ALJDEC decisions subject to certification as final

11A-1003018-NUR · State Board of Nursing · 2011-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2011, at 8:00 a.m. APPEARANCES: The Arizona State Board of Nursing appeared through Elizabeth A. Campbell, Esq., Assistant Attorney General; Respondent Laura Michael appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 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. On October 24, 2000, the Oregon State Board of Nursing (“the Oregon Board”) issued a final order by default against Laura Michael, RN revoking her license to practice nursing in Oregon. In January 2001, the Board issued unrestricted Registered Nurse License No. RN113397 to Ms. Michael to allow her to practice nursing in the State of Arizona.[1] On or about March 12, 2010, the Board received a complaint from Sandra Maas, the Nursing Director at Estrella Mountain Community College (“EMCC”). Ms. Maas reported that on March 10, 2010, while EMCC employed Ms. Michael as an adjunct clinical instructor assigned to a clinic at Banner Health Good Samaritan Hospital (“the hospital”) intensive care unit (“ICU”), nursing staff and students had observed Ms. Michael to be visibly impaired. Ms. Maas stated that Ms. Michael and the students were sent home, and that she relieved Ms. Michael of her teaching assignment. The Board assigned the complaint to its nurse practice consultant, Susan Barber, RN, MSN, for investigation. Ms. Barber interviewed witnesses and reviewed documents related to the complaint and to Ms. Michael’s license history. As part of the Board’s investigation, it required Ms. Michael to undergo a Neuropsychological and Substance Abuse Assessment on December 1, 16, and 17, 2010, by Scott Sindelar, Ph.D. On January 7, 2011, Dr. Sindelar issued a 9-page single-spaced typewritten report to the Board, that included the following “Areas of Weakness/deficits”: [Ms. Michael’s] initial grasp of verbal information was mildly impaired. She showed a Consolidation memory error pattern that indicates a slower learning of verbal information. She will likely require more time to learn new verbal information, and may need more repetitions.

Her initial uptake and perception of visual information was mildly to moderately impaired. Her recall of visually presented information was impaired. She had significant forgetting of visual information, suggesting reduced overall efficiency of new learning for visual information.

Her ability to carry out detailed instructions was mildly impaired. She had difficulty with tasks that required recalling old information and using it in a new setting. She will probably have difficulty using previous knowledge and information in new ways. She may have reduced adaptability to changing situations.[2]

After the Board determined to discipline Ms. Michael’s registered nurse license, she requested a hearing. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On August 23, 2011, the Board issued a Complaint and Notice of Hearing that alleged that the March 10, 2010 incident, the October 21, 2000 license revocation by the Oregon Board,[3] and Dr. Sindelar’s report evinced Ms. Michael’s unprofessional conduct and furnished cause to discipline her registered nurse license. A hearing was held on October 3, 2011. The Board submitted four exhibits and presented the testimony of three witnesses: (1) Ms. Maas; (2) Ms. Barber; and (3) Sylvia Turcott, RN, the Senior Manager of the Medical Surgical ICU at the hospital, who observed and spoke to Ms. Michael on March 10, 2010. Ms. Michael submitted eleven exhibits, testified on her own behalf, and presented the testimony of her friend, Lisa Anderson. Hearing Evidence The Oregon Board’s October 2000 Revocation of Ms. Michael’s Oregon License Ms. Michael was born in 1965 and was approximately 46 years old on the date of the hearing. Ms. Michael testified that she had two DUI’s in her early 20’s and since then had generally abstained from alcohol. The Oregon Board’s revocation order noted that in July 1999, the Oregon Board had attempted to suspend Ms. Michael’s Oregon license based on two complaints that were made in 1998, but settlement negotiations between Ms. Michael and the Oregon Board had delayed resolution of the complaints. The Oregon Board further noted: After the [Oregon Board] issued the Suspension Notice, it learned that [Ms. Michael] may have substance abuse problems that could affect her ability to safely practice nursing and that she may have psychiatric problems that would affect her ability to safely practice nursing. Therefore, on August 21, 2000, the [Oregon Board] issued an Order for a Psychiatric Evaluation and Chemical Dependence Evaluation (Evaluation Order) . . . . The Evaluation Order required [Ms. Michael] to schedule an evaluation with a particular psychiatrist within 30 days. It further required [Ms. Michael] to be evaluated by a particular chemical dependence evaluator. Both evaluations had to be completed within 60 days. [Ms. Michael] did not comply with the Evaluation Order.[4]

