ALJDEC decisions subject to certification as final

07A-0704018-NUR · State Board of Nursing · 2008-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2008 APPEARANCES: Assistant Attorney General Amy Foster on behalf of the Arizona State Board of Nursing; Stella G. Brin on her own behalf. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. At all times relevant to this matter, Stella Brin (“Ms. Brin”) held a certified nursing assistant (“CNA”) certificate no. CNA [number redacted] issued by the Arizona State Board of Nursing (“Board”). 2. This matter involves two complaints that the Board received regarding the activities of Ms. Brin. FIRST COMPLAINT 3. Stephanie Nelson (“Ms. Nelson”), a nurse practice consultant for the Board who has 23 years of nursing experience, was assigned to investigate a complaint that Tanner Medical Staffing, LLC (“Tanner Medical Staffing”) filed against Ms. Brin for walking off a job during a double shift. 4. On April 6, 2007, while employed with Tanner Medical Staffing LLC, a registry that hires nurses, certified nursing assistants (“CNAs”) and other medically trained professionals to work at assigned locations, Ms. Brin was assigned to work a double shift at the Arizona State Veteran’s Home (“VA Home”). 5. A complaint dated April 7, 2007, filed by Barbara Young (“Ms. Young”), against Ms. Brin stated that Ms. Brin had walked off a double shift at the VA Home after being requested by staff at the VA Home to remain there, thus alleging that Ms. Brin abandoned her assignment at a unit within the VA Home. Ms. Young is a co-owner and partner of Tanner Medical Staffing. 6. Ms. Nelson relied upon the complaint filed by Ms. Young, which revealed, a patient had complained about Ms. Brin. Ms. Young’s written statement indicates that she received communication from the VA Home informing her that when a supervisor spoke to Ms. Brin about the situation, Ms. Brin inquired as to whether she was fired. According to the complaint, when the supervisor attempted to counsel Ms. Brin about the situation, Ms. Brin walked off the job. 7. Ms. Young’s complaint states that Ms. Young spoke to Ms. Brin once. During that conversation, according to the complaint, Ms. Brin informed Ms. Young that the VA Home had fired her, Ms. Young attempted to explain the difference between agency (registry) and permanent placement. Ms. Young informed Ms. Brin that the VA Home could cancel her but not fire her. According to Ms. Young, Ms. Brin started yelling at Ms. Young and hung up on her. A subsequent attempt to contact Ms. Brin by telephone was unsuccessful and Ms. Young received her voice mail. 8. In her complaint, Ms. Young expressed that Ms. Brin was “verbally abusive and unprofessional in her conduct.” Exhibit 11 at 2. According to Ms. Stevens’ interview notes, Ms. Young accepted that when Ms. Brin hung up on the telephone call, she viewed that as a voluntary resignation. Additionally, Ms. Young expressed in her complaint that when Ms. Brin walked off the job, she felt that Ms. Brin voluntarily resigned. 9. That opinion was reiterated by Christine Schereck (“Ms. Schereck”), a co-owner and partner of Tanner Medical Staffing, who also expressed her opinion that when Ms. Brin walked of the job she resigned her employment with Tanner Medical Staffing. 10. It is noted that Ms. Schereck did not have first hand knowledge of the events because Ms. Schereck did not discuss the situation with the VA Home nor did she communicate with Ms. Brin about the situation. Ms. Schereck was aware of the situation through communication she has had with Ms. Young and her testimony is therefore considered unreliable hearsay because it does not add any additional information that can be considered reliable. Consequently, Ms. Schereck’s testimony is discounted. Ms. Schereck testified that Ms. Brin is not subject to being rehired at Tanner Medical Staffing. 11. Ms. Stevens testified that she provided Ms. Brin with documentation she received during the investigation of the complaint. She also provided Ms. Brin an opportunity to provide a written response and interviewed her. 12. According to Ms. Stevens, Ms. Brin’s response was confusing, and provided a lot of information that was outside the scope of the complaint at issue. Ms. Stevens testified that she did not understand Ms. Brin’s written response. However, after interviewing Ms. Brin, Ms. Stevens understood that Ms. Brin was under the impression that the VA Home had fired her. It was established that an assigned facility cannot fire a CNA sent by a registry. During the hearing, credible evidence was presented to distinguish between being removed from an assignment by the assigned facility and being fired by the registry. 