ALJDEC decisions subject to certification as final

03A-0210001-NUR · State Board of Nursing · 2006-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2005, November 14, 2005 and February 8, 2006. The record was kept open until March 10, 2006. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Michelle L. Wood. Respondent Jane A. Mehrbrodt appeared personally and was represented by her attorney, H.H. Walthall, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Arizona State Board of Nursing (“Board”) is the authority for regulating and controlling the profession of nursing in the State of Arizona. 2. Jane A. Mehrbrodt (“Respondent”) is the holder of Professional Nurse License No. RN06150 issued by the Board. 3. On or about October 3, 2002, the Board received a complaint about Respondent from Linda Maschner, RN, the Nursing Program Manager of the Arizona Department of Corrections, where Respondent was employed at the time. Ms. Maschner advised that Respondent had been convicted of misdemeanor DUI on August 19, 2002 in Scottsdale City Court. The complaint was assigned to Sydney Munger, RN, MS, a Board Nurse Practice Consultant, for investigation. 4. From on or about September 1, 2000 to on or about April 24, 2003, Respondent was employed as a Psychiatric Registered Nurse by the Arizona Department of Corrections. Her duties were “to provide psychiatric and medical/surgical nursing care directly to patients; function as a preceptor to subordinate staff in specific patient care, administer treatment intervention and medication according to care plans, and apply quality assurance nursing standards.” Respondent’s duties also included “quality nursing care for any type of psychiatric patient and motivating and redirecting behavior of the psychiatric patient.” 5. On or about October 5, 2001, at 9:28 p.m., Respondent was stopped by Scottsdale police after she nearly struck a police car as she made a turn. According to Scottsdale police records, the interior of Respondent’s car contained a 1.75 liter bottle of Gordon’s vodka with approximately three inches of liquid missing. There was also found a half empty bottle of grapefruit juice. Respondent’s blood test, which was administered approximately 90 minutes after she was stopped by police, measured 0.219. 6. Respondent stated that she had left work at the ASPC – Perryville Health Unit in Goodyear, Arizona on October 5, 2001, at 8:30 p.m. Respondent contends that she did not consume alcohol while on duty that day. If that contention is to be believed, that would mean that Respondent consumed a quantity of alcohol from the time she left work at approximately 8:30 p.m., after allegedly purchasing the vodka and grapefruit juice, until her arrest at approximately 9:30 p.m. sufficient for her to have a blood alcohol content of 0.219 when tested ninety minutes after her arrest. 7. On or about August 12, 2002, Respondent was convicted of misdemeanor DUI, by guilty plea, in the Scottsdale City Court. Respondent was sentenced to, among other things, 20 days in jail, with 10 days suspended upon successful completion of alcohol screening. 8. On November 6, 2002, Respondent received a Letter of Reprimand from ASPC – Perryville Health Unit for the following incidents: on September 30, 2002, Respondent was one hour and twenty-five minutes late for work; on October 22, 2002, Respondent was on hour late for work and missed the morning Mental Health Staff Meeting; and, on October 24, 2002, Respondent was one hour and 45 minutes late and missed the morning Mental Health Staff Meeting. 9. By letter dated December 11, 2002, Respondent was notified that she was suspended without pay from 0700 hours on December 12, 2002 to 1100 hours on December 16, 2002, when she was required to report back to work. The reasons for her suspension were:

a) On December 10, 2002, Respondent failed to report to work at her scheduled work time of 0700. Respondent did not arrive until 0740 hours. Respondent disobeyed previous direct orders that gave her specific instructions on her work hours and schedule. b) On December 10, 2002, Respondent reported to work with the odor of alcoholic beverage on her breadth.

10. By letter dated December 12, 2002, Pamela A. McCauley, Ph.D., the Mental Health Program Manager at the Arizona Department of Corrections, informed Valerie Smith, Associate Director of the Board, that her office recently became aware that Respondent was serving weekend jail time following a conviction for DUI. Since Respondent had not notified the Department of Corrections of the sentence, Dr. McCauley felt that it was possible that Respondent had failed to also notify the Board. 11. By letter dated March 12, 2003, Respondent was informed that she suspended without pay by the Department of Corrections from 7:00 a.m. on March 17, 2003 to 5:00 p.m. on March 20, 2003. She was required to report for work at 7:00 a.m. on March 24, 2003. The reasons for Respondent’s suspension were:

a) On March 5, 2003, Respondent failed to report to work at her scheduled work time of 7:00 a.m. She did not arrive until approximately 8:15 a.m. Respondent disobeyed previous direct orders that gave her specific instructions on her work hours and schedule. b) On March 10, 2003, Respondent failed to report to work at her scheduled work time of 7:00 a.m. She did not arrive until approximately 9:00 a.m. Respondent disobeyed previous direct orders that gave her specific instructions on her work hours and schedule.

