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Reynolds v. Commonwealth

June 21, 2010

MELINDA LAMBERSON REYNOLDS, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF STATE; PENNSYLVANIA BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS; PENNSYLVANIA DIVISION OF PROFESSIONAL HEALTH MONITORING PROGRAMS; PENNSYLVANIA STATE BOARD OF NURSING; BASIL L. MERENDA; LINDA TANZINI AMBROSO; K. STEPHEN ANDERSON; CHRISTOPHER BARTLETT; RAFAELA COLON; KATHLEEN M. DWYER; JUDY A. HALE; SUZANNE M. HENDRICKS; JOSEPH J. NAPOLITANO; ANN L. O'SULLIVAN; JANET H. SHIELDS; AND JOANNE L. SORENSEN; DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is defendants' motion to dismiss plaintiff's amended complaint. Having been fully briefed and argued, the matter is ripe for disposition.

Background

This case arises out of Plaintiff Melinda Lamberson Reynolds's attempts to obtain a license as a registered nurse in the Defendant Commonwealth of Pennsylvania. Plaintiff was a licensed practical nurse ("LPN") and a professional nurse ("RN") in the Commonwealth for over fifteen years. (Amended Complaint (Doc. 9) (hereinafter "Complt.") at ¶ 1). She suffers from chronic opioid drug dependency. (Id.). Plaintiff cannot maintain her nursing license and/or has had her license suspended because defendants refuse to permit her to obtain methadone maintenance treatment for her drug dependency. (Id.).

Plaintiff alleges that methadone is a legal, synthetic opioid drug used medically as an anti-addictive medication for people suffering from chronic opioid drug dependency. (Id. at ¶ 9). The efficacy of methadone treatment, plaintiff contends, is well-established. (Id. at ¶ 10). Government agencies such as the National Institutes of Health and the Office of National Drug Control Policy have found methadone an effective means of reducing patients' cravings for illegal drugs. (Id. at ¶¶ 11-12). Moreover, methadone does not impair cognitive function or limit mental capability, intelligence, or the ability to maintain employment. (Id. at ¶ 13).

Plaintiff also alleges that opioid dependency is a disability within the meaning of the Americans with Disability Act ("ADA") and the Rehabilitation Act ("RA"). (Id. at ¶ 14(a)). Methadone maintenance treatment, she insists, is a reasonable accommodation for that disability, allowing opioid-dependent persons to perform the essential functions of a job like nursing safely and skillfully. (Id. at ¶ 14(b)). Allowing a person with an opioid dependency to use methadone maintenance as an accommodation also does not pose a risk to the nurse's patients or fellow workers. (Id. at ¶ 14(c)).

Plaintiff is qualified by training and experience to work as a licensed practical nurse or a professional nurse. (Id. at ¶ 15). She was licensed for over 25 years as a nurse, first in New Jersey and then in Pennsylvania. (Id. at 18). New Jersey granted her an LPN license in 1980 and Pennsylvania in 1991. (Id.). In 2000, the Pennsylvania Bureau of Nursing granted plaintiff an RN license. (Id.). Plaintiff is also a person with a disability because: (a) she has a past history of opioid drug dependency in the 1970s and 1980s; (b) she is not currently engaging in the illegal use of drugs; (c) she is currently participating in a supervised rehabilitation program; and (d) her past history of dependency and overall medical status places her at risk of future illegal drug use, and this risk is minimized or avoided by methadone treatment. (Id. at ¶ 17). Opioid dependency is a chronic condition, meaning that persons like plaintiff are vulnerable to returning to drug use under stressful conditions. (Id. at ¶ 20). In 1997, plaintiff became concerned that she would resume her dependence on illegal opioid drugs, and sought treatment through methadone maintenance so that she could continue her sobriety and employment as a nurse.

