                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-2141-15T1

IN THE MATTER OF THE
LICENSE OF

KEVIN McCAFFERTY, A.P.N., R.N.,
R.N. #26NR04704300
A.P.N. #26NJ00276800

TO PRACTICE NURSING IN THE
STATE OF NEW JERSEY.
____________________________________

           Argued March 21, 2017 – Decided November 16, 2017

           Before Judges Messano and Suter.

           On appeal from the State Board of Nursing,
           Department of Law & Public Safety, Division
           of Consumer Affairs.

           Mary Ann C. O'Brien argued the cause for
           appellant Kevin McCafferty (Crammer, Bishop,
           & O'Brien, attorneys; Ms. O'Brien, on the
           briefs).

           Barbara J.K. Lopez, Deputy Attorney General,
           argued the cause for respondent New Jersey
           State Board of Nursing (Christopher S.
           Porrino, Attorney General, attorney; Andrea M.
           Silkowitz, Assistant Attorney General, of
           counsel; Ms. Lopez, on the brief).

     The opinion of the court was delivered by

SUTER, J.A.D.
     Kevin McCafferty appeals the December 14, 2015 State Board

of Nursing (Board) Final Order to "undergo comprehensive mental

health and substance abuse evaluation and monitoring to ascertain

whether [he] is fit and competent to practice nursing in the State

of New Jersey."   He also appeals the denial of reconsideration and

of a stay.   We affirm.

                                    I.

     McCafferty   is   licensed     by   the   Board    as     a     registered

professional nurse and an advanced practice nurse, and is a

certified registered nurse anesthetist (CRNA).1               He works at a

surgical center in New Jersey.       In 2012, the Board's Enforcement

Bureau commenced an investigation after receiving information

about possible drug or alcohol abuse by McCafferty.                A doctor who

previously   worked    with   him   certified    that        "[o]n     multiple

occasions," she smelled "alcohol on McCafferty's breath while at

work and while he was taking care of patients."              She claimed he

was "often erratic in the medical care he provided" and would

"make a number of mistakes."      She was "suspicious" about the abuse

of controlled substances because "the waste narcotics did not

match up."   She observed that he came into work with his face



1
  A CRNA is a registered nurse who is certified to administer
anesthesia under certain circumstances. They also must be advanced
practice nurses. See N.J.A.C. 13:37-7.1 to -7.2.

                                    2                                   A-2141-15T1
"busted" after "a physical altercation on his off time while

intoxicated."      She complained that his "behavior was often erratic

and sloppy and he is a danger to patients."              This doctor revealed

that McCafferty "reeked" of alcohol on September 3, 2012, and

smelled of alcohol on September 11, 2012.

     An interview with a second doctor revealed that "she had

known him to smell of alcohol" but did not observe him drinking

on the job.   This doctor observed him "bullying other employees,"

using "foul language" and "[making] inappropriate statements in

the presence of patients."            She also raised a concern about his

narcotic   wasting     procedures.           The   Board's   interview   with    a

professional nurse revealed that she had "never experienced Mr.

McCafferty smelling of alcohol."              However, he "behaved in a loud

and obnoxious manner."            In addition, on "one occasion" he "asked

her to sign a narcotic waste" that she did not witness and she

refused.   Although he would "frequently go out of his way to help

people," he also "frequently spoke disrespectfully" about others.

McCafferty was interviewed and "denied drinking to excess."                     He

contended the allegations were false.

     In    2013,    the     Board     contacted     McCafferty,   advising      it

"reviewed information which reveals that [he] may have problems

related to mental health and/or substance abuse that could have

affected    and/or        might     subsequently      affect    [his]    nursing

                                         3                               A-2141-15T1
activities."     It offered to resolve the issue by private letter

agreement which would include agreement by McCafferty to enroll

in the Recovery and Monitoring Program of New Jersey (RAMP) 2 "for

a minimum of [ninety] days."      RAMP would require McCafferty to

submit to "random observed urine screens" or hair screens, to

prepare monthly self-evaluation reports, and to regularly attend

peer   support   meetings.    Additional   requirements   included    a

comprehensive mental health and substance abuse evaluation, which

would be forwarded to the Board.      He would be required to follow

the recommendations of RAMP.     All the evaluations were to be at

his own cost.      He would agree to stay enrolled in RAMP until

successful completion or release.

