ALJDEC decisions subject to certification as final

13A-1204046-NUR-res · State Board of Nursing · 2014-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2014, with the record held open to allow time for the preparation of the hearing transcript. APPEARANCES: The Arizona State Board of Nursing (hereinafter “Board”) was represented by Assistant Attorney General, Sarah Selzer. Meredith JoAnn Abdi (hereinafter “Respondent” or “Ms. Abdi”) appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 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 the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. Ms. Abdi holds registered nurse license number RN147896 (hereinafter “the license”). On or about April 12, 2012, the Board received an anonymous complaint alleging that Ms. Abdi was boasting about her continued alcohol and drug use. Based upon this complaint, the Board initiated an investigation into the complaint. On or about August 28, 2012, the Board received another complaint about Ms. Abdi from Nancy Adamson, Chief Nursing Officer at Banner Estrella Medical Center (hereinafter “Banner”), who reported that Ms. Abdi was suspected by a co-worker of being impaired while on duty as an RN and that Ms. Abdi failed to submit to a for-cause drug screen. As a result, Ms. Abdi’s employment with Banner had been terminated. The Board initiated an investigation of this complaint. On June 21, 2012, the Board mailed Ms. Abdi a questionnaire with instructions to provide a written explanation regarding the first complaint within two weeks. On June 25, 2012, this mailing was returned as “forward time exp[ired] return to sender.” The label showed a forwarding address. On July 10, 2012, the Board mailed Ms. Abdi a second questionnaire with instructions to provide a written explanation regarding the first complaint by August 8, 2012. This mailing was sent to the forwarding address listed on the original mailing that had been returned. On July 16, 2012, this mailing was returned to the Board marked “return to sender attempted--not known unable to forward.” In September 2012, Ms. Abdi was charged with marijuana possession in Maricopa County Superior Court case number CR2012-150070. In October 2012, prosecution of Ms. Abdi was suspended to allow Ms. Abdi the opportunity to participate in a drug diversion program. Ms. Abdi failed to comply with the terms of the drug diversion program and in March 2013, prosecution was resumed. In June 2013, a bench warrant was issued for Ms. Abdi for her failure to attend a mandatory pretrial conference. On or about December 10, 2013, Ms. Abdi was found guilty after a trial by the Court of possession or use of marijuana, a class 1 misdemeanor, and placed on unsupervised probation for a period of one year, fined $750.00, and required to complete 24 hours of community service. Ms. Abdi failed to notify the Board of her arrest for marijuana possession in a timely manner. In January 2013, Ms. Abdi contacted the Board and requested an administrative hearing. An administrative hearing was held on February 11, 2014. The Board submitted eight exhibits and presented the testimony of Diva Galan, Misty Esh, RN, and Mary Hubenthal, RN. Ms. Abdi testified on her own behalf. Hearing Evidence Testimony of Diva Galan The Board assigned the two complaints to Diva Galan (hereinafter “Investigator Galan”) for investigation. Investigator Galan testified that she is the senior investigator for the Board. Investigator Galan stated that she was not able to interview Ms. Abdi because she was never able to contact Ms. Abdi. Ms. Galan testified that Ms. Abdi failed to notify the Board of her arrest for possession of marijuana in a timely manner. Ms. Galan stated that written notification of any change of address was required to be filed by Ms. Abdi within ten days. Investigator Galan testified that she had reviewed Ms. Abdi’s employment records. Investigator Galan stated Ms. Abdi’s employment records indicated a pattern of substance abuse and related issues that were of great concern to the Board. Investigator Galan testified that she saw no documentation in Ms. Abdi’s records that indicated that Ms. Abdi had completed substance abuse counseling. Investigator Galan testified that Ms. Abdi’s employment records and Ms. Abdi’s failures to maintain contact with the Board and to notify the Board of Ms. Abdi’s criminal conviction showed that Ms. Abdi was not willing to be regulated. Investigator Galan opined that there was a serious risk of non-compliance if the Board were to impose anything short of a license revocation of Ms. Abdi’s RN license. Investigator Galan acknowledged that the two complaints at issue were the only complaints that had been received by the Board against Ms. Abdi’s RN license. Investigator Galan’s testimony is found to be credible. Testimony of Misty Esh, RN Misty Esh (hereinafter “Ms. Esh”) testified that she had worked on the progressive care (“PCU”) floor with Ms. Abdi at Banner. Ms. Esh stated that she believed Ms. Abdi to be a good nurse but that she did not like to work with Ms. Abdi because there was so much drama. Ms. Esh testified that working with Ms. Abdi was very stressful. Ms. Esh testified that a patient’s family member complained to her about Ms. Abdi’s behavior. Ms. Esh stated that the patient’s family member said that Ms. Abdi’s eyes looked funny and that Ms. Abdi was talking funny. Ms. Esh testified as follows:

I didn't honestly know what to say. Like, I didn't know what to reply back, so I just said maybe it was the braces was maybe why she sounded funny.

And then from that point -- because it was about a two-week period that we worked kind of close together on the same floor. So I just started watching her a little closer and, honestly, struggled inside because she seemed to be either going 200 miles an hour, talking, or like nodding off when you would talk to her. Like, she would kind of fall asleep while you were talking to her, eyes rolling. And after a couple of days of being completely stressed out at home, thinking about the situation -- because, again, I was a new nurse and she was an experienced nurse, and not wanting to cause problems because I don't really like drama -- I went to Mary and asked Mary if she could just take a look at her and see if she thought the same thing.[1]

Ms. Esh’s testimony is found to be credible. Testimony of Mary Hubenthal, RN Mary Hubenthal, RN (hereinafter “Ms. Hubenthal”) testified that she is the Clinical Operations Program Director for Banner. Ms. Hubenthal stated that she had previously been the Director of Critical and Progressive Care for Banner. Ms. Hubenthal testified that she was Ms. Abdi’s supervisor when Ms. Abdi worked at Banner. Ms. Hubenthal testified that Ms. Esh notified her about the patient’s family member’s complaint and about Ms. Esh’s concerns about Ms. Abdi’s behavior. Ms. Hubenthal stated that Banner then began an investigation of the complaint. Ms. Hubenthal testified that Banner requested that Ms. Abdi participate in a drug screen. Ms. Hubenthal testified that Ms. Abdi refused to participate in the drug screen. Ms. Hubenthal stated that “[Ms. Abdi] went to get her purse and never returned.”[2] Ms. Hubenthal testified that the complaint against Ms. Abdi was treated just like a complaint against any other employee at Banner. Ms. Hubenthal’s testimony is found to be credible. Testimony of Meredith JoAnn Abdi, RN Ms. Abdi testified that she experienced problems at Banner because she had filed a complaint against a physician working at Banner. Ms. Abdi stated that she felt that people at Banner were prejudiced against her due to the complaint that she filed against a doctor. Ms. Abdi testified that she also had problems with an abusive husband at home and that she would occasionally miss work because of bruises. Ms. Abdi acknowledged that she had refused to participate in a drug screen at Banner. Ms. Abdi testified as follows: They asked me to submit to a urine drug screen. The only one time I did deny submitting -- this is probably the second time denying submitting to it. I felt like I was being sought after by management, by the whole Banner Estrella team because of what I had done and I felt discriminated. I got up, I grabbed my stuff and I left, never to return again, because at that point I had just had enough.[3]

Enclosed with the anonymous complaint were photographs of Ms. Abdi in which she purportedly was drunk or using drugs. Ms. Abdi denied that she was boasting about drug and alcohol use in the photographs in the first complaint. Ms. Abdi testified as follows: Those were taken in Portland, Oregon, when I was out there visiting my parents for Thanksgiving. The first one I do remember taking. We had been drinking some wine. I was hanging out with my family, but, again, I wasn't working the next day. I was on vacation for two weeks. The second one appears to be a rolled up cigarette. That's what my ex loved to smoke. He liked the Bugles -- the Bugler, and he was always rolling those. That's what he smoked. He was from Somalia, Africa, where they don't sell regular Marlboro. So he either wrapped them in a leaf or he would wrap them in the Bugler papers that they came with.[4]

