Judge James C. Chalfant, Case 22STCP00550 2023-01-17 Tentative Ruling

Petitioner Gerald Baltz (“Baltz”) seeks a writ of mandate reversing the decision by Respondent Board of Registered Nursing (“Board”) to revoke his nursing license and certificates.

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

Petitioner Baltz commenced this proceeding on February 16, 2022, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

On June 15, 2020, the Board filed an Accusation that sought revocation or suspension of Baltz’s license. The Accusation alleged (1) gross negligence under Business and Professions Code (“Bus. & Prof. Code”) section 2761(a)(1) for treatment of a female patient; (2) incompetence under Bus. & Prof. Code section 2761(a)(1) for failure to follow standard supervision procedures with a collaborating physician; (3) unprofessional conduct under Bus. & Prof. Code section 2761(a) for an intimate relationship with the female patient; and (4) sexual misconduct under Bus. & Prof. Code section 726 for an intimate relationship with the female patient. Baltz filed a timely notice of defense.

An Administrative Law Judge (“ALJ”) heard Baltz’s appeal on October 12 and 13, 2021. On November 19, 2021, the ALJ determined that cause for discipline existed for the charges of gross negligence and unprofessional conduct and issued a proposed decision to revoke Baltz’s license. On January 21, 2022, the Board adopted the proposed decision and revoked Baltz’s License, effective February 18, 2022.

Baltz seeks (1) a writ of mandate compelling the Board to vacate and set aside the Proposed Decision or remanding the matter to the Board for redetermination in accordance with this court’s judgment; (2) an immediate stay of the decision; and (3) attorney’s fees per Government Code section 800.

On February 25, 2022, the court denied Baltz’s ex parte application for a stay of the revocation of his license and certificates.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514 15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by the petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150 51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961. “If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion that the [administrative body] acted within the area of its discretion.” Collins v. Board of Medical Examiners, (“Collins”) (1973) 29 Cal.App.3d 439, 446; see also Deegan v. City of Mountain View, (1999) 72 Cal.App.4th 37, 47 (trial court must affirm the punishment imposed “if there was any reasonable basis for sustaining it”); Morton v. Bd. of Registered Nursing, (“Morton”) (1991) 235 Cal.App.3d 1560, 1567 (nursing board’s discretion as to the level of discipline is “virtually unfettered”).

The Legislature recognizes that nursing is a dynamic field, the practice of which is continually evolving to include more sophisticated patient care activities. It is the intent of the Legislature to provide clear legal authority for functions and procedures that have common acceptance and usage. It is the legislative intent also to recognize the existence of overlapping functions between physicians and registered nurses and to permit additional sharing of functions within organized health care systems that provide for collaboration between physicians and registered nurses. Bus. & Prof. Code[1] §2725(a).

The “practice of nursing” means those functions, including basic health care, that help people cope with difficulties in daily living associated with their actual or potential health or illness problems and that require a substantial amount of technical knowledge or skill, including (1) direct and indirect patient care, (2) the administration of medications and observation of signs, and (3) the observation of signs and symptoms of illness, reactions to treatment, general behavior, or general physical condition and implementation, based on observation, reporting, referral, or standardized procedures. §2725(b).

(1) Policies and protocols developed by a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code through collaboration among administrators and health professionals including physicians and nurses; and (2) Policies and protocols developed through collaboration among administrators and health professionals, including physicians and nurses, by an organized health care system which is not a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.

The policies and protocols shall be subject to any guidelines for standardized procedures that the the Medical Board and the Board of Registered Nursing may jointly promulgate. If promulgated, the guidelines shall be administered by the Board of Registered Nursing. §2725(c).

An organized health care system must develop standardized procedures before permitting registered nurses to perform standardized procedure functions. A registered nurse may perform standardized procedure functions only under the conditions specified in a health care system's standardized procedures and must provide the system with satisfactory evidence that the nurse meets its experience, training, and/or education requirements to perform such functions. 16 CCR §1472.

Standardized procedures shall include a written description of the method used in developing and approving them and any revision thereof. 16 CCR §1474(a).

(1) Be in writing, dated and signed by the organized health care system personnel authorized to approve it;

(2) Specify which standardized procedure functions registered nurses may perform and under what circumstances;

(3) State any specific requirements to be followed by registered nurses in performing particular standardized procedure functions;

(4) Specify any experience, training, and/or education requirements for performance of standardized procedure functions;

(5) Establish a method for initial and continuing evaluation of the competence of those registered nurses authorized to perform standardized procedure functions;

(6) Provide for a method of maintaining a written record of those persons authorized to perform standardized procedure functions;

(7) Specify the scope of supervision required for performance of standardized procedure functions, for example, immediate supervision by a physician;

(8) Set forth any specialized circumstances under which the registered nurse is to immediately communicate with a patient's physician concerning the patient's condition;

(9) State the limitations on settings, if any, in which standardized procedure functions may be performed;

(11) Provide for a method of periodic review of the standardized procedures. 16 CCR §1474(b).

No provision of law shall be construed to prohibit a nurse practitioner from furnishing or ordering drugs or devices when, among other conditions, the nurse practitioner is functioning pursuant to standardized procedure or protocol developed and approved by the supervising physician and surgeon, the nurse practitioner, and the facility administrator or the designee. §2836.1(b).

Protection of the public is that paramount interest of the Board in exercising its licensing, regulatory, and disciplinary functions. §2708.1.

The Board may discipline any certificate holder or licensee found guilty by (a) suspending judgment; (b) imposing probation; (c) suspension of the right to practice nursing for a period not exceeding one year; (d) license revocation; and (e) any other action the Board in its discretion may deem proper. §2759.

As used in section 2761, “incompetence” means the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as described in section 1443.5. 16 CCR §1443.

A registered nurse shall be considered competent when he/she consistently demonstrates the ability to transfer scientific knowledge from social, biological, and physical sciences in applying the nursing process, as follows:

(1) Formulates a nursing diagnosis through observation of the client's physical condition and behavior, and through interpretation of information obtained from the client and others, including the health team;

(2) Formulates a care plan, in collaboration with the client, which ensures that direct and indirect nursing care services provide for the client's safety, comfort, hygiene, and protection, and for disease prevention and restorative measures;

(3) Performs skills essential to the kind of nursing action to be taken, explains the health treatment to the client and family and teaches the client and family how to care for the client's health needs;

(4) Delegates tasks to subordinates based on the legal scopes of practice of the subordinates and on the preparation and capability needed in the tasks to be delegated, and effectively supervises nursing care being given by subordinates;

(5) Evaluates the effectiveness of the care plan through observation of the client's physical condition and behavior, signs and symptoms of illness, and reactions to treatment and through communication with the client and health team members, and modifies the plan as needed; and

(6) Acts as the client's advocate, as circumstances require, by initiating action to improve health care or to change decisions or activities which are against the interests or wishes of the client, and by giving the client the opportunity to make informed decisions about health care before it is provided. 16 CCR §1443.5.

The term “gross negligence” includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or the failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life. 16 CCR §1442.

The commission of any act of sexual abuse, misconduct, or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action. §726(a).

Any Board decision on a disciplinary action shall consider the Board’s Disciplinary Guidelines (“Guidelines”). 16 CCR §1444.5. Deviation from the Guidelines is appropriate where the Board, in its sole discretion, determines that the facts of the case warrant such a deviation. Id.

To determine the level of discipline, the Board carefully considers the totality of the facts and circumstances in each individual case, with the safety of the public being paramount. RJN Ex. A, p. 1. Factors to consider include (1) nature and severity of the acts, offenses, or crimes under consideration; (2) actual and potential harm to the public; (3) actual and potential harm to a patient; (4) prior disciplinary record; (5) number and variety of current violations; (6) mitigation evidence; (7) rehabilitation evidence; and (10) time passes since the act or offenses occurred. RJN Ex. A, p. 2.

The recommended discipline for incompetence is revocation, with the minimum of revocation stayed with three years of probation. RJN Ex. A, p. 3. Revocation also is recommended for multiple forms of unprofessional conduct. RJN Ex. A, pp. 4-5.

In 2010, the Board issued to Baltz a registered nurse license, a nurse practitioner certificate, and a psychiatric mental health nurse certificate. AR 98.

On March 10, 2015, Baltz began work as an independent contractor psychiatric nurse practitioner at Insight Choices (“Insight”), a private psychiatric clinic in West Hollywood, under the supervision and administration of Robert Chang, O.D. (“Chang”). AR 744-45.

As part of his employment, Baltz signed a copy of Insight’s standardized procedures. AR 744-45. The standardized procedures explain that, as a nurse practitioner, Baltz will interview clients for evaluation and management of mental health conditions. AR 744. He may obtain and record health histories, examine clinical documentation in the resident’s medical chart and in documents from other healthcare organizations, order appropriate diagnostic tests, diagnose and manage mental illness, provide mental health care teaching and counseling, initiate referrals, and recommend tests, labs, signs, symptoms, and maladaptive behaviors associated with the client’s underlying mental health conditions. AR 744-45.

The standardized procedures require Baltz to collaborate with the supervising psychiatrist if (1) a patient proves non-responsive to appropriate psychiatric intervention or (2) the patient, psychiatrist, or he deem it appropriate to obtain a second opinion. AR 745.

