Dana Casnocha-Jones v. State Board of Nursing

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

DANA CASNOCHA-JONES, )

)

Respondent, )

)

v. ) WD86087

)

STATE BOARD OF NURSING, ) Filed: March 12, 2024

)

Appellant. )

Appeal from the Circuit Court of Cole County

The Honorable S. Cotton Walker, Judge

Before Division One: Alok Ahuja, P.J., and

Cynthia L. Martin and Thomas N. Chapman, JJ.

The State Board of Nursing initiated a disciplinary proceeding against

registered nurse Dana Casnocha-Jones. Jones1 stipulated that cause existed to

discipline her license based on her diversion of opioid pain medications for

personal use while working at a hospital. Following a hearing, the Board revoked

Jones’ nursing license. Jones filed a petition for judicial review. The circuit court

set aside the Board’s disciplinary order, and ordered that the Board issue Jones a

probated license. The Board appeals. We affirm.

1 In her briefing, the appellant refers to herself using the surname “Jones”;

we do likewise.

Factual Background

Jones began working as a staff nurse at Mercy Hospital East in St. Louis

beginning in August 2018. The State Board of Nursing issued her a Missouri

registered professional nursing license in approximately September 2018.

Within months of beginning her employment, Jones began taking

intravenously injectable opioid pain medications (morphine and

hydromorphone) from the hospital for personal use. Jones would obtain these

drugs when she administered pain medications to patients. Frequently, the drug

vials contained more medication than was required to be administered. After

providing the patient with the correct dosage, Jones would then take the residue

from the vial for her personal use. She would re-fill the vial with an identical

amount of a saline solution, and would show the vial to another nurse, who would

confirm that it contained the appropriate amount of residual liquid. The vial

could then be discarded as medical waste. Besides scavenging remaining

medication from vials she herself had used, Jones would also take leftover

medication from other nurses’ partially used vials; she retrieved the used vials

from the medical waste disposal containers in which they had been discarded.

Jones testified that she never sold or gave away any of the medication she

diverted, and never obtained controlled substances through other illicit means.

She also denied that she had ever given a patient less than their full prescribed

dosage of a medication.

Jones admitted to taking at least one vial of medication during each of the

three shifts that she worked every week. Jones maintained that she did not use

drugs during her work shifts. She acknowledged during the hearing before the

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Board that the quality of her patient care may have been affected by her opioid

use, because she was so focused on obtaining drugs while at the hospital.

On July 5, 2019, hospital personnel found Jones attempting to remove

items from a medical waste container. Jones claimed that she was looking for a

misplaced stethoscope. The hospital suspended her from work, and asked her to

provide a urine sample for drug testing. On July 23, while Jones was suspended

and awaiting test results, employees observed her in the hospital on two different

occasions, handling medical waste containers. Hospital security found that Jones

had used her employee badge to access entrances and medication rooms

throughout the hospital 127 times from the start of her suspension on July 5,

2019, through July 23, 2019 (which would constitute approximately 15 or 20

separate visits to the hospital, assuming she entered multiple rooms per visit).

The hospital revoked Jones’ security badge access the same day. On the night of

July 23, 2019, Jones attempted to enter the hospital with her badge again.

Although her security badge was inoperative, she was able to gain access to the

building as another employee exited; Jones then unsuccessfully attempted to

enter a room containing medications.

The next day, security found multiple needles, vials of medication, saline,

and a bloody paper towel in Jones’ locker. The drug sample collected on July 5

returned positive for morphine - a controlled substance for which Jones did not

have a prescription. The hospital terminated Jones’ employment on July 24,

2019.

Jones entered an intensive outpatient substance abuse program within a

few days of her termination. She participated in the intensive outpatient

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program for six months, until January 2020. The program included multiple

weekly individual, family, and group therapy sessions; psychiatric consultations;

and the use of an agonist medication (naltrexone) to reduce her cravings for

opioids. During her intensive outpatient treatment, Jones attended at least one

hundred group therapy sessions, and more than fifty individual therapy sessions.

She also underwent nearly sixty drug screens, all of which were negative for

opioids, except for the initial sample she submitted shortly after beginning

treatment, which was indicative of her use prior to entering treatment.

