ALJDEC decisions subject to certification as final

06A-2742-PAB · Arizona Medical Board · 2007-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2007. The record closed on January 29, 2007 following receipt of the Reporter’s Transcript of Proceedings. APPEARANCES: Assistant Attorney General Emma Mamaluy represented the Arizona Regulatory Board of Physician Assistants. Respondent Denise Stassen did not appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this case is whether Respondent Denise Stassen, P.A.-C. has engaged in unprofessional conduct as defined in A.R.S. § 32-2501(21) and, if so, whether she is subject to disciplinary action pursuant to A.R.S. § 32-2551. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: FINDINGS OF FACT 1. Respondent Denise Stassen, P.A.-C. is the holder of License No. 2742 for the performance of health care tasks in the State of Arizona. 2. The Arizona Regulatory Board of Physician Assistants (the “Board”) is the duly constituted authority for licensing and regulating physician assistants in the State of Arizona. 3. In November 2006, the Board initiated an investigation after receiving a complaint regarding Ms. Stassen from her employer, Pueblo Family Physicians, Ltd. (“Pueblo”). The gravamen of the complaint was that Ms. Stassen had written

prescriptions for an individual (Ms. Stassen’s niece) who was not a patient of the practice. Pueblo indicated in its letter that it had terminated Ms. Stassen on September 21, 2006 based on this conduct. 4. Board Senior Compliance Officer Lorraine Brown, a member of the Board’s Physician Health Program, conducted the initial (and at this point confidential) review of Pueblo’s complaint. 5. On November 2, 2006, Ms. Brown spoke with Ms. Stassen on the telephone. During that conversation, Ms. Stassen acknowledged to Ms. Brown that she had written prescriptions for Hydrocodone (Vicodin), a Schedule III controlled substance, and Carisoprodol (Soma), a Schedule IV controlled substance, for her niece (“R.Q.” herein). Ms. Brown advised Ms. Stassen that in consequence of the complaint allegations, Ms. Stassen would be required to appear at the Board’s office on November 6, 2006 for a substance abuse assessment. 6. By letter dated November 2, 2006, Ms. Brown confirmed Ms. Stassen’s November 6, 2006 appointment at the Board’s office. See Exhibit 19. 7. Ms. Stassen did not appear for her assessment on November 6, 2006. In a telephone call with Ms. Brown that day, Ms. Stassen claimed that her car had been stolen and that she did not have transportation to the Board’s office. Ms. Brown then scheduled Ms. Stassen to appear the following day, November 7, 2006. 8. Ms. Stassen did not appear for her assessment on November 7, 2006. At approximately 4:30 p.m. that day, Ms. Stassen called Ms. Brown to advise that she would not be attending the assessment and that she was attempting to seek counsel. 9. In consequence of Ms. Stassen’s failure to appear, Ms. Brown referred Pueblo’s complaint to the Board’s investigative staff. 10. On November 8, 2006, Senior Medical Investigator Meghan Hinckley assumed responsibility for Ms. Stassen’s case. Ms. Hinckley spoke to Ms. Stassen that day and asked her to appear at the Board’s office the following day for an investigative interview. 11. Ms. Stassen did not appear for the investigative interview.

12. By letter dated November 9, 2006, Ms. Hinckley notified Ms. Stassen that the Board had opened an investigation into her prescribing practices. See Exhibit 3. Ms. Hinckley instructed Ms. Stassen to complete a narrative response and to provide that response to the Board not later than November 14, 2006. 13. As part of her investigation, Ms. Hinckley reviewed medical records for the individuals to whom Ms. Stassen had prescribed medications as well as pharmacy records. See Exhibits 10, 11, 12, 14, 15, and 16. 14. Ms. Hinckley’s investigation revealed the following: Patient: K.T. PA Stassen wrote a prescription for Hydrocodone/APAP #30 which was filled on 5/17/06 by patient K.T. Board staff located medical records for K.T. from Pueblo Family Physicians wherein she was examined by PA Querishi on 8/18/06. Ms. Honga, Office Manager of Pueblo Family Physicians, noted that K.T. is PA Stassen’s daughter.[1] It was noted that PA Stassen was employed by Caring For Women from 4/17/06 ( 7/25/06, but there were no medical records for patient K.T. wherein she was prescribed Hydrocodone.

