ALJDEC

00A-9912077-NUR · State Board of Nursing · 2000-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 2000

APPEARANCES: : Applicant appeared on her own behalf; Assistant Attorney General Mona Peugh-Baskin appeared on behalf of the State of Arizona, Arizona State Board of Nursing.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Brenda Loerzel (Applicant) appeals from the denial of her application for certification as a certified nursing assistant (CNA) by the Arizona State Board of Nursing (Board). The Board denied the application based on Applicant’s deceitful conduct during the application process and other concerns. The parties presented evidence and testimony at the hearing and, based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order upholding the Board’s certification denial. FINDINGS OF FACT 1. In December 1999, Applicant filed with the Board an Application for Certified Nursing Assistant by Endorsement from Florida. (Exhibits NUR- through NUR-3.) On the second page of the application, the following question appeared: Have you ever been convicted, entered a plea of guilty, nolo contendere or no contest, or have you ever been sentenced, served time in jail or prison, or had probation or sentence deferred in any misdemeanor or undesignated offense other than a minor traffic violation? Please be advised that a DUI is not a minor traffic violation.

(Exhibit NUR-2.) Applicant answered “yes” and attached documents from a 1993 misdemeanor DUI conviction. (Exhibit NUR-4 and NUR-9.) 2. Applicant also submitted, in March 2000, a “Court and Conviction Questionnaire” form that is designed to give applicants an opportunity to explain and fully disclose any information about personal background. (Exhibits NUR-10 through NUR-12.) On that form, Applicant restated information about the 1993 misdemeanor DUI. 3. Board staff conducted a background check on Applicant and obtained her driver’s license history from Florida (Exhibit NUR-13) as well as documents related to the 1993 conviction (Exhibits NUR-27 through NUR- 45). Applicant lived in Florida prior to 1998. As far as the evidence presented at the hearing discloses, Applicant had no other criminal convictions, only the 1993 misdemeanor DUI. 4. In November 1993, Applicant pleaded no contest to and was convicted of Driving While Under the Influence (DUI), a misdemeanor offense, in Lee County, Florida. Applicant was fined, sentenced to six months’ probation with community service, ordered to attend mandatory DUI education, and her driver’s license was revoked for six months. (Exhibit NUR-7.) The records show successful completion of the community service hours. 5. In April 2000, Applicant was assessed for substance abuse by Certified Substance Abuse Counselor Dena Southerlan at the request of Board staff. (Exhibits NUR-14 through NUR-17.) Southerlan concluded that Applicant met the criteria for a diagnosis of Alcohol Dependence and that she was at high risk for recidivism. Applicant reported that after her DUI conviction she continued drinking “on weekends” until 1998, when she reports that she “just decided to stop.” (Exhibit NUR-14.) She has not participated in any recovery program. Southerlan recommended that Applicant, if allowed to work as a CNA, be closely monitored and given random urinalysis (UA) testing. 6. In June 2000, a random UA test was performed on Applicant by her employer. The specimen was tested but the results were not reliable because the creatinine and specific gravity of the specimen were “below acceptable limits.” (Exhibit NUR-18.) In other words, the specimen was “watered down.” The lab recommended recollection and re-testing. 7. On July 14, 2000, Applicant talked with Board staff about the June 2000 UA. Applicant agreed to submit to another test and went in that day. Again, the results were unusable. The test was not performed because the specimen was “not suitable for testing.” (Exhibit NUR-19.) The lab suggested that the “specimen has been adulterated and the integrity of the specimen has been compromised.” (Id.) 8. On July 18, 2000, when Board staff received the “not suitable for testing” results, Applicant was contacted. She did not initially disclose any “problems” with the UA test. On July 24, 2000, she confessed that she had substituted water for her urine on July 14, 2000. She said that she did so because she had taken a Tylenol #3 (with codeine) the day before for a toothache. Tylenol #3 is a prescription-only narcotic. The dose that Applicant took had not been prescribed to her, she had gotten it from a friend years earlier and it was in her medicine cabinet. To hide it, she put water in the specimen cup instead. 9. Applicant’s story is not credible and her conduct was deceptive. 10. Dena Southerlan re-evaluated Applicant on July 28, 2000. (Exhibits NUR-20 through NUR-21.) Her findings were essentially the same as her earlier evaluation with additional information showing that Applicant had completed a 36-hour substance abuse treatment program and that Applicant had “cheated” on her UA test. Southerlan also noted that Applicant was not seeking recovery support. With the additional information, Southerlan now found Applicant’s rendition of her substance abuse history to be “suspect” and her ability to function safely as a CNA to be “questionable.” (Exhibit NUR-21.) 11. In August 2000, the Board denied Applicant’s application because she had committed unprofessional conduct by lying to Board staff and trying to cheat the UA test and because she is a potential danger to patients or the public. (Exhibits NUR-22 through NUR-26.) The Board has not alleged Applicant’s misdemeanor conviction as grounds for denial. 12. At the hearing, Valerie Smith, the Board’s impaired practice consultant, testified credibly about Applicant’s chemical dependency and her risk for relapse. She is a Masters-level nurse with special education and experience in substance abuse and dependence. She agreed with Southerlan’s findings and recommendation, and opined that Applicant is denying her dependence and failing to take steps for recovery. In her opinion, which this tribunal finds credible, Applicant is not safe to practice as a nursing assistant. Ms. Smith also pointed out that Applicant at first denied that there were any problems with her “sample” and that she had chances to mention the “toothache” but did not do so until she was caught in her lie. 13. Applicant testified at the hearing. She submitted several letters, two from former employers and a 1998 award letter. (Exhibits A, B, and C.) These Exhibits are found to be of minimal value, since the credibility of the writers of these letters is unknown to this tribunal. CONCLUSIONS OF LAW 1. The Board has discretion to deny an application if an applicant has committed unprofessional conduct as defined by statute. Arizona Revised Statutes (A.R.S.) § 32-1663(A). Unprofessional conduct is defined in A.R.S. § 32-1601(14)(a) through (k) (1999 Supp.). 2. Applicant has committed unprofessional conduct under subsection (a) of the statute, obtaining or attempting to obtain a license by fraud or deceit, by lying to Board staff and cheating on her UA test. 3. Applicant has committed unprofessional conduct under subsection (d) of the statute, which prohibits any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public, by failing to seriously seek recovery despite adverse consequences of her alcohol dependence and by remaining a danger to patients if she were to practice. 4. The evidence does not show that Applicant was criminally convicted of an open container violation. Therefore, Applicant was not required to disclose that event. 5. The Board has grounds to deny Applicant’s application for a CNA certificate.

. . . RECOMMENDED ORDER Based on the findings and conclusions above, IT IS RECOMMENDED that the Arizona State Board of Nursing uphold its denial of Brenda L. Loerzel’s December 1999 application for certification as a nursing assistant.

Done this 27th day of November 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of November 2000, to:

Joey Ridenour, R.N., M.N., Executive Director ATTN: Audrey Rath Arizona State Board of Nursing 1651 West Morten, Suite 150 Phoenix, AZ 85020

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826