ALJDEC decisions subject to certification as final

10A-1002032-NUR · State Board of Nursing · 2010-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2010 at 8:00 a.m. APPEARANCES: The Arizona State Board of Nursing appeared through Elizabeth Campbell, Esq., Assistant Attorney General; Respondent Debora Lynn Tuck appeared on her own behalf. 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. In June 1994, the Board issued Registered Nurse License No. RN086567 to Respondent Debora Lynn Tuck to allow her to practice nursing in the State of Arizona. 3. On or about February 22, 2010, the Board received a complaint from Health Temp, a registry. The registry nurse system provides temporary nurses to employers who have needs that cannot be fulfilled by in-house permanent staff. 4. Health Temp’s complaint reported that on February 21, 2010, its employee, Ms. Tuck, had been relieved of her duties on the Intensive Care Unit (“ICU”) at Scottsdale Healthcare Osborne after she had displayed signs of impairment. The complaint further reported that although Ms. Tuck was asked to submit a urine specimen, she dropped the specimen “accidentally” and left Scottsdale Healthcare Osborne without providing a specimen. 5. The Board assigned the complaint to its nurse practice consultant, Sister Rachel Torrez, for investigation. Sister Torrez interviewed witnesses, had the Board issue a subpoena for Ms. Tuck’s employment records, and presented an Investigative Report at the Board’s July 2010 meeting. 6. The Board issued a Notice of Charges, and Ms. Tuck requested a hearing on the charges. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. On October 19, 2010, the Board issued a Complaint and Notice of Hearing that alleged that Ms. Tuck had committed unprofessional conduct in the February 21, 2010 incident, during the Board’s subsequent investigation, and in seven incidents between 2003 and 2008 at various health care facilities for whom she worked on registry assignments from Health Temp. 8. A hearing was held on December 1, 2010. The Board submitted thirteen exhibits and presented the testimony of three witnesses: (1) Janice Hensler, RN, who observed Ms. Tuck at Scottsdale Healthcare Osborne on February 21, 2010; (2) Wynema (“Nema”) McElveen, RN, who also observed Ms. Tuck at Scottsdale Healthcare Osborne on February 21, 2010; and (3) Sister Torrez. Ms. Tuck testified on her own behalf. Hearing Evidence The February 21, 2010 Incident at Scottsdale Healthcare Osborne 9. On the night of February 20 to 21, 2010, Ms. Tuck was assigned to work the second shift at Scottsdale Healthcare Osborne ICU, from 7:00 p.m. to 7:00 a.m. 10. On February 20, 2010, Ms. Hensler was training as a relief night charge nurse on the second shift in the ICU. Ms. Hensler’s supervisor, Kathy Rostas, RN, instructed her to follow any registered nurse closely as part of her training. 11. Ms. Tuck arrived at the ICU late for her assigned shift. Ms. Hensler testified that Ms. Tuck arrived at approximately 7:45 p.m. 12. Ms. Tuck testified that Scottsdale Healthcare Osborne has several ICUs and that she was not told to which ICU she was assigned. She testified that she arrived at the staffing unit at approximately 7:15 p.m. and it did not have her assignment. She contacted a dayshift nurse to find out the correct ICU to which she was assigned. Ms. Tuck testified that she arrived at the ICU at approximately 7:30 p.m. 13. Ms. Hensler testified that at 8:00 or 9:00 p.m. on February 20, 2010, the computer had flagged as late certain medications that had been prescribed to one of the patients assigned to Ms. Tuck. Ms. Hensler helped Ms. Tuck administer the medications. 14. Ms. Tuck argued that oncoming nurses received patient reports at the shift change between 7:00 and 7:30 p.m. and that medications were not considered late until more than 30 minutes had passed after the time for administration. Ms. Hensler responded that the time required for the shift change report does not affect the time for medication administration at Scottsdale Healthcare Osborne. 15. Ms. Hensler testified that ICU nurses are expected to administer medications to patients at the time that the medications are prescribed. Timely administration of medications is an essential part of an ICU nurse’s job. 16. Ms. Hensler testified that later in the shift, she received a report from the staff nurse who was working with Ms. Tuck that she was “acting funny.” 17. Ms. Hensler testified that she went to the unit to look at Ms. Tuck and found her sitting in front of the computer, eyes half open, with her hand on the mouse, “not doing anything.” Ms. Hensler called Ms. Rostas. Ms. Rostas came to the unit, looked at Ms. Tuck, and said to her, “We have concerns. Come with us.” 18. Ms. Hensler testified that Ms. Tuck’s speech was slurred and slow and that she did not look “fully awake.” Ms. Hensler did not ask Ms. Tuck what was wrong. 19. Ms. Tuck testified at the hearing that she was experiencing “personal problems at home” and that she is “not a robot” and brought her personal problems to work, “like everyone else.” Ms. Tuck testified that while she was sitting at the computer, she “put her head down to keep from crying.” Ms. Tuck also testified that she wears contacts and may have been squinting. Ms. Tuck testified that Ms. Rostas said, “Tuck, wake up,” and another registry nurse said, “I guess you blinked too long.” Ms. Tuck did not know the other registry nurse’s name and denied being impaired at Scottsdale Healthcare Osborne. 