ALJDEC

01A-0009025-NUR · State Board of Nursing · 2001-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2001 at 9:00 a.m. APPEARANCES: Applicant Terri L. Kintz appeared on her own behalf; the Arizona State Board of Nursing appeared through Marie A. Mann, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence regarding whether Applicant Terri L. Kintz has established that she meets statutory and regulatory requirements for a Certified Nursing Assistant (“CNA”) in Arizona, such that the Arizona State Board of Nursing (“the Board”) should have granted her application to be certified. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Board. FINDINGS OF FACT Background and Procedure On August 1, 2000, the Board received Ms. Kintz’ application for certification to be a CNA in Arizona. With the application, Ms. Kintz submitted her fingerprints. The Board sent Ms. Kintz’ fingerprints to the Arizona Department of Public Safety (“DPS”) and other law enforcement agencies. Within two weeks, the Board learned that, on June 7, 2000, Ms. Kintz had been arrested by a DPS officer for driving while under the influence (“DUI”) of a drug. The arresting DPS officer reported that five witnesses had complained and that he independently observed that Ms. Kintz was driving erratically. She forced one vehicle off the road. When the arresting DPS officer stopped Ms. Kintz, she had a lighted cigarette in her hand that had burnt down to the filter. The ash broke off and fell onto her leg, apparently unnoticed. The officer noted that Ms. Kintz’ expression appeared “dazed or slightly stuporous,” that her movements were “slow and clumsy,” that she swayed after she was asked to get out of her car, and that the officer “could smell a light odor of intoxicating liquor coming from [her].” The arresting DPS officer reported that Ms. Kintz said that she had drunk three drinks in Mexico, two Margaritas and one shot of tequila. Later, she claimed to have drunk only two drinks. She told the officer her most recent meal was a bologna and cheese sandwich at noon. The arresting DPS officer found in Ms. Kintz’ purse a bottle containing 2 mg tablets of Clonazepam (the generic name for Klonopin), which bore a warning on its label that it “[m]ay cause drowsiness,” that “[a]lcohol may intensify this effect,” and to “[u]se care when operating a car or dangerous machinery.” According to the officer’s report, Ms. Kintz told him that the Klonopin was for “head tremors” and that she had taken one tablet between 6:00 and 6:30 p.m. that day. The arresting DPS officer administered six Alcohol Field Sobriety Tests to Ms. Kintz and, on his Alcohol Influence Report, reported that she had performed poorly on all six. The officer subsequently arrested her. Ms. Kintz was transported to the Pima County Jail, where an intoxilyzer test was administered to her. The DPS report indicated that the intoxilyzer was tested and determined to be properly calibrated. The test showed Ms. Kintz’ blood alcohol level after the arrest to be .00%. Another officer performed a Drug Influence Evaluation on Ms. Kintz. She performed poorly or was unable to perform all of the tests administered. According to the report, Ms. Kintz again admitted to having taken Klonopin between 6:00 and 6:30 p.m. that day. She told the officer that she had eaten a peanut butter or hamburger sandwich for lunch. Based on his observations, the evaluating officer opined that Ms. Kintz “[was] under the influence of a [Central Nervous System] Depressant and [was] unable to operate a motor vehicle safely.” After DPS impounded Ms. Kintz’ car, it found Rivotril 2 mg. tablets, Albuterol 90 mcg. inhaler, Ventolin 17 g. inhaler, and Somacid 350 mg. tablets. On July 27, 2000, the state dismissed the criminal complaint against Ms. Kintz arising from the June 7, 2000 DUI charge, without prejudice, “pending further investigation.” After the Board learned of the DUI, it conducted a thorough criminal background investigation of Ms. Kintz and subpoenaed records from the City of Phoenix, the City of Tucson, and DPS. The Board learned the Ms. Kintz had pled guilty to third degree criminal trespass based on an incident that had occurred on February 6, 2000. According to the City of Phoenix Police Department report, the incident occurred when a patrol officer observed five people, including Ms. Kintz, in the parking lot of a St. Vincent De Paul “rummaging” through property near the drop box for donations. Clearly marked signs informed them, “No Trespassing. Violators Will Be Prosecuted.” Ms. Kintz attempted to leave in her vehicle, but the police officer used his car to block the exit. Ms. Kintz admitted taking a couple things. Ms. Kintz was cited for trespassing but released upon her written promise to appear in court. Ms. Kintz subsequently pled guilty in City of Phoenix Municipal Court to criminal trespass in violation of A.R.S. § 13- 1502(A)(1), a misdemeanor, and ordered to pay a fine of $354.00. After the Board learned of the DUI arrest and trespass conviction, it asked Ms. Kintz to complete a Court and Conviction Questionnaire. On October 17, 2000, Ms. Kintz completed the questionnaire, disclosing the June 2000 DUI arrest but not the February 2000 criminal trespass conviction. When the Board requested more information about the DUI arrest, Ms. Kintz responded: On June 7, 2000 myself and a friend went to Mexico. While there we had 2 margaritas. My friend told me we could get pills for my nerves. We went to a Dr. who prescribed Klonopin and Valium. We then went to a pharmacy and got our prescriptions filled and got some Soma also. We left there and I saw a plaster hanging sunshine and when I said it was too much to the seller he said he’d lower it if I drank a shot of tequila, which I did, and I bought the sunshine. My friend and I left and walked back across the border into the U.S. She took a bus. I drove home and got stopped south of Tucson. The DPS said I was swerving and how much had I been drinking and I told them. The officer then asked if I had taken any pills. I kind of laughed and said yes but the only pill I had taken that day was my heart medicine, atenocal. They saw the pills I had bought. I did a sobriety test and blew a .15. They then read me my rights and took me to jail. I was given a cavity search and nothing [was] found.

