STATE OF VERMONT BOARD OF NURSING INRE _ Case File No. NA33-1102

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STATE OF VERMONT BOARD OF NURSING INRE _ Case File No. NA33-1102 Powered By Docstoc
					                   ,
                                       STATE OF VERMONT
                                       BOARD OF NURSING

     INRE:                                     )
             KathleenHowley                    )    CaseFile No. NA33-1102
             LicenseNo. 75-12119               )

                  FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

                                             Introduction

           The Vermont Board of Nursing ("the Board") held a hearing in this caseon Monday,
     May 10,2004, at 81 River Streetin Montpelier, Vermont. Board membersSusanFarrell,
     Laurey Tyo, De-Ann Welch, Linda Rice, SandraNorton, PatRock, Elayne Clift, Ellen Left
     and DonaraeMetcalf participatedin the decision. EdwardAdrian, ProsecutingAttorney,
              for                                             was
     appeared the State. KathleenHowley ("the Respondent") present. Christopher
     Winters was the PresidingOfficer.

            Basedon substantial,credibleevidence         at
                                                presented the hearing, the Board finds as
     follows:

                                           Findings of Fact

             1.                   is                         who holds license number 75-
                    The Respondent a licensednursing assistant
                    12119issuedby the Stateof Vermont.

                    Respondent's license was conditioned by a Stipulation and Consent Order
                    approved by the Board ,on May 12, 2003.

                                                                     to
                    The Stipulationand ConsentOrder requiresRespondent submitto random
                                           and                   be
                    drug and alcohol screens that all drug screens negative. SeeStipulation
                                                         B.
                    and ConsentOrder at page5, paragraph 8.

             4.     A random drug screenwas triggered by Board staff and was taken on or about
                    December 30,2003. That screen indicated the Respondenttested positive for
                    the presence of marijuana.

             5.     The Respondent    attendedseveralholiday parties in the three daysbefore the
                    drug screen                                    20
                                and that there were approximately peoplesmokingmarijuana at
                    at leastthree of thoseparties. Shebelievesshetestedpositive because    of
                    second-hand  smokefrom theseparties.



                                                    1




2.
3.
                                                     of
                                           Conclusions Law

            A.               to
                    Pursuant 26V.S.A. §1595and 3 V.S.A. §129, the Board of Nursing may
                                   or                                                  who
                    revoke, suspend otherwisedisciplinethe licenseof a nursing assistant
                            in
                    engages unprofessionalconductasdefinedby 26 V.S.A. §1595and 3 V.S.A.
                    §129a.

                                                                     has
                   By testingpositive for marijuana,the Respondent violated the terms of the
                   Board's 2003 Order. This is unprofessional   conductas defmedby 3 V.S.A.
                   §129a(a)(4) (failing to comply with an order of the board or violating any term
                   or conditionof a licenserestrictedby the board).

                                                 QQinion

              The Respondent's claims are difficult to accept. The Board may have beenmore
     receptivehad the Respondent  backedup her claims with anyvalid scientific information.
                  the                         that
     Regardless, Board's Order mandates all drug screens           come back negativeand it
     technicallydoesnot matterhow the marijuanawas ingested. At the very least, it.showspoor
                                             to
     judgment on the part of the Respondent attendthesepartieswhile under a conditioned
     license for substanceabuse.

                                                  ~
             A.                                                     the
                     In light of the abovefindings and conclusions, Board hereby
                                      the
     INDEFINITELY SUSPENDS Respondent's                license,effective as of the dateof the hearing,
                                                                   and
     and until suchtime shepetitionsthe Board for reinstatement can show that sheis safeto
     return to the practiceof nursing. Suchreturn to practicewill be underthe conditionsthe
     Board deems   appropriateto protectthe public health, safetyand welfare.

            B.     This Order is a matterof public record and may be reportedto other licensing
     authoritiesasprovided in 3 V.S.A. §129(a).

           C.     This Order will remainpart of Respondent'slicensing file and maybe usedfor
                                     in
     purposesof determiningsanctions any future disciplinary matter.


                                              AuuealRights

            This is a final administrative detennination by the Vermont Board of Nursing. You
     may appeal by sending a notice of appeal in writing to the Director of the Office of
     Professional Regulation within 30 days of the date of entry of this order. If you wish to
     request a stay of the Board Is decision, please refer to the attached stay instructions.




