                                                                                           12/19/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 9, 2017 Session

   CATHERINE J. HOLLAHAN V. TENNESSEE DEPARTMENT OF
                       HEALTH

             Appeal from the Chancery Court for Davidson County
               No. 15-1168-IV    Russell T. Perkins, Chancellor


                           No. M2017-00629-COA-R3-CV


An advanced practice nurse worked at three different testosterone clinics in the Memphis
area and was charged with violating portions of the Nursing Practice Act and the rules
and regulations governing nurses. The Tennessee Board of Nursing (the “Board”) held a
hearing and determined that the evidence supported many of the alleged offenses. The
Board revoked the nurse’s certificate to practice as an advanced practice nurse, revoked
the nurse’s license to practice as a registered nurse in Tennessee and the multistate
privilege to practice in any other party state, and assessed civil penalties against her that
totaled $7,200. The nurse sought judicial review of the Board’s decision, and the trial
court affirmed the Board’s decision. The nurse then appealed the Board’s decision to this
court. Concluding that substantial and material facts support the Board’s findings, we
affirm the Board’s decision.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed,
                                   as Modified

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.

William C. Sessions, Memphis, Tennessee, for the appellant, Catherine J. Hollahan.

Herbert H. Slatery, III, Attorney General and Reporter, and Sara Elizabeth Sedgwick,
Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Health.
                                              OPINION
                          I. FACTUAL AND PROCEDURAL BACKGROUND

       The Board certified Catherine J. Hollahan as a registered nurse in 1993 and as an
advanced practice nurse1 in 2006. Ms. Hollahan worked as an advanced practice nurse in
testosterone clinics beginning in 2008. She worked at Ageless Men’s Health
Testosterone Replacement Clinic (“Ageless”) from May 2008 until April 2011, she
worked at Body for Life from May 2011 until September 2013, and she was a part owner
of and worked at New Life Testosterone Clinic (“New Life”) from November 2013 until
June 2014. On January 16, 2015, the Board filed a Notice of Hearing and Charges and
Memorandum for Assessment of Civil Penalties (“the Notice”) against Ms. Hollahan.
The charges included practicing without filing a notice and formulary with the Board as
required by Tenn. Code Ann. § 63-7-123(b)(1); consuming alcohol and exhibiting
impaired behavior during the workday; injecting herself with testosterone without
authorization; prescribing medication outside her scope and failing to include these
prescriptions in the patients’ charts; engaging in a sexual relationship with a patient while
employed at Body for Life; fraudulently billing insurance companies for services she did
not provide; and providing incompetent care to patients by failing to assess or order lab
work before prescribing medications.

        The Board held a hearing on August 5, 2016, during which several individuals
testified. Following the hearing and the Board members’ deliberations, the Board
announced its decision and issued a Final Order. The Board made the following Findings
of Fact:

        1. Respondent has been at all times pertinent hereto certified by the Board
        as an advanced practice nurse in the State of Tennessee, having been
        granted certificate number 12232 on September 6, 2006, which currently
        has an expiration date of November 30, 2016. Respondent’s advanced
        practice nurse certificate is active and valid in the State of Tennessee only.

        2. Respondent has been at all times pertinent hereto licensed by the Board
        as a registered nurse in the State of Tennessee, having been granted license
        number 96704 on September 22, 1993, which currently has an expiration
        date of November 30, 2016. Respondent’s registered nurse license is active
        and bears a multistate privilege to practice nursing in states which have
        entered into the Interstate Nurse Licensure Compact.


1
 Tennessee Code Annotated section 63-7-126 defines an “advanced practice registered nurse” as “a
registered nurse with a master’s degree or higher in a nursing specialty and national specialty certification
as a nurse practitioner, nurse anesthetist, nurse midwife or clinical nurse specialist.”
                                                   -2-
3. Between May 2008 and April 2011, Respondent was employed as a
nurse practitioner at Ageless Men’s Health Testosterone Replacement
Clinic (“Ageless Men’s Health”) in Shelby County, Tennessee. Respondent
was observed consuming alcohol inside Ageless Men’s Health while
treating patients on numerous occasions and exhibiting impaired behavior.

4. Respondent, between May 2011 and September 2013, was employed as
a nurse practitioner by Body for Life, a men’s health clinic in Bartlett,
Tennessee. During her tenure at Body for Life, Respondent was observed
exhibiting impaired behavior while at work and smelling of alcohol.

5. In 2012, patient W.A. came to Body for Life and was treated by
Respondent. Respondent diagnosed W.A. with depression and prescribed
her Xanax, Ambien, and antidepressants, which was outside Respondent’s
scope of employment. Respondent did not chart the visit or complete an
assessment of the patient.

6. Respondent was observed injecting herself with testosterone belonging
to Body for Life without authorization.

7. Respondent engaged in a sexual relationship with patient J.R. while
employed at Body for Life.

8. Between November 2013 and June 3, 2014, Respondent worked as a
nurse practitioner and was part owner of New Life Testosterone Clinic
(“New Life”) in Arlington, Tennessee. During her tenure there, Respondent
would frequently leave for lunch and retire to her truck with instructions to
page her if a patient arrived to be treated.

9. Respondent was frequently observed exhibiting impaired behavior and
smelling of alcohol while treating patients at New Life.

10. Frequently, Respondent would tell the medical assistant what to
prescribe the patient even though Respondent never assessed or treated the
patient.

11. Respondent did not provide competent care to several patients while
practicing as an advanced practice nurse at New Life including failure to
assess patients, failure to order lab work, and treating patients without a
formulary.




                                    -3-
        12. Respondent has never once filed a notice and formulary with the
        Tennessee Board of Nursing pertaining to any of her employment as an
        advanced practice nurse.

        The Board then made the following Conclusions of Law:2

        The Board, having jurisdiction over this matter, finds the facts in this Order
        are sufficient to establish that the Respondent has violated the following
        provisions of Tenn. Code Ann. § 63-7-101, et seq., and the Official
        Compilation Rules and Regulations of the State of Tennessee for the Board
        of Nursing (Tenn. Comp. R. & Regs.) 1000-1-.01, et seq.

