PROTECTIVE HEALTH SERV. v. VAUGHN

ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION 1

¶ 0 Plaintiff, a certified nurse aide, photo-copied pages of an Epworth Villa nursing home resident's medication record and provided it to the Equal Employment Opportunity Commission in support of her claim against Epworth Villa. When Epworth Villa learned of the incident, it fired the plaintiff and reported the act to the Oklahoma Department of Health. The Department of Health initiated administrative proceedings, alleging that the plaintiff had violated 42 U.S.C. §§ 1396r(e)(2), 1396r(g)(1)(C) and 42 C.F.R. §§ 483.13, 483.156, 488.301 (2003). The Administrative Law Judge found that plaintiff had violated the rules prohibiting the misappropriation of a resident's property and ordered the finding to be placed on the Oklahoma Nurse Aide Registry. The district court and the Court of Civil Appeals affirmed. This Court granted certiorari to review the issue of first impression.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; CAUSE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS.

TAYLOR, V.C.J.

¶ 1 The first impression issue in this case is whether a certified nurse aide's photocopying a resident's medication record and releasing it to the Equal Employment Opportunity Commission (EEOC) requires the Oklahoma State Health Department (the Department) to make a finding of misappropriation of a resident's property and place the finding on the Oklahoma Nurse Aide Registry pursuant to title 42, sections 1396r(e)(2) and 1396r(g)(1)(C) of the United States Code; title 42, sections 483.13, 483.156, and 488.301 of the Code of Federal Regulations (CFR); title 63, section 1-1951 of the Oklahoma Statutes; and sections 310:677-1-2, 310:677-7-4, and 310:677-7-4 of the Oklahoma Administrative Code (OAC).

I. FACTS

¶ 2 The relevant facts at all stages of the proceedings, including appellate review, are undisputed. While employed by the Epworth Villa (Epworth) nursing home as a certified nursing assistant, Bernadine Vaughn filed a complaint with the EEOC, alleging racial discrimination. Thereafter and while still working at Epworth, Ms. Vaughn saw a patient's medication record on a copier. Ms. Vaughn believed that the medication record showed that Caucasian nurses had made errors for which they were not disciplined, although Ms. Vaughn had been disciplined for similar errors. Ms. Vaughn photocopied two pages of the medication record and gave them directly to the EEOC to support her claim of racial discrimination. Ms. Vaughn did not take the original record off Epworth's premises. Epworth's personnel policies defined the records as Epworth's property. There was no evidence that the patient or the patient's family knew about the incident, let alone suffered any harm.

Ms. Vaughn's "motion for summary judgment" before the administrative law judge states, as an undisputed fact, that she copied four pages of the medication record. It is irrelevant to the resolution of the issue presented here whether she copied two or four pages.

The evidence indicates that Ms. Vaughn photocopied the medication record in June of 2004 and that the patient died in August of 2004. The evidence does not show when Ms. Vaughn gave a photocopy of the medication records to the EEOC.

¶ 3 During the EEOC proceeding, Epworth discovered that Ms. Vaughn had given the photocopies to the EEOC and terminated her employment. Epworth reported to the Department that Ms. Vaughn had misappropriated a resident's property. The Department commenced administrative proceedings against Ms. Vaughn.

Ms. Vaughn also brought suit in federal district court against Epworth on several charges, all related to its alleged discriminatory practices and wrongful discharge. Vaughn v. Epworth Villa, 2006 WL 2987728 (W.D.Okla. 2006). On August 4, 2006, the court denied Ms. Vaughn's motion for partial summary judgment. Vaughn v. Epworth Villa, 2006 WL 2246453 (W.D.Okla. 2006). On October 17, 2006, the court granted Epworth's partial summary judgment, leaving Ms. Vaughn's discriminatory treatment race claims pending. Id. at *5. The order granting partial summary judgment was affirmed on appeal. Vaughn v. Epworth Villa, 537 F.3d 1147, 1155 (10th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1528, 173 L.Ed.2d 657 (2009).