12. On or about April 24, 2003, following Respondent’s suspension for another incident of tardiness, Respondent resigned from her position with the Arizona Department of Corrections. 13. According to her supervisors and personnel file, on five occasions, other staff members smelled the odor of alcohol on Respondent when she was on duty. On two occasions, Breathalyzer tests were performed and were negative. On one occasion, Respondent requested that a co- worker/friend draw a blood test while she was on duty to prove that there was no alcohol in her system. According to Respondent, when she presented the sample to a laboratory, she was unable to have the specimen run, since the laboratory had not drawn it. Respondent’s co- worker/friend later informed her superiors that she knew the sample would not qualify for testing, but took the sample because Respondent was distraught and she did so to calm Respondent down. She stated that she would never do it again. 14. At the time of the hearing, Respondent was working in an unsupervised field position. Respondent is employed at a registry. 15. Pam Lundberg, Respondent’s supervisor, acknowledged in her testimony that she has no direct supervision over Respondent’s work day. 16. Respondent is assigned by the registry to the Department of Developmental Disabilities (“DDD”). Her supervisor at DDD, Louetta Coulson, indicated that typically she saw Respondent in the work setting about one or two hours per week. The remainder of the work week Respondent worked independently with no direct supervision. 17. Respondent’s performance in her DDD position was essentially undetectable with the exception of weekly or bi-weekly meetings and her production of reports. DDD indicated that Respondent’s performance of mandatory reports was untimely and needed to be 18. According to Respondent, she does not use alcohol on a regular or excessive basis. Respondent denies that the odor smelled on her person is that of alcohol, and has theorized that it may be caused by either an undiagnosed medical condition, or certain cosmetics. However, Respondent failed to present any credible evidence at the hearing to support her theory. 19. On or about April 25, 2003, the Board issued Interim Order No. 0210001, which ordered Respondent to obtain neuropsychological and chemical dependency evaluations. 20. On or about April 25, 2003, and June 9, 2003, Respondent underwent a chemical dependency evaluation with Julian Pickens, Ed.D. According to Dr. Pickens, Respondent initially failed to show for an appointment she had scheduled with him on June 3, 2003, later informing him that she was late returning from a trip. 21. Dr. Pickens opined that Respondent had an alcohol problem about which she was in denial, but could not say with certainty that she was alcohol dependent, due to the veracity of her responses in the interviews. Dr. Pickens recommended that Respondent obtain in-patient treatment and be monitored by the Board. 22. On or about May 23, 2003, June 11, 2003 and June 20, 2003, Respondent underwent a neuropsychological evaluation with Scott Sindelar, Ph.D. According to Dr. Sindelar, Respondent failed to show for her first scheduled appointment, then stated she would come in the next day. Respondent again failed to show for the appointment, arrived late several times for appointments, and finally completed the evaluation, but she failed to pay Dr. Sindelar in full for his services. 23. On page one of his Neuropsychological Assessment Report, Dr. Sindelar notes that Respondent “did admit to an alcohol abuse problem.” 24. Dr. Sindelar opined that Respondent had no significant impairment in higher order and cognitive functions, but showed some sensory/motor impairment. 25. Dr. Sindelar recommended that, due to the high blood alcohol level obtained during her DUI, and work-related suspicions of a drinking problem, Respondent should be monitored by the Board by obtaining urine drug screens. 26. Dr. Sindelar deferred further assessment of Respondent’s possible problems with alcohol to the chemical dependency evaluator. 27. Respondent was not happy with the results of the evaluations and procured a third evaluation from Hal Nevitt. Mr. Nevitt opined that Respondent suffered from alcohol abuse, but theorized that the alcohol screening she obtained as part of her conviction resolved all issues. Mr. Nevitt acknowledged in his testimony that he did not review the Board’s file at the time of performing his evaluation and was unaware that Respondent did not complete all of her court ordered terms until 2004. Mr. Nevitt acknowledged that he and Respondent were friends and colleagues. 28. Mr. Nevitt claimed to be a Board-approved evaluator with the requisite credentials to perform the evaluation. Mr. Nevitt was never a Board- approved chemical dependency evaluator because the Board requires that an addictionist must have a doctorate degree, which Mr. Nevitt does not possess. Mr. Nevitt was approved by the Board at the time for counseling and psychotherapy only, not for performing evaluations. 29. Mr. Nevitt was ultimately removed from the Board’s list based in part on the discovery that he was dishonest in his response to questions about his prior discipline to his licenses and certifications. Mr. Nevitt had been a certified peace officer employed by the City of Scottsdale until 1984 when he was convicted of Drug Trafficking (Interstate) in Narcotics, Obstruction of a Criminal Investigation and Use of Narcotics. Mr. Nevitt was subsequently incarcerated and lost his peace officer certification in Arizona. 