Patient: H.C. PA Stassen wrote several prescriptions for H.C. from 5/21/06- 7/30/06. No medical records exist for this patient at Caring For Women, Ms. Stassen’s employer, during the time those prescriptions were filled.

Patient: R.Q. PA Stassen wrote several prescriptions for R.Q., her niece by her own admission, from 8/30/06 ( 9/12/06.[2] PA Stassen stated that her niece had been involved in an ATV accident and could not get in to see her PCP, therefore, she prescribed the medications for her. R.Q. was never a patient of Pueblo Family Physicians, where PA Stassen was employed, during the time that the prescriptions were filled.

Patient: A.R. Patient A.R. was examined on 5/26/06 for sinus pressure and a Depo-Provera injection. A.R. was again examined for a 3 month follow-up on 8/18/06, and a 1 month follow-up on 9/15/06. PA Stassen had never treated or examined this patient, but wrote a prescription for Myotussin Syrup #240mL which was filled on 9/12/06.[3]

15. As of November 13, 2006, the Board had decided to take summary action against Ms. Stassen’s license. By letter dated November 13, 2006, the Board advised Ms. Stassen that it would be considering her case at a Board meeting on November 15, 2006. See Exhibit 8. 16. By letter dated November 13, 2006, Ms. Hinckley provided Ms. Stassen with a copy of the Board’s investigative report and supporting documents, and advised Ms. Stassen that she would be given an opportunity to respond to the Board’s findings. 17. The specific allegations set forth in Ms. Hinckley’s November 13, 2006 letter were:

1. Failure to perform a history and physical on the following patients prior to prescribing controlled substances: K.T., H.C., R.Q., and A.R. 2. Prescribing controlled substances to family members. 3. Prescribing controlled substances in excess to various patients. 4. Failure to appear at the Board for interviews scheduled on November 6, 7, and 9, 2006.

18. On November 17, 2006, the Board issued Interim Findings of Fact and Conclusions of Law under which the Board concluded that Ms. Stassen had violated A.R.S. § 32-2501(21)(c) (performing health care tasks that have not been delegated by the supervising physician), 32- 2501(21)(i) (prescribing or dispensing controlled substances or prescription-only drugs for which the physician assistant is not approved or in excess of the amount authorized pursuant to this chapter), 32-2501(21)(j) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public), 32- 2501(21)(p) (failing or refusing to maintain adequate records on a

patient), 32-2501(21)(r) (prescribing or dispensing controlled substances to members of the physician assistant's immediate family), 32-2501(21)(s) (prescribing, dispensing or administering any controlled substance or prescription-only drug for other than accepted therapeutic purposes), 32- 2501(21)(x) (violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate a provision of this chapter), 32-2501(21)(z) (failing to furnish legally requested information to the board or its investigator in a timely manner), and 32-2501(21)(kk) (prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a professional relationship with the person). 19. The Board concluded that emergency action was required under A.R.S. § 32-2551(C), and ordered that Ms. Stassen’s license be summarily suspended. 20. On November 27, 2006, the Board issued a Notice of Hearing setting this matter for formal administrative hearing before the Office of Administrative Hearings, an independent state agency. The Board incorporated its Interim Findings of Fact, Conclusions of Law and Order by reference into the Notice of Hearing. 21. Ms. Stassen did not appear for hearing, nor did she advise the Office of Administrative Hearings of any reason that would establish good cause for her failure to appear. When Ms. Stassen continued in her failure to appear after the expiration of a fifteen minute grace period, the Administrative Law Judge convened the hearing and proceeded in Ms. Stassen’s absence. 22. Because Ms. Stassen did not appear at hearing, she did not offer any evidence to controvert or mitigate the evidence presented by the Board. CONCLUSIONS OF LAW 1. In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Ms. Stassen engaged in unprofessional conduct as defined in A.R.S. § 32-2501(21)(c), (i), (j), (p), (r), (s), (x), (z), and/or (kk), and that she is subject to disciplinary action pursuant to A.R.S. § 32-2551. See A.A.C. R2-19- 119.