Ms. Abdi acknowledged that she had been convicted of a misdemeanor count of possession of marijuana. Ms. Abdi minimized her conviction and asserted that she was not guilty of the charge. Ms. Abdi stated as follows: Right. Because I have my caregiver card. And in Arizona, I am legal to possess. And being that I am legal to possess, I was pretty much not guilty, is what I claim. I went back and changed my plea to not guilty from being guilty, because I had the possession of it. I was guilty of the possession, but I didn't know that I would be able to use my caregiver card. And the judge ultimately ended up not letting me use my card.[5]

Ms. Abdi acknowledged that she had received “letters of allegations” from the Board. Ms. Abdi denied that she received a request for further information from the Board. Ms. Abdi testified that she was willing to be monitored by the Board and that she was willing to submit to random drug screens. Ms. Abdi stated that she would willingly comply with “what ever the Board wanted” in order to keep her nursing license. CONCLUSIONS OF LAW

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, 32-1664, 41-1092.11(B), and 41-1092.07(F)(5). The Board also has the authority pursuant to A.R.S. §§ 32-1663 and 32-1664, to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act. The Board bears the burden of proof and must establish cause to penalize Respondent’s privilege to practice nursing in Arizona 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). The Board established that the Respondent, Meredith JoAnn Abdi, violated the provisions of A.R.S. § 32-1663(A) as defined in A.R.S. § 32-1601(22)(d) (Any conduct or practice this is or might be harmful or dangerous to the health of a patient or the public). The Board established that Respondent, Meredith JoAnn Abdi, violated the provisions of A.A.C. R4-19-403(9) (Failing to follow policies and procedures of the nurse’s employer designed to safeguard the patient). The Board established that Respondent, Meredith JoAnn Abdi, violated the provisions of A.A.C. R4-19-403(25)(a) (Failing to furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32- 1664). The Board established that Respondent, Meredith JoAnn Abdi, violated the provisions of A.A.C. R4-19-403(31) (Practicing in any manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed). The Board established that Respondent, Meredith JoAnn Abdi, violated the provisions of A.R.S. § 32-3208 (Licensee must notify the Board in writing within 10 days after being charged with a felony or a misdemeanor involving conduct that may affect patient safety) and A.A.C. R4-19-403(28) (Failing to notify the Board in writing within 10 days after being charged with a felony or a misdemeanor involving conduct that may affect patient safety as required under A.R.S. § 32-3208. The Board established that Respondent, Meredith JoAnn Abdi, violated the provisions of A.R.S. § 32-1601(22)(j) (Violating a rule that is adopted by the Board pursuant to this chapter). In light of the risk of the harm to which Respondent Meredith JoAnn Abdi’s violations of the Nurse Practice Act exposed her patients and the public, the Board has established cause to impose a disciplinary sanction against Meredith JoAnn Abdi’s privilege to practice nursing in the State of Arizona under A.R.S. §§ 32-1663(D)[6] and 1664(N).[7] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board place License No. RN147896 of Meredith JoAnn Abdi on disciplinary probation for a period of one year, with a requirement that Respondent fully comply with the following provisions: 1. That Respondent fully complete all terms of her probation that were imposed in Maricopa County Superior Court case number CR2012- 150070.

2. That Respondent willingly participates in random unannounced drugs screens that may be requested by the Board.

3. That 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 once per month.

4. 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.

5. Respondent shall cause her immediate supervisor to inform the Board on the employer’s letterhead of her hiring within seven days of being hired, 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. Respondent shall notify the Board in writing within 7 days of any change in nursing employment, personal address, or telephone number

6. 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.

7. Respondent shall sign all release of information forms required by the Board or its designee. Respondent shall make herself available within 72 hours after the Board or its designee requests an interview. Interviews may be conducted telephonically or in-person.

8. Respondent shall bear all costs of complying with the terms of her probation.

It is further recommended that if Respondent fails to comply with the above provisions of probation, License No. RN147896 of Meredith JoAnn Abdi shall 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, March 6, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

----------------------- [1] 2/11/14 Hearing Record (hereinafter “H.R.”) at page 26, ll 3-20. [2] H.R. at page 37, ll 6. [3] H.R. at page 44, ll 4-11. [4] H.R. at page 52, ll23-25, page 53, ll 1-11. [5] H.R. at page 54, ll 12-19. [6] 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. [7] 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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