30. Respondent also solicited the testimony of Dr. Schwimmer who acknowledged that he had never assessed Respondent, but had worked with her until 2004 at the Department of Corrections. Dr. Schwimmer testified that he had never observed Respondent display any signs or symptoms of impairment on the job. 31. Dr. Schwimmer testified that he was a part-time consultant for the Department of Corrections and he did not spend considerable time with Respondent when he was at the facility. 32. Dr. Schwimmer has had three DUI convictions. He had been arrested in 1995, 2003 and 2004. Accordingly, his opinion or assessments of Respondent’s level of substance abuse or dependency should be considered with recognition that his substance abuse or chemical dependency issues may have significantly impacted his judgment. 33. Dr. Schwimmer acknowledged that Respondent’s 0.219 BAC within one hour of leaving work indicated that she had drank between five to eight one ounce drinks of alcohol, and that such an amount was a concern. 34. Ms. Munger credibly testified that the odor of alcohol on a person’s breath or body can be a reflection of heavy or chronic drinking. She testified that the odor of alcohol is discernible on a person’s body when it is excreted through one’s sweat. There is credible evidence of record that the odor of alcohol can be detected through a person’s sweat long after it can be detected on their breath. So even if Respondent was not under the influence of intoxicating liquors at the time she reported for work, there is credible evidence that numerous co-workers and physicians detected the odor of alcohol emanating from Respondent. Such detection of the odor of alcohol is a legitimate concern. If Respondent had been drinking prior to work, she should not have reported for work with the odor of alcohol on her breath or body. 35. Evidence of Respondent’s decreasing performance level, as evidenced by five instances in which she was tardy and smelling of alcohol, the records of her failure to complete assigned duties and responsibilities, her lack of focus and lack of organization all have the potential for causing patient harm. 36. In several instances through this case Respondent has not been honest. Respondent testified that she had never been romantically involved with Dominic Valley, R.N., who testified on her behalf. However, Mr. Valley testified that he had been romantically involved with Respondent. Respondent asserted that she had never had a workplace issue other than at the Department of Corrections. However, she admitted on cross-examination that she was terminated from the Arizona Department of Health Services during her probationary period because she was unable to perform her assigned duties, specifically completing her paperwork and arriving to work on time. 37. Respondent did introduce evidence from current co-workers and supervisors praising her current registry work.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The conduct and circumstances described in the above Findings constitute unprofessional conduct by Respondent, pursuant to A.R.S. § 32-1601(16)(d) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public). Respondent’s DUI arrest approximately one hour after leaving work with a blood test measuring .0219% within ninety minutes of her arrest, her chronic tardiness reporting to work and her repeated appearance at work with the odor of alcohol on her person are the basis for this conclusion. 4. The conduct and circumstances described in the above Findings constitute unprofessional conduct by Respondent in violation of A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically, A.A.C. R4-19-403(12) (a pattern of use or being under the influence of alcoholic beverages, medications or other substances to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or any work location). The basis for this conclusion is Respondent’s DUI arrest approximately one hour after leaving work with a recorded blood alcohol content of .219% measured ninety minutes after her arrest, the repeated observations of the odor of alcohol on Respondent’s person, notwithstanding that she was not intoxicated at those times and her chronic tardiness without reasonable justification. 5. The conduct and circumstances described in the above Findings constitute unprofessional conduct by Respondent pursuant to A.R.S. § 32-1601(16)(j) (violating a rule that is adopted by the board pursuant to this chapter), specifically, A.A.C. R4-19-403(25) (practicing in any other manner which gives the Board reasonable cause to believe that the health of a patient or the public may be harmed). The basis for this conclusion is Respondent’s DUI arrest approximately one hour after leaving work with a recorded blood alcohol content of .219% measured ninety minutes after her arrest, the repeated observations of the odor of alcohol on Respondent’s person, notwithstanding that she was not intoxicated at those times and her chronic tardiness without reasonable justification. 6. The above described statutory and regulatory violations by Respondent constitute grounds for disciplinary action against Respondent pursuant to A.R.S. §§ 32-1663 and 32-1664.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Professional Nurse License No. RN061650 be placed on probation for 36 months, commencing on the effective date of the entered Order in this matter, subject to the following terms and conditions of probation:

