IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA ELECTRONICALLY FILED 11/30/2016 3:49 PM 03-CV-2016-901610.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA TIFFANY B. MCCORD, CLERK MELISSA S. BAGWELL-SEIFERT, ) MELISSA F.BIBB, PATTON C. COTTON, ) TRACI S. DUNCAN, CAROL F. ) EDWARDS, AMANDA J. GODSEY, ) SULA M. GILLESPIE, LAURA C. ) HINDMAN, SHANNON A. MORRISON, ) ANNELLE REED, JANA H. ) WHISENHUNT, and ) FICTITIOUS PARTIES A-Z ) ) CASE NO. CV-2016- Plaintiffs, ) ) v. ) ) ALABAMA BOARD OF NURSING, ) PEGGY BENSON, in her official capacity as ) Executive Director of the Alabama Board ) Of Nursing, and N. GENELL LEE, in her ) official capacity as the previous Executive ) Director of the Alabama Board ) Of Nursing ) Defendants. ) COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF A. INTRODUCTION Plaintiffs, Melissa S. Bagwell-Seifert, Melissa F. Bibb, Patton C. Cotton, Traci S. Duncan, Carol F. Edwards, Amanda J. Godsey, Sula M. Gillespie, Laura C. Hindman, Shannon A. Morrison, Annelle Reed, Jana H. Whisenhunt, and Fictitious Plaintiffs A-Z (hereinafter referred to as the Plaintiffs ), file this Complaint for Declaratory Judgment Action (hereinafter referred to as the Petition ) pursuant to Rule 57, Alabama Rules of Civil Procedure, ALA. CODE 6-6-220 through 232, ALA. CODE 41-22-10, and Article I, Sections 1, 6, 13 and 22 of the Alabama Constitution of 1901. This action seeks an interpretation of the several rules as

applied to the Plaintiffs contained in ALA. ADMIN. CODE 610-X-1, et seq. This action also seeks to vindicate the Plaintiffs constitutional right to earn an honest living free from unreasonable government regulations. B. STATEMENT OF THE PARTIES 1. Plaintiff, Melissa S. Bagwell-Seifert is a resident of Jefferson County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 2. Plaintiff, Melissa F. Bibb is a resident of Shelby County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 3. Plaintiff, Patton C. Cotton is a resident of Shelby County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 4. Plaintiff, Traci S. Duncan is a resident of Blount County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 2

5. Plaintiff, Carol F. Edwards is a resident of Montgomery County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 6. Plaintiff, Amanda J. Godsey is a resident of Winton County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 7. Plaintiff, Sula M. Gillespie is a resident of Jefferson County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 8. Plaintiff, Laura C. Hindman is a resident of Jefferson County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 3

9. Plaintiff, Shannon A. Morrison is a resident of St. Clair County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 10. Plaintiff, Annelle Reed is a resident of Tuscaloosa County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 11. Plaintiff, Jana H. Whisenhunt is a resident of Jefferson County, Alabama and over the age of nineteen (19) years. She is a nurse practitioner licensed to practice in the State of 12. Fictitious Plaintiffs A-Z are residents of the State of Alabama and over the age of nineteen (19) years. Fictitious Plaintiffs are similarly situated nurse practitioners licensed to practice in the State of Alabama by the Alabama Board of Nursing that have yet to be identified. They were disciplined for illegal practice by the Alabama Board of Nursing in violation of their due process rights and treated differently than other similarly situated nurse practitioners. 13. Defendant, Alabama Board of Nursing (hereinafter referred to as the ABN ) is the agency for the State of Alabama, which regulates the practice of nursing in the State of 4

