ALJDEC decisions subject to certification as final

13A-1207073-NUR · State Board of Nursing · 2013-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 17, 2013, with the record held open until August 9, 2013. APPEARANCES: Respondent Melissa Beth Olson did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 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. Melissa Beth Olson (Respondent) holds Board-issued Registered Nurse License No. RN143665 in the State of Arizona. 3. On June 12, 2013, the Board issued a Complaint and Notice of Hearing and Summary Suspension, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(18)(b), (d), (g), (h), (i), and (j) (2009); A.R.S. § 32-1601(22)(b), (d), (g), (h), (i), and (j) (2012);[1] and A.C.C. R4-19-403(1), (8)(b), (16), (17), (18), and (31).[2] 4. The Complaint and Notice of Hearing was sent via certified mail to Respondent at her address of record. 5. 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 July 17, 2013. 6. The Board submitted 18 exhibits and presented the testimony of Valerie Smith, Consultant to the Executive Director of the Board. 7. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her Registered Nurse license. Hearing Evidence 8. In April 2011, Respondent admitted to Board staff that she had diverted controlled drugs, Percocet[3] and Vicodin[4] from her place of employment, Chandler Regional Medical Center in Chandler, Arizona. Respondent also admitted that she had forged prescriptions for Percocet and Vicodin. 9. Respondent requested to enter the Board’s Chemically Addicted Nurse Diversion Option (CANDO) program. 10. On April 28, 2011, Respondent and the Board entered into a Confidential Stipulated Agreement (CANDO Program Agreement). According to the terms of the agreement, Respondent would: a. Enter treatment; b. Participate in a 12-step meeting and maintain a sponsor relationship; c. Participate in a nurse support group; d. Abstain from any unauthorized use of alcohol and all other mind/mood altering medications and controlled and/or addictive substances; e. Cause all prescribing providers to notify CANDO of their awareness of Respondent’s substance use disorder; f. Provide written notification of all medications prescribed and provide monthly documentation of the need for controlled substances; g. Submit to random urine drug testing; h. Inform CANDO of all medications and document same on self-report forms; i. Notify any and all nursing employers of her participation in CANDO; j. Notify CANDO of any nursing employment, including changes in nursing employment. 11. Respondent and the Board signed addendum to the CANDO Program Agreement on February 4, 2012, and July 24, 2012, relating to the number of hours Respondent could work and her need for a supervising nurse to be on duty. Employment 12. From May 26, 2011, to August 27, 2012, Respondent worked as a Registered Nurse at An Oasis of Healing in Mesa, Arizona, for Thomas Lodi, M.D. 13. From October 24, 2012, to April 22, 2013, Respondent worked as a Registered Nurse at Arizona Priority Care Plus. Respondent did not disclose to Arizona Priority Care Plus that she was in the Board’s CANDO program. 14. From February 5, 2013, through the date of the hearing, Respondent worked as a Registered Nurse at La Estancia Nursing and Rehabilitation Center. Respondent did not disclose to La Estancia Nursing and Rehabilitation Center that she was in the Board’s CANDO program. 15. Respondent stated she was unemployed on her Self Reports submitted for the periods of October 1, 2012, through November 30, 2012, and December 1, 2012, through January 31, 2013. Respondent was required to report any employment or change in employment as indicated in the CANDO Program Agreement. AA/NA Attendance 16. Respondent submitted an AA/NA Attendance Report for the period of May 3, 2011, through May 31, 2011. The form was not signed by Respondent’s sponsor. 17. Respondent submitted ten AA/NA Attendance Reports for the time period from June 1, 2011, through January 31, 2013. The forms all had the exact same signature from Respondent’s sponsor. 18. During the Board’s investigation, Respondent admitted she had copied a form with her sponsor’s signature and used the copies each time she submitted the report. Respondent stated she did not want to bother her sponsor to have her sign the form each time. Substance Use 19. The Board requested Respondent’s Controlled Substance Prescription Monitoring Profile (CSPMP). 20. A review of the CSPMP revealed Respondent had filled multiple prescriptions for Vicodin, Vicoprofen,[5] and Tramadol[6] at multiple pharmacies. 21. Between October 1, 2011, and June 19, 2012, Respondent filled prescriptions for Tramadol, totaling 2130 tablets. 22. Between December 6, 2011, and March 15, 2012, Respondent filled five prescriptions for Vicodin, totaling 110 tablets. 23. Between March 15, 2012, and August 24, 2012, Respondent filled 20 prescriptions for Vicoprofen, totaling 1350 tablets. 24. The Vicodin and Vicoprofen prescriptions were obtained under Dr. Lodi’s name or Claire Stewart’s name. The Tramadol prescriptions were obtained under Dr. Lodi’s name or under the name of Helen Watt, who is in Dr. Lodi’s office. Medical Records 25. At An Oasis of Healing, Respondent’s medical records indicated that on March 16, 2012, Respondent was first seen as a patient. The record provided “Joint ache with [shortness of breath]. Prescribed vicoprofen one tablet twice a day #30.” 26. The records include a second documented patient visit on March 21, 2012. In addition to other medications, Dr. Lodi prescribed 60 tablets of Vicodin. 