       When McCafferty did not enroll in RAMP, the program notified

the Board that McCafferty "has been noncompliant" and that it

could not "assure the [Board] or the public that Mr. McCafferty

is safe to practice."

       McCafferty was subpoenaed to appear before a committee of the

Board to be questioned about "allegations that [he] appeared at

[his] place of employment smelling of alcohol on occasion, that

[his] practice of 'wasting' narcotics was defective, and that [he]

spoke disrespectfully of [his] colleagues and made inappropriate


2
  RAMP is a private, voluntary program that contracts with the
Board of Nursing.

                                  4                           A-2141-15T1
statements in the presence of patients."                      McCafferty denied all

the allegations and stated he was "flabbergasted" by them.                             He

supplied the committee with recommendations and evaluations that

attested to his performance.           His counsel suggested that his use

of breath mints might account for the smell of alcohol.

         The   Board   again    proposed    a       private   letter   agreement       to

McCafferty, allowing him to participate in RAMP.                    He did not sign

the agreement.         On April 6, 2015, the Board issued a provisional

order of discipline.           The order recounted the statements that had

been made by the two doctors and a nurse.                      Under N.J.S.A. 45:1-

22(f),     McCafferty     was    ordered       to    submit    to   "evaluation      and

monitoring to evaluate whether continued practice may jeopardize

the safety and welfare of the public."                  He was given thirty days

to enroll in RAMP and to undergo its mental health and substance

abuse evaluation procedures.               The order would be finalized in

thirty days unless he requested a modification or dismissal,

setting forth his reasons. The Board would determine if additional

proceedings were necessary, and if no "material discrepancies"

were raised, the order would be finalized.

         McCafferty requested dismissal of the provisional order.                      He

challenged the credibility of one of the doctors who complained.

He said the second complaining doctor had asked him to join her

on   a    clinical     healthcare    network.           He    submitted   ten     other

                                           5                                    A-2141-15T1
certifications from doctors and nurses attesting to his competence

and that they had not smelled alcohol.               He noted all of the

complaints about him were dated prior to January 2, 2013. A Deputy

Attorney General for the Board responded that it was seeking an

evaluation      because     three   medical       professionals    reported

questionable conduct, not that the Board had found McCafferty

"engaged in any misconduct, or worked while impaired."

     On December 14, 2015, the Board issued a Final Order, which

required McCafferty to enroll in RAMP at his own expense.                The

order   noted   that,     "[a]lthough   ten    medical   professionals   have

indicated that they have not seen any evidence of alcohol or drug

abuse or impairment, three have.            In order to fulfill its mandate

to protect the public, an evaluation is warranted."               The Board

stated that it did not cite to N.J.S.A. 45:1-21(l) and did not

make findings that McCafferty was engaged in drug and alcohol

abuse although a question had been raised about his possible drug

or alcohol abuse.         The Board's Final Order was posted to the

National Practitioner Data Bank (NPDB),3 and reported a "Complaint



3
 The NPDB is a permanent registry that maintains information about
any negative performance by a medical professional. 42 U.S.C.A.
§§ 11101-52; see also U.S. Dep't of Health & Human Serv., Health
Res. and Serv. Admin., NPDB Guidebook (2015), available at
www.npdb.hrsa.gov/guidebook (citing 42 U.S.C.A. §§ 11101-52 for
its authority).


                                        6                           A-2141-15T1
Received Alleging Impairment" by the Board, noting the licensee

was required to "undergo comprehensive mental health and substance

abuse evaluation within [thirty] days" of December 14, 2015.

     McCafferty asked the Board to stay the Final Order and for

reconsideration.     Both of his requests were denied although the

Board advised it would not enforce the Final Order during the

pendency of his appeal.     McCafferty appeals the Final Order and

the denial of his stay and reconsideration.

     On appeal, McCafferty contends his substantive due process

rights were violated by the Board's entry of a Final Order of

discipline   under   N.J.S.A.   45:1-22,   without   first   listing    a

statutory ground under N.J.S.A. 45:1-21 for the violation or making

findings in support of that statutory basis.          He contends the

Board's Final Order should have been dismissed because all the

allegations were made more than a year before the Board's action,

disqualifying them under N.J.S.A. 45:1-21(l) from any disciplinary

action.   He contends the Board had no authority to order his

enrollment in RAMP, that the Board erred in entering its Final

Order because it did not have substantial evidence to support its

order, and it made no findings.       He contends the Board erred by

entering the Final Order without conducting further proceedings

after a hearing was requested, that the Final Order was inherently

inconsistent, that the Board erred by not staying the action or

                                  7                             A-2141-15T1
reconsidering its Final Order, and the Board acted in a vindictive

manner by making a report to the NPDB while the appeal was pending.