        13. The facts enumerated in paragraphs three (3), four (4), and nine (9)
        constitute a violation of Tenn. Code Ann. § 63-7-115(a)(1):

                (C) Is unfit or incompetent by reason of negligence, habits or other
                cause.
                (F) Is guilty of unprofessional conduct.

        14. The facts enumerated in paragraphs three (3), four (4), and [nine (9)]
        constitute a violation of Tenn. Comp. R. & Regs. 1000-1-.13(1), which
        defines “unprofessional conduct, unfitness or incompetency by reason of
        negligence, habits or other cause” as including, but not limited to:

                (f) The use of any intoxicating beverage or the illegal use of
                any narcotic or dangerous drug while on duty in any health
                care facility, school, institution, or other work place location;
                (g) Being under the influence of alcoholic beverages, or under
                the influence of drugs which impair judgment while on duty
                in any health care facility, school, institution or other work
                place location.

        15. The facts enumerated in paragraphs five (5) and [seven (7)] constitute a
        violation of Tenn. Code Ann. § 63-7-115(a)(1):

                (C) Is unfit or incompetent by reason of negligence, habits or
                other cause.
                (F) Is guilty of unprofessional conduct.

2
 In the Conclusions of Law section of its Final Order, the Board mistakenly referenced paragraph
numbers from the State’s proposed order, which differed from those in the Findings of Fact section of the
Final Order. To avoid confusion and maintain consistency, we will cite to the correct paragraph numbers
throughout this opinion, and we will place the corrected numbers within brackets.
                                                  -4-
          16. The facts enumerated in paragraphs [five (5), seven (7), eight (8), ten
          (10), and eleven (11)] constitute a violation of Tenn. [Comp.] R. & Regs.
          1000-1-.13(1), which defines “unprofessional conduct, unfitness or
          incompetency by reason of negligence, habits or other cause” as including,
          but not limited to:

                  (b) Failure to maintain a record for each patient which
                  accurately reflects the nursing problems and interventions for
                  the patient and/or failure to maintain a record for each patient
                  which accurately reflects the name and title of the nurse
                  providing care;
                  (t) Over-prescribing, or prescribing in a manner inconsistent
                  with Rules 1000-04-.08 and 1000-04-.09;
                  (u) Practicing professional nursing in a manner inconsistent
                  with T.C.A. § 63-7-103.[3]



3
    Tennessee Code Annotated section 63-7-103 provides:

          (a)(1) “Practice of professional nursing” means the performance for compensation of any
          act requiring substantial specialized judgment and skill based on knowledge of the
          natural, behavioral and nursing sciences and the humanities as the basis for application of
          the nursing process in wellness and illness care.
          (2) “Professional nursing” includes:
          (A) Responsible supervision of a patient requiring skill and observation of symptoms and
          reactions and accurate recording of the facts;
          (B) Promotion, restoration and maintenance of health or prevention of illness of others;
          (C) Counseling, managing, supervising and teaching of others;
          (D) Administration of medications and treatments as prescribed by a licensed physician,
          dentist, podiatrist, or nurse authorized to prescribe pursuant to § 63-7-123, or selected,
          ordered, or administered by an advanced practice registered nurse specializing as a
          certified registered nurse anesthetist (CRNA) during services ordered by a physician,
          dentist, or podiatrist and provided by a CRNA in collaboration with the ordering
          physician, dentist, or podiatrist that are within the scope of practice of the CRNA and
          authorized by clinical privileges granted by the medical staff of the facility. A CRNA
          shall collaborate in a cooperative working relationship with the ordering physician,
          dentist, or podiatrist in the provision of patient care, which includes consultation
          regarding patient treatment and cooperation in the management and delivery of health
          care;
          (E) Application of such nursing procedures as involve understanding of cause and effect;
          and
          (F) Nursing management of illness, injury or infirmity including identification of patient
          problems.
          (b) Notwithstanding the provisions of subsection (a), the practice of professional nursing
          does not include acts of medical diagnosis or the development of a medical plan of care
          and therapeutics for a patient, except to the extent such acts may be authorized by §§ 63-
          1-132, 63-7-123 and 63-7-207.
                                                     -5-
              (w) Engaging in acts of dishonesty which relate to the
              practice of nursing.

       17. The facts enumerated in paragraph[] [six (6)] constitute a violation of
       Tenn. Comp. R. & Regs. 1000-1-.13(1), which defines “unprofessional
       conduct, unfitness or incompetency by reason of negligence, habits or other
       cause” as including, but not limited to:

              (e) Unauthorized use or removal of narcotics, drugs, supplies,
              or equipment from any health care facility, school, institution
              or other work place location.
              (w) Engaging in acts of dishonesty which relate to the
              practice of nursing.

       18. Respondent’s acts and conduct enumerated in paragraph [twelve (12)]
       constitute violations of Tenn. Code Ann. § 63-7-115(a)(1):

              (G) Has violated or attempted to violate, directly or
              indirectly, or assisted in or abetted the violation of, or
              conspired to violate, any provision of this chapter or any
              lawful order of the board issued pursuant thereto.

       19. The facts stipulated in paragraph [twelve (12)] constitute a violation of
       Tenn. Code Ann. § 63-7-123(b)(1):

              A nurse who has been issued a certificate of fitness as a nurse
              practitioner pursuant to § 63-7-207 and this section shall file a
              notice with the board, containing the name of the nurse
              practitioner, the name of the licensed physician having
              supervision, control and responsibility for prescriptive
              services rendered by the nurse practitioner and a copy of the
              formulary describing the categories of legend drugs to be
              prescribed and/or issued by the nurse practitioner. The nurse
              practitioner shall be responsible for updating this information.

