Penelope Lankheim appeals from a decision of a single justice of this court affirming an order of the Board of Registration in Nursing (Massachusetts board) suspending Lankheim's nursing license for five years. We affirm.
Background. a. Florida discipline. Lankheim received a registered nursing license in Florida in 1976. In 2003, pursuant to a complaint filed by the Florida Department of Health, an administrative law judge in Florida found that Lankheim had been dismissed from a graduate nursing program in Florida in part because she had failed a clinical course; that she falsely represented to a practicing physician that she was still enrolled in the graduate program in order to obtain his agreement to serve as her preceptor for the clinical course that she had failed; that she saw patients under the physician's supervision, and prescribed treatment plans and medication; and that she disclosed to third parties confidential medical information of some of the patients. The administrative law judge concluded that Lankheim had violated various rules of professional conduct by making fraudulent representations relating to the practice of nursing (i.e., misrepresenting herself as a current nursing graduate student); by practicing as an unlicensed advanced registered nurse practitioner; and by violating rules governing patient confidentiality.
At a hearing at which Lankheim participated, the Florida Board of Nursing (Florida board) voted to adopt the findings and conclusions of the administrative law judge, and to impose the penalties recommended by the judge, which included professional reprimand and probation, and a $1,000 fine. In lieu of those penalties, however, Lankheim offered voluntarily to relinquish her license permanently. The board made clear to Lankheim at the time that such a relinquishment would be considered discipline.
b. Massachusetts discipline. Lankheim has held a license in registered nursing
In suspending Lankheim's license, the Massachusetts board concluded that the facts underlying the Florida proceedings — the unauthorized practice of nursing, deceiving a physician, and violating patient confidentiality — warranted discipline in Massachusetts because they constituted violations of G. L. c. 112, §§ 74, 74A, 76, 80B; 244 Code Mass. Regs. § 9.03(5) and (47) (2000); the Massachusetts board's Good Moral Character Disciplinary Policy; and the principles of Sugarman v. Board of Registration in Med., 422 Mass. 338, 342 (1996); Kvitka v. Board of Registration in Med., 407 Mass. 140, 143, cert. denied, 498 U.S. 823 (1990); and Raymond v. Board of Registration in Med., 387 Mass. 708, 713 (1982).
Discussion. The court reviews the Massachusetts board's decision directly, even though the appeal is from a decision of a single justice. See Weinberg v. Board of Registration in Med., 443 Mass. 679, 685 (2005). The court may revise or reverse the Massachusetts board's decision only if the petitioner shows that the decision is flawed in terms of the standards for review articulated in G. L. c. 30A, § 14 (7). See id. See also G. L. c. 112, § 64. Lankheim has not satisfied that burden.
Lankheim raises several claims on appeal. First, she argues that the final order of the Florida board does not constitute discipline that can serve as the basis of reciprocal discipline in Massachusetts because (1) the Florida board's decision included no findings of fact, (2) Lankheim did not understand that the voluntary relinquishment of her license in Florida would constitute discipline, (3) she did not admit to any wrongdoing, and (4) she did not agree not to contest the allegations against her. The first three claims are unsupported
Second, Lankheim argues that the Massachusetts board is estopped from disciplining her because it had notified her in a letter, while the allegations were pending in Florida, that it would not, based on the then-unresolved allegations in Florida, open its own proceeding against her Massachusetts nursing license.
Third, Lankheim claims that the facts underlying the Florida proceeding do not warrant discipline in Massachusetts because (1) the Massachusetts board, in its letter to Lankheim (see note 6, supra), had determined those facts would not warrant discipline, and (2) the facts found by the administrative law judge in Florida were not supported by the evidence. As discussed above, the Massachusetts board made no adjudication of facts in its letter to Lankheim. As for her challenge to the evidentiary support for the facts found by the administrative law judge in Florida — and, by extension, the basis for the Massachusetts board's decision — she was free to challenge the evidence before the Florida board and chose not to do so. She may not do so now. See Anusavice v. Board of Registration in Dentistry, supra at 795-796.
Lankheim also argues that the Massachusetts board's decision is arbitrary and capricious for various reasons. First, she claims the Massachusetts decision was based in part on facts not in evidence, namely, a voluntary relinquishment of license form that Lankheim had submitted to the Florida board, which allegedly bore on whether Lankheim was aware that the relinquishment of her Florida license would be treated as discipline. There was, however, specific testimonial evidence before the Massachusetts board regarding the relinquishment
Finally, Lankheim claims that the sanction imposed by the Massachusetts board is excessive. She incorrectly refers in her brief to the sanction as "indefinite suspension," i.e., the sanction originally imposed by the Massachusetts board. The final sanction imposed, however, following the second remand from the single justice, was a suspension of five years. Comparable cases support that sanction. See Matter of Michaelson, No. RN-03-199 (2008); Matter of Njoki, No. LN-07-092 (2008); Matter of McLean, No. LN-02-179 (2006); Matter of Hile, No. RN-00-054 (2004); Matter of Luisi, No. RN-93-152 (1994).
Conclusion. The decision of the single justice (in effect a judgment) affirming the Massachusetts board's order suspending Lankheim's nursing license for five years is affirmed.
So ordered.