PETITION FOR JUDICIAL REVIEW

February 6, 2023

IN THE SUPERIOR COURT OF WASHINGTON 

IN AND FOR THE COUNTY OF THURSTON

 

JASON E. STEVENS,

                              Petitioner, 

vs.

STATE OF WASHINGTON DEPARTMENT OF HEALTH, NURSING CARE QUALITY

ASSURANCE COMMISSION,

                               Respondent.

Case No.:

Dept. Case No.: M2018-545

PETITION FOR JUDICIAL REVIEW

 

COMES NOW Petitioner JASON E. STEVENS, by and through his attorney, and petitions the court for Judicial Review of an administrative Final Order entered March 13, 2020 by the Adjudicative Service Unit of Respondent State of Washington Department of Health, Nursing Care Quality Assurance Commission. Petitioner asks that the Order be SET ASIDE Pursuant to RCW 34.05.570.

  • PARTIES, JURISDICTION, AND VENUE
  1. Petitioner JASON E. STEVENS resides in Thurston County. He has paid all required fees to maintain this action. He is represented by his attorney, Erin Lindsay Calkins, at the above address.
  2. Respondent State of Washington Department of Health, Nursing Care Quality Assurance Commission (Department) is a Washington State agency.
  3. This Court has jurisdiction over this action under RCW 34.05.510. Plaintiff is aggrieved by Defendant’s action, has exhausted administrative remedies, and merits relief under RCW 34.05.570.
  4. Venue is proper under RCW 34.05.514.

