ALJDEC decisions subject to certification as final

13A-1112071-NUR · State Board of Nursing · 2013-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2013. The record was kept open until September 3, 2013, for the filing of the court reporter’s transcript. APPEARANCES: Patricia Keams appeared personally. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona. 2. Patricia Keams (“Applicant”) is the holder of Practical Nurse License No. LP028441 issued by the Board. 3. On January 16, 2001, Applicant signed a Consent Agreement for Decree of Censure of Practical Nurse License No. LP028441 for multiple misdemeanor convictions of Driving Under the Influence. 4. On or about August 14, 2002, Applicant was convicted of Aggravated Driving While Under the Influence, a Class 4 felony, in the Superior Court of Maricopa County, Arizona. 5. As a result of Applicant’s felony conviction, the Board issued Findings of Fact, Conclusions of Law and Order No. 0509025 dated March 20, 2006, that revoked Applicant’s Practical Nurse License No. LP028441.[1] 6. On December 5, 2011, Applicant filed with the Board an Application for Re-issuance of her Practical Nurse License No. LP028441. 7. Applicant’s application was assigned to Linda L. Monas, a senior investigator with the Board. 8. During the course of her investigation, Ms. Monas reviewed Applicant’s disciplinary history with the Board and her criminal history. 9. On April 15, 2013, Applicant was interviewed by Investigator Monas at the Board’s offices. During that interview, Applicant broke down crying and informed Investigator Monas that she had been arrested in March 2013, for Driving Under the Influence. 10. Applicant admitted to Investigator Monas that she had relapsed six months prior to her recent arrest. Applicant stated that she began drinking again due to the loss of her father and because her son had moved out of her house. 11. After learning of Applicant’s March 2013 arrest, Investigator Monas subpoenaed the police records and court records for that criminal charge. 12. Applicant was charged in Phoenix Municipal Court with the following offenses as a result of the March 2013 incident: (i) Failure to yield from a private drive; (ii) Driving on a Suspended or Revoked license; (iii) Driving Under the Influence to the slightest degree; (iv) Driving Under the Influence with a blood concentration of greater than .08; (v) Extreme Driving Under the Influence with a blood concentration of .15 to less than .20; and (vi) Extreme Driving Under the Influence with a blood concentration over .20. 13. Applicant failed to report her March 2013 charges to the Board within days of being charged. 14. Investigator Monas prepared a written Investigative Report that was presented to the Board for consideration at the Board’s May 2013 meeting. 15. At the Board’s May 2013 meeting, the Board reviewed Investigator Monas’ Investigative Report and voted unanimously to deny re-issuance of Practical Nurse License No. LP028441. 16. On May 22, 2013, the Board, through its Executive Director, issued an Order of Denial of Re-Issuance of LPN License Order No. 1112071 denying Applicant’s application for re-issuance of her licensure to practice nursing.[2] 17. Applicant timely requested an administrative hearing to appeal the Board’s denial of her application. The Board forwarded Applicant’s appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 18. On June 5, 2013, Applicant entered guilty pleas to the charges of Driving with a Driving License suspended, revoked, or cancelled, and Extreme Driving Under the Influence with a blood alcohol concentration of .20 or more. 19. On July 9, 2013, the Department issued a Notice of Public Hearing on Denial of Licensure that advised that the Board’s denial of Applicant’s application for re-issuance of her practical nurse license was based upon the following determinations: (i) That Applicant had committed acts of unprofessional conduct pursuant to A.R.S. § 32- 1663(A); (ii) That Applicant failed to timely report a pending Driving Under the Influence charge as required by A.R.S. § 32-3208; and (iii) That Applicant failed to establish rehabilitation as required by A.A.C. R4-404(C)(4). 20. At the hearing, Applicant testified that she disagreed with the Board’s reference to a Driving Under the Influence incident on November 20, 1995, when the reference should have been to December 1995.[3] That particular point was the only dispute Applicant testified about at the hearing. 21. Investigator Monas testified concerning her investigation, her Investigative Report, and the Board’s actions in this matter. 22. Applicant’s recent arrest for an alcohol-related driving offense, in light of her criminal history for such offenses, including a felony conviction, resulting in the revocation of her nursing license, established that Applicant has not rehabilitated herself. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-1092.07(G)(1) and A.A.C. R2-19-119(B), Applicant has the burden of proof in this appeal. Pursuant to A.A.C. R2-19-119(A), the standard of proof is by a preponderance of the evidence. 2. The evidence of record established that Applicant violated the provisions of A.R.S. § 32-3208(B)[4] (effective September 18, 2003) when she failed to report her March 2013 alcohol-related driving offense to the Board until she disclosed it during the investigational interview on April 15, 2013. 3. Pursuant to A.R.S. § 32-3208(E),[5] the Board may deny Applicant’s application because she did not comply with the notification requirement of A.R.S. § 32-3208(B). Applicant had the responsibility to timely notify the Board of her March 13, 2013, alcohol-related driving offense. 4. Applicant failed to establish rehabilitation in this matter. Therefore, the Board had good cause to deny her application for re- issuance of her revoked practical nurse license, pursuant to A.A.C. R4- 19-404(C)(4).[6] 5. The evidence of record supports the Board’s denial of Applicant’s application for re-issuance of her revoked nursing license for her acts of unprofessional conduct, pursuant to A.R.S. § 32-1663(A).[7] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board’s Order of Denial No. 1112071 be upheld and affirmed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be five (5) days from the date of the certification. Done this day, September 23, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, FAAN, Executive Director State Board of Nursing ----------------------- [1] See Exhibit 3. [2] See Exhibit 8. [3] See Exhibit 8 at 1, Finding of Fact 2. [4] A.R.S. § 32-3208(B) provides as follows: “An applicant for licensure or certification as a health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after submitting the application must notify the regulatory board in writing within ten working days after the charge is filed.” [5] A.R.S. § 32-3208(E) provides as follows: “The regulatory board may deny the application of an applicant who does not comply with the notification requirements of this section.” [6] A.A.C. R4-19-404(C)(4) provides as follows:

After consideration of the application and any information required under subsection (C)(2),the Board may: a. Grant the license with or without conditions or limitations; b. If other licensure requirements have been met, grant, with or without conditions, a temporary license for the sole purpose of allowing the applicant to successfully complete an approved nurse refresher course; or c. Deny the license if the Board determines that licensure might be harmful or dangerous to the health of a patient or the public.

[7] The Order of Denial of Re-issuance of LPN License Order No. 1112071 listed the following violations constituting unprofessional conduct:

A.A.C. R4-19-403(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, school, institution, or other work location) (effective January 30, 2009), A.A.C. R4-19-403(25) (Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664) (effective January 30, 2009), A.A.C. R4-19-403(27) (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)(effective January 30, 2009), A.A.C. R4-19-404(B) (A person whose nursing license is denied, revoked, or voluntarily surrendered under A.R.S. § 32-1663 may apply to the Board to issue or re-issue the license: 1. Five years from the date of denial or revocation) (C) (A person who applies for issuance or re-issuance of a license under the conditions of subsection (B) is subject to the following terms and conditions: 1. The person shall submit a written application for issuance or re-issuance of the license that contains substantial evidence that the basis for surrendering, denying, or revoking the license has been removed and that the issuance or re-issuance of the license will not be a threat to public health or safety. 4. After consideration of the application and any information required under subsection (C)(2), the Board may: c. Deny the license if the Board determines that licensure might be harmful or dangerous to the health of a patient or the public) (effective February 2, 2009).

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