Hank Hayes has done an in-depth look at the interaction between state Reps. Dale Ford and Tony Shipley and state officials with considerable background on the Board of Nursing issues, all now the subject of a TBI inquiry.
Here’s his rundown:
Tennessee state Rep. Dale Ford couldn’t remember the date, but he recalled a meeting in his Nashville office with two top-level state officials to discuss the fate of three nurses suspended by the state Board of Nursing.
The date was March 7, 2011, and in the meeting with Ford were Dale Kelley, Gov. Bill Haslam’s former senior advisor on legislation, and state Health Commissioner Susan Cooper.
The licenses of the three nurses – Bobby Reynolds II, Tina Killebrew and David Stout, Jr. – were suspended by the state nursing board on March 11, 2010 for a “pattern of negligence or incompetence” related to dispensing drugs and contributing to the deaths of two patients at the now-closed Appalachian Medical Center (AMC) in Johnson City.
On May 5, 2011, the state agreed to a consent order reinstating those licenses. It was signed by a state legal counsel, the acting chair of the state nursing board and the nurses’ lawyers.
And now the Tennessee Bureau of Investigation (TBI) is looking into whether state lawmakers committed misconduct advocating for those nurses.
According to a Department of Health (DOH) spokeswoman, the meeting at Ford’s office was scheduled to discuss DOH’s regulatory boards.
But Ford, R-Jonesborough, said he asked Cooper to revisit the nurses’ suspensions.
“(Cooper) agreed they would do some things different…I said ‘All I ask you to do is take a second look at that evidence.’…All they agreed to do was take a second look at this thing,” Ford said of the conversation.
The March 11, 2010 state nursing board meeting to suspend the three nurses was an “electronic meeting” conducted in Nashville. The state nursing board consists of 11 members appointed by the governor for four-year terms or until their successors are appointed. Five members are registered nurses, three members are licensed practical nurses, two members are advanced practice nurses and one is a consumer member who is not a nurse and is not commercially or professionally associated with the health care industry.
According to the meeting minutes, six members, including the chair, were attending the meeting by telephone. Five members were counted as absent.
The minutes said Reynolds and Stout, through their attorneys, had waived their right for a hearing date to offer a response to the suspension action. Reynolds’ Nashville attorney, Stephen Elliott, disputed that and added Reynolds and Killebrew had a hearing the following August with a “screening panel” of board members.
Reynolds was listed as AMC’s owner. All three nurses were identified as family nurse practitioners who “engaged in a pattern of deceptive, substandard care and gross malpractice,” according to the meeting minutes.
According to DOH, Killebrew had been a licensed registered nurse since 1998. Reynolds was licensed in 1997, and Stout was licensed in 1979.
The allegations claimed the nurses failed to follow “accepted standards of care” in prescribing long-term narcotics to treat a patient’s chronic pain.
Those minutes also said Reynolds was told by law enforcement in March 2008 that five of his patients were identified as having sold drugs, either prescribed by him or other AMC providers, to a known drug seller. Many of AMC’s patient charts contained a “pain contract” that said all pain prescriptions would be filled at a specific pharmacy and ordered the patient not to sell any prescribed medication.
The minutes said the nurses’ actions contributed to the deaths of patients identified as “T.H.” and “A.B.”
They were also cited for not ordering diagnostic tests, blood work, counseling and physical therapy for the patients.
A DOH news release went out one day after the meeting to inform the public of the suspensions.
After The Suspensions
Attorneys for the nurses felt the March 11, 2010 nursing board meeting and suspension process violated their constitutional rights.
A consent order signed by the state and Reynolds the following October allowed him to get his license back on a probationary basis pending continuing education credits, good conduct and paying fines. Elliott called the move a “take it or leave it” offer.
Elliott and Stout’s lawyer, Tom Jessee of Johnson City, then petitioned the nursing board for an order modification in April 2011.