Insight began to see Patient S.R. on July 11, 2012. AR 370. Her initial intake shows that she had ADHD, was easily distracted, could not focus on details, and felt overwhelmed by everything. AR 370. She had difficulty getting out of bed, going to work or the grocery store, and keeping up with her workload due to her panic attacks. AR 370. She needed someone to handle all the little things in her life. AR 370.

Baltz first saw S.R. on April 26, 2015. AR 374. During the rest of 2015, S.R. was seen by other providers at Insight. AR 374-76.

Baltz assumed responsibility for S.R.’s treatment on April 24, 2016. AR 376. During the April 24, 2016 visit, S.R. was depressed and endorsed passive death wishes but denied any active intent of self-harm. AR 376-77. This was a week after she broke up with her boyfriend. AR 377. Although S.R. was going to therapy the next week, Baltz wrote that she was at a point where therapy would not help much. AR 377.

Blatz saw S.B. for multiple visits between April 2016 and April 2017.[3] AR 376-80. On May 11, 2016, Baltz wrote that S.R. was very anxious after stopping Lexapro (an antidepressant) and wanted to try Ativan (medication for anxiety). Baltz kept her on Adderall, but discontinued Wellbutrin (antidepressant), Xanax (medication for anxiety), and Lexapro. He added Propranolol (blood pressure medication) and Brintellix (antidepressant), and Ativan. AR 377.

On May 29, 2016, Baltz wrote that S.R. was still anxious and wanted to restart Xanax. AR 377.

On November 6, 2016, S.R. reported that, while she no longer had as frequent or severe obsessive thoughts, she was anxious about flareups with her pityriasis rosea (skin rash). She also again had passive death wishes due to the rash but no intent of self-harm. She was tearful. Baltz prescribed Vraylar (anti-psychotic). AR 378.

On February 6, 2017, Baltz saw S.R. and wrote that she was doing a lot better until her boyfriend of four months broke up with her. “She’ll live but it’s all she can think about.” She was doing better with Vraylar and did not want to go to therapy. AR 378.

On March 14, 2017, S.R. reported that she consistently took Vraylar but now felt really depressed. She again endorsed a passive death wish but did not have any ideations, intent, or plan of self-harm. Baltz increased the dosage of Vraylar. AR 379.

On April 5, 2017, S.R. reported that the Vraylar suddenly made her feel really bad and suicidal. She discontinued the medication but felt crazy or suicidal, although without intent or plan. S.R. admitted that she was still stalking her ex-boyfriend. She had persistent horrible negative thoughts. Neither her longstanding therapy nor her sequence of antidepressants were effective. AR 379. Baltz made some adjustments to S.R.’s prescriptions. AR 380.

Apparently, S.R. asked Baltz out on a date before or at her April 5, 2017 visit and they exchanged phone numbers. Balt terminated their nurse/patient relationship and transferred her care to Chang. AR 380.

None of Baltz’s entries in S.R.’s medical record included vitals of heart rate or blood pressure, or for basal metabolic index (“BMI”). Nor is there any discussion why medications were discontinued, increased, or added. See AR 374-80.

Beginning on April 9, 2017, S.R. and Baltz began to text each other. On April 9, 2017, S.R. asked if this was “super unethical” and could result in them going to jail. AR 229.

Baltz replied that it would be unethical only for him as he took an oath. AR 229.

S.R. asked whether he had his fingers crossed when he took the oath and said she did not really count as a “regular civilian.” AR 229.

Baltz replied that she was not thinking clearly, and they see how she feels when her mood improves. While S.R. was not a regular civilian, any action that could harm her would be a “dick move” by him and could cost him his license after 10 years of school and work to get it. AR 229.

Baltz added that he could not believe he was tempted by her, and this was the first time in nine years that he had been tempted. AR 231. He would seriously lose his license, and any rational person would interpret their relationship as countertransference (feelings of psychotherapist towards patient). AR 231.

S.R. replied that Baltz was a human being, and she would not do anything to jeopardize his career. AR 231. She swore not to report him. AR 231. Even if he ruined her life, she would simply block him and cry. AR 231.

S.R. admitted that she was not sure why she had the confidence to be this aggressive with him. AR 231. Baltz suggested that they have a connection and should go hiking. AR 231.

On April 10, 2017, Baltz offered to take S.R. on a date at a strip mall. AR 245. He offered to pick her up from her home to go somewhere to eat before they go back to her house. AR 246. S.R. said she would get there early on her own to drink because she had used some marijuana hours earlier and was now anxious. AR 247.

On April 11, 2017, Baltz and S.R. compared photos of bruise marks and scratches they got from sexual intercourse following their date the previous night. AR 251-52, 256-57. Although S.R. talked about how sore her breasts and neck were, she confirmed it was worth it. AR 258. They debated who moaned, if anyone, and discussed details. AR 259-60.

Baltz and S.R. met for another date on April 14, 2017. AR 309. At 1:35 a.m. the following morning, S.R. went home from her date via Uber. AR 309. Her driver accosted her on the ride home and sat outside her house for some time. AR 309-10. Baltz offered to report the driver, but S.R. said not to do so. AR 310-11. At 8:50 a.m., the two began talking about how great the date was and how their intercourse did not help S.R’s headache. AR 311-12.

Apparently, S.R. ended their dating relationship. On April 26, 2017 they discussed S.R.’s brain magnet treatment. AR 354. Baltz apologized for their sexual entanglement and how he idiotically had neglected her mental health. AR 354. S.R. said that Baltz was not an idiot and that she could figure things out for herself. AR 355. Baltz said that he hoped her health improved and he “selfishly” hoped that she would not say anything about their relationship. AR 355. S.R. promised that she would not do so and reassured him it was not a big deal. AR 355.

On July 3, 2017, USA Today reported that S.R. was dead after her apparent suicide two days earlier at age 33. AR 140-41. Her family filed a wrongful death lawsuit against Baltz and Insight, which resulted in a $200,000 arbitration award. AR 101.

After S.R.’s former boyfriend alleged that there had been a sexual relationship between Baltz and S.R. in the course of her mental health treatment, the Board’s investigator, Sam Orefice (“Orefice”), investigated. AR 101, 103. Orefice issued his final report on November 8, 2019. AR 100.

Orefice’s report stated that Insight’s standardized procedures may not meet the CCR’s criteria. AR 103.

Insight’s records showed that Baltz treated S.R. between April 26, 2015 and April 5, 2017. AR 103. Baltz referred her for a higher level of care on April 15, 2017. AR 103. S.R.’s former boyfriend provided the text messages between S.R. and Baltz. AR 103.

When Orefice interviewed Baltz, he claimed that he did not remember when he first met S.R. AR 117. He treated her late in her treatment cycle, but he could not remember if it was in 2017 and it possibly was for bipolar disorder and cannabis use. AR 117. When the investigator gave Baltz his treatment notes to review, he confirmed that he treated S.R. in April 2015 and May 2016. AR 117. He referred her to Chang on April 5, 2017 to provide a higher level of care. AR 117. Baltz confirmed that S.R. had passing suicidal thoughts and that he prescribed her a lot of medications. AR 117.

Baltz could not recall if he provided S.R. with his personal number. AR 118. He volunteered that there were no text messages from her on his cell phone. AR 118. He could not remember whether he ever texted her. He denied that he had any contact with S.R. after April 15, 2017. AR 118. He denied dating S.R. or having sex with her. AR 118.

Orefice showed Baltz the text messages and screenshots from S.R.’s phone with Baltz’s contact information. AR 118. Baltz denied that they were his text messages. AR 118. The investigator showed Baltz the screenshot photos and asked Baltz if he had a similar tattoo. AR 118. Baltz revealed the tattoo on his neck, and the investigator confirmed that it matched the tattoo in the picture. AR 118. Baltz denied that the neck tattoos matched and claimed that his own tattoo was in “typewriter font.” AR 118-19. He implied that the screenshots of the text conversation were photoshopped. AR 119. Baltz claimed that he received threatening phone calls from a man who accused him of sleeping with S.R. and the pictures explained where the caller got that idea. AR 119.

Orefice reviewed the text message screenshots from S.R.’s phone. AR 127. He found one text chain where S.R. told a friend that she had suggested to Baltz they date and that it would not be unethical if she switched doctors first. AR 127.

In a text thread with another friend dated April 5, 2017, S.R. revealed that she had asked Baltz out and he agreed, provided that they find a new doctor for her first. AR 127. Baltz had a meltdown over the unethical nature of it as they exchanged numbers. AR 127. In a follow-up exchange on April 11, S.R. confirmed that they went to Baltz’s place, and she was “covered in hickeys” even though his place was not clean. AR 127.

The text messages between S.R. and Baltz show that, between the initial conversation about going out and their first date, Baltz told S.R. to delete all his texts from her phone. AR 128. Sometime after their second date, S.R. talked about how her “vagina is still broken.” AR 128. On the second-to-last page of the screenshots, Baltz blamed himself for not prioritizing S.R.’s mental health and asked her not to say anything about what happened. AR 128.

On June 15, 2020, the Executive Officer of the Board (“Complainant”) filed the Accusation against Baltz to revoke or suspend his license. AR 22.