Ms. Michael testified that she complied with the Oregon Board’s order and obtained both of the evaluations that it required. Ms. Michael submitted an evaluation report by Elyse L. Sheldon, Ph.D. based on interviews in August, September, and October 2000, in Portland, Oregon, concerning Ms. Michael’s “competence to practice nursing with reasonable skill and safety.”[5] According to Dr. Sheldon’s report, Ms. Michael’s attorney in Oregon, Mary A. Nestor, referred Ms. Michael to Dr. Sheldon. Dr. Sheldon noted in her report that “[a] previous evaluation had been performed by psychiatrist, Dr. Greg Hamilton.”[6] Dr. Hamilton’s evaluation was not submitted, but Dr. Sheldon contrasted her own findings that Ms. Michael was safe to practice and “the kind of nurse that would make a patient feel quite comfortable”[7] with Dr. Hamilton’s findings, “which differ greatly.”[8] Dr. Sheldon also referred to Ms. Michael’s “long substance abuse history,”[9] but did not elaborate. Ms. Michael also submitted a note dated October 27, 2000, addressed to Ms. Nestor from Heidi Taub, MA, LMFT, a chemical dependency counselor in Hillsboro, Oregon. Ms. Taub diagnosed Ms. Michael with “alcohol dependence, early remission,” and stated that “[h]er prognosis for continued abstinence is good, if she continues with her current recovery program.”[10] Ms. Michael testified that she moved to Arizona in 2000, and that the Oregon Board’s default order resulted from Ms. Nestor’s failure to timely request a hearing. Ms. Michael testified that although Ms. Nestor appealed the Oregon Board’s default order, Ms. Michael abandoned the appeal after she moved to Arizona and was licensed in Arizona. On December 13, 2001, Ms. Nestor sent a letter to the Board stating that the Oregon Board’s staff member had issued the Evaluation Order to Ms. Michael, contrary to statutory requirements, and that legal challenges to similar orders had resulted in the Oregon Board’s rescission of the orders. Ms. Nestor requested that the Board consider the circumstances when it determined the weight to give the Oregon Board’s order of revocation.[11] The March 10, 2010 Incident at the Hospital ICU Ms. Michael testified that she started working as an adjunct clinical instructor for Gateway Community College, and then switched to teaching at EMCC. Ms. Michael testified that she worked as a clinical instructor for Gateway Community College or EMCC in Arizona for a total of approximately four years. Ms. Michael submitted an e-mail from Ms. Maas dated November 14, 2008, addressed to Ms. Michael, praising Ms. Michael’s nursing skills, conscientious care of students, and enthusiasm, and promising to “get [Ms. Michael] on board with us full time!” Ms. Michael and Ms. Anderson testified that on December 17, 2009, Ms. Michael was working in an emergency room, caring for a large patient with a neurological disorder. When the patient started to fall, Ms. Michael attempted to break the patient’s fall, and the patient fell on her, resulting in an injury to Ms. Michael’s cervical spine. Ms. Michael and Ms. Anderson testified that after the accident, Ms. Michael was unable to drive, work, or care for herself, because her cervical spine injury caused severe radiating pain down both arms and down her right leg. Ms. Anderson moved in with Ms. Michael to help her manage. On January 20, 2010, Ms. Michael was evaluated by her spinal surgeon, Brian Steinke, M.D. Dr. Steinke noted that although Ms. Michael was scheduled for cervical spine surgery that day, surgery was cancelled due to her acute bronchitis. Dr. Steinke reported that on January 20, 2010, Ms. Michael’s speech was slow. Dr. Steinke’s impression was “C5-C6 degenerative disk disease and spinal stenosis, chronic pain and high opiate tolerance.” Dr. Steinke recommended that Ms. Michael contact a pain clinic “due to her high opiate tolerance and non-responsiveness to conventional pain therapy.”[12] Ms. Michael testified that on January 25, 2010, her primary care physician, Il Lyuck Park, M.D., prescribed Fentanyl patches “(100mg/hr) 200 mg q 72 hrs” for her pain. Ms. Michael testified that the Fentanyl patches presented little risk for abuse.[13] On February 25, 2010, Dr. Steinke performed an anterior post-cervical disk fusion on Ms. Michael. Ms. Michael’s discharge instructions included that she wear a cervical collar and that she avoid driving, bending, lifting, twisting, and baths.