After completing the intensive outpatient program in January 2020, Jones

attended aftercare group therapy sessions three times per week for more than a

year, and testified that she continued to participate in such sessions occasionally

at the time of the disciplinary hearing. Jones also took agonist medications to

manage her cravings for approximately a year after entering treatment, as

recommended by the treatment program.

Upon completion of her intensive outpatient program, Jones began

employment as a nurse at a kidney dialysis center in January 2020. As of the

time of the disciplinary hearing, Jones had been promoted twice, and was serving

as a facility administrator overseeing a dialysis center. The dialysis facilities do

not stock controlled substances, and therefore Jones had no access to such

substances through her employment.

On March 19, 2020, the State Board of Nursing informed Jones that it had

cause to terminate her nursing license. Jones and the Board engaged in

settlement negotiations, but were unable to agree to a comprehensive resolution

of the disciplinary proceeding. Jones and the Board did, however, enter into a

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stipulation on March 7, 2022. In the stipulation, Jones admitted that she had

unlawfully possessed morphine, and that cause existed to discipline her nursing

license under §§ 335.066.2(1), (6), (13), (15) and (25).2 Jones also stipulated to a

number of facts. Thus, she stipulated that her July 2019 urinalysis was positive

for morphine, for which she did not have a prescription. Jones also admitted that

she had been discovered rummaging through a medical waste container; offered

an explanation which the hospital did not believe; was suspended; attempted to

enter the hospital on numerous occasions after being suspended; and that,

following her suspension, she was again found in medication rooms, and again

offered spurious explanations for her presence. Jones also admitted that hospital

security found drug paraphernalia in her locker.

A hearing was held on May 18, 2022. Prior to the hearing, Jones

voluntarily submitted a hair sample for drug testing on April 28, 2022, which

tested negative for 10 categories of controlled substances, including opioids.

Jones testified on her own behalf, and also called two witnesses. One was a

substance abuse counselor who had overseen her treatment, and the other was a

supervisor from the dialysis facility where she began employment in January

2020.

The substance abuse counselor’s testimony described the nature of Jones’

intensive outpatient treatment program, and her aftercare. The counselor

testified that during therapy Jones was honest concerning her diversion and use

of drugs, and was an active participant in group therapy sessions. The counselor

testified that Jones had a strong support system including her husband and other

2 Statutory citations refer to the 2016 edition of the Revised Statutes of

Missouri, updated by the 2023 Cumulative Supplement.

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family. The counselor stated that Jones’ recovery had been “amazing,” that the

stability of her recovery was “excellent,” and that he did not often see people

respond to treatment as well as she did.

The dialysis center supervisor testified that Jones began working at the

dialysis facility in early 2020. He testified that Jones disclosed her history of

substance abuse and treatment during the hiring process. The supervisor

testified that Jones was “[v]ery high-performing,” and acted not only as a nurse,

but “was able to take on additional responsibilities as a leader in the facility.” As

a facility administrator, Jones was “the CEO of [her] facility,” responsible for

personnel issues, budgeting, clinical outcomes, and regulatory compliance.

Jones also submitted a letter from the medical director of her substance

abuse treatment program, a psychiatrist. The psychiatrist reported that Jones

“was extremely participative in all aspects of the [treatment] program,” and “has

met the expected goals of addiction care and at this point [is] considered to be in

complete abstinence with sustained remission.” The psychiatrist stated his

“strong[ ] belie[f] that [Jones’] history of substance abuse will not affect or

interfere with providing competent clinical care.”

During her testimony before the Board, Jones testified that she began

using narcotics after having a miscarriage in October 2018 and becoming “very

depressed.” She described the manner in which she surreptitiously collected the

opioid medications left in vials which she and other nurses had used. Jones

admitted that she had lied to a supervisor when she was first discovered

rummaging through a medical waste container, and that she had entered the

hospital – and successfully obtained waste narcotics – on multiple occasions

6

following her suspension. Jones acknowledged that she “went to fairly significant

lengths to hide this from [her] family,” that she did not stop even after being

caught and suspended, and that she had stolen not only medications, but also

injection supplies, from the hospital. When asked how her behavior comported

with the standards of honesty expected of a nurse, Jones responded:

At the time I was deep in addiction and not truthful. That is

not who I am today. And that is not who I am as a nurse now. . . .