20. Ms. McElveen is the administrative representative who supervises all medical and non-medical personnel and is a resource for the whole hospital at Scottsdale Healthcare Osborne, including the nursing department and ancillary departments. Ms. McElveen testified that it is uncommon for second shift nurses to be tired or sleeping at the desk. They are expected to be awake, alert, and ready for work. 21. Ms. Rostas took Ms. Tuck to an empty patient room and called Ms. McElveen. Ms. Hensler followed. After Ms. McElveen arrived, Ms. Hensler left because it was a busy night in the ICU. 22. Ms. McElveen testified that she received a call from Ms. Rostas at approximately 1:30 a.m. on February 21, 2010, stating that she had concerns about a registry nurse. Ms. McElveen testified that Ms. Rostas said that the nurse could not function independently and needed continual direction, even though she was only assigned one patient. Ms. McElveen testified that Ms. Rostas wanted Ms. Tuck relieved of her duties. 23. Ms. Tuck testified that she was assigned two patients, a new admission with unstable blood pressure and no doctor’s orders, and a patient due to be transferred, but the new unit was not ready to accept the patient. Ms. Tuck testified that the computer charting system at Scottsdale Healthcare Osborne was confusing and that she had to make multiple calls to the doctor to obtain orders for the new admission. Ms. Tuck testified that at 9:00 or 10:00 p.m., she realized that the name on the patient’s room did not match the name on the patient’s medical records, and she had to redo all her charting. Ms. Tuck testified that she had to ask for help, and she got further and further behind. 24. Ms. McElveen testified that when she arrived in the patient room, Ms. Tuck “appeared altered.” She had “delayed verbal responses” and a “flat affect” and “somnolent appearance.” Ms. McElveen testified that by “flat affect,” she meant that Ms. Tuck did not appear animated or engaged. Due to the concerns, Ms. McElveen relieved Ms. Tuck of her assignment and informed her that the registry would be contacted. 25. Ms. Tuck testified that after she was called into the patient room, she “was careful in choosing her words.” She denied having a “flat affect,” and pointed out that Ms. McElveen later told Sister Torrez that Ms. Tuck “was not happy about” being told to gather her belongings and submit to a urine drug screen for cause. Ms. Tuck argued that this statement contradicted Ms. McElveen’s report of a flat affect. 26. Ms. McElveen informed Ms. Tuck about the procedure for a drug screen, and Ms. Tuck consented to undergo a drug screen. Ms. McElveen summoned Scottsdale Healthcare Osborne Security. 27. Scottsdale Healthcare Osborne Security searched Ms. Tuck’s belongings and found a bottle of Vicodin in her purse, with a prescription dated February 2009. 28. Ms. Tuck testified that she had been prescribed Vicodin for a toothache, that she had not taken the Vicodin on February or 21, 2010, and that she did not know why she kept the medication in her purse. Ms. Tuck testified that she also had ibuprofen in her purse, which was allowed and not reported. 29. Scottsdale Healthcare Osborne Security contacted Universal Background, a company to whom it contracts drug screen testing. Ms. McElveen testified that when she told Ms. Tuck that she would have to wait for Universal Background’s technicians, she did not want to have the test and said that she wanted to wait until the next day. Ms. McElveen told Ms. Tuck that it would be better to provide a sample that night and that Scottsdale Healthcare Osborne would provide Ms. Tuck transportation to her home so that she did not have to drive herself. 30. Ms. Tuck declined Ms. McElveen’s offer of transportation. When Universal Background’s technicians arrived, Ms. Tuck told them that she had spilled the sample and left Scottsdale Healthcare Osborne without providing a usable sample. 31. Ms. Tuck testified that she was having her period on February 21, 2010 and using a tampon. Because she did not want to get urine on the tampon string, especially since she was not allowed to take anything with her when she provided the sample, she spilled the sample because she was trying to hold the cup and string while standing up and urinating. 32. Ms. Tuck testified that she has “slowing in her right kidney” and was unable to provide a second sample in the time allowed after drinking the amount of liquid allowed. Ms. Tuck testified that she has never submitted a urine sample that was positive for any proscribed substance, including the sample that she provided after this incident. Ms. Tuck did not submit the results of any drug screens taken after the February 21, 2010 incident. 33. Ms. McElveen testified that Universal Background does not limit the time in which urine samples may be submitted. 34. After Ms. Tuck was relieved from duty on February 21, 2010, Ms. Rostas on behalf of Scottsdale Healthcare Osborne submitted a performance evaluation for Ms. Tuck to Health Temp. Ms. Rostas rated Ms. Tuck as unsatisfactory on organizational skills and dependability and as needing improvement on seven additional items, including recognizing limitations. Ms. Rostas rated Ms. Tuck as average on the remaining ten items of patient care. 35. Ms. Rostas provided the following additional comments on the evaluation: Needs to attend classes for computer charting and admin RX. Witnessed to be nodding off while sitting @ computer once. Staring and Swaying while sitting @ computer later. Difficulty troubleshooting ET Tube airway issue.