27. Nothing else in Respondent’s medical records indicate Dr. Lodi prescribed any additional medication to Respondent. 28. Letters dated April 20, 2012, May 31, 2012, and June 25, 2012, were sent to the Board indicating Respondent was a current patient being prescribed Vicoprofen with a plan in place to wean her off of all potentially addicting medications. The letters all included Dr. Lodi’s stamped signature. 29. During the Board’s investigation, Dr. Lodi denied authoring the three letters stating that he would have signed such letters personally. Dr. Lodi also denied regularly prescribing Respondent narcotic pain medications. Dr. Lodi indicated he did not often prescribe narcotics, and when he did, it was for a very limited quantity without refills. Dr. Lodi stated it was his practice that if the patient was still in pain after trying narcotics, he would refer the patient to pain management. Dr. Lodi also stated that he personally signed all prescriptions for controlled substances because he does not write them often. Dr. Lodi remembered he had only prescribed Tramadol to one patient in his practice more than a year prior to being interviewed because the patient requested the medication and he was not familiar with it at that time. 30. At Arizona Pain Clinic, Respondent’s medical records indicated that on July 26, 2012, Respondent was first seen as a patient. Respondent failed to include in her written patient history her ongoing use of Vicoprofen. 31. A September 4, 2012, entry provided, [Respondent] has been taking ultram, but has also been to her natropath [sic] and received vicoprofen. When questioned about this she reports she is filling the prescription for her son. She reports that he injured himself and she gave him the medications . . . . We have discussed how it is illegal to give others opioid medications, and as a result she is not a candidate for opioid treatment.

32. A very small number of Respondent’s prescriptions for Vicodin, Vicoprofen, and Tramadol are accounted for in the medical records described above. Self Reports 33. The Self Reports submitted by Respondent required that she list all medications taken during the reporting period, the date taken, the reason taken, name and phone number of filling pharmacy, and authorizing health care provider. 34. The Board compared Respondent’s Self Reports against the CSPMP and discovered numerous discrepancies. These discrepancies included: • August 1, 2011, through September 30, 2011, report Respondent filled seven prescriptions for Tramadol, but only reported one prescription for Tramadol. Respondent did not report a prescription for Roxicet. • October 1, 2011, through November 30, 2011, report Respondent filled four prescriptions for Tramadol, but did not report taking Tramadol. • December 1, 2011, through January 31, 2012, report Respondent filled eight prescriptions for Tramadol, but did not report taking Tramadol. Respondent filled three prescriptions for Vicodin, but only reported one prescription for Vicodin. • February 1, 2012, through March 30, 2012, report Respondent filled seven prescriptions for Tramadol, but did not report taking Tramadol. Respondent also filled three prescriptions for Vicoprofen, but did not report taking Vicoprofen. • April 1, 2012, through May 31, 2012, report Respondent filled four prescriptions for Tramadol, but did not report taking Tramadol. Respondent also filled eight prescriptions for Vicoprofen, but only reported one prescription for Vicoprofen. • June 1, 2012, through July 31, 2012, report Respondent filled three prescriptions for Tramadol, but only reported one prescription for Tramadol. Respondent also filled seven prescriptions for Vicoprofen, but did not report one of the prescriptions for Vicoprofen. Drug Screenings 35. Respondent’s September 18, 2012 urine drug screening returned a positive result for morphine and opiates. At the time, Respondent was deemed compliant with regard to the opiates based on the letters from Dr. Lodi. Those letters were later discovered to be forgeries based on the interview of Dr. Lodi. 36. When asked, Respondent indicated she had taken an existing Vicoprofen from a previous prescription. The Board noted that, if Respondent’s report was accurate, Vicoprofen does not metabolize into morphine and would not give a positive result for morphine. 37. Respondent’s February 7, 2013 urine drug screening returned a positive result for benzodiazepines, nordiazepam, and oxazepam. 38. When asked, Respondent indicated she had an old prescription for Valium in her medicine cabinet and had accidentally taken one. Respondent reported that when she realized what she had done, she got so mad, she threw the bottle away. Other Information 39. When interviewed on April 2, 2013, Respondent admitted she had experienced a relapse. 40. After considering a stayed revocation, the Board determined summary suspension was appropriate. 41. Respondent has had no further contact with the Board since the summary suspension. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). 2. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 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. A.R.S. § 36-2531(E) provides, in pertinent part, as follows: A person shall not provide a false prescription for a controlled substance or knowingly or intentionally acquire or obtain possession of a controlled substance by means of forgery, fraud, deception or subterfuge, including the forgery or falsification of a prescription or the nondisclosure of a material fact. A person who violates this subsection is guilty of a class 4 felony.

