ALJDEC decisions subject to certification as final

11A-1003018-NUR-rhg · State Board of Nursing · 2012-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: August 14, 2012, at 1:00 p.m. and October 31, 2012, at 8:00 a.m.; the record was held open until November 15, 2012, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript. APPEARANCES: The Arizona State Board of Nursing appeared through Elizabeth A. Campbell, Esq., Assistant Attorney General; Respondent Laura Michael 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, 32-1663, and 32-1664. The Board also has the authority to impose disciplinary sanctions against holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. 2. The Board issued Registered Nurse License No. RN113397 to Respondent Laura Michael to allow her to practice nursing in the State of Arizona. 3. On or about March 12, 2010, the Board received a complaint from Sandra Maas, the Nursing Director at Estrella Mountain Community College (“EMCC”).[1] Ms. Maas reported that on March 10, 2010, while EMCC employed Ms. Michael as an adjunct clinical instructor assigned to a clinic at the medical-surgical intensive care unit (“ICU”) at Banner Health Good Samaritan Hospital (“Banner Good Sam”), nursing staff and students had observed Ms. Michael to be impaired. Ms. Maas stated that Ms. Michael and the students were sent home and that Ms. Michael was relieved of her teaching assignment. 4. 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. The Board also required Ms. Michael to undergo a Neuropsychological and Substance Abuse Assessment by Scott Sindelar, Ph.D. 5. The Board referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on October 3, 2011, at the OAH before the undersigned Administrative Law Judge (“the ALJ”). 6. The ALJ issued a recommended decision to the Board pursuant to A.R.S. § 41-1092.08(A) and the Board acted on the recommended decision. Thereafter, the Board granted a rehearing to Ms. Michael because through an oversight, the Board had not notified her of her right to request copies of the Board’s investigative file under A.R.S. § 32- 3206 before the October 3, 2011 hearing. 7. The Board referred the matter back to the OAH for rehearing and on March 21, 2012, issued a Complaint and Notice of Hearing that set a hearing on May 14, 2012. The March 21, 2012 Complaint and Notice of Hearing charged Ms. Michaels with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(18)(d), 32-1601(18)(e), 32- 1601(18)(f), and 32-1601(18)(j) (effective October 14, 2009). For purposes of the charged violation of A.R.S. § 32-1601(18)(d), the Board charged Ms. Michaels with having violated A.A.C. R4-19-403(17) and R4-19-403(31) (effective February 2, 2009). 8. On or about April 20, 2012, the OAH received a motion for a 90-day continuance from Complainant for the following reasons: I suffered a cervical spine injury while working in the capacity of nursing and have since undergone two surgeries. I am still requiring ongoing physical rehabilitation and monthly medical attention. I have been unable to return to work to date, due to neuropathy, pain, and side effects from a surgically implanted neuro-stimulator. In light of the circumstances, I have relocated, at my parent’s expense, to Oregon for family support- financially, emotionally and physically. . . . I am currently continuing the physical rehabilitation that is necessary for me to return to the workforce. My belongings, including the documentation needed for the hearing, are in storage in Arizona. I no longer own a home or a vehicle.

Any disruption or stressful event at this time would cause undue harm to me and would cause a tremendous financial and physical hardship. My current circumstances also make it impossible for me to provide myself with adequate representation at the May 14, 2012 hearing date. I respectfully request a 90-day continuance from the date mentioned above in order to continue physical rehabilitation, obtain legal representation, gather necessary materials, subpoena witnesses, and secure the monies needed to make the trip to Arizona.