[14] Ms. Michael testified that because an anterior approach to a cervical disk fusion required the surgeon to move the patient’s vocal cord, common side effects of the procedure were problems with swallowing and speech. Ms. Michael submitted internet printouts of common complications from anterior cervical discectomy and fusion that supported her testimony. Ms. Michael testified that teaching assignments at EMCC for the spring of 2010 had been scheduled before the December 17, 2009 accident. Ms. Michael testified that she tried to contact Ms. Maas to request reassignment of her teaching duties, but that she was unable to reach Ms. Maas. Ms. Maas testified that her usual practice is to return messages, and that she did not recall receiving any requests from Ms. Michael to reassign her teaching duties. Ms. Michael testified that because she was restricted from driving, she asked her students to pick her up at home on their way to the hospital for the EMCC clinic. Ms. Michael testified that the first shift that she worked as an EMCC adjunct instructor at the hospital for the 2010 spring semester was on March 3, 2010. Because March 3, 2010, was a short shift, Ms. Michael did not experience any problems. The March 10, 2010 shift for which Ms. Michael was scheduled to supervise students as an adjunct instructor was a 12-hour shift, from 7:00 a.m. to 7:00 p.m. Ms. Michael testified that because she was worried about her ability to stay on her feet supervising her students, she stayed up late the night before preparing handouts for a discussion of EKG tests. Ms. Michael testified that she took her Fentanyl patch off when she awoke at approximately 5:00 a.m. on March 10, 2010. Ms. Michael testified that she kept the narcotics that had been prescribed for her pain locked in the bathroom, and that only Ms. Anderson had the key. Ms. Michael testified that she was delayed on the morning of March 10, 2010, because she was cleaning up after her pet dog had diarrhea. Ms. Michael testified that the students arrived early, and she went out to tell them to wait and that she needed help carrying the handouts on EKG tests to the car. After Ms. Maas submitted the complaint to the Board, she interviewed Ms. Michael’s students. Ms. Maas testified that Ms. Michael’s students said that she came to the door in her pajamas, and that the students had to knock on her door numerous times before she was ready to leave. Ms. Maas testified that the students told her that Ms. Michael sat in the back seat with a cup with a straw in it, and that Ms. Michael kept trying to take a sip, but kept falling asleep and missing her mouth. The students told Ms. Maas that they did not arrive at the hospital until 7:20 a.m. on March 10, 2010, and that hospital staff was upset because the students missed the staff report.[15] The students reported to Ms. Maas that after Ms. Michael arrived at the hospital, they observed that she was unable to walk a straight line, her gait was unsteady, her speech was slurred, she appeared disoriented, confused, and “obviously medicated,” and that she fell asleep during conversations several times.[16] Ms. Michael acknowledged that Fentanyl was still in her system when she was supervising students at the hospital ICU on March 10, 2010, but denied that she was impaired due to her high tolerance. Ms. Michael testified that the reported signs of impairment were due to her extreme pain and withdrawal because she had removed the Fentanyl patch. Ms. Turcott testified that on March 10, 2010, one of her nurses notified her that a nursing instructor seemed confused and had slurred speech. Ms. Turcott testified that she confronted Ms. Michael in the cafeteria and asked her to step away from her students. Ms. Turcott testified that when Ms. Michael stepped away from her students, she was walking slowly and her gait was unsteady. Ms. Turcott testified that on March 10, 2010, Ms. Michael looked confused and that Ms. Turcott had to ask Ms. Michael two or three times what the date was. Ms. Turcott testified that even though it was only approximately 2:00 p.m., Ms. Michael seemed to think it was nighttime, near the end of the shift. Ms. Turcott testified that Ms. Michael’s speech was “slurred” and “garbled and that Ms. Turcott had to ask Ms. Michael to repeat her answers to questions. Ms. Michael denied at the hearing that she was confused about the time on March 10, 2010. She testified that she specifically remembered looking at the clock in the cafeteria, and seeing that it was 2:23 p.m. Ms. Turcott testified that she stressed patient safety concerns to Ms. Michael, and offered to call her a cab to take her home. Ms. Turcott then called Ms. Maas. Ms. Maas testified that after she received Ms. Turcott’s call, she called Ms. Michael on her cell phone, and that Ms. Michael’s speech was slurred, she seemed confused, did not stay on topic, and needed to be redirected, but denied being impaired. Ms. Maas told Ms. Michael that the hospital had complained about her and asked that she be removed. Ms. Maas testified that based on the complaint and her conversation with Ms. Michael, she did not believe that Ms. Michael should be providing care to patients. Ms. Maas told Ms. Michael to leave the hospital and to dismiss the students. Ms. Maas testified that adjunct instructors are not guaranteed class assignments, and that EMCC did not make any further assignments to Ms. Michael. On the afternoon of March 10, 2010, the students left the hospital, and drove Ms. Michael back to her home. On March 11, 