¶ 4 The Department asserted that Ms. Vaughn, a certified nurse aide, "is required to comply with the rules and other applicable laws as set out in 63 O.S. §§ 1-1901[ 63-1-1901] et seq.[,] Public Health Code-Nursing Home Care Act." The Department alleged that on May 24, 2005, Ms. Vaughn had misappropriated a resident's property by "making copies of a resident's medication records and taking them outside the facility without permission to copy records[,]" which allegation it says it verified. The Department alleged that these acts violated title 42, sections 1396r(e)(2) and 1396r(g)(1)(C) of the United States Code and title 42, sections 483.13, 483.156, and 488.301 of the Code of Federal Regulations (CFR). It did not allege that Vaughn had violated any state statutory or regulatory laws. The Department requested a hearing "to determine whether the facts as alleged sustain a finding against [Ms. Vaughn] requiring the posting of said finding upon the Nurse Aide Registry of the Oklahoma State Department of Health."

Title 42, § 1396r(e)(2) of the United States Codes provides, in part:

(e) State requirements relating to nursing facility requirements

As a condition of approval of its plan under this subchapter, a State must provide for the following:

. . .

(2) Nurse aide registry

(A) In general

By not later than January 1, 1989, the State shall establish and maintain a registry of all individuals who have satisfactorily completed a nurse aide training and competency evaluation program, or a nurse aide competency evaluation program, approved under paragraph (1) in the State, or any individual described in subsection (f)(2)(B)(ii) of this section or in subparagraph (B), (C), or (D) of section 6901(b)(4) of the Omnibus Budget Reconciliation Act of 1989.

(B) Information in registry

The registry under subparagraph (A) shall provide (in accordance with regulations of the Secretary) for the inclusion of specific documented findings by a State under subsection (g)(1)(C) of this section of resident neglect or abuse or misappropriation of resident property involving an individual listed in the registry, as well as any brief statement of the individual disputing the findings. The State shall make available to the public information in the registry. In the case of inquiries to the registry concerning an individual listed in the registry, any information disclosed concerning such a finding shall also include disclosure of any such statement in the registry relating to the finding or a clear and accurate summary of such a statement.

Title 42, section 1396r(g)(1)(C) provides:

(g) Survey and certification process

(1) State and Federal responsibility

(C) Investigation of allegations of resident neglect and abuse and misappropriation of resident property

The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility or by another individual used by the facility in providing services to such a resident. The State shall, after notice to the individual involved and a reasonable opportunity for a hearing for the individual to rebut allegations, make a finding as to the accuracy of the allegations. If the State finds that a nurse aide has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding. If the State finds that any other individual used by the facility has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the appropriate licensure authority. A State shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.

Title 42, section 483.13 of the CFR provides:

(b) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must —

(1) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(ii) Not employ individuals who have been —

(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or

(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and

(iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.

(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). (3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. (4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Title 42, § 483.156 of the CFR provides, in part:

(a) Establishment of registry. The State must establish and maintain a registry of nurse aides that meets the requirement of this section.

The registry —

(1) Must include as a minimum the information contained in paragraph (c) of this section:

(2) Must be sufficiently accessible to meet the needs of the public and health care providers promptly;

(3) May include home health aides who have successfully completed a home health aide competency evaluation program approved by the State if home health aides are differentiated from nurse aides; and

(4) Must provide that any response to an inquiry that includes a finding of abuse, neglect, or misappropriation of property also include any statement disputing the finding made by the nurse aide, as provided under paragraph

(c)(1)(ix) of this section.

(b) Registry operation.

(1) The State may contract the daily operation and maintenance of the registry to a non-State entity. However, the State must maintain accountability for overall operation of the registry and compliance with these regulations.

(2) Only the State survey and certification agency may place on the registry findings of abuse, neglect, or misappropriation of property.

. . .

(5) The State must provide information on the registry promptly.

(c) Registry Content.

