ALJDEC decisions subject to certification as final

08A-0611123-NUR · State Board of Nursing · 2010-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2010 at 8:00 a.m. APPEARANCES: The Arizona State Board of Nursing appeared through Elizabeth Campbell, Esq., Assistant Attorney General; Respondent Aifang Shi did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona State Board of Nursing (“the Board”) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 1663, and 1664. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667. 2. Respondent Aifang Shi holds Board-issued Certified Nursing Assistant (“CNA”) Certificate No. CNA1000005894 in the State of Arizona. 3. On November 28, 2007, the Board received a complaint from Respondent against the nursing program at Central Arizona College (“CAC”) regarding faculty members’ treatment of her during her enrollment and other matters. 4. The Board assigned Respondent’s complaint to Associate Director of Education and Evidence Based Regulation, Pamela K. Randolph, R.N., M.S., for investigation. During the course of Ms. Randolph’s investigation, she learned that CAC had dismissed Respondent from the nursing program in her final semester for violating CAC policy during a clinical class by allegedly performing an unsupervised intravenous (“IV”) flush on a nine-day-old child who was not assigned to her care. Because the alleged conduct that led CAC to dismiss Respondent from the nursing program may have violated the Nurse Practice Act, Ms. Randolph initiated a complaint against Respondent to the Board. 5. Ms. Randolph’s complaint was assigned to the Board’s nurse practice consultant, Betty Nelson, R.N., for investigation. Ms. Nelson gathered documents, interviewed Respondent and witnesses at CAC, including Associate Dean of Nursing, Ruth Carlson, R.N., M.S., Associate Dean of Students, Mary Menchaca, Professor Jon Marc Stevens, R.N., M.S., and Professor Michael Hughes, R.N., M.S., and submitted a written Investigative Report to the Board. 6. On September 23, 2010, the Board issued a Complaint and Notice of Hearing, setting an evidentiary hearing on October 29, 2010, in the Office of Administrative Hearings, an independent agency. The Board sent the Complaint and Notice of Hearing to Respondent at her address of record in California. 7. The Complaint and Notice of Hearing alleged that cause existed to discipline Respondent’s CNA certificate under A.R.S. §§ 32-1663(D), 32-1664(N), 32-1601(16)(d) (as further defined by A.A.C. R4-19-814(15), (21), (25), and (29)), and A.R.S. § 32-1606(16)(h) and 32-1601(16)(j). 8. A hearing was held on October 29, 2010. The Board presented the testimony of two witnesses: (1) Ms. Nelson, the nurse practice consultant who investigated the complaint against Respondent; and (2) Professor Stevens, who was Respondent’s instructor at CAC when she allegedly administered the IV flush to the nine-day-old child. The Board submitted eight exhibits. 9. At 4:31 p.m. on October 28, 2010, the day before the scheduled hearing, Respondent submitted a document entitled Respondent’s Rebuttal to Arizona State Board of Nursing [sic] Illegal Conduct (“Rebuttal”), in which she made certain factual allegations that are addressed below. Respondent stated in her Rebuttal that “[b]ecause respondent is very sick all these days, she cannot appear in person at this administrative hearing of 10/29/2010.” 10. Although the beginning of the hearing was delayed fifteen minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to request to appear telephonically or to continue the hearing. Respondent did not present any evidence to defend her CNA certificate. Hearing Evidence The Board’s Complaint against Respondent 11. On August 8, 2005, Respondent signed an Enrollment Agreement at CAC to enroll in its nursing program, certifying that she had received and studied the student handbook and that she agreed to comply with all of its policies while she was enrolled in nursing courses. 12. Respondent satisfactorily completed her first year of the nursing program at CAC. 13. Before Respondent and her class started any clinical courses involving pediatric patients, Associate Dean Carlson gave the class an hour-long lecture. Associate Dean Carlson stressed that because pediatric patients are especially vulnerable, student nurses should not administer any medication or perform any procedures on a pediatric patient except under the direct supervision of an instructor, and that CAC does not allow students even to be present in a pediatric patient’s room without an instructor. 