Kenya Walzer v. Missouri Board of Nursing

Jefferson City, Missouri civil litigation lawyer represented the Plaintiff on an administrative law appeal.

Walzer has a long history and repeated pattern of nursing license discipline by the Board, receiving disciplinary probation with specific terms from the Board and then violating those terms.



Walzer was originally licensed as a licensed practical nurse ("LPN") by the Board in 2000 and later licensed as a registered nurse ("RN") in 2006. In 2012, the Administrative Hearing Commission ("AHC") found cause to discipline her license due to her possession of a controlled substance. For this misconduct, the Board placed her license on probation for three years. The probation order mandated Walzer submit to random drug testing: she was ordered to check in with National Toxicology Specialists ("NTS") on a daily basis and to provide a urine sample on the days that NTS selected her for testing.



Five months into this probation period, on August 5, 2013, the Board's General Counsel filed a probation violation complaint, which alleged Walzer did not check in with NTS on fifty-five days and failed to submit a sample as required on five days. After a hearing, the Board revoked Walzer's original probation and placed her license on a new four-year probation term, beginning on September 24, 2013.



Two years into this second probation term, on October 16, 2015, the Board's General Counsel filed a probation violation complaint, which alleged Walzer did not check in with NTS on 187 days and failed to submit a sample as required on twenty-one days. After a hearing, the Board censured her license but placed her back on probation.



On July 12, 2017, the Board's General Counsel filed another probation violation complaint. After a hearing, the Board again found numerous probation violations: twenty-three failures to check in; two failures to submit a sample when required; two submissions of diluted samples, as determined by suspiciously low creatinine levels; and one positive test for four different controlled substances (lorazepam, oxycodone, marijuana, and oxymorphone) that Walzer did not have a valid prescription to use. The Board revoked Walzer's license.



On May 14, 2019, Walzer applied for an RN license by examination. The Board rejected her application, and Walzer appealed to the AHC. There, the Board argued for the AHC to either uphold the Board's rejection of Walzer's application for license by examination or, alternatively, to grant Walzer's license application subject to a five-year probation period with terms including the three relevant to this appeal, which relate to the consumption of various substances:



Walzer shall contract with the Board's third-party administrator of drug and alcohol testing and comply with that contract;



Walzer shall not use or consume any drugs not lawfully prescribed;



Walzer shall not use or consume alcohol in any form.



Conversely, Walzer requested either that her license application be granted without any probation terms or that the AHC modify the Board's requested terms to accommodate her alleged substance abuse disorder, which Walzer argued was purportedly required by the Americans with Disabilities Act (ADA).



On August 13, 2020, the AHC granted Walzer's nursing license application but not in the form requested by Walzer; instead, the AHC's 2020 ruling was expressly contingent on Walzer passing the nursing exam and expressly subject to the probation terms requested by the Board. Further, the AHC declined Walzer's demand for ADA accommodations. Walzer did not seek judicial review of the AHC's ruling despite her prior objection to the probation terms requested by the Board and the AHC's refusal to consider her affirmative request for ADA accommodations.



Following the AHC's 2020 ruling, the Board issued an order on September 10, 2020, adopting the AHC's probated licensure to Walzer and clarifying how the probation terms would be administered.[2] The Board's probation terms relevant to this appeal outlined the procedure for Walzer's drug and alcohol testing: clarifying that a urine specimen with a creatinine level below twenty would be considered a diluted result and a presumed positive test for prohibited substances, resulting in a violation of probation; providing guidelines for avoiding a diluted result; mandating that Walzer check in with NTS between 5:00 a.m. and 4:00 p.m.; and prohibiting the consumption of several other products, including poppy seeds, non-alcoholic beer, and foreign tea.[3]



Walzer met with the Board on February 22, 2021, to go over the terms of the Board's September 10, 2020 probated license order; she signed the order on the last page and initialed every paragraph detailing how the probation terms would be administered to signify her understanding of the procedures surrounding her probation terms and of the expectations for fulfilling them.



