ALJDEC decisions subject to certification as final

09A-1843-PAB · Arizona Medical Board · 2009-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2009 APPEARANCES: Assistant Attorney General Anne Froedge appeared on behalf of the Arizona Regulatory Board of Physician Assistants; William J. LiPuma did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. At all times material to this matter, William LiPuma (Respondent) was the and currently is the holder of license number 1843 for the practice of health care tasks by physicians’ assistants in the State of Arizona (License). The License was issued by the Arizona regulatory Board of Physician Assistants (Board). 2. Since July 2008, Respondent was enrolled with the Board’s Monitored After Care Program (MAP) for opiate dependence. 3. The Board received a confidential report that Respondent had been involved in a car accident and that police discovered the presence of methamphetamines and drug paraphernalia. 4. After receipt of the above-mentioned accident, the Board opened an investigation of Respondent on November 12, 2008. The Board learned during the investigation that Respondent had been involved in a car accident on November 7, 2008.

5. The Board received a copy of the Bullhead City Police Department Report concerning the accident and learned that Respondent had ran a stop sign at an intersection and that another vehicle containing four passengers, including two children, had a collision with Respondent’s vehicle. Although both vehicles were totaled, no one was seriously injured. 6. The Bullhead Police reported finding two bags of methamphetamine Respondent’s car, a scale containing drug residue that later was confirmed to be methamphetamine, two empty baggies, a straw, and two boxes of synthetic urine. The Bullhead Police arrested Respondent at the scene of the accident after a brief struggle. Respondent did not want to be evaluated at a hospital and the police delivered him to the hospital emergency room after another struggle with the police. 7. When enrolled in MAP, Respondent executed a Consent Agreement with the Board that required him to “appear and submit to specimen collection not later than two hours after telephonic notice to appear is given.” Exhibit 21 at 3. 8. Kathleen Muller (Ms. Muller), employed by the Board, contacted Respondent on November 12, 2008, at a 24 hour telephone contact number Respondent provided to the Board, requiring him to appear to submit to a specimen collection. Respondent failed to appear within the requisite two hour prior after such notification. 9. On November 12, 2008, Ms. Muller sent an email to Respondent notifying him that an investigation was opened regarding the November 2008 accident concerning substance abuse asking for a responsive narrative regarding the accident and the presence of amphetamines and drug paraphernalia found in his vehicle. 10. On November 12, 2008, Ms. Muller sent an email to Respondent with a Board Order requiring him to appear for an investigational interview to take place at the Board’s offices on November 14, 2008 at 10:15 a.m. 11. On November 13, 2008, Ms. Muller contacted Respondent about receipt of the November 12, 2008 emails and inquired as to whether Respondent provided a drug screen. Respondent informed Ms. Muller that he did not receive the voice message left on his contact number that he provided to the Board. Respondent was advised to go immediately and provide a drug sample for drug screening. 12. Respondent provided a drug sample; the results of the drug screen came back negative for the drugs that were screened for at the request of the Board. Just before the November 14, 2008 interview, Respondent contacted the Board and informed it that he would be unable to appear for the interview due to a medical condition. Subsequently, Respondent provided the Board with a letter from his treating physician explaining his inability to appear for the interview. 13. The investigative interview was rescheduled and Respondent appeared for the investigative interview on November 21, 2008. Present at the interview were Respondent, Ms. Muller, and David Greenberg, who is an addiction medicine specialist consultant contracted with the Board. During the interview, he claimed that the methamphetamine, scale, and synthetic urine did not belong to him and he had no idea how they were placed in his vehicle. 14. Respondent was ordered to undergo urine and hair testing. The urinalysis came back negative even though Respondent listed certain drugs he had taken within 7 days of the drug test. The hair test came back positive for cocaine. Based on the interview, a review of the investigative file, Dr. Michael Sucher (Dr. Sucher), an addiction medicine specialist contracted with the Board as a consultant, concluded that it was not safe for Respondent to perform health care tasks as a physician assistant. 15. The Board ordered Respondent to undergo a residential evaluation at a Board approved facility within 14 days of the effective date of the Board Order and Respondent was required to comply with any recommendations made by the evaluating facility as approved by the Board. The Board provided Respondent with a list of Board approved facilities. 16. To date, Respondent has not complied with the Board Order and has not undergone evaluation treatment in a Board approved facility within 14 days of the effective date of the above-mentioned Board Order. 17. Dr. Sucher testified concerns he has about Respondent’s ability to be safe while licensed as a physician’s assistant. According to Dr. Sucher, there is no legitimate use for synthetic urine and its only use would be to affect a urinalysis by either substitution of a sample or dilution of a sample. 18. Dr. Sucher was concerned that after the accident, Respondent was prescribed and took his drug of choice, Vicodin. 19. Respondent did not notify the Board of the accident, the criminal charges or conviction and did not initiate on his own a drug test after the accident even though methamphetamine and drug paraphernalia were found in his vehicle immediately after the accident. 20. With respect to the drug test that occurred on November 21, 2008, Respondent listed having taken certain medications, none of which showed up in the results as positive, though Dr. Sucher testified that based on the information provided to the Board as to the recent drug usage, he would have expected those drugs to be reflected as being present in the drug test. That fact, along with the positive hair test taken on the same date, the results having showed the presence of cocaine, led Dr. Sucher to question whether the drug specimen obtained from Respondent was his urine rather than synthetic urine. Dr. Sucher also noted that there were no records or information presented that showed Respondent had been prescribed cocaine. 21. Dr. Sucher testified that a professional who is a habitual substance abuser, such as Respondent, will go to great lengths to alter a drug test for career purposes. Upon review of all of the information, including missing the called upon drug test until the following day, and Respondent’s failure to above by Board Orders, Dr. Sucher expressed his belief that Respondent is not safe to perform health tasks as a physician assistant. 22. The Board found as a fact in its Interim Findings of Fact, Conclusions of Law and Order for Summary Suspension of License issued on November 25, 2008 that the agreement Respondent entered into with the Board required him to notify the Board immediately of any change in his supervising physician. The Board found that one of Respondent’s supervising physician suspended supervision of Respondent after the accident and Respondent did not notify the Board of the change of supervision, as required by the Consent Agreement. 23. Respondent failed to present any evidence to refute or rebut the evidence presented by the Department as set forth above.

