ALJDEC decisions subject to certification as final

03A-0208132-NUR · State Board of Nursing · 2004-09-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2004 APPEARANCES: State of Arizona : Melissa Cornelius, Assistant Attorney General, appeared for the Arizona State Board of Nursing. Testifying for the Board were Vicki Johansen, Board Investigator, and Valerie Smith, R.N., State Board of Nursing Associate Director. Respondent : Mary L. Brady appeared pro se. The Respondent testified along with Diane Butler, Ms. Brady’s daughter. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

This is a proceeding commenced by the Arizona State Board of Nursing (hereafter also, “the Board”), as authorized by Arizona Revised Statutes (“A.R.S.”) Title 32, Chapter 15, Article 3 and Title 41, Chapter 6, Article 10, to determine whether the Board has properly charged Mary L. Brady (hereafter also, “Respondent” or “Ms. Brady”) with the commission of acts and/or omissions violative of the Nurse Practice Act. Has the Board properly charged Respondent Brady with violation of A.R.S. § 32-1601(16)(d),(h), (i), and (j), as well as A.A.C. R4-19-814(21)? Should Respondent be disciplined for any of the proved infractions? If so, what should be the nature and extent of the discipline? Having heard the testimony of the witnesses and having read and considered the entire record,[2] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this Recommended Decision and Order to the Executive Director of the Department.

FINDINGS OF FACT 1. Respondent Mary L. Brady is a Certified Nurse Assistant (“CNA”), holding Certificate No. CNA640775803 since July 7, 1992. The Respondent primarily serves geriatric patients. During her tenure as licensee, with the exception of the immediate inquiry, Respondent has not heretofore been the subject of Board action. 2. Ms. Brady is a recipient of a Certified Nursing Assistant training certificate issued by Pima Community College, Tucson, Arizona in 1977.[3] 3. In August 2002, Respondent applied for renewal of her certification as a nursing assistant. On her renewal application, Respondent Brady disclosed that she had been arrested under a charge of driving under the influence (“DUI”) of an intoxicant. Thereafter, following Board policy, an investigation was initiated to assess the certificate- holder for chemical dependency. As a result of the ensuing investigation and upon examination of the records disclosed, the Board has charged Respondent Brady with having committed acts of unprofessional conduct by having manifested an erratically satisfactory work performance, an inconsistent attendance record, a record of termination from her employment, a record of having failed[4] to submit results of a required annual Tuberculosis test, an arrest for suspicion of Driving Under the Influence of alcohol to which she pled guilty after having refused a breath test and after having been forced to submit to a blood draw that registered a blood alcohol content (“BAC”) of 0.139% (a conviction unsuccessfully appealed), and having manifestly refused to cooperate with a Board-ordered chemical dependency evaluation.[5] It is upon those charges that the Board has proposed that Ms. Brady’s certified nursing certificate be revoked.[6]

Employment at University Medical Center 4. While Respondent was employed at University Medical Center (“UMC”), Tucson, Arizona, from January 1998 into October 2000, Ms. Brady received mixed performance evaluations. Ultimately, Ms. Brady was terminated by the hospital on October 19, 2000 for her failure to report the results of an annual Tuberculosis screen. By failing to ensure that such report was submitted, Ms. Brady violated UMC’s HUMAN RESOURCE POLICY 601.14.[7] In addition to the policy violation that led to her termination, Ms. Brady had previously been warned about attendance concerns and had received an unsatisfactory performance evaluation. 5. The Board alleges that Ms. Brady’s performance while employed by UMC fell below the standard of care because her actions and inactions were potentially harmful or dangerous to the health of the patients situated at the facility and/or the public generally.[8]

Employment at Desert Dialysis Center in Tucson 6. During an employment stint at Desert Dialysis Center in Tucson in 2001, Respondent Brady manifested excessive absences and unsatisfactory employment evaluations. For her shortcomings, Ms. Brady’s employment was terminated by the medical care facility on October 18, 2001.[9] On the facility’s EXIT COMMENTS form, a form presumably routinely issued when an employee leaves Desert Dialysis Center employment, Ms. Brady’s supervisor observed that Ms. Brady was then manifesting an inability to multitask[10] and that, albeit she had tried “really hard,” she was unable to perform necessary duties.[11]

The Arrest and Conviction for D.U.I. 7. Respondent Brady was thereafter arrested by the Pima County Sheriff’s Office on January 10, 2002 for driving under the influence of alcohol, a “DUI,” a misdemeanor offense.[12] 8. On March 13, 2002, Ms. Brady entered a guilty plea in PIMA COUNTY JUSTICE COURT to the charge of misdemeanor DUI in case number TR02- 003670.[13] She later filed for post-conviction relief only to have the motion denied on September 11, 2002.[14] 9. The arrest report created by the PIMA COUNTY SHERIFF’S OFFICE relative the January 10, 2002 arrest of Ms. Brady[15] reveals that Ms. Brady was uncooperative at the scene and that she had refused submission to a breathalyzer test. The police were forced to obtain a search warrant to enable a blood draw to ascertain Ms. Brady’s blood alcohol content. According to arresting officers, Ms. Brady acted in an unstable manner (“severe mood swings”), was at time “belligerent,” yelled at the attending officers, and cussed at them. Having obtained the sought-after search warrant, Ms. Brady was taken to Kino Hospital whereat she continued to behave obstinately, “she became very upset and curs[ed], stating that it was her blood [that the officers were seeking to have drawn] and that [the officer] was not going to get any of it.”[16] Once the draw was accomplished and test results obtained, Ms. Brady was shown to have a blood alcohol content, two-and-one-half hours after first being detained, of 0.139%. 10. The proposed twelve-month suspension of Ms. Brady’s driver’s license was ultimately “voided” by an Administrative Law Judge on April 3, 2002, after a hearing before the Arizona Department of Transportation (“ADOT”) that considered whether grounds existed for an “implied consent suspension.” Based on the evidence provided, the Administrative Law Judge determined that probable cause grounds did not exist to arrest Ms. Brady for D.U.I. at the scene of the alleged incident and that she had not, in fact, refused to submit to the designated test.[17] Nevertheless, her conviction for D.U.I. still stands.