14. Professor Hughes was one of Respondent’s professors for clinical classes at CAC. On November 9, 2006, Professor Hughes referred Respondent to the clinical coordinator to complete retraining on starting an IV after Respondent had been unsuccessful in attempting to start an IV on two different patients in his clinical class. 15. On November 16, 2006, Respondent was scheduled to participate in Professor Stevens’ clinical course at CAC involving pediatric patients at Phoenix Children’s Hospital (“PCH”). In the morning, Professor Stevens told Respondent that she needed to go back to campus to work on IV procedures to resolve the problems that she had in Professor Hughes’ class. 16. Respondent later returned to the class without completing retraining on IV procedure. 17. CAC students are allowed to select the patients to whom they will provide care during a clinical course, and Respondent selected a 12-year-old patient with cystic fibrosis for Professor Stevens’ November 16, 2006 clinical course. When Professor Stevens asked Respondent about the patient throughout the day, she said that the patient had no problems that required her care. 18. At approximately 4:20 p.m. on November 16, 2006, Professor Stevens instructed his class to gather their books and belongings and go to the conference room for a post-clinic discussion. Professor Stevens then left the patient ward to meet his students in the conference room. 19. Respondent arrived at the conference room 10 or 15 minutes after the other students in the class. When Respondent arrived late for the post-clinic discussion, Professor Stevens asked where she had been. Respondent stated that she heard an IV start beeping, and remained on the ward to flush the IV of a nine-day-old child. 20. Professor Stevens and the other students in the class were shocked and alarmed by Respondent’s statement. Professor Stevens told Respondent that her performance of the flush was inappropriate because she had not been assigned to care for the patient, she was unsupervised, and the flush was outside the scope of a second-year student’s practice. 21. Professor Stevens testified that Respondent “put the child in a bad place” because a poorly performed IV flush can cause phlebitis, embolism, or brain bleed. Professor Stevens explained that at PCH, IV flushes are not preloaded, and he did not know who had loaded the flush that Respondent performed, but if it had been the wrong medication, Respondent could have killed the child. 22. Professor Stevens later completed a Nursing Program Variance Report to CAC about the incident involving Respondent’s performance of the IV flush and shared his concern with Associate Dean Carlson. 23. On November 27, 2006, Associate Dean Carlson, Associate Dean Menchaca, Professor Hughes, and Professor Stevens met with Respondent to discuss her performance issues. 24. Like Respondent, Associate Dean Menchaca did not speak English as her first language, and before November 27, 2006, had advocated for Respondent. At the meeting, Associate Dean Menchaca looked Respondent in the eye and asked if she had flushed the nine-day-old child’s IV. Respondent stated loudly that she had flushed the IV. 25. At the end of the November 27, 2006 meeting, Associate Dean Carlson told Respondent that she had committed a serious violation of CAC policy and could not continue in the nursing program. 26. Respondent later denied telling Professor Stevens on November 16, 2006, or admitting to the other faculty members on November 27, 2006, that she had flushed the child’s IV. In December 2006, five of Respondent’s former classmates in Professor Stevens’ pediatric clinical course submitted unsolicited letters to CAC, stating that they had heard Respondent on November 16, 2006, tell Professor Stevens that she was late for the post-clinic conference because she had stayed to flush the child’s IV. 27. On December 11, 2006, Associate Dean Carlson sent a letter to Respondent, confirming her termination from the CAC Nursing Program due to her violations of the policies set forth in the student handbook, as follows: Pg. 20, IV Academic Policies – Safety: A student may be removed from a clinical experience for unsafe clinical practice as determined by the clinical faculty. Consequences of such action may be grounds for failure of the course.