The first allegation was for gross negligence under section 2761(a)(1). AR 21. Baltz (1) provided an inadequate psychiatric assessment of S.R., (2) did not properly document his treatment of S.R., (3) provided noncomprehensive treatment, and (4) failed to use best practices or evidence-based treatment or to seek supervision for a suicidal patient. AR 21.

The second allegation was for incompetence under section 2761(a)(1). AR 21. Baltz did not follow standard procedures for supervision with his collaborating physician. AR 21.

The third allegation was for unprofessional conduct under section 2761(a). AR 21. Baltz’s intimate relationship with S.R. constituted unprofessional conduct. AR 21.

The fourth allegation was for sexual misconduct under section 726. AR 22. Baltz obtained S.R.’s phone number and flirted with her while she was still his patient. AR 22. The two began a sexual relationship while she was still an Insight patient. AR 22.

Based on these allegations, the Complainant requested that the Board (1) revoke or suspend Baltz’s license, and (2) compel Baltz to pay the Board the costs of its investigation and enforcement of the case per section 125.3. AR 22.

On January 22, 2020, Mary Meiselman (“Meiselman”) submitted a report that summarized her review of the case. AR 449. She noted that the medical records of her intake visit at Insight provided scant information, with no comprehensive mental status exam (“MSE”), medical history, current or past medications for the first visit, comprehensive psychosocial history, allergies, past psychiatric treatment history, and no clear documentation of how Insight diagnosed her with Attention Deficit Hyperactive Disorder (“ADHD”). AR 449.

Baltz’s April 26, 2015 notes for S.R. are ambiguous as to the assessment, treatment, and rationale thereof. AR 449.

Baltz’s April 26, 2016 (sic.) notes add a prescription to treat the observed depression but do not indicate that Baltz measured vital signs or conducted a MSE. AR 450. Although S.R. said she had a passive death wish, Baltz did not create a crisis plan for suicidal behavior or consult with a therapist or collaborating physician. AR 450.

The May 11, 2016 notes did not include vitals measurements despite the decision to start S.R. on one medicine and stop another. Baltz also stopped Xanax without discussion of how much S.R. took beforehand and the risk of withdrawal. AR 450.

The July 19, 2016 notes showed that S.R. was still taking Benadryl and Xanax together without explanation or psychoeducation as to the effects of either. AR 450.

On December 21, 2016, Baltz chose to increase the Vraylar dosage because it seemed to help S.R., who was tearful during the interview. Baltz did not take baseline labs or a BMI as is the standard of practice when prescribing an anti-psychotic. AR 450.

On April 5, 2017, S.R. complained that she felts crazy and suicidal and had negative thinking. It was unclear why Baltz decided to increase the Vraylar dosage because S.R. had stopped taking it; she claimed that she felt worse when on Vraylar. AR 451.

The Board’s investigator interviewed Baltz on October 9, 2019. AR 451. Baltz claimed he only saw S.R. during her last treatment cycle. AR 451. This contradicted the extensive history of visits with S.R. from July 2012 to April 2017. AR 451. Additionally, Baltz was providing S.R. with controlled medications. The collaborating psychiatrist on record, Janek Mehtani, M.D. (“Mehtani”), denied that he conducted any regular review, chart review, monthly meetings or annual evaluations for S.R. AR 451. Baltz also said he did not refer her to Chang, whereas Meiselman concluded the extra care could have helped. AR 451.

Baltz admitted that he may have provided S.R. his private phone number but denied that he ever texted her, saw her outside Insight, dated her, or had sex with her. AR 451. Screenshots of S.R.’s messages show texts from Baltz between April 9 and 26, 2017 that discussed a relationship between them. AR 451. This included debates about its ethicality, promises to keep it secret, descriptions of lovemaking, and guilt that it ever happened. AR 451. S.R.’s ex-boyfriend Bruce Romans also confirmed the relationship. AR 452.

The standard of practice for any patient is to obtain a relevant health and medical history, perform a physical exam based on age and history, utilize critical thinking in the diagnostic process, and identify health and medical risk factors. AR 452. It also entails the nurse ordering appropriate medications, describing the rationale for the choice of medications, and assessing any ongoing signs, symptoms and benefits thereof. AR 452. To form a diagnosis, a nurse should synthesize information and form a diagnosis based on history, physical, and diagnostic testing. AR 452. A nurse should develop a comprehensive plan of care and implement it with patient teaching, evidence-based treatment, documentation, and follow-up. AR 452. The standard of care also includes interprofessional and collaborative responsibilities, such as supervision, systematic review of records, and participation in quality assurance review. AR 452. Finally, a nurse should act as the patient’s advocate and uphold all legal and ethical standards in practice thereof. AR 452.

Baltz’s breaches of the standard of care included the following: (1) his failure to include standard information such as vitals and medical and psychiatric history during intake; (2) lack of notes about formulation of diagnosis or clear rationale for medications; (3) absence of any laboratory data despite prescription of anti-psychotics; (4) lack of documentation of collaboration with the supervising psychiatrist; (5) his decision to provide S.R. with his personal number and initiate an intimate relationship with her; and (6) his failure to follow the best practice treatment by referring S.R. to higher levels of care or creating a crisis plan when she was suicidal. AR 652-53.

Meiselman concluded that Baltz demonstrated gross negligence and incompetence when providing S.R. with inadequate psychiatric assessment, poor documentation, and non-comprehensive treatment. AR 653. His intimate relationship with S.R. was an instance of unprofessional conduct and incompetence. AR 653. Baltz also demonstrated incompetence when he chose not to follow standard procedure for supervision by a collaborating physician. AR 653. Finally, his failure to seek supervision when S.R. was suicidal was grossly negligent. AR 653.

Baltz submitted 19 letters to demonstrate his character from the following persons: Andrew Peppin (family friend) AR 762; Raymond Gerena (friend) AR 763; Curtis Robinson (nursing school classmate) AR 764; Rebekah Radmanesh (supervising psychiatrist) AR 765; Jennifer Self (professional counselor) AR 766; Alan Whitters (co-worker) AR 767; Leon Chernyak AR 768; Prudence Mendiola (neighbor) AR 769; Gregory Stavaridis (psychiatric nurse practitioner) AR 770; Maria Rogers (patient) AR 771; Gary Keller (previous supervisor) AR 773; Anita Mason (patient’s family member) AR 774; Isaac Callen (nursing school colleague) AR 775; Anthony DiMaria (neighbor) AR 776; Brad Benedict (colleague) AR 777; Jennifer McGinnis (co-worker) AR 778; Sophia Majeed (co-worker) AR 779; Miller King (neighbor and friend) AR 780; and Maya Sloan (patient) AR 782-84.

On August 18-20, 2021, Baltz attended and completed an online professional boundaries program that qualifies for recertification purposes from the University of California at San Diego School of Medicine. AR 756.

The ALJ heard the Accusation on October 12 and 13, 2021. AR 792. The pertinent testimony is as follows.

At more than one point, the ALJ reminded Meiselman that she was there to opine on the standard of care, not what would have been “nice” or what she would do; the witness’s practice may or may not be what the standard of care requires. AR 1027, 1144.

The ALJ informed Baltz’s counsel that an expert need not cite an external source. AR 1161. Experts rely on their expertise, education, training, and knowledge of community practices. AR 1161. The ALJ encouraged Meiselman to state specific references upon which she relied. If, however, Meiselman did not cite an external source, that fact merely influences the weight of her opinion. AR 1161.

Meiselman testified that, per the standard of care, when a psychiatric nurse first sees a patient, the nurse should perform a psychiatric evaluation to make an assessment and treatment plan. AR 1011. The nurse should also try to understand the patient’s history, family history, compounding medical problems, and allergies. AR 1011. If the nurse decides to prescribe medication, this helps ensure the patient remains healthy. AR 1011. These things would be in Subjective, Objection, Assessment, and Plan (“SOAP”) notes for at least the first visit, after which the nurse might use the information in future visits without going into detail. AR 1011-12. S.R.’s medical record does not show any EKG, laboratory work, or other evidence that Baltz did any of this. AR 1011.

Every subsequent visit should include a MSE based on appearance, behavior, speech, thought process, memory, concentration, judgment, insight, and suicide risk factors such as homicidal ideation. AR 1012, 1020. This is absent from Baltz’s notes. AR 1012.

The standard of care requires that a nurse include in the SOAP note a formulation of diagnosis or a clear rationale for medications. Baltz did not do so. AR 1049.

The nurse should document current and past medications with every visit and reconcile their use. AR 1020. Especially when giving stimulants, the nurse should note vitals of blood pressure and pulse, and also occasionally note weight. AR 1023. Some medications like Adderall, which is a stimulant, can cause irritability and increase pulse. Xanax can cause breakthrough withdrawals. A decision to prescribe new medicine without checking these issues is concerning. AR 1023.

Before a nurse prescribes a controlled medicine such as Adderall, the standard of care is to look at CURES, a prescription monitoring program, to ensure that the prescription is safe and that the patient is not getting it elsewhere. AR 1045. The nurse should continue to check CURES quarterly. AR 1045. The nurse should also obtain cardiac clearance via blood pressure and pulse check, sometimes with an EKG, before prescribing a stimulant. AR 1045-46. Baltz did not comply with this duty. AR 1046.

