Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Erik Blair, R.N v. Commonwealth of Pennsylvania

July 2, 2012

ERIK BLAIR, R.N.,
PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF STATE, PENNSYLVANIA BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, PENNSYLVANIA DIVISION OF PROFESSIONAL HEALTH MONITORING PROGRAMS, THE DISCIPLINARY MONITORING UNIT, THE PENNSYLVANIA NURSE PEER ASSISTANCE PROGRAM, VOLUNTARY RECOVERY PROGRAM AND
PENNSYLVANIA STATE BOARD OF NURSING
DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Now pending before the Court are the MOTION FOR TEMPORARY RESTRAINING ORDER (Document No. 2) filed by Plaintiff Erik Blair, with brief in support; and the MOTION TO DISMISS (Document No. 6) filed by Defendants (collectively "the Commonwealth").*fn1 The motions have been thoroughly briefed and are ripe for disposition.

Factual and Procedural History

This case involves Plaintiff's nursing license. Briefly summarized, Blair has a history of heroin addiction and a present diagnosis of heroin dependence disorder. He suffered relapses in 2005 and 2006. In 2007, he was incarcerated for a felony theft conviction, during which time he was "detoxed" from heroin. Since that time, Blair has participated in the PNAP program and Narcotics Anonymous and has passed seventy-six (76) drug and alcohol tests over the past thirty months. Blair has been gainfully and successfully employed as a nurse by Interim HealthCare of Pittsburgh since November 2008. He has been assigned to the daylight shift of in-home care of an individual patient, a ventilator-dependent quadriplegic who receives around-the-clock care from a team of five nurses and numerous other health professionals. The patient has not been prescribed any narcotics.

In 2006, the State Board of Nursing ("SBN") suspended Blair's license for one year. In September 2008, the SBN reissued his license without restriction. In October 2008, the SBN requested a mental and physical health evaluation of Blair by Dr. Robert Wettstein, who opined that Blair was safe to practice nursing, but only if he participated in a structured monitoring and treatment program for three to five years due to his opiate dependence disorder. In March 2009, the SBN filed a petition to suspend Blair's nursing license.

In January 2010, an extensive hearing was held by the SBN. Plaintiff's Exhibit H is a transcript of the hearing. Blair participated and was represented by counsel. Dr. Wettstein testified. Psychiatrist Dr. Alexandre Dombrovski also testified, on behalf of Blair, and opined that Blair's opiate dependency is in "full sustained remission" such that he was safe to practice nursing with accomodations. In October 2010, Chief Hearing Officer Frank C. Kahoe, Jr. issued a 14-page, written Proposed Adjudication and Order which contained extensive Findings of Fact and Conclusions of Law and a Proposed Order which placed numerous conditions on Blair's license. See Plaintiff's Exhibit B. Most notably, the decision prohibited Blair from practicing "in a private practice setting or without direct supervision," which it defined as the "physical presence of the supervisor on the premises." This condition would prevent Blair from performing his existing nursing duties. Blair filed timely objections to the Proposed Adjudication and Order. On May 1, 2012 the SBN issued a Final Adjudication and Order ("BON Final Order") which adopted the Proposed Adjudication and Order. Blair's nursing license was "indefinitely suspended" for a period of at least three years, although the suspension was stayed in favor of a period of probation with forty-two (42) itemized conditions. The SBN Final Order was to take effect thirty days after mailing.

In January 2012, Blair and PNAP entered into a PNAP Monitoring/Treatment Contract, which provided retroactive credit for his participation in the program dating back to November 2009. Upon issuance of the Final Order, PNAP sought to conform its PNAP Monitoring/Treatment Contract to the terms of the SBN Final Order, which denied retroactive credit.

On May 22, 2012, Blair filed a Complaint and motion for emergency relief in this Court, in which he alleges violations of the Americans With Disabilities Act ("ADA") and Rehabilitation Act (RA"). In essence, Blair contends that he is a qualified individual with a disability, who is able to perform his job as a home health agency nurse with reasonable accommodations. He contends that he receives adequate supervision in his current work setting. Moreover, he seeks retroactive credit for his participation in treatment, monitoring and rehabilitation programs during the lengthy period of time during which the SBN proceeding was under consideration. Count I of the Complaint seeks injunctive relief. Count II seeks declaratory judgment. Count III is titled an "Appeal" of the SBN Final Order. Count IV claims retaliation under the ADA and RA and Count V asserts a claim for breach of contract against PNAP.

On May 29, 2012 the Court held a hearing and argument on Blair's motion for emergency relief. Thereafter, Blair filed an appeal of the SBN Final Order with the Commonwealth Court of Pennsylvania. In addition, the parties report that they have agreed to stay the provision of the SBN Final Order which requires Blair to work only in a supervised setting.

Legal Analysis

Defendants contend that this Court lacks subject-matter jurisdiction over this case based on the Rooker-Feldman and/or Younger abstention doctrines. The Court must satisfy itself of its jurisdiction before addressing the merits of Plaintiff's claims.

A. General Principles of Abstention

The United States Court of Appeals for the Third Circuit has provided the following synopsis of the general principles of abstention:

Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or agency will have the opportunity to decide the matters at issue. The doctrine is rooted in concerns for the maintenance of the federal system and represents an extraordinary and narrow exception to the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. Consequently, abstention is justified only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest. In other words, abstention from the exercise of federal jurisdiction is appropriate only under certain limited circumstances. Those circumstances are loosely gathered under discrete concepts of abstention named after leading Supreme Court cases, viz., "Pullman" ( Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)); " Burford" ( Burford v. Sun Oil Co., 319 U.S. 315, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.