On November 1, 2022, the Board's General Counsel filed the current probation violation complaint. The complaint identified three categories of violations: (1) two failures to timely check in with NTS; (2) four diluted test results; and (3) one positive test for alcohol.



At the subsequent probation violation hearing, the Board's General Counsel submitted the following exhibits relevant to this appeal: the AHC's ruling requiring the Board to issue Walzer's license and the Board's order issuing Walzer's license subject to the probation terms; a copy of the Board's order with Walzer's signature at the bottom and hand-written initials next to each probation term; the complete record of Walzer's drug test results since she received her current RN license in 2021, documenting her two untimely check-ins, her four diluted samples, and her positive test for alcohol; an affidavit of NTS's Medical Review Officer,[4] who contacted Walzer regarding her positive alcohol test result and determined that Walzer could not provide a medical reason or other reasonable explanation to excuse the positive test result for alcohol.



Walzer submitted two groups of exhibits: (1) a screenshot of a webpage, which showed she accessed NTS's web check-in on the day of one of her two untimely checkins but not the time of her check-in, and (2) positive performance reviews from her supervisor. After the exhibits were admitted, Walzer declined to present any testimony through direct examination, but the Board's General Counsel cross-examined her.



During the cross-examination, Walzer asserted that her low creatinine levels in some samples were the result of a diuretic she had been prescribed and took on a daily basis; however, when pressed on why a daily medication would result in significant dayto-day variance in her creatinine levels, Walzer could not provide an explanation, and she

provided no expert testimony or documentation to account for the variance. Walzer denied consuming any alcohol since 2015, but she could not provide any explanation for her positive test for alcohol. When Walzer recounted her conversation with the Medical Review Officer regarding her positive urine test, she claimed that he asked her to submit to a PEth test-a blood test capable of detecting any alcohol consumption from the prior four weeks. Walzer asserted that this test and another PEth test, which followed a diluted sample, came back negative. But, Walzer did not provide any documentation of either negative PEth test and, instead, relied only upon her testimony as proof of the existence of such alleged negative tests.



From this evidence, the Board concluded that Walzer's responses were not credible and found that she violated the terms of probation by: (1) consuming alcohol; (2) checking in untimely twice; and (3) submitting four diluted samples. The Board revoked Walzer's license.



Walzer requested judicial review of the Board's decision before the circuit court, arguing that the Board's 2020 probation order was unenforceable because its terms exceeded the probation conditions imposed by the AHC. The circuit court noted that both the AHC's 2020 ruling and the Board's 2020 order prohibited use of alcohol, that Walzer had tested positive for alcohol, and that she had a long history of violating her license's probation terms. Thus, the circuit court affirmed the Board's discretionary decision revoking Walzer's nursing license.



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ADMINISTRATIVE LAW. NURSING LICENSE REVOCATION. The case addresses an appeal against the Missouri Board of Nursing's decision to revoke a nurse's license due to repeated violations of probation terms related to substance abuse, examining whether the Board's actions were supported by substantial evidence and within its legal authority.



ADMINISTRATIVE LAW. AMERICANS WITH DISABILITIES ACT. The case investigates whether the imposition of alcohol consumption restrictions on the appellant, with no previous alcohol-related disciplinary issues, constitutes unlawful discrimination under the ADA, and whether the appellant waived her right to challenge these terms by not seeking timely judicial review.



ADMINISTRATIVE LAW. APPELLATE REVIEW AND PROCEDURE. The judgment assesses the procedural aspects of contesting administrative decisions, particularly the requirement to challenge administrative rulings within specific timeframes, to avoid such issues being deemed waived on appeal.

Key Phrases Nursing license revocation. Probation violation complaint. Controlled substance possession. Judicial review waiver. Americans with Disabilities Act (ADA) accommodations.

Affirmed