Alabama. The ABN is located at RSA Plaza, Suite 250, 770 Washington Ave., Montgomery, AL 36104. 14. Defendant, Peggy Benson is the Executive Director of the Alabama Board of Nursing and is named in her official capacity only. Ms. Benson is a resident of Chilton County, Alabama and is over the age of nineteen (19) years. 15. Defendant, N. Genell Lee is the previous Executive Director of the Alabama Board of Nursing and is named in her official capacity only. Ms. Lee is a resident of Jefferson County, Alabama and is over the age of nineteen (19) years. C. JURISDICTION AND VENUE 16. Jurisdiction is proper pursuant to ALA. CODE 41-22-10 in which a party may request a determination of the validity or applicability of an agency rule though an action for declaratory judgment or its enforcement stayed by injunctive relief in the Montgomery County Circuit Court. The Plaintiffs also bring this action pursuant to Article I, Sections 1, 6, 13, and 22 of the Alabama Constitution. 17. Venue is proper in Montgomery County, Alabama as the Plaintiffs file this Petition pursuant to Rule 57, Ala. R. Civ. P., ALA. CODE 41-22-10 and ALA. CODE 6-6- 220 through 232. Furthermore, Defendants are sued in their official capacity as members of the Alabama Board of Nursing, located in Montgomery County, Alabama. Therefore, venue is proper in this Court. In addition, the actions giving rise to this Petition transpired in Montgomery County, Alabama. D. FACTS 18. Each Plaintiff is a nurse practitioner licensed to practice in the State of Alabama by the ABN. 5

19. To be licensed as a nurse practitioner in the State of Alabama, the individual must meet the following requirements: a. Maintain an active RN license; b. Met all the requirements for completion of or graduation from an ABN approved educational facility; c. Obtain at least a master s degree; and d. Obtain national certification from an ABN approved national certifying agency. See ALA. ADMIN. CODE 610-X-5-.03. 20. Every two (2) years the nurse practitioners must renew their nurse practitioners license. 21. In order to renew their license, the nurse practitioner must meet the following criteria: a. Maintain an active RN license; b. Met all the requirements for completion of or graduation from an ABN approved educational facility; c. Obtain at least a master s degree; d. Obtain and maintain national certification from an ABN approved national certifying agency; e. Continued collaboration with an ABN approved physician or exemption from the same; and f. Payment of renewal fees. See ALA. ADMIN. CODE 610-X-4-.08, 610-X-5-.03 and 610-X-5-.07. 22. In order to maintain a current national certification, the nurse practitioner must renew their national certification with an ABN approved national certifying agency every five (5) years. 23. ALA. ADMIN. CODE 610-X-4-.11 states that a nurse practitioner shall submit to the Board, immediately upon receipt: (b) evidence of current national certification by a Board-recognized national certifying body. The rule also states that the failure to notify the Board of the recertification will result in a lapse of license status. 24. ALA. ADMIN. CODE 610-X-5-.07(7) states: (7) A nurse who fails to attain or maintain specialty certification as a nurse practitioner from a specialty certification agency shall: (a) Immediately notify the Board of Nursing. 6

(b) Not practice as or use the title of certified registered nurse practitioner until approved by the Board of Nursing. 25. Each Plaintiff did properly renew their license in accordance with the ABN s rules and regulations. See ALA. ADMIN. CODE 610-X-4-.8 and 610-X-5-.03(1) (a)-(c) and ALA. ADMIN. CODE 610-X-5-.07(5) (a)-(c). 26. Lapse is defined as a failure to renew one s nurse practitioner s license. See ALA. ADMIN. CODE 610-X-4-.01(4). 27. That there is an obvious conflict between the definition of lapse as defined in ALA. ADMIN. CODE 610-X-4-.01(4) and the use of the term lapse in ALA. ADMIN. CODE 610-X-4-.11. 28. There is also a conflict between the notice requirement in ALA. ADMIN. CODE 610- X-4-.11, which requires the nurse practitioner to submit evidence of current national certification to the ABN, and the notice requirement ALA. ADMIN. CODE 610-X-5-.07(a) and (b), which requires notice only if the nurse practitioner fails to attain or maintain their national certification. 29. Furthermore, the ABN will only accept evidence of official verification (primary source) of [the nurse practitioner s] recertification in writing from the national certifying organization. In addition, the ABN has a long-standing policy to only accept proof of recertification from the national certifying agency sent First Class Mail via USPS. The Board will not accept a letter from the certifying agency provided to the ABN by the nurse practitioner, electronic mail, nor certified mail. 30. In previous years, the national certifying agencies automatically sent notice of the nurse practitioners national certification to the ABN. Recently, the national certifying agencies 7