[T]he reason I was dishonest was because I didn't want to be caught

at the time, and I didn't want to admit to myself that I had a

problem. But I have since accepted responsibility for what I've done.

And that's not who I am anymore.

Jones testified that she disclosed her prior substance abuse history to the dialysis

center in the hiring process because “I wanted a fresh start, and I felt like the best

way to do that was just to be honest about what had happened.”

After describing her intensive outpatient therapy and aftercare program,

Jones testified that she believed she had a stable recovery. She stated that she

would be willing to submit to ongoing drug testing, and asked the Board to allow

her current treatment team to continue to oversee her recovery.

The Board presented no evidence at the disciplinary hearing, other than

the stipulation in which Jones admitted to the facts underlying the termination of

her employment, and stipulated that cause for discipline existed. Notably, the

stipulation did not address Jones’ substance abuse treatment, or her successful

post-July 2019 employment.

On July 5, 2022, the Board issued its order revoking Jones’ nursing license.

The Board’s order states:

In this case, the Board is tasked with weighing the severity of

Respondent’s conduct against the positive efforts Respondent has

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taken to better herself. It is certainly commendable the things

Respondent has done since being terminated from Mercy in an effort

to address her substance use disorder. But the most troubling aspect

to her disorder and prior conduct, which the Board finds has not

been adequately addressed in her evidence of rehabilitation, is the

degree of dishonesty and how her wrongdoing began so soon after

she received her nursing license.

Approximately one year from obtaining licensure as an RN,

Respondent began diverting controlled substances from her

employer. Even after being placed on leave after she was discovered

going through a Sharps container, Respondent made numerous

attempts (over a hundred according to recordings of her name

badge) over a period less than three (3) weeks to obtain more

controlled substances. Respondent also intentionally replaced

medicine in vials with saline in an effort to deceive others of her

wrongdoing. In addition to her devious actions, Respondent

repeatedly lied to coworkers, her employer, and her husband. The

degree of Respondent’s subterfuge is difficult to understate.

One of the primary tenets of nursing is that its members

conduct themselves honestly. Numerous aspects of the nursing

profession require honesty from nurses, including the handling of

controlled substances. Respondent has failed to adhere to this

standard. Her wrongdoing diverted her attention from her patients,

disrupted the operations of her employer, and potentially eroded the

public’s faith in nurses. . . .

. . . The Board therefore finds and concludes, based on the

evidence of this case, that the appropriate level of discipline for the

license of Respondent, Dana Casnocha Jones, is revocation in order

to safeguard the health of the public.

Jones filed a petition for judicial review in the Circuit Court of Cole County

on August 4, 2022. While the action was pending, the court stayed the effect of

the Board’s disciplinary order.

The circuit court issued its judgment reversing the Board’s order revoking

Jones’ license on January 29, 2023. The court noted that the Board had

8

presented no evidence at the disciplinary hearing, and had relied only on the

parties’ stipulations, which did not address Jones’ post-July 2019 conduct. The

judgment concluded that

[t]here was no substantial and competent evidence to support the

Board’s conclusion that [Jones] had not adequately addressed issues

of dishonesty as part of her recover from substance use disorder, and

in fact all of the evidence presented at the hearing was that she had

been rigorously honest regarding her substance use disorder and

diversion since entering into recovery.

The court found that “[a]ll of the evidence introduced at the disciplinary hearing

supports the conclusion that [Jones] has been rehabilitated,” and that “the Board

has improperly ‘ignore[d] the facts and circumstances of [Jones’] rehabilitation.’”

(Quoting Gard v. State Bd. of Registration for the Healing Arts, 747 S.W.2d 726,

729 (Mo. App. W.D. 1988)).

Separately, the circuit court found that the Board’s offer of two different

settlements, under which Jones would be permitted to continue practicing,

demonstrated that the Board had acted arbitrarily and capriciously in later

revoking her license.

The circuit court’s judgment remanded the case to the Board, and ordered

the Board to issue Jones a nursing license under a three-year term of probation.

The Board filed a notice of appeal on February 27, 2023. On April 3, 2023, in

compliance with the circuit court’s judgment, the Board entered an order placing

Jones’ nursing license on probation for three years.

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Discussion

I.