Employment Through Arizona Home and Health Care 11. Employment records from Arizona Home and Health Care reveal that Ms. Brady was accorded several “needs improvement” and “unsatisfactory” ratings (July 23, 2002, September 30, 2002, and October 4, 2002), during her assigned tenure at Tucson Medical Center (“TMC “), and indicate that Ms. Brady has consistently refused to assume accountability for any criticism of her work performance.[18] On or about July 24, 2002, TMC rated Ms. Brady’s performance as “needs improvement on punctuality/dependability, completing assignments on time (vitals) and answering several lights.”[19] On or about September 30, 2002, Ms. Brady’s work performance was rated unsatisfactory by TMC in the areas of patient care and personal attitude. The assessing supervisor noted that Ms. Brady had neglected to weigh a patient, as she had been asked so to do, before she had completed her shift, acted unprofessionally and rough with the subject patient and displayed a bad attitude.[20] Further, on or about October 4, 2002, TMC rated Ms. Brady with a “needs improvement” because she had difficulty completing assignments, following instructions, following directions, meeting acceptable standards related to the quality of her work, failed to provide acceptable patient care, failed to answer lights and respond to patient requests and needs, and was expected to manifest improvement in her attitude, her initiative, and in her recognition of her limitations. 12. The Board alleges that Ms. Brady’s performance while employed by Arizona Home and Health Care and assigned to TMC fell below the standard of care because her actions and inactions were potentially harmful or dangerous to the health of the patients situated at the facility and/or the public generally.[21]

The Application for License Renewal 13. In the interim, Ms. Brady had filed to the Board an application to renew her certification as a nursing assistant. While the August 16, 2002 Certified Nursing Assistant Renewal Application disclosed the D.U.I. conviction, the applicant did not provide the Board with a narrative explication of the circumstances surrounding the conviction and had failed to detail information that might have tended to mitigate her accountability therefor; however, the applicant did inform that her conviction had been appealed and was then on appeal.[22] Thereafter, on December 9, 2002 and upon request of Board Investigators, Ms. Brady provided additional, but very meager, information about the arrest. It is apparent that the handwritten response was not submitted with due consideration of the Board’s responsibility to scrutinize such applications and manifested a lack of care for her own responsibility to answer questions that may arise from an applicant’s record.[23] 14. On January 28, 2003, the Board issued an INTERIM ORDER directing Mary L. Brady to submit to a chemical dependency evaluation by a Board approved addictionist who was thereafter to file a report to the Board of her findings and assessment.[24] 15. The Board approved addictionist, Cheryl Martin, Ed.D., CPC, conducted a comprehensive interview and assessment of Ms. Brady wherein the addictionist determined : (1) Ms. Brady “presented with a pervasive pattern of a general unwillingness to complete answers in the interview and [in] the Biopsychosocial Assessment;” and (2) “Due to her restricted range of responding, lack of cooperation, and reporting inconsistencies, it is not possible to assign a DSM-IV-TR diagnosis.”[25] 16. Subsequently, Respondent Brady appeared telephonically at a May 6, 2003 Board Hearing whereat she was queried by Board members Barbara O’Connor, Kathy Molloch, President, and Beverly Ogden concerning why she had not completed the approved addictionist comprehensive interview. Responding to the queries, Ms. Brady asserted that the assessor had probed into familial matters that Ms. Brady considered of a “confidential” nature.[26]

The Board’s COMPLAINT AND NOTICE OF HEARING and the Answer Thereto 17. Thereafter, on June 9, 2004, the Board issued its COMPLAINT AND NOTICE OF HEARING in the matter. In response thereto, Ms. Brady filed an ANSWER on June 30, 2004. The COMPLAINT alleged violations of certain standards of the Nurse Practice Act, vis-à-vis the applicant’s arrest and conviction and employment records that, unless successfully rebutted by the applicant, the charges would prove the applicant unfit for continued practice and would manifest that the applicant’s continued practice might pose a threat of harm to the health of a client or to the public generally. In her ANSWER, Ms. Brady asserted generally that the allegations in the Board’s COMPLAINT emanated from hostility manifested toward her in the workplace, incompetence of fellow-employees, incompetence of Counsel in her defense of the D.U.I. charge, and bad “interrogation” techniques exhibited by the Board approved addictionist. In addition, Respondent Brady asserted that she is, in fact, a very responsible individual and that she has been unjustly blamed for the alleged breaches and deficiencies and, in the process, is being unjustly punished by the Board.[27]