(1) The registry must contain at least the following information on each individual who has successfully completed a nurse aide training and competency evaluation program which meets the requirements of § 483.152 or a competency evaluation which meets the requirements of § 483.154 and has been found by the State to be competent to function as a nurse aide or who may function as a nurse aide because of meeting criteria in § 483.150:

(I) The individual's full name.

(ii) Information necessary to identify each individual;

(iii) The date the individual became eligible for placement in the registry through successfully completing a nurse aide training and competency evaluation program or competency evaluation program or by meeting the requirements of § 483.150; and

(iv) The following information on any finding by the State survey agency of abuse, neglect, or misappropriation of property by the individual:

(A) Documentation of the State's investigation, including the nature of the allegation and the evidence that led the State to conclude that the allegation was valid;

(B) The date of the hearing, if the individual chose to have one, and its outcome; and

(C) A statement by the individual disputing the allegation, if he or she chooses to make one; and

(D) This information must be included in the registry within 10 working days of the finding and must remain in the registry permanently, unless the finding was made in error, the individual was found not guilty in a court of law, or the State is notified of the individual's death.

(d) Disclosure of information. The State must —

(1) Disclose all of the information in § 483.156(c)(1)(iii) and (iv) to all requesters and may disclose additional information it deems necessary; and

(2) Promptly provide individuals with all information contained in the registry on them when adverse findings are placed on the registry and upon request. Individuals on the registry must have sufficient opportunity to correct any misstatements or inaccuracies contained in the registry.

Title 42, § 488.301 of the CFR provides, in part:

As used in this subpart —

. . . .

Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.

. . . .

Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.

Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

Specifically, the Department alleged: "Respondent's act or actions constitute a violation of the rules and standards and are grounds to sustain a finding of resident misappropriation of property against Respondent pursuant to 42 U.S.C. §§ 1396r (e)(2) and (g)(1)(c); 42 CFR §§ 483.13 and 483.156; and 42 CFR § 488.301."

¶ 5 Both Ms. Vaughn and the Department filed motions for summary judgment. In her motion, Ms. Vaughn recited the definition of misappropriation found at section 310:677-1-2 of the OAC and stated that this definition applied. She did not rely on the federal definition of misappropriation found at title 42, section 488.301 of the CFR. As discussed later, the federal and state definitions of misappropriation differ significantly. Ms. Vaughn argued (1) that the medication records were not the patient's property, but Epworth's property; (2) that the photocopying of medication records for use as evidence before the EEOC was beyond the scope of the state and federal rules and regulations; and (3) that her actions were protected by the "special evidentiary privileges which attach to EEOC proceedings."

A motion for summary judgment is recognized by the Rules for District Courts, 12 O.S. 2001, ch. 2, app., rule 13, as a mechanism for expediting resolution of civil cases in district courts when there is no dispute as to the facts and the only issue for determination is a legal question. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, 17, 977 P.2d 1040, 1043. Administrative proceedings are not governed by the Rules for District Courts. Thus rule 13 does not govern administrative proceedings. The Administrative Procedures Act (APA), 75 O.S.Supp. 2005, §§ 250-323[75-250-323], governs proceedings before administrative agencies, unless otherwise specifically provided. Id. § 250.1. Motions for summary judgment are foreign to the APA. Therefore, we view the parties' motions filed in the administrative proceedings as agreements to the facts and as statements of the law. Nonetheless, this opinion will refer to the filings as motions for summary judgment.

¶ 6 The Department filed a response and counter motion for summary judgment. It argued that the photocopied pages' content was the resident's property, that the content was confidential under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); that Ms. Vaughn took the medical information without entitlement or the resident's consent and distributed it to a third party; and that Ms. Vaughn's actions constituted misappropriation of property as defined by section 310:677-1-2 of the OAC, requiring a confirmed finding of misappropriation to be placed on Ms. Vaughn's record on the Oklahoma Nurse Aide Registry (Registry). At the hearing on the motions, the Department clarified that its position is Ms. Vaughn transferred the resident's medical information to a third party. Ms. Vaughn's response to the Department's position was, among other things, that the state statutes and regulations governing the Registry cannot be extended to cover disclosures of patient information because such disclosures are governed by HIPP A.

