Maryland State Board of Nursing v. Sesay

LEAHY, J. In this appeal, we address the obligations of the Maryland State Board of Nursing (“the Board”) to provide a practical nurse with notice of an evidentiary hearing concerning her violations of the Nurse Practice Act. In 2010, Mabinty Sesay, a licensed practical nurse, was alleged to have committed several violations of the Nurse Practice Act, and the Board, in 2011, issued charges against Ms. Sesay. The Board mailed notice of the charges and instructions on how to request an evidentiary hearing to Ms. Sesay. Ms. Sesay received notice of the charges, requested an evidentiary hearing and provided an address to which she directed the Board to send further correspondence.

In 2013, the Board mailed Ms. Sesay notice of the evidentiary hearing to the address she provided, via certified and first-class mail. Ms. Sesay did not receive the notices because she had not provided the Board with her current address, as she was required to do by statute, and the notices were returned to the Board. The Board held a hearing regarding Ms. Sesay’s license, without Ms. Sesay’s presence, concluded that Ms. Sesay had violated the Nurse Practice Act, and ordered discipline for Ms. Sesay, including probation. Ms. Sesay filed a notice for petition of review of the Board’s decision in the Circuit Court for Montgomery County.

After a hearing, the court concluded that that the Board did not comply with due process requirements and was required to take further reasonable steps upon the return of ⁴³⁶ both mailings. The court vacated the Board’s decision and order. In its timely appeal, 1 Appellant Maryland State Board of Nursing (“the Board”) raises two questions for our review: I. Did the Board provide Ms. Sesay with legally sufficient notice of an evidentiary hearing concerning her violations of the Nurse Practice Act, when the Board sent notice to the last address that Ms. Sesay had provided the Board, and after Ms. Sesay failed to comply with a duty imposed on her by Maryland law to inform the Board of any change of address?

II

Did substantial record evidence support the Board’s findings that, by falling asleep while caring for a quadriplegic child and later falsifying that child’s medical record to bill for time in which she was not working, Ms. Sesay violated the Maryland Nurse Practice Act? We hold that the Board provided Ms. Sesay with legally sufficient notice of an evidentiary hearing and further hold that substantial evidence supported the Board’s findings that Ms. Sesay violated the Maryland Nurse Practice Act. Our holding recognizes the State’s responsibility to protect the public health and instructs professionals licensed by the State that they may not, especially in the midst of administrative proceedings in which charges have been brought against them, fail to update their address "with the appropriate regulatory body and thereby avoid accountability. 2 Therefore, we reverse the judgment of the Circuit Court for Montgomery County. ⁴³⁷ BACKGROUND A. Ms. Sesay’s Provision of Nursing Care in November, 2010 In November 2010, Mabinty Sesay was a practical nurse licensed by the State of Maryland and employed by Maxim Health Care Services (“Maxim”). On the dates of November 27-28, Ms. Sesay was assigned to provide in-home, overnight nursing care to E.C., a young man with quadriplegia who has no movement, aside from weak use of his biceps and triceps, from the chest down.

He also has autonomic dysreflexia, which can cause a dangerous, rapid increase in blood pressure when he has a full bladder. E.C.’s mother (“Ms. C.”) had several grievances regarding Ms. Sesay’s performance. According to Ms. C., on the night of November 27, Ms. Sesay failed to wash her hands until asked, had difficulty performing tasks, and was observed sleeping at 4:00 a.m. On the night of November 28, at around 11:00 p.m., E.C. had been calling out for Ms. Sesay because he needed to urinate, but Ms. Sesay had fallen asleep and did not respond.

At around 2:00 a.m., E.C. began calling out again for Ms. Sesay for about 15 minutes, but Ms. Sesay did not respond because she had fallen asleep in a bed she made for herself on the living room floor. Upon waking Ms. Sesay at around 2:15 a.m., Ms. C. dismissed her for sleeping. Ms. C. noticed, however, that Ms. Sesay had documented on her flow chart that she provided nursing care for E.C. at 5 a.m. and left at 6:30 a.m. She also noticed that Ms. Sesay had signed Ms. C’s name on the document.

Ms. Sesay, on the other hand, maintained that she had not been sleeping while working and that she was permitted to stay until her shift was over at 6 a.m. Ms. C. thereafter called Maxim about the events at the C. residence, and, Maxim, after unsuccessfully trying to meet with Ms. Sesay about the situation, terminated Ms. Sesay’s employment on November 30, 2010. The following week, on December 6, 2010, Ms. C. filed a complaint against Ms. Sesay with the Board. Attached to her complaint was a photograph ⁴³⁸ that she claimed she took of Ms. Sesay sleeping on their living room floor.

