ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William E. Daily Jeffrey A. Modisett
Danville, Indiana Attorney General of Indiana
Jon B. Laramore
Priscilla J. Fossum
Deputy Attorneys General
SUPREME COURT OF INDIANA
KATHLEEN REGESTER, R.N., ) ) Appellant (Petitioner Below ), ) 06S04-9807-CV-389 ) in the Supreme Court v. ) ) 06A04-9704-CV-150 INDIANA STATE BOARD OF NURSING, ) in the Court of Appeals ) Appellee (Respondent Below ). )Cause No. 06D01-9610-CP-219
APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Ora A. Kincaid, III, Judge
The Indiana State Board of Nursing suspended the nursing license of appellant Kathleen Regester, R.N. Regester sought
judicial review of the suspension. The trial court denied
Regester's petition and "affirmed" the Board's decision. The Court
of Appeals reversed, Regester v. Indiana State Bd. of Nursing, 689
N.E.2d 477, 478 (Ind. Ct. App. 1997), and the Board petitioned this
Court for transfer, which was granted. We affirm the trial court.
Regester raised four issues on appeal, which we consolidate
into these three:
1. Whether the Indiana State Board of Nursing had jurisdiction to hear the case against her;
2. Whether the orders issued in her case complied with proper statutory procedure; and
3. Whether these was substantial evidence to support the suspension of her license.
On September 4, 1996, the Board found that Regester, a registered nurse without a prescriptive license, wrote prescriptions for family members and for herself, signing various doctors' names without their permission. When confronted by her
employer, she admitted that she was addicted to a pain killer that
she had prescribed for herself, and she voluntarily entered
treatment for chemical dependency. The Board found that her
conduct was fraudulent or materially deceptive, that she rendered
services beyond her training or experience, and that she continued
to practice although unfit due to addiction to or abuse of drugs;
it suspended her license indefinitely. The suspension order
provided that Regester could apply for reinstatement after six
months had passed.
Regester filed a verified petition for judicial review on
October 7, 1996. Although the trial court characterized the
Board's suspension of Regester's license as a "close call," it
denied the request for relief and affirmed that decision. (R. at
60-61.) The Court of Appeals reversed, holding that the Board
lacked jurisdiction over Regester's case because the record did not
contain proof that the citizen's complaint had been filed with the
Board. Regester, 689 N.E.2d at 479.
by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
Ind. Code Ann. § 4-21.5-5-14(d) (West 1991). Regester argues that the Board's action violated subsection (d) in three ways: that it was in excess of its jurisdiction, without observance of proper procedure, and unsupported by substantial evidence.
The burden of demonstrating the invalidity of an agency action is on the party asserting the invalidity. Natural Resources Comm'n v. AMAX Coal Co., 638 N.E.2d 418 (Ind. 1994). While Regester has drawn our attention to statutory language indicating that a citizen should file a complaint first with the Division of Consumer Protection, which may then submit it to the Board, we are not persuaded that paper flowing in the opposite direction creates a jurisdictional defect. Regester has neither provided any evidence that the relevant authorities did not receive the complaint, nor has she articulated any reason to oust the Board because a citizen thought first to complain to the licensing board. While the absence of the citizen's complaint in the administrative record could be an indication that no such complaint was filed, Regester
has not made that argument here.See footnote
For all that appears, the
director and the Board had the complaint. Regester did not meet
her burden of demonstrating the invalidity of the Board's
Regester contends that the executive director of the Health Professions Bureau acted outside the scope of her duties by issuing all the orders in the course of the agency proceeding, including the final order suspending Regester's license. While an "executive director may execute orders" on behalf of the Board when requested to do so, Ind. Code Ann. § 25-1-5-5(g) (West Supp. 1998) (emphasis
added), Regester argues that the executive director here issued
orders. We disagree. On their face, the orders indicate that the
executive director was acting under the direction of the Board.
(See R. at 77, 80, 91, 130 (orders contain an indication that they
were issued by the Indiana State Board of Nursing); R. at 78, 81,
93, 130 (orders signed "INDIANA STATE BOARD OF NURSING BY: Laura
Langford"). As such, the Board, not the executive director,
disciplined Regester. The orders were properly issued.
