ALJDEC decisions subject to certification as final

13A-1102035-NUR · State Board of Nursing · 2014-03-20

2IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2013, with the record held open until February 28, 2014. APPEARANCES: Carol Ann Cifelli was represented by Kelly J. McDonald. The Arizona State Board of Nursing was represented by Sarah Selzer, Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 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 Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. 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. §§ 32-1601-1667. 2. Carol Ann Cifelli (Respondent) holds Board-issued Registered Nurse License No. RN053355 in the State of Arizona. Graham County Superior Court 3. On October 26, 1998, in Graham County Superior Court case number CR980262, Respondent was charged by information with one count of possession of a dangerous drug for sale, a class two felony; one count of possession of a dangerous drug, a class four felony; one count of possession of marijuana, a class six felony; and one count of possession of drug paraphernalia, a class six felony. 4. Respondent did not report to the Board within 10 days that she had been charged with the felonies. 5. On December 28, 1998, in Graham County Superior Court case number CR980262, Respondent was convicted, pursuant to a guilty plea, of possession of marijuana and possession of drug paraphernalia, both class one misdemeanors. 6. On October 15, 2002, the Graham County Superior Court granted Respondent’s request to vacate the judgment and set aside the judgment of guilt and sentence in Graham County Superior Court case number CR980262. Yuma County Superior Court 7. At approximately 5:10 a.m. on January 8, 2005, Respondent was driving when she encountered a Border Patrol check point at Interstate 8, milepost 17. At the stop, the narcotics dog alerted on the vehicle which resulted in the vehicle going to a secondary inspection. 8. According to the presentence report, at the secondary inspection, Respondent and two other passengers, Seth Mayer and Edgar Sosa, were searched. Inside the vehicle, agents found a cigarette box with a green leafy substance that later field tested as being 9.56 grams of marijuana. A glass smoking device, a marijuana cigarette, and a small baggie that contained a white substance that later field tested as being methamphetamine were found on Mr. Mayer. In Respondent’s purse, agents found eight yellow pills identified as Diazepam that Respondent stated were from a prescription issued five or six years previously. Also found in Respondent’s purse was a booklet of white papers known as Zig Zags and a clear plastic film canister that contained a small clear plastic bag that contained a rock like substance that later field tested positive as methamphetamine with an approximate weight of two grams. The suitcases in the pickup bed were then searched, and the suitcase that belonged to Respondent had a glass smoking device with drug residue on it. 9. Respondent refused to answer any questions without an attorney present. Therefore, she was transported to the Yuma County Adult Detention Facility where Respondent was jailed on charges of possession of dangerous drugs, possession of a prescription-only drug, possession of marijuana, and possession of drug paraphernalia. 10. On February 14, 2005, in Yuma County Superior Court case number CR2005-00190, Respondent was charged with knowingly possessing a dangerous drug (methamphetamine), a class four felony; and knowingly possessing drug paraphernalia, a class six felony. 11. Respondent did not report to the Board within 10 days that she had been charged with the felonies. 12. On March 17, 2005, Mr. Mayer authored a notarized letter in which he took full responsibility for the drugs and paraphernalia discovered during the incident. Mr. Mayer stated that he did not disclose to Respondent that he was in possession of the illegal items. 13. According to Respondent’s statement included in the presentence report, she denied that the purse belonged to her as she did not own or use a purse, but acknowledged that the Diazepam pills in the purse did belong to her. 14. On May 2, 2006, in Yuma County Superior Court case number CR2005-00190, Respondent was convicted of possession of drug paraphernalia, a class one misdemeanor. 15. On October 22, 2010, the Yuma County Superior Court granted Respondent’s application to set aside the judgment in case number CR2005-00190. License Renewal 16. On December 11, 2009, Respondent signed a renewal application for her registered nurse license. Respondent’s previous renewal had been in 2005. On her application, Respondent signed under a Verification of Oath or Affirmation that she understood she was declaring under penalty of perjury that she had not suppressed any information and that her statements were true in every respect. Question 27 of the renewal application read as follows: Before answering the next question read the following: The fact that a conviction has been pardoned, expunged, dismissed, deferred, reclassified, redesignated or that your civil rights have been restored, does not mean that you answer this question “no”; you would have to answer “yes” and give details on each conviction. . . . . Since your last renewal, have you had any drug or alcohol related convictions?