Also attached to the complaint were signed, handwritten statements from E.C., E.C.’s father, and E.C.’s brother detailing Ms. Sesay’s poor performance. B. The Board Files Charges Against Ms. Sesay and Provides Notice of the Evidentiary Hearing After conducting an investigation into the complaint, the Board issued formal charges against Ms. Sesay on September 21, 2011. The document alleged that she “[wjillfully and knowingly (i) [f]ile[d] a false report or record of an individual under the licensee’s care”; that she acted “inconsistently] with generally accepted professional standards in the practice of registered nursing or licensed practical nursing”; that she “[s]ubmit[ted] a false statement to collect a fee”; and that she “[e]ngage[d] in conduct that violates the professional code of ethics” set forth in COMAR 10.27.19.02, requiring a nurse to “[a]ssume responsibility and accountability for individual nursing judgments and actions;” and “[not pjractice nursing if unfit to perform procedures or make decisions because of physical or mental impairment^.]” That same day, the Board sent a “NOTICE OF AGENCY ACTION-Charges under the Maryland Nurse Practice Act” via first-class and certified mail 3 to two known addresses for ⁴³⁹ Ms. Sesay: (1) 7333 New Hampshire Ave. # 3, Takoma Park, MD 20912; and (2) 601 # 3 Silver Spring Ave., Silver Spring, MD 20910. The letter explained how to request an evidentia-ry hearing before the Board took any disciplinary action against her license and provided that “[i]f you request a hearing, the Board will notify you in writing, at your address last known to the Board, of the date, time and location of the hearing.” Ms. Sesay timely requested an evidentiary hearing before the Board on September 26, 2011.

She listed her then-current mailing address as: 11407 July Dr. Apt 203 Silver Spring MD 20904 (“the July Drive address”). She also provided two phone numbers. It appears from the record that a settlement conference was held on January 10, 2012, but Ms. Sesay and the Board could not reach a resolution. 4 ⁴⁴⁰ On September 1, 2012, Ms. Sesay moved from her July Drive address to 2005 Treetop Lane # 41, Silver Spring, MD 20904 (hereinafter “the Treetop Lane address”). Ms. Sesay did not advise the Board of her change of address.

Ms. Sesay was required by law to notify the Board of her move within 60 days of her change of address. H.O. § 8-312(e). On May 17, 2013, the Board mailed a “NOTICE OF HEARING: In the Matter of Mabinty Sesay” to Ms. Sesay at her July Drive address, the last-known address on record, via first-class and certified mail, with the return receipt requested. The notice advised Ms. Sesay that the hearing would be held on Tuesday, July 23, 2013, at 10:00 a.m. at the offices of the Board, 4140 Patterson Avenue in Baltimore, Maryland, 21215.

Both notices were returned as undeliverable. C. The Board’s Evidentiary Hearing and Decision, and Ms. Sesay’s Appeal On July 23, 2013, the Board held a hearing regarding Ms. Sesay’s license, and Ms. Sesay was not present. The Department of Health and Mental Hygiene 5 (“the State”), representing the State, called Ms. C. to testify (via telephone) 6 about E.C. and the incidents that occurred on the nights of November 27-28, 2010. Ms. C. testified that, on November 27, she found Ms. Sesay sleeping and told her that she could not sleep on the job.

Ms. C. also recalled that Ms. Sesay slept through E.C.’s yelling at 11:00 p.m., her husband was required to awaken Ms. Sesay, and that E.C.’s yelling awakened her husband and other son again at 2:00 a.m., whereupon they found Ms. Sesay sleeping once again. At this point, Ms. C.’s testimony reflects that she dismissed Ms. Sesay. Ms. C. also ⁴⁴¹ testified that the flow sheet Ms. Sesay submitted showing that she stayed at the C. residence and continued to perform tasks until 6:30 a.m. was false. Ms. C.’s complaint, hand-written statements, 7 and pictures were submitted as evidence.

The State also called Stephanie Nogle, the Board employee who conducted the investigation into Ms. Sesay. Ms. Nogle testified about the interview she conducted of Ms. Sesay and the complaint that Ms. C. submitted to the Board, as well as Ms. Sesay’s conditions of employment with her former nursing employer, Maxim. The Board also admitted into evidence the disciplinary action report from Maxim that Ms. Nogle had obtained in her investigation of Ms. Sesay. In addition to the conduct discussed supra, this report detailed that, after Maxim contacted Ms. Sesay, she refused to return to the Maxim office to discuss her conduct because she claimed the office was too far away.