36. As a result of the February 21, 2010 incident, Ms. Tuck was designated as “Do Not Return” (“DNR”) at Scottsdale Healthcare Osborne. 37. Ms. Tuck testified that she only saw Ms. Rostas twice at Scottsdale Healthcare Osborne. Ms. Tuck testified that Ms. Rostas said, “Deb, you are not yourself,” which Ms. Tuck thought was odd, since she did not have a previous relationship with Ms. Rostas. Ms. Tuck testified that neither of the patients assigned to her on February 20 to 21, 2010 had an ET tube.

Incidents in Ms. Tuck’s Previous Health Temp Assignments 38. Ms. Tuck has worked as a registry nurse for Health Temp since 1996. Employers are asked to submit evaluations for every assignment that a registry nurse completes. 39. As noted above, Sister Torrez obtained Ms. Tuck’s employment records. Although some employers’ evaluations were positive, seven employers between 1996 and 2010 expressed concerns about Ms. Tuck’s job performance, in addition to the February 2010 Scottsdale Healthcare Osborne evaluation. The evaluations were admitted and are described below, but the evaluators did not testify at the hearing. 40. On or about July 23, 2003, Maricopa Integrated Health System made Ms. Tuck a DNR for the following reasons: Debora Tuck worked MICU on the night of 7/15/2003. At midnight the MICU staff alerted the House Supervisor that Debora had been in the bathroom for 30 minutes throwing up. She also complained of abdominal pain and diarrhea. By 0030, Debora was unable to stay awake and was unable to complete any charting. Treatments and medications ordered were not completed or given. Heparin was hung at 2130 at the incorrect rate.

The House Supervisor attempted to have Debora seen in the ER. MICU staff suspected substance abuse as a cause for the above behaviors.