Regester also challenges the Board's final order suspending
her license, claiming that the findings that accompany the order
are not specific enough to satisfy the procedural requirements of
Indiana Code section 4-21.5-3-27(b). She argues that the findings
fail "to inform the parties of the evidentiary bases upon which the
ultimate findings rest, and to allow for meaningful review by the
courts." (Appellant's Br. at 12.) Again, we disagree.
Indiana Code section 4-21.5-3-27(b) states: "The order must include, separately stated, findings of fact for all aspects of the order . . . . Findings of ultimate fact must be accompanied by a concise statement of the underlying basic facts of record to support the findings." While this Court has never specified a particular method for determining the adequacy of findings under this section, we find merit in the Court of Appeals' observation that the findings must inform the parties of the evidentiary bases upon which the ultimate findings rest and must allow for meaningful
judicial review. Glaser v. Indiana State Dep't of Public Welfare,
512 N.E.2d 1128, 1133 (Ind. Ct. App. 1987). In this case, the
Board made certain particular findings of fact ("The prescriptions
that Regester wrote for herself were for controlled substances that
she admitted abusing," R. at 127-28), several broader findings
("Regester did not have authorization for these prescriptions," R.
at 127-28), and the ultimate finding (that Regester should be
suspended, R. at 130). These were adequate.
Finally, Regester challenges the reviewing court's order
denying judicial review on the basis that the "court failed in
[its] statutory obligation to provide specific findings of fact."
(Appellant's Br. at 13.) The judge's order stated:
It is apparent from the Court's review of the transcript that the decision made by the Indiana State Board of Nursing was what may be characterized as a 'close call.' The Board certainly did not act precipitously and, as evidenced by the record, gave considered judgment to its decision. The hearing was fair. Due process was observed. But in the final analysis this Court concludes that the Board had jurisdiction to make its decision, that all procedural requirements were adhered to, and that the resulting decision was in all regards legally entered.
(R. at 60-61.)
The Indiana Code gives courts slightly differing instructions when it comes to findings. On the one hand, the Code says that judicial review is largely confined to the agency record and that the court "may not try the cause de novo or substitute its judgment for that of the agency." Ind. Code Ann. § 4-21.5-5-11 (West 1991).
This seems consistent with the directive that relief may be granted
only under fairly serious circumstances, such as arbitrary and
capricious action or the absence of substantial evidence. Ind.
Code Ann. § 4-21.5-5-14(d) (West 1991). Given these constraints,
the command that a court makes "findings of fact on every material
issue", Ind. Code Ann. § 4-21.5-5-14(c) (West 1991), cannot be
understood to require the same sort of findings of fact and
conclusions of law that a trial court might enter to decide the
merits of a matter on the civil plenary docket. Rather, judicial
review findings must be adequate to demonstrate that the court has
undertaken to assess the claims for judicial relief that are before
it. The trial court's findings in this case are unusually brief,
but they satisfy us, in light of the underlying record, that the
court considered and ruled on the chief questions before it.
In our review of the administrative record, we neither substitute our judgment on factual matters for that of the Board, nor do we reweigh the evidence. John Malone Enterprises v. Schaeffer, 674 N.E.2d 599 (Ind. Ct. App. 1996); Medical Licensing Bd. v. Robertson, 563 N.E.2d 168 (Ind. Ct. App. 1990). Instead we
read the record in the light most favorable to the administrative
proceedings, and we do not disturb the Board's conclusion so long
as there is substantial evidence to support that determination.
John Malone Enterprises, 674 N.E.2d at 605 "Under [the substantial
evidence] standard, the reviewing court may vacate a board's
decision only if the evidence, when viewed as a whole, demonstrates
that the conclusions reached by the board are clearly erroneous."
City of Indianapolis v. Hargis, 588 N.E.2d 496, 498 (Ind. 1992).
The evidence in this case provides substantial support for the
Board's decision. Regester's testimony alone establishes the basis
for the Board's suspension of her license. She admitted that she
wrote prescriptions for herself and for members of her family
without a prescriptive license, signing the names of doctors who
had neither examined the patients nor given permission for the
prescriptions. She also admitted that her use of the pain
medication she prescribed for herself resulted in a drug abuse
problem for which she entered a drug treatment program. Regester's
license suspension was supported by substantial evidence.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted from WP6.1 by the Access Indiana Information Network