When the Maxim employee informed Ms. Sesay that she would not be able to work in any capacity for Maxim until she discussed the incident with Maxim, she stated that she had been working for another Maxim client; Maxim, however, had no record of her working for this client. Upon being told again, in the same conversation, that she would not be able to work for Maxim again until she addressed the disciplinary issue, the disciplinary document relates that she stated that she actually began working for another agency and asked “ “Well, what if I don’t come in?’ ” After being informed, once again, that she could not work for Maxim until her disciplinary issues were resolved, Ms. Sesay said that she would not go to the office that week and would call when she was available. Several months after the hearing before the Board, on September 26, 2013, Ms. Sesay renewed her nursing license and provided her Treetop Lane address. On October 9, 2013, the Board issued a “Final Decision and Order of Probation of Practical Nursing License,” which was ⁴⁴² mailed to Ms. Sesay at her Treetop Lane address.

The Board found that Ms. Sesay “slept while on-duty on the evenings of November 27 and November 28, 2010” and concluded that this conduct violated H.O. § 8—316(a)(8), which prohibits nurses from acting inconsistently with professional standards of practical nursing. The Board also found that “despite having been dismissed by [Ms. C.] at approximately 2:00 a.m. on November 28, 2010 after getting caught sleeping on-duty for the second night in a row, [Ms. Sesay] indicated on her flow sheets that she provided nursing care until 6:30 a.m.” Based on this conduct, the Board concluded that she violated H.O. § 8-316(a)(5)(i) by filing a false report of client care as well as H.O. § 8-316(a)(ll) by submitting a false statement to collect fees. 8 Based on these factual findings and conclusions of law, the Board ordered that Ms. Sesay’s license be placed on probation for a minimum of three years subject to a litany of restrictions and conditions, including that her license be publicly listed as being on probation, that she obtain the Board’s approval before accepting any nursing position, that she can work only if a registered nurse is physically present, and that she cannot work between the hours of 11:00 p.m. to 7:00 a.m. On or about October 30, 2013, Ms. Sesay, with notice of the Board’s decision, filed a document that the Board treated as a motion for reconsideration. 9 In an attached affidavit, Ms. Sesay asserted that she heard nothing from the Board in the two years since she requested an evidentiary hearing and that she changed addresses on September 1, 2012. Ms. Sesay claimed that she did not have knowledge of the notice that was sent to her former July Drive address and requested another ⁴⁴³ hearing “because she did not receive a notice to appear.” On November 6, 2013, Ms. Sesay filed a notice of petition for review of the Board’s October 9, 2013 decision. 10 On November 25, 2013, the Board filed the required agency certificate of compliance pursuant to Maryland Rule 7-202(e).

The Board denied her motion for reconsideration on November 22, 2013, relying on Ms. Sesay’s failure to satisfy her statutory obligation to notify the Board of her change of address. The Board emphasized that “[t]he rationale behind this provision is simple: the Board, as a licensing authority, has important information that it may need to share with its licensees periodically, such as changes in licensure status or, as in this case, notices of administrative hearings.” The Circuit Court for Montgomery County held a hearing on April 4, 2014. Ms. Sesay argued that the Board was required to do more when the letters were returned as undelivered. The Board, on the other hand, contended that it did more than what was required by law when it sent first-class mail in addition to certified mail, and, therefore, these efforts to give Ms. Sesay notice complied with due process.

After hearing argument, the court concluded that, although the Board complied with its statutory duty to send the hearing notice via certified mail, it was required to take reasonable steps upon the return of both mailings. The court agreed with the Board that it did not have “to go to the ends of the earth” to locate Ms. Sesay, but determined that it would not take a “Herculean effort on the part of the board when [the Board] get[s] a letter back saying ‘unclaimed’ or ‘unserved’ or ‘addressee moved’ to pick up the phone and call” based on the facts presented. The court also found that Ms. Sesay did not intentionally or negligently fail to notify the Board of her changed address, but instead gave every indication that she wanted to be present at the hearing. In addition, the court ⁴⁴⁴ rejected the Board’s argument that the Supreme Court case upon which Ms. Sesay relied, Jones v. Flowers, discussed infra—which stands for the principle that the State must take reasonable additional steps to provide notice when it has knowledge that its mailings failed—was distinguishable on the ground that it involved a tax foreclosure.

The court concluded that losing a job license or having a future “black mark” on the ability to pursue your profession is almost as important as losing your home. Accordingly, in an order entered on April 17, 2014, the circuit court found that “the Maryland Board of Nursing did not satisfy the due process requirements of notice and opportunity for a fair hearing.” The court vacated the Board’s Final Decision and Order of Probation of Practical Nursing License and remanded the case back to the Board to schedule a new hearing on the matter. This appeal ensued. DISCUSSION I. Legally Sufficient Notice The Board contends that it provided constitutionally sufficient notice to Ms. Sesay by complying with the notice requirements set forth in the Nurse Practice Act and the Maryland Administrative Procedure Act (“APA”) when it mailed Ms. Sesay notice of her evidentiary hearing to her last known address via both certified and first-class mail.

Ms. Sesay counters that the Board violated her right to due process because the Board knew that she did not receive the notices due to their return as undeliverable and failed to take other reasonable measures, like calling her on the phone, to provide notice. Whether notice is sufficient is a question of law, Bray v. Aberdeen Police Dep’t, 190 Md.App. 414, 437 , 988 A.2d 1106 (2010), and “ ‘we owe no deference to agency conclusions based upon errors of law.’ ” Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 121-22 , 797 A.2d 770 (2002) (quoting State Ethics v. Antonetti, 365 Md. 428, 447 , 780 A.2d 1154 (2001)). ⁴⁴⁵ As a threshold matter, we think it important to note, that “the State has a significant interest in protecting its citizens and the public health.” Dr. K. v. State Bd. of Physician Quality Assur., 98 Md.App. 103, 120 , 632 A.2d 453 (1993) cert. denied, 334 Md. 18 , 637 A.2d 1191 , cert. denied, 513 U.S. 817 , 115 S.Ct. 75 , 130 L.Ed.2d 29 (1994). The State has an immense public interest in this domain of regulating the medical professions, for the purpose of keeping the public safe.

On the other hand, the Board does not, and could not, dispute that Ms. Sesay’s nursing license is a constitutionally protected property interest requiring due process of law before the Board can revoke or suspend the license, place the license on probation, or issue any other sanction. See, e.g., Comm’n on Med. Discipline v. Stillman, 291 Md. 390, 405 , 435 A.2d 747 (1981) (“The right to practice medicine is a property right of which a physician cannot be deprived without due process of law.” (citing Aitchison v. State, 204 Md. 538 , 105 A.2d 495 , cert. denied, 348 U.S. 880 , 75 S.Ct. 116 , 99 L.Ed. 692 (1954))); see also Maryland Dep’t of Human Res. v. Bo Peep Day Nursery, 317 Md. 573, 597-98 , 565 A.2d 1015 (1989) (“Where ... the license to engage in a regulated business may not be withdrawn at the discretion of the licensing authority but only upon proof of certain contingencies, the procedure by which a state undertakes to suspend or revoke the license is restrained by due process.” (citation omitted)). Instead, the Board contends that it complied with all statutory requirements of notice, whereas Ms. Sesay did not, in failing to provide notice to the Board of her change in address.

The State Board of Nursing is permitted to “reprimand any [nursing] licensee, place any licensee on probation, or suspend or revoke the license of a licensee if the ... licensee” engages in prohibited conduct, including “[w]illfully and knowingly ... [f]il[ing] a false report or record of an individual under the licensee’s care”; acting “inconsistent[ly] with generally accepted professional standards in the practice of registered nursing or licensed practical nursing”; and “submitting] a false statement to collect a fee[.]” H.O. § 8—316(a)(5)(i), (8), (11). Before taking any of the aforementioned actions, the Board must ⁴⁴⁶ “give the person against whom the action is contemplated an opportunity for a hearing before the Board.” H.O. § 8-817(a). “The Board shall give notice and hold the hearing in accordance with the Administrative Procedure Act[,]” H.O. § 8-317(b), and' the hearing notice “shall be sent by certified mail, return receipt requested, to the last known address of the person at least 30 days before the hearing.” H.O. § 8-317(c). The APA requires agencies like the Board to “give all parties in a contested case reasonable written notice of the hearing.” Maryland Code (1984, 2014 Repl.Vol.), State Gov’t Art. (“S.G.”) § 10-208(a). Even where the licensing statute, such as H.O. § 8-316(c), “provides for service other than by regular mail,” the agency may also send notice “by regular mail to the address of record of a person holding a license issued by the agency if: (1) the person is required by law to advise the agency of the address; and (2) the agency has been unsuccessful in giving notice in the manner otherwise provided by the licensing statute.” S.G. § 10-209(a).