Before turning to the merits of the Board’s decision, we address Jones’

claim that the appeal is moot because the Board voluntarily complied with the

circuit court’s judgment and granted her a probated license.

“A cause of action is moot when the question presented for decision seeks a

judgment upon some matter which, if the judgment was rendered, would not

have any practical effect upon any then existing controversy.” Odermann v.

Mancuso, 670 S.W.3d 461, 469 (Mo. App. W.D. 2023) (citation and internal

quotation marks omitted). “In deciding whether a case is moot, an appellate

court is allowed to consider matters outside the record.” Stevens Fam. Tr. v.

Huthsing, 81 S.W.3d 664, 667 (Mo. App. S.D. 2002).

In a related vein, “[a] party may estop himself from taking an appeal by

performing acts after the rendition of the order or judgment which are clearly

inconsistent with the right of appeal.” In re Est. of Pethan, 475 S.W.3d 722, 727

(Mo. App. W.D. 2015) (citation and internal quotation marks omitted).

Therefore, when a party voluntarily pays a monetary judgment, or voluntarily

surrenders possession of real property, those actions may prevent that party from

prosecuting an appeal. Id.; see also, e.g., Kinser v. Elkadi, 654 S.W.2d 901, 903

(Mo. 1983); Bravehart Real Est. Co. v. Peters, 157 S.W.3d 231, 233 (Mo. App.

E.D. 2004); St. Charles Cnty. v. Wegman, 90 S.W.3d 142, 144 (Mo. App. E.D.

2002). However, an involuntary act in compliance with a circuit court’s

judgment will not bar an appeal. For instance, a monetary payment may be

deemed involuntary where it is made to prevent the accrual of interest on the

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judgment, or to forestall collection actions when no supersedeas bond has been

posted. Est. of Pethan, 475 S.W.3d at 727-28.

Despite the caselaw dismissing certain appeals where the appellant has

voluntarily complied with a judgment, the Missouri Supreme Court has held that

a State agency is not precluded from prosecuting an appeal where it issues a

license in compliance with a circuit court’s judgment, but could still obtain

effectual relief if the circuit court’s judgment were to be reversed. In Wampler v.

Director of Revenue, 48 S.W.3d 32 (Mo. 2001), the Missouri Supreme Court held

that the Director of Revenue did not voluntarily acquiesce in a circuit court’s

judgment when the Director reinstated a driver’s license, as required by the

judgment, pending appeal. Id. at 34. The Court explained:

In this case, the director was ordered to restore Wampler’s

driving privilege “forthwith.” Complying with this order was not in

any sense voluntary. In this case, effectual relief can still be granted,

even though Wampler’s driver’s license has been returned. The

suspension or revocation could be upheld.

Additionally, the director receives no benefit by complying

with the trial court’s judgment pending appeal. The director also

does not have the option of staying proceedings by filing a bond. If

the director does not return the driver’s license pending appeal, the

director risks being in contempt of court. It would be an absurd

result not intended by the legislature to require that the director risk

being held in contempt of court in order to preserve the right to

appeal in cases such as this.

Not allowing the director to return the driver’s license pending

appeal could be detrimental to persons whose licenses are suspended

or revoked, particularly in cases where the suspension is for a

relatively short period of time. If the director withheld licenses to

avoid “acquiescence” in the judgment, the licensee would be without

driving privileges between the date of the trial court’s judgment and

the time the appeal was completed instead of having his or her

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license and a restored driving record pending appeal. The cases of

those whose licenses are suspended or revoked for a short period

would often become moot through the passage of time and the

expiration of the suspension or revocation before the completion of

their appeal. Alternatively, the driver is faced with the expensive

prospect of swiftly pursuing a contempt action.

These cases are somewhat unusual. The director is forced to

choose between withholding the license of a driver who has possibly

been wrongfully suspended, thereby risking contempt, or returning a

potentially dangerous driver to the streets waiving any right to

appeal. Given this scenario, complying with the court’s order is not a

voluntary act, and the director did not acquiesce in the trial court’s

judgment.

Id. at 34–35.

The Court followed Wampley in Kubley v. Brooks, 141 S.W.3d 21 (Mo.