When my ride came I left. The next day we went to get my car in Tucson. All the pills I bought in Mexico I counted and were all there but my heart medicine was gone.

The next thing I knew was after I went to my initial court date was it was dismissed.

The Board asked Ms. Kintz and she agreed to submit to a psychosocial evaluation by Lynda K. Hemann, MPH, MAC. Ms. Hemann conducted an evaluation and, on January 13, 2001 provided an evaluation summary to the Board, expressing some reservations about Ms. Kintz’ ability to practice safely as a CNA, as follows: STATUS OF CHEMICAL DEPENDENCY: The client meets criteria for a DSM-IV diagnosis of dependence on alcohol with the specifier “in early full remission.”

PSYCHOLOGICAL STATUS: This client denies any history of depression or anxiety but admits to an extensive troubled relationship history with multiple episodes of abuse, the death of her father associated with use of Soma and an increase in her use of alcohol, and use of Valium and Klonopin “for my nerves” from prescriptions obtained in Mexico. Further evaluation is indicated. . . . .

EVALUATION AND EFFECTIVENESS OF PRIOR TREATMENT: Client denies any previous treatment for substance abuse. She initiated participation with the Fellowship of A.A. after a DUI in June 2000. She reports regular attendance at both open and closed meetings, has a home group, is in daily contact with her sponsor, and is currently working Step 9. I am not able to comment on the effectiveness of her participation in a self-help group.

RECOMMENDATIONS REGARDING NEED FOR ANY FURTHER TREATMENT OR EVALUATIONS: It is recommended that Ms. Kintz receive a comprehensive physical to assess her medical conditions and the ramifications of her combined use of alcohol, Valium, Klonopin, and Soma with her prescription medications of Atenolol and Baycol. It is further recommended that Ms. Kintz complete a psychiatric evaluation to rule out a possible mood or anxiety disorder. A primary intensive outpatient program for substance abuse is recommended of at least 64 hours duration. Random urinalysis testing is advised due to previous chemical choices.

ASSESSMENT OF THE CERTIFIED NURSING ASSISTANT’S ABILITY TO FUNCTION SAFELY: Given the recent history of poor impulse control and poor judgment displayed by this client, and the inability to monitor the individual, the ability of this CNA to function safely is questionable. It is noted here that no documentation was provided which indicated compromised job performance on this individual.