CONCLUSIONS OF LAW 1. The Board has jurisdiction over this matter. See A.R.S. § 32-2504. 2. Respondent engaged in unprofessional conduct as set forth in A.R.S. § 32-2501(21)(d). That provision defines unprofessional conduct as "[h]abitual intemperance in the use of alcohol or habitual substance abuse”. 3. Respondent engaged in unprofessional conduct as set forth in A.R.S. § 32-2501(21)(q) That provision defines unprofessional conduct as “[using controlled substances that have not been prescribed by a physician, physician assistant, dentist or nurse practitioner for use during a prescribed course of treatment”. 4. Respondent engaged in unprofessional conduct as set forth in A.R.S. § 32-2501(21)(u). That provision defines unprofessional conduct as “Committing of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission”. 5. Respondent engaged in unprofessional conduct as set forth in A.R.S. § 32-2501(21)(z) by failing to “furnish legally request information to the board or its investigator in a timely manner”. 6. Respondent’s conduct and the circumstances as set forth above constitute unprofessional conduct as set forth in A.R.S. § 32-2501(21)(cc) by “Failing to submit to bodily fluid examination and other examination known to detect the presence of alcohol or other drugs pursuant to an agreement with the board or an order of the board”. 7. Respondent engaged in unprofessional conduct as set forth in A.R.S. § 32-2501(21)(dd). That provision defines unprofessional conduct as “Violating a formal order, probation agreement or stipulation issued or entered into by the board or its executive director”. 8. The conduct of Respondent and circumstances set forth above demonstrate that Respondent is mentally or physically unable to safely engage in the practice of medicine within the meaning of A.R.S. § 32- 2551(J). 9. Based upon the above, grounds existed to support the issuance of the Order Summarily Suspending Respondent from practicing as a physician assistant in the State of Arizona. See A.R.S. § 32- 2551(C). 10. The Board met its burden of proving by a preponderance of the evidence that grounds exist for the Board to revoke the License pursuant to A.R.S. § 32-2551(I). ORDER Based upon the above, on the effective date of the Order entered in this matter, the License shall be revoked. Done this day, September 14, 2009.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Lisa Wynn , Executive Director Arizona Medical Board 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________

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