2010, Ms. Maas called Ms. Michael at her home. Ms. Maas testified that Ms. Michael spoke more clearly and seemed to follow the conversation better than she had on March 10, 2010. Ms. Maas testified that she suggested that Ms. Michael submit to a drug screen test, and that Ms. Michael stated that the results of a test would be positive for Valium and Fentanyl, and declined the test. Ms. Michael denied at the hearing that she had ever declined to take a drug test, and testified that because she did not know where she could go for a drug test, she made an appointment with Dr. Park at the earliest available appointment time. On March 15, 2010, Ms. Michael submitted to a drug test at Dr. Park’s office. Quest Diagnostics, Inc.’s report of the test indicated that Ms. Michael’s urine sample was negative for every substance except amphetamines, specifically amphetamine, and benzodiazepines, specifically nordiazepam and oxazepam. Dr. Park wrote on the report that “[a]ll positives are noted to be correlated [with] prescribed medications.”[17] Ms. Barber testified that the March 15, 2010 drug test results would not show the levels of various drugs in Ms. Michael’s system and would not necessarily show all drugs in Ms. Michael’s system on March 10, 2010. Ms. Barber testified that anyone can obtain a drug test on demand from TASC and Sonoran Quest. On March 17, 2010, Ms. Michael was evaluated by Dr. Park. Dr. Park reported that Ms. Michael was in pain and had language problems/spasms. Dr. Park noted that Ms. Michael’s current medications included Fentanyl, Oxycodone, and Valium.[18] / / / / Dr. Sindelar’s Evaluation Report Ms. Barber has been a registered nurse since 1976. Ms. Barber testified that nurses’ professional responsibilities require them to quickly learn visual information, and that Dr. Sindelar’s opinion that Ms. Michael had limited visual acuity presented a “big problem” to her safety to practice. Ms. Barber testified that nurses perform many tasks that require them to recall old information, and that nurses must apply old information to a new setting every time they walk into a patient’s room. Ms. Barber testified that nurses must be able to react quickly to new visual information. Dr. Sindelar’s report noted that “[t]he objective psychological testing did not indicate an active substance dependence disorder.”[19] Dr. Sindelar also reported that Ms. Michael was “seeing a pain specialist who is helping her wean off her medications,” and that “[t]his appears to be an effective approach.”[20] Dr. Sindelar opined that “[i]t appears that current medications and dosages are unlikely to affect [Ms. Michael’s] ability to practice safely.”[21] Because Ms. Michael was taking medications that have the potential of abuse, Dr. Sindelar opined that “it would be reasonable to monitor this through random drug testing for at least one year after she is weaned off these medications.”[22] Dr. Sindelar reported that aside from Ms. Michael’s reported impairment in the visual memory domain and deficits in the verbal memory domain, Ms. Michael “performed in the normal range on the other six domains of neuropsychological functioning,” including “Attention and Working Memory, Processing Speed, Verbal Reasoning, Visual Reasoning, and Dominant and Nondominant Motor/Sensory domains.”[23] Additional Evidence Ms. Michael testified that the February 2010 cervical disk fusion was unsuccessful, and that she underwent a second surgery in August 2010. Ms. Michael is not currently practicing nursing because her doctor has not yet released her to return to work. Ms. Michael is currently working on her masters’ degree in nursing. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 2. The Board bears the burden of proof and must establish cause to penalize Ms. Michael’s registered nurse’s license by a preponderance of the evidence.[24] Ms. Michael bears the burden to establish any factors in mitigation of the penalty by the same evidentiary standard.[25] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[26] 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.”[27] 4. Ms. Michael did not dispute that the Oregon Board revoked her Oregon license. Therefore, the Board established that Ms. Michael committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(f).[28] With respect to the appropriate penalty, the evidence of Ms. Michael’s alleged practice deficiencies in Oregon is inferential and contradictory. Ms. Michael established at least some factors in mitigation, specifically that she did submit to at least three evaluations, that the Oregon Board’s order may not have been supported by law, and that the order was based primarily on her failure to timely request a hearing on the Oregon Board’s order of suspension. 