       The Board then ordered that Ms. Hollahan’s certificate to practice as an advanced
practice nurse and her license to practice as a registered nurse in Tennessee, as well as the
multistate privilege to practice in any other party state, “shall be and are hereby revoked.”
The Board assessed penalties against Ms. Hollahan that totaled $7,200. The penalties
included the following: three Type A civil penalties in the amount of $1,000 each, with
each penalty representing the three testosterone facilities where Ms. Hollahan worked; six
Type C civil penalties in the amount of $200 each for the first six months of employment
in 2008 when Ms. Hollahan had no notice or formulary on file as legally required; and

                                            -6-
thirty additional Type C civil penalties in the amount of $100 each for the thirty
subsequent months when Ms. Hollahan had no notice or formulary on file. Finally, the
Board assessed the costs of the hearing against Ms. Hollahan in an amount not to exceed
$20,000, which was payable within twenty-four months from the date when the
Assessment of Costs was issued.

       Ms. Hollahan appealed the Board’s Final Order to the chancery court, which
affirmed the Board’s decision and choice of sanctions.4 Ms. Hollahan then appealed the
Board’s decision to this court. Ms. Hollahan argues that the Board erred by (1) adding a
charge during its deliberations without providing notice to Ms. Hollahan or providing her
with an opportunity to prepare a defense to the new charge and (2) reaching conclusions
of law that were not supported by substantial and material evidence.

                                            II. ANALYSIS

       A. Standard of Review

       Judicial review of agency decisions is authorized by the Uniform Administrative
Procedures Act, Tenn. Code Ann. §§ 4-5-101‒502 (the “UAPA”). Under the UAPA, a
reviewing court does not sit as a trial court and does not consider the record de novo. See
Wayne Cnty. v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct.
App. 1988). The court’s review is limited to the administrative record, Tenn. Code Ann.
§ 4-5-322(g), and the court defers to the findings by the administrative agency acting
within its area of expertise, StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d 659, 668-69
(Tenn. 2016); Wayne Cnty., 756 S.W.2d at 279. As our Supreme Court has explained,
reviewing courts “do not second-guess the agency as to the weight of the evidence . . .
even if the evidence could support a different result.” StarLink Logistics, 494 S.W.3d at
669 (citations omitted).

       The UAPA permits the reviewing court to reverse or modify the administrative
decision if the petitioner’s rights have been prejudiced because the decision, findings,
inferences, or conclusions are:

       (1) In violation of constitutional or statutory provisions;

       (2) In excess of the statutory authority of the agency;

       (3) Made upon unlawful procedure;


4
 The chancery court modified the Board’s finding in paragraph 7 to find that Ms. Hollahan engaged in “an
inappropriate romantic relationship” rather than “an inappropriate sexual relationship” with a patient
while employed at Body for Life.
                                                 -7-
       (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion; or

       (5)(A) Unsupported by evidence that is both substantial and material in the
       light of the entire record.

Tenn. Code Ann. § 4-5-322(h). The StarLink Logistics Court addressed the “arbitrary or
capricious” language of the statute thusly:

       A decision is arbitrary or capricious if it “is not based on any course of
       reasoning or exercise of judgment, or . . . disregards the facts or
       circumstances of the case without some basis that would lead a reasonable
       person to reach the same conclusion.” “If there is room for two opinions, a
       decision is not arbitrary or capricious if it is made honestly and upon due
       consideration, even though [a reviewing court] think[s] a different
       conclusion might have been reached.” The “arbitrary or capricious”
       standard is a limited scope of review, and a court will not overturn a
       decision of an agency acting within its area of expertise and within the
       exercise of its judgment solely because the court disagrees with an agency’s
       ultimate conclusion.

Starlink Logistics, 494 S.W.3d at 669-70 (citations omitted).

        The UAPA provides that “[i]n determining the substantiality of evidence, the court
shall take into account whatever in the record fairly detracts from its weight, but the court
shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.” Tenn. Code Ann. § 4-5-322(h)(5)(B). The statute does not explain
what evidence should be considered “substantial and material,” but the courts have
determined that this standard is “less than a preponderance of the evidence” but “more
than a ‘scintilla or glimmer.’” StarLink Logistics, 494 S.W.3d at 669 (citing Wayne
Cnty., 756 S.W.2d at 280); see also Pace v. Garbage Disposal Dist., 390 S.W.2d 461,
463 (Tenn. Ct. App. 1965). Substantial and material evidence has been described as
‘“such relevant evidence as a reasonable mind might accept to support a rational
conclusion and such as to furnish a reasonably sound basis for the action under
consideration.”’ Clay Cnty. Manor, Inc. v. State Dep’t of Health & Env’t, 849 S.W.2d
755, 759 (Tenn. 1993) (quoting S. Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196,
199 (Tenn.1984)). “No agency decision pursuant to a hearing in a contested case shall be
reversed, remanded or modified by the reviewing court unless for errors that affect the
merits of such decision.” Tenn. Code Ann. § 4-5-322(i).




                                            -8-
           B. Removal and Self-Injection of Testosterone

      In its Notice, the Board charged Ms. Hollahan with removing testosterone from
Body for Life without authorization and injecting herself with it. The Board asserted this
conduct violated Tenn. Comp. R. & Regs. 1000-01-.13(1), which states:

           (1) Unprofessional conduct, unfitness, or incompetency by reasons of
           negligence, habits or other causes, as those terms are used in the statute, is
           defined as, but not limited to, the following:

           ....

           (e) Unauthorized use or removal of narcotics, drugs, supplies, or equipment
           from any health care facility, school, institution or other work place
           location;

           ....

           (w) Engaging in acts of dishonesty which relate to the practice of nursing.

       During the hearing, the Board questioned Samantha Nix about Ms. Hollahan’s use
of testosterone at Body for Life. Ms. Nix was a medical assistant and office manager at
Body for Life during a portion of the time when Ms. Hollahan worked there.

           Q: Did you ever observe Ms. Hollahan using any medical products or
           medications while at Body for Life?

           A: Yes, I did.

           Q: Can you tell us about those incidents?

           A: She used testosterone; she self-injected herself.

           Q: Did you personally witness her injecting herself?

           A: Yes, I did.

