In this case the court outlined the procedural and factual background which brought McCafferty before the Board. Are these facts your facts? The background facts are as follows:
- In 2013, the Board contacted McCafferty, advising it “reviewed information which reveals that [he] may have problems related to mental health and/or substance abuse that could have affected and/or might subsequently affect [his] nursing activities.”
- It offered to resolve the issue by private letter agreement which would include agreement by McCafferty to enroll in the Recovery and Monitoring Program of New Jersey (RAMP) “for a minimum of [ninety] days.”
- RAMP would require McCafferty to submit to “random observed urine screens” or hair screens, to prepare monthly self-evaluation reports, and to regularly attend peer support meetings. Additional requirements included a comprehensive mental health and substance abuse evaluation, which would be forwarded to the Board. He would be required to follow the recommendations of RAMP.
- All the evaluations were to be at his own cost.
- He would agree to stay enrolled in RAMP until successful completion or release.
- When McCafferty did not enroll in RAMP, the program notified the Board that McCafferty “has been noncompliant” and that it could not “assure the [Board] or the public that Mr. McCafferty is safe to practice.”
- McCafferty was subpoenaed to appear before a committee of the Board to be questioned about “allegations that [he] appeared at [his] place of employment smelling of alcohol on occasion, that [his] practice of ‘wasting’ narcotics was defective, and that [he] spoke disrespectfully of [his] colleagues and made inappropriate statements in the presence of patients.”
- McCafferty denied all the allegations and stated he was “flabbergasted” by them.
- He supplied the committee with recommendations and evaluations that attested to his performance. His counsel suggested that his use of breath mints might account for the smell of alcohol.
- The Board again proposed a private letter agreement to McCafferty, allowing him to participate in RAMP.
- He did not sign the agreement. On April 6, 2015, the Board issued a provisional order of discipline.
- The order recounted the statements that had been made by the two doctors and a nurse.
- Under N.J.S.A. 45:1- 22(f), McCafferty was ordered to submit to “evaluation and monitoring to evaluate whether continued practice may jeopardize the safety and welfare of the public.”
- He was given thirty days to enroll in RAMP and to undergo its mental health and substance abuse evaluation procedures.
- The order would be finalized in thirty days unless he requested a modification or dismissal, setting forth his reasons. The Board would determine if additional proceedings were necessary, and if no “material discrepancies” were raised, the order would be finalized.
- McCafferty requested dismissal of the provisional order.
- He challenged the credibility of one of the doctors who complained. He said the second complaining doctor had asked him to join her on a clinical healthcare network.
- He submitted ten other certifications from doctors and nurses attesting to his competence and that they had not smelled alcohol. He noted all of the complaints about him were dated prior to January 2, 2013.
- A Deputy Attorney General for the Board responded that it was seeking an evaluation because three medical professionals reported questionable conduct, not that the Board had found McCafferty “engaged in any misconduct, or worked while impaired.”
- On December 14, 2015, the Board issued a Final Order, which required McCafferty to enroll in RAMP at his own expense. The order noted that, “[a]lthough ten medical professionals have indicated that they have not seen any evidence of alcohol or drug abuse or impairment, three have. In order to fulfill its mandate to protect the public, an evaluation is warranted.“
The court then reviewed the statutory foundation of the Professional Boards in New Jersey and their legal mandate and declared the following: “As we said in the context of the Medical Board:” the Board is vested not only with the greater power to deny, revoke, or suspend a physician’s medical license, N.J.S.A. 45:1- 21, but also with the power to invoke the lesser sanctions of warnings, reprimands, or censure. N.J.S.A. 45:1-22(a). We conclude that to limit the exercise of the power to grant or deny licensure, separate from the imposition of a lesser and perhaps more appropriate action is irrational and may thwart the effectiveness of the Board’s fundamental dual purpose-to permit qualified physicians licensure while protecting the State citizenry. Here, the Board has the discretion to investigate and prosecute violations of the Act. N.J.S.A. 45:11-24(d)(9). It has “‘is to protect the health and welfare of members of the public’ by assuring that all licensed practitioners are qualified, competent and honest, the grant of implied powers is particularly important.” In re Polk, 90 N.J. 550, 574 (1982) (quoting In re Suspension of Heller, 73 N.J. 292, 303-04 (1977)). an alternative to discipline program that evaluates referrals on issues of chemical dependencies and reports to the Board, making recommendations on participation in RAMP. N.J.S.A. 45:11-24.10. It has the investigative power to require a licensee to submit to an assessment of skills. N.J.S.A. 45:1-18. The Board has the power to order an evaluation to determine whether continued practice may jeopardize the safety or welfare of the public. N.J.S.A. 45:1-22(f). Given these express powers, we reject as inconsistent with a facial reading of these statutes, McCafferty’s contention that a violation under Section 21 must be found before the Board can utilize the powers set forth in Section 22. Rather, if there is some evidence that a licensee may have a chemical dependency, and after the opportunity to be heard, we agree with the Board that it has statutory authority under Section 22 to order a licensee to undergo an evaluation even if that evidence would not support a violation under Section 21. McCafferty was not denied the due process of law.
Submitted by New Jersey Nursing License Defense Lawyer, Jeffrey Hark.