The parties have maintained these same substantive arguments throughout the proceedings, including before the district court, the Court of Civil Appeals, and this Court. Thus we need not restate them in the discussion of subsequent stages of the proceedings.
Epworth filed an amicus brief in the administrative proceeding. The ALJ and the parties agreed that it should not be considered, and it was not. Because the amicus brief was not considered below, it is not considered here.

¶ 7 The Administrative Law Judge (ALJ)found Ms. Vaughn "guilty of the act of misappropriation of property belonging to a Resident." He ordered that the "Nurse Aide Registry shall reflect in its official record and registry that [Ms. Vaughn] is found to have committed the act of misappropriation of property of a Resident." Ms. Vaughn petitioned for review in the district court. Without providing reason or analysis, the district court affirmed the ALJ's decision. Ms. Vaughn filed her petition in error in this Court seeking review of the district court's order. The appeal was assigned to the Court of Civil Appeals. The Court of Civil Appeals focused only on the issue of whether a person has a property right in the person's medical information and found such a right exists. Stating that Ms. Vaughn's acts were an "unauthorized disclosure" and without analyzing the other elements of misappropriation, the Court of Civil Appeals affirmed the trial court.

II. STANDARD OF REVIEW AND STATUTORY CONSTRUCTION RULES

¶ 8 Review of an agency decision is governed by the APA, title 75, section 322. It provides that a reviewing court

may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or

(f) arbitrary or capricious; or (g) because findings of fact, upon issues essential to the decision were not made although requested.

75 O.S. 2001, § 322[ 75-322](1).

¶ 9 In the present case there are no disputed facts, so we must determine if the AL J's order was free of legal error and was within the Department's authority. Because the issue presented is purely a matter of law, we employ a de novo standard. In re Estate of Jackson, 2008 OK 83, H 9, 194 P.3d 1269, 1272. Such review is plenary, independent, and non-deferential. Id. The Department does not posit that there is a longstanding construction of an ambiguous or uncertain statute such that its interpretation is entitled to deference. See Bradshaw v. Oklahoma State Election Bd., 2004 OK 69, n. 5, 98 P.3d 1092, 1094 ("An agency's longstanding construction of an ambiguous or uncertain statute will not be disturbed without cogent reason.").

¶ 10 This Court has consistently acknowledged: "Where it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license, once granted, and thus destroy in a measure the means of a livelihood, is penal and therefore should be strictly construed." State ex rel. Okla. State Bd. of Embalmers and Funeral Dirs. v. Guardian Funeral Home, 1967 OK 141, ¶ 19, 429 P.2d 732, 736 (quoting Moore v. Vincent, 1935 OK 763, ¶ 8, 174 Okla. 339, 50 P.2d 388, 389). The loss of a license which is required to work in a given field negatively impacts both a person's livelihood and reputation. Johnson v. Bd. of Governors of Registered Dentists, 1996 OK 41, ¶ 19, 913 P.2d 1339, 1345.

¶ 11 Here the Department's regulations requiring a finding of misappropriation of a resident's property to be placed on the Registry deprives a certified nurse aide of the right to work as such. See Appendix B attached hereto. Such a finding is the equivalent of permanently revoking the certification since there is no statutory or regulatory limit on the employment ban, and we strictly construe the governing statutes and regulations.

III. CONTROLLING FEDERAL AUTHORITY

¶ 12 As part of the participation in federal Medicare and Medicaid programs, title 42, section 1396r(e)(2)(A) of the United States Code requires states to establish and maintain a nurse aide registry. Section 1396r(e)(2)(B) mandates that the registry provide "for the inclusion of specific documented findings by a State under subsection (g)(1)(C) of [section 1396r] of resident neglect or abuse or misappropriation of resident property involving an individual listed in the registry, as well as any brief statement of the individual disputing the findings." Section 1396(g)(1)(C) requires states to "investigate and make findings concerning neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility. . . ." Misappropriation of resident property, as defined by the federal regulations, is "the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent." 42 C.F.R. § 488.301 (2003). As used in the definition of misappropriation, the term "money" is self-explanatory, leaving only the term "belongings" for construction. Because the term "belongings" is not defined in title 42 of the United States Code or in the associated regulations, we turn to its plain and ordinary meaning. Garcia v. Teitler, 443 F.3d 202, 207 (2nd Cir. 2006); see Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603.

