ALJDEC decisions subject to certification as final

13A-1201078-NUR · State Board of Nursing · 2017-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP035306 ISSUED TO:

ELLIOTT EDWARD FISHER,

RESPONDENT.

No. 13A-1201078-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 8, 2016, and December 7, 2016, with the record held open until December 27, 2016.

APPEARANCES: Respondent Elliott Edward Fisher appeared on his own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board of Nursing (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.

Respondent Elliott Edward Fisher holds practical nurse license number LP035306, issued by the Board, which allows him to practice nursing in the State of Arizona.

Beginning in 2009, Respondent was employed as a psychiatric practical nurse at Desert Visions. Desert Visions served youth between the ages of 12 and 18 with mental health and substance abuse problems.

While employed as a practical nurse at Desert Visions, Respondent engaged in inappropriate interactions with female adolescent patients, including making comments with sexual connotations to female adolescent patients. Examples of Respondent’s comments include during a December 2011 group meeting, Respondent told patients that he was “thinking of adult things” and also in December 2011, Respondent said to female patients, “Beat me, hit me, call me dirty names.”

On or about January 5, 2012, Desert Vision management met with Respondent regarding their concerns about Respondent’s interactions with patients. Following the meeting, Respondent drove his car rapidly across the parking lot in the direction of Desert Vision management personnel, causing the management personnel to become concerned for their safety. When he discussed the incident during a psychological evaluation in October 2015, Respondent admitted he was angry.

On or about January 11, 2012, Desert Visions Youth Wellness Center (Desert Visions) in Sacaton, Arizona, reported to the Board that Respondent had failed to maintain professional boundaries with female patients. Upon receipt of this report, the Board initiated an investigation.

As part of the investigation, the Board mailed Respondent an Investigative Questionnaire with instructions that it be completed and returned to the Board by February 28, 2012.

On February 29, 2012, the Board received the completed Investigative Questionnaire. One of the questions on the Investigative Questionnaire asked Respondent to list all of his previous employers for the past five years. Respondent listed only two employers and failed to list other employers including Integrated Healthcare (Portland, Oregon), Total Nurse Network (Oak Park, Illinois), Brightstar Staffing (Mesa, Arizona), and Westways Staffing (Orange, California).

On October 5, 2012, pursuant to an Interim Order, Respondent underwent a psychological evaluation with Phillip Lett, Ph.D. The evaluator’s recommendations included at least six sessions of outpatient assessment and treatment with a Board approved psychologist to address improving anger management and effective and appropriate interpersonal communication skills.

In February 2012, Respondent was on administrative leave from Desert Visions. Respondent contacted an active Desert Visions employee, who faxed a copy of a patient’s confidential mental health record to Respondent’s home without permission from the patient or Desert Visions. Respondent then uploaded the patient’s confidential mental health record as an exhibit to his personal Merit System Protection Board case.

On or about November 28, 2012, a criminal complaint was filed in Pinal County, Arizona Superior Court Case No. CR201202576 charging Respondent with Computer Tampering by knowingly obtaining confidential health care information, a Class 6 Felony.

On or about June 16, 2015, in Pinal County, Arizona Superior Court Case No. CR201202576, Respondent was convicted of Computer Tampering, a Class 6 Undesignated Felony. Respondent did not report the conviction to the Board within 10 days.

On or about August 24, 2015, Respondent was hired as a charge nurse at Devon Gables Rehabilitation Center (Devon Gables) in Tucson, Arizona. After being informed that he was required to report for a shift on November 1, 2015, Respondent failed to report for work.

On or about November 4, 2015, supervisory personnel met with Respondent to discuss his work performance. Respondent acknowledged that his documentation was inadequate and refused to be consistent in locking the medication cart when he was not within sight of the cart, which created a risk for unauthorized entry into the cart and access to medications. On or about November 4, 2015, Respondent resigned, effective immediately.

The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

On March 25, 2016, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s practical nurse license. On June 20, 2016, the Board issued an Amended Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s practical nurse license under A.R.S. § 32-1601(18)(b), (d), (h), (j), (l), (2009); A.A.C. R4-19-403(1), (3), (4), (9), (26), (29), (31); and A.A.C. R4-19-401(C)(6), (8), and (9).

At the hearing in this matter, Respondent moved that the matter be dismissed under the legal theory of laches because the Board had taken an extended period of time to pursue disciplinary action. The Board countered that investigations take time and that any delay in going forward with the process was normal and was not any basis for the action to be dismissed.

As to the charges involved, Respondent denied he had made any inappropriate statements to the female juvenile patients. Rather, Respondent asserted his statements were made to build rapport. Respondent also pointed out that Dr. Lett concluded in his evaluation that, while the sexual statement “to a group of adolescent inpatients is inappropriate for the setting and population,” it did not “constitute a professional boundary violation.” Respondent also asserted that he was driving quickly in the parking lot to ensure the individuals did not leave before he had a chance to talk to them. Respondent maintained he did not get out of the car, so the individuals could not have been scared of him. As to the Investigative Questionnaire, Respondent argued that he worked for several staffing agencies and there was insufficient space to list every place he had worked in the five years prior. However, Respondent acknowledged under questioning that he had omitted listing employers that he had been working for immediately prior to completing the Investigative Questionnaire. With regard to failing to report the conviction, Respondent testified he trusted his lawyer to report the conviction on his behalf. Respondent also argued that the conviction had been reduced to a misdemeanor. Respondent argued that at Devon Gables, his supervisors expected him to lock the medication cart any time it was out of his sight, but that there was no written policy, statute, or rule requiring.

Overall, Respondent argued the complaint from Desert Visions was retribution for him being a whistleblower regarding an attempted suicide by a patient that occurred in 2009 and that he reported in October 2011. Respondent asserted that because he raised questions about how that situation was handled and the direction the facility was headed to take on more acute patients, Desert Visions staff retaliated against him. Respondent asserted this matter arose from a “serious well-planned process to . . . smear [Respondent] and protect [Desert Visions] from what I had to say.”

Respondent did not present any witnesses and did not submit any documentary evidence in support of his arguments despite his assertion that such information was available and would be heard eventually.

It is noteworthy that at several points during the hearing, Respondent demonstrated a volatile temper and, at one point, almost left the hearing during closing arguments because he felt the tribunal was not letting him be heard when he was attempting to repeat the entirety of his testimony. Respondent stated that the Administrative Law Judge purposely interrupted his closing arguments to prevent him from making an effective closing argument. Respondent also asserted he was not provided notice of the hearing and the hearing process was “a sham” despite records showing the notices of hearing were sent to Respondent at his home address.

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 and Advanced Practice certificate 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 1120 (8th ed. 2004).

The facts, as set forth previously, establish that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(b), (d), (h), (j), (l), (2009); A.A.C. R4-19-403(1), (3), (4), (9), (26), (29), (31); and A.A.C. R4-19-401(C)(6), (8), and (9).

Given Respondent’s lack of accountability for his actions, Respondent has demonstrated that he cannot be regulated at this time. Accordingly, 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).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that Respondent’s Motion to Dismiss this matter be denied.

It is further recommended that the Board revoke Respondent’s Practical Nurse License number LP035306.

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, January 17, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing