Alabama Board of Nursing v. Kirya

60 So. 3d 317, 2010 Ala. Civ. App. LEXIS 315, 2010 WL 4262286
CourtCourt of Civil Appeals of Alabama
DecidedOctober 29, 2010
Docket2090622
StatusPublished

This text of 60 So. 3d 317 (Alabama Board of Nursing v. Kirya) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Board of Nursing v. Kirya, 60 So. 3d 317, 2010 Ala. Civ. App. LEXIS 315, 2010 WL 4262286 (Ala. Ct. App. 2010).

Opinion

MOORE, Judge.

The Alabama Board of Nursing (“the Board”) appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) reversing the Board’s decision to revoke Elizabeth Nalugo Kirya’s license to practice as a registered nurse. We reverse.

Facts and Procedural History

On March 19, 2009, the Board issued a statement of charges to Kirya, stating, in pertinent part:

“I.
“On April 21, 1995, [Kirya] was licensed by the' Alabama Board of Nursing as a Registered Nurse. [Kirya] was originally approved to practice as a Certified Registered Nurse Practitioner (CRNP) by the Alabama Board of Nursing on April 21, 1995. Her CRNP approval expired on December 81, 2006. [Kirya’s] RN license lapsed on December 31, 2008, for failure to renew.
“II.
“On May 21, 2004, the Board ... issued an Order suspending [Kirya’s] license until conditions were met. On August 26, 2004, the suspension was lifted and [Kirya’s] license was placed on probation for a period of twenty-four months. Said Order was issued based on facts including:
“• [Kirya’s] prescription of medication without documentation of a patient visit and subsequent failure to document notification from the emergency room that the patient had experienced an allergic reaction to the medication which required emergency treatment on two separate occasions
“• [Kirya’s] practice as a CRNP in violation of her collaborative practice approval between August 28, 2002 and November 4, 2003, while her collaborating physician was out of the country and she did not have an approved back-up physician
“• [Kirya’s] prescription of medications and controlled drugs for patients on two days using prescriptions that had been pre-signed by her collaborating physician for her use while he was out of the country
“• [Kirya’s] practice on multiple occasions at a practice site in Gadsden, Alabama, without notification to or approval from the [Board].
“HI.
“Stipulated Term Number 11 of [Kir-ya’s] Order of Probation provided that periods of time in which [Kirya] was not employed as a practicing nurse would be excluded from computation of time to be served on probation. [Kirya’s] only documented period of employment as a RN since the issuance of the Order of Probation in 2004 is her employment as a RN at Riverview Regional Medical Center (RRMC) from April 3, 2006, until January 26, 2007. Thus, [Kirya] has completed only 10 of the 24 months of practice as a RN required for successful completion of her Order of Probation.
“IV.
“Stipulated Term Number 4 of [Kir-ya’s] Order of Probation required [Kir-ya] to submit self-reports to the Board on a monthly basis by the 10th of the month. Self-reports were required to be submitted regardless of whether [Kirya] was employed in nursing.
“The Board has not received the self-reports due on the tenth of September, October, November, and December of 2007; nor the self-reports due on the tenth of January, February, March, April, May, and June of 2008.
“V.
“Stipulated Term Number 9 of [Kir-ya’s] Order of Probation required [Kir-[319]*319ya] to cause her employer to provide to the Board on a Board-approved form a written evaluation of [Kirya’s] nursing performance every three months and further required that receipt of an unfavorable report may be considered a violation of the Order. On February 6, 2007, the Board received notice that on January 26, 2007, [Kirya] was separated from Riverview Regional Medical Center, Gadsden, Alabama. According to the Corrective Action/Discipline Record, [Kirya] was separated due to failure to respond to urgent care issues with a postoperative patient experiencing complications.
“The only Employer Report provided to the Board was the one for April to June 2007, a time period during which [Kirya] was not employed by RMC; however, this form was received by the Board in January 2007. The Board did not receive the employer reports due on the tenth of July and October of 2006.
“VI.
“Stipulated Term Number 12 of [Kir-ya’s] Order of Probation required [Kir-ya] to maintain a current license at all times during the period of the Order. [Kirya’s] license lapsed on December 31, 2008, for failure to renew.
“VII.
“By letter of November 6, 2007, [Kir-ya] was advised of deficiencies in her reporting that constituted violations of her Board Order. [Kirya] did not respond to this letter. By certified letter of December 12, 2007, [Kirya] was again advised of deficiencies in her reporting that constituted violations of her Order. Postal records reflect that this certified mail letter was delivered on January 4, 2008. [Kirya] did not respond to this letter. [Kirya] was again advised of deficiencies in her reporting that constituted violations of her Order by certified letter
. of February 21, 2008. Notice of this letter was left twice for Kirya, and the letter was subsequently returned to the Board marked ‘return to sender,’ ‘unclaimed,’ ‘unable to forward.’ [Kirya] did not respond to this letter.
“COUNT ONE
“[Kirya’s] conduct as described in Paragraphs II through VII above demonstrates that [Kirya] has willfully or repeatedly violated the provisions of Article 2 of the Alabama Nurse Practice Act as defined by Board rules and regulations by failing to comply with stipulated terms and conditions of a Board Order, in violation of Code of Alabama 1975, § 34-21-25 and Alabama Board of Nursing Administrative Code § 610-X-8-.03(8)(d).
“COUNT TWO
“[Kirya’s] conduct as described in Paragraph VII above demonstrates that [Kirya] failed to respond to official Board correspondence including requests for information and notices. In violation of Code of Alabama 1975, § 34-21-25 and Alabama Board of Nursing Administrative Code § 610-X-8-.03(7)(a) and (c).
“PRAYER FOR RELIEF
“WHEREFORE, Complainant, in her capacity as the Executive Officer of the [Board], requests that, upon hearing and proof, [Kirya] be found guilty of the aforementioned violations and that the [Board] revoke [Kirya’s] RN license and CRNP approval.”

A hearing was held before a hearing officer on May 19, 2009. At the commencement of the hearing, the parties stipulated to the facts set forth in the following numbered charges: I, II, III, and VI. The parties also stipulated to the facts set forth in the first paragraph of charge V; the Board dropped the factual allegations set forth in the second paragraph of [320]*320charge V. Thus, the only disputed facts were those set forth in charges IV and VII.

At the hearing, David Pinnock, an investigator for the Board, testified that Kirya’s probation order required her to submit monthly self-reports. He testified that he reviews monthly self-reports as they come in and that they are then scanned into the computer system.

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Related

Alabama Bd. of Nursing v. Williams
941 So. 2d 990 (Court of Civil Appeals of Alabama, 2006)
Alabama Medicaid Agency v. Peoples
549 So. 2d 504 (Court of Civil Appeals of Alabama, 1989)
Ex Parte Alabama Board of Nursing
835 So. 2d 1010 (Supreme Court of Alabama, 2001)

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Bluebook (online)
60 So. 3d 317, 2010 Ala. Civ. App. LEXIS 315, 2010 WL 4262286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-board-of-nursing-v-kirya-alacivapp-2010.