When Baltz increased S.R.’s Trintellix (anti-depressant) dosage, there was no MSE or psychoeducation. AR 1025-26. As part of the standard of care, nurses always provide psychoeducation for the prescription, including the rationale, side effects, and how the patient can take care of themselves or manage symptoms. AR 1026. Baltz also never warned S.R. that taking Benadryl and Xanax together can be risky because both are sedatives. AR 1025, 1170-71.

In his entry on November 6, 2016, Baltz did not describe the rationale for the prescription of the anti-psychotic Vraylar. AR 1029. It can be used as an adjunct for depression, but the standard of care is to say if that is the purpose of using the medication. AR 1029.

The same note mentions S.R.’s passive death wish. AR 1029. The standard of care is to (1) talk to the patient about the death wish and what that means to them, and (2) assure that they have protective factors such as a crisis or safety plan. AR 1029. Such a crisis plan should include some treatment that allows the patient to reach out to crisis teams should the suicidal thoughts return and become more serious. AR 1029-30. This allows the nurse to be sure the patient is safe when they go home. AR 1030. The notes do not show that Baltz did this. AR 1030.

In his entry on December 21, 2016, there are no baseline labs or BMI readings deduced from height and weight. AR 1030. Whenever a patient starts or is on an anti-psychotic, the nurse should record the patient’s weight and fasting glucose levels. AR 1030-31. The nurse needs to monitor the situation if the BMI is high. AR 1031. Baltz breached this standard of care. AR 1031.

Baltz should have taken S.R.’s blood pressure before he prescribed propranolol (anxiety medicine) because it can lead to low blood pressure. AR 1170. This allows a nurse to warn the patient to call if he or she becomes hypotensive while on the medication. AR 1170.

In the same entry, Baltz did not investigate S.R.’s claims that she felt crazy and suicidal, even if she denied intent or plan of self-harm. AR 1031-32. The standard of care would require use of some screening tool, a risk assessment, and a crisis or safety plan. AR 1032. When a patient says they have thoughts about suicide but not an intent or plan, the nurse cannot tell if the patient is passively or actively suicidal without an assessment. AR 1062. Baltz did not assess S.R. to decide that issue. AR 1062.

S.R. was still a patient when the sexual relationship began. AR 1035. A nurse who has a sexual relationship with a current patient would violate the standard of care. AR 1035. The National Council of State Boards of Nursing’s guidelines establish that such a relationship should take place at least a year after the end of the patient-nurse relationship. AR 1039.

Baltz violated the standard of care when he provided S.R. with his private cell number; his business number would have been appropriate. AR 1036.

A higher level of care entails sending someone to a hospital, psychiatric facility, or crisis facility where more people assess the patient. AR 1037-38. This referral is the standard of care for a suicidal patient. AR 1038. There is no record that Baltz did that. AR 1038-39. Instead, he referred S.R. to transmagnetic stimulation (“TMS”) which does not meet the standard of care for a suicidal patient. AR 1036-38. There is also no record that he consulted with a therapist, which would be part of the standard of care for someone as compromised as S.R. AR 1038-39. Baltz’s referral of S.R. to Chang was not a referral to a higher level of care. AR 1055.

Baltz demonstrated gross negligence and incompetence when providing inadequate psychiatric assessment, poor documentation, and non-comprehensive treatment to the patient. AR 1055, 1173. Comprehensive treatment means that the nurse confirms the patient is working with a primary care physician, checks for any medical issues, obtains lab work at some point, gets the patient’s vitals, and performs general oversight. AR 1173. Baltz’s departure from the standard of care was extreme. AR 1173.

Baltz demonstrated unprofessional conduct and incompetence by having a nonprofessional intimate relationship with the patient. AR 1055.

Baltz was incompetent in that he did not follow standard procedures for supervision from a collaborating physician. AR 1055-56. He should have met with his supervising physician and reviewed S.R.’s case on an ongoing basis, but there is no evidence that he did so. AR 1056. Documentation would have revealed if there was such collaboration. AR 1149.

Baltz demonstrated gross negligence because he did not use best practice, evidence-based treatments, or seek supervision for a suicidal patient. AR 1056. He was required to ensure that S.R. was safe to go home, that she had a crisis plan, and that she was assessed by another physician if she was currently suicidal. AR 1056-57.

Meiselman’s reference source for Baltz’s departure from the standard of care is the Nurse Practice Act posted on the websites of the California Nurses' Association of Nurse Practitioners and the American Nurse Association. AR 1161-62. The reference for the content of a SOAP note, which is bread and butter, is every nursing book that has been published because that is core to any psychiatric evaluation. AR 1162. Medical books are also relevant because there is some overlay between physicians and nurses. AR 1162. Meiselman cited her own report as the source for whether Baltz violated the standard of care when he gave S.R. his private number. AR 1164.

Whereas the “standard of care” is always required, “best practices” are guides on what to do in order to keep the patient safe and be a patient’s advocate. AR 1166.

Patients see multiple providers at Insight. AR 1192. SOAP charting was the policy when Baltz worked at Insight. AR 1191. After a conversation with insurance companies around 2020, Insight switched from SOAP charting to a more comprehensive method. AR 1191.

When Chang sees a patient for the first time, he does not order cardiac assessment and labs for everyone. AR 1191-92. When Chang first saw S.R. in July 2012, he did not think she was suicidal. AR 1192.

Clinton Patrick Newell (“Newell”) was the owner and therapist at Scion Counseling. AR 1218. He subjected Baltz to two tests for sex offending behaviors, both of which rely on factors that change over time. AR 1218.

The first test, LDCMI, looks at the general likelihood he would commit a crime again. AR 1218. The test assumes that the subject has criminal history but sleeping with a patient is not a crime. AR 1219. Baltz scored low, equivalent to a 1% chance that he would commit any crime. AR 1218.

The second test, Stable, is specific to sexual offenses and considers factors like hostility towards women. AR 1219. Baltz scored a three, the lowest category, which means he has a low risk of committing sexual crimes. AR 1219.

Baltz was 47 years old at the time of the hearing. AR 1232. Baltz received his bachelor’s degree at Saint Louis University. AR 1232. He also received his master’s and doctorate there in 2009 and 2018, respectively. AR 1232-33. His licenses as a psychiatric and mental health nurse allow him to dispense controlled substances in California. AR 1233. He is also licensed in Colorado and Washington. AR 1233.

Baltz started as a nurse practitioner in 2009, apparently the same year as Meiselman. AR 1233. He worked with several psychiatrists in hospitals and outpatient clinics before he joined Insight. AR 1233.

Chang was his supervising psychiatrist at Insight. AR 1234. In California, there is no difference between a supervising and collaborating doctor. AR 1234. Chang routinely asked Baltz to train other nurse practitioners. AR 1234.

Baltz saw S.R. once in 2015 and seven times between 2016 and 2017. AR 1236. Neither Insight nor the other places where Baltz has worked had a policy that required a complete intake evaluation for any patient who visits the facility for the first time. AR 1236. Insurers would not pay for that, and it is unethical to bill a patient each time for a full evaluation. AR 1236.

Chang never told Baltz that he did not provide enough information in his notes for a patient. AR 1238. Sometimes he said that Baltz was overly verbose. AR 1238.

A passive death wish is a passive suicidal ideation where someone persistently wishes they were dead. AR 1240. When the patient is passively suicidal because there is no plan or intention, the nurse would not call a crisis team. AR 1240. Insight did not have such a team ready to respond when someone had suicidal thoughts. AR 1240.

Meiselman’s review of the medical record missed whenever Baltz wrote “Discussed r/b/a.” AR 1245. This means that Baltz discussed the risks, benefits, and alternatives to a medication, which is what Meiselman calls psychoeducation. AR 1245.

During one visit, S.R. asked Baltz why they could not date. AR 1253. Baltz replied that she was depressed and not thinking clearly. AR 1253. S.R. denied that she was depressed and said that Baltz was freaking out over nothing. AR 1253.

On April 5, 2017, Baltz saw S.R. as his patient for the last time. AR 1241. She said something that warned Baltz that she needed a higher level of care. AR 1241. Baltz referred her to Chang and told him he should run a full assessment that day. AR 1241.

Baltz and S.R. went on their first date about a week after their last appointment. AR 1278. They went on two dates. AR 1279. Baltz felt guilty throughout the relationship and texted S.R. about his guilt. AR 1253-54. S.R. ended their relationship via text by telling Baltz that she was not interested in him. AR 1279.

After S.R.’s suicide, Baltz heard her broadcast on Mentally Chill in which she said that her grandfather had died and that she wanted to kill herself. AR 1254. This broadcast occurred the day before she killed herself. AR 1254.

Baltz lied about the relationship when the Board interviewed him for its investigation. AR 1254.

Baltz has been sober since a few weeks after his decision to date S.R. AR 1259. He reached out to colleagues and therapists for help. AR 1259. He researched professional boundaries. AR 1259. He has made sure that he functions overall to the best of his ability as a person and clinician. AR 1259.

The ALJ issued her proposed decision on November 19, 2021. AR 881. The decision summarized S.R.’s history of care at Insight. AR 841. Although Baltz first saw S.R. in April 2015, other practitioners were responsible for her treatment until Baltz took over on April 24, 2016. AR 841. After that, Baltz saw S.R. for ten consecutive visits. AR 841.