Material Hearing Testimony Ms. Johansen 18. Ms. Vicki Johansen, an investigator for the Board of Nursing since 1999, conducted the investigation induced by Ms. Brady’s disclosure of the D.U.I. Her concern was initially heightened by the fact that, although Ms. Brady had disclosed the fact of conviction for the D.U.I., she did not on her application for renewal provide a detailed written explanation of the facts surrounding the conviction.[28] Her responses “did not suffice” under Board standards.[29] The response did not provide documentation or information to enable the investigator to rule out concerns that would naturally emanate from revelation of an intoxicant- related conviction.[30] Ms. Brady did not even explain the conditions of her probation, if any, and the status of her term.[31] 19. Ms. Johansen testified that she was particularly struck by the description found in the police report concerning Ms. Brady’s conduct when confronted at the scene on January 10, 2002 by five or six police officers. The arrestee, Ms. Brady, was described as uncooperative and belligerent. She is reported to have continued her display of obstinacy throughout the arrest and implementation of the search warrant authorizing the blood draw at Kino Community Hospital.[32] 20. The witness further observed that, beyond Ms. Brady’s having placed others at risk by operating a vehicle while under the influence (and considerably so at 0.139 BAC), her behavior while at the hospital created risk for the attending nurse, as well as the officers, while her blood was drawn.[33] 21. Moreover, investigator Johansen has determined from her review of Ms. Brady’s work records that the licensee has manifested a tendency to place the blame on others when her acts and omissions have been questioned by supervisory staff,[34] that she has manifested a proclivity to delegate assigned responsibilities,[35] that she fails to assume accountability for her errors or mistakes,[36] that her employment with a health care facility has been terminated for unsatisfactory performance,[37] that her attendance record has been questioned,[38] and that she was less than candid and, perhaps, untruthful when questioned by the investigator on December 9, 2002 about the particulars of her employment record.[39] 22. Finally, of significance to the investigator was Ms. Brady’s manifest desire not fully to cooperate with the Board approved addictionist’s efforts to elicit information from her that would enable the addictionist to develop a profile and to make recommendations to the Board.[40] Further, this lacuna in the investigative record, that is the inability of the addictionist to come to some conclusions, militated against assurances that Respondent could continue safely to engage in the practice as a CNA[41] 23. At the hearing, Ms. Brady chose not to cross-examine the witness.[42]

Ms. Smith 24. Ms. Valerie Smith, R.N., holding a master’s degree in nursing with a specialty in chemical dependency,[43] who routinely investigates R.N./L.P.N./CNA licensees and applicants for licensure for assessment of chemical addiction, and who has thoroughly investigated the records pertaining to Ms. Brady’s application, gave as her opinion that, in light of Ms. Brady’s conviction for D.U.I., her recent employment history, her manifest inability to multitask, and questionable attendance record, she is concerned that Ms. Brady may have a “problem with alcohol” and that, as such, she poses a threat to patients who may be under her care. 25. From a public safety point of view, according to witness Smith, should a CNA suffer from the disease of addiction, the potential for unsafe patient care is very high.[44] This is so because of attendance issues that may accompany the addictive behavior, deficiencies in judgment and other cognitive anomalies that may present, and an inability to multitask that may arise.[45] 26. A D.U.I. conviction is symptomatic of addiction, according to the witness. Although everyone who is thus cited may not necessarily be chemically dependent, the episode nonetheless reflects an impaired judgment. Ms. Smith went on to testify that it is the workplace that may be the last environment where the symptoms of addiction are manifested. Therefore, when suspicions are aroused, following a proactive policy on this issue, the Board insists upon a professional evaluation.[46] 27. Having reviewed the investigative file, including Ms. Brady’s employment records, Ms. Smith concludes that Ms. Brady’s failure to submit results of a mandatory tuberculosis screen at University Medical Center placed patients and fellow healthcare employees at risk, at least conceptually;[47] that her performance at University Medical Center during the subject period exhibited substandard care and inefficiency by not following through on assignments and, in particular, failing to obtain an admission baseline EKG strip on a presenting patient;[48] that she had been counseled for absenteeism at University Medical Center;[49] that she required significant direction and guidance even after two years in the employment of University Medical Center;[50] that she had been cited for excessive absenteeism in 1998 (considered in light of and in addition to other factors);[51] her manifestation of an inability to multitask while employed at the Desert Dialysis Center in Tucson;[52] her failure to see that lab data had been sent to the lab (found, instead, in a refrigerator);[53] that the exit comments at Desert Dialysis Center noted excessive absences;[54] that her employment application to Desert Dialysis Center had not been truthfully revelatory about her reason for leaving (terminated) University Medical Center;[55] that she, likewise, had been untruthful on her Arizona Home and Health employment application;[56] that her performance evaluations at TMC (contracted through Arizona Home and Health) manifested a failure to follow-through with her assigned duties (vital signs, weighing patients, responding to patient lights);[57] that she had exhibited a tendency to forget what she had been told and thereby failed to anticipate patient needs (reflective of difficulties with memory, recall, and cognition);[58] and, that she generally failed to assume responsibility and accountability for her acts and omissions.[59] 28. Ms. Smith further was struck by the police reports addressing the circumstances of the D.U.I. arrest. What struck the witness most was the record of Ms. Brady’s belligerent attitude displayed at the scene, a manifestation of her lack of judgment, insight and accountability.[60] 29. Ultimately for this witness, Ms. Brady’s reluctance to be forthcoming with the Board-appointed addictionist raises suspicion of denial and manifests a spirit of uncooperativeness with those who have been charged with the responsibility to police the profession.[61] 30. Based upon her knowledge, training, and experience in the nursing profession, with specialty in addictive behaviors, Ms. Smith believes that Ms. Brady potentially poses a threat to the patients who may fall under her care.[62]