Complainant provided a new mailing address in Roseburg, Oregon. 9. The Board’s attorney filed a response stating that it did not oppose Ms. Michael’s requested continuance. Therefore, on April 24, 2012, the ALJ issued an order continuing the hearing until August 14, 2012. The April 24, 2012 order informed the parties that “[a]bsent extraordinary circumstances, no further continuances will be granted.” 10. A hearing was commenced on August 14, 2012. The Board’s attorney appeared with Ms. Barber as party representative, two other witnesses, and had available as a witness Dr. Sindelar, who had been granted permission to testify telephonically. Ms. Michael appeared personally. 11. At the August 14, 2012 hearing date, the Board’s attorney avowed that pursuant to Ms. Michael’s request, the Board had provided to Ms. Michael copies of the exhibits that both she and the Board had submitted at the initial hearing on October 3, 2011. The Board’s attorney also avowed that although the Board could not provide to Ms. Michael a copy of the court reporter’s transcript of the October 3, 2011 hearing due to proprietary concerns, the Board had informed Ms. Michael that she could obtain a copy of the transcript directly from the court reporter or view a copy of the transcript at the Board’s office. 12. On August 14, 2012, Ms. Michael stated that she had received all the documents that she had requested from the Board but that she had not been able to obtain a copy of the court reporter’s transcript. Ms. Michaels stated that she was not willing to go forward without the transcript and that she needed additional time to prepare for her cross-examination of Dr. Sindelar because she had just learned that he would testify telephonically. 13. The ALJ informed Ms. Michael that she could obtain a record of the October 3, 2011 hearing by making payment arrangements with the court reporter to obtain a copy of the transcript, viewing the transcript at the Board’s office, or listening to the digital audio-recording of the October 3, 2011 hearing on the OAH website. 14. To avoid any further notice issues under A.R.S. § 32-3206, the ALJ granted Ms. Michael’s request that a further hearing be set and required the parties to disclose their evidence to their opponent two weeks before the scheduled further hearing. To ensure that Ms. Michael had time to extensively cross-examine the Board’s witnesses as she requested, the ALJ set a two-day further hearing. 15. On August 14, 2012, the ALJ issued an order setting further rehearing dates on October 31, 2012, and November 1, 2012, and requiring the parties to disclose to their opponent the evidence that they intended to present at the further hearing on or before October 16, 2012. The August 14, 2012 order informed the parties that “[a]bsent extraordinary circumstances, the further hearing dates will not be continued and no further hearing dates will be scheduled.” 16. On October 4, 2012, Ms. Michael submitted a letter requesting that the further rehearing dates be continued indefinitely for the following reasons: As I have previously communicated, the injury I suffered continues to require ongoing physical rehabilitation and monthly medical attention. Furthermore, Dr. Charles Hundley has deemed me totally disabled and unable to return to work due to worsening neuropathy, worsening pain, and the side effects from the implanted neuro-stimulator. Due to the physical and financial strain, the recent trip to Phoenix precipitated further hardships. I do not foresee my physical or financial situation changing in time to return to Arizona for hearing with the limited time constraints.

As written in my previous request, any disruption or stressful event at this time would cause undue harm to me and would cause a tremendous financial and physical hardship. My current circumstances also make it impossible for me to provide myself with adequate representation at the October 31-November 1, 2012 hearing date. I respectfully request an unspecified time for continuance from the date mentioned above, pending further testing and diagnosis, in hopes of improved physical health, which in turn would lead to employment and improvement of finances allowing my return to Phoenix for a fair hearing.

