Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY Honorable Jerry J.
Rellihan, Associate Circuit Judge
STEFFEN RAHMEYER, P.J.
Stewart ("Stewart") was fired from a nursing home
facility as a licensed practical nurse after being accused of
fraudulently ordering 900 tablets of an opiate pain
medication in the names of various residents. After her
termination from the facility, the Department of Health and
Senior Services ("the Department") conducted an
investigation and substantiated the allegation of
misappropriation of the pain medication. Stewart was notified
that her name would be included on the Employee
Disqualification List ("EDL") as an employee who
had misappropriated funds or property of a resident while
employed in a facility. She appealed to the Missouri
Department of Social Services Administrative Hearings Unit
and, after losing at the hearing, filed a Petition for
Judicial Review. Stewart now appeals the trial court's
affirmation of the Administrative Decision and Order.
brings one point of error, claiming:
The Deputy Director erred in ordering that her name be placed
on the EDL maintained by the Department because it was not
supported by competent and substantial evidence upon the
whole record; was arbitrary, capricious or unreasonable; and
was an abuse of discretion due to its reliance on
inadmissible hearsay evidence and evidence that was allowed
without foundation over appellant's objection.
the point relied on identifies four different issues: whether
the decision is supported by competent and substantial
evidence; whether the decision is arbitrary, capricious or
unreasonable; whether the decision was an abuse of discretion
due to reliance on inadmissible evidence; and whether
evidence was allowed without a proper foundation.
Nevertheless, after citing the standard of review, Stewart
primarily develops an argument that the decision was not
supported by competent and substantial evidence. More
particularly, Stewart argues that there was evidence that was
not produced at trial which would have been more convincing
to the fact-finder. We will address whether there was
substantial evidence to support the judgment by setting forth
our standard of review and the evidence supporting the
standard of review was set forth in Albanna v. State Bd.
of Registration for Healing Arts, 293 S.W.3d
423, 428 (Mo. banc 2009) (footnote 3 omitted):
The correct standard of review for administrative decisions
governed by article V, section 18 of the Missouri
Constitution-which includes healings arts cases-is
"whether, considering the whole record, there is
sufficient competent and substantial evidence to support the
[agency's decision]. This standard would not be met in
the rare case when the [agency's decision] is contrary to
the overwhelming weight of the evidence." Lagud [v.
Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786,
791 (Mo. banc 2004)] (citing Hampton [v. Big Boy
Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003))].
When the agency's decision involves a question of law,
the court reviews the question de novo. State Bd. of
Registration for Healing Arts v. McDonagh, 123 S.W.3d
146, 152 (Mo. banc 2003).
that standard of review in mind, the following evidence was
adduced at the hearing. As noted by the Department, the
material issue in this case was whether Stewart
misappropriated property of a resident, specifically, the
pain killers. To support that issue, a pharmacy technician
testified that nurses from the facility typically called or
faxed prescriptions to the pharmacy on behalf of residents.
The technician spoke with a nurse named "Melissa"
during the relevant time frame. Stewart was the only
"Melissa" who worked at the nursing home during the
time period of the missing 900 tablets. The technician was
able to identify Stewart's signature on a document
showing the medications that were received and checked in at
the nursing home.
certified medical technician at the nursing home testified
that "a resident['s], order for [the opioid] had
been discontinued[.]" The technician marked out the
order on the form and highlighted it, then "removed the
card of [the opioid] from [her] medcart along with the count
sheet and gave them to the charge nurse, [Stewart], so that
she could put them in the --we have a little basket that --
so they could be returned to the pharmacy and
destroyed." Stewart did not return the card to the
pharmacy so that the pharmacy would destroy the medication.
After the Department reviewed pharmacy records, it discovered
orders for the pain reliever for residents who did not have a
physician's order for the medication, and issued a
Disciplinary Warning to Stewart. There was further testimony
that Stewart admitted to ordering the drug, recording the
medication in a log, and then removing the medication from
Stewart points to a supposed weakness in the evidence that
there was not testimony from anyone who saw Stewart remove
the medication from the nursing home, Stewart's argument
is misplaced. The Department properly found that Stewart
misappropriated property of a resident by finding that
Stewart fraudulently ordered and received at the nursing home
over 900 painkillers that were not given to or used by the
residents. Stewart's point is denied.
judgment is affirmed.
Jeffery W. ...