required the nurse practitioner to request the agency to provide notice of certification to the ABN. 31. Since 2005, the Plaintiffs have had their nurse practitioner licenses placed into lapsed status by the ABN because of the Plaintiffs perceived failure to notify the ABN of their current national certification. 32. As a result of having their licenses placed into lapsed status, the Plaintiffs have been disciplined by the ABN for illegal practice. 33. As a result of these disciplinary actions, the Plaintiffs received a public reprimand, a $1,000 fine and must notify all current and future employers of said disciplinary action. 34. Illegal practice is practicing as a nurse practitioner without approval from the ABN. In this matter, the lack of ABN approval is due to the ABN either not receiving notice from the national certifying agency or the ABN s system not reflecting receipt of the notice of current certification from the national certifying agency. 35. None of the Plaintiffs received adequate notice or a meaningful opportunity to be heard prior to their license being placed into lapsed status. 36. All of the Plaintiffs signed a consent decree to the disciplinary action because they were informed that each Plaintiff would be disciplined regardless of their consent and they were informed that signing the consent decree would only speed up the process. In addition, the Plaintiffs were informed by the ABN that failure to sign the consent decrees would result in a formal suspension of their license, until such time as the matter was resolved. None of the Plaintiffs were aware of the conflicting use of the term lapse as it was being applied by the ABN at the time the consent decrees were executed. 8

37. The Plaintiffs have had difficulty obtaining and maintaining employment as a result of these disciplinary actions for illegal practice. 38. That at least four (4) nurse practitioners have not received disciplinary actions for illegal practice and/or have otherwise had their records expunged of said violation even though their actions regarding renewal and national certification were the exact same as the Plaintiffs in this matter. 39. The ABN acknowledges that at least one nurse practitioner practiced without ABN approval and yet no complaint for disciplinary action was filed against her and her record regarding the lapse was expunged. 40. The Plaintiffs have tried to resolve this matter before the ABN by sending numerous letters requesting to schedule a meeting with the Executive Director or to be placed on the ABN s monthly agenda in order to speak before the ABN. All such requests have been denied by the ABN. In addition, the Plaintiffs letters thoroughly explained the Plaintiffs position as outlined in this Complaint and the ABN rejected all the legal theories regarding the term lapse and the allegations regarding due process and unequal protection. E. DECLARATORY RELIEF 41. The nurse practitioners hereby re-allege and incorporate by reference all the proceeding allegations contained in Paragraphs 1-40. 42. There is an obvious conflict between the definition of lapse contained in ALA. ADMIN. CODE 610-X-4-.01(4) and the use of the term lapse in ALA. ADMIN. CODE 610-X-4-.11. 9

43. The definition of lapse is a failure to renew. See ALA. ADMIN. CODE 610-X-4-.01(4). 44. Renewal of a license is defined as: a. Maintaining an active registered nurse license; b. Graduating from an organized program; c. Obtaining at least a master s degree; d. Current national certification; e. Continued collaboration with an approved physician or exemption from the same; f. Complete application for renewal; and g. Payment of renewal fees. See ALA. ADMIN. CODE 610-X-4-.08, ALA. ADMIN. CODE 610-X-5-.03 and 610- X-5-.07(a)-(c). 45. Failure to notify the ABN of evidence of current national certification by a Board recognized national certifying body shall result in lapse of approval to practice as a nurse practitioner. See ALA. ADMIN. CODE 610-X-4-.11(4)(b)(ii) and (5) [emphasis added]. 46. All of the Plaintiffs satisfied the renewal requirements as stated in 44. 47. Without any notice or a meaningful opportunity to be heard, the ABN placed the Plaintiffs licenses in lapsed status because the ABN had not received notice of the Plaintiffs current national certification. 48. The ABN admitted during a Board meeting held in July 2014 that previously the ABN had no consistent way of giving notice to the nurse practitioners prior to a license being placed into lapsed status. 49. The Plaintiffs licenses could not have lapsed because they met the requirements of renewal as set forth in ALA. ADMIN. CODE 610-X-4-.8, 610-X-5-.03 and 610-X-5-.07(a)-(c), which is all that is required to avoid one s license from being placed into lapsed status (as evidenced by the definition of lapse contained in ALA. ADMIN. CODE 610-X-4-.01(4)). 10