Ms. Michael attached to her letter a document from Charles Hundley, D.O. that contained a list of the medications that Ms. Michael was currently taking, including methadone, Soma, and Percocet.[2] 17. The Board objected to any further continuance. On October 9, 2012, the ALJ issued an order denying Ms. Michael’s request for continuance. The October 9, 2012 order was sent to the parties’ street and e-mail addresses. 18. On October 18, 2012, Complainant submitted electronically another request that the hearing be continued due to her continued ill health and financial inability to travel to Phoenix from Oregon for the further hearing. 19. On October 18, 2012, the ALJ issued an order denying Complainant’s request to continue the further hearing indefinitely, but informing Complainant that she could submit a request in writing to appear telephonically at the continued further hearing under A.A.C. R2-19- 114. The October 18, 2012 order was sent to the parties at their e- mail addresses. 20. The continued further hearing was held on October 31, 2012. The Board appeared through its attorney, submitted six exhibits, and presented the testimony of six witnesses: (1) Ms. Barber; (2) Ms. Maas; (3) Dr. Sindelar; (4) Jared Grow, RN, one of Ms. Michael’s students at EMCC on March 10, 2010; (5) Lane Griswold, RN, another of Ms. Michael’s students at EMCC on March 10, 2010; and (6) Sylvia Turcott, RN, the Senior Manager of the Medical Surgical ICU at Banner Good Sam, who observed and spoke to Ms. Michael on March 10, 2010. 21. Ms. Michael did not request to appear telephonically at the hearing. Although the start of the further hearing was delayed fifteen minutes and the further hearing did not conclude for more than two hours, Ms. Michael did not contact the OAH or appear personally, telephonically, or through an attorney. Consequently, Ms. Michael did not present any evidence to defend her registered nurse license. Hearing Evidence The Revocation of Ms. Michael’s Nursing License in Oregon 22. On October 24, 2000, the Oregon State Board of Nursing issued a Final Order by Default against Ms. Michael revoking her license to practice nursing in Oregon based on her failure to comply with its April 21, 2000 Order for a Psychiatric Evaluation and Chemical Dependence Evaluation.[3] The March 10, 2010 Incident at Banner Good Sam 23. On March 10, 2010, EMCC employed Ms. Michaels as an adjunct clinical professor for a course at Banner Good Sam medical surgical ICU. Some of Ms. Michaels’ students, including Mr. Griswold, were in a carpool that picked up Ms. Michaels to take her to Banner Good Sam. 24. Mr. Griswold testified that students were due at Banner Good Sam at 6:30 a.m. for the morning briefing. When the carpool arrived at Ms. Michael’s home at approximately 5:30 a.m. on March 10, 2010, her house was dark and no one appeared to be home. Mr. Griswold testified that one of the students knocked on Ms. Michael’s front door for approximately 20 minutes. 25. Mr. Griswold testified that when Ms. Michael finally answered the door, she had a cup of coffee with a straw in it. Ms. Michael sat in the middle of the back seat of the quad cab pickup that the carpool used, between Mr. Griswold and another student. 26. Mr. Griswold testified that on the ride to Banner Good Sam, Ms. Michael’s speech was slurred and she dozed off several times. Occasionally, Ms. Michael laid her head on the shoulder of the student sitting on the other side of the back seat. Although Mr. Griswold saw the straw go into Ms. Michael’s mouth or nose several times, she never took a drink of the coffee. 27. Mr. Griswold testified that the March 10, 2010 clinical session was either the last or the next to last one scheduled. Due to Ms. Michael’s strange behavior, Mr. Griswold called his classmate, Mr. Grow, to ask his opinion about Ms. Michael’s condition because Mr. Grow was a certified paramedic who was more familiar with the signs of impairment. 28. Mr. Grow met the carpool at the McDonald’s at North 12th Street and East McDowell Road. Mr. Grow testified that Ms. Michael was in the back seat of the pickup wearing a neck brace and appeared to be tired or sleeping. Mr. Griswold testified that after Ms. Michael drank some coffee at the McDonald’s, she seemed to wake up slightly, but that she still showed signs of impairment. 29. Mr. Grow and the carpool that included Ms. Michael proceeded to Banner Good Sam and arrived late for their scheduled clinic. Mr. Grow and Mr. Griswold testified that Ms. Michael’s gait was uncharacteristically unsteady when she walked into Banner Good Sam’s lobby. 30. Mr. Grow and Mr. Griswold testified that after they reached Banner Good Sam, Ms. Michael went to her station. Mr. Griswold testified that he saw Ms. Michael one time when she misplaced her paperwork. Mr. Griswold testified that Ms. Michael’s gait was still unsteady and the other nurses asked, “What is wrong with your instructor?” 31. Ms. Turcott testified that on March 10, 2010, she received a call from one of the nurses at the Banner Good Sam medical-surgical ICU asking her to come to the ICU because one of the EMCC instructors seemed confused or impaired because the instructor was looking under tables for her book bag, even though the view under the tables was unobstructed. 