41. The Health Temp follow-up note indicated that Maricopa Integrated Health System’s evaluation was discussed with Ms. Tuck and that she explained that occasionally after eating she gets “horrible stomach cramping and diarrhea.” The follow-up note further stated that Ms. Tuck denied sleeping, and claimed that “she only had her head down & trying to [illegible] through the pain” and that Ms. Tuck knew the source of the pain and did not have money for the ER. 42. Ms. Tuck testified that the evaluation followed her second assignment at Maricopa Integrated Health System. The evaluation of her first assignment had been “exemplary.” Ms. Tuck testified that she received the negative evaluation because staff was “intimidated” and “jealous” because she was the only registered nurse on the floor until 10:30 p.m. and the only nurse who did her job. 43. Ms. Tuck testified that Maricopa Integrated Health System has no patient rooms, only curtains between beds, and that one of her assigned patients was confused and trying to get up from the gurney that she was on. Ms. Tuck testified that she had to go to the break room to get help from the night supervisor, who “yanked” the patient by her arm, causing the patient to ask, “‘Why do you want to do that?’” 44. Ms. Tuck testified that after she got her patients settled at Maricopa Integrated Health System, she went to the break room to eat. Ms. Tuck testified that she has diverticulitis and was not aware of the triggers for symptoms. Ms. Tuck testified that after she ate, she began suffering abdominal cramps and diarrhea, but was embarrassed to tell the male charge nurse, and told the female house nurse that she “would try to hold out.” 45. Ms. Tuck testified that Health Temp never told her anything about a problem with a Heparin drip at Maricopa Integrated Health System. Ms. Tuck testified that it was unlikely that she had hung a Heparin drip with the incorrect rate because Heparin is an anticoagulant and most health care facilities’ protocol is that the rate of the drip is determined by the patient’s PTT, which is taken hourly. If she had hung the Heparin drip with the wrong rate, it would have been because the PTT had not been taken yet. 46. On or about January 26, 2004, John C. Lincoln Hospital North Mountain ICU asked that Ms. Tuck not return unless no other registry nurse was available. According to the evaluation, Ms. Tuck failed to demonstrate competency or to organize and prioritize patient care, failed to cooperate with other team members in requesting and providing assistance, and failed to document care appropriately. 47. Ms. Tuck testified that she was surprised by John C. Lincoln Hospital North Mountain’s evaluation because that facility “adores” her and always requests her for assignments. Ms. Tuck testified that she did not believe that the evaluation was legitimate. 48. On or about July 4, 2004, Scottsdale Healthcare Osborne made Ms. Tuck DNR for unsatisfactory performance in five of nineteen patient care categories, including organizational skills. The evaluation stated that Ms. Tuck did not give four prescribed medications to one patient and failed to give blood products as ordered to another patient. 49. Ms. Tuck testified that she gave the medications to the patient at Scottsdale Healthcare Osborne, but the computer system was down and she was unable to chart the medications until 3:00 a.m. Ms. Tuck testified that the computer system at Scottsdale Healthcare Osborne was not user-friendly, she received no training on the computer, and she had to “wing it” on her computer charting. Ms. Tuck testified that she knows that blood products are important in the ICU and that if she did not administer blood products that were ordered for a patient, the products were not available. Ms. Tuck testified that her assignment to work at Scottsdale Healthcare Osborne in February 2010, indicated that the hospital had not made her DNR. 50. Ms. McElveen testified that in 2004, Scottsdale Healthcare Osborne did not use computer charting, but instead used paper for most patient records. 51. On or about October 22, 2006, St. Joseph’s Hospital rated Ms. Tuck’s performance as unsatisfactory on four of nineteen patient care categories. The comments were illegible on the evaluation that was submitted. 52. On or about February 13, 2008, St. Joseph’s Hospital made Ms. Tuck a permanent DNR for failing to provide an adequate level of care. St. Joseph’s Hospital’s evaluation provided in relevant part as follows: Throughout [Ms. Tuck’s] shift multiple issue [sic] were noted. First she arrived to the unit dressed in street clothes, she was called in late to work but never the less [sic] was unprepared. After she was given scrubs she at once appeared overwhelmed. Another RN watched over her patients while she got her other patient situated (although the patient was not in any distress). One of her patient’s [blood pressure] started to drop and she just yelled for help and panicked. She did not attempt to open fluids or increase pressors. She later panicked with a drop in [heart rate] although the [blood pressure] was stable. She had to be encouraged to call the MD with lab and ABG results. She just didn’t seem to be able to function independently or have the critical thinking skills necessary to work in the ICU.