According to that petition, board members attending the March 2010 meeting “frequently dropped off the line” and were unable to keep up with the proceedings over the telephone. Another board member did not have an evidence packet in her possession during the suspension hearing, the petition said.
Despite what the meeting minutes said, the nurses claimed they were not allowed to present evidence, put on witnesses or even speak, according to the petition.
The petition also alleged documents before the board said patient “A.B.” was crushing medications and injecting them into his body via either an intravenous line or needle injection.
“The board also was never informed that patient ‘A.B.’ had consumed 15 times the prescribed amount of oxycodone in a three-hour time frame and had applied an illegally obtained Fentanyl patch on his skin,” the petition said.
The petition also alleged patient “T.H.” restricted releasing his medical records to his primary care providers, including a statement to two different counselors that “this is going to end badly, I am either going to kill myself or my ex-wife.”
Lawmakers Get Involved
In early 2011, at least two lawmakers intervened in the suspended nurses’ situation. One source speaking on background said Ford was approached first. “They wanted to present new evidence,” the source said of the nurses.
The other lawmaker advocating for the nurses was state Rep. Tony Shipley, a second-term Kingsport Republican appointed to the House Government Operations Committee. The committee oversees all legislation involving state boards.
In phone interviews, both Shipley and Ford said they didn’t know state nursing board members and didn’t lobby them personally. Ford acknowledged he has a sister who worked at AMC, and also noted his wife was treated at the facility.
The DOH boards, Ford claimed, had a pattern of disciplining “everybody who paid a fine or got their doors shut” since 2003.
“They won’t let you tell your side of the story,” Ford said of the boards.
Last February, Ford filed legislation requiring state agencies to report fines of more than $1,000, and suspensions and revocations of licenses for more than seven days to the Legislature’s government operations committees within 72 hours. After the March 7 meeting with Kelley and Cooper, Ford took his bill off notice on March 29.
Shipley had clashed with DOH in 2009. At a constituent’s request, he filed a bill that would require health care providers to release a minor child’s medical test results to their parents.
DOH opposed the bill. Committee testimony delivered by DOH Chief Medical Officer Veronica Gunn touched off a contentious battle between Shipley and the department.
Shipley challenged Gunn’s statements that the bill would abolish doctor-patient confidentiality, cause delayed diagnosis and jeopardize $6.5 million in federal funding going to DOH.
But Shipley took the bill off notice in the waning days of the 2009 legislative session.
In regards to the nurses, Shipley also said he merely asked DOH to review the nursing board’s suspension.
“Nowhere along the way did I ask for a decision or mechanism, I just asked them to agree to hear it,” Shipley said of his request.
Both Shipley and Ford voted for a bill to extend the nursing board’s life near the end of this year’s legislative session, although Shipley had advocated a House amendment to change the board’s makeup.
TBI Steps In
TBI was asked to look at the lawmakers’ actions by Davidson County District Attorney General Torry Johnson.
Johnson’s office declined a Freedom of Information Act (FOIA) query from the Times-News to obtain a copy of his written request for the TBI probe. Investigative records of the TBI, said Johnson’s office, are not public records under state law.
The Times-News also sent a FOIA inquiry to DOH asking for copies of correspondence between nursing board members and Johnson.
“I have checked, and we have no record of any correspondence between individual Tennessee Board of Nursing members and D.A. Torry Johnson,” DOH spokeswoman Andrea Turner said in an e-mail.
With the consent order reinstating their right to practice, Stout and Reynolds have found employment. Killebrew is not employed, according to Elliott.
Another source speaking on background said all three are still considering a lawsuit against the state.
Both Ford and Shipley, meanwhile, remain defiant and feel they have done nothing wrong.
“Bottom line is this: They are trying to intimidate all the legislators to not mess with those boards down there…Everybody I’ve talked to is up in arms about it,” said Ford.
As for the TBI investigation, Shipley said: “It’s political and a shot at me…The community is saying ‘Hang in there, we know what’s going on’…The details will come out…(but) I have been advised by friends who are attorneys to hush.”