32. Ms. Turcott testified that at approximately 11:30 a.m., she went to the cafeteria to find Ms. Michael taking a lunch break with her class. Ms. Turcott testified that after she introduced herself to Ms. Michael and she apologized for interrupting her lunch, Ms. Michael looked at her quizzically. 33. Ms. Turcott testified that when she asked Ms. Michael to step away from the class, it took a moment for Ms. Michael to stand and although Ms. Michael did not stumble, she could not walk in a straight line. Ms. Turcott testified that when she explained that a nurse on the unit was concerned because Ms. Michael appeared to be disoriented, Ms. Michael’s eyes “closed and opened.” 34. Ms. Turcott testified that she could tell Ms. Michael was impaired, although Ms. Michael did not smell of alcohol. Ms. Turcott testified that Ms. Michael’s speech was slow and that after she started a sentence, her speech became quieter and she started to mumble, although she was not quite slurring her words. Ms. Turcott testified that Ms. Michael was not able to stay on topic and seemed to think it was later in the day than it actually was. 35. Ms. Turcott testified that Ms. Michael absolutely was not competent to continue as a nursing supervisor because she was impaired. Ms. Turcott called Ms. Maas to inform her that Ms. Michael and her students had been asked to leave Banner Good Sam. 36. Ms. Maas testified that Ms. Turcott informed her that the students had picked up Ms. Michael at home and that she had come out wearing her pajamas with Fentanyl patches on her arms. Ms. Maas testified that Ms. Michael’s behavior was not the kind of professional conduct that was expected from EMCC instructors. 37. Ms. Maas called Ms. Michael shortly after 3:30 p.m. on March 10, 2010, at Banner Good Sam. Ms. Maas testified that Ms. Michael’s speech was slurred and she had difficulty staying on topic. Ms. Maas asked Ms. Michael if she was alright and asked her to leave the premises. 38. Ms. Maas called Ms. Michael at home later in the evening of March 10, 2010, to make sure that she had gotten home safely. Ms. Maas testified that Ms. Michael was slightly less confused in the evening than she had been in the afternoon. 39. Ms. Maas testified that she was concerned about Ms. Michael’s impairment because she was responsible for supervising students’ care of ICU patients, who were particularly ill, fragile, and vulnerable. Ms. Maas testified that she was concerned about the well-being and safety of the patients, the students, and Ms. Michael. 40. Ms. Maas called Ms. Michael again on March 11, 2010, the day after the incident. Ms. Maas testified that Ms. Michael’s speech was less slurred and that she was better able to follow the conversation. Ms. Maas testified that she did not want to presume that Ms. Michael was chemically impaired and asked whether Ms. Michael had been ill on March 10, 2010. Ms. Mass testified that after Ms. Michael admitted to using Fentanyl, Ms. Maas suggested a drug screen, but Ms. Michael declined, stating that the drug screen would also be positive for Valium. Ms. Maas testified that she relieved Ms. Michael of her EMCC teaching duties and instructed Ms. Michael’s students not to pick her up. 41. On March 22, 2010, Ms. Maas spoke to Ms. Michael’s students about the March 10, 2010 incident to obtain additional information and to teach them about their responsibilities as nursing professionals to notify the school and the hospital if they suspected that another nurse was impaired. The students’ comments were consistent with Ms. Turcott’s, Ms. Maas’, Mr. Grow’s, and Mr. Griswold’s testimony about the March 10, 2010 incident.[4] 42. Ms. Maas testified that in her opinion, Ms. Michael was under the influence of narcotic drugs on March 10, 2010. Dr. Sindelar’s Report and Testimony 43. Dr. Sindelar conducted a Neuropsychological and Substance Abuse Assessment on Ms. Michael on December 1, 16, and 17, 2010. Dr. Sindelar made the following report about Ms. Michael’s statements about the March 10, 2010 incident and other evidence of her use of narcotic medications on that date: ➢ Status of Substance Use Disorder: Ms. Michael has a history of substance abuse of alcohol that occurred in her late teens and early 20s. She was arrested two times and charged with DUI. She essentially stopped drinking at that time and rarely uses alcohol. As a result of an injury suffered in late 2009, she was prescribed narcotic medications. She continued to take these prescribed medications, had a surgical fusion of her cervical vertebrae, but continued to experience pain. She also experienced cognitive problems because of the medications. She displayed impaired judgment and behavior resulting in a complaint to the board. After the board complaint, she saw a pain specialist who changed her medications. She states she is now weaning off of these new medications: methadone, Percocet, and Flexeril. She no longer takes soma. . . .[5]

