns;

13               2).   Inflammation;

14               3).   Scabbing;

15               4)    Discoloration;

16               5).   Scarring; and

17               6).   Pain and suffering.

18

19                                 SECOND CAUSE FOR DiSCIPLINE

20                                        (Unprofessional Conduct)

21         27.   Respondent is subject to discipline under Code section 2761, subdivision (a), on the

22   grounds of unprofessional conduct, in that between August 2002, through December 2004, while

23   on duty as a registered nurse at the Center, Respondent committed acts constituting

24   unprofessional conduct, as more particularly set forth in paragraphs 25 and 26, above.

25                                 THIRD CAUSE FOR DISCIPLINE

26                       (Furnishing Dangerous Drugs and Control Substance)

27         28.   Respondent is subject to discipline under Code section 2762, subdivision (a), on the

28   grounds of unprofessional conduct, in that between August 2002, through December 2004, while

                                                     9

                                                                                                 Accusation
      1   on duty as a registered nurse at the Center, Respondent furnished patients with a controlled

      2   substance and dangerous drugs constituting unprofessional conduct, as more particularly set forth
<'
      3   in paragraphs 25 and 26, subparagraphs e), 1), and g) above.

      4                                 FOURTH CAUSE FOR DISCIPLINE

      5                                            (False Records)

      6         29.   Respondent is subject to discipline under Code section 2762, subdivision (e), on the

      7   grounds of unprofessional conduct, in that between August 2002, through December 2004, while

      8   on duty as a registered nurse at the Center, Respondent failed to keep competent records or

      9   maintained false records as to a controlled substance and dangerous drugs furnished to patients

     10   constituting unprofessional conduct, as more particularly set forth in paragraphs 25 and 26,

     11   subparagraphs e), 1), and g) above.

     12                                                PRAYER

     13         WHEREFORE, Complainant requests that a hearing ~e held on the matters herein alleged,

     14   and that following the hearing, the Board of Registered Nursing issue a decision:

     15         1.    Revoking or suspending Registered Nurse License Number 493776, issued to Donna

     16   Elizabeth Matthews, also known as Donna E. Jacobson, and Donna E. McShane;

     17         2.    Ordering Donna Elizabeth Matthews, also known as Donna E. Jacobson, and Donna

     18   E. McShane to pay the Board of Registered Nursing the reasonable costs of the investigation and

     19   enforcement ofthis case, pursuant to Business and Professions Code section 125.3; and,

     20         3.    Taking such other and further action as deemed necessary and proper.

     21

     22

     23

     24
          DATED:      '2[?;O/JU                       LO ISE R. BAILEY, M.Ed., RN,
                                                      Executive Officer                       .
     25                                               Board of Registered Nursing
                                                      Department of Consumer Affairs
     26                                               State qf California
                                                      Complainant
     27

     28

                                                          10
                                                                                                   Accusation

				
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