Baltz’s SOAP notes from the April 24, 2016 visit show that she felt horrible after a breakup. AR 841-42. She had a passive death wish and sweaty hands and arms. AR 842. She suffered from ADHD and obsessive-compulsive disorder (“OCD”). AR 842. The plan consisted of Adderall, a decrease in Lexapro, and a trial run of Wellbutrin. AR 842.

Notes from her May 11, 2016 visit reveal that S.R. felt very anxious after her decrease in Lexapro. AR 842-843. Baltz kept her on Adderall but discontinued Wellbutrin, Xanax, and Lexapro. AR 843. He also added Propranolol, Brintellix, and Ativan. AR 843. These notes did not include S.R.’s vitals or an explanation for the change in prescriptions. AR 843.

The note from S.R.’s May 29, 2016 visit resulted in no changes except a return to Xanax. AR 843.

On July 19, 2016, S.R. reported that she stopped Adderall but took Benedryl and Xanax. AR 843. Baltz did not comment further, and he increased the Brintellix, now Trintellix, dose without explanation. AR 843.

On August 31, 2016, S.R. complained that the increased Trintellix made her nauseated. AR 843-44. Baltz decreased the dosage. AR 844.

On November 6, 2016, S.R. reported anxiety and a passive death wish. AR 844. The record did not show when she started Lamictal, a medicine for bipolar disorder, or the quantity. AR 844. Baltz added daily 25 mg of Lamictal plus Vraylar without explanation, baseline lab results, blood pressure, or BMI. AR 844.

On December 21, 2016, when S.R. said that Vraylar helped her, Baltz increased the dosage. AR 844. Notes show he discussed the “r/b/a” (risk, benefits, alternatives) of Vraylar. AR 844. When S.R. confirmed that Vraylar helped during a February 6, 2017 visit, he kept her on that dosage after discussing r/b/a. AR 844.

On March 14, 2017, Baltz wrote that S.R. felt depressed again and has a passive death wish again without ideation, intent, or plan. AR 845. Baltz did not change her medication. AR 845.

For S.R.’s last visit to Baltz on April 5, 2017, Baltz wrote that the Vraylar just made her feel bad and suicidal. AR 845. She discontinued it but felt crazy and still suicidal, although without plan or intent. AR 845. She was stalking her ex-boyfriend, and therapy was ineffective. AR 845. Baltz prescribed several drugs and discussed the r/b/a. AR 845-46. He also referred her for TMS and to consult with Chang. AR 846.

Baltz’s notes do not show that he ever performed an MSE or took S.R.’s vital signs, including heart rate and blood pressure. AR 846. Although the notes have “rc” next to them as a reference to Chang, this only reflected that he was the supervising physician, there was no indication that the two collaborated regarding S.R.’s case until the April 5, 2017 referral. AR 846.

Meiselman opined that Baltz did not perform adequate psychiatric assessments. AR 847. The standard of care is to perform an evaluation whenever a nurse assumes the care of a patient from another provider. AR 847. This includes relevant health and medical history, a physical exam based on age and history, health and medical risk factors, family history, current and past medications, vital signs, laboratory tests, and an EKG. AR 487. The nurse also contacts and collaborates with the patient’s primary physician to achieve the best quality care. AR 487. An MSE should be conducted for every visit to assess the patient based on appearance, speech, attention, concentration, judgment, insight, perceptual disturbances, and mood. AR 487-88. Baltz’s intake notes did not show any of this occurred. AR 848.

The standard of care also requires that the nurse diagnose a patient based on history and physical and diagnostic testing. AR 848. In the field of psychiatry, the diagnosis is based on symptoms. AR 848. Baltz’s notes never describe the symptoms or explanation behind the diagnosis. AR 848. The failure to adequately assess S.R. was an extreme departure from the standard of care. AR 849.

Meiselman opined that the standard of care is to develop a comprehensive plan of care and to implement it through patient teaching, evidence-based treatment, and documentation along with follow up. AR 849.

Baltz prescribed medications to S.R. without diagnostic screening, patient education, and rationale. AR 849. Baltz prescribed stimulant Adderall on April 24, 2016 without checking CURES or obtaining cardiac clearance in the form of S.R.’s heart rate and blood pressure. AR 849. Baltz stopped her Xanax prescription on May 11, 2016 without noting how much and how often she took it. AR 850. Baltz should have avoided withdrawal through tapering based on those factors. AR 850. He also prescribed Propranolol, which slows down the heart and lowers blood pressure, without obtaining vital signs. AR 850.

On July 19, 2016, Baltz increased Trintellix without explanation and did not warn S.R. of the sedation risk of combining Benadryl and Xanax. AR 850. Baltz did not provide an explanation or obtain baseline metabolic assessments for adding Vraylar on November 6, 2016, or for increasing the dosage on December 21, 2016. AR 850-51.

For all prescription changes, Baltz failed to order appropriate pharmacologic interventions, describe rationale for the choice of medications, perform ongoing assessments, or provide proper patient education. AR 851. He also should have collaborated with the primary physician to achieve the best outcomes, which he did not do. AR 851.

Meiselman opined that S.R.’s passive death wishes should have prompted Baltz to perform an in-depth suicide assessment or create a crisis plan, but he did not do so. AR 851. S.R.’s comment of suicidal feelings and persistent negative thoughts on April 5, 2017 should have led to a referral to a higher level of care. AR 851. Baltz did not use an evidence-based screening tool to assess the risk of suicide. AR 851. He did not send her to the emergency room or a psychiatric hospital. AR 851. He just referred her for TMS, a procedure to treat depressive disorders. AR 852. This fell below the standard of care. AR 852.

The failure to record S.R’s vital signs, MSE, rationales for starting or discontinuing medications, any patient education efforts about medication, and suicide risk assessments was an extreme departure from the standard of care for adequate documentation. AR 852.

Meiselman opined that Baltz breached the standard of care for failure to fulfill interprofessional and collaborative responsibilities such supervision, systematic review of records, and participation in quality assurance review. AR 852. However, her opinion assumed that Mehtani, not Chang, was Baltz’s supervising physician. AR 852. While Meiselman also opined that Baltz breached the standardized procedures due to the lack of annual performance and quarterly case reviews, the standardized procedures signed by Chang and Baltz do not provide for these procedures. AR 853. As confirmed by Chang’s testimony, they just required that Baltz contact Chang if S.R. is persistently non-responsive to psychiatric interventions or he wanted a second opinion and no consultation was necessary if Baltz never expressed concerns. AR 853-54. Meiselman insisted that her opinion did not change, regardless of who the supervisor was, because Baltz’s notes did not reflect any collaboration. AR 854.

Baltz disputed whether he should have conducted a comprehensive evaluation of S.R. because insurers do not pay for them, and it would be unethical to bill for it when the patient changes providers. AR 854. S.R. did not need laboratory and cardiac testing for prescriptions because she was a 30-year-old fit female. AR 855. Baltz prescribed Ativan when she stopped the Xanax prescription instead of tapering it off because Ativan negates the risk of Xanax withdrawal. AR 855. Every time the notes say that he discussed “r/b/a,” Baltz provided the necessary patient education. AR 855.

Baltz also believed that passive death wish, which S.R. had for multiple years, did not pose an inherent suicide risk. AR 855. When she did express suicidal thoughts, Baltz referred her to Chang for higher care. AR 855. No one at Insight ever criticized Baltz for having incomplete notes or otherwise disciplined him. AR 855.

The ALJ found Meiselman’s testimony credible on most issues and gave it significant weight. AR 856. Although her testimony was unfocused and digressive, the ALJ concluded that was because she had not testified in court. AR 856. Her opinions were consistent and supported by the evidence. AR 856. Baltz’s entries in the medical record were scant and without evidence of a comprehensive evaluation at intake, rationale for diagnosis, rationale for prescribing and terminating medications, patient education on drug side effects and interactions, or suicide risk assessment. AR 857. Baltz did not provide expert testimony to rebut Meiselman. AR 857.

Baltz’s testimony was not credible. AR 857. His notes do not reflect S.R.’s height, weight, BMI or fitness level. AR 857. This discredited Baltz’s argument that he considered laboratory and cardiac testing unnecessary because she was a 30-year-old fit female of normal weight. AR 857. His notes on the Ativan prescription do not suggest that he used it to counter Xanax withdrawal. AR 857. The reference in the notes “discussed d/b/a” says nothing about what risks, benefits, and alternatives were discussed. AR 857. There is no record of a suicide risk assessment, even after S.R.’s comments on April 5, 2017. AR 857. Baltz’s referral to Chang for TMS, and not to a psychiatric hospital or emergency care, is unsupported by a thorough assessment of her condition. AR 857.

Based on the testimony, the Complainant established by clear and convincing evidence that Baltz deviated from the standard of care through his (1) inadequate psychiatric assessment of S.R., (2) non-comprehensive treatment, (3) failure to seek a higher level of care when S.R. was suicidal, and (4) failure to properly document his treatment of S.R. AR 858.

The Board did not establish by clear and convincing evidence that Baltz deviated from the standard of care through his failure to collaborate with the supervising physician. AR 859. Meiselman’s testimony was not credible because she misidentified the supervising physician and did not opine whether a nurse must seek greater supervision if the requirements of the standardized procedures are minimal. AR 858.

