ALJDEC decisions subject to certification as final

06A-0602034-NUR · State Board of Nursing · 2008-08-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 27, 2008 APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Kim E. Zack. Kathleen E. Forcier appeared personally. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ 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. Kathleen E. Forcier (“Respondent”) is the holder of Practical Nursing License No. LP039866 and Nursing Assistant Certificate No. CNA277017394 issued by the Board. 3. On or about May 19, 2008, the Board, through its Executive Director, issued a Complaint and Notice of Hearing in Complaint No. 0602034/Docket No. 06A-0602034-NUR 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. 4. At the administrative hearing held on June 27, 2008, Ms. Nancy Twigg, nurse practice consultant to the Board of Nursing, testified for the Board. Ms. Twigg testified as to her investigation of Respondent. The Board also presented the testimony of Christopher Pinhey, Ph.D., who testified as to his psychological examination and assessment of Respondent. The Board presented Exhibits 2 through 9, which were admitted into evidence.[1] Respondent testified, as did her father, Mr. William Forcier. Respondent presented Exhibits A and B which were received into evidence. 5. From the evidence elicited at the hearing, the following salient facts are important to note: a. On September 1, 2005 Respondent was arrested for violating A.R.S. §28-1382(A), Extreme Driving Under the Influence of Alcohol, a Class Misdemeanor, in Tucson, Arizona. Respondent took a breath test and the results of the breath test were .236 and .243 blood alcohol concentration. (Exhibit 5). b. On January 13, 2006 Respondent pled guilty to violating A.R.S §28-1382(A), Extreme Driving Under the Influence of Alcohol, a Class 1 Misdemeanor. Respondent was sentenced to eighteen (18) months monitored probation and, as a term and condition of that probation, Respondent was required to complete alcohol education classes, attend 15 Alcoholics Anonymous meetings, and attend a two (2) hour presentation by Mothers Against Drunk Driving. Respondent was also required to pay fines and serve thirty (30) days in jail, twenty (20) of which were suspended to ensure that Respondent successfully completed the alcohol education program. (Exhibit 6). c. On February 22, 2006 the Board received a self-report card from Respondent informing the Board that Respondent had been arrested for driving under the influence of alcohol in September 2005. No further information was provided on the self-report card. (Exhibit 8). d. As a result of the self-report received by the Board, the matter was first assigned to Suzanne Smith (“Ms. Smith”), the program consultant for the Board’s CANDO program, a volunteer alcohol and substance abuse treatment program which requires participants to not work for the four to six weeks they are participating in the program. Ms. Smith interviewed Respondent. Respondent declined to participate in that program as she felt she could not sustain herself economically if she was not working for that period of time. e. As a result of Respondent’s inability to participate in the Board’s CANDO program, Ms. Nancy Twigg, (“Ms. Twigg”), was assigned to conduct a follow-up investigation of Respondent. Ms. Twigg has been a nurse practice consultant to the Board for ten (10) years. Ms. Twigg is the former Executive Director of the New Mexico Board of Nursing. Ms. Twigg was established as a witness well qualified to discuss alcohol recovery programs in nursing. f. Upon receiving her assignment, Ms. Twigg sent a questionnaire to Respondent and to Respondent’s former and current employers; subpoenaed the police and court records regarding Respondent’s arrest and conviction described above; and interviewed Respondent. g. Ms. Twigg conducted a review of the documents described above, and of the interview of Respondent by Ms. Smith. Based on that information, and the information she obtained when she personally interviewed Respondent, Ms. Twigg formed an opinion, and made a recommendation to the Board based on that opinion, as to the appropriate disciplinary conditions that should be imposed on Respondent. The suggested disciplinary conditions were as follows: (1) Respondent’s licenses should be suspended; (2) The suspensions should be stayed as long as Respondent abides by the following terms during the first twelve (12) months: (a) Attend and successfully complete an alcohol treatment program with relapse education. (b) Attend an aftercare alcohol treatment program; (c) Provide monthly employer reports to the Board; (d) Provide proof of drug screen results to the Board twice a month; (e) Attend psychological and alcohol counsel and have the counselors submit quarterly reports of Respondent’s progress to the Board; (f) Attend AA and show proof of a sponsor; (g) Employment should be restricted to prohibit night shift, a two-week work period in excess of 84 hours, and off-site agency or home health care work. (3) After the successful completion of the above-described terms and conditions during the first twelve-month period, Respondent should be placed on probation for a period of twenty-four (24) months with a term of probation that Respondent continue with alcohol treatment for an additional 24 months.