50. Since the usage of lapse in ALA. ADMIN. CODE 610-X-4-.11 directly conflicts with the definition of lapse in ALA. ADMIN. CODE 610-X-4-.01(4), failure to notify the ABN of one s current national certification cannot be a lapse of the Plaintiffs licenses as ALA. ADMIN. CODE 610-X-4-.11 states. 51. At best, the failure to notify the ABN of current national certification is effectively a suspension of one s license and not a lapse of one s license. 52. If failure to notify the ABN of national certification is a suspension of the nurse practitioner s license, then adequate notice and a meaningful opportunity to be heard must be afforded to the nurse practitioner prior to the suspension. 53. Based on the circumstances, all the Plaintiffs licenses were effectively suspended prior to adequate notice or opportunity to be heard. 54. Suspension of the Plaintiffs licenses without adequate notice and a meaningful opportunity to be heard is a violation of Plaintiffs due process rights. 55. In addition, ALA. ADMIN. CODE 610-X-5-.07(7)(a) and (b) only requires the nurse practitioner to notify the ABN if the nurse practitioner fails to attain or maintain her national certification. 56. Each Plaintiff that is the subject of this Petition attained and maintained their national certification, therefore notice of their national certification to the ABN was not required according to ALA. ADMIN. CODE 610-X-5-.07. 57. Furthermore, the Plaintiffs consent decrees are invalid, as one cannot consent to something that is contrary to law and without complete knowledge as to what rights they are waiving. Since the Plaintiffs consent decrees indicate their licenses lapsed but none of the Plaintiffs were aware of the conflicting use of the term lapse as it was being 11

applied by the ABN, the decrees were entered into by the Plaintiffs without complete knowledge of their rights and are thus void. 58. The Plaintiffs request this Honorable Court declare the usage of the term lapse in ALA. ADMIN. CODE 610-X-4-.11(4)(b)(ii) and (5) directly conflicts with ALA. ADMIN. CODE 610-X-4-.01(4). 59. The Plaintiffs request this Honorable Court declare the notice requirement in ALA. ADMIN. CODE 610-X-4-.11(4)(b)(ii) and (5) directly conflicts with the notice requirement in ALA. ADMIN. CODE 610-X-5-.07(7). 60. Further, the Plaintiffs requests this Honorable Court declare that the usage of the term lapse in ALA. ADMIN. CODE 610-X-4-.11(4)(b)(ii) and (5) is inappropriate and as such is not a lapse of the Plaintiffs licenses but rather a suspension of the Plaintiffs licenses. Further, declare that this suspension requires that adequate notice and a meaningful opportunity to be heard be given to each Plaintiff. 61. In addition, the Plaintiffs request this Honorable Court declare that adequate notice and a meaningful opportunity to be heard was not afforded to the Plaintiffs in this matter. 62. Furthermore, the Plaintiffs request this Honorable Court declare that the consent decrees entered into by the Plaintiffs are invalid as the Plaintiffs licenses could not have lapsed and thus they were not properly made aware of the rights to which they were waiving by signing the consent decree. The plaintiffs are not seeking to directly appeal their disciplinary action or the consent order waiving their appellate rights. However, the plaintiffs do seek to have this court declare that the application of the conflicting term "lapse" by the Board, of which the plaintiffs could not have known at the time, improperly resulted in the disciplinary actions. 12