Ms. Hemann’s Intake Evaluation, which she also provided to the Board, noted that “this client is likely minimizing her use and minimizing symptoms” and that “there is a possibility that she is continuing to use alcohol or other substances such as Valium, Klonopin, and Soma.” Ms. Hemann recommended that Ms. Kintz receive “[s]ubstance abuse programming . . . at the primary intensive outpatient level of care after medical evaluation and clearance” and provided her with “the names of three licensed substance abuse treatment facilities for counseling.” On May 2, 2001, the Board unanimously voted to deny Ms. Kintz a CNA certificate, based on her criminal history and Ms. Hemann’s evaluation. Ms. Kintz timely requested a hearing to appeal the Board’s denial. A hearing was held in the Office of Administrative Hearings on July 26, 2001. The Board offered into evidence 10 exhibits and presented the testimony of two witnesses: (1) Ms. Hemann and (3) Valerie Smith, RN, MSN, Associate Director of the Board and former consultant to its CAN DO program, a voluntary non-disciplinary program for chemically dependent professional and practical nurses. Ms. Kintz offered into evidence two exhibits and testified on her own behalf. Hearing Evidence Terri Lee Kintz Ms. Kintz testified that she started working as a nursing assistant in Iowa when she was 19 years old, before certification was required. In approximately 1977, after certification was required, Ms. Kintz took classes in Iowa and became a CNA. Ms. Kintz testified that she began drinking alcohol when she was 18 or 19 years old. She did not drink for eight years, when she had her children, a son and daughter, who at the time of the hearing were, respectively, sixteen and thirteen years old. Ms. Kintz testified that she moved to Arizona in 1978 and continued to work in nursing homes. After a divorce, she returned to Iowa to raise her two children, continued working as a CNA, and remarried. After another divorce, in 1995, Ms. Kintz moved back to Arizona to be near her father, whose health was failing. Ms. Kintz’ father died in 1998. Ms. Kintz testified that she began working at Good Samaritan in 1995 as a CNA, after transferring her certificate from Iowa. After a year, she began working at Good Samaritan as unit secretary, a position that did not require certification, and her certification lapsed. Ms. Kintz admitted to having “attendance issues” at Good Samaritan because she was caring for her sick father. She took leave under the federal Family Medical Leave Act. In May 1999, Ms. Kintz quit Good Samaritan to go to Phoenix Baptist Hospital, where she worked for about four months. When Ms. Kintz became ill and had to go home, Phoenix Baptist Hospital terminated her. She then went to work for Scottsdale Heritage Court, a nursing home. She was terminated because she was no longer a CNA. Ms. Kintz testified that, after her father died, in 1998 or 1999, she began to drink excessively and fell in with poor friends. One of Ms. Kintz’ doctors prescribed Klonopin in 1998 to control head tremors. One of these friends, Cathy McPherson, suggested going to Mexico in June 2000 to obtain prescription drugs. Ms. McPherson found the doctor to prescribe the drugs. Ms. Kintz admitted that this doctor did not perform any physical examination or take any history; Ms. Kintz paid him $30 solely to obtain prescriptions. The drugs cost more than $10. Ms. Kintz was not working and was a member of the Arizona Health Care Cost Containment System (“AHCCCS”) in June 2000. She did not attempt to obtain any of the drugs she purchased in Mexico from her primary care physician at AHCCCS. She testified that the first time she attempted to obtain prescription drugs without a treating doctor’s involvement was in Mexico in June 2000. Ms. Kintz testified that she had two margaritas and a shot of tequila when she was in Mexico. At lunch on June 7, 2000, she had eaten Mexican food. She had last taken Klonopin at 6:30 a.m., before she started driving to Mexico. She also took one Atenolol to keep her heartbeat regular. She purchased Valium and Soma, which in Mexico is sold over-the-counter, because Ms. McPherson said they would “relax” her. Ms. Kintz admitted the drugs she purchased in Mexico were not cheap, considering the cost of gas, expenditure of time, the doctor’s “exam” fee, and the cost of the drugs. Ms. Kintz testified that she drank the shot of tequila at 5: 00 p.m., because a street vendor said he would reduce the price on an item she wanted to purchase if she did. Ms. Kintz testified that Ms. McPherson boarded the bus in Nogales. Ms. Kintz does not know whether Ms. McPherson took the bus because she did not believe that Ms. Kintz could drive safely. Ms. Kintz testified that she may have blacked out during the drive from Nogales to Tucson. She does not remember what she was thinking or feeling when she left Nogales and does not remember getting into her car. Ms. Kintz agreed that she planned to take home several items she had picked up in the St. Vincent De Paul parking lot, before police stopped her, in February 2000. No one gave her permission to take the items, which did not belong to her. Ms. Kintz testified she has been married four times. All of her husbands and many of her boyfriends abused alcohol and were abusive to her. She has not been involved with a man since 1996. Ms. Kintz testified that she has been clean and sober since June 7, 2000, when she was arrested for DUI. She goes to Alcoholics Anonymous four times a week, is sponsored by a retired administrative registered nurse who has been sober for 25 years, attends church, and is trying to make a new life for herself and her children. Ms. Kintz offered into evidence a letter from Raymond E. Matthews, MC, NCC of Westside Social Services, Inc., to the effect that Ms. Kintz received behavioral health services through the Family Builders Program from June 20, 2000 to January 10, 2001, had made excellent progress, and that the prognosis for her continued sobriety was excellent. Ms. Kintz did not tell Ms. Hemann that she had undergone counseling because she felt this information was private. Ms. Kintz did not follow