ALJDEC decisions subject to certification as final

12A-1203038-NUR · State Board of Nursing · 2012-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2012, with the record held open until December 5, 2012. APPEARANCES: The Arizona State Board of Nursing appeared through Assistant Attorney General Elizabeth Campbell. Respondent Mara Lynne Hall appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ 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. In 1998, the Board issued Registered Nurse License No. RN102731 to Respondent Mara Lynne Hall to allow her to practice nursing in the State of Arizona. On or about March 13, 2012, the Board received an anonymous complaint alleging that Respondent “drinks and uses drugs every day.” It was also alleged that Respondent was arrested for the crime of Driving Under the Influence (DUI), a Class 6 felony, that was not reported to the Board. On or about July 5, 2012, the Board received a complaint from the Vice President of Clinical Operations at North Valley Surgery Center (North Valley Surgery) in Scottsdale, Arizona stating that Respondent had multiple absences and did not follow company policy for reporting absences. The complainant stated that during Respondent’s short employment from May 2012 to July 2012, no performance deficiencies were identified but that the complaint was being submitted out of concern for Respondent and the general public, as it was suspected Respondent had a drinking problem based on her multiple unexplained absences. The Board assigned the complaint to its Nurse Practice Consultant, Susan Perkins, for investigation. Tamara Greabell took over this case from Ms. Perkins. Ms. Greabell interviewed witnesses, had the Board issue a subpoena for Respondent’s employment records, and presented an Investigative Report at the Board’s November 2012 meeting. The Board issued a Notice of Charges, and Respondent requested a hearing on the charges. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On October 5, 2012, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(16)(d), (g), and (j) (2002), § 32- 1601(18)(d), (g), and (j)[1] (2009), A.R.S. § 32-3208(A), and A.A.C. R4-19- 403(B)(17) and (28) (2005) and R4-19-403(1), (17), (26), (27), and (28) (2009) A hearing was held on November 21, 2012. The Board submitted 14 exhibits and presented the testimony of two witnesses: (1) Officer Stephen Hash, who observed Respondent after a March 25, 2011 motor vehicle accident; and (2) Ms. Greabell. Respondent testified on her own behalf. Hearing Evidence July 13, 2006, DUI According to Phoenix Police Department Citation No. 13540491, Respondent was arrested and charged with DUI in Phoenix, Arizona, on July 13, 2006. The results of Respondent’s breath alcohol tests indicated an alcohol concentration of 0.147 and 0.139. Respondent did not report this charge to the Board within 10 days. On October 13, 2006, Respondent was convicted of DUI, a Class 1 Misdemeanor, in Phoenix Municipal Court. The Board learned of the July 13, 2006 DUI charge during its investigation of the complaints that it received against Respondent in March and July 2012. January 3, 2009, Assault and Criminal Damage On January 3, 2009, Respondent was arrested by the Phoenix Police Department and charged with assault and criminal damage (domestic violence). According to the police report, Respondent had been drinking. Respondent did not report these charges to the Board within 10 days. On March 3, 2009, Respondent was convicted of misdemeanor criminal damage in Phoenix Municipal Court. The assault charge was dismissed. On August 15, 2012, the criminal damage conviction was set aside. The Board learned of the January 3, 2009, assault and criminal damage charges during its investigation of complaints received against Respondent in March and July 2012. March 25, 2011, Aggravated DUI According to a Scottsdale Police Department report in case number 11-07197, Respondent was arrested and charged with aggravated DUI after being involved in a collision with injuries on March 25, 2011. Respondent’s 11-year-old daughter was in the vehicle with Respondent at the time of the accident and suffered injuries to her wrist from the airbag. The results of a portable breath test indicated an alcohol concentration of 0.175. The results of a blood test indicated an alcohol concentration of 0.199. On June 30, 2011, a direct complaint was filed against Respondent in Maricopa County Superior Court Case No. CR2011-132750 in connection with the March 25, 2011 DUI. The Direct Complaint charged Respondent with two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs (Class 6 felonies) and one count of extreme aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs (a Class 6 felony). The State issued an indictment on September 13, 2011. Respondent had not been convicted of these charges at the time of the hearing. Respondent did not report these charges to the Board within 10 days. The Board learned of the March 25, 2011 aggravated DUI charges during its investigation of the complaints that it received against Respondent in March and July 2012. Falsified Employment Application On or around April 26, 2012, Respondent completed an application for North Valley Surgery Center, Scottsdale, Arizona, in which she answered “No” to the question: “Have you ever pled guilty or no contest to, or been convicted of, a misdemeanor or felony?” Further, Respondent failed to list the last name “Sand” in response to a question asking for other names used. Respondent also answered “No” to the question: “Have you ever been terminated or asked to resign from any job?” Records show Respondent was terminated from her employment at the following employers for attendance issues: a. Gateway Surgery Center (Phoenix, Arizona) in May 2010 and February 2011; b. North Valley Plastic Surgery (Phoenix, Arizona) in August 2011; and c. Aureus Medical Group (Omaha, Nebraska) in March 2012. On August 7, 2012, the Board received an investigative questionnaire in which Respondent stated that she had not been terminated or resigned in lieu of termination from Aureus Medical Group in Omaha, Nebraska. Aureus Medical Group records show that Respondent was terminated on March 15, 2012, for tardiness/absenteeism. Treatment In November 2011, Respondent sought treatment from Banner Behavioral Health Center. Respondent stated she was seeking treatment for opiate and alcohol detoxification. Respondent admitted to drinking a bottle of wine daily and was diagnosed with alcohol abuse. In early July 2012, Respondent was seen in the emergency department of Mayo Clinic for alcohol intoxication. On July 5, 2012, Respondent was treated for alcohol poisoning at Scottsdale Healthcare Thompson Peak. On July 8, 2012, Respondent was admitted for detoxification treatment at Calvary Recovery Center. Upon admission, Respondent was determined to meet the criteria for alcohol dependence. Respondent admitted to drinking two bottles of wine daily for years and admitted to drinking for 23 years. On July 11, 2012, Respondent was discharged after successfully completing detoxification treatment. Respondent successfully completed Calvary’s Partial Hospitalization Program (“PHP”) on July 24, 2012. Following discharge from PHP, Respondent was referred to Intensive Outpatient Treatment, but failed to attend. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary at page 1120 (8th ed. 2004). Respondent stipulated to the charges and convictions found in Paragraphs 1 through 4 of the Complaint and Notice of Hearing and detailed in Paragraphs through 18 of the Findings of Fact above. Respondent admitted that she has a history of alcohol problems. Respondent indicated that she went through a divorce in March 2011 and that her daughter’s father attempted suicide around that time, which added to her difficulties. Respondent testified that she was not aware that she needed to report the DUI and assault charges to the Board. Respondent stated that she did not enroll in the Intensive Outpatient Therapy recommended after the PHP because she did not have $1,600.00 to pay out-of-pocket for the treatment. Respondent testified that she had been sober since July 2012 and was attending Alcoholics Anonymous meetings almost daily to help continue her recovery. Respondent explained that she applied for employment at North Valley Surgery Center through a staffing company that provided North Valley Surgery Center with all of her information, including background checks and references. When Respondent went to the interview, she was instructed not to bring anything including her cell phone. Respondent was then given a paper application to complete, which she was not expecting. Because Respondent did not have any information with her, she failed to complete the written application accurately. Respondent testified that she was not terminated from Aureus Medical Group despite its records to the contrary. The Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(d), (g), and (j) (2002), and A.R.S. § 32- 1601(18)(d), (g), and (j) (2009)[2] specifically A.A.C. R4-19-403(B)(17) and (28) (2005)[3] and A.A.C. R4-19-403(1), (17), (26), (27), (28) (2009).[4] The Board established cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).[5]

RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board place on probation for a term of five years Registered Nurse License No. RN102731 previously issued to Respondent Mara Lynne Hall. It is further recommended that the terms of Respondent’s probation include the following: a. Respondent’s license shall be stamped with the word, “PROBATION.” b. Respondent shall undergo a psychological evaluation for substance abuse performed by a Board-approved mental health professional. Respondent 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, Respondent 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. Respondent must attend at least one Nurse Recovery Group meeting a week and must have no unexcused absences or “no call/no show” occurrences. d. Respondent 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. Respondent 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, Respondent shall be evaluated by a Board- approved relapse prevention therapist, who at a minimum possesses a masters degree. If the therapist recommends that Respondent enroll in a relapse prevention program or other therapy, Respondent shall enroll in such Board-approved program within 30 days after the Board notifies her of the therapist’s recommendation. Respondent shall authorize the therapist to release the evaluation to the Board. If Respondent enrolls in relapse prevention or other therapy, she shall authorize the provider of such therapy to release her records to the Board. f. Respondent shall abstain from consumption of alcohol or any illegal or prescription drugs, except those drugs prescribed to her by a licensed healthcare provider. Respondent 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, Respondent shall enroll in a program that meets the Board’s criteria for random drug testing. Respondent 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, Respondent shall undergo random drug tests a minimum of once per month. h. Respondent 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, Respondent 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 Respondent’s probation. The employer shall provide to the Board written quarterly reports of Respondent’s employment on a Board- approved form. Respondent’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. Respondent 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. Respondent shall have direct supervision for the first 12 months of the Board’s final Decision and Order, and on-site supervision thereafter. k. Respondent shall work only the day or evening shift, which means a shift that ends prior to midnight. Within a 14-day period, Respondent shall not work more than 84 scheduled hours. l. Respondent shall notify the Board in writing within 7 days of any change in nursing employment, personal address, or telephone number. m. Respondent shall sign all release of information forms required by the Board or its designee. Respondent shall make herself available within hours after the Board or its designee requests an interview. Interviews may be conducted telephonically or in-person. n. Respondent shall bear all costs of complying with the terms of her probation. o. Respondent may voluntarily surrender her registered nurse’s license at any time after the effective date of the Board’s final Decision and Order. p. If Respondent violates the terms of her probation, the Board’s staff may notify her employer of the violation. In addition, the Board may revoke Respondent’s probation and take further disciplinary action against her license after affording Respondent notice and an opportunity to be heard. If a complaint or petition to revoke probation is filed against Respondent 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 26, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The Complaint and Notice of Hearing incorrectly identified A.R.S. § 32- 1601(18)(h) (2009) as A.R.S. § 32-1601(16)(h). The Complaint and Notice of Hearing correctly cited the language of A.R.S. § 32-1601(18)(h) (2009), so Respondent had appropriate notice of the allegation. [2] A.R.S. § 32-1601(16)(d), (g), and (j) (2002) and A.R.S. § 32- 1601(18)(d), (g), and (j) (2009) define “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public,” “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter,” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [3] This rule further defines “unprofessional conduct” 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] . . . . 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged.

[4] A.A.C. R4-19-403(17) and (28) (2009) contain identical language to that found in A.A.C. R4-19-403(B)(17) and (28) (2005) as quoted previously. 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; . . . . 26. Making a written false or inaccurate statement to the Board or the Board's designee in the course of an investigation; [or] . . . . 27. Making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials.

[5] 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