ALJDEC decisions subject to certification as final

13A-1211027-NUR · State Board of Nursing · 2014-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: December 3, 2013, at 8:00 a.m. and December 16, 2013, at 1:00 p.m.; the record was held open until January 6, 2014, to allow the parties’ attorneys to submit written closing arguments. APPEARANCES: Applicant Ashley Lynn Smyrski was represented by Kimberly A. Kent, RN, Esq., Kent Law Group PLLC; the Arizona State Board of Nursing was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 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 A.R.S. §§ 32-1606, 32-1663, and 32-1664. On or about September 24, 2012, Ashley Lynn Smyrski, R.N. (“Applicant” or “Ms. Smyrski”) submitted to the Board an Application for Registered Nurse/Practical Nurse Licensure by Endorsement (“the Application”).[1] Ms. Smyrski disclosed that on September 12, 2012, she had been licensed as a registered nurse in Vermont. In September or October 2012, the Board issued a temporary license to Ms. Smyrski that allowed her to practice nursing in Arizona while the Board’s investigation was pending. The Board extended the duration of Ms. Smyrski’s temporary license to practice nursing in Arizona three times. The Board assigned its Senior Investigator, Bonnie Richter, M.S.W., to investigate Ms. Smyrski’s Application. Ms. Richter used Ms. Smyrski’s fingerprints to obtain documents relating to her criminal history. On or about April 16, 2013, Ms. Richter interviewed Ms. Smyrski at the Board’s offices. Ms. Smyrski admitted that she had been arrested on March 25, 2006, August 17, 2006, and November 24, 2011, for alcohol related incidents. Ms. Smyrski disclosed that she would be pleading guilty to providing false information to law enforcement as a result of the November 24, 2011 incident. Ms. Smyrski acknowledged that she might have had a problem with alcohol, although she did not feel that she currently had a problem. Ms. Smyrski acknowledged that on August 17, 2006, she had violated the conditions of her release after the March 25, 2006 incident, and that she continued to drink after August 17, 2006. Ms. Smyrski acknowledged that she had a high tolerance for alcohol and that could indicate that she had a problem with alcohol abuse. Ms. Smyrski voluntarily agreed to undergo a substance abuse and psychological evaluation by a Board-approved evaluator. On or about May 3, 2013, Ms. Smyrski voluntarily underwent a substance abuse and psychological evaluation by Jacquelyn St. Germaine, Ph.D. Dr. St. Germaine diagnosed Ms. Smyrski with Alcohol Abuse and opined that Ms. Smyrski “is at risk of developing an alcohol dependent problem in the future if she continues drinking without intervention in the form of education and counseling.”[2] On or about June 5, 2013, Ms. Richter interviewed Ms. Smyrski at the Board’s office and reviewed Dr. St. Germaine’s evaluation report. Dr. St. Germaine had recommended that Ms. Smyrski complete a 36-hour alcohol education and counseling program, such as the ones that courts order after a DUI conviction. Ms. Smyrski agreed to attend the counseling and education program and Ms. Richter provided a list of agencies that Ms. Smyrski could contact to make the necessary arrangements. Ms. Smyrski stated that she was willing to complete the program and that she thought having more information would be positive. Ms. Smyrski’s temporary license was extended until after the Board’s July 2013 meeting. Ms. Smyrski did not register for an alcohol education and counseling course before the Board’s July 25, 2013 meeting. Ms. Richter prepared an Investigative Report that summarized the results of her investigation for the Board’s consideration at its July 2013 meeting.[3] The Board considered Ms. Smyrski’s Application and Ms. Richter’s Investigative Report at its July 25, 2013 meeting and unanimously voted to offer Ms. Smyrski a Consent Agreement for 12 months’ probation that required her, among other things, to abstain from drinking alcohol, to undergo random urine screens, to notify her employer of her probationary status, to have her employer submit quarterly reports, and to avoid working the night shift or as a registry or traveling nurse. The Board voted to deny Ms. Smyrski’s Application if she did not accept the Consent Agreement by August 28, 2013, the date that her temporary license was due to expire. Ms. Smyrski did not accept the Board’s offer of the Consent Agreement. On or about September 26, 2013, the Board issued an Order of Denial charging that cause existed to deny Ms. Smyrski’s Application under A.R.S. § 32-1601(22)(d) and (j)[4] and A.A.C. R4-19-403(17).