1. Stamping of License Within seven days of the effective date of the entered Order, Respondent shall submit his license to be stamped “PROBATION.” While the entered Order is in effect, if the Board issues any certificates or licenses authorized by statute, except a nursing assistant certificate, to Respondent, such certificate or license shall also be stamped “PROBATION.” Respondent is not eligible for a multistate “Compact” license.

2. Drug Testing Within seven days of the effective date of the entered Order, Respondent shall enroll in a program that meets Board criteria for random drug testing, which shall include both urine screening and hair sampling. Random drug testing shall be done at a minimum of once per month and may be required more frequently as requested by the Board or its designee. Respondent shall notify the drug testing laboratory and the Board, in writing, of unavailability to test before the anticipated absence. If Respondent is unable to submit a specimen and hair sample on a date requested due to illness, Respondent must provide in writing within seven days of the missed specimen and hair sample, documentation from a medical provider who has personally seen Respondent on the day of the requested drug test confirming that Respondent was not physically able to report to the laboratory for drug testing. In addition, any occurrence of the following conditions constitutes noncompliance by Respondent: a positive drug test showing evidence of any drug other than an authorized drug; submission of a specimen or hair sample where the integrity has been compromised, as indicated by the presence of adulterants or dilute; failure to submit to a drug test on a day when a drug test has been requested by either the Board, its designee, or the laboratory; and submission of urine sample that is below the acceptable volume or temperature to be tested. A positive drug test showing evidence of any drug other than an authorized drug shall result in immediate notification of Respondent’s employer by the Board.

3. Abstain From Unauthorized Drug Use/Proof of Prescription Respondent shall abstain completely from the personal use or possession of controlled substances, as defined in the State Controlled Substances Act, and dangerous drugs as defined by law, or any drugs requiring a prescription.

Orders prohibiting Respondent from personal use or possession of controlled substances or dangerous drugs do not apply to medications lawfully prescribed to Respondent for a bona fide illness or condition by a medical provider. During the duration of the entered Order, Respondent shall select one medical provider to coordinate his health care needs and to be aware of all prescriptions utilized by Respondent. Respondent shall immediately submit to that provider a copy of the entered Order to include the Findings of Fact and Conclusions of Law and shall execute all release of information form(s) as required by the Board or its designee. The medical provider shall, within one week of the effective date of the entered Order, inform the Board, in writing, of knowledge of Respondent’s entered Order and provide a list of medications prescribed for Respondent. During the duration of the probation period, Respondent shall cause all providers to notify the Board of any additional medications ordered by the provider. The notification shall be made in writing within one week of the provider’s issuance of the prescription.

If Respondent has a lawful prescription for a narcotic or mood- altering drug, Respondent shall cause his prescribing provider to submit monthly reports to the Board by the 30th day of each month regarding the continued need for the prescribed narcotic or mood- altering medications. Respondent shall keep a written record of medications taken, including over-the-counter drugs, and produce such record upon request by the Board or its designee.

4. Abstain from Alcohol Use Respondent shall abstain completely from the personal consumption of alcohol.

5. Notification of Practice Settings Within three (3) days of the effective date of the entered Order in this matter, Respondent shall provide a copy of the entire Order to any current nursing employer, which may include a Registry and up to two (2) facilities at which Respondent is assigned through block assignments. Respondent shall cause all immediate nursing supervisors, including the Registry and facility(s) at which he is assigned, to inform the Board within 72 hours, in writing and on their letterhead, acknowledgment of the supervisor’s receipt of a copy of the entered Order and their ability to comply with the conditions of probation.

Thereafter, any setting in which Respondent accepts employment during the period of probation, which requires LPN licensure, shall be provided with a copy of the entire entered Order on or before the date of hire. Within 72 hours of Respondent’s date of hire, Respondent shall cause his immediate supervisor to inform the Board, in writing and on employer letterhead, acknowledgment of the supervisor’s receipt of the entered Order and the employer’s ability to comply with the conditions of probation.