Ms. Hollahan admitted injecting herself with testosterone. She testified that one of the
owners of Body for Life, Steve Tormina, authorized her to use testosterone and that no
other owner ever withdrew that authorization.5 Ms. Hollahan then testified that the other
owner, Anthony Terhune, knew she was taking testosterone and that he never told her to

5
    Mr. Tormina did not testify at the hearing or offer evidence by way of affidavit or declaration.
                                                      -9-
stop taking it. However, Mr. Terhune provided an affidavit dated July 21, 2015,
contradicting Ms. Hollahan’s testimony. Mr. Terhune swore under oath as follows:

      3. I did not give permission, verbal or otherwise, for Catherine Hollahan to
      take testosterone or any other medical product belonging to the clinic for
      her own personal use.

      4. I did not give permission, verbal or otherwise, to Catherine Hollahan to
      inject herself with testosterone belonging to the clinic for any purpose.

      5. I have no recollection of a conversation related to her need for
      testosterone due to low energy or for any other purpose.

       During their deliberations, the Board members discussed, inter alia, whether Ms.
Hollahan had a prescription for testosterone and agreed that a prescription was necessary
for anyone taking testosterone.

      Mr. Earwood: [Testosterone] is a medicine that requires a prescription.
      You can’t self-prescribe testosterone, and we never heard that she actually
      had a prescription to self - -

      Ms. Cecil: That’s correct. We did not.

      ....

      Mr. Earwood:      . . . [W]e do agree that she injected herself without a
      prescription.

      ....

      Ms. Cecil: So Number [9] we would amend to say that we agree that the
      respondent was injecting herself with testosterone without a prescription.

        Ms. Hollahan is correct in stating that she was not formally charged with taking
testosterone without a prescription and that no evidence was submitted regarding whether
she had a prescription for testosterone. However, regardless of the Board members’
discussion of the need for a prescription, the Board’s Final Order does not reflect this
aspect of their deliberations and does not mention anything about a prescription. Instead,
the Board made the finding of fact in paragraph six that Ms. Hollahan “was observed
injecting herself with testosterone belonging to Body for Life without authorization.” In
its Conclusions of Law, the Board held in paragraph seventeen that the findings set forth
in paragraph six constituted a violation of Tenn. Comp. R. & Regs. 1000-1-.13(1)(e) and
(w), set forth above.

                                          - 10 -
      The Board’s Final Order is the operative document to consider in determining
whether Ms. Hollahan was sanctioned for engaging in conduct that was not included in
the Notice, not the Board members’ discussion during their deliberations. As the Court
of Appeals has explained,

      [W]hat is of greatest importance is the order of the Board. The appellant
      must carry a heavy burden to show that the Board’s findings were
      arbitrarily made. It would be difficult to carry that burden by merely
      pointing out that statements made by the agency members during
      deliberations failed to address all of the essential points in the case. We
      hold that the statements made by the individual members during their
      deliberations do not show, as a matter of law, that their decision was
      arbitrary and capricious.

Sierra Club v. Tenn. Dep’t of Health & Env’t, No. 01-A-01-9203CH00131, 1992 WL
288870, at *2 (Tenn. Ct. App. Oct. 16, 1992).

       “Courts customarily defer to adjudicatory determinations made by administrative
agencies acting within their area of specialized knowledge, experience, and expertise.”
Martin v. Sizemore, 78 S.W.3d 249, 269 (Tenn. Ct. App. 2001). As a result, “courts do
not substitute their own judgment for that of a board or agency with regard to the weight
of the evidence.” Id. As the StarLink Logistics Court has written, we are not to second-
guess the agency’s decision with regard to the weight of the evidence, even when the
evidence could support a different result. StarLink Logisitics, 494 S.W.3d at 669.
Despite Ms. Hollahan’s testimony that the owners of Body for Life were aware of her
testosterone use and authorized her to use the testosterone belonging to Body for Life,
Mr. Terhune’s affidavit contradicts this testimony. We hold that the Board’s finding of
fact set forth in paragraph six was supported by substantial and material evidence, and
we, therefore, affirm the Board’s conclusion of law as set forth in paragraph seventeen of
the Final Order.

      C. Remaining Allegations

        Ms. Hollahan asserts that the remaining charges against her were not supported by
substantial and material evidence and should be reversed on appeal. We will address the
remaining allegations one by one to determine whether substantial and material evidence
exists in the record to support the Board’s findings of fact and conclusions of law.




                                          - 11 -
              1. Notice and Formulary

       The Board found in paragraph twelve of its Final Order that Ms. Hollahan never
filed a notice and formulary6 pertaining to any of her jobs working as an advanced
practice nurse, and it concluded in paragraph 18 that this constituted a violation of Tenn.
Code Ann. § 63-7-115(a)(1), quoted above. Filing a formulary is required by Tenn. Code
Ann. § 63-7-123(b)(1), which states:

       A nurse who has been issued a certificate of fitness as a nurse practitioner
       pursuant to § 63-7-207 and this section shall file a notice with the board,
       containing the name of the nurse practitioner, the name of the licensed
       physician collaborating with the nurse practitioner who has control and
       responsibility for prescriptive services rendered by the nurse practitioner,
       and a copy of the formulary describing the categories of legend drugs to be
       prescribed and/or issued by the nurse practitioner. The nurse practitioner
       shall be responsible for updating this information.

Ms. Hollahan does not dispute that she has never filed a formulary with the Board, and
she signed a stipulation to this effect. Ms. Hollahan does not challenge this finding or
conclusion of law on appeal.

              2. Alcohol Usage

       The Board found in paragraph three of its Final Order that Ms. Hollahan was
observed consuming alcohol at Ageless while treating patients and that she exhibited
impaired behavior. In paragraph four the Board found that Ms. Hollahan was observed
exhibiting impaired behavior at Body for Life and smelling of alcohol. In paragraph nine
the Board found that Ms. Hollahan was observed on frequent occasions exhibiting
impaired behavior and smelling of alcohol while treating patients at New Life.