13. Ms. Stevens testified that she prepared an investigative report that was ultimately presented to the Board for their consideration. 14. Ms. Stevens testified that Ms. Brin acted unprofessionally and in violation of the scope of practice for a CNA when she walked off her job at the VA Home and left her patients unattended, which exposed them to serious risk of harm. 15. Ms. Brin testified that during the time when the conduct allegedly occurred at the VA Home, the VA Home was in the news and was dealing with a number of issues. 16. Ms. Brin also testified that the complaining patient had an issue with the VA Home using a registry for assignments at the VA Home. Ms. Brin testified that the issue that arose between her and the patient had to do with a call light that had been on without being attended to for an extended period of time. 17. According to Ms. Brin, a supervisor approached her and asked her to accompany her to a private room. During that meeting, the supervisor asked if Ms. Brin wanted to leave and then explained that the VA Home had to fire her. Ms. Brin testified that she wanted to work the double shift because she could use the money. 18. Ms. Brin’s testimony is determined to be credible and more reliable than hearsay testimony presented by the Board through the testimony of Ms. Stevens and Ms. Schereck as to Ms. Young’s knowledge and involvement in this matter. Further, the Board relied upon hearsay written documentation that was not supported by the testimony of witnesses who had firsthand knowledge of the events. SECOND COMPLAINT 19. During the pendency of the Board’s investigation of the first complaint, the Board received a complaint that Professional Nursing Staffing (“PNS”) filed against Ms. Brin for giving a resident salt water to gargle with when the patient had swallowing difficulties. 20. At all times relevant to the second complaint, Ms. Brin worked at PNS, a registry that placed CNAs and other medical professionals on various assignments. 21. The second complaint involves an assignment Ms. Brin received from PNS to provide CNA services to a patient J.M. 22. Ms. Stevens testified that when she received the second complaint, because the first complaint was ending, she expedited the matters to go before the Board. The Board considered the first and second complaints against Ms. Brin at a Board a meeting. Although the record does not disclose the outcome of that meeting, the matter was not resolved, and subsequently the Board issued a Complaint and Notice of Hearing which set this matter before the Office of Administrative Hearings, an independent state agency. 23. The second complaint was filed by Sherri Clarke, Branch Manager of PNS, who stated that she did not have first hand knowledge of the complaint. 24. The complaint alleged that on May 24, 2007, Ms. Brin gave J.M. salt water to gargle without having been given autonomy by the speech therapist providing services to J.M. 25. During her investigation of the second complaint, Ms. Stevens relied on documentation provided by Gary Glass (“Mr. Glass”) an account manager at PNS, and written statements of D.M., J.M.’s wife. Mr. Glass’ statement contained information that D.M. complained to PNS that Ms. Brin insisted on doing things her way. D.M. wrote that Ms. Brin informed her that J.M. was gargling with salt water and that Ms. Brin would not listen to her which caused her on May 18, 2007, to ask Ms. Brin to leave stating that her services were no longer needed. 26. Although Ms. Stevens’ testimony regarding the second complaint was based on documents that she received from Mr. Glass, she acknowledged that she does not know if Mr. Glass actually signed the documents she relied upon and has no way of recognizing Mr. Glass’ signature. 27. In contrast, Ms. Brin asserted that she knows Mr. Glass’ signature and that the documents that were purportedly signed by Mr. Glass did not contain his signature. 28. Ms. Brin testified that she was unaware as to the scope of services for which she was hired with respect to J.M. and believed that she was hired as a “sitter”. 29. Ms. Brin also testified that J.M. had thrush and was provided medication to be given to his tongue. Ms. Brin acknowledged that she suggested that J.M. use salt water to reduce the swelling but qualified the suggestion by stating that D.M. and J.M. should seek approval from J.M.’s doctor. 