Respondent answered “No” to the question. City of Phoenix 17. On December 8, 2012, in City of Phoenix complaint number 14243598, Respondent was charged with domestic violence related assault, a criminal misdemeanor. The charge was dismissed without prejudice. 18. Respondent did not report to the Board within 10 days that she had been charged with a reportable criminal misdemeanor. The Board Investigation 19. On or about February 6, 2011, the Board received a complaint alleging that Respondent had inappropriately treated a patient with “Lipo Dissolve” at her practice, LipoNow. Based on the information contained in the complaint, the Board opened an investigation. 20. Ultimately, the Board did not find any cause to discipline Respondent’s license during its investigation of the February 6, 2011, complaint. 21. On or about December 29, 2012, the Board received a complaint from Pamela Fox alleging that Respondent was practicing outside her scope, was using illegal substances, and had a problem with alcohol. 22. In the written complaint, Ms. Fox stated that she had known Respondent since November 2011, was Respondent’s partner, and had lived with Respondent off and on over the course of a year. Ms. Fox alleged that Respondent was providing intravenous therapy to patients. Ms. Fox also stated that Respondent had a drug problem lasting several years and was a daily methamphetamine user. Ms. Fox related that on December 8, 2012, she was attacked and beaten by Respondent and both were arrested as a result with the charges later being dropped. Ms. Fox indicated she was residing in a domestic violence shelter. 23. In a telephonic interview with Board staff on March 13, 2013, Ms. Fox stated that she had never seen Respondent take illegal drugs, purchase illegal drugs, or have drug paraphernalia in her presence. Ms. Fox admitted she had been an addict for many years and was not sober at the time of the December 8, 2012, incident. Ms. Fox indicated that while traveling abroad, Respondent had found someone else she cared about, which led to the tension between Ms. Fox and Respondent. 24. Ms. Fox testified she had been sober since February 3, 2013, and was sober at the time of the March 13, 2013, interview. Ms. Fox averred that she had made up the information in the complaint in an attempt to hurt Respondent after their breakup. Ms. Fox stated that she was working through her recovery and was testifying at the hearing because she wanted to make amends. 25. In a telephonic interview with Board staff on January 14, 2013, Dr. Harolyn Giles stated that she served as the medical director for Respondent’s practice. Dr. Giles indicated that she did not have any concerns that Respondent had a current or previous substance abuse issue. 26. Dr. Giles testified at the hearing that she had known Respondent since 2004 and had no concerns regarding Respondent’s ability and safety to practice. 27. At its May 2013 meeting, the Board determined that reasonable cause existed to issue an interim order for Respondent to undergo a psychological evaluation to be completed by a Board- approved licensed psychologist with expertise in substance abuse disorder. 28. On May 28, 2013, the Board issued an Interim Order to Respondent in which Respondent was directed to submit to a psychological evaluation to be completed by a Board approved licensed psychologist with expertise in substance use disorder. The evaluation was to be completed within 45 days of the Interim Order being served on Respondent. 29. Respondent did not comply with the Interim Order. Respondent did not request that the Board reconsider the issuance of the Interim Order and Respondent did not pursue any special action in Superior Court attacking the validity of the Interim Order. 30. On October 10, 2013, 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(14)(d) and (j) (1998); A.R.S. § 32-1601(16)(b), (d), and (j) (2002); A.R.S. § 32-1601(18)(a), (d), and (j) (2009); A.R.S. § 32-1601(22)(d), (i), and (j) (2012);[1] and A.A.C. R4-19-401(12) and (13) (1995); A.A.C. R4-19-403(17) and (18) (2005); and A.A.C. R4-19-403(26), (27), and (28) (2009).[2] 31. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on December 4, 2013. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 2. The Office of Administrative Hearings has the authority to hear matters involving appealable agency actions. Arizona statute specifically excludes from the definition of appealable agency actions “interim orders by self-supporting regulatory boards.” A.R.S. § 41-1092(3). 3. The Board bears the burden of proof and must establish cause to penalize Respondent’s practical 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). 4. “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 1120 (8th ed. 2004). 