                                    II.

      Our review of the Board's Final Order is limited.            An agency

decision should not be overturned unless there is "a showing that

it was arbitrary, capricious or unreasonable, or that it lacked

fair support in the evidence[.]"          In re Carter, 191 N.J. 474, 482

(2007) (citation omitted).      "Deference is appropriate because of

the   'expertise   and   superior   knowledge'    of    agencies   in     their

specialized fields and because agencies are executive actors."                 In

re Zahl, 186 N.J. 341, 352 (2002) (citation omitted). In reviewing

agency decisions, we are to give "considerable weight to an

agency's interpretation of a statute the agency is charged with

enforcing."   G.S. v. Dep't of Human Servs., 157 N.J. 161, 170

(1999).   We are not, however, bound by "an agency interpretation

of a strictly legal issue when that interpretation is inaccurate

or contrary to legislative objectives."         Ibid.   (citation omitted)

(citing N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544,

562-63 (1978)).

      "The Board maintains oversight of professional licensing for

nurses" pursuant to the Nurses Practice Act (the Act), N.J.S.A.

45:11-23 to -52.    In re Eastwick Coll. LPN to RN Bridge Program,

225 N.J. 533, 537 (2016).     To be licensed as a professional nurse

                                     8                                  A-2141-15T1
an applicant must not be "a habitual user of drugs."                            N.J.S.A.

45:11-26(a)(2).        "To become licensed as a CRNA, an individual must

meet    both    the    general    nurse    licensing      requirements,         N.J.S.A.

45:11-26,      as     well   as   specified      nurse     anesthetist       licensing

requirements, N.J.A.C. 13:37-13.1."                    N.J. State Ass'n of Nurse

Anesthetists, Inc. v. N.J. State Bd. of Med. Exam'rs, 372 N.J.

Super. 554 (App. Div. 2004), aff'd o.b., 183 N.J. 605 (2005).

McCafferty does not question that as a professional nurse and

CRNA, he may not abuse drugs or alcohol.

       The Act was amended in 2005 to allow the Board to "establish

an Alternative to Discipline Program for board licensees who are

suffering      from     a    chemical     dependency      or   other     impairment."

N.J.S.A. 45:11-24.10(a). Under the program, licensees can disclose

their dependency to an intervention program designated by the

Board, "which shall provide confidential oversight of the licensee

during the period that the licensee seeks treatment for, and

follows a plan for recovery from the dependency or impairment."

Ibid.    Members of the public may also report licensees "who may

be suffering from chemical dependencies or other impairments."

N.J.S.A.    45:11-24.10(c)(3)(a).               Each    referral    is    reviewed      to

determine      "if    participation       in    the    program     is    appropriate."

N.J.S.A.       45:11-24.10(c)(1)(d).             This    information       is    to     be



                                            9                                    A-2141-15T1
transmitted to the Board.     N.J.S.A. 45:11-24.10(h).   The Board

contracted with RAMP as an intervention program.4

       McCafferty's contentions center on the Board's application

of the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-18 to -27, and

not the Board's powers under the Act.       The UEA is a remedial

statute that is intended to provide uniformity in the investigative

and enforcement powers of all professional boards "located within

the Division of Consumer Affairs."     Del Tufo v. J.N., 268 N.J.

Super. 291, 297 (App. Div. 1993) (citing N.J.S.A. 45:1-14).         It

is to be afforded a liberal construction.     N.J.S.A. 45:1-14; In

re Kim, 403 N.J. Super. 378, 386 (App Div. 2008).

       The Board's authority under the Act and the UEA are to be

read in pari materia. See Kim, supra, 403 N.J. Super. at 384.   "The

UEA . . . does not abrogate the powers of the Board to license,

regulate and investigate members of the medical profession."     Del

Tufo, supra, 268 N.J. Super. at 297.   Among the Board's duties and

powers, it "shall in its discretion investigate and prosecute all

violations of provisions of the [A]ct."    N.J.S.A. 45:11-24(d)(9).