6. A.R.S. § 13-3408(A)(1) and (6) provides a person shall not knowingly possess or use a narcotic drug or obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation, or subterfuge. A person who violates A.R.S. § 13-3408(A)(1) or (6) is guilty of a class 4 or class felony, respectively. A.R.S. § 13-3408(B)(1) and (6). 7. A.R.S. § 13-3406(A)(1) and (6) provides a person shall not knowingly possess or use a prescription-only drug without a valid prescription or obtain or procure the administration of a prescription-only drug by fraud, deceit, misrepresentation, or subterfuge. A person who violates A.R.S. § 13-3406(A)(1) or (6) is guilty of a class 1 misdemeanor. A.R.S § 13- 3406(B)(1). 8. The Board established by a preponderance of the evidence that Respondent committed a felony and/or a misdemeanor involving moral turpitude, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(18)(b) (2009) and A.R.S. § 32- 1601(22)(b) (2012). 9. The Board established by a preponderance of the evidence that Respondent committed an act that deceived, defrauded, or harmed the public, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(18)(h) (2009); A.R.S. § 32- 1601(22)(h) (2012); and A.A.C. R4-19-403(8)(b) and (18). 10. The Board established by a preponderance of the evidence than Respondent’s ongoing drug use was conduct or practice that is or might be harmful or dangerous to the health of a patient or the public, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(18)(d) (2009); A.R.S. § 32- 1601(22)(d) (2012); A.A.C. R4-19-403(16), (17), and (31). 11. The Board established by a preponderance of the evidence that Respondent failed to comply with the CANDO Program Agreement on multiple occasions with respect to multiple requirements, which constitutes unprofessional conduct as defined by A.R.S. § 32-1601(18)(g), (i), and (j) (2009) and A.R.S. § 32- 1601(22)(g), (i), and (j) (2012). 12. Given Respondent’s long history of failing to comply with the CANDO Program Agreement, failure to properly report her participation in the CANDO program to employers, and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time. 13. In light of the risk of potential harm to which patients were exposed as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D)[7] and A.R.S. § 32-1664(N).[8] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Melissa Beth Olson’s Registered Nurse License No. RN143665. It is further recommended that the Board revoke Respondent Melissa Beth Olson’s Registered Nurse License No. RN143665. 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, August 29, 2013.

/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(18)(b), (d), (g), (h), (i), and (j) (2009); A.R.S. § 32-1601(22)(b), (d), (g), (h), (i), and (j) (2012) define “unprofessional conduct” to include, respectively, (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. . . . . (g) Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. (h) Committing an act that deceives, defrauds or harms 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] This rule further defines “unprofessional conduct” to include: 1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice; . . . . 8. Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record: . . . . b. Pertaining to obtaining, possessing, or administering any controlled substance as defined in the federal Uniform Controlled Substances Act, 21 U.S.C. 801 et seq., or Arizona's Uniform Controlled Substances Act, A.R.S. Title 36, Chapter 27; . . . . . 16. Removing, without authorization, a narcotic, drug, controlled substance, supply, equipment, or medical record from any health care facility, school, institution, or other work place location; 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; 18. 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; . . . . 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed. [3] Percocet, also known as oxycodone, is a schedule II controlled substance and a narcotic drug. A.R.S. § 13-3401(20)(iii); A.R.S. § 13- 3401(21)(dd); and A.R.S. § 36-2513(A)(1)(a)(xiv). [4] Vicodin, also known as hydrocodone with acetaminophen, is a schedule III controlled substance and a narcotic drug. A.R.S. § 13-3401(20)(iii); A.R.S. § 13-3401(21)(n); and A.R.S. § 36-2513(A)(5)(d). [5] Vicoprofen is also known as hydrocodone with ibuprofen. [6] Tramadol is not a controlled substance, but is considered a mood or mind altering chemical by the Board. [7] 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. [8] 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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