S.R. asked Baltz out and exchanged numbers the same day he referred her to Chang. AR 859. The texts that followed show that Baltz was aware of the ethical implications of any relationship between them. AR 859. The texts on April 11, 2017 detail their date and sex from last night, including images of hickeys and Baltz’s distinctive tattoo. AR 860. They went on a second date on April 15, 2017. AR 860. When they ended the relationship on April 26, 2017, Baltz expressed guilt and asked S.R. not to say anything. AR 860. S.R. insisted that Baltz made a big deal out of nothing and was not an idiot for what he did. AR 860. S.R. killed herself on July 1, 2017, the day after her grandfather died. AR 860.

During his investigative interview, Baltz first volunteered that his phone had no texts from S.R. AR 861. When asked, he said that he could not remember if he ever texted S.R. AR 861. He said that he never spoke with her after he referred her to Chang. AR 861. Baltz denied that he ever went on a date or had sex with S.R. AR 861. He also denied that the text messages were his. AR 861. When shown the photos, Baltz denied that the neck tattoo in the pictures was his, even after the interviewer compared them. AR 861-62. When shown all 128 pages of text, Baltz said: “I completely deny.” AR 862.

At the hearing, Baltz admitted to the sexual relationship and said he regretted it. AR 862. He blamed the relationship on his use of alcohol but claimed that he has been sober since May 2017. AR 862. Baltz admitted to lying during the Board’s investigation out of guilt and fear. AR 862.

Baltz conceded that he crossed professional boundaries and testified that he had attended an online Professional Boundaries Program at UC San Diego in 2021. AR 863. He also had reached out to colleagues to ensure he remain within professional boundaries. AR 864. He did not submit a Boundary Maintenance and Personal Prevention Plan. AR 864.

Newell testified that, based on two different risk assessments, the chance that Baltz will commit a criminal offense, or another sexual offense, is low. AR 864-65. Newell considered Baltz to be a low risk to the public if he remained licensed as a nurse. AR 866.

Meiselman opined that the sexual relationship was unethical and unprofessional. AR 866. The decision to terminate a nurse-patient relationship to pursue a sexual one was also sexual misconduct. AR 866. S.R. was still Baltz’s patient because two years did not pass since their last consultation. AR 866-67. Her opinion on the unprofessional nature of the relationship was credible, and the Board established by clear and convincing evidence that the sexual relationship was unprofessional. AR 867. However, the ALJ gave no weight to Meiselman’s claim that Baltz committed sexual misconduct because it was based on inapplicable statutory standards. AR 867.

Newell’s testimony was credible but of little weight because the issue was whether the relationship was unprofessional, not whether there was a risk of recidivism for a sex crime or whether Baltz abused his authority. AR 867-68.

Baltz’s texts reflect that he was aware that S.R.’s mental state was vulnerable and that a relationship could harm her, but he did not display much insight into that issue in his testimony. AR 868-69.

The character letters were of little weight because the authors seemed unaware of the allegations or the magnitude of misconduct at issue. AR 869.

As to the first charge in the Accusation, 16 CCR section 1442 defines gross negligence as an extreme departure from the standard of care, which is a question of fact. AR 871. The Complainant established gross negligence by clear and convincing evidence because Baltz (1) provided an inadequate psychiatric assessment of S.R., (2) did not properly document his treatment of S.R., (3) provided non-comprehensive treatment, and (4) failed to use best practices or evidence-based treatment or to seek supervision for a suicidal patient. AR 871-72.

As to the second charge in the Accusation, cause did not exist to discipline because the Complainant did not establish by clear and convincing evidence that the lack of collaboration between Baltz and Chang demonstrated incompetence. AR 873.

As to the third charge in the Accusation, a sexual relationship with a former patient with known mental health infirmities was a serious lapse in judgment. AR 874. Shea v. Board of Medical Examiners, (“Shea”) (1978) 81 Cal.App.3d 564, 575 defines “unprofessional conduct” as that which is unbecoming a member in good standing of the medical profession, and which demonstrates an unfitness to practice a healing art. AR 874. The Complainant established by clear and convincing evidence that Baltz and S.R. had a non-professional, intimate relationship. AR 874. The relationship qualified as unprofessional conduct because it was unbecoming of a member in good standing of the medical profession and demonstrated an unfitness to practice nursing. AR 874.

As to the fourth charge, sexual misconduct, the relationship was not sexual misconduct under section 726. AR 874-75. The court in Poliak v. Board of Psychology, (“Poliak”) (1997) 55 Cal. App.4th 342, held that section 726 only applies to patients presently under the care of a healthcare provider. AR 875. While the Legislature amended section 2960 to include former patients within two years following termination of therapy, it only applies to psychologists. AR 875. Similarly, section 729(a), which applies to physicians and surgeons, psychotherapists, and alcohol and drug abuse counselors, applies to a former patient or client when the relationship was terminated primarily for the purpose of engaging in those acts. AR 876.

Section 726, which applies to all licensees in healing arts, was not amended. AR 875. Compared to other health professionals, mental health professionals are in a unique position to emotionally exploit the patient. AR 877. Yet, section 726 does not provide a basis for discipline because Baltz terminated the nurse-patient relationship before engaging in a sexual relationship with S.R. AR 877.

The Guidelines recommend license revocation for the two established grounds of discipline. AR 878. The Guidelines set forth the factors to be considered for discipline: the nature and severity of the act, any criminal record, the time elapsed since the commission of the act, evidence of rehabilitation and mitigation, any prior disciplinary record, and any actual or potential harm to the public or a patient. AR 878. Applying these Guidelines factors, revocation of Baltz’s license is warranted. AR 878. His acts were extremely serious. AR 878. Although no proof tied his misconduct to S.R.’s suicide, the potential for harm was great. AR 878. His gross negligence could have compromised S.R.’s mental health and safety and undermined her quality of care. AR 878. The power imbalance between a psychiatric nurse and his patient also left her susceptible to confusion and exploitation when Baltz did not respect professional boundaries. AR 878-79.

As for mitigation, Baltz has no prior discipline. AR 879. He testified that he has become sober but provided no other evidence of that fact. AR 879. Baltz’s decision to repeatedly lie and deny the sexual relationship during the investigation was an aggravating factor. AR 879. Baltz also failed to acknowledge wrongdoing in S.R.’s treatment and failed to acknowledge that S.R. was especially vulnerable as a psychiatric patient with suicidal thoughts. AR 879. Baltz also had no concrete plans to prevent reoccurrence. AR 879.

The ALJ recommended revocation of Baltz’s license and that he pay all investigation and enforcement costs upon reinstatement. AR 881.

On January 21, 2022, the Board notified Baltz that it had adopted the ALJ’s proposed decision, effective February 18, 2022. AR 836-37.

Petitioner Baltz makes three contentions: (1) the ALJ[4] failed to proceed in the manner required by law by misapplying section 2671; (2) the finding of gross negligence is not supported by the Complainant’s expert witness, and (3) the penalty of revocation is excessive.

The Board may take disciplinary action against a certified or licensed nurse or deny an application for a certificate or license for unprofessional conduct, which includes, but is not limited to, incompetence, or gross negligence in carrying out usual certified or licensed nursing functions. §2761. The term “gross negligence” includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or the failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client's health or life. 16 CCR §1442.

Pursuant to section 2761(a)(1), the Board may discipline a certified or licensed nurse for engaging in unprofessional conduct, including gross negligence, in carrying out nursing functions. The scope of unprofessional conduct is not limited to acts enumerated in section 2761. “Unprofessional conduct that is used as a basis for revoking or suspending a professional license must demonstrate an unfitness to practice that profession if the disciplinary action is to comport with due process.” Sulla v. Board of Registered Nursing, (2012) 205 Cal.App.4th 1195, 1198 (board properly place nurse’s license on probation where he caused car accident while driving under the influence of alcohol); Shea, supra, 81 Cal.App.3d at 575.

The ALJ found Baltz guilty of the third charge of gross negligence because he had a sexual relationship with a former patient with known mental health infirmities was a serious lapse in judgment. AR 874. The relationship of Baltz and S.R. qualified as unprofessional conduct because it was unbecoming of a member in good standing of the medical profession and demonstrated an unfitness to practice nursing. AR 874.

Baltz argues that the ALJ erred in finding that he committed unprofessional conduct in violation of section 2761(a)(1) because his professional relationship with S.R. ended on April 5, 2017, and their dating relationship began a week later. The ALJ correctly ruled that Baltz was not guilty of the fourth charge of sexual misconduct because section 726 cannot be applied to a healthcare provider’s relationship with a former patient. See Poliak, supra, 55 Cal. App.4th at 342. AR 874-75. The ALJ also correctly noted that the Legislature amended section 2960(o) after Poliak to provide for the discipline of “psychologists who engage in sexual relationships with former patients within two years following termination of therapy” but it did not amend section 726 in the same manner. AR 875-76. Given that his intimate relationship with a former patient did not constitute unprofessional conduct under section 726 or the Nursing Practice Act, however, the ALJ erred in determining that the same conduct existed was cause for discipline under section 2761(a). Pet. Op. Br. at 6-7.

Baltz argues that the ALJ wrongly relied on Shea, and he relies instead on Moustafa v. Board of Registered Nursing, (“Moustafa”) (2018) 29 Cal.App.5th 1119, 1137.