Ms. Hemann’s recommendation to enroll in an inpatient substance abuse program or submit to a psychiatric evaluation because she has little money and no insurance. Lynda K. Hemann, MPH, MAC Ms. Hemann testified at the hearing that there are three stages in the disease of alcohol or other substance abuse: (1) preoccupation with the substance, blackouts, and denial; (2) increase in tolerance, loss of control; and (3) a severe physical involvement and evidence of withdrawal if the substance is removed. An abuser’s prognosis is good if she follows an individual treatment plan, including abstinence, counseling, and after- care. Honesty is very important in recovery. Ms. Hemann testified that Klonopin, Valium and Soma are all central nervous system depressants that, when used in combination with alcohol, could be lethal. Atenolol, which Ms. Kintz takes to control irregular heartbeat, also is contraindicated for use with alcohol. Using these drugs in combination with alcohol shows very poor judgment. Ms. Hemann testified that sophisticated abusers know that benzodiazepines like Klonopin ease symptoms of withdrawal from alcohol. Ms. Hemann felt that, although Ms. Kintz’ hearing testimony, statements during the evaluation, and statements to the Board during the application process were generally consistent, certain inconsistencies existed. The inconsistencies and vagueness of Ms. Kintz’ responses made Ms. Hemann suspect that Ms. Kintz was minimizing alcohol or prescription drug use. Alcoholics Anonymous is not a treatment program, but a self-help group. It offers no method to monitor an individual’s recovery or relapse. It should be used in combination with primary treatment. Ms. Hemann was concerned about Ms. Kintz’ sole use of the AA Fellowship as a recovery program. Ms. Hemann also testified that many persons who suffer from substance dependence also suffer from another Axis I disorder, such as a mood disorder. Diagnosis and treatment of the other disorder may be necessary for successful recovery from the substance dependence. Counseling may be treatment if it is provided by licensed, certificated counselors with a background and training in substance abuse. Although Ms. Hemann was familiar with Westside Social Services, Inc., she does not know whether its counselors are licensed to provide substance abuse counseling. The modifier “early remission” means that the client meets three of seven criteria for dependence and there is no evidence of substance use for a period of several months but less than a full year. During this time, the person is likely to minimize her use or symptoms and is therefore more at risk for relapse. Ms. Hemann generally tells the clients she evaluates that treatment programs and psychiatrists offer programs on a sliding fee basis. She did not specifically recall at the hearing whether she told Ms. Kintz. Valerie Smith, RN, MSN Ms. Smith testified that the June 7, 2000 DUI incident raised questions concerning Ms. Kintz’ character and qualifications to be a CNA. Specifically, her use of prescription drugs in combination with alcohol, disregard of public safety in choosing to drive when impaired, decision to obtain prescription drugs without any real medical oversight, decision to drink an unknown substance offered by a street vendor, and poor insight into the potential combined effects of alcohol and Klonopin, despite the warnings on the label, all show poor judgment. In addition, Ms. Kintz’ inconsistent reports and testimony regarding what she had eaten on June 7, 2000, when she had taken the Klonopin, the results of the intoxilyzer, and her purchase of Valium in Mexico raise questions about her honesty and insight. Ms. Smith testified that the events giving rise to the criminal trespass charge and guilty plea showed a lack of regard or respect for others’ belongings. Ms. Smith testified that a CNA is the closest health care worker to many patients in assisted living facilities or home health care. A CNA has unlimited access to the patients’ personal belongings and, in these settings, generally receives less supervision. Applicable statutes and regulations do not allow the Board to monitor a CNA, unlike professional and practical nurses. CONCLUSIONS OF LAW 1. Ms. Kintz bears the burden of proof and must establish that she meets statutory qualifications for certification as a nursing assistant by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[3] 2. The legislature has authorized the Board only to “[d]eny certification or recertification or suspend, revoke or accept the voluntary surrender of a certificate if a nursing assistant commits an act of unprofessional conduct.”[4] Unlike professional and practical nurses, the Board may not issue a conditional certification or otherwise monitor the professional and personal behavior of a certified nursing assistant.[5] 3. Ms. Kintz has not borne her burden to establish that she is medically safe to practice as a nursing assistant, especially without monitoring. The record, including Ms. Kintz’ hearing testimony, establishes a history of poor judgment and prescription and alcohol substance abuse without a sustained recovery. This evidence shows that Ms. Kintz may be “physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public,” [6] such as to constitute unprofessional conduct. 4. Ms. Kintz therefore did not carry her burden to refute the Board’s finding of unprofessional conduct, which supports the Board’s denial of Ms. Kintz’ application for a nursing assistant certification.[7] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board of Nursing affirm its denial of Ms. Kintz’ application to be a certified nursing assistant in Arizona. Done this day, August 7, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of August, 2001, to:

State Board of Nursing Joey Ridenour ATTN: Vicky Driver 1651 West Morten, Suite 150 Phoenix, AZ 85020

By ___________________________ ----------------------- [1] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[4] A.R.S. § 32-1646(A)(4).

[5] Cf. A.R.S. § 32-1663(A).

[6] See A.R.S. § 32-1601(14)(e).

[7] See A.R.S. § 32-1663(A).

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