BEFORE THE BOARD OF REGISTERED NURSING DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA. Respondent. PARTIES

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1 XAVIER BECERRA Attorney General of California JOSHUA A. ROOM Supervising Deputy Attorney General CHRISTOPHER M. YOUNG Deputy Attorney General State Bar No. Golden Gate Avenue, Suite 000 San Francisco, CA -00 Telephone: (1) 0- Facsimile: (1) Attorneys for Complainant BEFORE THE BOARD OF REGISTERED NURSING DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA I' I In the Matter ofthe Accusation Against: TANYA MICHELLE COOK-RILEY, AKA TANYA MICHELLE COOK 1 Fruitvale Ave., Unit San Jose, CA Registered Nurse License No. 0 Complainant alleges: Respondent. Case No. ACCUSATION PARTIES 1. Joseph L. Morris, PhD, MSN, RN (Complainant) brings this Accusation solely in his official capacity as the Executive Officer of the Board ofregistered Nursing ("Board"), Department of Consumer Affairs.. On or about July,, the Board issued Registered Nurse License Number 0 to Tanya Michelle C-ook-Riley, also known as Tanya Michelle Cook (Respondent). The Registered Nurse License was in full force and effect at all times relevant to the charges brought herein and will expire on March 1,, unless renewed. Ill Ill 1

2 JURJSDICTION. This Accusation is brought before the Board under the authority ofthe following laws. All section references are to the Business and Professions Code unless otherwise indicated. STATUTORY & REGULATORY PROVISIONS. Business and Professions Code (Code) section states: (a) Notwithstanding Section 1, any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode oftreating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition ofany person, without having at the time ofso doing a valid, unrevoked, or unsuspended certificate [to practice medicine] or without b~ing authorized to perform the act pursuant to a certificate obtained in accordance with some other provision oflaw is guilty ofa public offense, punishable by a fme not exceeding ten thousand dollars ($1 0,000), by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fme and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty ofa public offense, subject to the punishment described in that subdivision. (c) The remedy provided in this section shall not preclude any other remedy provided by law.. Code section states: (a) In amending this section at the - session, the Legislature recognizes that nursing is a dynamic field, the practice of which is continually evolving to include more sophisticated patient care activities. It is the intent ofthe Legislature in amending this section at the - session to provide clear legal authority for functions and procedures that have common acceptance and usage. It is the legislative intent also to recognize the existence ofoverlapping functions between physicians and registered nurses and to permit additional sharing of functions within organized health care systems that provide for collaboration between physicians and registered nurses. These organized health care systems include, but are not limited to, health facilities licensed pursuant to Chapter (commencing with Section 1) of Division ofthe Health and Safety Code, clinics, home health agencies, physicians' offices, and public or community health services. (b) The practice ofnursing within the meaning ofthis chapter [the Nursing Practice Act] means those functions, including basic health care, that help people cope with difficulties in daily living that are associated with their actual or potential health or illness problems or the treatment thereof, and that require a substantial amount ofscientific knowledge or technical skill, including all ofthe following: (1) Direct and indirect patient care services that ensure the safety, comfort, personal hygiene, and protection ofpatients; and the performance ofdisease prevention and restorative measures = -=- = -===-=--=-=-=-===--======--=-=-=--=--=--= - =.. =-= =--o,_; ::..;;- -=-= -= -;;_: -= --=..= -= -=-=-=--=---=--::..::-:.:..: -=--=-=--=--;:_;-,;;,: -.:::... -=--=---=--,;_; -=- =- =- c...: -=----..;:,:--=-=--=--=---_;;;,; =--'-'l:

3 () Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeutic agents, necessary to implement a treatment, disease prevention, or rehabilitative regimen ordered by and within the scope of licensure ofa physician, dentist, podiatrist, or clinical psychologist, as defmed by Section. ofthe Health and Safety Code. () The performance ofskin tests, immunization techniques, and the withdrawal ofhuman blood from veins and arteries. () Observation ofsigns and symptoms of illness, reactions to treatment, general behavior, or general physical condition, and (A) determination ofwhether the signs, symptoms, reactions, behavior, or general appearance exhibit abnormal characteristics, and (B) implementation, based on observed abnormalities, of appropriate reporting, or refenal, or standardized procedures, or changes in treatment regimen in accordance with standardized procedures, or the initiation ofemergency procedures. following: (c) 'Standardized procedures,' as used in this section, means either ofthe ' (1) Policies and protocols developed by a health facility licensed pursuant to Chapter (commencing with Section 1) ofdivision ofthe Health and Safety Code through collaboration among administrators and health professionals including physicians and nurses. () Policies and protocols developed through collaboration among administrators and health professionals, including physicians and nurses, by an organized health care system which is not a health facility licensed pursuant to Chapter (commencing with Section 1) ofdivision ofthe Health and Safety Code. The policies and protocols shall be subject to any guidelines for standardized procedures that the Division oflicensing ofthe Medical Board of California and the Board ofregistered Nursing may jointly promulgate. If promulgated, the guidelines shall be administered by the Board ofregistered Nursing. (d) Nothing in this section shall be construed to require approval of standardized procedures by the Division oflicensing ofthe Medical Board of California, or by the Board ofregistered Nursing. (e) No state agency other than the board may define or interpret the practice ofnursing for those licensed pursuant to the provisions ofthe chapter, or develop standardized procedures or protocols pursuant to this chapter, unless so authorized by this chapter, or specifically required under state or federal statute. AState agency@ includes every state office, officer, department, division, bureau, board, authority, and commission.. Code section.1 states: (a) Notwithstanding any other provision oflaw, a registered nurse may dispense drugs or devices upon an order by a licensed physician and surgeon or an order by a certified nurse-midwife, nurse practitioner, or physician assistant issued pursuant to Section.1,.1, or 0.1, respectively, ifthe registered nurse is (TANYA MICHELLE COOK-RlLEY) ACCUSATION

4 functioning within a licensed primary care clinic as defmed in subdivision (a) of Section 1 of, or within a clinic as defined in subdivision (b), (c), (h), or G) of Section 1 of, the Health and Safety Code. (b) No clinic shall employ a registered nurse to perform dispensing duties exclusively. No registered nurse shall dispense drugs in a pharmacy, keep a pharmacy, open shop, or drugstore for the retailing ofdrugs or poisons. No registered nurse shall compound drugs. Dispensing ofdrugs by a registered nurse, except a certified nurse-midwife who functions pursuant to a standardized procedure or protocol described in Section.1 or a nurse practitioner who functions pursuant to a standardized procedure described in Section.1, or protocol, shall not include substances included in the California Uniform Controlled Substances Act (Division (commencing with Section 000) ofthe Health and Safety Code). Nothing in this section shall exempt a clinic from the provisions of Article 1 (commencing with Section ) of Chapter. (c) Nothing in this section shall be construed to limit any other authority granted to a certified nurse-midwife pursuant to Article. (commencing with Section ), to a nurse practitioner pursuant to Article (commencing with Section ), or to a physician assistant pursuant to Chapter. (commencing with Section 00). (d) Nothing in this section shall be construed to affect the sites or types of health care facilities at which drugs or devices are authorized to be dispensed pursuant to Chapter (commencing with Section000).. Code section states: Except as otherwise provided herein, this chapter confers no authority to practice medicine or surgery. (. Code section provides, in pertinent part, that the Board may discipline any licensee, including a licensee holding a temporary or an inactive license, for any reason provided in Article (commencing with section ) ofthe Nursing Practice Act.. Section ofthe Code provides, in pertinent part, that the expiration of a lice~se shall not deprive the Board ofjurisdiction to proceed with a disciplinary proceeding against the licensee or to render a decision imposingdiscipline on the license. Under section (b) of the Code, the Board may renew an expired license at any time within eight years after the expiration.. Section ofthe Code states: The board may take disciplinary action against a certified or licensed nurse or deny an application for a certificate or license for any ofthe following: (a) Unprofessional conduct, which includes, but is not limited to, the following: :; , ~

5 (1) Incompetence, or gross negligence in carrying out usual certified or licensed nursing functions (d) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violating of, or conspiring to violate any provision or term ofthis chapter or regulations adopted pursuant to it. (i) Aiding or assisting, or agreeing to aid or assist any person or persons, whether a licensed physician or not, in the performance of, or arranging for, a violation of any ofthe provisions of Article (commencing with Section ) of Chapter.. California Code ofregulations, title 1, section, states: As used in Section ofthe code, 'gross negligence' includes an extreme departure from the standard ofcare which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life.. California Code ofregulations, title 1, section 1, states: As used in Section ofthe code, 'incompetence' means the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as described in Section California Code ofregulations, title 1, section, states: (a) "Standardized procedure functions" means those functions specified in Business and Professions Code Section ( c) and (d) which are to be performed according to 'standardized procedures.' (b) "Organized health care system" means a health facility which is not licensed pursuant to Chapter (commencing with Section 1), Division ofthe Health and Safety Code and includes, but is not limited to, clinics, home health agencies, physicians' offices and public or community health services. (c) "Standardized procedures" means policies and protocols formulated by organized health care systems for the performance ofstandardized procedure functions. 1. California Code ofregulations, title 1, section 1, states: Following are the standardized procedure guidelines jointly promulgated by the Medical Board of California and by the Board ofregistered Nursing:

6 --~ ' (a) Standardized procedures shall include a written description ofthe method used in developing and approving them and any revision thereof. (b) Each standardized procedure shall: (1) Be in writing, dated and signed by the organized health care system personnel authorized to approve it. () SpecifY which standardized procedure :fimctions registered nurses may perform and under what circumstances. () State any specific requirements which are to be followed by registered nurses in performing particular standardized procedure functions. () SpecifY any experience, training, and/or education requirements for performance ofstandardized procedure functions. () Establish a method for initial and continuing evaluation ofthe competence ofthose registered nurses authorized to perform standardized procedure functions. () Provide for a method ofmaintaining a written record ofthose persons authorized to perform standardized procedure functions. () SpecifY the scope of supervision required for performance of standardized procedure functions, for example, immediate supervision by a physician. () Set forth any specialized circumstances under which the registered nurse is to immediately communicate with a patient's physician concerning the patient's condition. () State the limitations on settings, if any, in which standardized procedure functions may be performed. (1 0) SpecifY patient record keeping requirements. () Provide for a method ofperiodic review ofthe standardized procedures. COST RECOVERY 1. Section. ofthe Code provides, in pertinent part, that the Board may request the administrative law judge to direct a licentiate found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs ofthe investigation and enforcement ofthe case, with failure ofthe licentiate to comply subjecting the license to not being renewed or reinstated. If a case settles, recovery of investigation and enforcement costs may be included in a stipulated settlement. I I I

7 FACTUALBACKGROUND 1. Respondent was employed as a Registered Nurse from October through December 1 at A Youthful Reflection, a facility performing laser hair removal and facial rejuvenation procedures, in San Jose, California (hereinafter "Reflection"). Respondent stopped working at Reflection in December Reflection is owned and operated by TB, a licensed chiropractor, and his wife KB, who acted as office manager and who was responsible for hiring the nursing staff. There is no physician ownership or supervision of Reflection. 1. Respondent performed hair removal and facial rejuvenation procedures on patients at Reflection. Working with lasers and light-based technologies is considered medical treatment. Respondent concedes she was aware that Reflection was owned and operated by the TB and KB. Respondent was not only unaware ofthe difference between a Doctor of Chiropractic and a Medical Doctor, but believed that a chiropractor is a physician with a spine/back specialty. FIRST CAUSE FOR DISCIPLINE (Incompetence/Gross Negligence). Respondent's license is subject to discipline under section (a)(1), and/or section (b)() of the Code, for incompetence and gross negligence. As described in paragraphs 1 1 above, while employed as a Registered Nurse, Respondent rendered treatment to patients at Reflection under the supervision of a chiropractor, not a physician. A Registered Nurse would be aware ofand compliant with her scope ofpractice by working under the supervision ofa medical physician while performing medical procedures, and/or arranging for a prior exam by a physician before rendering medical procedures upon a patient. SECOND CAUSE FOR DISCIPLINE (Unprofessional Conduct-Aiding and Abetting the Unlicensed Practice ofmedicine and the Unlicensed Practice ofmedicine). Respondent's license is subject to discipline under section (a), section (d), section (i), section.1, section (b)(), and section ofthe Code, for unprofessional conduct, and/or aiding or abetting same. As described in paragraphs 1- above,

8 1 1 1 Respondent engaged in the unlicensed practice of medicine by working in her role as a Registered Nurse at Reflection without direction from a physician, and without arranging for a prior exam for patients before performing medical procedures. Further, Respondent engaged in unprofessional conduct, and aided or abetted same, by failing to ensure that the medical treatment she provided was authorized by a physician, was within her scope ofpractice as a Registered Nurse, or was within and authorized by any written standardized procedures. PRAYER WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Board ofregistered Nursing issue a decision: 1. Revoking or suspending Registered Nurse License Number 0, issued to Tanya Michelle Cook-Riley, also known as Tanya Michelle Cook;.. Ordering Tanya Michelle Cook-Riley, also known as Tanya Michelle Cook, to pay the Board ofregistered Nursing the reasonable costs ofthe investigation and enforcement ofthis case, pursuant to Business and Professions Code section.; and,. Taking such other and further action as deemed necessary and proper DATED:~ ~ a(#/,p SF1 0.doc. MORRIS, PHD, MSN, RN Executive Officer Board of Registered Nursing Depament of Consumer Affairs State of California Complainant