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Augustus v. Oregon State Board of Nursing

Court of Appeals of Oregon

March 22, 2017

Debra Rae Leslie AUGUSTUS, Petitioner,
v.
OREGON STATE BOARD OF NURSING, Respondent.

          Submitted September 10, 2015

         Oregon State Board of Nursing 1201497; A156473

          Laura K. Schultz fled the briefs for petitioner.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

          HADLOCK, C. J.

         Petitioner seeks judicial review of a final order of the Oregon State Board of Nursing suspending petitioner's psychiatric mental-health nurse-practitioner certificate for 60 days. On review, we write only to address the arguments that petitioner makes in conjunction with her first assignment of error, in which she challenges the board's determination that she committed fraud.[1] The board contends, among other things, that each of those arguments is unpreserved. We agree and, accordingly, affirm.

         We state the facts relevant to petitioner's first assignment of error as the board found them.[2] At the time of the events giving rise to this case-events that involve petitioner's interactions with one particular patient-petitioner was a certified psychiatric mental-health nurse practitioner. Petitioner provided counseling and medication management for the patient beginning in December 2008. The patient was a minor when he began treatment but turned 18 while still under petitioner's care.

         At the patient's final session with petitioner in December 2010, petitioner advised the patient's mother that his account balance would need to be paid in full by the time of his next appointment, in January 2011. The patient missed the January 2011 appointment. Later that month, petitioner left a voicemail message on the patient's mother's phone, reminding her of the balance due on the account and advising her that the patient now owed an additional fee for the missed appointment. Another appointment for the patient was scheduled in February. Two days before that scheduled appointment, petitioner again left a voicemail message with the patient's mother reminding her that the balance on the account needed to be paid before the appointment. On the morning of the scheduled appointment, petitioner left a message for the patient's mother, cancelling the appointment because of the unpaid balance. Later that day, the patient's stepfather left a voicemail for petitioner, informing her, in abusive terms, that she would not be receiving payment and that the patient would seek treatment elsewhere.

         The patient made no further attempts to reschedule his appointment with petitioner, and he began receiving treatment elsewhere. A few days after the cancelled February appointment, petitioner left a voicemail message on the patient's mother's phone, stating, in part:

"[Y]ou have a balance due. You need to be accountable and pay your bill. Um and uh then I will release those records. Um but it will not happen until I can get to it, and um you do need to stop calling me, um don't make any threats because that um *** you know I can go ahead, too and call the police about you know, your husband talked to me, the last time on the phone. So um pay the balance, find out, be accountable, what the amount is. I have it with me right now. And um it'll all work out just fine. Bye, Bye."

         Petitioner had no further communication with the patient's mother or stepfather.

         Over the next year, the patient's new care provider attempted unsuccessfully to obtain the patient's records from petitioner. The patient also asked petitioner to send his records to the Navy, but petitioner informed him that he would need to sign a release and pay for copies of his records. In January 2012, the patient's mother filed a complaint with the "federal Office for Civil Rights, " asserting that petitioner had wrongfully refused to provide the patient with his records until he paid the balance on his account.

         In late 2012, the board issued a "Notice of Proposed 60 Day Suspension of Nurse Practitioner Certificate" to petitioner, based on allegations of fraud and conduct derogatory to the standards of nursing in accordance with ORS 678.111 and OAR 851-045-0070.[3] At petitioner's request, a hearing on that notice was held before an administrative law judge (ALJ). Petitioner appeared without counsel and testified on her own behalf. Following the hearing, the ALJ issued a proposed order that determined, among other things, that one of petitioner's February 2011 ...


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