In the event Respondent is attending a nursing program, Respondent shall provide a copy of the entered Order to the Program Director. Respondent shall cause the Program Director to inform the Board, in writing and on school letterhead, acknowledgment of the program’s receipt of the entered Order and the program’s ability to comply with the conditions of probation during clinical experiences. 6. Quarterly Reports Within seven days of each assigned quarterly reporting due date, if Respondent is working in any position which requires RN licensure, Respondent shall cause every employer Respondent has worked for during the quarter to provide to the Board, in writing, employer evaluations on the Board-approved form. The first report is due on the first assigned quarterly report due date after the effective date of the entered Order in this matter. Receipt of notice of an unsatisfactory employer evaluation, verbal or written warning, counseling or disciplinary action any of which pertain to patient care practice issues, or termination from a place of employment shall be considered noncompliance with the terms of this probation. In the event Respondent is not working in a position which required RN licensure, or is attending school during any quarter or portion thereof, Respondent shall provide to the Board, in writing, a self-report describing other employment or activities on the Board-approved form. Failure to provide employer evaluations or self-reports within seven days of the reporting date shall be considered as noncompliance with the terms of this probation.

7. Practice Under Direct Supervision Respondent shall practice as a professional nurse only under the direct supervision of a professional nurse in good standing with the Board. Direct supervision is defined as having a professional nurse present on the same unit with the Respondent whenever Respondent is practicing as a professional nurse. The supervising nurse/primary preceptor shall have read the Order entered in this matter, including the terms and conditions of probation, and shall provide input to Respondent’s employer evaluations to the Board. The supervising nurse/primary preceptor shall be primarily one person, who may periodically delegate to other qualified personnel, who shall also have read the Order entered in this matter, including the terms and conditions of probation. In the event that the assigned supervising nurse/primary preceptor is no longer responsible for the supervision required by this paragraph, Respondent shall cause her new supervising nurse/primary preceptor to inform the Board, in writing and on employer letterhead, acknowledging the new supervising nurse/primary preceptor’s receipt of a copy of the entered Order including Findings of Fact, Conclusions of Law and terms of probation, and the new supervising nurse/primary preceptor’s agreement to comply with the conditions of probation within ten days of assignment of a new supervising nurse/primary preceptor.

8. Acceptable Hours of Work Respondent shall work only the day or evening shift. Evening shift is defined as a shift that ends prior to midnight. Within a 14-day period, Respondent shall not work more than 84 scheduled hours.

Respondent may work three 12-hour shifts in one seven day period and four 12-hour shifts in the other seven day period, but Respondent may not work more than three consecutive 12-hour shifts during this probationary period. Respondent shall not work two consecutive eight hour shifts with a 24-hour period or be scheduled to work 16 hours within a 24-hour period.

9. Registry Work Prohibited Respondent may not work for a nurse’s registry, home health, traveling nurse agency, any other temporary employing agencies, float pool, or position that requires on-call status.

10. Out-Of-State Practice/Residence Before any out-of-state practice or residence can be credited toward fulfillment of these terms and conditions, it must first be approved by the Board prior to leaving Arizona. If Respondent fails to receive such approval before leaving Arizona, none of the time spent out of state will be credited to the fulfillment of the terms and conditions of this probation.

11. Release of Information Forms Respondent shall immediately execute all release of information forms as may be required by the Board or its designee.

12. Interview with the Board or its Designee Respondent shall appear in person or if residing out of state telephonically for interviews with the Board or its designee upon request at various intervals and with reasonable notice.

13. Renewal of License In the event Respondent’s professional nurse license is scheduled to expire during the term of this probation, Respondent shall apply for renewal of her license, pay the applicable fee and otherwise maintain qualification to practice nursing in Arizona.

14. Change of Employment/Personal Address/Telephone Number Respondent shall notify the Board, in writing, within one week of any change in employment, personal address or telephone number.

15. Obey All Laws Respondent shall obey all federal, state and local laws, and all laws/rules governing the practice of nursing in Arizona. Offenses such as driving under the influence may subject Respondent to further disciplinary action, however, commission of minor civil moving traffic violations are excluded.

16. Costs Respondent shall bear all costs of complying with the terms and condition of her probation.

17. Violation Of Probation If Respondent is noncompliant with the terms and conditions of her probation, the Board or its designee may notify Respondent’s employer of the noncompliance. Additionally, the Board may revoke probation and take further disciplinary action for noncompliance with her probation after affording Respondent notice and the opportunity to be heard. If a complaint or petition to revoke probation is filed against Respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation is extended until the matter is final.

18. Voluntary Surrender Of License Respondent may, at any time during her probation, voluntarily request the surrender of her professional nurse license.

19. Completion of Probation When Respondent has nine months left in her probationary period, Respondent’s compliance will be reviewed by the Board’s designee. At the end of the probationary period, Respondent shall request formal review by the Board, and, after formal review by the Board, Respondent’s professional nurse license may be fully restored by the appropriate Board action if compliance with the terms and conditions of probation has been demonstrated.

Done this day, March 30, 2006.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Joey Ridenour, RN, MN, 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