5. Ms. Michael acknowledged that on March 10, 2010, she was experiencing debilitating pain, that she was going through narcotic withdrawal because she had taken off her Fentanyl patch, and that she should not have attempted to teach the EMCC clinical course at the hospital’s ICU. Ms. Turcott’s and Ms. Maas’s testimony was credible. Therefore, the Board established that on March 10, 2010, Ms. Michael committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(d),[29] specifically A.A.C. R4-19-403(17) and (31),[30] and A.R.S. § 32-1601(18)(e) and (j).[31] 6. Ms. Michael established as factors in mitigation of the penalty for her unprofessional conduct on March 10, 2010, that the medication that impaired her performance was prescribed, and that she did not deny having taken the medication. Ms. Michael’s unprofessional conduct on March 10, 2010, was the result of poor judgment, not substance abuse. 7. Dr. Sindelar’s evaluation report does not provide additional evidence of unprofessional conduct. Instead, Dr. Sindelar performed the evaluation to help the Board determine whether Ms. Michael was safe to practice. Although Dr. Sindelar reported that Ms. Michael was impaired in the visual memory domain and had deficits in the verbal memory domain, he opined that she did not have an active substance abuse disorder and recommended that she keep her license, but that the Board monitor her sobriety through random drug tests. The deficits that Dr. Sindelar identified furnish an additional reason for the Board to monitor Ms. Michael’s performance of professional duties. 8. Because the Board established that Ms. Michael committed unprofessional conduct as defined by statute and regulation, it established cause to revoke, suspend, or otherwise discipline Ms. Michael’s license under A.R.S. §§ 32-1663(D) and 32-1664(N).[32] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board place on disciplinary probation for a term of three years Registered Nurse License No. RN113397, previously issued to Respondent Laura Michael. It is further recommended that the terms of Ms. Michael’s probation include the following: a. Ms. Michael’s license shall be stamped with the word, “PROBATION.” b. Ms. Michael shall abstain from consumption of alcohol or any illegal or prescription drugs, except those drugs prescribed to her by a licensed healthcare provider. Ms. Michael 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. c. Within seven days of the effective date of the Board’s final Decision and Order, Ms. Michael shall enroll in a program that meets the Board’s criteria for random drug testing. Ms. Michael 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. Michael shall undergo random drug tests a minimum of once per month. d. Ms. Michael’s probation shall include at least 12 months during which she is actively engaged and employed in the profession of nursing. Ms. Michael shall inform the Board when her physician releases her to return to the professional practice of nursing. e. After Ms. Michael returns to the professional practice of nursing, she 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. Michael 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. Michael’s probation. f. Ms. Michael’s employer shall require her to work under another appropriately licensed supervisor’s direct supervision for a period of one year. Ms. Michael’s employer shall provide to the Board written quarterly reports of Ms. Michael’s employment on a Board- approved form, signed by the supervisor. Ms. Michael’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. g. Ms. Michael 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. h. Ms. Michael shall work only the day or evening shift, which means a shift that ends prior to midnight. Within a 14-day period, Ms. Michael shall not work more than 84 scheduled hours. i. Ms. Michael shall notify the Board in writing within 7 days of any change in nursing employment, personal address, or telephone number. j. Ms. Michael shall sign all release of information forms required by the Board or its designee. Ms. Michael shall make herself available within 36 hours after the Board or its designee requests an interview. Interviews may be conducted telephonically or in- person. k. Ms. Michael shall bear all costs of complying with the terms of her probation. l. Ms. Michael may voluntarily surrender her registered nurse’s license at any time after the effective date of the Board’s final Decision and Order. m. If Ms. Michael violates the terms of her probation, the Board’s staff may notify her employer of the violation. In addition, the Board may revoke Ms. Michael’s probation and take further disciplinary action against her license after affording Ms. Michael notice and an opportunity to be heard. If a complaint or petition to revoke probation is filed against Ms. Michael 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, October 19, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The record in this matter does not reveal whether the Board knew about the Oregon Board’s revocation when it issued Ms. Michael’s license. The Board did not charge Ms. Michael with making any misrepresentation on her application for licensure in Arizona.