We note for illustrative purposes only the Department's web pages showing the Registry. We do not rely on these pages in reaching our decision today. The Department's Oklahoma Nurse Aide Registry of "Nurse Aides with Abuse and or Conviction Annotations" does not contain any specific documented findings. In fact, it shows Ms. Vaughn to have a charge of abuse, not a charge of misappropriation, pending against her. Oklahoma State Department of Health,http://www.ok.gov/health/pub/wrapper/nrsaid.html (last visited June 23, 2009). As discussed later, this Registry fails to comply with federal regulations as well as Oklahoma legislatively mandated requirements. The first page of the Registry as it appeared on June 19, 2009, is attached as Appendix A with the names and certification numbers redacted.
The Department has a search engine on its web page which allows users to find individual information. The search for Ms. Vaughn on June 19, 2009, cumulated at the Department's web page found athttp://www.ok.gov/health/pub/wrapper/nrsaid. html (last visited June 19, 2009). As with the Registry above, Ms. Vaughn's individualized page shows that she is accused of abuse of a patient, not that she is accused of misappropriation of a resident's property. The page shows her status as "NOT EMPLOYABLE." A copy of Ms. Vaughn's individualized page is attached as Appendix B. Again this page does not comply with federal or Oklahoma legislative mandates.

¶ 13 The term "belongings" is defined as goods or effects. Webster's New International Dictionary of the English Language 250 (2nd ed. 1961). "Effects" means goods or moveables, id. at 818, and "goods" is defined as commodities, wares, and portable personal property. The American Heritage Dictionary 567 (2nd coll. ed. 1982). Thus, "belongings" plain meaning denotes movable items, not an intangible property right in medical information.

¶ 14 Based on the definition of misappropriation in title 42, section 488.301 of the CFR, federal authority does not include disclosure of medical information within the prohibition against misappropriation of a resident's property. In turn, we do not find congressional intent requires that the disclosure of medical information be listed on a nurse aide registry. Our inquiry would end here except that Ms. Vaughn injected the question of whether she had misappropriated a resident's property under the Department's regulation by quoting the definition found at OAC, section 310:677-1-2 and stating that it applies here. Bd. of Exam'rs of Veterinary Med. v. Mohr, 1971 OK 64, ¶ 26, 485 P.2d 235, 240 ("[T]he issues in an administrative proceeding are ordinarily limited to those raised by the pleadings."). Thus, we turn to Oklahoma's statutory and regulatory laws.

IV. OKLAHOMA STATUTORY AUTHORITY

¶ 15 In response to the federal mandate to establish a registry, Oklahoma enacted legislation which is codified at title 63, section 1-1951 of the Oklahoma Statutes and which requires the Department to establish and maintain a registry for certified nurse aides and for nurse aide trainees. 1996 Okla. Sess. Laws 1552-1554, ch. 336, § 8. The registry must provide "a process for notification and investigation of alleged abuse, exploitation or neglect of residents of a facility or home, clients of an agency or center, or of misappropriation of resident or client property." 63 O.S.Supp. 2002, § 1-1951[ 63-1-1951](D)(1)(b). Statutorily, the registry must include information on any Department finding of abuse, neglect or exploitation by the certified nurse aide or nurse aide trainee, id. § 1-1951 (D)(3)(a)(4), including the nature of the allegation, documentation of the investigation, evidence supporting the Department's decision to confirm the allegation, hearing date if one was requested, and any statement by the person disputing the finding. Id. § 1-1951(D)(3)(a)(4)(a). This provision does not include a requirement that a finding of misappropriation of resident property must be posted on the registry. Because this proceeding is penal in nature and requires a strict construction of the statute, we will not insert such a requirement into the statute.