30. Ms. Brin, D.M., and J.M. visited with a person whom Ms. Brin believed was J.M.’s treating physician. She believed that because according to Ms. Brin, D.M. had arranged to see the doctor for a check up. Ms. Brin testified that she subsequently learned that the person who she thought was J.M.'s doctor was a nurse practitioner. However, at the time of the visit, when she believed that person to be J. M.’s treating physician, she inquired whether it would be beneficial for J.M. to use salt water or if it would be harmful. Ms. Brin testified that the person stated it might be beneficial and would not be harmful. 31. Ms. Stevens testified that J.M. had doctor’s orders not to have anything by mouth and there was nothing in J .M.’s medical records showing that any doctor approved J.M.’s use of salt water. 32. Ms. Brin testified that D.M. obtained the toothbrush, glass and salt and that J.M. put the salt in the glass of water and proceeded to use the toothbrush with D.M. and Ms. Brin observing. Consequently, Ms. Brin testified that she did nothing improper because she did not use the salt water and did not obtain the salt water, glass or toothbrush. 33. In contrast to Ms. Brin’s testimony, the Board relied upon the written statements of D.M. and Mr. Glass to support the position that Ms. Brin had used salt water on J.M. without doctor’s orders. One of the documents is a response that Ms. Brin submitted to PNS about the incident. In the response, Ms. Brin stated that “I use salt, water, and a toothbrush to scrape the tongue downward, and sideways. We also do the roof of the mouth, and we gargle with a sound and swish. This will kill, and remove the bacteria, hydrate the mouth, promote swallowing, and bring up sputum. We follow with a sip of water and a swallow.” Exhibit 7 at 21. 34. It is undisputed that Ms. Brin informed Ms. Stevens during her interview that she, D.M. and J.M. went to the doctor. However, Ms. Stevens testified that it is unclear whether Ms. Brin ever informed Ms. Stevens that the issue of use of salt water was discussed during that doctor visit. Further, there was corroborating written documentation that shows that the doctor never authorized the use of salt water. 35. Ms. Stevens testified that a CNA is to follow orders from a doctor and from a supervising nurse. 36. The Board relied on hearsay statements made by D.M. and Mr. Glass and Ms. Brin’s letter to PNS explaining the situation. Although Ms. Brin argued that the copy of the response letter had been altered, she referred to some missing information at the top of the letter and did not dispute that she informed PNS in the letter that she had used salt water, had J.M. gargle, and had given him a sip of water. Consequently, Ms. Brin's prior written statement contradicts her testimony with respect to what transpired regarding the use of salt water and J.M. However, regardless of the prior statement acknowledging that Ms. Brin had J.M. gargle with salt water and take a sip of water, even by Ms. Brin’s version of the event, she admitted that she suggested the use of salt water. Even though the suggestion was qualified by the patient seeking a doctor’s permission, it is determined that even making such a suggestion is outside the scope of practice of a CNA. 37. Ms. Stevens testified that for a CNA to be monitored the CNA has to acknowledge that the wrongful conduct and cooperate and be agreeable to take action to correct such conduct. 38. Ms. Brin asserted that she has been trained as a CNA and been a CNA for about 30 years and does not need any additional training. Thus Ms. Brin has shown that she is not amenable for additional training, though she acknowledges that she needs her CNA certification to obtain gainful employment. 39. Although the Board requested that Ms. Brin’s CNA certification be revoked, that request appeared to be based upon the determination that Ms. Brin had walked off her job as well as having given salt water to a patient. Because the Administrative Law Judge concludes that the weight of the evidence does not establish that Ms. Brin walked off her job, the Administrative Law Judge concludes the appropriate discipline is to suspend Ms. Brin's CNA certification and condition the lifting of the suspension on Ms. Brin undergoing CNA training and upon successful completion of such training, have certain conditions imposed on her CNA certificate as set forth below.. CONCLUSIONS OF LAW 1. The Board is authorized to regulate and control the practice of nursing in the State of Arizona and can impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to 32-1667. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), and A.A.C. R2-19-119(A ), the Board has the burden of proof in this matter and the standard of proof on all issues is by a preponderance of the evidence. 