[5] After Ms. Smyrski requested a hearing, the Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on whether Ms. Smyrski was qualified to be licensed as a registered nurse in Arizona and if so, whether her license should be disciplined or restricted. A hearing was held on December 3 and 16, 2013. The Board submitted ten exhibits and presented the testimony of two witnesses: (1) Dr. St. Germaine; and (2) Ms. Richter. Ms. Smyrski submitted 24 exhibits and presented the testimony of six witnesses: (1) Phillip Lett, Ph.D.; (2) Darcy Richardson, M.S.; (3) Kirk Herbert, R.N.; (4) Karen Dow, R.N.; (5) Debra Krupnick, R.N., N.P.; and (6) Ms. Smyrski. Hearing Evidence Ms. Smyrski’s History of Criminal Incidents Involving Alcohol Abuse The March 25, 2006 Incident On or about March 25, 2006, according to Fair Haven, Vermont Police Department report no. 06FH00234, at approximately 1:36 a.m., police received a call from one Michael Bruno, who was driving a tow truck for Bruno’s Towing, that the vehicle that Ms. Smyrski was driving was “all over the roadway and almost hit the back of his truck and another tow truck behind him” and had almost hit the guardrail four or five times.[6] Mr. Bruno advised police that he had followed Ms. Smyrski’s vehicle back to Ms. Smyrski’s dormitory at Castleton State College. According to the police report, police contacted Ms. Smyrski approximately fifteen minutes after Mr. Bruno had contacted them. Ms. Smyrski had parked her car in a no parking area. School personnel went into the dormitory to instruct Ms. Smyrski to move her car. When Ms. Smyrski came out of the dormitory, the Fair Haven police officer noted that she smelled of intoxicants. Ms. Smyrski informed police that she had consumed a glass and a half of wine at about 6:00 p.m. on the previous evening. The officer asked if Ms. Smyrski had consumed any more alcohol after she returned to the college and she responded that she had not. Ms. Smyrski was given a preliminary breath test at approximately 3:23 a.m., which resulted in a Blood Alcohol Concentration (“BAC”) of .238%. Police arrested Ms. Smyrski for Driving Under the Influence of Intoxicants (“DUI”). Ms. Smyrski was born in the summer of 1986. In March 2006, she was nineteen years old, too young to drink alcohol legally in the State of Vermont. On or about April 17, 2006, the Rutland Vermont Superior Court released Ms. Smyrski on her own recognizance in Case No. 566-4-06 RDCR. Among the conditions of Ms. Smyrski’s release was that she should “not purchase, possess, or consume any substance which contains alcohol without a prescription from a licensed physician and [that she should] have the prescription in [her] possession.”[7] On or about August 27, 2006, at approximately 3:11 a.m., police stopped a vehicle after seeing an occupant throw a lit cigarette out of a window. The investigating officer found Ms. Smyrski apparently asleep in a passenger seat. After the officer woke Ms. Smyrski up and asked her to step out of the car, he noticed that she appeared to stumble and smelled of alcohol. The officer took Ms. Smyrski to the police station where a breath test was conducted. The breath test resulted in a BAC of .208%. Police then took Ms. Smyrski to Evergreen Counseling Services, where she was evaluated and then brought to Marble Valley Correctional Facility for detoxification overnight. Police reported that due to her level of intoxication, they could not fingerprint or photograph her. Ms. Smyrski was determined to have violated the terms of her release by drinking alcohol. However, no additional criminal charges were filed against her as a result of the August 27, 2006 incident. On or about January 19, 2007, in Rutland, Vermont Superior Court Case No. 566-4-06 RDCR, Ms. Smyrski pled guilty to and was convicted of an amended charge of Vehicle Operation – Careless or Negligent, a misdemeanor. The November 