"Exploitation" is not defined in title 63, section 1-1951 of the Oklahoma Statutes or the associated regulations. However, it is statutorily defined elsewhere as "the unjust or improper use of the resources of an incapacitated person, a partially incapacitated person, or a minor for the profit or advantage, pecuniary or otherwise, of a person other than an incapacitated person, a partially incapacitated person, or a minor through the use of undue influence, coercion, harassment, duress, deception, false representation, or false pretense." 30 O.S. 2001, § 1-111[ 30-1-111](A)(6) (as used in the Oklahoma Guardianship and Conservatorship Act, 30 O.S. 2001, §§ 1-101[ 30-1-101] to 4-904). The Department has not alleged that Ms. Vaughn is guilty of exploitation.

Again, a review of Appendix A shows that the Registry does not comply with federal mandates and does not comply with the state statutory mandate of the information which is to be included.

In 2002, the Legislature amended title 63, section 1-1951 of the Oklahoma Statutes and inserted the term "misappropriation of property" or "misappropriation of resident or client property" in seven places. 2002 Okla. Sess. Laws 779-781, ch. 230, § 16. However, the Legislature did not include "the misappropriation of property" as a required finding which must be placed on the Registry under title 63, section 1-1951(D)(3)(a)(4) of the Oklahoma Statutes.

¶ 16 When the Department receives an allegation of abuse, exploitation or neglect, or an allegation of misappropriation of property, it is to make a note on the Registry that the allegation is pending. Id. § 1-1951(D)(5). If the Department finds that the allegation was unsubstantiated, then the pending notation is removed. Id. If the Department finds that there is a basis for the allegation and gives notice, the accused may request a hearing. Id. § 1-1951(D)(6). If, after the hearing, the Department finds that the accused has committed abuse, neglect or exploitation of a resident or client, or misappropriation of resident's or client's property, then the Department must send its findings to the accused, to the district attorney where the violation occurred, and to the Medicaid Fraud Control Unit of the Attorney General's Office. Id. § 1-1951(D)(7). The Department must notify the accused of ineligibility to work as a nurse aide in certain nursing home type facilities and of the accused's appeal rights. Id. There is no express statutory requirement that a finding of misappropriation of property be placed on the Registry, and again we will not insert one.

¶ 17 The statutes require a facility to check the Registry before hiring a person to work as a nurse aide. Id. § 1-1951(D)(8). The facility is forbidden to hire someone which the Registry indicates is "personally responsible for abuse, neglect or exploitation." Id. Again the statutes do not expressly prohibit a facility from employing someone who has been found to have misappropriated a resident's or client's property.

V. STATE REGULATIONS

¶ 18 The Department has the power and duty under title 63, subsection 1-1951(A)(6) to "[e]xercise all incidental powers as necessary and proper to implement and enforce the provision of this section." Subsection 1-1951(B) requires the State Board of Health to promulgate rules to implement the provisions of section 1-1951.

¶ 19 The Department's definition of "misappropriation of property" deviates significantly from the federal definition found at title 42, section 488.301 of the CFR and discussed earlier in paragraphs 12 through 14. The Department defines "misappropriation of property" as

the taking, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident or client without the effective consent of the resident or client or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of a resident's/client's property.

OAC, § 310:677-1-2 (Supp. 2003).

¶ 20 The Department argued before the ALJ that Vaughn transferred a patient's property in the form of medical information contained in the photocopied pages to the EEOC without the effective consent of the resident. The definition of transfer is instrumental to the Department's position. In First Nat'l Bank of Frederick v. Lamb, 1928 OK 189, ¶ 14, 130 Okla. 301, 267 P. 468, 469, this Court defined "transfer" as the passing of rights in property from one person to another, as the act of delivering or conveying property to another, or as the act of handing over or parting with certain rights in property. This Court also recognized a transfer as the removal of a thing or a right from one place or person to another, the change in control or possession, or a change in title. Id. (quoting In re Peabody, 154 Cal. 173, 97 P. 184 (1908)). Transfer is also defined as "[a]n act of the parties or law by which the title to property is conveyed from one person to another." Black's Law Dictionary 1342 (5th ed. 1979). Yet another source defines transfer as "[t]o convey or shift from one person or place to another[, or] [t]o make over the possession or legal title of to another. . . ." The American Heritage Dictionary 1286 (2nd coll. ed. 1982). All of these definitions require the removal or severance of the property from one location or from one person to another.

