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Report of Regents Professional Practice Committee to The Board of Regents

Your Professional Practice Committee held its scheduled meeting on September 10, 2019. All members were present. Chancellor Betty A. Rosa and Regent Kathleen M. Cashin were also present but did not vote on any case or action.

ACTION ITEMS

Professional Discipline Cases

Your Committee recommends that the reports of the Regents Review Committees, including rulings, findings of fact, determinations as to guilt, and recommendations, by unanimous or majority vote, contained in those reports which have been distributed to you, be accepted in 4 cases and be clarified in 1 case and be modified in 2 other cases as hereafter set forth.  In addition, your Committee recommends, upon the recommendation of the Committee on the Professions, that 44 consent order applications and 26 surrender applications be granted.

In the case of Eugene Paul Milford, Dentist, Calendar No. 28611, we recommend that the penalty recommended by the Regents Review Committee be clarified, and that, upon the specification of the charge of which respondent is found guilty, respondent's license to practice as a dentist in the State of New York be suspended for a period of two (2) years, execution of the last twenty-three (23) months of said suspension be stayed, and that, upon completion of the one-month period of respondent’s actual suspension, respondent then be placed on probation for a period of two (2) years under the terms of probation prescribed by the Regents Review Committee.

In the case of Verna M. Davis, Licensed Practical Nurse, Calendar No. 30390, we recommend that the recommendation of the Regents Review Committee be modified solely to the extent regarding the penalty to be imposed, that the penalty to be imposed rendered by the Regents Review Committee not be accepted under all the circumstances, including the “great deal” of “mitigating equities” referred to by the Court in accepting respondent’s plea, the crime of Assault in the second degree arose from a “very difficult family dynamic” and did not occur in the practice of respondent’s profession, and the conditional discharge issued by the Court as the sentence for respondent’s crime, and that, upon the specification of the charge of which respondent is found guilty, respondent’s license to practice as a licensed practical nurse in the State of New York be suspended indefinitely and for not less than twelve (12) months and until such time as respondent (1) submits, at respondent's expense, to a mental health evaluation and, if necessary, treatment by a psychiatrist, psychologist, licensed clinical social worker, or nurse practitioner (with a specialty practice area in psychiatry), approved, in writing, by the Executive Director, Office of Professional Discipline, New York State Education Department, 1411 Broadway – Tenth Floor, New York, New York 10018-3496, for mental health issues, to establish that respondent is currently mentally fit to practice the profession of nursing, 2) said psychiatrist, psychologist, licensed clinical social worker, licensed master social worker, or nurse practitioner (with a specialty practice area in psychiatry) submits a written report to the New York State Education Department, addressed to the Executive Director, Office of Professional Discipline, as aforesaid, in which said psychiatrist, psychologist, licensed clinical social worker, licensed master social worker, or nurse practitioner (with a specialty practice area in psychiatry) certifies that respondent is mentally fit to practice as a licensed practical nurse in the State of New York, and 3) said Executive Director, Office of Professional Discipline, is thereafter satisfied that respondent is both mentally fit to practice as a licensed practical nurse in the State of New York and has served the suspension of her license to practice as a licensed practical nurse in the State of New York for at least twelve (12) months, at which time said Executive Director shall notify respondent, in writing, of the termination of the suspension of respondent’s license to practice as a licensed practical nurse in the State of New York and the effective date of said termination, and that the findings of fact and determination as to guilt rendered by the Regents Review Committee be accepted.

In the case of Debra Lynn Mattoon a/k/a Debra L. Mattoon a/k/a Debra Mattoon, Licensed Practical Nurse, Calendar No. 30020, we recommend that the findings of fact, determination as to guilt, and recommendation as to penalty recommended by the Regents Review Committee be accepted, except that (1) the discussion in the report of the Regents Review Committee regarding the description of the crime that respondent was convicted of committing and of the amount of the restitution that respondent was required to pay as part of her sentence for such crime each be modified and, in lieu thereof, respondent’s conviction was based upon her knowingly entering or remaining unlawfully in the building where she was employed with the intent to commit a crime therein and respondent’s sentence for such crime included a requirement that she pay restitution in the amount of $3,457.08, including a $256.08 surcharge; and (2) the discussion and reasoning in the report of the Regents Review Committee regarding the question of service upon respondent set forth in the penalty section of such report not be accepted, the resolution of the question of such service be clarified, corrected, and explained and the requirements for valid suitable age and discretion service be analyzed, the affidavit of service in this matter be addressed, the issue of whether a certified mailing was sent to respondent’s “last known residence” be answered, respondent be found, based  upon  the  record,  to  have  been  duly  served in  compliance with  Education Law § 6510(1)(f)(2), no additional penalty be considered or imposed on respondent because she did not appear or respond in this matter, and the inaccurate references in the Regents Review Committee report to the certified mailing being “signed for by” respondent’s “daughter”, without regard to her inactive status, respondent not being registered, and the phrase “despite respondent’s non-appearance in this matter” being used in describing the hearing record and evaluating the penalty each not be accepted, the full paragraph on page three of the Regents Review Committee report beginning with the word “Initially” and the part of the next successive paragraph starting on such page three with the words “Respondent was not registered” through and including the words beginning on the top of page four of the Regents Review Committee report “to address the issues with her license” are each deemed to be deleted, and the following substitute paragraphs be deemed added to page one of the Regents Review Committee report immediately following the paragraph that ends with the words “Discipline of the New York State Education Department”:

Petitioner claims that service was made upon respondent in this matter by the suitable age and discretion method.  The efforts at serving respondent by such method must comply with the requirements of Education Law § 6510(1)(f)(2).  As relevant, this statute provides that the Statement of Charges and Notice of Hearing must be (1) delivered to a person of suitable age and discretion at the usual place of abode of the person to be served; and (2) sent by certified mail, return receipt requested, to the person to be served at either his or her last known residence or his or her last address on file with the division of professional licensing services.