2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes, based on the evidence presented, that the Board sustained its burden of proof as to Ms. Stassen’s alleged violations of A.R.S. § 32-2501(21)(c), (i), (j), (p), (r), (x), (z), and (kk), but did not sustain its burden of proof as to Ms. Stassen’s alleged violation of A.R.S. § 32-2501(21)(s). 4. Under A.R.S. § 32-2501(21)(c), a physician assistant engages in unprofessional conduct if the physician assistant performs health care tasks that have not been delegated by the supervising physician. 5. The evidence demonstrated that Ms. Stassen wrote prescriptions for individuals who were not, at the time the prescriptions were written, patients of the practice at which she was employed. Thus, by definition, such prescriptions could not have been tasks that were delegated to her by her supervising physician. Therefore, Ms. Stassen violated A.R.S. § 32-2501(21)(c). 6. Under A.R.S. § 32-2501(21)(i), a physician assistant engages in unprofessional conduct if the physician assistant prescribes or dispenses controlled substances or prescription-only drugs for which the physician assistant is not approved or in excess of the amount authorized pursuant to this chapter. 7. The evidence demonstrated that Ms. Stassen was not approved to write any of the prescriptions at issue in this matter and that she wrote excessive prescriptions for R.Q. Therefore, Ms. Stassen violated A.R.S. § 32-2501(21)(i). 8. Under A.R.S. § 32-2501(21)(j), a physician assistant engages in unprofessional conduct if the physician assistant engages in any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. 9. The issuance of a prescription by a physician assistant without the approval of her supervising physician and to an individual who is not a patient of the practice at which the physician assistant is employed constitutes conduct that is or

might be harmful or dangerous to the health of a patient or the public. Therefore, Ms. Stassen violated A.R.S. § 32-2501(21)(j). 10. Under A.R.S. § 32-2501(21)(p), a physician assistant engages in unprofessional conduct if the physician assistant fails or refuses to maintain adequate records on a patient. 11. The evidence demonstrated that Ms. Stassen could not have maintained records on K.T., H.C., R.Q., and A.R. in connection with the prescriptions at issue because such persons were not, at the time the prescriptions were written, patients of the practice at which Ms. Stassen was employed. Therefore, Ms. Stassen violated A.R.S. § 32- 2501(21)(p). 12. Under A.R.S. § 32-2501(21)(r), a physician assistant engages in unprofessional conduct if the physician assistant prescribes or dispenses controlled substances to members of the physician assistant's immediate family. A.R.S. § 32-2501(7) defines “immediate family” as including “the spouse, natural or adopted children, father, mother, brothers and sisters of the physician assistant.” 13. The evidence demonstrated that Ms. Stassen wrote a prescription for her daughter, K.T. Therefore, Ms. Stassen violated A.R.S. § 32- 2501(21)(r). 14. Under A.R.S. § 32-2501(21)(s), a physician assistant engages in unprofessional conduct if the physician assistant prescribes, dispenses or administers any controlled substance or prescription-only drug for other than accepted therapeutic purposes. 15. The evidence demonstrated that Ms. Stassen prescribed controlled substances to K.T., H.C., R.Q., and A.R. While logic and common sense may seem to dictate the conclusion that Ms. Stassen did not prescribe those drugs for a therapeutic purpose, there is no medical evidence of record to support this conclusion, and in the absence of such evidence, the Administrative Law Judge concludes that the Board did not meet its burden to prove that Ms. Stassen violated A.R.S. § 32- 2501(21)(s).

16. Under A.R.S. § 32-2501(21)(x), a physician assistant engages in unprofessional conduct if the physician assistant violates or attempts to violate, directly or indirectly, or assists in or abets the violation of or conspires to violate a provision of this chapter. In support of this allegation, the Board alleged that Ms. Stassen had violated A.R.S. § 32-2532(A), which provides as follows:

A. Except as provided in subsection F of this section (an exception not demonstrated by the evidence), a physician assistant shall not prescribe, dispense or administer:

1. A schedule II or schedule III controlled substance as defined in the federal controlled substances act of 1970 (P.L. 91-513; 84 Stat. 1242; 21 United States Code section 802) without delegation by the supervising physician, board approval and drug enforcement administration registration.

