Report of Regents Professional Practice Executive Session Committee to The Board of Regents

Your Professional Practice Committee held its scheduled meeting on July 11, 2016.  All members were present, except Regent Wade S. Norwood who was excused.  Chancellor Betty S. Rosa was 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 3 cases. In addition, your Committee recommends, upon the recommendation of the Committee on the Professions, that 42 consent order applications, including 2 cases applying for the annulment of a license, and 21 surrender applications be granted, and further recommends that 2 summary suspension applications be granted. [PPC EXS (A) 1-4]

In the case of Karen S. Burke, Registered Professional Nurse, Calendar No. 27897, we recommend that the recommendation of the Regents Review Committee as to the recommendation rendered by the hearing panel regarding the penalty to be imposed be accepted and that, in agreement with the hearing panel, respondent’s license to practice as a registered professional nurse in the State of New York therefore be revoked as hereafter set forth; that the recommendation of the Regents Review Committee as to the findings of fact and determination rendered by the hearing panel be accepted, except as modified as follows: finding of fact numbered five of the hearing panel be modified by deleting the last portion of this finding of fact starting with the words “been directed.” and ending with the words “never placed on probation. (T. p. 17)” and by substituting therefor the words “agreed to by respondent”, and by deleting the word “responded” on the second line of this finding of fact and by substituting therefor the word “respondent”; and the determination of the hearing panel as to the second specification be modified by deleting the first full paragraph on page six of the report of the hearing panel and substituting therefor the following:

Based upon the Amended Statement of Charges attached to the Vote and Order in this matter and denominated as “Exhibit 1”, respondent is not guilty of the second specification in the amended charges.  The charges used by the Regents Review Committee and shown as “Exhibit A of the Report Of The Hearing Panel” do not reflect the amended charges accepted into the record during the hearing.  Petitioner incorrectly provided such “Exhibit A” to the Regents Review Committee during its meeting.  A review of the record shows that, at the hearing before the hearing panel, petitioner withdrew its original allegation that respondent had violated 8 N.Y.C.R.R. §29.1(b)(14)  because she had violated the probation imposed upon her in term of probation numbered two.  Petitioner disclaimed this theory that respondent had violated the probation that was imposed upon her and maintained instead that respondent was “never placed on probation” and, therefore, she never violated any probation.  We disagree. 

As the Board of Regents determined, in granting respondent’s Application For Consent Order under Calendar No. 24259, respondent was placed on probation which commenced upon her “return to practice in the State of New York”.  The fact that respondent did not give the notice of her return to practice that she agreed to provide does not enable her to avoid serving her imposed probation.  When respondent returned to the practice of her profession, as found by the hearing panel, she was required to serve her period of probation and comply with all the terms of her probation, including term of probation numbered two.  Although the original Statement of Charges asserted respondent’s violation of probation as the basis for the second specification of the charges, the Amended Statement of Charges did not rely upon nor press this theory.  Instead, the substituted theory relied upon by petitioner in the second specification in its Amended Statement of Charges, and the only theory remaining before us in this matter concerning the second specification, asserted that respondent violated a portion of the prior “Order” that was not based upon her probation.  However, 8 N.Y.C.R.R. §29.1(b)(14), which relates to “violating any term of probation or condition or limitation imposed on the licensee by the Board of Regents pursuant to Education Law, Section 6511”, does not define unprofessional conduct so broadly and, in any event, petitioner has not proven this amended charge based upon respondent’s mere breach of her agreement to provide notice.  The text of this rule defining unprofessional conduct requires petitioner to prove that respondent either violated a term of probation or a condition or limitation imposed upon her by the Board of Regents pursuant to Education Law §6511.  See, Matter of Michael R. Drogin, Calendar No. 26848.  Here, the Amended Statement of Charges does not allege and the evidence does not establish a violation that meets the requirements set by the Board of Regents in its rule, and that respondent’s license to practice as a registered professional nurse in the State of New York be revoked upon the first specification of the amended charges of which respondent has been found guilty.

These recommendations are made following the review of 68 cases involving nineteen registered professional nurses, eight licensed practical nurses, seven licensed practical nurses who are also registered professional nurses, five certified public accountants, four chiropractors, three dentists, two pharmacists, two professional engineers, two veterinarians, one acupuncturist, one architect, one licensed clinical social worker, one marriage and family therapist, one occupational therapist, one pharmacy, one physical therapist, one psychologist, and one respiratory therapist.

Restorations

Your Committee recommends the following:

That the application of Gangadhar Madupu for the restoration of his license to practice as a physician in New York State be denied. [PPC EXS (A) 5]

That the application of Mikhail Makhlin for the restoration of his license to practice as a physician in New York State be denied. [PPC EXS (A) 6]

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 July 11, 2016, copies of which have been distributed to each Regent.