ALJDEC decisions subject to certification as final

03A-0204052-NUR · State Board of Nursing · 2003-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2003. APPEARANCES: The Applicant, Nichole Elizabeth Mohr, appeared personally. The Arizona State Board of Nursing was represented by Assistant Attorney General Daniel Christl. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The Applicant, Nichole Elizabeth Mohr, has appealed the denial of her application for certification as a nursing assistant (“CNA”) by the Arizona State Board of Nursing (“Board”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. On or about April 22, 2002, the Applicant applied for certification as a nursing assistant with the Board. 2. In her application, the Applicant answered that she was not a certified or licensed CNA in any other State. 3. While she was not a CNA at the time of her application, the Applicant had previously been a CNA in Indiana. The Applicant testified that her Indiana CNA had expired in good standing. 4. On or about May 14, 2002, the Applicant told Board staff in a written letter that she had been involved in a rear end car accident caused by her on May 22, 2000. She advised that she had consumed one shot of vodka and fell asleep at the wheel. She further stated that she had not consumed alcohol in two years. 5. On or about February 1, 2001, in case number TR00-08343CR, the Applicant was convicted pursuant to a guilty plea to an amended charge of reckless driving, a misdemeanor, in Tempe Justice Court in Tempe, Arizona. Her sentence included fines and fees, restitution and jail time. 6. From March 19, 2002, to April 10, 2002, the Applicant completed an approved 120-hour State Board of Nursing Assistant Training Program at Mi Casa Nursing Center. 7. Applicant was employed at Mi Casa Nursing Center. 8. While employed at Mi Casa Nursing Center, the Applicant reported to work late or failed to report to work at all on numerous occasions. 9. On or about July 29, 2002, the Applicant apologized in writing to the management at Mi Casa Nursing Home for failing to report to work as scheduled and for not notifying her supervisor of her absence. 10. On or about August 2, 2002, the Applicant failed to report as scheduled for work or to notify her supervisor of her absence. 11. On or about August 5, 2002, the Applicant was terminated from Mi Casa Nursing Home for attendance issues. 12. On or about August 21, 2002, the Applicant was rehired at Mi Casa Nursing Home with the stipulation that one absence would be grounds for her termination. The Applicant was subsequently late for work on August 30, 2002. 13. On or about August 30, 2002, in a letter to Mi Casa Nursing Home, the Applicant stated she suffered from “Bipolar” although she had not been diagnosed by a psychiatrist. She stated that she suffered erratically from severe depression to severe panic attacks for the preceding five months. She stated that she ran out of her medication prescribed by her primary care physician. 14. On or about August 31, 2002, the Applicant left work early and reported to Lutheran Urgent Care for anxiety attack. Dr. Robert Jones released the Applicant to return to work on September 1, 2002 with no restrictions. 15. On or about September 1, 2002, September 6, 2002, September 7, 2002, September 14, 2002 and September 15, 2002, the Applicant failed to report to work at Mi Casa Nursing Home as scheduled. 16. On or about September 16, 2002, the Applicant was terminated from employment at Mi Casa Nursing Home for “physical condition.” 17. On or about October 23, 2002, the Applicant was evaluated for chemical dependency by Laurie Swank, CPC, CADAC. Applicant told Ms. Swank that she had one shot of vodka prior to her DUI-related accident and that she used “diet pills” twice a day for the past fourteen months “not to lose weight but for energy.” 18. Ms. Swank found it difficult to reconcile Applicant’s blood alcohol content measured at .154% after purportedly consuming one shot of alcohol. 19. Ms. Swank expressed concern about Applicant’s misuse of diet pills. 20. Ms. Swank could not conclude that the Applicant had an alcohol or drug dependency. 21. Ms. Swank recommended that the Applicant seek outpatient counseling to educate her about bipolar disorder. 22. Ms. Swank further noted that the Applicant needed medication compliance in order to assure her ability to provide safe and consistent care if she became a certified nursing assistant. 23. On or about November 7, 2002, the Board voted to continue the investigation of Applicant to allow her additional time to provide Board staff with validation of evaluation results. 24. On or about January 6, 2003, Board staff informed Applicant that the Board had not received any medical records or documentation regarding her treatment for bipolar disorder. Applicant responded by advising that she had another appointment with a nurse practitioner on or about January 7, 2003, and that she would make sure the records would be sent to the Board. Until the date of the hearing, the Board had not received any treatment records from the Applicant. 25. At the hearing the Applicant presented a psychiatric evaluation dated September 6, 2002 performed by Marian LeSellier, a psychiatric nurse practitioner. 26. During the psychiatric evaluation, Applicant admitted to abusing Ecstasy, alcohol and methamphetamine. Applicant denied that she used methamphetamine to Ms. Swank during her evaluation and did not report her abuse of Ecstasy to her. 27. Applicant did not report her use of diet pills to the psychiatric nurse practitioner. 28. Applicant testified that her drug abuse began when she started working years ago as a dancer in the adult entertainment industry. She testified that drugs were readily available for dancers. She still works in that industry, although she denies any current drug usage. 29. The psychiatric nurse practitioner diagnosed Applicant with bipolar disorder. 30. The psychiatric nurse practitioner prescribed medications to Applicant to treat her bipolar disorder. Applicant testified that she discontinued taking her medications because of side effects. 31. Certified nursing assistants perform a vital service to patients. They tend to be the patient’s closest nursing provider, performing important services for patients such as bathing, toileting and other basic body functions. 32. The Board has the authority to certify nursing assistants, as well as licensing of practical nurses (LPN) and professional nurses (RN). 33. Unlike its authority over practical and professional nurses, the Board lacks authority to restrict a certification as a nursing assistant. 34. Applicant has been inconsistent in reporting what she had been drinking prior to her driving under the influence charge and the accident she caused. She gave different versions to the police officers, the Board and her evaluators. 35. Applicant has been inconsistent in reporting her use of alcohol, diet pills and illegal drugs to the Board and her two evaluators. 36. Applicant correctly deduced her bipolar disorder, which was diagnosed by the psychiatric nurse practitioner. However, she has consciously neglected to treat her condition. 37. Applicant’s work history at Mi Casa Nursing Home is poor. 38. The evidence of record does not support the issuance of certification as a nursing assistant to Applicant. 39. Notwithstanding the Applicant’s failure to establish her entitlement to certification as a nursing assistant, there is strong evidence that the Applicant may serve the health care industry in another capacity. The Applicant has been attending classes at Bryman School seeking certification as a surgical technician. She has been successful in that program, while supporting herself and her young daughter as a dancer.

CONCLUSIONS OF LAW

1. Pursuant to Arizona Administrative Code Rule 2-19-119, the Applicant has the burden of proving her entitlement for certification as a nursing assistant. 2. Pursuant to A.A.C. R2-19-119, the standard of proof is a preponderance of the evidence. 3. The Administrative Law Judge concludes that the Applicant failed to sustain her burden of proof in this matter. 4. The evidence of record is adequate to establish that the Board has cause to deny the application for certification submitted by the Applicant pursuant to A.R.S. §§ 32-1646(A)(4) and 32-1663(A), as defined in A.R.S. § 32-1601(14)(d) and (h) (Amended 2002 as A.R.S. § 32-1601(16)(d) and (h)).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the application for certified nursing assistant of Nicole E. Mohr be denied. Done this day, June 2, 2003

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2003, to:

Joey Ridenour, Executive Director State Board of Nursing ATTN: Vicky Driver 1651 E Morten, Ste. 210 Phoenix AZ 85020

By ___________________________

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