In Shea, a licensed doctor of osteopathy attempted to hypnotize four patients on separate occasions and while believing them to be under hypnosis, and without solicitation, described to them in lurid and salacious detail sexual foreplay and the act of sexual intercourse.” 81 Cal.App.3d at 570. Shea was disciplined under section 2361, which at the time permitted the Medical Board to discipline a physician for unprofessional conduct, which includes gross immorality and any act of moral turpitude, dishonesty, or corruption. Id. at 569, n. 1. Shea challenged section 2361 as so vague and indefinite as to violate due process. Id. at 574. The court construed section 2361 in a manner that did not define unprofessional conduct broadly. Id. at 575. Rather, the unprofessional conduct violating section 2361 must indicate an unfitness to practice medicine. Ibid. Unprofessional conduct is conduct which breaches the rules or ethical code of a profession or which is unbecoming of a member in good standing of a profession. Id. (citing Board of Education v. Swan, (1953) 41 Cal.2d 546, 533). As a result, it was not necessary that section 2361 enumerate specific acts which constitute unprofessional conduct, and the statute did not violate due process. Id.

In Moustafa, the court held that the Board could not issue a restricted license based on misdemeanor convictions dismissed under Penal Code section 1203.4, but the Board did have the right to issue the restricted license based on proof of the underlying misconduct of petty thefts (but not acts of vandalism). 29 Cal.App.5^th at 1125. In evaluating whether the petty thefts were unprofessional conduct under section 2761 that were “substantially related” to nursing, the court first noted that section 2761(a)’s examples of unprofessional conduct are not exhaustive. Id. at 1136-37. The court agreed with Shea that the unprofessional conduct must indicate an unfitness to be a doctor (Shea) or nurse (Moustafa) but cautioned that “Shea’s language about “conduct which breaches the rules or ethical code of a profession” was “at best dicta or at least an overstatement of the applicable law”; the touchstone is “unfitness to practice medicine.” Id. at 1137 (citation omitted). Whether Moustafa’s petty thefts qualified as unprofessional conduct or were substantially related to the practice of nursing turned on the same issue: whether the conduct sufficiently established Moustafa's unfitness to be a nurse.” Id. at 1139. “Moustafa's relatively recent shoplifting sufficiently reflected her present or potential unfitness to practice nursing in a manner consistent with the public health, safety, or welfare”, and the Board’s restrictions were upheld. Ibid.

Moustafa does not aid Baltz. Moustafa, like Shea, expressly stated that unfitness to practice is the yardstick to determine unprofessional conduct. Moustafa only cautioned against Shea’s loose language that unprofessional conduct is “conduct which breaches the ethical code of a profession”. Id. at 1137. As Moustafa stated, whether conduct qualifies as unprofessional conduct or substantially relates to the practice of nursing turns on the same issue: whether the conduct sufficiently establishes unfitness to be a nurse. Id. at 1139. Opp. at 10-11.

Baltz distinguishes Shea in that he is not a physician, and his conduct was neither unsolicited nor aimed at a current patient. Rather, he was a nurse who engaged in a consensual sexual relationship with his former patient after S.R. asked him out on a date. Unlike the physician in Shea, his sexual relationship with S.R. was not grossly immoral or dishonest. Further, Shea undermines the ALJ’s decision to revoke Baltz’s license because the discipline imposed for Shea’s egregious misconduct was only five years-probation following a psychiatric examination, not license revocation. 81 Cal.App.3d at 570.

Baltz argues that nothing in the Business and Professions Code provisions governing sexual relations with patients, or in the Nursing Practice Act, prohibits his conduct with S.R. The Legislature could have expanded the definition of unprofessional conduct in section 726 to include consensual sexual relations between nurses and former patients, just as it did so for physicians in section 729. Unless the statutory scheme shows that the Legislature intended unprofessional conduct under section 2761(a) to have a different meaning than unprofessional conduct under section 726, the ALJ’s finding that Baltz engaged in unprofessional conduct in violation of section 2761(a) was improper. Consequently, the Board failed to proceed in the manner prescribed by law by disciplining him for conduct that was deemed to not constitute unprofessional conduct. Pet. Op. Br. at 8-9.

Baltz ignores the factual circumstances. He was not simply a nurse who had a sexual relationship with a former patient. He was a psychiatric nurse practitioner and, as such, a mental health professional. As the ALJ noted (AR 876-77), mental health professionals are treated differently from other health professionals because psychiatric patients have a greater propensity to develop strong emotional dependence with the provider and there is a corresponding greater risk of exploitation of the patient. See Atienza v.Taub, (1987) 194 Cal.App.3d 388, 393, n. 2. As a mental health professional, Baltz had a sexual relationship with a former patient whom he knew to be in a particularly vulnerable state. On April 5, 2017, she reported that she felt really bad and suicidal. AR 379. He discontinued her as a patient on that date, began texting her, and yet went on a date with her five days later.

The ALJ properly concluded that this breach of professional boundaries with a former patient with known mental health infirmities evinced a serious lapse in judgment, was unbecoming of a member in good standing in the medical profession, and demonstrated an unfitness to practice nursing. AR 874. Baltz admitted in a text message to S.R. that terminating his professional relationship with her to commence a sexual relationship was unethical and potentially harmful to her. AR 229. Accordingly, his actions reflect an unfitness to practice nursing in a manner consistent with public safety. These facts distinguish his unprofessional conduct under section 2761(a) from unprofessional conduct under section 726.[5]

The ALJ found Baltz guilty of the Accusation’s first charge of gross negligence because he (1) provided an inadequate psychiatric assessment of S.R., (2) did not properly document his treatment of S.R., (3) provided non-comprehensive treatment, and (4) failed to use best practices or evidence-based treatment or to seek supervision for a suicidal patient. AR 871-72. The ALJ determined that Meiselman, who supported these findings, possesses abundant knowledge, experience, and expertise in her field and is well-qualified to render her opinions on these subjects. AR 857. The ALJ found her testimony credible, consistent, and supported by the documentary evidence, including Baltz’s scant entries in S.R.’s medical records.

Baltz argues that the court should reject Meiselman’s expert testimony as it fails to satisfy the reliability standard for the admission of expert opinion under Sargon Enterprises, Inc. v. University of Southern California, (“Sargon”) (2012) 55 Cal.4th 747. In Sargon, the court explained that the court’s role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 772. A fact finder may reject the testimony of a witness, including an expert, even where the testimony is uncontradicted. Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 889. Pet. Op. Br. at 9.

Baltz contends that Meiselman’s expert report is devoid of any specific references to applicable professional standards or guidelines regarding a psychiatric nurse’s treatment of patients and does not state which opinions are based on her training and experience. AR 449–53. During her testimony, Meiselman was unable to identify specific references supporting her determination that Baltz’s conduct was a departure from the standard of care. AR 1162. Meiselman also offered confusing statements about the standard of care for nurses and what conduct would be considered good practice. AR 1164, 1166. On more than one occasion, the ALJ had to remind Meiselman that she must testify about the standard of care and not her opinion on best practices. AR 1027, 1144. Yet, Meiselman merely cited to her own report as the authority for opinion that Baltz departed from the standard of care in giving S.R. his cell phone number. AR 1164. Pet. Op. Br. at 9-10.

While the ALJ noted that Meiselman’s testimony was at times unfocused and digressive, the ALJ determined that the issues were attributable to her inexperience in testifying rather than her credibility. AR 810. Yet, Meiselman’s unreliability extends to her report, and both her expert report and testimony fail to meet the reliability standards under Sargon because her opinions do not conclusively identify the minimum standards required of Baltz in his treatment of S.R. Her opinions instead appear to be a summation of what she believes are good practices rather than actionable conduct warranting discipline. Pet. Op. Br. at 10.

The Board responds that Baltz did not object to Meiselman’s expertise and experience, her definition of the standard of care, or her opinions as to how his conduct constituted gross negligence. Consequently, irrespective of the expert’s credibility, Baltz has waived the objection that Meiselman’s testimony is unreliable and therefore cannot serve as the basis of the Board’s decision. Jaramillo v. State Bd. for Geologists & Geophysicists, (2006) 136 Cal.App.4th 880, 893. Opp. at 13. If the Board is suggesting that Meiselman’s opinions cannot be contested, this is an overstatement. Baltz’s failure to object waives objection to the relevance of Meiselman’s testimony or her credentials, but not to the adequacy of her opinions.

The standard of care in disciplinary proceedings involving licensed nursing functions is to exercise the degree of “care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse.” 16 CCR §1442. The Board correctly notes that the testimony of an expert on the standard of care and is generally conclusive. “Just as with physicians and surgeons, however, expert opinion testimony is required to prove that a defendant nurse did not meet the standard of care and therefore was negligent, except in cases where the negligence is obvious to [laypersons].” Lattimore v. Dickey, (2015) 239 Cal.App.4th 959, 969 (citing Massey v. Mercy Medical Center Redding, (2009) 180 Cal.App.4th 690, 694–95 (quotations omitted). When the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded." Osborn v. Irwin Memorial Blood Bank, (1992) 5 Cal.App.4th 234, 277. Opp. at 13.