                                                      2




B.
By:   ~~-"-::        b-< u' J2iL       Date:
      SusanFarrell
      Chair



OFFICE OF PROFESSIONALREGULATION

   of
Date entry~~           ~




                                   3
                                                 STATE OF VERMONT
                                                SECRETARY OF STATE
                                        OFFICE OF PROFESSIONAL REGULATION
                                                BOARD OF NURSING

                         IN RE:                                  )
                         KATHLEEN HOWLEY                         )      DocketNo: NA 33-1102
                         License No. 075-0012119                 )


                                               SPECIFICATION OF CHARGES

                            NOW COMESthe StateofVennont andmakesthe following Chargesagainst
                                       KathleenHowley, LNA:
                         the Respondent,

                                                         Board Authority

                         1) The Vermont Board of Nursing ("the Board") has jurisdiction to investigate
                         complaints of unprofessional conduct and discipline nursing assistantspursuant to
                         3 V.S.A. §§129 and 129a; 26 V.S.A. §§1595 and 1598; and the Administrative
                         Rules Qfthe Board of Nursing.     ,

                                                               Facts

                         2) The Respondentis licensed by the State ofVenIlont as a nursing assistant
                         under license number 075-0012119.

                                           licensewas originally issuedon October19,2001.
                         3) The Respondent's

                         4) Respondent's license is conditioned pursuant to a Stipulation and Consent
                         Order entered on May 13, 2003. The Stipulation and Consent Order requires,
                         among other things, that the Respondentfile monthly employer reports and
                         treating professional reports with the Board during the three year conditioned
                         period. The Stipulation and Consent Order also requires that the Respondent
                         submit to random drug and alcohol screenings and that all screensshall be
                         negative. (See Attachment A).

                         5) The Respondent's last employer report received by the Board is dated
                         November 7,2003. The Respondent's last treating professional report received
STATE OF VERMONT         by the Board is dated November 24,2003. Additionally, on or about January 6,
                         2004, the Respondenttested positive for the use of marijuana during a random
                         drug screen. Therefore, the Respondentis in violation of the Order.

                                                             Charges

 ProsecutingAttorney     6) The aboveacts,omissionsand/orcircumstances describedabove,constitute
       Office of         groundsfor disciplinebecause         violated:
                                                     Respondent
ProfessionalRegulation
 Montpelier, VT 05602
                                  (i) 3 V.S.A. §129a(a)(4)  (Failing to comply with an orderof the board or
                                      violating any term or conditionof a licenserestrictedby the board).

                                                          Relief Requested

                         WHEREFORE,the licenseof KathleenHowley shouldbe revoked,suspended,
                                    conditionedor otherwise
                         reprimanded,                      disciplined.

                         Dated atMontpelier, Vermontthis ¥day            Of_t~~~~      }2004.




                                                                      By:



                         nu.howley.soc




STATE OF VERMONT




 ProsecutingAttorney
       Office of
ProfessionalRegulation
 Montpelier, VT 05602
                                          STATE OF VERMONT
                                          BOARD OF NURSING


         Kathleen Howley                                    ) Docket No.:NA33-11 02
         License No: 75-0012119                     )

                                 STIPULATION AND CONSENT ORDER

                                              STIPULATION

                    NOW COME the State of Vermont, through Attorney General William H.

           MeJ1-gm;LB.e~ ~~~gt.Y:!bQ.-:f!-tiQ.Y1g1.e.-~gr:§.~Jl Q..w.§~
         -,S

                    1     The Board of Nursing has jurisdiction to investigate complaints of

         unprofessional    Conduct and approve consent orders pursuant to 3 V.S.A. §129 and

         26 V.S.A. §1598.

                2.        Respondent Kathleen Howley of Bennington,    Vermont is a licensed

         nursing assistant holding license number 75-0012119      issued by the State of

         Vermont.

                3.        Respondent was employed by South Western Vermont Medical

         Center at all relevant times.

                4.        Respondent admits she was working the day shift on 11/6/02.      At that
     1   time co-workers complained of her pointing to mood swings and that she was

         "acting flat". Donna Madigan, director of the unit Respondent was working on,

         evaluated Respondent and noted she was flushed and her eyes were blood shot.

         Ms. Madigan requested an alcohol/drug screen and Respondent consented.

                5         Respondent admits that the alcohol test was negative but the drug

         screen came back positive for opiates and benzodiazepines.

                          Respondent admits that she possessed valid prescriptions for



                                                    1


6.
                Vicoden and Diazepam.       She has been evaluated by Charles Gurney.           He reports

                she has a substance abuse disorder. He also reports that Respondent admitted

                that she was taking "a little more of the Vicoden andNalium     than prescribed".