24, 2011 Incident On or about November 24, 2011, according to Vermont State Police report no. 11C105627, at approximately 2:51 a.m., a Vermont State trooper located a vehicle that had been driven into a ditch in Rutland, Vermont. There was another vehicle, a Jeep, that was parked in front of the ditch. Ms. Smyrski and another young woman were sitting in the Jeep. Ms. Smyrski was 25 years old in November 2011, and able to drink legally in the State of Vermont. Ms. Smyrski’s friend, the owner of the Jeep, told police that she had come upon Ms. Smyrski after she had driven the other vehicle into the ditch. Ms. Smyrski initially told police that Matthew Trombetta had been driving the vehicle when it went into the ditch; however, Ms. Smyrski later said that she had been driving and that her friend, Mr. Trombetta, was a passenger who had gotten out of the vehicle to try to get it out of the ditch, without success. Mr. Trombetta had left the scene and police later found him walking up the road. Both Mr. Trombetta and Ms. Smyrski were found to be intoxicated. Ms. Smyrski’s BAC was preliminarily measured at .183%. Ms. Smyrski told police she had consumed two to three and a half beers between 7:00 p.m. and 1:30 a.m. At 3:07 a.m., police arrested Ms. Smyrski for DUI. Although Mr. Trombetta initially told police that Ms. Smyrski had been driving, he later acknowledged that he had been driving. On or about July 1, 2013, in State of Vermont Superior Court, Rutland Unit case no. 1818-12-11RDCR, Ms. Smyrski pled guilty to and was convicted of the amended count of providing false information to law enforcement, a misdemeanor. Ms. Smyrski testified that her former boyfriend, Mr. Trombetta, liked to drink a lot. She broke off the relationship after the November 2011 incident because he was a bad influence. She has not since tried to reignite the relationship. Reliability of Preliminary Breath Tests (“PBTs”) in Vermont Ms. Richardson has worked as a chemist for the State of Vermont and was involved in its analyses of breath tests between 2002 and 2010. Ms. Richardson currently operates an independent toxicology firm in Vermont. Ms. Richardson testified that PBTs are performed at roadside stops in Vermont to determine whether an evidentiary breath test should be performed. Ms. Richardson testified that many factors can falsely elevate the results of a PBT, including something in the subject’s mouth, such as a mint, or alcohol residue. Police are not required to wait fifteen minutes before administering a PBT and are not required to calibrate or maintain at the appropriate temperature the equipment used in a PBT. No agency in Vermont oversees such equipment. Under 23 V.S.A. § 1203(f), PBTs cannot be used in any court proceeding. Ms. Richter noted that after the March 25, 2006 incident, police asked Ms. Smyrski to give a second breath sample at 3:23 a.m., and the result was reported as having a BAC of .194%.[8] Ms. Richter noted that after Ms. Smyrski was arrested in the November 23, 2011 incident, police obtained an evidentiary sample of her breath at 4:26 a.m., and the result was reported as having a BAC of .153%.[9] Ms. Smyrski’s Responses to the Board’s Investigation Ms. Richter testified that for every criminal incident, license applicants are required to complete and submit a detailed explanation, the police report, including the arresting officer’s narrative, and all court orders. Ms. Richter testified that Ms. Smyrski only submitted a questionnaire for two incidents, the March 25, 2006 incident and the November 24, 2011 incident. Ms. Richter testified that Ms. Smyrski did not mention the August 2006 incident in her first interview on March 21, 2013, which was conducted telephonically, but that Ms. Smyrski acknowledged in the second interview on April 16, 2013, which was conducted in person, that in August 2006, she had violated the terms of her release for the March 2006 incident. Ms. Smyrski testified that because the August 27, 2006 incident did not result in any new charges except violation of the terms of her release in the March 25, 2006 incident, she did not consider it to be a separate incident. Ms. Richter testified that Ms. Smyrski said in the March 21, 2013 telephonic interview that she had drunk three or four glasses