5. The Board established by a preponderance of the evidence that Respondent failed to notify the Board in writing within 10 days of being charged with a felony or a misdemeanor involving conduct that may affect patient safety, which constituted unprofessional conduct as defined by A.R.S. § 32- 1601(22)(j); A.A.C. R4-19-403(28) (2009). 6. The Board established by a preponderance of the evidence that Respondent committed a misdemeanor involving moral turpitude in that Respondent was convicted of the misdemeanor charges of possession of marijuana and possession of drug paraphernalia, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(22)(b). 7. The Board established by a preponderance of the evidence that Respondent committed fraud or deceit in renewing a license and that her false answer on her renewal application was a written false or inaccurate statements to the Board, which constituted unprofessional conduct as defined by A.R.S. § 32- 1601(22)(a) and A.A.C. R4-19-403(26) and (27) (2009). 8. Respondent argued that the Interim Order issued by the Board was not based on reasonable cause, and therefore, her failure to comply with the Interim Order should not be a basis for discipline. The Board argued any attack on the propriety of the Interim Order should not be considered before the Office of Administrative Hearings; rather, such an attack should be brought before the Board or should be raised in a special action in Superior Court. Respondent directed the Administrative Law Judge to a 2005 case in which the Board argued before the Superior Court that the proper approach to attack the propriety of the Interim Order was before the Office of Administrative Hearings and that a special action was premature. 9. While it is noted the Board may have taken an alternative position previously, that does not bind this Administrative Law Judge. As interim orders are expressly excluded from the definition of appealable agency actions, it is not within the jurisdiction of the Office of Administrative Hearings to determine whether the interim order itself was proper. 10. The Board established by a preponderance of the evidence that Respondent failed to comply with the Interim Order, which constituted unprofessional conduct as defined by A.R.S. § 32- 1601(22)(i). 11. Despite the Board’s argument that Respondent’s failure to comply with the Interim Order, together with her other actions, established she was not able to be regulated at this time, the Administrative Law Judge does not find that to be true. Respondent’s failure to comply with the Interim Order appears to be based on a mistaken belief that she could attack the propriety of that order before the Office of Administrative Hearings. Respondent appeared dedicated to her practice and intent on complying with the requirements of the Board in the future. 12. The Board established cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1663(D)[3] and A.R.S. § 32-1664(N).[4] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board place on probation for a term of twelve (12) months Registered Nurse License No. RN053355 previously issued to Respondent Carol Ann Cifelli. 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, March 20, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] A.R.S. § 32-1601(14)(d) and (j) (1998); A.R.S. § 32-1601(16)(b), (d), and (j); A.R.S. § 32-1601(18)(a), (d), and (j) (2009); A.R.S. § 32- 1601(22)(d), (i), and (j) (2012) define “unprofessional conduct” to include, respectively,

(a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. (b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. . . . . (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (i) Failing to comply with a stipulated agreement, consent agreement or board order. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

[2] A.A.C. R4-19-401(12) (1995) and A.A.C. R4-19-403(17) (2005) further define “unprofessional conduct” to include:

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, school, institution, or other work location.

A.A.C. R4-19-401(13) (1995) and A.A.C. R4-19-403(18) (2005) further define “unprofessional conduct” to include:

Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices.

A.A.C. R4-19-403(26), (27), and (28) (2009) further define “unprofessional conduct” to include:

26. Making a written false or inaccurate statement to the Board or the Board’s designee in the course of an investigation; 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; 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. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense.

[3] A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. [4] A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

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