53. Ms. Tuck testified that she was called into work for the shift at St. Joseph’s Hospital late and that she brought her scrubs with her. She testified that when she arrived, the nurse on the earlier shift “scurried” to the nursing station to give her report, rather than giving it in front of the patient room, because the nurse did not want her to see “how ill the patient was.” Ms. Tuck described the patient as weighing 38 kilograms and being just out of surgery. Ms. Tuck testified that she had two patients. One patient had only one intravenous (“IV”) access on the patient’s foot for a Neosynephrine drip to sustain blood pressure. The doctor had ordered that patient to begin IV Diprivan (Propofol), a sedative, but she could not administer the Diprivan (Propofol) because the patient only had one IV access, and that was being used for the Neosynephrine. 54. Ms. Tuck testified that she did not panic at St. Joseph’s Hospital. She also testified that when she discovered that she had no orders that she could fulfill and her patient “was trying to die,” she panicked. But she did not know how to contact the physician. When she finally found a physician, he ordered blood, but no blood was ready, although it should have been prepared before the patient’s surgery. Meanwhile, the patient’s blood pressure was dropping. When the hospitalist arrived, he said, “This kid’s in trouble.” Staff escorted Ms. Tuck out while the hospitalist and staff got another IV line in the patient. 55. Ms. Tuck testified that staff at St. Joseph’s Hospital erased her charting because the chart showed that the Neosynephrine drip was “wide open to keep the patient alive,” and staff charted “what was legal.” Ms. Tuck testified that once the patient stabilized, the patient was returned to her care. 56. Ms. Tuck testified that her other patient at St. Joseph’s Hospital was its first heart-lung transplant and a high profile case. Ms. Tuck asked, “If I was incompetent, why had St. Joseph’s Hospital assigned me to care for two difficult patients?” Ms. Tuck testified that both patients were in better condition when she ended her shift than the condition they had been in when she started her shift. 57. On or about October 17, 2008, Phoenix Baptist Hospital made Ms. Tuck DNR, rating her as unsatisfactory on ten of nineteen patient care categories. The evaluation noted that she “[h]ad multiple complaints from Physicians & Nurses regarding the untidyness [sic] of the room & pt.” and that Ms. Tuck “[l]eft past 0900 – OT not signed/approved: Refused to leave until someone would sign her OT.” 58. Ms. Tuck did not remember her shift at Phoenix Baptist Hospital. She denied having ever demanded overtime pay, but explained that if she did not get her time sheet signed, she would not be paid for the entire shift. 59. Ms. Tuck testified that she is evaluated after every registry assignment. She argued that she has been working for Health Temp since 1996 and that eight negative evaluations over a 15-year period were to be expected. The Board’s Investigation 60. On April 1, 2010, Sister Torrez sent a letter to Ms. Tuck at her address of record in Flagstaff, Arizona, informing her of Health Temp’s complaint and asking her to complete the enclosed investigative questionnaire about the incident “immediately upon receipt.” The letter was returned to the Board as undeliverable. 61. Sister Torrez obtained another address for Ms. Tuck from her employment file at Health Temp. On May 10, 2010, Sister Torrez sent a second letter to Ms. Tuck at an address at 18051 N. 22nd Ave., Phoenix, Arizona 85023, informing her of the complaint and asking her to complete the enclosed investigative questionnaire about the incident “immediately upon receipt.” Sister Torrez testified at hearing that she later obtained confirmation that the address on 22nd Ave. was Ms. Tuck’s current address. 62. On May 27, 2010, Sister Torrez sent a third letter to Ms. Tuck at an address in Phoenix that Sister Torrez had obtained from the Department of Motor Vehicles, informing her of the complaint and asking her to complete the enclosed investigative questionnaire about the incident “immediately upon receipt.” The third letter was returned to the Board as undeliverable. 63. Ms. Tuck never provided her current address to the Board. 64. Ms. Tuck never provided a completed investigative questionnaire to the Board. 65. Ms. Tuck did not testify that she had not received the Board’s May 10, 2010 letter and notice of the investigation. Instead, she testified that on March 3, 2010, she was involved in a serious automobile accident that occurred when a vehicle in which she was the front-seat passenger was hit head-on by oncoming traffic. Ms. Tuck testified that the fire department had to extricate her from the passenger compartment and that she was hospitalized until March 6, 2010 with a head injury, broken right ankle, and injury to her left foot that resulted in it being placed in a walking cast. Ms. Tuck testified that she had amnesia of the accident and did not work until the end of June 2010. 