For licensed health professionals such as nurses, midwives, and physicians, a recent opinion by the Maryland intermediate appellate court drives home the importance of keeping your information, including your mailing address, current with your state licensing board.
In Board of Nursing v. Sesay, the court upheld the discipline of a nurse who did not appear for a hearing on a complaint filed against her, even though she did not receive the notice of the hearing and the Board’s letters were returned as undeliverable. The court faulted the nurse for neglecting her legal duty to notify the licensing board of her change of address and determined that the board had done what was required to put the nurse on notice of the hearing. Indeed, the court said that if it ruled otherwise, those subject to such hearings could avoid all accountability simply by being unreachable.
The case began in December 2010, when a parent filed a complaint with the Maryland State Board of Nursing alleging that Ms. Sesay, a licensed practical nurse, provided her son with deficient in-home overnight medical care. The complaint also alleged that the nurse had falsified time records and forged the parent’s signature.
After investigating the complaint, the Board issued formal charges against Ms. Sesay and sent them via first-class and certified mail to two known addresses. Five days later, Ms. Sesay responded, requesting an evidentiary hearing and providing a different address as her then-current mailing address, as well as two phone numbers. Approximately one year later, Ms. Sesay moved to yet a third address, but failed to notify the Board of this change. The Board subsequently mailed a hearing notice to Ms. Sesay’s last-known, but not current address via first-class and certified mail. Both notices were returned as “undeliverable.”
The day of the hearing arrived, but Ms. Sesay did not. The Board proceeded with the evidentiary hearing in her absence and subsequently issued its final decision, which was mailed to Ms. Sesay at her current address (one Ms. Sesay supplied with her intervening license renewal application). The final decision ordered that Ms. Sesay’s license be placed on probation for at least 3 years, subject to a number of conditions and restrictions. The nurse challenged the discipline on the ground that she did not receive notice of the hearing, but the Board rejected her argument. Ms. Sesay appealed the Board’s decision to the Circuit Court for Montgomery County, which sided with the nurse and ordered the Board to schedule a new evidentiary hearing. The Board then appealed the Circuit Court’s decision to the Court of Special Appeals of Maryland.
On appeal, the Board argued that it had complied with all statutory requirements in issuing notice of the evidentiary hearing, while Ms. Sesay had not fulfilled her legal obligation to notify the Board of her address change. Ms. Sesay contended that the Board had not met its constitutional obligation to provide “due process” (i.e., notice and an opportunity to be heard) because the Board knew that she had not received the notices and did not take other reasonable steps to locate her.
The appeals court noted that due process does not require the Board to show that “it provided actual notice; rather, it must show that its notice was ‘reasonably calculated’ to provide notice,” and added that notice by mail is generally presumed to be constitutionally sufficient. The Court observed that the Board sent the notice to Ms. Sesay via both certified and first-class mail, and pointed out that Ms. Sesay was aware of the Board’s pending charges against her when she changed addresses. This last factor seemed especially important to the Court’s determination:
Adopting Ms. Sesay’s argument could provide an incentive to licensees in the midst of administrative proceedings in which charges have been brought against them—or even before any such proceedings commence if they believe charges may be brought—to fail to update their address with the appropriate regulatory body. By doing this, the licensee would be able to prevent the administrative body from demonstrating proper notice, and as a result, guarantee them more time, an additional hearing, or perhaps a way to avoid the charges altogether.
While the Sesay decision could still be appealed to Maryland’s highest court, it should be treated as binding law for now. The decision is important for Maryland health care practitioners who may at some time be subject to a complaint or discipline.
Sharon Krevor-Weisbaum often represents health care professionals who are involved in Board licensure actions.