3. A preponderance of the evidence is “evidence of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 4. The conduct of Ms. Brin as set forth in paragraphs 1-18 of the above Findings of Fact do not constitute violations of A.R.S. § 32-1663(E) (unprofessional conduct constitutes grounds for disciplinary action) by engaging in unprofessional conduct as set forth in 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) and (16)(j) (violating a rule that was adopted by the Board, specifically A.A.C. R4-19-813(B) (a nursing assistant may not perform any task that requires a judgment based on nursing knowledge, such as the administration of medications), or A.A.C. R4-19- 814(B)(3) (leaving an assignment or abandoning a patient or resident who requires care without properly notifying the immediate supervisor), or A.A.C. R4-19-814(B)(15) (accepting patient or resident care tasks that the nursing assistant lacks the education or competence to perform), or A.A.C. R4-19-814(B) (29) (practicing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed). 5. Ms. Brin’s conduct, as set forth in paragraphs 19-39 of the above Findings of Fact, establish that Ms. Brin violated A.R.S. §1663(E) (unprofessional conduct constitutes grounds for disciplinary action) by engaging in unprofessional conduct as set forth in 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) and (16)(j) (violating a rule that was adopted by the Board, specifically A.A.C. R4-19-813(B) (a nursing assistant may not perform any task that requires a judgment based on nursing knowledge, such as the administration of medications) and A.A.C. R4-29-824(B)(29) (practicing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed). 6. The above described statutory and regulatory violations are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. 7. Ms. Brin asserted that she has been trained as a CNA and been a CNA for about 30 years and does not need any additional training. Ms. Brin was not receptive to the idea of having to undergo additional training. 8. Under the circumstances, the Administrative Law Judge believes Ms. Brin should undergo re-training. The Board’s request that Ms. Brin’s CNA certificate be revoked appears to have been based upon the determination that Ms. Brin had walked off her job as well as having given salt water to a patient for gargling. However, because the Administrative Law Judge concludes that the weight of the evidence does not establish that Ms. Brin walked off her job, the Administrative Law Judge concludes the appropriate discipline is to provisionally revoke Ms. Brin's CNA certificate.

ORDER Based on the above, on the effective date of the Order entered in this matter, Ms. Brin’s CNA certificate shall be revoked. The revocation of Ms. Brin's CNA certificate is stayed, and, instead, her CNA certificate is suspended for an indefinite period of time in order for Ms. Brin to comply with the following conditions: a) Ms. Brin shall successfully complete a CNA training course within months from the effective date of the Order entered in this matter. If Ms. Brin does not provide to the Board written proof that she has successfully completed the CNA training by that deadline, Ms. Brin’s CNA certificate shall be immediately revoked. b) If Ms. Brin provides written proof to the Board that she has successfully completed the CNA training by the above-mentioned deadline, then, and in that event, the revocation of Ms. Brin’s certificate shall be stayed for 24 months provided Ms. Brin: 1) Notifies the Board of her practice settings; 2) Be directly supervised; 3) Has quarterly reports filed with the Board by her employer; 4) Not be involved in home health work; 5) Not work more than 84 hours every two weeks; 6) Renew her certificate; 7) Sign a release of information to the Board upon the Board’s request; 8) Submit to an interview by the Board upon the Board’s request; 9) Notify the Board of any change of employment, address or telephone number within 7 calendar days of such change; 10) Obey all laws excluding those pertaining to minor traffic violations, 11) Bear all costs of compliance with the Order entered in this matter; and 12) May voluntarily surrender her CNA certificate to the Board at any time; c) A violation of the Order entered in this matter shall constitute grounds for revocation of Ms. Brin’s CNA certificate. Done this day, October 21, 2008.

______________________________________ Lewis D. Kowal 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 ___________________________

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