66. Ms. Tuck testified that she was in the process of moving to her new address when the accident occurred on March 3, 2010. 67. Ms. Tuck testified that she worked Health Temp assignments until mid-August 2010. Since the conference call between herself, Sister Torrez, and the Board’s attorney on August 23, 2010, she has not received any more registry assignments. Ms. Tuck testified that because she has not been working, she cannot afford the psychological evaluation for substance abuse that the Board requested. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(A)(8). 2. The Board bears the burden of proof and must establish cause to penalize Ms. Tuck’s registered nurse’s license by a preponderance of the evidence.[1] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] 4. The evaluations that the Board obtained through subpoena are hearsay.[4] Although hearsay may be admitted in an administrative hearing,[5] it should not be relied upon if it is not the kind of evidence upon which reasonable persons would rely in serious matters.[6] The evaluations do not show the qualifications of the persons who prepared them or the basis of those persons’ knowledge of the reported incidents. Some of the evaluations do not even show the name of the person who prepared them. Significantly, neither the persons who prepared the evaluations nor the persons at Health Temp who received them considered the events described therein to be concerning enough to report to the Board. Although the evaluations may show that the incident at Scottsdale Healthcare Osborne on February 21, 2010, was not an isolated or unprecedented event, without more, they are not the kind of evidence on which reasonable persons would rely in deciding whether to discipline a professional nurse’s license. Therefore, the Board did not establish that Ms. Tuck committed unprofessional conduct as defined by any statute or regulation in the incidents described in the evaluations. 5. Ms. Tuck’s testimony to explain and counter Ms. Hensler’s and Ms. McElveen’s testimony of their direct observations of her condition on February 21, 2010, was neither consistent nor credible. Therefore, the Board established that on February 21, 2010, while Ms. Tuck was a registry nurse employed to care for patients at Scottsdale Healthcare Osborne’s ICU, she was under the influence of an unknown substance and impaired, thereby committing unprofessional conduct as defined by A.R.S. §§ 32-1601(18)(d) and (j) (effective October 14, 2009),[7] specifically A.A.C. R4-19-403(1), (17), and (31) (effective February 2, 2009).[8] 6. The Board also established that Ms. Tuck committed an act of unprofessional conduct as defined by A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(25)(a)[9] when she failed to provide to the Board a completed questionnaire in response to the complaint that Health Temp made against her. 7. The Board also established that Ms. Tuck committed an act of unprofessional conduct as defined by A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-308(B)[10] when she failed to provide her change of address within 30 days of moving. 8. The Board established cause to revoke, suspend, or otherwise discipline Ms. Tuck’s license under A.R.S. §§ 32- 1663(D) and 32-1664(N).[11] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board place on probation for a term of three years Registered Nurse License No. RN086567 previously issued to Respondent Debora Lynn Tuck. It is further recommended that the terms of Ms. Tuck’s probation include the following: a. Ms. Tuck’s license shall be stamped with the word, “PROBATION.” b. Ms. Tuck shall undergo a psychological evaluation for substance abuse performed by a Board-approved mental health professional. Ms. Tuck shall provide a copy of the Board’s final Decision and Order to the mental health care professional who is to perform the evaluation and authorize the release of the evaluation to the Board. c. Within seven days of the effective date of the Board’s final Decision and Order, Ms. Tuck shall enroll in a Nurse Recovery Group that is acceptable to the Board, and authorize the group’s facilitator to inform the Board, in writing and on letterhead, of her progress in the group. Ms. Tuck must attend at least one Nurse Recovery Group meeting a week and must have no unexcused absences or “no call/no show” occurrences. d. Ms. Tuck shall participate in Alcoholics Anonymous, Narcotics Anonymous, or an equivalent program at least once a week and submit written quarterly reports of her participation, on Board-approved forms, initialed by her sponsor. Ms. Tuck must obtain a temporary sponsor within thirty days of the effective date of the Board’s final Decision and Order and a permanent sponsor within ninety days of the effective date of the Order. e. Eighteen months prior to the termination of probation, or as requested by the Board or its designee, Ms. Tuck shall be evaluated by a Board-approved relapse prevention therapist, who at a minimum possesses a