(Id. at ¶ 21). Since 1997, plaintiff has received this therapy at various clinics. (Id. at ¶ 24-25). Plaintiff maintains that methadone is a safe and effective treatment, and that her performance as a nurse has not suffered during her methadone therapy. (Id. at ¶¶ 22-24).

Since 2004, plaintiff has received methadone maintenance treatment from New Directions Treatment Services ("NDTS") in Bethlehem, Pennsylvania. (Id. at ¶ 25). NDTS is accredited by the Commission on Accreditation and Rehabilitation Facilities pursuant to standards for methadone clinics promulgated by the United States Department of Health and Human Services. (Id. at ¶ 26). Under the NDTS program, plaintiff's methadone dose is given her directly by a nurse. (Id. at ¶ 27). She takes these doses both at the clinic and at home. (Id.). The nurse undertakes a weekly visual evaluation of plaintiff, and an NDTS employee evaluates plaintiff at least once a year. (Id.). She meets periodically with a counselor and is screened on-site for drug use on a regular basis. (Id.). Plaintiff has continued to work successfully as a nurse while being treated at NDTS. (Id. at ¶ 28). She has received many letters of recommendation from employers. (Id. At 29).

Since at least 2005, defendants have followed an "unpublished but inflexible" policy of refusing to license or relicense as a nurse any person known to be participating in a methadone maintenance program. (Id. at ¶ 30). The defendants also refuse to approve any methadone provider as a Division of Professional Health Monitoring-Approved provider. (Id.). The exact terms of these exclusions are unknown to the plaintiff, since the policy is an unpublished one. (Id. at ¶ 31). Still, the policy, which is followed by the defendants, their subsidiary and component agencies, their agents and employees and others participating with them, has the effect of unlawfully excluding plaintiff and others undergoing methadone treatment from being licensed as nurses. (Id.). The result of these programs is that plaintiff has been "wrongfully, arbitrarily and capriciously excluded" from licensing as a nurse. (Id. at ¶ 32).

Plaintiff also suffers from chronic hepatitis C. (Id. at ¶ 33). She began receiving treatment for this condition in 2005 in the form of legal prescription medications. (Id.). These medications, interferon and ribovarin, caused her to suffer from anemia and exhaustion. (Id.). Plaintiff also had a prescription for Ambien, a sleep aid. (Id.). In February 2005, plaintiff worked for a nurse staffing agency. (Id. at 34). While away from home, plaintiff forgot to bring her Ambien prescription with her and took another prescription sleep aid, Restoril, instead. (Id.). She borrowed the drug from her mother. (Id.). The next day, plaintiff was exhausted, and her supervisor requested that she submit to a drug test. (Id.). The screening showed she had taken Restoril. (Id. at ¶ 36). The tester reported this positive result to the state, though plaintiff's use of the drug was limited to the single occasion of her visit to her mother. (Id. at ¶ 37). Plaintiff was referred to the state's Voluntary Recovery Program, administered by the Bureau of Professional and Occupational Affairs. (Id.). On May 15, 2006, the Department of State filed with the Bureau of Nursing a petition to require plaintiff to submit to mental and physical evaluation. (Id. at ¶ 38). The basis for this petition was that plaintiff had tested positive for the Restoril and been found eligible for a voluntary recovery program, but had not completed that enrollment. (Id. at ¶ 39). The Bureau of Nursing granted the petition, and plaintiff was ordered to undergo a mental and physical examination by George E. Woody, M.D. (Id. at ¶¶ 39-40).

Dr. Woody is a widely recognized authority on drug addiction. (Id. at ¶ 40).

He examined plaintiff on July 20, 2006. (Id. at ¶ 41). During this examination, plaintiff told Dr. Woody about her addiction history and her current methadone treatment. (Id. at ¶ 42). Dr. Woody issued a report dated August 30, 2006 after his examination. (Id. at ¶ 43). This report concluded that plaintiff could "'practice nursing with the requisite skill and safety.'" (Id. at ¶ 44). Dr. Woody also found that plaintiff had responded positively to methadone maintenance. (Id.).