Under the UEA, a board also may "require any board licensee . . .

to submit to an assessment of skills to determine whether the




4
    About RAMP, see NJSA.org, http://njsna.org/ramp/about-ramp/ .

                                 10                         A-2141-15T1
board licensee . . . can continue to practice with reasonable

skill and safety." N.J.S.A. 45:1-18(g).

       The UEA provides in Section 21, N.J.S.A. 45:1-21, that a

professional board may "refuse to issue or may suspend or revoke

any . . . license" upon proof of any of the grounds enumerated in

that   section.    These   include    "professional   or   occupational

misconduct", N.J.S.A. 45:1-2(e); a licensee who is not capable "of

discharging the functions of a licensee in a manner consistent

with the public's health, safety and welfare," N.J.S.A. 45:1-

21(i); and a licensee who "is presently engaged in drug or alcohol

use that is likely to impair the ability to practice the profession

. . . with reasonable skill and safety" where "presently" is

defined as "at this time or any time within the previous 365 days,"

N.J.S.A. 45:1-21(l).

       Under N.J.S.A. 45:1-22, Section 22 of the UEA, the Board may

"[i]n addition or as an alternative . . . to revoking, suspending

or refusing to renew any license, registration or certificate

issued by it, . . . after affording an opportunity to be heard[,]"

do other things such as "issue a letter of warning, reprimand or

censure," order a person violating any provision of an act to

"cease and desist," or to take affirmative corrective action.

N.J.S.A. 45:1-22(a), (c).    The Board may



                                 11                             A-2141-15T1
          [o]rder any person, as a condition for
          continued, reinstated or renewed licensure, to
          submit to any medical or diagnostic testing
          and monitoring or psychological evaluation
          which may be required to evaluate whether
          continued practice may jeopardize the safety
          and welfare of the public[.]

          [N.J.S.A. 45:1-22(f) (emphasis added).]


      McCafferty   contends   that    the   alternatives   set   forth   in

Section 22 of the UEA cannot be used unless the Board first

identifies a ground for discipline under Section 21 and makes a

finding of a violation under that section.        He bases his argument

on use of the word "penalties" in the headnote of Section 22.            The

headnote reads "Additional or alternative penalties to revocation,

suspension or refusal to renew; temporary order suspending or

limiting license; subpoena."     (Emphasis added).     However, "[t]he

title of a statute, more properly called its 'headnote', is deemed

not 'to be part of' it, N.J.S.A. 1:1-6."       State v. Malik, 365 N.J.

Super. 267, 279 (App. Div. 2003).      The headnotes "are not included

in the laws when enacted by the Legislature but are added by others

in the course of the classification and incorporation into the

annotated statutes."    State v. Brown, 188 N.J. Super. 656, 660

(Law Div. 1983).     As such, the headnote is not part of the

legislature's enactment.




                                 12                               A-2141-15T1
      Nothing   in    the   language       of   Section    22    restricts       its

application unless and until there is a violation under Section

21.   The provisions of Section 22 may be in addition to or as an

alternative to revoking, suspending or refusing to renew a license.

That the statute authorizes something short of the institution of

formal action against the licensee under Section 22 is made clear

from its language.      Subsection (a) of Section 22, N.J.S.A. 45:1-

22(a), allows the Board to "issue a letter of warning, reprimand

or censure with regard to any act, conduct or practice which in

the judgment of the board upon consideration of all relevant facts

and   circumstances    does   not    warrant     the   initiation      of    formal

action."   Under subsection (f), N.J.S.A. 45:1-22(f), the licensee

can be ordered to submit to testing or an evaluation to evaluate

if the licensee's continued practice "may jeopardize the safety

and welfare of the public."         All of that language is anticipatory,

designed to authorize the Board to evaluate if other action is

needed.

      McCafferty's    interpretation       of   Sections    21   and    22    would

significantly limit the Board's express and implied5 investigatory


5
  Administrative agencies have such implied incidental powers as
may reasonably be adapted to that end. In re Commn'r of Banking
& Ins. v. Parkwood Co., 98 N.J. Super. 263, 272 (App. Div. 1967);
see also Sheeran v. Progressive Life Ins. Co., 182 N.J. Super.
237, 247-248 (App. Div. 1981). When the task of a regulatory agency


                                      13                                    A-2141-15T1
powers under the Act and UEA, where allegations are made that a

licensee   may   have   an   alcohol      or   drug   problem.     Under   his

interpretation, the Board could only order a nurse to submit to

an evaluation if it first had a plenary hearing to determine the

validity of the allegations of abuse.                 That procedure is not

required by the statutes nor by due process, and it would produce

a limitation on the Board's ability to protect the public.