Pg. 26, K 2 You will be dismissed from the program if: The nursing faculty decides that your continued enrollment in the Nursing Program constitutes a risk to the safety and well being of health care clients. Usually this dismissal occurs because of unsatisfactory performance in the clinical setting . . . .

Pg. 31, P, Medication Administration. All second year students are directly supervised and observed by the instructor when administering all IV flushes, medications, pushes, and monitoring blood administration. All students will be directly supervised by the clinical instructor when giving medications to pediatric clients.

(Emphases in original.) 28. Ms. Nelson testified that an IV flush is usually performed by a registered nurse or in some cases by a licensed professional nurse. An IV flush is beyond the scope of a CNA’s practice. Ms. Nelson testified that Respondent’s performance of an IV flush also violated PCH policy. Respondent’s Complaint against CAC 29. As noted above, on November 28, 2006, the day after CAC terminated Respondent from the nursing program, the Board received Complainant’s complaint against CAC. Respondent alleged that CAC faculty members had treated her “like an animal,” that Professor Stevens had fabricated the story about her flushing the nine-day-old child’s IV at PCH, that CAC had allowed another student, M.B., to remain in the PCH clinical course after he tested positive for drugs, and that Professor Stevens was a poor instructor. 30. The Board obtained from CAC the drug test result for M.B.’s specimen that had been collected on October 19, 2006. The reported result was negative for all substances. 31. Respondent attached to her Rebuttal a copy of a purported Medication Administration Summary (“MAR”) for the nine-day- old child that did not show any IV flush on November 16, 2006. Ms. Nelson testified that she did not give the purported MAR any weight for two reasons: (1) Since Respondent had not been assigned to care for the child, the child’s name was unknown; and (2) Nurses at PCH do not record IV flushes on the MAR. 32. Respondent also attached to her Rebuttal a copy of a letter from Shila José, R.N. dated November 28, 2006, stating that she was working with Respondent at PCH on November 16, 2006, and did not allow Respondent to perform any procedures. 33. Professor Stevens testified that two days after the November 16, 2006 incident, he saw Respondent get off the elevator at PCH with another individual and saw Ms. José crying. When Professor Stevens asked why, Ms. José said that the person who accompanied Respondent was her landlord and that if she did not write a letter exonerating Respondent, she would be evicted. 34. On April 3, 2007, Ms. Randolph and the Board’s executive director sent a letter to CAC, informing it that on March 27, 2007, the Board had reviewed Respondent’s complaint and Ms. Randolph’s investigation and had voted to dismiss the complaint. 35. Respondent’s Rebuttal also alleged that Assistant Dean Carlson had made the complaint to the Board against Respondent. Respondent argued that Assistant Dean Carlson had not made complaints to the Board against students who were dismissed from the CAC nursing program for similar misconduct, but who were not Chinese. Respondent argued that Assistant Dean Carlson’s alleged complaint was based on racial bias. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(A)(8). 2. The Complaint and Notice of Hearing that the Board mailed to Respondent at her address of record was reasonable, and it appears that she actually received notice of the hearing.[1] 3. The Board bears the burden of proof and must establish cause to discipline Respondent’s CNA certificate by a preponderance of the evidence.[2] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[4] 5. The issue in this matter is whether Respondent violated the Nurse Practice Act and whether her violations require the Board to impose discipline on her CNA certificate, not whether any of Respondent’s former classmates at CAC may have committed similar misconduct. As noted above, neither Assistant Dean Carlson nor anyone else at CAC filed a complaint to the Board against Respondent. Instead, the Board itself initiated the investigation after Ms. Randolph discovered Respondent’s potential violations of the Nurse Practice Act during her investigation of Respondent’s complaint against CAC. 6. The Board established that on November 16, 2006, while Respondent was taking a clinical class at CAC in a pediatric ward at PCH, she performed an unsupervised IV flush on a nine- day-old child who was not assigned to her care. Professor Stevens’ hearing testimony that Respondent admitted performing the IV flush was consistent, credible, and supported by the accounts of Assistant Dean Carlson, Assistant Dean Menchaca, Professor Hughes, and Respondent’s five former classmates. 7. The Board also established that Respondent’s performance of the IV flush violated CAC policies and PCH policies, was beyond the scope of practice for a CNA or a second-year nursing student at CAC, and potentially could have resulted in severe harm or death to the nine-day-old patient. 8. Therefore, the Board has established that Respondent committed unprofessional conduct as defined by A.R.S. §§ 32- 1601(16)(d) and 1601(16)(j) (effective May 9, 2002).[5] The Board also established that Respondent’s performance of the IV flush was or might be harmful to the nine-day-old patient in the manner further described in A.A.C. R4-19-814(15), (21), and (29) (effective December 5, 2005).[6] 9. The Board also established that Respondent committed an act of unprofessional conduct as defined by A.R.S. § 32- 1601(16)(d), and further defined by A.A.C. R4-19-814(25),[7] and A.R.S. § 32-1601(16)(h)[8] when she made a false complaint to the Board that CAC had allowed M.B. to participate in the clinic at PCH after M.B. had failed a drug test. 10. Therefore, the Board established cause to revoke, suspend, or otherwise discipline Respondent’s CNA certificate under A.R.S. §§ 32-1663(D)[9] and 1664(N).[10] Respondent’s failure to attend the hearing or to take responsibility for the unprofessional conduct that the Board established at hearing indicates that at this time she cannot be regulated. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke CNA Certificate No. CNA1000005894 previously issued to Respondent Aifang Shi. Done this day, November 15, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, R.N., M.N., Executive Director State Board of Nursing ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1120 (8th ed. 2004). [5] These statutory subsections define “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public” and “[v]iolating a rule that is adopted by the board pursuant to this chapter.” [6] This rule sets forth the standard of conduct for CNAs and further defines “a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public” under A.R.S. § 32-1601(16)(d) to include the following:

15. Accepting patient or resident care tasks that the nursing assistant lacks the education or competence to perform; . . . .

21. Threatening, harassing, or exploiting an individual; [and] . . . .

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.

[7] This rule further defines “a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public” under A.R.S. § 32-1601(16)(d) to include “[m]aking a written false or inaccurate statement to the Board or the Board’s designee during the course of an investigation.” [8] This statutory subsection defines “unprofessional conduct” to include “[c]ommitting an act that deceives, defrauds or harms the public.” [9] This statute provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. [10] This statute provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

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