2004), in which it held that a mother was not estopped from appealing a child-

support order issued by the Department of Child Support Enforcement, even

though she had begun paying the support ordered by the Department while the

appeal was pending. The Court noted that the mother had made the payments

“under threat of further incarceration and contempt,” and declared that “it would

not further public policy to require her to refuse to support her children while her

obligation to do so is being litigated.” Id. at 28.

In light of Wampler, this case is not moot, nor is the Board estopped from

appealing the circuit court’s judgment. As in Wampler, given the nature of the

judgment the Board had no right to a stay of the judgment by filing a supersedeas

bond, and it therefore risked contempt sanctions if it failed to comply. In such

circumstances, Wampler holds that interim compliance with a circuit court

judgment during the pendency of an appeal is not “voluntary.” Moreover, the

parties’ dispute over Jones’ right to practice as a nurse remains ongoing. Even

12

though Jones is presently practicing under a probated license, effective relief

could still be granted if the Board prevailed here, since that probationary license

would be revoked if the Board’s original decision is upheld. Cf. State ex rel.

Lutman v. Baker, 635 S.W.3d 548, 554 n. 8 (Mo. 2021) (petition for writ of

prohibition was not moot, despite disclosure of purportedly privileged

communications, when the Court would be “able to effectuate a partial remedy

because the harm to [the petitioner] is ongoing”). Finally, as in Wampler the

Board should not be discouraged from complying with the circuit court’s

judgment on an interim basis while the appeal is pending. Courts should not

force the Board to deny Jones her license, and presumably cause her to lose her

employment, in order to preserve its appeal rights – such a ruling would cause

Jones to suffer the consequences of a disciplinary order which the circuit court

has found to be unlawful.

The motion to dismiss is denied.

II.

In her first Point, Jones argues that the Board erred in revoking her license

because the Board lacked substantial evidence to support its finding that Jones’

evidence of rehabilitation failed to address the dishonesty or timing of her

misconduct, and because it unreasonably discounted her evidence of

rehabilitation.

“‘In an appeal following judicial review of an administrative agency’s

decision [in a contested case], this court reviews the agency’s decision and not the

circuit court’s judgment.’” Unruh v. State Bd. of Nursing, 618 S.W.3d 634, 636

(Mo. App. W.D. 2020) (quoting Ringer v. Mo. Dep’t of Health & Senior Servs.,

13

306 S.W.3d 113, 114 (Mo. App. W.D. 2010)). “[H]owever, we affirm or reverse

the trial court’s judgment based upon such review of the administrative decision.”

Kubiak v. Mo. State Bd. of Nursing, 667 S.W.3d 230, 235 (Mo. App. W.D. 2023)

(citations and internal quotation marks omitted). Thus, while the party

aggrieved by the circuit court’s decision files the notice of appeal, the party

aggrieved by the agency’s decision files the appellant’s brief, and bears the

burden to show that the agency erred in the first instance. Rule 84.05(e); W.D.

Special Rule 35.

We review the agency’s actions to determine if they “‘are authorized by law,

and in cases in which a hearing is required by law, whether the same are

supported by competent and substantial evidence upon the whole record.’”

Wagner v. Mo. State Bd. of Nursing, 570 S.W.3d 147, 151 (Mo. App. W.D. 2019)

(quoting Mo. Const. art. V, § 18; other citation omitted). We presume that the

agency’s decision was correct. Unruh, 618 S.W.3d at 636.

We will affirm the agency’s decision unless it:

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of

the agency;

(3) Is unsupported by competent and substantial evidence

upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

Wagner, 570 S.W.3d at 151-152 (quoting § 536.140.2).

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This Court “must examine the whole record to determine if it contains

sufficient competent and substantial evidence to support the award[.] . . . An

award that is contrary to the overwhelming weight of the evidence is, in context,

not supported by competent and substantial evidence.” Hampton v. Big Boy

Steel Erection, 121 S.W.3d 220, 222-23 (Mo. 2003). “Likewise, the agency’s

failure to consider important aspects or factors of the issue can support a finding

that the decision was arbitrary and capricious.” Mo. Real Est. Comm’n v. Held,

581 S.W.3d 668, 676 (Mo. App. W.D. 2019) (citation and internal quotation

marks omitted). We review questions of law de novo. Kubiak, 667 S.W.3d at

235.