     As we said in the context of the Medical Board,

           the Board is vested not only with the greater
           power   to  deny,   revoke,   or  suspend   a
           physician's medical license, N.J.S.A. 45:1-
           21, but also with the power to invoke the
           lesser sanctions of warnings, reprimands, or
           censure. N.J.S.A. 45:1-22(a).    We conclude
           that to limit the exercise of the power to
           grant or deny licensure, separate from the
           imposition of a lesser and perhaps more
           appropriate action is irrational and may
           thwart the effectiveness of the Board's
           fundamental dual purpose-to permit qualified
           physicians licensure while protecting the
           State citizenry.

           [Kim, supra, 403 N.J. Super. at 387.]

     Here,   the   Board     has   the    discretion    to   investigate   and

prosecute violations of the Act.          N.J.S.A. 45:11-24(d)(9).     It has



"'is to protect the health and welfare of members of the public'
by assuring that all licensed practitioners are qualified,
competent and honest, the grant of implied powers is particularly
important." In re Polk, 90 N.J. 550, 574 (1982) (quoting In re
Suspension of Heller, 73 N.J. 292, 303-04 (1977)).


                                     14                               A-2141-15T1
an alternative to discipline program that evaluates referrals on

issues of chemical dependencies and reports to the Board, making

recommendations on participation in RAMP.           N.J.S.A. 45:11-24.10.

It has the investigative power to require a licensee to submit to

an assessment of skills.        N.J.S.A. 45:1-18.        The Board has the

power   to   order   an   evaluation    to   determine   whether   continued

practice may jeopardize the safety or welfare of the public.

N.J.S.A. 45:1-22(f).        Given these express powers, we reject as

inconsistent with a facial reading of these statutes, McCafferty's

contention that a violation under Section 21 must be found before

the Board can utilize the powers set forth in Section 22.            Rather,

if there is some evidence that a licensee may have a chemical

dependency, and after the opportunity to be heard, we agree with

the Board that it has statutory authority under Section 22 to

order a licensee to undergo an evaluation even if that evidence

would not support a violation under Section 21.

     McCafferty was not denied the due process of law.               He was

aware of the allegations against him, given the ability to appear

with counsel before an investigative panel and made multiple

submissions to the Board, which included an application for a stay

and for reconsideration.       We reject his substantive due process

claim in light of the process he was afforded and the public

interests at stake.       See Mathews v. Eldridge, 424 U.S. 319, 334-

                                       15                            A-2141-15T1
35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18, 33 (1976) (balancing

private interests, the risk of erroneous deprivation and the state

interest    to   determine   if   substantive   due      process   required

additional procedural safeguards).

     McCafferty's remaining points require brief comment. Because

the Board's action was not initiated under Section 21 of the UEA,

the 365 day limitation in subsection (l), N.J.S.A. 45:1-21(1), has

no applicability.     Given the allegations by three professionals,

there was evidence to support the Board's order that he undergo

an evaluation for possible alcohol or drug abuse.           The Board had

clear   statutory    authority    to    establish   an    alternative      to

discipline program and to contract for the provision of those

services.    McCafferty contends that RAMP is "intrusive" because

it requires monitoring, observed urine testing, hair follicle

tests, and attendance at peer groups.         He does not contend that

the Board abused its discretion in contracting with RAMP, nor did

he argue that it acted in an arbitrary, capricious or unreasonable

manner by using RAMP for licensees with drug or alcohol problems.

He was not entitled to a contested case hearing because this was

not an action to revoke, suspend or non-renew his license.               See

N.J.S.A. 52:14B-11.    We are satisfied the Board did not abuse its

discretion by denying the stay of enforcement or reconsideration.

There was no evidence that the Board's report to the NPDB was

                                   16                               A-2141-15T1
vindictive.     It had authority to make the report and did so

accurately.    We conclude that McCafferty's further arguments are

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion.    R. 2:11-3(e)(1)(E).

    Affirmed.




                                     17                              A-2141-15T1