       Mike Harrison was the vice president of administration for Ageless starting in
2010, and he testified that Ms. Hollahan “had been consuming alcoholic beverages while
on the job, and that was against our policy.” Mr. Harrison testified that when he
confronted her in April 2011, Ms. Hollahan admitted to this. Mr. Harrison was asked at
the hearing whether he was “absolutely sure that she admitted that she had been
consuming alcohol,” and he responded: “Yes, I am.” Mr. Harrison then explained that
he terminated Ms. Hollahan’s employment at Ageless at that point.

     Robbie Harker worked as the front office coordinator/receptionist at Ageless while
Ms. Hollahan worked there, and Ms. Harker testified that Ms. Hollahan had “alcohol in

6
 “Formulary” is defined as “[a]n official list giving details of prescribable medicines.”
https://en.oxforddictionaries.com/definition/formulary.
                                          - 12 -
her possession while she was on duty as a nurse.” Ms. Harker testified that Ms. Hollahan
kept it in a cup with a lid and a straw and that she had it with her every day.

       Ms. Nix testified as follows about Ms. Hollahan’s alcohol consumption at Body
for Life:

      Q: Did you ever have concerns that Ms. Hollahan was consuming alcohol
      while on duty as a nurse?

      A: I did.

      Q: What made you have those concerns?

      A: She would make jokes about not having enough wine with her Cheerios
      or needing to refill her sippy cup.

      Q: What is - - When you say “sippy cup,” what do you mean by that?

      A: She would have a water bottle with her almost every day, and she
      would go outside and come back in and it would be refilled.

      Q: Was this a transparent water bottle? Could you see through it?

      A: It was like one of those cheap, clear, “the banks normally give you for
      free” water bottles. Yes, you can see right through it.

      Q: What color was the liquid inside the bottle?

      A: Red or dark maroon.

      ....

      Q: Did you ever personally observe Ms. Hollahan smelling of alcohol
      while she was on duty?

      A: I did. . . .

      Q: About how often would you say that you personally observed her
      smelling of alcohol?

      A: Several times during the workweek.



                                         - 13 -
      Q: Did you ever observe any other kind of what you would classify as
      impaired behavior?

      A: She would get loud and obnoxious.

      ....

      Q: Did you ever see any other behavior that led you to believe that she
      might be impaired or consuming alcohol while on duty as a nurse?

      A: Yes.

      Q: What was that?

      A: She would get loud. She would get very obnoxious, even to patients.
      She would make inappropriate jokes, just out of the normal behavior.

      ....

      Q: Did you ever see her - - aside from the bottle you mentioned, did you
      ever see her consuming alcohol inside the premises?

      A: Yes.

      Q: And when was that?

      A: When she would go outside and refill her water bottle and come back in
      and go to her desk.

      Tiffany Wright was a medical assistant at the time of the hearing, and she worked
with Ms. Hollahan at both Body for Life and New Life. Ms. Wright testified about Ms.
Hollahan’s alcohol use as follows:

      Q: While at Body for Life, did you ever suspect that Ms. Hollahan may
      have been engaging in any poor behavior for a nurse while she was on
      duty?

      A: Yes.

      Q: What did you think might be happening?

       A: Drinking.


                                        - 14 -
      Q: What made you think Ms. Hollahan may have been consuming alcohol?

      A: The smell sometimes was just overwhelming and then a red face and
      also [she] had cough drops.

      ....

      Q: Did you ever observe her with any slurred speech or other behavior that
      made you concerned she might be consuming alcohol while on duty?

      A: On just rare occasions, there were a couple of incidents of slurred
      speech.

      ....

      A: I saw her drinking out of a styrofoam cup.

      ....

      Q: . . . [Y]ou are telling me that this happened every day?

      A: Hm-hmm.

      ....

      Q: She came in intoxicated every day?

      A: Yes.

      Q: She came in drinking every day?

      A: Yes.

Ms. Wright further testified that she “observe[d] the same type of behavior . . . at New
Life that [she] did at Body for Life” with regard to Ms. Hollahan’s alcohol consumption.

       Ms. Harker also worked with Ms. Hollahan at New Life after she left Ageless.
She testified that she did not observe Ms. Hollahan with alcohol in her possession at New
Life, but she did smell alcohol on Ms. Hollahan in the office and she heard Ms. Hollahan
talk with slurred speech. Ms. Harker explained:

      There were times when she would be there and I could smell alcohol. . . .
      [T]here would have been a couple of times where there was some slurred

                                         - 15 -
        speech, where I could tell it was not a normal speech pattern of hers. It was
        a little bit different. It was a slurred speech pattern. Just from knowing her
        and talking to her every day, one thing is a normal sound and the other
        thing is not.

        Ms. Hollahan denied drinking while she was working at any of the testosterone
clinics. She admitted drinking one time at Body for Life, but she testified that this was
after hours and took place around the holidays. Ms. Hollahan testified that she used
throat lozenges to control coughing that was caused by one of her medications and that
she was a heavy smoker and used mouth wash to cover up her smoker’s breath. She
claimed that the other witnesses mistook the smell of the lozenges for alcohol.

       Timothy Long, who was an owner of New Life, created a note for Ms. Hollahan’s
personnel file documenting that on April 11, 2014, he, Ms. Wright, and Ms. Harker
noticed that Ms. Hollahan had been drinking. The note stated that they “could clearly
smell alcohol on her breath along with a flushed face and erratic behavior.” Ms.
Hollahan introduced evidence indicating that she did not work on April 11, 2014, and she
argues that this note was falsified.7 According to Ms. Hollahan, this contradictory
evidence proves that a reasonable mind could not have concluded that she consumed
alcohol while working at New Life.