Ms. Brady 31. Respondent Brady testified on her own behalf.[63] She presented herself as one who has been wronged on all counts; manifests a questionable stability through her pattern of speech and non-responsiveness, and exhibits a hint of paranoia coupled with a failure to grasp the gravity of the charges. Additionally, Ms. Brady exhibits a certain qualitative defensiveness about her role.[64] 32. Essentially, Ms. Brady asserts that the police records surrounding the D.U.I. conviction contain “many lies” by the reporting officer.[65] While her motion for postconviction relief has been denied, and while the suspension of her license has been reversed by a Motor Vehicle Division (“MVD”) Administrative Law Judge,[66] and while Ms. Brady’s complaint to the State Bar has not produced results,[67] Ms. Brady still desires and intends to attack the D.U.I. conviction. 33. Ms. Brady currently is employed through the CareStaf Agency as a CNA[68] She has placed in the record several letters of reference including one from the CareStaf Agency dated October 29, 2003 wherein is stated: “Mary has been an exceptional asset to our company. Anyone seeking to hire Ms. Brady will find that she’s a very hard working individual.”[69] Through the CareStaf Agency, she has worked recently at Kino Hospital and a number of psych facilities such as Saguaro and Compass Health Care.[70] 34. Ms. Brady feels that she was terminated from UMC because the charge nurse had a vendetta against her and, in furtherance of her scheme, the charge nurse manipulated her evaluations.[71] 35. Moreover and in her defense, Ms. Brady asserts that she conducted herself in a cooperative manner during her interview by the Board- appointed addictionist.[72] She feels that the addictionist could not complete her evaluation because perhaps the addictionist did not like the answers that Ms. Brady had given to her questions.[73] Additionally, Ms. Brady has adjudged the Board-approved addictionist as unqualified.[74]

Ms. Butler 36. Diane Butler, Ms. Brady’s daughter, testified on behalf of the Respondent. Ms. Butler, a very pleasant individual, appeared somewhat reticent to testify, perhaps due to her manifest shyness. The Administrative Law Judge has drawn inference from the witness’s demeanor that the entire story regarding Respondent Brady’s use of alcohol has not been disclosed. However, regardless the suspicion created, Ms. Butler’s contact with her mother has been admittedly limited over the most recent past due to the witness’s own familial responsibilities; she has been on her own for sixteen (16) years. Ms. Butler’s testimony, therefore, lacked competence and the inference is accorded minimal impact.

Requirements of the Nurse Practice Act 37. The Nurse Practice Act does not require a demonstration of actual patient harm resultant from a licensee’s act or omission in order to identify violation thereof. The statute, A.R.S. § 32-1601(14)(d), merely requires a demonstration that the alleged conduct or practice is or might be harmful or dangerous to the health of a patient or member of the public generally.

The Weight of the Evidence 38. The weight and sufficiency of the evidence preponderates (1) that Respondent Brady has been convicted of driving while intoxicated and that during her arrest she conducted herself in an unstable and unprofessional manner; (2) that her most recent work history projects one who has been terminated from employment for policy violations, has performed unsatisfactorily at times, and has failed to fulfill responsibilities in a manner that would inure to the preservation of patient health; and (3) that she failed to cooperate with the Board- approved addictionist whose charge it was to screen and to assess Ms. Brady for a possible addiction. Each of these omissions constituted deviation from the standard of care under the circumstances. That standard was articulated by credentialed members of the nursing community; Ms. Johansen, a Board appointed investigator, and Ms. Smith, a registered nurse certified in the study of addictive behaviors. The evidence, as presented and as assessed by these witnesses, establishes that Ms. Brady may pose a risk to the health and safety of the patients whom she serves. The evidence further establishes that Ms. Brady’s uncooperativeness in the addiction assessment interview reveals an insensitivity to the health and safety of the patients who may be entrusted to her care.

APPLICABLE STATUTES § 32-1601(16)

16. "Unprofessional conduct" includes the following whether occurring in this state or elsewhere:

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

(h) Committing an act that deceives, defrauds or harms the public.

(i) Failing to comply with a stipulated agreement, consent agreement or board order.

(j) Violating a rule that is adopted by the board pursuant to this chapter.

***

. . . . . . . . .

A.A.C. § R4-19-814 (2004)

For purposes of A.R.S. § 32-1601, a practice that is or might be harmful or dangerous to the health of a patient or the public includes the following:

21. Practicing in any other manner that gives the Board reasonable cause to believe that the health of a client or the public may be harmed.

***

A.R.S. § 32-1646. Disciplinary action

§ 32-1646. Nursing assistants; board powers

A. In the regulation of nursing assistants the board may:

1. Refer criminal violations of this article to the appropriate law enforcement agency.

2. File a letter of concern if the board believes there is insufficient evidence to support direct action against the nursing assistant's certificate but sufficient evidence for the board to notify the nursing assistant of its concern.