F. INJUNCTIVE RELIEF 63. The Plaintiffs hereby re-allege and incorporate by reference all the proceeding allegations contained in Paragraphs 1-62. 64. The Plaintiffs hereby request the ABN be enjoined from disciplining any nurse practitioner for illegal practice based on a lapse pursuant to ALA. ADMIN. CODE 610-X-4-.11 until this Honorable Court settles the conflict between ALA. ADMIN. CODE 610-X-4-.01(4) and 610-X-4-.11. G. CONSTITUTIONAL VIOLATION-DUE PROCESS 65. The nurse Plaintiffs hereby re-allege and incorporate by reference all the proceeding allegations contained in Paragraphs 1-64. 66. The Plaintiffs right to Due Process guaranteed under Article I, Sections 6 and 13 of the Alabama Constitution of 1901 were violated. 67. The Plaintiffs have a right to earn an honest living in the occupation of one s choice, subject only to regulations that are not overbroad and unreasonable exercises of the State s police power, and bearing a real and substantial connection to a legitimate government interest. Infringing upon these rights requires adequate notice and a meaningful opportunity to be heard. 68. In this case, the Plaintiffs were told their licenses were placed in lapsed status. However, their licenses could not lapse because failure to notify the ABN of one s current national certification does not fall within the requirements for renewal of one s nurse practitioner license. Since a lapse is defined as a failure to renew, failure to notify the ABN of current national certification is outside the definition of renewal and thus outside the definition of 13

lapse. Therefore, failure to notify the ABN of current national certification cannot be a lapse of one s license. 69. If anything, the Plaintiffs licenses were actually suspended by the ABN without any notice or a meaningful opportunity to be heard. 70. Unless Defendants are enjoined from committing the above-described violations of Due Process and required to expunge the records of the Plaintiffs, the Plaintiffs will continue to suffer great and irreparable harm. 71. The Plaintiffs requests that the Defendants be enjoined from committing the aforementioned Due Process violations and that their records be expunged and their fines be returned. H. CONSTITUTIONAL VIOLATION-EQUAL PROTECTION 72. The Plaintiffs hereby re-allege and incorporate by reference all the proceeding allegations contained in Paragraphs 1-71. 73. The Plaintiffs right to Equal Protection of the laws afforded by the Alabama Constitution of 1901, Article I, Sections 1, 6, and 22 were violated. The Alabama Constitution guarantees equal protection under the laws, which prohibits the government from treating similarly situated persons differently unless the reason for doing so bears a real and substantial relationship to a legitimate government interest, and the regulations are not overbroad or unreasonable exercises of the State s police power. 74. In this matter, four similarly situated nurse practitioners were not disciplined and/or their records were expunged of any violation. 75. At least one nurse practitioner was treated differently because of her socioeconomic status. 14

76. On July 18, 2014, the ABN met to discuss four (4) nurse practitioners that would not be disciplined for illegal practice. 77. To the best of the Plaintiffs knowledge, the transcription of the ABN meeting of July 18, 2104 partially reads as follows: It was related to an expired certification for a Judge s wife (ohh, ugh, ha). It (oh me) happened during the transition of from the old system to the new computer system and the certification was not picked up but expired in a? fiscal letter was not sent but the person was certified during the entire time (oh oh) (ah huh) and since it was our mistake, we have, we have made her whole (ahhh) because we should have sent this person the (?system) fiscal letter as we do everybody. We make that right by her certification had never expired. We are having her reinstated for approval so we went ahead and made her whole because of collaboration because she had never lapsed her certification in real life. Her certification remains correct yes. It was just never communicated to us. When it is their livelihood they take it personal. One of the things that I wanted to tell you guys is that we have automated them to get a notice 7 days prior to their expiration. You know we had no way of doing that until this past week. They will not get an email related to you will expire in 7 days so they will have 7 days to get their stuff in. And we had last year on top of all this ANCC and others changed how they did notifications to the Board. Normally it was automatic and on ANCC there is a screen where you have to check a box and tell them to send it. They will send it for free but their letter clearly states that but nurses do not read their letters (laughter). 78. Throughout the transcript, the ABN refers to one nurse practitioner that was treated differently as the Judge s wife. 79. In an email between the aforementioned nurse practitioner (the Judge s Wife ) and Genell Lee, the previous executive director of the ABN, Ms. Lee makes it clear that the nurse practitioner practiced without complying with the law to notify the ABN of her national certification and yet the ABN did not discipline her or even make a record of her non-compliance. Ms. Lee further states in this email that I told you I would make it 15