  • FACTUAL AND PROCEDURAL BACKGROUND
  1. The administrative action in this case stems from an investigation which began in 2014 into the loss of pills containing Oxycodone from a Bureau of Prisons facility during 2013-2014.
  2. Petitioner was a registered nurse at the Respondent’s facility from October 2013-October 2014.
  3. On or about June 2016, the DEA filed a complaint against Petitioner alleging, inter alia, systemic record keeping problems at Appellant’s employment. 
  4. On or about August 2016, Petitioner entered into a three-year contract with the Washington Health Professional Services to obtain monitored treatment.
  5. On or about January 2018, Washington Health Professional Services raised concerns alleging Petitioner did not provide a release of information, then later added a question on a screen which was improper processed on various parts, to include questions on chain of custody. 
  6. On July 24-25, 2019, Respondent held a hearing on the issues of whether the Petitioner committed unprofessional conduct and if so, what sanctions would be appropriate.
  7. On or about December 9, 2019, Respondent issued an Order indefinitely suspending the Appellant’s ability to practice as a registered nurse in Washington, and placed conditions on his ability to return to practice.
  8. On or about December 19, 2019, the Department filed its Motion for Reconsideration. The Panel reconvened on February 18, 2020 and revised its decision. Consequently, a Final Order was entered on March 13, 2020. The amended Order changed Appellant’s suspension from ‘indefinitely suspended’ to ‘suspended’. 
  9. Petitioner submitted a Notice of Appeal March 13, 2020 – the notice of appeal was based on the Dec 9, 2019 Final Order.
  • ISSUES FOR REVIEW
  • Whether the Findings of Fact, Conclusions of Law, and Final Order should be set aside because the Department failed to prove, by substantial evidence, the facts giving rise to its allegations of unprofessional conduct?
  • Whether the Findings of Fact, Conclusions of Law, and Final Order should be set aside because the alleged conduct does not constitute unprofessional conduct?
  • Whether the Findings of Fact, Conclusions of Law, and Final Order should be set aside because the Department’s findings and sanction are arbitrary and capricious?
  • Whether the Findings of Fact, Conclusions of Law, and Final Order should be set aside because the agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure?
  • ARGUMENTS
  • RESPONDENT FAILED TO PROVE BY SUBSTANTIAL EVIDENCE THAT PETITIONER ENGAGED IN CONDUCT GIVING RISE TO ITS FINDING OF UNPROFESSIONAL CONDUCT.
  1. According to RCW 34.05.570 (3) (e), the court is mandated to grant relief from an agency order in an adjudicative proceeding if the court determines that: “The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court.”
  2. For purposes of RCW 34.05.570(3)(e), substantial evidence is “a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.” Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997).
  3. The Washington Supreme Court has held the standard of proof in disciplinary proceedings against physicians is proof by clear and convincing evidence. Nguyen v. Department of Health, 144 Wn.2d 516, 534 (2001), cert. denied, 535 U.S. 904 (2002).
  4. Law that criminalizes passive, unknowing conduct is unconstitutional. See State of Washington v. Shannon B. Blake, NO. 96873-0. In State of Washington, the Washington declared RCW 69.50.4013 unconstitutional. The said section made possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine without proof that the defendant even knew they possessed the substance. The Court held that the Statute violated the due process clause of both the Washington State Constitution, and the U.S. Constitution. In the reasoning of the Court, “due process clause protections generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.” 
  5. From the Supreme Court’s decision in State of Washington, all governmental decisions must be subjected to constitutional due process guaranties. Accordingly, by parity of reasoning, in drug cases, the prosecution cannot find Defendant liable absent intent, and without following due process. 
  6. In the instant action, Respondent relies on various evidence to allege Petitioner’s blameworthiness. They allege that Petitioner removed oxycodone tablets under suspicious circumstances. That the removals were either using fake inmate names, or it was removals were made for inmates who did not have a prescription for oxycodone, or they were removed in excess of their prescription. (Tr.2, 6-13, 241; Tr.1, 22-25, 43; 1-2, 44).
  7. Respondent also alleges to have reviewed other B.O.P. records including the VOP standards of employment conduct and the FTC pharmacy manual. (Tr.2, 14-19, 247).
  8. Respondent alleges that on or about October 16th, Petitioner removed four oxycodone pills but that only one was administered and that Petitioner failed to administer or waste three of them. Petitioner avers that after he realized his mistake, he manually wasted the drugs and made a memo to the pharmacist. (Tr.2, 24-25, 313). Besides, after the incident, Petitioner never received any concern or complaint from the Pharmacist concerning the same. (Tr.2, 3-4, 315).
  9. Respondent also alleges that on or about December 14, 2013, Petitioner removed four pills, oxycodone. Two of them were wasted, but Petitioner failed to administer or waste the other two. Petitioner avers that he administered two of the tablets and two were wasted. (Tr.2, 1-7, 321). On the issue whether Petitioner took the drugs without an order, Plaintiff avers that such errors happen actually because the providers have 48 hours to submit their actual documentation for their order, so sometimes it can take a while for a MAR to get into the book properly or medication to get, the order to get to Petitioner in typical format. (Tr.2, 21-25, 321; 5-13, 347).
  10. In light of the foregoing, it is evident that Respondent failed to provide substantive evidence to find Petitioner guilty of unprofessional conduct. Petitioner is therefore entitled to relief pursuant to RCW 34.05.570(3)(e).  
  • THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER ERRONEOUSLY CONCLUDE THAT PETITIONER’S ALLEGED CONDUCT CONSTITUTES UNPROFESSIONAL CONDUCT.
  1. According to RCW 34.05.570 (3) (d), the court is mandated to grant relief from an agency order in an adjudicative proceeding if the court determines that: “The agency has erroneously interpreted or applied the law.”
  2. Also, according to RCW 34.05.570 (3) (f), the court is mandated to grant relief from an agency order in an adjudicative proceeding if the court determines that: “The agency has not decided all issues requiring resolution by the agency.”
  3. An Agency’s findings of facts are subject to the same requirements as those by a trial court. Weyerhaeuser v. Pierce County, 124 Wn. 2d. 26, 35, 873 P 2d. 498 (1994). “Their purpose is to ensure that a decision maker has dealt fully and properly with all of the issues in the matter before deciding it.” Washington Administrative Law Practice Manual 9.06 [B] 3 [a] at 9-39.
  4. Also, Section 3(a) of RCW 34.05.570 provides that the court shall grant relief if “[t]he order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied.”
  5. The Respondent failed to consider some aspects of the case. For instance, there were several staff that worked various shifts, who had access to the Pyxis room. (Tr.2, 12-14, 257). Therefore, in the event there was mismanagement of the drugs, it is highly likely that other staff committed the acts. 
  6. Respondent conducted investigations on Petitioner without Petitioner’s knowledge. Notably, Petitioner was not aware of when the investigation began actually. He did not even know about it until when he came into work on or around July 12, 2014. (Tr.2, 11-13, 270). This violated Petitioner’s due process rights guaranteed under both the Washington State Constitution and the U.S. Constitution. 
  7. Petitioner was never disciplined, called out, targeted at all by the pharmacist with regard to any discrepancies, following the 2013-2014 investigations. (Tr.2, 1-9, 267). Notably, the Public Health Service never instituted any disciplinary measure against him after the investigations. (Tr.2, 11-12, 267). Also, Petitioner’s supervisor said Petitioner completed his activities as assigned and that he was an effective communicator. (Tr.2, 1, 268). During the time for the investigations, nobody ever came to Petitioner with any complaint or concern. (Tr.2, 9-13, 277).
  8. Concerning wasted medications, Petitioner avers that he duly accounted for all wasted medicines to the pharmacist. (Tr.2, 21-25, 275). Besides, there was a strict double-checking mechanism for all drugs thrown in the wastebasket. (Tr.2, 9-21, 276). 
  9. It was standard procedure that when Petitioner had an issue with wastage or some discrepancy, there must be a second witness with regard to that. (Tr.2, 17-24, 295). And in the event there was no witness available, Petitioner would do a memo. Petitioner avers to have adhered strictly to these regulations. (Tr.2, 2-6, 296).
  10. Respondent alleged that Petitioner, on or about March 4th, removed two oxycodone from the Pyxis and documented the administration of one but failed to document the administration or wastage of the other. Petitioner avers the drugs were duly administered by another member of staff, and none was wasted. (Tr.2, 5-15, 325). Petitioner notes that at the time the drugs were being administered, he was not on shift. (Tr.2, 22-24, 325). 
  11. Petitioner was not on shift on the day Respondent alleges Petitioner went to work while impaired. Notably, Petitioner only went to the facility that day to notify the staff that he was feeling unwell that day, and therefore could not work. Also, he did not collapse, as alleged by Respondent. (Tr.2, 15-25, 327; 1-25, 328; 1-25, 329; Tr.1, 10-21, 23). 
  12. In light of the foregoing, it is evident that Respondent erroneously concluded that Petitioner was guilty of unprofessional conduct. Petitioner is therefore entitled to relief pursuant to RCW 34.05.570(3)(a), (f) and (d).

  • THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER ARE ARBITRARY AND CAPRICIOUS IN THEIR FINDINGS. PETITIONER IS ENTITLED TO RELIEF PURSUANT TO RCW 34.05.570(3)(I).
  1. According to RCW 34.05.570 (3) (i), the court is mandated to grant relief from an agency order in an adjudicative proceeding if the court determines that: “The order is arbitrary or capricious.”
  2. This Court should review a challenge under RCW 34.05.570(3)(i) that an order is arbitrary and capricious by determining “whether the order represents ‘willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.’” Kittitas County v. E. Wash.Growth Mgmt. Hearings Bd., 172 Wash.2d 144, 155, 256 P.3d 1193 (2011) (internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46–47, 959 P.2d 1091 (1998)).
  3. An administrative action and/or decision may be ordered capricious and arbitrary if they are not supported by substantive evidence. City of Vancouver v. Pub. Emp’t Relations Comm’n, 107 Wn. App. 694, 710, 33 P.3d. 74 (2001).
  4. In the instant action, the Final Order of the Agency does not provide its outline and/or flow of reasoning behind its conclusion(s) for every alleged violation. Notably, the finding for each allegation was a blanket “Violated”. (See Pg. 15 of 20 of the Final Order). Respondent’s Order therefore meets the capricious and arbitrary threshold in RCW 34.05.570 (3) (i). Accordingly, Petitioner is entitled to relief pursuant to the said RCW 34.05.570(3)(i).
  5. In light of the foregoing, it is evident that Respondent’s decision was arbitrary and capricious in that it failed in the balance of reason and was arrived upon without substantive evidence. Petitioner is therefore entitled to relief pursuant to RCW 34.05.570(3)(i).
  • THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER SHOULD BE SET ASIDE BECAUSE THE AGENCY HAS ENGAGED IN UNLAWFUL PROCEDURE OR DECISION-MAKING PROCESS OR HAS FAILED TO FOLLOW A PRESCRIBED PROCEDURE.
  1. According to RCW 34.05.570 (3) (c), the court is mandated to grant relief from an agency order in an adjudicative proceeding if the court determines that: “The agency has engaged in unlawful procedure or decision-making process or has failed to follow a prescribed procedure.”
  2. According to RCW 18.130.175, Nurses may undergo Voluntary substance abuse monitoring programs. Nurses who enter the contract pursuant to the said Section must voluntarily participate thereof. 
  3. The party challenging the agency’s decision bears the burden of proving the invalidity of the decision. RCW 34.05.570(1)(a).
  4. Respondent breached 42 CFR Part 2 – Confidentiality of Substance Use Disorder Patient Records in the manner alleged hereinbelow. (Tr.1, 8-21, 26). 
  5. Respondent’s witness, Chris Howard, acknowledged that Petitioner’s medical information was confidential and should not be released pursuant to 42 U.S.C. 290. However, he erroneously stated that 42 U.S.C. 290 does not apply to Petitioner’s case. (Tr.2, 2-6, 243).
  6. Also, Respondent conducted investigations on Petitioner without Petitioner’s knowledge. Notably, Petitioner was not aware of when the investigation began actually. He did not even know about it until when he came into work on or around July 12, 2014. (Tr.2, 11-13, 270). This violated Petitioner’s due process rights guaranteed under both the Washington State Constitution and the U.S. Constitution. 
  7. Petitioner avers that Respondent breached RCW 18.130.175 by removing Petitioner from the Contract. (Tr.2, 10-13, 339; Tr.1, 12-19, 24; 1-20, 25). According to RCW 18.130.175, participants thereof will not be subjected to disciplinary action if they comply with the requirements of the WHPS program. 
  8. In light of the foregoing, it is evident that Respondent engaged in unlawful procedure, and failed to adhere to proper guidelines in arriving at its decision. Petitioner is therefore entitled to relief pursuant to RCW 34.05.570(3)(c).  
  • CONCLUSION

The error in the Respondent’s decision violated Petitioner’s guaranteed rights, including his due process rights. The said error also amounted to an abuse of discretion. 

For the foregoing reasons, the Respondent’s decision should be reversed. Petitioner also prays for an Order of Compensation for Petitioner’s damages consequential and incidental to Respondent’s actions and/or inactions. 

Lastly, Petitioner prays for any other Order this Honorable Court deems just and fair. 

 

Respectfully submitted, 

 

CERTIFICATE OF MAILING

I, [ENTER NAME], certified on this day of [ENTER DATE] 2021, I deposited a true copy of the above to the Respondent by placing the documents with prepaid postage in their United States mailbox address.

 

Respectfully submitted, 

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