Although the Department did not make clear in its "Motion for Summary Judgment" that it was not taking the position that Ms. Vaughn had violated a duty imposed by federal or state law, it did clarify this in the hearing. The Department stated at the administrative hearing that its position was based on the allegation that Ms. Vaughn had improperly transferred a resident's property. The Department does not argue that Ms. Vaughn took, misapplied, or deprived any resident of property.

¶ 21 In contrast to the Department's definition of misappropriation, federal HIPAA regulations prohibit the use and disclosure of medical information by a covered entity except under certain circumstances. 45 C.F.R. § 164.502 (2003). The definition of a covered entity is a health plan, a health care clearing-house, or a health care provider "who transmits any health information in electronic form in connection with a transaction covered by this subchapter." Id. at 160.103(3). Disclosure is defined as "the release, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information." Id. This definition is clear that, although transfer is one component of disclosure, disclosure also includes other methods of divulging information.

In 2007, the Department adopted OAC, section 310:677-5-5(a)(4), which provides in part:

(a) Grounds for certification action against a certified nurse aide may include:

. . .

(4) Removing medical records or other documentation pertaining to resident care from the employment setting without authorization[.]

If a certified nurse aide is found to have violated this provision, the Department "may deny, suspend, withdraw or not renew certification." OAC, § 310:677-5-5 (Supp. 2007). The Department is not required to take an action which would prevent a certified nurse aide from permanently working in the person's chosen profession.

¶ 22 Here, Ms. Vaughn may have disclosed resident medical information by divulging it to the EEOC, but she did not transfer a resident's property. The evidence is that Ms. Vaughn took a resident's medical information and disclosed it to the EEOC, but there was no severance of the right to the information or of the information itself from the resident or from Epworth Villa. The Department's definition of misappropriation of property does not include the release or divulging of information. Thus the ALJ erred when it found that Ms. Vaughn had misappropriated a resident's property by transferring information to the EEOC.

¶ 23 Having erred in finding Ms. Vaughn had misappropriated a resident's property under OAC, section 677:310-1-2, the ALJ also erred in ordering the Registry to reflect that Ms. Vaughn had committed the act of misappropriation of a resident's property.

Section 310:677-7-4(c) of the OAC provides, in part:

The decision shall direct the nurse aide registry to include the findings as they relate to the certified nurse aide or nurse aide trainee. . . .

VI. SUMMARY AND CONCLUSION

¶ 24 We find nothing in the federal statutes or regulations governing the implementation or administration of the nurse aide registry which would support a finding that Ms. Vaughn misappropriated a resident's property by photocopying some pages of a resident's medication record and providing the photocopies to the EEOC. The photocopying of medical records and providing the photocopies to the EEOC was not a transfer of a resident's property so that the disclosure would be within the definition the Department's regulation 310:677-1-2, defining misappropriation of property. Because the ALJ erred in finding Ms. Vaughn "guilty" of misappropriation of a resident's property, it was also error to order the finding placed on the Registry.

¶ 25 The Court of Civil Appeals' opinion is vacated. The judgment of the trial court affirming the ALJ's order is reversed. The cause is remanded to the district court with instructions to reverse and vacate the ALJ's order and enter judgment in favor of Ms. Vaughn and to order the Department to remove all references from the Oklahoma Nurse Aide Registry that Ms. Vaughn is guilty of misappropriation of property or that Ms. Vaughn is guilty of abuse on May 25, 2005.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; AND CAUSE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS.

EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT, and REIF, JJ., concur.

WATT, J., (by separate writing) dissents.

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