In this context, if the person served by regular mail shows that he or she “neither knew nor had reasonable opportunity to know of the fact of service,” a hearing must be provided. S.G. § 10-209(b). The APA further provides: A person holding a license shall be deemed to have had a reasonable opportunity to know of the fact of service if: (1) The person is required by law to notify the agency of a change of address within a specified period of time; (2) The person failed to notify the agency in accordance with the law; (3) The agency or the Office mailed the notice to the address of record; and (4) The agency did not have actual notice of the change of address prior to service. S.G. § 10-209(c).

It is undisputed that the Board complied with the aforementioned statutory requirements for proper notice. In fact, the Board sent the notice of hearing via both certified mail, ⁴⁴⁷ required by the statute, and first-class mail, not required by statute. The issue in this case, however, is whether the Board was required to engage in additional measures beyond those required by the statute based on the circumstances presented. In the context of notice, the Supreme Court has established that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950) (citations omitted). To provide notice that meets constitutional muster, “[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[,]” and [t]he reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected ..., or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Id. at 315, 70 S.Ct. 652 (internal citations omitted). “There is no cookie cutter paradigm for determining the constitutionality of a particular procedure designed to convey notice [because] ‘[d]ue process is flexible and calls only for such procedural protections as the particular situation demands.’ ” Griffin v. Bierman, 403 Md. 186, 197 , 941 A.2d 475 (2008) (quoting Dep’t of Transp. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191 (1984)). Instead, “[t]o determine whether notice in a particular case is constitutionally sufficient, the court must balance the interests of the state or the giver of notice against the individual interest sought to be protected by the [F]ourteenth [A]mendment.” Id.

(quoting Miserandino v. Resort Props., Inc., 345 Md. 43, 53 , 691 A.2d 208 (1997)) (internal quotation ⁴⁴⁸ marks omitted). In this regard, the state is not required to demonstrate that it provided actual notice; rather, it must show that its notice was “reasonably calculated” to provide notice. Id. at 198, 941 A.2d 475 . Generally, notice by mail is presumed to provide constitutionally sufficient notice.

Id. (citations omitted); see also Dusenbery v. United States, 534 U.S. 161, 169-72 , 122 S.Ct. 694 , 151 L.Ed.2d 597 (2002) (upholding the state’s delivery of notice via certified mail to a prisoner as “reasonably calculated” and in satisfaction of due process although the prisoner did not actually receive the notice). In Jones v. Flowers, however, the Supreme Court addressed, for the first time, the issue of “whether due process entails further responsibility when the government becomes aware prior to the taking that its attempt at notice has failed.” 547 U.S. 220, 227 , 126 S.Ct. 1708 , 164 L.Ed.2d 415 (2006). In that case, the state mailed a letter notifying the petitioner of his tax delinquency and his right to redeem his property within two years via certified mail to petitioner’s last known address, but the letter was returned, marked as “unclaimed.” Id. at 223-24 , 126 S.Ct. 1708 .

Two years later, the state published a notice of public sale in the newspaper, and, upon receiving an offer, mailed a notice of tax sale, again via certified mail, to petitioner at the same address. This letter was also returned as “unclaimed.” Id. at 224 , 126 S.Ct. 1708 . Notice via first-class mail was not sent. After the property was purchased, the petitioner’s daughter, who had received an unlawful detainer notice while residing at the address, finally notified petitioner of the sale, and the petitioner filed a lawsuit challenging, on due process grounds, the state’s failure to provide sufficient notice.

Id. The Supreme Court concluded that “the State should have taken additional reasonable steps to notify [the petitioner], if practicable to do so” upon receiving the returned form indicating that the petitioner had not received the notice. Id. at 234 , 126 S.Ct. 1708 . The Court began its analysis by recognizing that it “has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when ⁴⁴⁹ sent” in cases in which “the government attempted to provide notice and heard nothing back indicating that anything had gone awry[.]” Id. at 226 , 126 S.Ct. 1708 (citations omitted).

In the Court’s view in this instance, however, “[although the State may have made a reasonable calculation of how to reach [the petitioner], it had good reason to suspect when the notice was returned that [the petitioner] was ‘no better off than if the notice had never been sent.’ ” Id. at 230 , 126 S.Ct. 1708 (quoting Malone v. Robinson, 614 A.2d 33, 37 (D.C.App.1992)). “Deciding to take no further action is not what someone ‘desirous of