h. Ms. Twigg testified that she based her opinion on, among other factors, Respondent’s high blood alcohol concentration when arrested; Respondent’s admissions to Ms. Smith that she began drinking at age 16; that prior to her arrest, Respondent would consume three bottles of wine three or four nights a week for a seven year period; and concerns Ms. Twigg developed, when personally interviewing Respondent, that Respondent did not have the appropriate tools to ensure that she does not continue to abuse alcohol in the future. i. Ms. Twigg opined that Respondent’s ability to observe and assess patients, and her ability to make judgments and decisions regarding patient care can or could be affected by the use of alcohol by Respondent which could endanger patients. j. Dr. Christopher Pinhey, Ph.D., licensed psychologist, testified that on January 11, 2007 he conducted a psychological examination of Respondent at her request. Respondent informed Dr. Pinhey that the State Board of Nursing was requesting the evaluation. The Board was unaware of the evaluation and, as such, the Board did provide Dr. Pinhey with the information Ms. Twigg had complied. k. Dr. Pinhey interviewed Respondent on January 11, 2007. On January 20, 2007, after the Board learned of the evaluation, the Board faxed Ms. Twigg’s investigative report to Dr. Pinhey. On January 30, 2007, Dr. Pinhey provided an updated opinion to the Board. l. Dr. Pinhey testified at hearing that he is of the opinion that Respondent has “a severe problem with alcohol abuse and a psychological problem with depression that needs further exploration.” Dr. Pinhey opined that, at a minimum, Respondent needs psychological and substance abuse counseling on a weekly basis. Dr. Pinhey opined that Respondent’s issues, if left untreated, could potentially affect her ability to operate as a licensed practical nurse. m. Dr. Pinhey recommended Respondent attend counseling and attend AA meetings on a weekly basis for at least one year with quarterly progress reports and quarterly re-evaluation. n. Respondent testified that she has not had a drink since May of 2008. Respondent testified that her alcohol problem in the past was the result of a difficult relationship she had with her now ex-boyfriend. Respondent feels she does not have a problem with alcohol anymore. o. Respondent’s father, William Forcier, testified that Respondent did have an alcohol problem for seven years, but now that Respondent is out of the relationship with her ex-boyfriend, he does not think she will relapse.

APPLICABLE LAW The Complaint and Notice of Hearing alleged that Respondent violated: 1. A.R.S. §32-1601(16)(d) (conduct harmful or dangerous to the health of a patient or the public); 2. A.R.S. §32-1601(16)(j) (violation of a rule that is adopted by the Board, namely R4-19-403); 3. A.A.C. R4-19-403(B)(17) (A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected…); 4. A.A.C. R4-19-403(B)(29) (failure to report a conviction of a felony or undesignated offense); and 5. A.A.C. R4-19-403(B)(31) (Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed).

A.R.S. §32-1606(C) (Powers and Duties of Board) provides:

The board may take any of the following disciplinary actions against any person who holds a license to practice nursing in this state: 1. Revoke the license to practice. 2. Suspend the license to practice. 3. Enter a decree of censure which may require that restitution be made to an aggrieved party. 4. Issue an order fixing a period and terms of probation best adapted to protect the public health and safety and rehabilitate the licensed person.

A.R.S. §32-1663 (Disciplinary action) provides:

D. If the board finds after affording an opportunity to request an administrative hearing that a person who holds an Arizona nursing license has committed an act of unprofessional conduct it may do any of the following: 1. Revoke or suspend the license. 2. Impose a civil penalty. 3. Censure the licensee. 4. Place the licensee on probation. 5. Accept the voluntary surrender of a license. … F. If the board finds after affording an opportunity to request an administrative hearing that a certificate holder has committed an act of unprofessional conduct it may do any of the following: 1. Revoke or suspend the certificate. 2. Impose a civil penalty. 3. Accept the voluntary surrender of a certificate.

A.R.S. §32-1601(16)(d) and (j) (Definitions) provide: "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. … (j) Violating a rule that is adopted by the board pursuant to this chapter.

. . . . . .

R4-19-403(B) (Unprofessional Conduct defined) provides:

For purposes of 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 includes one or more of the following:

17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance 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 other work location; …

29. Failing to notify the Board, in writing, of a conviction for a felony or an undesignated offense within 10 days of the conviction. The nurse or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the conviction; and c. Nature of the offense; …

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

A.R.S. §32-1606(C) (Powers and duties of Board) provides:

At the onset of the hearing, the Board withdrew its allegation that Respondent had committed unprofessional conduct as defined in A.A.C. R4-19- 403(B)(29) (failure to report a conviction of a felony or undesignated offense).

CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent as Respondent holds a Practical Nursing License and a Nursing Assistant Certificate. 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. The Board has proven with competent and credible evidence that Respondent’s alcohol abuse and alcohol dependency constitutes conduct or practice that is, or might be, harmful or dangerous to the health of a patient or the public, and therefore constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(16)(d). 4. The Board has proven with competent and credible evidence that Respondent’s alcohol abuse and alcohol dependency constitute a pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected… which violates R4-19-403(B)(17), which constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(16)(j) (“Unprofessional conduct" includes violating a rule that is adopted by the board pursuant to this chapter.) 5. The Board has not proven with competent and credible evidence that Respondent’s alcohol abuse and dependency constitutes actual “practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed”, in violation of R4-19-403(B)(31). 6. The above violations proven by the Board are grounds for the imposition of disciplinary action pursuant to A.R.S. §§32-1606 and 32-1663. The evidence of record supports the discipline of Respondent described below in order to protect the public health, safety and welfare and rehabilitate the licensed person.

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the Board issue the following Order:

Respondent’s Practical Nursing License and Nursing Assistant Certificate[2] are suspended for a term of three (3) years from the effective date of the Board’s Order. The suspensions are stayed, however, pending successful completion of a 36 month probationary period, which shall include the following terms and conditions: 1. Respondent is to attend one AA meeting per week for 36 months. Respondent to submit proof of attendance and progress report letter from sponsor to Board every three months. 2. No later than six (6) months after the effective date of the Board’s Order, Respondent is to show proof of completion of a 16-week minimum Intensive Outpatient Alcohol Treatment Program which must include a minimum of 8 hours of group and/or individual instruction per week and includes recovery workshops and relapse prevention instruction.[3] 3. Respondent is to attend one psychological counseling session with a licensed psychologist per week for the first twelve months of probation. Counselor to provide quarterly progress and attendance reports to the Board. 4. Respondent is not to drink alcohol or take any drugs without a valid prescription. 5. While on probation, Respondent is prohibited from working in excess of 84 hours in any two-week period, is prohibited from working at night, and is prohibited from working with any temporary placement agency or in a home healthcare setting.

Disciplinary action, protection of the public health, safety and welfare, and encouraged rehabilitation, should be reasonably related to the evidence of past misconduct. While Respondent has had some minor attendance or other employer-employee issues in the past, the evidence does not suggest they are reasonably related to Respondent’s alcohol abuse or rise to the level where it should become necessary to involve the employer in the Board’s monitoring of Respondent. Thus, this Tribunal does not recommend involving the employer and requiring quarterly reports from the employer. Likewise, this Tribunal does not recommend the Board order Respondent to attend a 30 to 40 day inpatient alcohol treatment program. This Tribunal does find that Respondent has a significant problem with alcohol dependency and is in denial as to the fact that the dependency continues. Until this denial is broken through, no amount of treatment or therapy will be effective. Addressing denial takes time and intense clinical effort and usually requires the intensity and structure of the inpatient setting. There, separated from the individual activities of daily life, the availability of alcohol and the pressures of contributing factors, patients can be guided by staff, peers and role models into a therapeutic frame of mind conducive to recovery. However, imposition of such a program upon Respondent, as a condition of probation, would have a significant financial impact upon Respondent that Respondent appears not to be able to bear. That being said, however, this Tribunal suggests that if Respondent were to voluntarily attend and show proof of successful completion of an in-patient program of a duration of at least 30 days, and proof of a regularly scheduled aftercare program, the Board should consider shortening the probationary period to 18 months. Finally, while alcohol dependency is a chemical dependency, no evidence was presented to conclude that Respondent has, or will, resort to the use of any other chemical other than alcohol. Thus, this Tribunal does not feel periodic drug screening, as recommended by Ms. Twigg, is warranted.

IT IS SO RECOMMENDED. Done this day, August 5, 2008.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

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

By ___________________________ ----------------------- [1] The Board’s first exhibit was nothing more than the Notice of Hearing, and as such, was not relevant to the alleged facts and was not received into evidence. [2] A.R.S. §32-1663 (Disciplinary action) provides that the Board may do any of the following to a Certificate Holder: 1. Revoke or suspend the certificate; 2. Impose a civil penalty; 3. Accept the voluntary surrender of the certificate. This Tribunal does not hold that this statute prohibits staying the suspension conditioned upon successful completion of probation.

[3] A typical Intensive Outpatient Treatment Program is an effective option for those who have no acute medical problems, or whose chemical dependency patterns do not require the close supervision of day programs or inpatient programs. Case managers and counselors conduct recovery workshops and relapse prevention instruction and usually each client receives a minimum of 12 hours of group and individual instruction per week and attends interactive workshop experiences in a closed, group setting.

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