3. Pursuant to the omnibus budget reconciliation act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683), indicate on the certificate the existence of any substantiated complaints against the certificate holder.

4. Deny certification or recertification or suspend, revoke or accept the voluntary surrender of a certificate if a nursing assistant commits an act of unprofessional conduct.

5. Issue a temporary nursing assistant certificate to an applicant who meets the qualifications for certification specified in section 32-1645. The certificate expires six months after the date of issuance and may be renewed at the discretion of the board.

6. In addition to any other disciplinary action it may take, impose a civil penalty of not more than one thousand dollars for each violation of this chapter.

B. The board shall revoke a certificate of a person or not issue a certificate or recertification to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions five or more years prior to the date of filing an application pursuant to this chapter. This subsection does not apply to a person who has filed an application for certification or recertification before August 1, 1998 and who has disclosed one or more felony convictions on the person's application.

***

CONCLUSIONS OF LAW 1. The Arizona State Board of Nursing has authority to discipline a CNA licensee for unprofessional conduct.[75] 2. The Board has been empowered to deny certification or recertification, file a letter of concern, revoke, suspend, or accept the voluntary surrender of a certificate for violation of the rules of professional conduct.[76] 3. A certificate-holder has a due process right to a hearing whereby she may confront and cross-examine the allegations of unprofessional conduct.[77] Respondent Brady has been afforded those rights. 4. The burden of persuasion generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[78] Moreover, the standard of proof generally is that of the “preponderance of the evidence”.[79] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[80] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion is more probably correct on the issue(s) in dispute. 5. In this proceeding, the Board has assumed the burden of establishing that Respondent Brady has acted unprofessionally in her treatment and care of patients, as is manifested by her employment record; that she exhibits an instability in character, as is demonstrated by the facts surrounding her D.U.I. arrest and conviction; and, that she has demonstrated indifference to the Board’s authority by her noncompliance with the Board’s January 28, 2003 INTERIM ORDER wherein Ms. Brady was directed to submit to a chemical dependency evaluation by a Board approved addictionist; all as is alleged in the COMPLAINT AND NOTICE OF HEARING. In addition, the UMC termination for failure to report the results of her annual Tuberculosis screen in violation of articulated policy, the Desert Dialysis Center exit comment raising concern for her inability to multitask, and the TMC records wherein is demonstrated her proclivity not to assume accountability in light of criticism and to manifest deficiencies in patient care, all portend probability of instability and risk for patient harm. 6. The Arizona Court of Appeals has issued an opinion in a matter before the Board of Medical Examiners[81] wherein the Court determined to provide guidance to the Board on remand by stating[82] that the Board on remand could not base its findings of the defendant doctor’s deviation from the standard of care upon undisclosed evidence or personal knowledge of the facts. So also was the Board required, in the Court’s opinion, to identify the standard of care[83] and to articulate the alleged deviation therefrom under the facts of the case. 7. While the statute being scrutinized in Webb belongs to the Board of Medical Examiners and not the Board of Nursing, and although the Court’s advisement did not constitute the holding of Webb, it is recognized fair and just that a certificate-holder be fully informed of her alleged failure(s) to enable the certificate-holder properly to defend. Further, such notice is generally recognized as potentially of propaedeutic effect upon rehabilitation efforts.[84] 8. In this case, the standard of care deviated from by this certificate-holder was established by State’s witness Smith. Ms. Smith’s conclusion testified to at the hearing is that Ms. Brady’s failure to submit results of a mandatory tuberculosis screen at University Medical Center placed patients and fellow healthcare employees at risk, at least conceptually;[85] her performance at University Medical Center during the subject period exhibited substandard care and inefficiency by not following through on assignments and, in particular, failing to obtain an admission baseline EKG strip on a presenting patient;[86] that she had been counseled for absenteeism at University Medical Center;[87] that she required significant direction and guidance even after two years in the employment at University Medical Center;[88] that she had been cited for excessive absenteeism in 1998 (considered in light of and in addition to other factors);[89] her manifestation of an inability to multitask while employed at the Desert Dialysis Center in Tucson;[90] her failure to see that lab data had been sent to the lab (found, instead, in a refrigerator);[91] that the exit comments at Desert Dialysis Center noted excessive absences;[92] that her employment application to Desert Dialysis Center had not been truthful about her reason for leaving (terminated) University Medical Center;[93] that she, likewise, had been untruthful on her Arizona Home and Health employment application;[94] that her performance evaluations at TMC (contracted through Arizona Home and Health) manifested a failure to follow- through with her assigned duties (vital signs, weighing patients, responding to patient lights);[95] that she had exhibited a tendency to forget what she had been told and failed to anticipate patient needs (reflective of difficulties with memory, recall, and cognition);[96] and, that she generally failed to assume responsibility and accountability for her acts and omissions,[97] all fall below the standard of care expected of one practicing in Arizona, under this Board’s authority.[98] 9. The underlying purpose of Arizona State Board of Nursing oversight is to protect the public interest.[99] 10. The Arizona state legislature has directed that statutes be liberally construed in an effort to affect their objects and promote justice.[100] Statutes wherein penalty may be imposed pursuant to application thereof, such as that found at Title 32, Chapter 15, are to be construed according to the fair import of their terms.[101] Technical words and phrases are to be construed according to their peculiar and appropriate meaning. 11. The State has demonstrated that Respondent Brady has failed to act in a manner consistent with professional standards. 12. Ms. Brady’s failure to consistently perform on the job in an acceptable manner, her failure to be free of manifestation of addictionist tendencies, as exemplified by the D.U.I., her behavior during and around the arrest, and her having given signs of cognitive dysfunction on the job, along with her recalcitrant non-cooperation with the Board-approved addictionist, constitute conduct and practice harmful or dangerous to the health of a patient under A.R.S. § 32-1601(14)(d). 13. At the close of the hearing of Ms. Brady’s appeal, the Assistant Attorney General argued that, in light of the Board’s responsibility to protect patient health and safety, Ms. Brady requires, in the least, serious monitoring. However, as noted by the Assistant Attorney Generally, in light of Ms. Brady’s obstinacy vis-à-vis the addiction evaluation, it is unlikely that Ms. Brady would be willing to undergo monitoring.[102] Further, the Assistant Attorney General informed, given the limited options made available for the discipline of a CNA under the governing statute,[103] the Board has moved for revocation of this certificate.[104] It is a notable observation that Ms. Brady’s failure to interject at the hearing that she would be willing to experience some monitoring of her practice, having heard the Assistant Attorney General’s statement of supposition in closing argument, only confirms the validity of the perception. 14. The Board ought to give due consideration to public perception as well as that of other current and prospective certificate-holders. The Board has as its ultimate obligation the protection of the public and should not make allowance for a conscious disregard of professional rules that go to the very essence of that trust necessary to efficacious nursing service. The Board also performs a propaedeutic function; it informs its licensees and certificate-holders that it requires compliance with Board orders. By revoking this certificate-holder’s license, the Board gives notice that it expects such compliance upon pain of serious penalty. 15. The discipline of a professional certificate, whether it be revocation, suspension or a lesser penalty, is a sanction that should not be lightly imposed. Elements of mitigation and aggravation, if any, ought to be considered in the deliberations. 16. As an element of mitigation is Ms. Brady’s record of practice without previous complaint, without Board censure. 17. As a factor of aggravation is the magnitude and scope of the harm or potential harm to the geriatric (and other) patients under Ms. Brady’s care by her inaction and actions delineated by the COMPLAINT and proved at the hearing. As a further factor of aggravation is it that Ms. Brady seems to have failed to manifest understanding of, let alone take accountability for, her action or inaction in this matter. Still further, and this poses the gravest concern, is Ms. Brady’s apparent recalcitrance in the face of a Board Order that she be assessed for a possible addiction. This latter fact alone creates basis for revocation. 18. A careful review of the totality and preponderance of the evidence presented at the hearing of this complaint supports the Board’s revocation of Certificate No. CNA640775803. The Board cannot allow a certificate-holder obstinately to refuse to comply with the Board’s directives; there is too much at stake. It is apparent that what Ms. Brady has experienced both professionally and personally over the past few years has not awakened her to necessity for change. 19. This is an appropriate disciplinary sanction. “An administrative penalty is excessive only if it is so ‘disproportionate to the offense as to shock one’s sense of fairness’.”[105] In light of the entire picture that has been revealed, revocation of Ms. Brady’s certificate does not shock the conscience.