Despite these findings, the Bureau of Nursing initiated a proceeding against plaintiff designed to take away her nursing license. (Id. at ¶ 45). Plaintiff contends that this action was motivated by defendants' "inflexible methadone exclusion policy." (Id.). Defendants did not inform plaintiff that such a policy existed during the license suspension proceeding. (Id. at ¶ 46). Plaintiff alleges that defendants refused to consider methadone maintenance as an accommodation for plaintiff's disability during the license suspension proceeding, and that they refused to consider such treatment as an accommodation now. (Id. at ¶ 47). Board members never gave plaintiff an opportunity "to gain consideration in the license suspension proceeding" for her disability and methadone as an accommodation for it. (Id. at ¶ 48). Plaintiff alleges that no current board members or other defendants are willing to consider restoring plaintiff's license and allowing her to treat her addiction with methadone maintenance. (Id. at ¶ 49).

Authorities initiated the license proceeding against plaintiff on October 5, 2006. (Id. at ¶ 50). On that date, the Prosecution Division of the Office of Chief Counsel of the Pennsylvania Department of State sent plaintiff a letter offering to enter into a settlement agreement. (Id.). Neither that letter nor a settlement agreement proposed to plaintiff contained any mention of a requirement that plaintiff abstain from methadone treatment. (Id. at ¶ 52). The only reference the settlement agreement made to methadone was a reference to Dr. Woody's finding concerning plaintiff's positive response to such treatment. (Id. at ¶ 53). The settlement agreement did require, however, that plaintiff be evaluated by and comply with any treatment requirements imposed by a "PHMP-approved provider." (Id. at ¶ 54). The defendants, however, have never approved any provider of methadone as an a PHMP-approved provider. (Id. at ¶ 55). They did not inform plaintiff--and she could not know--that only those providers who required abstention from methadone could be PHMP-approved. (Id. at ¶ 56).

Plaintiff signed the settlement agreement. (Id. at ¶ 57). She did so because the agreement allowed her to keep working, and did not state that she would be required to quit using methadone maintenance. (Id.). The Bureau of Nursing entered an order adopting the agreement on January 4, 2007. (Id. at ¶ 58). The agreement stated that plaintiff "suffers from chemical dependency, specifically, opiod drug dependence, and is on methadone maintenance with evidence of excellent treatment response and generalized anxiety disorder, under adequate control with treatment." (Id.). At the same time, that agreement required plaintiff to comply with any treatment recommended by the PHMP-approved-provider, attend meetings twice a week in programs the provider recommended, and to obtain the provider's permission before practicing nursing. (Id. at ¶ 59).

The provider assigned to plaintiff, A Better Today, Inc., had a uniform and inflexible policy requiring patients using methadone maintenance to "detoxify" from and stop using methadone. (Id. at ¶ 60). Plaintiff alleges that the settlement agreement existed to serve defendants' methadone-exclusion policy, forcing plaintiff to forego a program that the settlement agreement itself recognized as effective. (Id. at ¶ 61). This policy of excluding methadone treatment is unpublished, and some state officials have described that policy as secret. (Id. at ¶ 62). Plaintiff's methadone treatment provider has repeatedly sought a copy of this exclusion policy from defendants, but no such policy has been provided. (Id. at ¶ 63).

On August 10, 2007, the Department of State Hearing Examiner issued a proposed order recommending that plaintiff's license be suspended. (Id. at ¶ 64). The order became final on September 18, 2007. (Id.). That order acknowledged that the settlement agreement did not require plaintiff to discontinue her methadone treatment. (Id. at ¶ 65). Despite this acknowledgment, plaintiff alleges that she never had an opportunity to continue her methadone treatment and maintain her license, since the order required her to obtain treatment from a provider the defendants approved, and none of defendants' approved ...


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