right. And we did even though it was totally your responsibility to have ANCC submit your certification to us. Ms. Lee also states that You don t have a complaint pending, you are not going to be disciplined but I must tell you I am questioning my decision about that because you want to put it out in public that you practiced without complying with the law to have your certification sent to us and yet you have no complaint. And ANCC clearly tell you in the letter that it is up to you to request that your certification be sent to a board of nursing. 80. In another email between Ms. Lee and the nurse practitioner, Ms. Lee states the ANCC advised us they did not have direction from you to send us your certification so if you have a fact that you checked the box you can take it up with them. 81. The ABN clearly treated the aforementioned nurse practitioner differently than the Plaintiffs and did not suspend her license or place her license in lapsed status or discipline her even though she did the exact same thing as the Plaintiffs. 82. The Plaintiffs requests that the Court hold that the Defendants treated the Plaintiffs differently than other similarly situated nurse practitioners in violation of the Plaintiff s right to equal protection of the law. The Plaintiffs request that their records be expunged and that their fines be returned. I. PRAYER FOR RELIEF WHEREFORE, the premises considered, the Plaintiffs respectfully request this Honorable Court to: A. Declare the usage of the term lapse in ALA. ADMIN. CODE 610-X-4-.11(4)(b)(ii) and (5) directly conflicts with ALA. ADMIN. CODE 610-X-4-.01(4). 16

B. Declare that the usage of the term lapse in ALA. ADMIN. CODE 610-X-4-.11 (4)(b)(ii) and (5) is inappropriate and as such is not a lapse of the Plaintiffs licenses but rather a suspension of the Plaintiffs licenses. As a suspension, adequate notice and a meaningful opportunity to be heard was required. C. Declare that notice and an opportunity to be heard was not afforded to the Plaintiffs. D. Declare that the consent decrees the Plaintiffs entered into are void, as the Plaintiffs were not given adequate notice of the rights they were waiving by signing the consent decrees. E. Enjoin the ABN from disciplining any nurse practitioner for illegal practice based upon the nurse practitioner s failure to notify the ABN of the nurse practitioner s national certification without adequate notice and a meaningful opportunity to be heard. F. Hold that the Plaintiffs due process rights were violated because they were not given notice and a meaningful opportunity to be heard prior to the suspension of their licenses and as such the disciplinary actions are improper. G. Require the ABN to expunge the records of the Plaintiffs and reimburse the Plaintiffs the $1,000 fine that each nurse practitioner paid. H. Hold that the Plaintiffs were treated differently than other similarly situated nurse practitioners because the other nurse practitioners did not receive disciplinary actions for illegal practice although their conduct was the exact same as the conduct of the Plaintiffs in this matter. I. Grant the Plaintiffs any and all other such relief, as this Court deems appropriate. PLANTIFFS DEMAND A JURY TRIAL ON ALL CLAIMS TRIABLE BY JURY 17

Respectfully submitted this 30 th day of November, 2016. Of Counsel: Law Office of David E. Belser, LLC 2865 Zelda Road Montgomery, AL. 36106 (334) 676-1325 (Office) (334) 676-1324 (Fax) dbelser@davidbelserlaw.com acaudell@davidbelserlaw.com /s/david E. Belser David E. Belser Autumn A. Caudell Attorneys for the Nurse Practitioners 18