RECOMMENDED ORDER IT IS RECOMMENDED that the Arizona Board of Nursing discipline Certificate No. CNA640775803 by revoking the certificate and by refusing to issue a renewal certificate, all in light of those facts established by Findings ¶ 38 above.

Done this 18th day of October 2004.

________________________________ Gary B. Strickland Administrative Law Judge .

Original transmitted by mail this ____ day of ____________ 2004 to:

Arizona State Board of Nursing Joey Ridenour, Executive Director Att’n: Vicky Driver 1651 East Morten, Suite 150 Phoenix, AZ 85020

By ___________________________ ----------------------- [1] To reflect the correct date of the hearing. [2] The parties stipulated that the official record consists of that record having been stenographically recorded by a certified court reporter, as well as the exhibits that were offered at the hearing and documentation in the Board’s case file. The Board offered fourteen exhibits, numbered 1 through 14. All of the exhibits have been received except for 14, which was partially excluded as irrelevant (prejudicial) in that some of the documents contained information that had been removed from the University Medical Center Brady employment file by UMC human resource officials. See Transcript (“TR”) p. 143, ln. 13 through p. 144, ln. 6. In addition, Board exhibits 11 and 12 have been sealed under the authority of and in accordance with the requirements of A.R.S. § 32-1664(L). Respondent Brady’s exhibits 1 through 12 were received into the record (some of the documents, such as those within 6, were accorded little weight because they had not been supplied to the Board under subpoena, but, apparently, fell within the range of documents that the Board had requested produced under the subpoena.

[3] See Respondent Exhibit 10.

[4] See Board’s Exhibit 1 and Respondent’s Exhibit 9.

[5] See the Board’s June 9, 2004 COMPLAINT AND NOTICE OF HEARING.

[6] See transcript of the proceedings (hereafter, “TR”), page 19, lines 4 and 5.

[7] See Board’s Exhibit 1 UMC DISCIPLINARY ACTION FORM.

[8] See the Board’s June 9, 2004 COMPLAINT AND NOTICE OF HEARING, page 3, ¶ 6.

[9] See Board’s Exhibit 2 and Respondent’s Exhibit 8.