The Nursing Practice Act, §§ 335.011-335.099, governs the licensure of

nurses in Missouri. Under § 335.066.2, “[a] determination of whether cause

exists to discipline a nursing license is generally made by the [Administrative

Hearing Commission]” in the first instance. Kubiak, 667 S.W.3d at 236. In this

case, the parties stipulated that cause existed for disciplining Jones’ nursing

license under §§ 335.066.2(1), (6), (13), (15), and (25), because she had

unlawfully possessed morphine, a controlled substance.

The Nursing Practice Act provides that, upon a finding of cause for

discipline, the Board “may, singly or in combination, censure or place the person

named in the complaint on probation on such terms and conditions as the board

deems appropriate for a period not to exceed five years, or may suspend, for a

period not to exceed three years, or revoke the license, certificate, or permit.”

§ 335.066.3.

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Despite the wide latitude given to the Board in selecting appropriate

discipline, the purpose of the Board’s power to discipline “is not to punish

misconduct but, rather, to protect the public.” Moore v. Mo. Dental Bd., 311

S.W.3d 298, 312 (Mo. App. W.D. 2010). “Punishment of the offender is not the

purpose of a disciplinary action.” Wasem v. Missouri Dental Bd., 405 S.W.2d

492, 497 (Mo. App. 1966); see also, e.g., Brown v. State Bd. of Accountancy, 588

S.W.3d 519, 523 (Mo. App. E.D. 2019) (“The primary purpose of the Board’s

ability to discipline license holders is not to vindicate the Board’s own dignity

upon being defied, but to protect the members of the Missouri public from

potential harm.”); Kerwin v. Mo. Dental Bd., 375 S.W.3d 219, 232 (Mo. App.

W.D. 2012).

In service of that principle, Missouri courts have held that licensing boards

must consider not only the nature of the misconduct which provides cause for

discipline, but also evidence of the licensee’s rehabilitation and other mitigating

circumstances. Thus, in Gard v. State Board of Registration for the Healing

Arts, 747 S.W.2d 726 (Mo. App. W.D. 1988), this Court set aside the revocation of

a physician’s license by the Board of Registration for the Healing Arts, where the

Board failed to consider the physician’s evidence of rehabilitation. In Gard, a

Missouri-licensed physician was convicted in California for possession and sale of

controlled substances in connection with his medical practice. After serving two

years in a California prison, the physician sought to return to medical practice.

Although the physician presented evidence to the Board of his rehabilitation, the

Board revoked his Missouri license, finding that the physician “‘has offered no

16

substantial justification, mitigation, or showing of rehabilitation for the

aforementioned offenses.’” Id. at 728.

In setting aside the Board’s disciplinary order in Gard, this Court

recognized that license revocation would be warranted “where there is a single act

of conviction of a crime related to the practice of the profession without any

extenuating circumstances.” 747 S.W.2d at 729. The Court held, however, that

the Board had erred by relying on the single fact of the physician’s California

conviction, while failing to take account of the significant evidence of his post-

offense rehabilitation:

What the Board here has done is to ignore the facts and

circumstances of appellant's rehabilitation, including his

services to the California penal institution; his attendance at post

graduate courses to renew his medical practice; the reinstatement of

his California license to practice medicine; the letters from medical

practitioners, officials and citizens of Missouri and California

attesting to his high medical ability, and good moral character

relating to his rehabilitation; that, in 1980, on returning to Missouri,

he practiced his profession in the small communities of Sturgeon

and Centralia, where he began to establish himself as a family

practitioner, built up a good reputation, made friends, found

rewarding extracurricular activities, and provided better medical

care than the population of the areas had been receiving. . . .

This case is not one of a single subjective fact, that of

appellant's California conviction, conclusive in itself,

which should bar him from practicing his profession.

Rather, the objective standards, replete in the record, of appellant's

rehabilitation, which are undisputed, may be used to determine,

under the particular facts here, whether the Board abused its

discretion in revoking his license. This court holds that there was

such an abuse.

Id. at 729-30 (first and second emphasis added; citation omitted).

17

Gard relied heavily on State Board of Registration for Healing Arts v.

Finch, 514 S.W.2d 608 (Mo. App. 1974). In Finch, this Court held that the

Administrative Hearing Commission had properly held that a physician was

entitled to sit for the State’s licensing exam, even though he had previously been

convicted of first-degree murder, and sentenced to life imprisonment, in

California. Id. at 610. The Board of Registration for Healing Arts sought judicial

review, and both the circuit court, and this Court, affirmed the Commission’s

order.