2. A schedule IV or schedule V controlled substance as defined in the federal controlled substances act of 1970 without drug enforcement administration registration and delegation by the supervising physician.

3. Prescription-only medication without delegation by the supervising physician

17. As set forth in Conclusion of Law No. 5, the issuance of the prescriptions in issue were not tasks that were delegated to Ms. Stassen by her supervising physician. Therefore, Ms. Stassen violated A.R.S. § 32-2501(21)(x). 18. Under A.R.S. § 32-2501(21)(z), a physician assistant engages in unprofessional conduct if the physician assistant fails to furnish legally requested information to the board or its investigator in a timely manner. 19. A.R.S. § 32-2551(B) authorizes the Board to conduct investigational interviews for the purposes of ascertaining the facts that pertain to a Board investigation (including substance abuse assessments). In the instant case, Board staff directed Ms. Stassen to appear on multiple occasions, and she failed to do so. By such failure to appear, Ms. Stassen failed to furnish the Board with legally requested information. Therefore, Ms. Stassen violated A.R.S. § 32-2501(21)(z).

20. Under A.R.S. § 32-2501(21)(kk), a physician assistant engages in unprofessional conduct if the physician assistant prescribes, dispenses or furnishes a prescription medication or a prescription- only device as defined in section 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a professional relationship with the person. 21. The record was devoid of any evidence that Ms. Stassen evaluated K.T., H.C., R.Q., or A.R. in a clinical setting; none were patients of Ms. Stassen. There is no evidence that Ms. Stassen conducted a physical examination of any of these individuals, or that she had a previously established professional relationship with any of them. Therefore, the Administrative Law Judge concludes that in writing the prescriptions in issue, Ms. Stassen violated A.R.S. § 32-2501(21)(kk). 22. A.R.S. § 32-2551(J) provides:

A physician assistant who after a formal hearing pursuant to Title 41, Chapter 6, Article 10 is found to be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely carry out the physician assistant's approved health care tasks, or any combination of these, is subject to censure, probation, suspension or revocation, or any combination of these, for a period of time or permanently and under conditions the board deems appropriate for the protection of the public health and safety.

23. Based on the foregoing statute, Ms. Stassen is subject to disciplinary action because she is found to have engaged in unprofessional conduct based on her violations of A.R.S. § 32- 2501(21)(c), (i), (j), (p), (r), (x), and (z). 24. The State requested that Ms. Stassen’s license be revoked. Based upon all of the evidence, the seriousness of Ms. Stassen’s violations, the fact that Ms. Stassen failed to cooperate with the Board, and the fact that Ms. Stassen failed to appear for hearing, the Administrative Law Judge concludes that revocation is the most appropriate remedy.

ORDER 1. The Board’s November 17, 2006 Order summarily suspending Ms. Stassen’s license to perform health care tasks in the State of Arizona is affirmed. 2. Commencing on the effective date of the Order entered in this matter, Ms. Stassen’s license to perform health care tasks in the State of Arizona (No. 2742) shall be revoked.

Done this day, February 15, 2007.

______________________________________ Daniel G. Martin Administrative Law Judge

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

Timothy C. Miller, Esq. Executive Director Arizona Medical Board 9545 E. Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________ ----------------------- [1] Further investigation by Ms. Hinckley confirmed that K.T. is Ms. Stassen’s daughter. [2] These prescriptions included Hydrocodone/APAP 7.5/750mg #40 on August 30, 2006, Hydrocodone/ APAP 7.5/750mg #30 on September 7, 2006, Vicodin ES #45 (Hydrocodone) on September 11, 2006, and Carisoprodol 350mg #45 (Soma) on September 12, 2006. Hydrocodone and Carisoprodol are controlled substances. [3] Myotussin contains codeine, a Schedule III controlled substance.

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