       Ms. Hollahan is asking this court to reweigh the evidence presented at the hearing,
which we are not authorized to do. See MobileComm of Tenn., Inc. v. Tenn. Pub. Serv.
Comm’n, 876 S.W.2d 101, 104 (Tenn. Ct. App. 1993) (“This court may not substitute its
judgment for that of the agency in reviewing the evidence.”). Although evidence was
presented that Ms. Hollahan was consuming alcohol at New Life on a day when she may
not, in fact, have been working at New Life, other evidence was presented that she was
observed on other occasions at New Life smelling of alcohol and acting in an impaired
manner. Further, evidence was introduced that Ms. Hollahan consumed alcohol while
working at Ageless and Body for Life. ‘“The judicial function is exhausted when there is
found to be a rational basis for the conclusions approved by the administrative body.”’
Blue Ridge Transp. Co. v. Pentecost, 343 S.W.2d 903, 906 (Tenn. 1961) (quoting Miss.
Valley Barge Line Co. v. United States, 292 U.S. 282, 286-87 (1934)). We conclude that
7
 When one of the Board members pointed out to Ms. Wright that other evidence showed Ms. Hollahan
did not work on April 11, 2014, Ms. Wright indicated that it was possible the date on the statement was
incorrect. Ms. Wright told the Board members that she was certain the events described in the note did, in
fact, happen, and that “this type of behavior” happened more than once. When the Board members told
Ms. Harker that other evidence showed Ms. Hollahan did not work on April 11, 2014, Ms. Harker
responded:

        I can just tell you personally that that day was one of the days that I knew something was
        different in the speech. I knew that there was a difference in odor. My father drank and
        smoked, and I know the smell. I know the odor that I was made aware of that day in her
        presence. And I would not have written that, signed that, if that was not the truth.
                                                 - 16 -
the record contains substantial and material evidence to support the Board’s findings of
fact set forth in paragraphs three, four, and nine. Accordingly, we affirm the Board’s
conclusions of law set forth in paragraphs thirteen and fourteen of its Final Order in
which the Board concluded that Ms. Hollahan’s conduct violated Tenn. Code Ann. § 63-
7-115(a)(1)(C) and (F) as well as Tenn. Comp. R. & Regs. 1000-1-.13(1)(f) and (g), the
provisions of which are set forth above.

             3a. Relationship with Patient J.R.

       In paragraph seven of its Final Order, the Board found that Ms. Hollahan
“engaged in a sexual relationship with patient J.R. while employed at Body for Life.”
The evidence introduced in support of this finding included testimony from Ms. Nix as
well as text messages from Ms. Hollahan to J.R. that Ms. Hollahan confirmed were hers.
Ms. Nix testified as follows:

      Q: To your knowledge, did Ms. Hollahan ever engage in a personal
      relationship with any patients? . . .

      A: Yes.

      Q: And using initials, can you tell us the name of that patient?

      A: J.R.

      Q: How do you have personal knowledge of this relationship?

      A: Ms. Hollahan told me.

      Q: Can you please describe those conversations?

      A: When J.R. would come into the clinic, no one was allowed to see him.
      She would say . . . stuff like, “Send my f**k buddy back,” and they would
      be back there for long periods of time in the clinic.

      Q: Was that a one-time thing, or where there other examples of these types
      of statements?

      A: She was very open about who J.R. was. She would read off their
      conversations to me. Some were very vulgar, talking about oral sex with
      each other and things like that.

      The following portion of Ms. Hollahan’s text conversation with J.R. dated Friday,


                                          - 17 -
April 25, 2014, and taking place between 10:46 and 11:21 p.m., was introduced as an
exhibit:

      J.R.: Just haven’t been hearing from you much..

      C.H.: I know :( But I’m back now. :-) :-)

      J.R. You sure!?

      C.H.: Oh yes!!

      J.R.: When and how will you show me

      C.H.: That im not sure of but ill make it good :-) :-)

      J.R.: Uh huh, you don’t even miss me

      C.H.: Shut up and go to bed. I think you know better.

      J.R.: Babe

      C.H.: Lol, well. Baby im so sleepy I have to go to bed. I love you and miss
      you. PROMISE!!

Ms. Hollahan denied that she was sexually involved with J.R. She testified about the text
messages as follows:

      Q: Do you call other patients baby?

      A: Yes.

      Q: And you say I love you to other patients?

      A: I have.

      Q: Do you feel like that’s an appropriate relationship between a provider
      and a patient?

      A: We developed a relationship between provider and patient that
      developed to that degree.

      Q: And what degree is that?


                                          - 18 -
      A: A strong friendship.

      ....

      Q: And you don’t remember what you were going to make good for him
      with smiley faces?

      A: No, I do not.

             3b. Prescription of Xanax and Ambien

       In paragraph five, the Board found that while she was working at Body for Life,
Ms. Hollahan diagnosed patient W.A. with depression and prescribed Ambien and Xanax
for her, which drugs were outside the scope of Ms. Hollahan’s employment. The Board
also found that Ms. Hollahan failed to complete an assessment of W.A. or chart W.A.’s
visit.

        Eddie Michael Diaz was a part owner of Body for Life when Ms. Hollahan
worked there. Mr. Diaz was asked at the hearing about the types of prescriptions the
clinic’s providers were permitted to prescribe for patients. Mr. Diaz responded that the
protocols approved by the physician in the office included testosterone, phentermine,
sinus cocktails, B12 shots, and lipotropic shots. Mr. Diaz testified that when he spoke
with Ms. Hollahan about limiting her prescriptions to these drugs, Ms. Hollahan told him
to mind his own business and not tell her how to treat patients.

       W.A. testified that Ms. Hollahan failed to perform a medical assessment or
physical exam prior to prescribing Xanax, Lexapro, and Ambien for her. According to
W.A., Ms. Hollahan failed to do any blood work on her, asked for no contact information
of her previous doctor for the purpose of obtaining medical records, and failed to discuss
any possible dangerous interaction between the drugs before giving her a prescription for
these three medications. W.A. testified that she was not taking these drugs prior to
coming in to see Ms. Hollahan at Body for Life and that Ms. Hollahan refilled her
prescriptions for “about two years” even though W.A. did not return to the clinic for
another face-to-face visit with Ms. Hollahan.