masters degree. If the therapist recommends that Ms. Tuck enroll in a relapse prevention program or other therapy, Ms. Tuck shall enroll in such Board-approved program within 30 days after the Board notifies her of the therapist’s recommendation. Ms. Tuck shall authorize the therapist to release the evaluation to the Board. If Ms. Tuck enrolls in relapse prevention or other therapy, she shall authorize the provider of such therapy to release her records to the Board. f. Ms. Tuck shall abstain from consumption of alcohol or any illegal or prescription drugs, except those drugs prescribed to her by a licensed healthcare provider. Ms. Tuck shall inform the Board of the identity of any licensed healthcare provider who renders care to her, authorize the healthcare provider to release her medical records to the Board, and instruct the healthcare provider to furnish a log to the Board of all prescribed medications within one week of the prescription. g. Within seven days of the effective date of the Board’s final Decision and Order, Ms. Tuck shall enroll in a program that meets the Board’s criteria for random drug testing. Ms. Tuck shall undergo random drug tests a minimum of twice per month for six months and if the results of the tests are negative for all substances, absent a valid prescription, thereafter, Ms. Tuck shall undergo random drug tests a minimum of once per month. h. Ms. Tuck shall provide a copy of the Board’s final Decision and Order to any prospective employer during her probation before she is hired for any position that requires licensure. Within seven days of being hired, Ms. Tuck shall cause her immediate supervisor to inform the Board on the employer’s letterhead of her hiring, to acknowledge receipt of a copy of the Board’s final Decision and Order, and to state the employer’s willingness to comply with the terms of Ms. Tuck’s probation. The employer shall provide to the Board written quarterly reports of Ms. Tuck’s employment on a Board- approved form. Ms. Tuck’s receipt of notice of an unsatisfactory employer evaluation, a verbal or written warning, or counseling or disciplinary action that pertains to patient care or practice issues, or her termination for cause from her employment shall be considered a violation of the terms of her probation. i. Ms. Tuck shall not work for a registry, as a home health provider, for a traveling nurse agency, or for any other temporary employment agency that provides employees for a float pool, or in a position that requires on-call status. j. Ms. Tuck shall work only the day or evening shift, which means a shift that ends prior to midnight. Within a 14-day period, Ms. Tuck shall not work more than 84 scheduled hours. k. Ms. Tuck shall notify the Board in writing within 7 days of any change in nursing employment, personal address, or telephone number. l. Ms. Tuck shall sign all release of information forms required by the Board or its designee. Ms. Tuck shall make herself available within 36 hours after the Board or its designee requests an interview. Interviews may be conducted telephonically or in- person. m. Ms. Tuck shall bear all costs of complying with the terms of her probation. n. Ms. Tuck may voluntarily surrender her registered nurse’s license at any time after the effective date of the Board’s final Decision and Order. o. If Ms. Tuck violates the terms of her probation, the Board’s staff may notify her employer of the violation. In addition, the Board may revoke Ms. Tuck’s probation and take further disciplinary action against her license after affording Ms. Tuck notice and an opportunity to be heard. If a complaint or petition to revoke probation is filed against Ms. Tuck during her probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, December 14, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] 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). [2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary at page 1120 (8th ed. 2004). [4] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [5] See A.R.S. § 41-1092.07(F)(1). [6] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [7] These statutory subsections define “unprofessional conduct” to include the following:

(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.

[8] This rule further defines “unprofessional conduct” to include the following:

1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice; . . . .

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 . . . or other work location; [or] . . . .

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.

[9] This rule further defines unprofessional conduct to include “[f]ailing to . . . [f]urnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664 . . . .” [10] This regulation provides that “[a] licensee shall notify the Board of any change of mailing address within 30 days.” [11] These statutes provide that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke, suspend, or otherwise discipline the license.

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