ALJDEC decisions subject to certification as final

06A-0505019-NUR-res · State Board of Nursing · 2007-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11, 2007 and October 3, 2007. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Nina Zimmerman. Kristi L. Durschmidt appeared personally and was represented by her attorney, Adrian Little, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The Arizona State Board of Nursing (“Board”) is the authority for regulating and controlling the practice of nursing, including the practice of certified nursing assistants, in the State of Arizona. 2. Kristi L. Durschmidt (“Respondent”) is the holder of Nursing Assistant Certificate No. CNA254558457 issued by the Board. Respondent was certified by endorsement on July 7, 1995. 3. Respondent is also the holder of Certified Medical Radiologic Technologist Certificate No. CRT-8702 issued by the Arizona Medical Radiologic Technology Board of Examiners (“Radiologic Board”). 4. On or about January 27, 2006, the Board, through its Executive Director, issued Interim Order Case No. 0505019, which required Respondent, within 45 days of service of the Interim Order, to “complete a psychiatric evaluation by a Board approved psychiatrist and to include any additional testing deemed necessary by the evaluator to be scheduled within 15 days and completed within 45 days and then return to the Board (“and shall cause the evaluator to provide a written report of the evaluation to the Board.)” 5. Attached to the Board’s Interim Order is a list of the following Board approved evaluators: Mary M. Desch, M.D., Henry J. Schulte III, M.D., F.A.P.A., Robert J. Sivak, M.D., Steven J. Eickelberg, M.D., Barry Morenz, M.D., and David A. Ruben, M.D. 6. Respondent did not timely appeal the Board’s Interim Order. 7. Respondent has not complied with the Board’s Interim Order. 8. On or about April 11, 2006, the Board, through its Executive Director, issued a Notice of Charges in Case No. 0505019 alleging conduct by Respondent in support of the Interim Order, and alleged that Respondent failed to comply with the Interim Order. 9. On or about May 2, 2006, Respondent filed a written request for a hearing regarding the Notice of Charges. 10. On or about July 28, 2006, the Board, through its Executive Director, issued a Complaint and Notice of Hearing in Case No. 0505019/Docket No. 06A-0505019-NUR alleging violations of the Nurse Practice Act by Respondent. 11. The Board, through its Executive Director, issued Interim Order Case No. 0505019 dated November 16, 2006, which required Respondent, within days of service of the Interim Order, to “complete a psychological evaluation to include psychometric testing by a Board approved psychologist, and shall cause the evaluator to provide a written report of the evaluation to the Board.” 12. The basis for the November 16, 2006 Interim Order was Respondent’s “disorderly conduct conviction and anger issues in the workplace and with neighbors.” 13. The November 16, 2006 Interim Order required that “[n]o less than 10 business days from the evaluation appointment, Respondent shall provide the Board notice of the name of the evaluator and the date of the evaluation.” 14. Attached to the second Interim Order was a list of the following Board approved psychologists: Andy Hogg, Ph.D., ABPP, Phillip Lett, Ph.D., and Anne Marie Herring, Ph.D. 15. Respondent did not timely appeal the issuance of the November 16, 2006 Interim Order. 16. Respondent did not timely comply with the November 16, 2006 Interim Order. 17. On or about July 16, 2007, the Board, through its Executive Director, issued a Complaint and Notice of Hearing in Case No. 0505019/Docket No. 06A-0505019-NUR-RES alleging violations of the Nurse Practice Act by Respondent. The matter was then forwarded to the Office of Administrative Hearings, an independent agency, for formal hearing. 18. The evidence does reflect Respondent’s 1999 disorderly conduct conviction. 19. Respondent has been involved in numerous road rage incidents initiated by her. 20. Respondent has had numerous contacts with Chandler Police Department due to her conflicts with neighbors. There is credible evidence of Respondent’s excessive anger towards her neighbors. 21. The evidence is replete with incidents of Respondent’s unreasonable anger issues with co-workers. Although Respondent’s work related anger issues occurred while working as a certified radiologic technician, such conduct is a legitimate concern for the Board if Respondent practices as a certified nursing assistant. 22. Respondent failure to comply with the Board’s two Interim Orders is not justified. Respondent did not timely appeal those orders. She did not request additional time to comply with those orders. Respondent never informed the Board or its staff that she could not afford the evaluations. 23. Since 1999, Respondent has worked for brief periods as a certified nursing assistant at Dependable Staffing and All Medical Staffing. There is no evidence of Respondent having had any issued while employed by those employers. The balance of Respondent’s employment history has been as a certified radiologic technologist. 24. There is credible evidence that Respondent cannot be regulated by the Board as a certified nursing assistant. Respondent’s failure to comply with Board Orders poses a realistic threat to the public health, safety and welfare as the holder of a nursing assistant certificate.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent as a certified nursing assistant. 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 preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent’s failure to comply with Board Orders constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(16)(d). 4. Respondent’s failure to comply with Board Orders constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(16)(i). 5. The Administrative Law Judge concludes that Respondent did not commit unprofessional conduct in violation of A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(3). The alleged conduct by Respondent occurred while she worked as a certified radiologic technologist, not while working as a certified nursing assistant. 6. The Administrative Law Judge concludes that Respondent did not commit unprofessional conduct in violation of A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(6). The alleged conduct by Respondent occurred while she work as a certified radiologic technologist, not while working as a certified nursing assistant. 7. The Administrative Law Judge concludes that Respondent did not commit unprofessional conduct in violation of A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(8). The alleged conduct by Respondent occurred while she worked as a certified radiologic technologist, not while working as a certified nursing assistant. 8. The Administrative Law Judge concludes that Respondent did not commit unprofessional conduct in violation of A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(17). The alleged conduct by Respondent occurred while she worked as a certified radiologic technologist, not while working as a certified nursing assistant. 9. The Administrative Law Judge concludes that Respondent did not commit unprofessional conduct in violation of A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(18). The alleged conduct by Respondent occurred while she worked as a certified radiologic technologist, not while working as a certified nursing assistant. 10. Respondent’s conduct, both personally and professionally, constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(16)(j), specifically A.A.C. R4-19-814(21). Based upon the evidence of record, it is reasonable for the Board to have concerns about Respondent’s ability to safely practice as a certified nursing assistant, especially after she violated two Board Orders to obtain evaluations. 11. The above violations by Respondent are grounds for the imposition of disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. The evidence of record, especially Respondent’s failure to comply with the Board’s two Orders, supports the revocation of Respondent nursing assistant certification in order to protect the public health, safety and welfare.

RECOMMENDED ORDER

Respondent’s Nursing Assistant Certification No. CNA254558457 shall be revoked on the effective date of the Order entered in Case No. 055019.

Done this day, October 23, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ATTN: Vicky Driver 4747 N. 7th Street, Suite # 200 Phoenix, AZ 85014

By ___________________________

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