       Ms. Hollahan admitted prescribing Xanax, Lexapro, and Ambien for W.A., and
she testified that Henry Stamps, who was the medical director at Body for Life at that
time, authorized her to prescribe these drugs for W.A. She explained that the Lexapro
and Xanax were to treat W.A.’s depression and the Ambien was to help her sleep. Ms.
Hollahan also testified that she created a chart for W.A. Ms. Hollahan’s testimony
contradicted that of Ms. Nix, who testified that she could not find a chart for W.A. when
she was looking for it to assist Ms. Hollahan in refilling W.A.’s prescriptions.


                                          - 19 -
      Based on the evidence introduced at the hearing, the Board concluded that Ms.
Hollahan’s relationship with J.R. and her prescription of Xanax, Lexapro, and Ambien to
W.A. constituted violations of Tenn. Code Ann. § 63-7-115(a)(1)(C) and (F) as well as
Tenn. Comp. R. & Regs. 1000-1-.13(1)(b), (t), (u), and (w), set forth above. We
conclude that substantial and material evidence was introduced at the hearing to support
the Board’s findings of fact with respect to both paragraphs five and seven and affirm the
Board’s conclusions of law set forth in paragraphs fifteen and sixteen.8

                4. Incompetent Care of Patients

        In paragraph ten the Board found that Ms. Hollahan would frequently tell her
medical assistant what to prescribe for a patient when Ms. Hollahan failed to assess or
treat the patient first. In paragraph eleven, the Board found that Ms. Hollahan failed to
provide competent care to several patients at New Life by failing to assess the patients or
order lab work and treating the patients without a formulary.

       The evidence supporting the Board’s findings included testimony from Ms.
Harker, Ms. Nix, Ms. Wright, Mr. Long, and an expert witness. Ms. Harker testified that
when she worked at New Life, she often noticed that Ms. Hollahan would mark a
patient’s encounter form, which was used for billing purposes, that she had seen the
patient when, in reality, she had not.

        Q: Do you have personal knowledge of Ms. Hollahan filling out encounter
        forms indicating that she had seen a patient when you knew she, in fact, had
        not?

        A: Yes.

        Q: How many times did you see that?

        A: I don’t know a count of times, but it was a lot. Several.

      Ms. Nix testified that if a new patient came in to Body for Life while Ms.
Hollahan was not in the office, Ms. Hollahan instructed Ms. Nix to call her on her cell
phone and Ms. Hollahan would tell Ms. Nix how to treat the patient.

        Q: So what would happen if a patient showed up to be treated during the
        day when Ms. Hollahan wasn’t there? Was there another provider?

8
 Although the trial court modified the Board’s finding to conclude that Ms. Hollahan engaged in “an
inappropriate romantic relationship” rather than “an inappropriate sexual relationship,” we find the record
supports the Board’s finding that Ms. Hollahan was engaged in an inappropriate sexual relationship with
a patient while working at Body for Life.
                                                  - 20 -
      A: There was not.

      Q: So take me through what you do with a patient who shows up to be
      treated when there is no provider present.
      A: If they are an existing patient, I would just normally give them their
      injection and send them on their way. If they were a new patient, I was
      supposed to call [Ms. Hollahan].

      Q: And did she tell you to do that?

      A: Yes.

      Q: Did she ever, when she returned to the office, review the charts of those
      patients on whom [sic] you had treated?

      A: Not to my knowledge.

Ms. Wright gave similar testimony. She testified as follows:

      Q: What specific instructions did she give you for the patient if they
      showed up while she was away?

      A: We just did our normal duties. We drew blood, went over the - - like,
      we told them what we did in the clinic and what went on when you started
      getting injections. And we had - - we had a certain protocol, that, you
      know, she wanted us to give 200 milligrams. And if I have [sic] any
      questions, I would call her on her cell phone.

      Q: And this is for new patients as well as returning patients?

      A: Yes.

      Q: After a new patient would come in and you would run through this with
      them and you would contact Ms. Hollahan if you had any questions, was
      there a system in place where Ms. Hollahan would then review any charts
      that you had worked on while you were seeing these patients without her?

      A: She was supposed to, but I don’t know . . . what she did.

       Ms. Wright testified that Ms. Hollahan prescribed testosterone to at least one
patient at New Life before knowing the patient’s testosterone level. Ms. Wright signed a
statement that read:

                                            - 21 -
           On 4/5/14 the patient was given a prescription for testosterone before
           receiving his testosterone level. When the levels came back, the level was
           910. No documentation in the chart as to prescription being given and no
           notes in Kareo.[9] We do not know if he had been on previous treatments to
           make his level that high.

In response to further questioning, Ms. Wright testified that the patient’s chart did not
reflect that he had been given a prescription for testosterone on April 5, 2014, although
Ms. Wright knew this to be the case.

      Mr. Long testified that at one point while Ms. Hollahan was working at New Life,
he became concerned about the clinic’s charts. Mr. Long testified as follows:

           Q: Mr. Long, after your review of the records, what did you yourself notice
           in the charts that gave you concern?

           A: There was nothing in the charts. There were no vitals, no sub notes, no
           provider notes, no assessment of the patient. There was nothing in there.

           Q: Did you ever - - in the course of your being there and owning the clinic,
           did you ever discover there were patients who Ms. Hollahan treated but for
           whom there was no chart that could be found?

           A: Yeah. There were many times where we could not find the patient’s
           chart.

       At the time of the hearing, Jacob Page was an acute care nurse practitioner who
acquired his advanced practice nursing certificate in 2007, and the Administrative Law
Judge accepted the State’s proffer of him as an expert witness. Prior to the hearing, Mr.
Page reviewed Ms. Hollahan’s patient records that Mr. Long had produced in response to
the State’s request for documents. Mr. Page testified that the records he reviewed
revealed numerous deficiencies in Ms. Hollahan’s patient care, including the failure to
perform baseline lab work or take a patent’s vital signs before prescribing testosterone
and prescribing testosterone when lab results showed a patient’s testosterone level was
already elevated. Mr. Page testified about the harmful physiological effects patients may
suffer when they have too much testosterone. According to Mr. Page, a patient should
have baseline lab tests followed by additional tests every three to six months throughout
the time an individual is a patient at a testosterone clinic, which was not the standard of
care Ms. Hollahan was providing. The following is an excerpt from Mr. Page’s
testimony:

9
    Kareo was an electronic medical records system.
                                                      - 22 -
      Q: Are you familiar with the term “cycling”?