of wine and had become intoxicated at Christmas, and that Ms. Smyrski denied ever using marijuana or any other illegal substance. Ms. Smyrski testified that Ms. Richter asked her if she used marijuana and she had responded, “no.” Ms. Richter did not have the notes of the March 21, 2013 telephonic interview at the hearing and did not specifically recall her question about marijuana. Ms. Richter testified that Ms. Smyrski did not submit a timely explanation of the criminal incidents. According to the original Investigative Report, Ms. Smyrski was mailed a questionnaire on February 8, 2013, and the Board received a packet containing the police reports and court documents on March 7, 2013, but not Ms. Smyrski’s explanations.[10] Ms. Smyrski disputed that she did not submit a narrative that contained her explanations of the incidents. She submitted into evidence a narrative that she testified was included with the original packet.[11] Ms. Richter testified that she found that Ms. Smyrski had submitted explanations of the three incidents in an e-mail that Ms. Richter received on March 27, 2013. Ms. Richter testified that she became aware of the e- mail after the Board’s July 2013 meeting. Ms. Smyrski testified that because her attorney for the November 2011 incident had cancer, was undergoing chemotherapy, and eventually died, the resolution of that incident was delayed until after the Board had opened its investigation. Dr. St. Germaine’s and Dr. Lett’s Substance Abuse and Psychological Evaluations Dr. St. Germaine’s Evaluation and Testimony Dr. St. Germaine has been providing substance abuse treatment for 30 years and has performed approximately 30,000 substance abuse evaluations during her career. Dr. St. Germaine is currently on the Board’s list of approved substance abuse evaluators and is an acknowledged expert in the field of diagnosis and treatment of substance abuse. Dr. St. Germaine reported that Ms. Smyrski disclosed the following information during her evaluation: When she was younger she woke up the next morning after drinking and couldn’t remember going to bed (blackout) . . . . Ms. Smyrski was arrested in 2006 after a report to the police of reckless driving made by another driver. She states she had been at a bar and had two “twisted teas”. . . . [T]he police statement said it had been 15 minutes between the complaint and police contact with Ms. Smyrski. Ms. Smyrski stated it had been an hour between and she had three to four shots of vodka at the dorm during that hour. In the second incident in 2011, Ms. Smyrski’s vehicle had been driven into a ditch and she was intoxicated and charged with DUI. Her BAC was .183. She stated in this interview she had “a couple glasses of wine, maybe four, and they may have been doubles or more” and she had a shot of tequila. According to the Board summary of the police records for the incident, she stated to police she’d had two to three and a half beers. . . . Ms. Smyrski reported another incident in 2006 when she was arrested for underage drinking and had been drinking beer at a house party – as many as 10 cups. . . . Ms. Smyrski attributes her heavy drinking and getting in trouble to being young and experimenting. . . . She reports that now she knows her limits, can stop after one or two, and can control it. Ms. Smyrski’s other drug use history includes marijuana one time. . . .[12]

Dr. St. Germaine diagnosed Ms. Smyrski with alcohol abuse, rule out alcohol dependence. Dr. St. Germaine noted that she could not ascertain the extent of Ms. Smyrski’s alcohol abuse for the following reasons: [Ms. Smyrski] contradicted herself a number of times in this interview and on the test instruments, appearing to minimize amounts and frequencies, and other important data that could have resulted in a more complete and useful assessment of her drinking. For example, on one test instrument she answered “no” to the questions of whether her drinking was jeopardizing her job and if her drinking affects her reputation. She answered “no” to having had a loss of memory but reported that she’d had blackouts. What is of note is that she has little insight or understanding of the nature of alcohol problems. Also of note in terms of risk factors are a high BAC (tolerance), drinking alone, denial about drinking and the importance of the negative consequences that have resulted to her because of her drinking (including having to have this evaluation), and drinking despite having a physical condition (Crohn’s disease) which could potentially be exacerbated by alcohol use. . . .[13]