In asking this Court to set aside the Commission’s order finding the

physician eligible for licensure, the Board placed “heavy emphasis upon the

viciousness and depravity of Dr. Finch's crimes.” 514 S.W.2d at 615. The Board

contended that “the evidence relating to the convictions so eclipses any good

inferences to be drawn from [the physician’s] post-conviction conduct as to make

the decision of the Commission contrary to the overwhelming weight of the

evidence.” Id. at 616.

Finch rejected the Board’s contention that the seriousness of the

physician’s crime – first-degree murder – could alone disqualify him from

licensure. Instead, the Court made clear that the Administrative Hearing

Commission was required to consider mitigating evidence, beyond the

physician’s underlying criminal offense:

Dr. Finch’s crimes, which the Board would emphasize to the

exclusion of everything else, occurred 15 years ago and his conviction

was 13 years ago. Since that time, he has conducted himself in an

exemplary manner and according to all of the evidence he appears to

have sincerely repented and has accomplished a solid rehabilitation.

The Commission would have been seriously remiss if it

had followed the course apparently advocated by the

18

Board of refusing to give any weight to the impressive

evidence of rehabilitation contained in the record.

The loftiest goal of penology is rehabilitation of the fallen

member of society, and the courts have been highly sympathetic to

that goal and have been strongly inclined to give effect to sincere

rehabilitation when it occurs. . . . [¶] . . . ‘The duty of [the

Commission] in the instant case was to determine

whether or not the applicant was of good moral character

at the time [he] applied for the licenses. It would of course be

proper to consider a former conviction, but that would not

necessarily prevent the issuance of a license.’

514 S.W.2d at 616 (emphasis added; citations omitted).

In this case, Jones presented substantial evidence of her post-misconduct

repentance, rehabilitation, and recovery. The Board purported to address that

evidence, stating that:

It is certainly commendable the things [Jones] has done since being

terminated [ ] in an effort to address her substance use disorder. But

the most troubling aspect to her disorder and prior conduct, which

the Board finds has not been adequately addressed in her evidence of

rehabilitation, is the degree of dishonesty and how her wrongdoing

began so soon after she received her nursing license.

The Board’s conclusion that Jones’ evidence of rehabilitation was

insufficient to address her “degree of dishonesty” is unsupported by substantial

evidence. During the Board hearing, Jones described in detail the extent of her

drug use, and the means by which she stole medications from the hospital where

she worked, and concealed her theft. Jones acknowledged her dishonesty – to

her employer, to her family, and to her husband – and testified that she had

shared details of her drug use with her husband and family as part of her recovery

process. Jones’ substance abuse counselor testified that Jones was candid about

her drug use during therapy sessions. Jones’ supervisor from the dialysis center

19

where she worked testified that Jones fully disclosed her history of substance

abuse and treatment before she was hired; Jones explained that she did so

because she felt that “being honest and open about it was the best thing to do.”

Notably, the only evidence offered by the Board at the hearing was a

stipulation in which Jones admitted to the acts which led to the termination of

her employment, and admitted that those actions were sufficient cause for

discipline under multiple separate provisions of the Nursing Practice Act. The

Board’s own evidence reflects that Jones has acknowledged and accepted

responsibility for her past actions.

The Board’s order did not find Jones’ testimony, or any of her evidence, not

to be credible; indeed, its order called her recovery efforts “commendable.”

While “[a]n administrative agency may base its decision solely on a finding of

lack of credible testimony, though such testimony is uncontradicted or

unimpeached . . ., the [Board] may not arbitrarily disregard or ignore undisputed

testimony of a witness not shown to have been impeached or disbelieved by the

[Board].” Mo. Church of Scientology v. State Tax Comm’n, 560 S.W.2d 837, 843

(Mo. 1977); see also, e.g., Lusher v. Gerald Harris Constr., Inc., 993 S.W.2d 537,

545 (Mo. App. W.D. 1999) (“Only if the agency makes a specific finding that

undisputed or unimpeached evidence is incredible and unworthy of belief may it

disregard such evidence.” (citations omitted)); Hay v. Schwartz, 982 S.W.2d 295,

302 (Mo. App. W.D. 1998).