[2] The Board’s Ex. 4 at 2 (emphasis in original; footnote added). [3] The Board’s Complaint and Notice of Hearing erroneously stated that the Oregon Board revoked Ms. Michael’s Oregon license in 2004. See Complaint and Notice of Hearing at 3, ll. 1-2. [4] The Board’s Exhibit 3 at 000201, ll. 12-21 (footnote added). [5] See Ms. Michael’s Ex. G at 1. [6] Id. [7] See id. at 5. [8] See id. at 4. [9] See id. at 3. [10] See id. (last page). [11] Ms. Michael’s Ex. I. [12] Ms. Michael’s Ex. B. [13] See Ms. Michael’s Ex. E, F. [14] See Ms. Michael’s Ex. C. [15] See the Board’s Ex. 3. [16] See id. [17] See Ms. Michael’s Ex. D. [18] See Ms. Michael’s Ex. B. [19] The Board’s Ex. 4 at 1. [20] Id. at 3. [21] Id. [22] Id. [23] Id. [24] 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). [25] See A.A.C. R2-19-119(B)(2). [26] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [27] Black’s Law Dictionary at page 1120 (8th ed. 2004). [28] A.R.S. § 32-1601(18)(f) defines unprofessional conduct to include “[h]aving a license, certificate, permit or registration to practice a health care profession denied, suspended, conditioned, limited or revoked in another jurisdiction and not reinstated by that jurisdiction.” [29] A.R.S. § 32-1601(18)(d) defines unprofessional conduct to include “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” [30] A.A.C. R4-19-403 further defines “unprofessional conduct” for purposes of A.R.S. § 32-1601(18)(d) to include the following:

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.

[31] A.R.S. § 32-1601(18)(d) and (j) define unprofessional conduct to include the following:

(e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. . . . .

(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

[32] 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.

-----------------------

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