                      7.       Respondent   admits the conclusions   of unprofessional   conduct     as set

                forth below in the Board's Order.

                               Respondent understands that the Nursing Board must review and

     ~          accept the terms of the Consent Order. If the Board rejects any portion, the entire
     ,!~
           -t                                                                            ._-"




                      9.       Respondent has read and reviewed this entire document and agrees

                that it contains the entire agreement between the parties.

                         10.   Respondent voluntarily enters this agreement after the opportunity to

                consult with legal counsel and is not being coerced by anyone into signing this

                Stipulation and Consent Order.
                                                                     -
                         11.   Respondent voluntarily waives the right to a contested hearing before

                the Board of Nursing on the Specification of Charges.

                         12.   Respondent specifically waives any claims that any disclosures made

                to the full Board during its review of this agreement have prejudiced his rights to a
     ~
     :~         fair and impartial hearing in future hearings if this agreement is not accepted by the

                Board.

                         13.   Respondent agrees that the Board may enter the order set forth

                below.




                                                            2



8.
               Respondent shall comply with the treatment plan approved by the Board.

                         (5)       gubs!ance Abuse Therapv and Notification to
                                   Treatina Professional

                                   Respondent shall provide a copy of this Stipulation and Consent
    -I:".:-~                                                     .~                               ""-""

               Order to his treating professional and cause his treating professional to inform the

               Board, in writing of receipt of the Stipulation and Consent Order and the treating

               professional's   ability to comply with the conditions related to treatment and with all

               other terms of this Consent Order.

                         (6)       RePQrts from Tre§tioo PrQfessional.

                                   Respondent shall authorize and ca.use his treating professional to

               submit to the Board evidence of satisfactory progress with the treatment plan during

               the effective period of this Consent Order. These reports shall be submitted in

               writing on forms issued by the Board. The first report is due commencing the month

     .
     ~

    ;,~
               after the date of entry of this Consent Order and subsequent reports are due every

               month thereafter.

                                   Respondent shall authorize his treating professional to provide all

               information requested by the Nursing Board, or its designee, either orally or in

               writing, at any time during the period this Consent Order is in effect.

                                   Participation in NA/~A.

                                   Respondent shall participate, at least three times weekly, or as

               recommended by his treating professional, in Alcoholics Anonymous or Narcotics

                                                             4




~
                                                             (



     employment, personal address, or telephone number.

                   (15)   ~otification to Emolovers

                          Respondent shall provide a copy of this Stipulation and Consent



     nurse and inform them of his conditional license status. Within ten (10) days of the

     date of entry of this Consent Order or of any subsequent employment,            Respondent

     shall cause his immediate supervisor to write to the Board acknowledging            receipt of

                                                                        ~:"r';"fC-
                                                                      .w;                it
                                                                                 ~-ul..:eJions-in-    .

     the Consent Order.

                   (16)   Reports from EmDlovers

                          Within one (1) month of the date of entry of this Consent Order and

     every month thereafter,      Respondent shall cause every employer he has worked for

     during the month to submit to the Board an evaluation of Respondent's
                                                             -
     performance and attendance during that month. This report shall be submitted in

     writing on forms issued by the Board. In the event Respondent is not employed in

     nursing or attending school during any month or portion thereof, Respondent shall

     submit to the Board, in writing, a self-report describing other employment or
,1
;~
     activities.

                          Respondent shall authorize his employer to provide all information

     requested by the Nursing Board, or its designee, either orally or in writing, at any

     time during the period the Consent Order is in effect.

                   (17)   Practice Under SuQ~rvision.

                          Respondent shall practice only in a setting where he has on-site
                                                                   -,


     supervision for the entire shift by a licensed nurse in good standing with the


                                                      7
       c.
     Board requirements for license renewal and license reinstatement.

       D.      This Stipulation and Consent Order is a matter of public record and may



        E.     This Stipulation and Consent Order will remain part of Respondent's

     licensing file and may be used for purposes of determining sanctions in any future

     disciplinary matter.

~I
                                              ,;;.;.- -.:.:-~T_A~~;.gF VFRMONI               "-




                                                by:




                                                                                     r;)..

     APPROVED AND SO ORDERED:                          VERMONT BOARD OF NURSING


     ~at~d: / .?:-Ci3
         ~                                      by:    Ch~~~~                    ~

     Date of entry:     L..-11.3/0
                        ~I .1 .~/l/   3
                                      ,-..J




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