      A: Yes.
      Q: Can you tell us what that means?

      A: Cycling is giving a large amount of testosterone for a certain period of
      time - - maybe 12 weeks, maybe 16 weeks - - and stacking it at high doses
      weekly and giving medication such as tamoxifen and Arimidex to help stop
      that conversion of testosterone to estrogen and to give it more of a pure
      testosterone.

      Q: Is this, in your opinion, an unhealthy practice?

      A: Yes.

      Q: Did you find evidence of that in the charts that you reviewed?

      A: I believe I did.

      Q: Mr. Page, across the board with these charts that you reviewed, the ones
      in evidence, to you, do they represent a practice that is below the standard
      of care for practitioners who practice administering testosterone to patients?

      A: Yes.

       Ms. Hollahan testified that the records Mr. Long produced to the State were
incomplete and that the completed records would include the charts and notes she made
for the patients the State alleged were nonexistent. Ms. Hollahan was asked about some
of the patients whose records Mr. Page reviewed and testified did not receive the
appropriate standard of care. She testified that these particular patients had followed her
to New Life from Body for Life and that lab work had been performed on these
individuals at Body for Life recently enough that additional lab work was not yet
necessary. Ms. Hollahan testified that no nationwide policy existed indicating how often
a patient who was receiving testosterone should have his or her testosterone level
checked. She also testified that no doctor ever told her that she overprescribed,
prescribed something she should not have, or that she did not have authority to prescribe
the medications she did prescribe.

       The Board determined that the evidence submitted at the hearing supported the
legal conclusion set forth in paragraph sixteen of the Board’s Final Order, which was that
Ms. Hollahan violated Tenn. Comp. R. & Regs. 1000-1-.13(1)(b), (t), (u), and (w),
quoted above. Our review of the record leads us to conclude that substantial and material

                                          - 23 -
evidence was introduced at the hearing to support the Board’s findings of fact set forth in
paragraphs ten and eleven and that that these facts support the Board’s conclusion that
Ms. Hollahan’s conduct constituted violations of these provisions of the rules and
regulations applicable to nurses.
       D. Sanctions

        Ms. Hollahan does not address each sanction imposed by the Board, but she asks
that we overturn the Board’s Final Order and “return her advanced practice nursing
license to its unencumbered state.” Initially, we note that the Board is empowered to
revoke any certificate or license to practice nursing or otherwise discipline a licensee if
evidence shows that the licensee is guilty of a crime; is unfit or incompetent due to
negligence, habits, or other reason; or has engaged in unprofessional conduct. Tenn.
Code Ann. § 63-7-115(a)(1); TENN. COMP. R. & REGS. 1000-01-.04(4). The rules and
regulations describe the penalties the Board is authorized to impose upon a licensee it
finds guilty of violating the Nursing Practice Act or the rules and regulations. See TENN.
COMP. R. & REGS. 1000-01-.04(6)(a)-(b). Consistent with this portion of the rules and
regulations, the Board explained that it was imposing sanctions on Ms. Hollahan because
it “has been charged with protecting the health and welfare of the citizens of the State of
Tennessee,” and it was the Board’s policy “to take disciplinary actions so as to ensure the
health and safety of the citizens of this state.” The Board was authorized by Tenn. Code
Ann. § 63-7-115(d) to assess the costs of the hearing against Ms. Hollahan.

        When a court reviews the remedy imposed by an agency, the court limits its
review to determining whether the remedy is “unwarranted in law” or “without
justification in fact.” Robertson v. Tenn. Bd. of Soc. Worker Certification & Licensure,
227 S.W.3d 7, 14 (Tenn. 2007) (citing Mosley v. Tenn. Dep’t of Commerce & Ins., 167
S.W.3d 308, 321 (Tenn. Ct. App. 2004)); see also Butz v. Glover Livestock Comm’n Co.,
411 U.S. 182, 185-86 (1973) (holding that administrative agency’s choice of sanction
should not be overturned if it is warranted in law and justified by facts). As this court
explained in Mosley v. Tennessee Department of Commerce and Insurance,

       Neither the chancery court nor the Court of Appeals is empowered to
       substitute judicial judgment in the place of the judgment of an
       administrative tribunal acting within the scope of its statutory authority.
       Neither the chancellor nor this Court may soften the sanctions imposed by
       the administrative tribunal [if] the sanctions imposed by the administrative
       tribunal are clearly warranted in law and justified in fact. At this point, the
       judicial inquiry comes to an end.

Mosley, 167 S.W.3d at 323.

       Having confirmed that the Ms. Hollahan violated the statutes and regulations at
issue, our sole task is “to examine the sanction imposed in light of the administrative

                                           - 24 -
record in order to judge whether the agency properly applied the regulations, i.e., whether
the sanction is ‘unwarranted in law’ or ‘without justification in fact.’” Id. at 321 (quoting
Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir. 1984)). As discussed above, the
Board’s decision to revoke Ms. Hollahan’s certificate to practice as an advanced practice
nurse and license to practice as a registered nurse in Tennessee and the multistate
privilege to practice in any other party statute, as well as the civil penalties imposed
against her, were all warranted by the law and justified by the facts. As a result, we
affirm the Board’s decision in its entirety.

                                     III. CONCLUSION

        The judgment of the trial court is affirmed, as modified.10 The costs of this appeal
shall be taxed against the appellant, Catherine J. Hollahan, for which execution shall
issue if necessary.

                                                    ________________________________
                                                    ANDY D. BENNETT, JUDGE




10
     See footnote 8.
                                           - 25 -