Here, the affidavit of service shows that the Statement of Charges and Notice of Hearing were delivered on March 8, 2018 to respondent’s daughter, a person of suitable age and discretion, at respondent’s usual place of abode in Oakfield, New York.  Thus, the affidavit of service establishes that process was duly delivered in compliance with the first requirement in Education Law § 6510(1)(f)(2).

The question to be resolved in this matter relates to the separate second requirement concerning the address where the certified mailing must be sent.  The affidavit of service states that the Statement of Charges and Notice of Hearing were sent by certified mail, return receipt requested, on March 10, 2018, to the same address for respondent in Oakfield, New York where they were delivered on March 8, 2018.  The record herein shows that the process sent by certified mailing on March 10, 2018 was received and signed for by Michael Mattoon.

Two boxes are provided in the affidavit of service for describing where the certified mailing was sent.  The process server checked the box in the affidavit of service indicating that the certified mailing was sent to respondent’s last address on file with the State Education Department Division of Professional Licensing Services.  The process server, therefore, did not check the box on the affidavit of service for reporting that the certified mailing was sent to respondent’s “last known residence”.

Petitioner asserts, in its Statement of Charges, that respondent, who is currently on “inactive” status with the New York State Education Department, was last registered with the Division of Professional Licensing Services from an address in Medina, New York.  Moreover, at the hearing, petitioner did not claim that the Oakfield, New York, address was respondent’s last registered address with the Division of Professional Licensing Services.  Whether or not the Oakfield address was nevertheless, in some unexplained manner, respondent’s last registered address with the Division of Professional Licensing Services, such address constitutes respondent’s last known residence at the time when service was effectuated in this matter.  Because respondent’s Oakfield, New York, address was respondent’s “usual place of abode” at the time of service, it qualifies as respondent’s last known residence at such time.  Accordingly, under all the circumstances, petitioner has met the relevant statutory requirement that the certified mailing be sent to respondent’s “last known residence”.  This conclusion that service in this matter was duly made in compliance with Education Law § 6510(1)(f)(2)(i) relies upon the portion of the affidavit of service that shows the Oakfield, New York, address represents respondent’s usual place of abode at the time of service and disregards the boxes that the process server did and did not check in the affidavit of service regarding his belief as to the nature of the Oakfield, New York address.

These recommendations are made following the review of 77 cases involving twenty-one licensed practical nurses, ten registered professional nurses, seven licensed practical nurses who are also registered professional nurses, three dentists, three professional engineers, two licensed clinical social workers, two licensed master social workers who are also licensed clinical social workers, two massage therapists, two pharmacists, one acupuncture professional corporation, one acupuncturist, one architect, one architecture professional corporation, one certified public accountant, one licensed practical nurse who is also a registered professional nurse who is also a nurse practitioner (Adult Health), one licensed practical nurse who is also a registered professional nurse who is also a nurse practitioner (Family Health), one massage therapy professional corporation, one occupational therapist, one optometrist, and one registered professional nurse who is also a nurse practitioner (Adult Health).

Restorations

Your Committee recommends the following: That the application of Kevin Brennan for the restoration of his license to practice as a Registered Professional Nurse and his certificate to practice as a Nurse Practitioner in New York State be denied at this time. [PPC EXS (A) 4]

MOTION FOR ACTION BY FULL BOARD

Madam Chancellor and Colleagues: Your Professional Practice Committee recommends, and we move, that the Board of Regents act affirmatively upon each recommendation in the written report of the Committee's deliberations at its meeting on September 10, 2019, copies of which have been distributed to each Regent.

MATTERS NOT REQUIRING BOARD ACTION

Your Committee discussed several topics of interest, including:

Deputy Commissioner’s Report/Update 

  • Full Board Consent Agenda Items
    • Board (re)appointments
    • Licensing Petitions / Conferral of Degrees
    • Mercy College - Master Plan Amendment to offer a Master of Science (M.S.) Program in Nursing Education
    • Proposed Amendment to Section 63.6 of the Regulations of the Commissioner of Education Relating to the Certification of Manufacturers and Wholesalers for Export Purposes (Permanent Adoption)
    • Proposed Amendment to Section 64.7 of the Regulations of the Commissioner of Education Relating to the Execution by Registered Professional Nurses of Non-Patient Specific Orders to Administer Immunizations (Permanent Adoption)

Associated Agenda Item

Meeting Date: 
Tuesday, September 10, 2019 - 9:00am