[10] See, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000) (One central processing unit concurrently operating two or more processes.)

[11] See Board’s Exhibit 2, Desert Dialysis Center EXIT COMMENTS, page 2 of 3.

[12] See Board’s Exhibit 3 and Respondent’s Exhibit 2.

[13]See Board’s Exhibit 5.

[14] Id.

[15]See Board’s Exhibit 3.

[16]See Board’s Exhibit 3, PIMA COUNTY SHERIFF’S DEPARTMENT “Incident Report” at page 10. .

[17] Respondent’s Exhibit 3. The arresting officer lacked specific information as to the time of driving and the arrest was based upon second- hand hearsay. Additionally, the officer who attended Ms. Brady at the blood draw did not respond to a subpoena issued for his appearance at the ADOT hearing, the officer then no longer employed by the PIMA COUNTY SHERIFF’S DEPARTMENT.

[18] See Board’s Exhibit 6.

[19] Id.

[20] Id.

[21] See the Board’s June 9, 2004 COMPLAINT AND NOTICE OF HEARING, page 5, ¶ 14.

[22] See Board’s Exhibit 7.

[23] See Board’s Exhibit 9.

[24] See Board’s Exhibit 10.

[25] See Board’s Exhibit 11. This exhibit, along with Board’s Exhibit 12, have been sealed under and in accord with A.R.S. § 32-1664(L).

[26] See Board’s Exhibit 13.

[27] See Board’s Exhibit 14.

[28] TR p. 29, lines 10-15.

[29] TR p. 30, lines 8-11. See also Board’s Exhibit 8.

[30] TR, p. 31, lns. 5 through 9.

[31] TR, pp. 32, line 15 through p. 33, line 21. [32] TR p. 35, ln. 10 through p. 36, ln. 8.

[33] TR p. 40, ln. 12 through p. 41, ln. 5.

[34] TR p. 44, ln. 10.

[35] TR p. 46, lns. 13 - 17.

[36] TR p. 47, lns. 4 - 10.

[37] TR p. 49, lns. 6 – 8 and p. 51, lns. 18 – 25.

[38] TR p. 52, lns. 4 – 10 and p. 57, lns. 10 and 11. See also Board’s Exhibit 9.

[39] TR p. 54, lns. 9 – 19.

[40] TR p. 63, lns. 3 - 20.

[41] TR p. 63, lns. 18 - 20.

[42] TR p. 66, lns. 18 - 23.

[43] TR p. 68, lns. 18 - 20. Ms. Smith’s master’s thesis, later published, addressed the issue of relapse among addicted nurses. See TR p. 70, lns. 9 and 10.

[44] TR p. 71, lns. 2 - 6.

[45] TR p. 71, lns. 8 - 14.

[46] TR p. 75, ln. 2 through p. 76, ln. 10.

[47] TR p. 79, ln. 17 through p. 80, ln. 8.

[48] TR p.80, ln. 13 through p. 81, ln. 2.

[49] TR p.81, lns. 11 - 14.

[50] TR p.81, lns. 17 - 21.

[51] TR p.83, ln. 20 through p. 84, ln. 7.

[52] TR p.85, lns. 4 through 10. (“[O]ne of the symptoms (of substance abuse) . . . is difficulties with cognition . . . .” p. 85, lns. 14 – 19).

[53] TR p.86, lns. 1 – 18.

[54] TR p.87, lns. 1 – 8.

[55] TR p.87, lns. 10 – 14.

[56] TR p.87, ln. 23 through p. 88, ln. 6.

[57] TR p.88, ln. 22 through p. 90, ln. 4. See particularly the TMC evaluation dated September 30, 2002.

[58] TR p.92, lns. 6 - 24.

[59] TR p.93, lns. 5 - 13.

[60] TR p.106, ln. 15 through p. 109, ln. 1.

[61] TR p.109, ln. 6 through p. 113, ln. 25.

[62] TR p.114, lns. 1 - 5.

[63] TR p.138, ln. 20 through p. 95, ln. 21.

[64] For example, when asked by the Assistant Attorney General on cross- examination (See TR p. 202, lns. 1 – 5): Q. “Ms. Brady, you would agree with me that CNAs are people who care for those who cannot care for themselves; right?” Ms. Brady responded: A. “I do. Yes, I do. I was taught that you don’t do anything for a patient that they can’t do themselves.” In addition to being somewhat non-responsive, the answer to the question reveals a subtle casuistic notion of the CNA’s role vis-à-vis the patient; i.e., there may be justifiable reason for an act or omission – it’s the patient’s fault.

[65] TR p.155, lns. 5 - 6.

[66] Respondent’s exhibit 3.

[67] Respondent’s exhibit 4.

[68] TR p.164, ln. 8 through p. 166, ln. 13.

[69] TR p.165, ln. 20 through p. 166, ln. 3.

[70] TR p.166, lns. 17 - 19.

[71] TR p.196, lns. 13 - 24.

[72] TR p.197, ln. 24 through p. 198, ln. 12.

[73] TR p.215, lns. 7 - 12.

[74] TR p.238, lns. 13 - 23. [75] A.R.S. § 32-1646.

[76] A.R.S. § 32-1646(A)(4).

[77] A.R.S. §§ 32-1664(J) and 41-1092.03.