Given Jones’ substantial evidence of her candid and enthusiastic

participation in her substance abuse treatment program (including during

numerous individual, group, marital, and family counseling sessions), as well as

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the lack of any evidence from the Board suggesting deficiencies in Jones’

treatment, the Board’s finding that Jones’ rehabilitation program failed to

address her “degree of dishonesty” is not supported by sufficient competent

evidence in the record.

The Board’s order also concluded that Jones had failed to present evidence

that her rehabilitation adequately addressed “how her wrongdoing began so soon

after she received her nursing license.” It is unclear how the Board expected

Jones’ rehabilitation to address this issue. The timeline of events (Jones’

graduation from nursing school, her employment at Mercy Hospital East, her

receipt of her nursing license, the commencement of her drug use, and the

hospital’s discovery of her drug use) consisted of historical facts which could not

be altered. From all that appears, Jones candidly disclosed the nature, extent,

and timing of her drug use during her treatment, and during the disciplinary

proceeding. The temporal proximity between Jones’ initial licensure, and the

beginning of her drug use, was an immutable fact. As Jones’ brief contends,

“there is nothing that Jones could ever do to change when she first started

diverting”; if the date her drug use began were itself disqualifying, “Jones could

never be considered rehabilitated, no matter how long she remains sober or how

sincerely she has thrown herself into the recovery process.”

By stating that Jones’ rehabilitation had failed to address the fact that her

drug use began so soon after her licensure, the Board was essentially focusing

exclusively on the nature of Jones’ underlying misconduct, and disregarding her

extensive, years-long rehabilitation efforts. If the commission of first-degree

murder does not prevent a physician from being licensed in Missouri (see Finch,

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514 S.W.2d 608), Jones’ misconduct was not so heinous as to permanently

disqualify her from holding a nursing license, without consideration of her

extensive, documented efforts at rehabilitation. As an example, we have upheld

the award of an unrestricted license to a physician: who began writing herself

false prescriptions for controlled substances months after graduating from

medical school; relapsed after undergoing treatment and being given a second

chance by her employer; and continued her drug use and forging of prescriptions

until her arrest over four years later. State Bd. of Registration for the Healing

Arts v. Trueblood, 368 S.W.3d 259, 260 (Mo. App. W.D. 2012). As in this case,

the physician in Trueblood began misusing her privileged access to controlled

substances shortly after receiving that access. As compared to the circumstances

in Trueblood, however, Jones’ substance abuse was substantially less prolonged,

involved more limited deceptive practices, and did not continue or recur after

Jones’ initial admission to a treatment program.

The purpose of professional license disciplinary proceedings is “not to

punish misconduct but, rather, to protect the public.” Moore, 311 S.W.3d at 312.

As Finch explains, the issue in a disciplinary hearing centers on the licensee’s

fitness for licensure at the time of the hearing. As Finch and Gard instruct,

where the hearing takes place long after the licensee’s underlying misconduct, it

is improper to focus solely on the underlying events without considering

significant evidence of intervening rehabilitation and repentance. Yet, although

the Board purported to acknowledge Jones’ rehabilitation, and even labeled her

actions “commendable,” it justified the revocation of her license based solely on

the severity of the underlying conduct. Jones’ underlying misconduct was

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undeniably serious, and justified discipline. Nevertheless, the Board’s failure to

seriously weigh the undisputed evidence of her rehabilitation was arbitrary and

capricious, and unsupported by substantial evidence.

Point I is granted.

III.

In her second Point, Jones contends that she proved that the Board’s

revocation of her license was arbitrary and capricious, based on the Board’s

proposal of two different settlements under which Jones would be permitted to

continue practicing.

Our grant of Jones’ first Point, standing alone, justifies affirmance of the

circuit court’s judgment. It is accordingly unnecessary for this Court to address

the circuit court’s alternative holding, which relied on the Board’s settlement

proposals.

Conclusion

We affirm the judgment of the circuit court, which set aside the Board’s

revocation of Jones’ nursing license, and ordered that the Board grant her a

Registered Professional Nursing license, subject to a three-year probationary

term on conditions specified in the circuit court’s judgment.

________________________

Alok Ahuja, Judge

All concur.

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