Meiselman’s report explained in part that the standard of care for any patient is to obtain a relevant health and medical history, perform a physical exam based on age and history, utilize critical thinking in the diagnostic process, and identify health and medical risk factors. AR 452. It also entails the nurse ordering appropriate medications, describing the rationale for the choice of medications, and assessing any ongoing signs, symptoms and benefits thereof. AR 452. To form a diagnosis, a nurse should synthesize information and form a diagnosis based on history, physical, and diagnostic testing. AR 452. A nurse should develop a comprehensive plan of care and implement it with patient teaching, evidence-based treatment, documentation, and follow-up. AR 452.

According to Meiselman’s report, Baltz’s breaches of the standard of care included (1) his failure to include standard information such as vitals and medical and psychiatric history during intake, (2) lack of notes about formulation of diagnosis or clear rationale for medications, (3) absence of any laboratory data despite prescription of antipsychotics, (4) no documentation of collaboration with the supervising psychiatrist, (5) his decision to provide S.R. with his personal number and initiate an intimate relationship with her, and (6) his failure to follow the best practice treatment by referring S.R. to higher levels of care or creating a crisis plan when she was suicidal. AR 652-53.

Meiselman’s testimony similarly articulated the standard of care. AR 1011-12, 1020, 1045-46, 1049. As the Board argues, Baltz offers no authority for his claim that Meiselman must refer to specific source authority in her report because no such requirement exists. While an expert witness may be cross-examined on any materials relied upon in forming their opinion, the ALJ correctly noted that an expert opinion does not need to rely on specific references. AR 1150. Experts base their opinion on their expertise, education, training, and knowledge of the community's practices. AR 1161. Any failure to cite a specific source goes only to the weight of expert testimony.

Moreover, the only occasion on which Meiselman did not cite a specific source when she was asked occurred when she cited her own report as the authority that Baltz departed from the standard of care in giving S.R. his cell phone number. AR 1164. When Baltz’s counsel asked her what materials she relied on concerning what SOAP notes should include, Meiselman responded that the requirements for a SOAP are found in any nursing handbook. “It's training; it's experience. I mean, a SOAP note is sort of bread and butter. And any psychiatric evaluation book, be it Carlat, I don't know; there's many -- Fitzpatrick. Those are all nursing books that I use.” AR 1162. This is not a failure to refer to a specific reference.

Baltz notes that he presented standardized procedures that he and Chang mutually agreed upon for the provision of psychiatric nursing services. Chang testified that Baltz followed the applicable procedures that were in effect during his employment. The Board did not present any argument that these standardized procedures did not comply with the requirements of section 2836.1 and 16 CCR section 1474. While the ALJ noted in a footnote that whether the Chang’s and Baltz’s standardized procedures complied with this law was beyond the scope of the hearing, the ALJ’s failure to consider whether Baltz’s treatment of patients conformed to the standardized procedures amounts to an abuse of discretion. Baltz concludes that the ALJ’s finding of gross negligence is against the weight of the evidence. Pet. Op. Br. at 10.

The ALJ did not base her gross negligence finding on Baltz’s compliance or non-compliance with the standardized procedures to which he and Change agreed (AR 858, n. 6), and whether those standardized procedures conformed to the law does not bear on the gross negligence charges. A nursing practitioner cannot avoid the standard of care by agreeing with a supervising physician on standardized procedures imposing lesser requirements, or as the ALJ described them “negligible supervision”. AR 858. Whether Baltz complied with the standardized procedures was relevant to the second charge of incompetence for lack of collaboration, and the ALJ found that he had so complied in concluding that he was not guilty of that charge. AR 858. This compliance did not bear on the standard of care, however.

The ALJ identified four distinct instances in which Baltz was grossly negligent in failing to provide care: (1) his psychiatric assessment of S.R. was inadequate; (2) he failed to properly document his treatment of S.R; (3) his treatment of S.R. was non-comprehensive; and (4) he failed to seek a higher level of care for S.R. In each instance, Meiselman testified as to the applicable standard of care and that Baltz’s departures from the standard were extreme. This is sufficient evidence to support the gross negligence charges.

Public protection is the primary goal of the Board. §2708.1. “[T]he purpose of an administrative proceeding concerning the revocation or suspension is not to punish the individual; the purpose is to protect the public from dishonest, immoral, disreputable, or incompetent practitioners.” Ettinger v. Bd. Of Med. Quality Assurance, (1982) 135 Cal.App.3d 852, 856.

The ALJ found that Baltz was grossly negligence in connection with his assessment and treatment of S.R. and in engaging in a sexual relationship with S.R. whom he knew to be in a particularly vulnerable state, and that revocation of Baltz’s license is warranted. AR 878. His acts were extremely serious. AR 878. Although no proof tied his misconduct to S.R.’s suicide, the potential for harm was great. AR 878. His gross negligence could have compromised S.R.’s mental health and safety and undermined her quality of care. AR 878. The power imbalance between a psychiatric nurse and his patient also left her susceptible to confusion and exploitation when Baltz did not respect professional boundaries. AR 878-79.

As for mitigation, Baltz has no prior discipline. AR 879. He testified that he has become sober but provided no other evidence of that. AR 879. Baltz’s decision to repeatedly lie and deny the sexual relationship during the investigation was an aggravating factor. AR 879. Baltz also failed to acknowledge wrongdoing in S.R.’s treatment. AR 879. He further did not acknowledge that S.R. was especially vulnerable because she was a psychiatric patient with suicidal thoughts. AR 879. Finally, Baltz had no concrete plans to prevent reoccurrence. AR 879.

Baltz argues that there was no determination that his conduct had any actual effect on S.R.’s health or her suicide occurring approximately three months after he transferred her care to Chang. The ALJ correctly noted that approximately four years had elapsed since the underlying events, during which time Baltz had completed courses on maintaining professional boundaries.

He has no prior disciplinary or criminal record. Baltz submitted numerous character reference letters, all of which described him “as a skilled, respectful, and compassionate nurse practitioner.” Yet, the ALJ largely disregarded this evidence under the assumption that the authors did not appear to be aware of all the allegations against Baltz. AR 869.

In addition, he submitted substantial evidence of rehabilitation. The ALJ recognized that Baltz had undergone a sex offender risk assessment which showed that he is “not at risk for re-offending sexually,” and there is no indication that “Baltz has been or is trying use his position of authority to gain sexual access to women.” AR 879. While the ALJ found that he had no concrete plans to prevent reoccurrence, Baltz testified that he had completed a Professional Boundaries Program at the University of California at San Diego School of Medicine and sought support from colleagues and peers in reforming himself. AR 1259.

Baltz concludes that balancing the pertinent factors does not demonstrate that he is incapable of safe practice, warranting an outright revocation of his license. The level attention given by the ALJ to Baltz’s sexual relationship with S.R., as opposed to his treatment of S.R., clearly indicates that the revocation was punitive rather than to protect the public from “dishonest, immoral, disreputable, or incompetent practitioners.” Given that nothing in the record suggests that he lacks the capacity to practice safe nursing, the decision to revoke his license is an abuse of discretion. Pet. Op. Br. at 12.

The Board notes that, pursuant to sections 2750 and 2761, it is empowered to impose discipline against a professional licensee who commits unprofessional conduct and its discretion is “virtually unfettered.” Morton, supra, 235 Cal.App.3d at 1567. In deciding license discipline, the Board is required to consider its Guidelines. 16 CCR §1444.5. The Guidelines set a range of possible discipline to protect the public. Deviation from the Guidelines only is appropriate where the Board, in its sole discretion, determines that the facts of the case warrant such a deviation. Ibid. The recommended discipline for both gross negligence and unprofessional conduct is revocation. Guidelines, pp. 3-4. Opp. at 17-18.

The court agrees. The Guidelines provided for the discipline of revocation in this case, and the Board had the discretion to impose that discipline. Nor can Baltz be surprised by this result. In his own words – which concerned only his sexual relationship with S.R. and not his gross negligence -- “I can’t even believe I’m tempted….I’d seriously lose my license.” AR 231. Unfortunately for him, he did lose his license. The Board’s decision to revoke Baltz’s license and certificates was not a manifest abuse of discretion.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Baltz’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 28, 2023, at 1:30 p.m.

[1] All further statutory references are to the Bus. & Prof. Code unless otherwise stated.

[2] The Board requests judicial notice of the Board’s Disciplinary Guidelines (“Guidelines”) (Ex. A). The request is granted. Evid. Code §452(c).

[3] Although Baltz claimed there were seven visits during this time (Pet. Op. Br. at 2), the shorthand title for each visit on the medical record makes this difficult to confirm.

[4] For convenience, the court will refer to the ALJ’s recommended decision rather than the Board’s adoption of it.

[5] Baltz argues that the ALJ did not find that his conduct demonstrated a substantial relation to his fitness to practice nursing. Pet. Op. Br. at 9. Moustafa answers this point. Whether Moustafa’s petty thefts qualified as unprofessional conduct or were substantially related to the practice of nursing turned on the same issue: whether the conduct sufficiently established Moustafa's unfitness to be a nurse.” 29 Cal.App.5^th at 1139. The same is true for Baltz. The ALJ’s finding that Baltz’s unprofessional conduct demonstrated an unfitness to practice nursing necessarily shows a substantial relation to the practice of nursing. See AR 874.