[78] See A.R.S. § 41-1092.07(G)(2) (2004 Ariz. ALS 288; 2004 Ariz. Sess. Laws 288; 2004 Ariz. Ch. 288; 2004 Ariz. HB 2009 2. AT A HEARING ON AN AGENCY ACTION TO SUSPEND, REVOKE, TERMINATE OR MODIFY ON ITS OWN INITIATIVE MATERIAL CONDITIONS OF A LICENSE OR PERMIT, THE AGENCY HAS THE BURDEN OF PERSUASION.); See also Ariz. Admin. Code R2-19-119(B). It is noted that Ms. Brady has submitted an application for the renewal of her certificate, the renewal required by August 31, 2002. The application was timely-filed (August 16, 2002). See Board’s Exhibit 7. In that the statute does not address burden-sharing on the denial of an application for renewal, the delegation of onus to persuade in a case like this is problematic. However, in that Respondent has been caused to defend against the Board’s allegations (as noted by the Administrative Law Judge in his prefatory comments of instruction to which no objection was interposed), it is conceptually most reasonable that the Board bears the burden of demonstrating that Ms. Brady, heretofore regarded by the Board as fit for the professional certification, no longer satisfies legislative and regulatory professional requirements for such certification. It is further of note that Ms. Brady continues to practice under the cloak of Certificate No. CNA640775803; see TR p. 164, lns 8 and 9; had the certification lapsed before the application had been filed, analysis may have required a different outcome.

[79] See Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (A).

[80] See In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994) citing In re Winship, 397 U.S. 358, 371 (1970). (“A preponderance of the evidence standard . . . simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence.’”). See also J. LIVERMORE, R. BARTELS, & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[81] Webb v. Board of Medical Examiners, 202 Ariz. 555, 48 P.3d 505 (App. 2002).

[82] Id. at 560, 510.

Although the Board may establish the standard of professional care based upon its members' experience and expertise, the Board ‘cannot base its findings . . . upon either undisclosed evidence or personal knowledge of the facts.’ Croft, 157 Ariz. at 209, 755 P.2d at 1197 (quoting Davidson v. State, 33 Wn. App. 783, 657 P.2d 810, 812 (Wn. App. 1983)). Nor in our judgment can the Board provide a fair hearing on an issue of negligence without identifying the standard of care and articulating the alleged deviation. Not only must the Board identify the standard and articulate the alleged deviation in order to provide the physician under investigation a fair opportunity to respond to a charge of negligence; it must do so in order to provide a reviewing court an opportunity for meaningful review. ‘Without clearly articulated standards as a backdrop against which the court can review discipline, the judicial function is reduced to serving as a rubber-stamp for the Board's action.’ Woodfield v. Bd. of Prof'l Discipline of State Bd. of Med., 127 Idaho 738, 905 P.2d 1047, 1057 (Idaho App. 1995).

[83] Typically, the “standard of care” in medical negligence cases is established by practitioners whose credentials and experience are accepted by the Judge as manifesting a certain amount of expertise. (“Ordinarily, in malpractice cases, the applicable standard of care must be established by expert testimony, unless the negligence is so grossly apparent that a layman could recognize it.” See, Harvey v. Kellin, 115 Ariz. 496, 566 P.2d 297 (1977)). However, in licensing board disciplinary matters, licensure/certification, plus agency experience, plus technical competence, plus specialized knowledge, may be sufficient to establish the requisite expertise. See Croft v. Arizona State Board of Dental Examiners, 157 Ariz. 203, 755 P.2d 1191 (Ct. App. 1988) (Where board consisted of licensed dentists familiar with the requisite standards of dental care in the area, presentation of expert testimony, which the board was permitted to disregard, was not required.) .

[84] As the Court of Appeals noted in Webb at 560, 510, n.4.

[85] TR p. 79, ln. 17 through p. 80, ln. 8.

[86] TR p.80, ln. 13 through p. 81, ln. 2.

[87] TR p.81, lns. 11 - 14.

[88] TR p.81, lns. 17 - 21.

[89] TR p.83, ln. 20 through p. 84, ln. 7.

[90] TR p.85, lns. 4 through 10. (“[O]ne of the symptoms (of substance abuse) . . . is difficulties with cognition . . . .” p. 85, lns. 14 – 19).

[91] TR p.86, lns. 1 – 18.

[92] TR p.87, lns. 1 – 8.

[93] TR p.87, lns. 10 – 14.

[94] TR p.87, ln. 23 through p. 88, ln. 6.

[95] TR p.88, ln. 22 through p. 90, ln. 4. See particularly the TMC evaluation dated September 30, 2002.

[96] TR p.92, lns. 6 - 24.

[97] TR p.93, lns. 5 - 13.

[98] See FINDINGS OF FACT, ¶ 27, above.

[99] A.R.S. ( 32-1606(B) and (C).

[100] A.R.S. ( 1-201(B);

[101] A.R.S. ( 1-201(C).

[102] TR p. 235, lns. 7 – 14.

[103] A.R.S. § 32-1646.

[104] TR p. 235, lns. 15 – 20. [105] Culpepper, supra, 187 Ariz. at 438, 930 P.2d at 515, citing Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994) (professional board sanction (revocation) of chiropractor’s license not found to be so disproportionate to the offense as to shock one’s conscience); Bear v. Nicholls, 142 Ariz. 560, 563, 691 P.2d 326, 329 (App. 1984).

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