➢ Recovery/Relapse Status She has never been treated for substance abuse issues. I have no evidence of any alcohol related abuse issues since she stopped drinking in her early 20s. The behaviors that resulted in the board complaint may have been a result of improper medication, overmedication, improper use of medication or combination of these issues. She did see a pain specialist who changed her medications and is now monitoring her medications. The objective psychological testing did not indicate an active substance dependence disorder.

44. Dr. Sindelar noted that the list of medications attached to Ms. Michael’s October 4, 2012 motion to continue the hearing included the narcotic medications Percocet, methadone, and Soma, even though in December 2010, Ms. Michael had stated that her pain specialist was weaning her off these narcotic medications. 45. Dr. Sindelar’s report 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.[6]

46. Ms. Barber testified that visual information is important to a nurse’s ability to fulfill her responsibility for patient care because whenever a nurse enters a patient’s room, she must visually scan the room and the patient to determine what was going on with the patient and his surroundings and must respond appropriately to such visual cues. 47. Ms. Barber testified that recalling previously learned information and using it in a new situation is the foundation of the practice of nursing. A nurse must recall her training and adapt it to each new situation and patient. 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 to establish cause to penalize Ms. Michael’s registered nurse’s license by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] 3. The Board established that the Oregon State Board of Nursing revoked Ms. Oregon license. Therefore, Ms. Michael committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(f).[9] 4. The Board established that on March 10, 2010, Ms. Michael was impaired when she was responsible for supervising her EMCC students at their clinical course at Banner Good Sam medical- surgical ICU. Therefore, Ms. Michael committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(d),[10] specifically A.A.C. R4-19-403(17) and (31),[11] and A.R.S. § 32-1601(18)(e) and (j).[12] 5. Dr. Sindelar’s evaluation report and Ms. Barber’s testimony about the significance of the specific impairments that Dr. Sindelar identified in Ms. Michael’s neuropsychological functioning establish that at this time, Ms. Michael is not safe to practice. 6. Ms. Michael’s failure to appear for the further rehearing that was scheduled at her request or to submit any evidence on her own behalf indicates that at this time, she is not amenable to regulation. Because the Board established that Ms. Michael committed unprofessional conduct as defined by statute and regulation, it established cause to revoke Ms. Michael’s license under A.R.S. §§ 32-1663(D) and 32- 1664(N).[13] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Board’s order, Respondent Laura Michael’s Registered Nurse License No. RN113397 be revoked. 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 4, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See the Board’s Exhibit 1. [2] See the Board’s Exhibit 6. [3] See the Board’s Exhibit 5 at 180. [4] See the Board’s Exhibit 2. [5] The Board’s Exhibit 4 at 1. [6] The Board’s Ex. 4 at 2 (emphasis in original). [7] 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). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] 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.” [10] 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.” [11] 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. [12] 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.

[13] 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