Based on her concerns, Dr. St. Germaine made four recommendations to the Board: (1) That Ms. Smyrski be given the option of entering the Board’s Chemically Addicted Nurses Diversion Option (“CANDO”), a non- disciplinary voluntary program that the Board offers to nurses who feel that they may have substance abuse or dependence issues that they need to address; (2) If Ms. Smyrski chose not enter the CANDO program, to require her to complete a 36-hour education and counseling program such as those offered by state-licensed providers to persons who have been convicted of DUI; (3) If Ms. Smyrski had further problems with alcohol in the future, to immediately refer her to an intensive outpatient program for evaluation; but that (4) No restrictions be imposed on her working as a nurse at this time.[14] Dr. St. Germaine testified that most people who drink do not get arrested, yet Ms. Smyrski had three alcohol related arrests between 2006 and 2011. The three arrests and Ms. Smyrski’s reported high BAC in each incident showed a pattern. Dr. St. Germaine testified that substance abuse counselors frequently rely upon reported BAC to diagnose substance abuse or dependence. Dr. St. Germaine testified that if Ms. Smyrski weighed 120 pounds,[15] she would have had to have drunk six drinks in short order to reach the .238% BAC that police measured in the March 2006 incident. She would have had to have been gulping drinks with the goal of becoming intoxicated. Dr. St. Germaine testified that because Ms. Smyrski continued to drink despite having been arrested for alcohol related incidents was quite concerning. Dr. St. Germaine testified that Ms. Smyrski had a high probability of substance abuse if she continued to drink. Dr. St. Germaine testified that it would not change her opinion if Ms. Smyrski said that she had quit drinking in July 2013, without any ill effect. Dr. St. Germaine testified that her opinion was that the optimal result would be for Ms. Smyrski to enroll in the CANDO program, but if she declined that option, the 36-hour education and counseling program was the fallback position. Dr. St. Germaine testified that she had no problem with the Board requiring that Ms. Smyrski be monitored, given the concerns about Ms. Smyrski’s alcohol use. Dr. St. Germaine testified that she was surprised that the Board was only requiring that Ms. Smyrski be monitored for a year. Dr. St. Germaine testified that she had reviewed Dr. Lett’s report and did not find much difference from her own report. Dr. St. Germaine testified that she was not sure about Dr. Lett’s opinion that Ms. Smyrski’s alcohol abuse was in full sustained remission because the diagnosis was time-related and required that the person not abuse alcohol for a full 12 months. Dr. St. Germaine acknowledged that she did not investigate the eight or nine months before the hearing. Dr. St. Germaine testified that the SASSI is a newer tool that is 93% accurate at diagnosing addiction and predicting the likelihood of future substance abuse. Dr. St. Germaine testified that Ms. Smyrski’s high score on the defensiveness scale lowered the reliability of her SASSI score was undermined by her high measured defensiveness scores and the contradictions in her accounts. Dr. St. Germaine also acknowledged that in her experience with college students, alcohol abuse frequently peaks at age 25 and that Ms. Smyrski’s alcohol abuse may be in the past. Dr. St. Germaine also acknowledged that in the past, she has recommended that subjects of her substance abuse evaluations be monitored, but that she did not make such recommendation in her report of her evaluation of Ms. Smyrski. Nonetheless, Dr. St. Germaine testified that she believed that Ms. Smyrski’s participation in the CANDO program was the best option and that if the program was not available, she believed that Ms. Smyrski should be monitored. / / / / / / / / Dr. Lett’s Evaluation and Testimony Dr. Lett has been a licensed psychologist specializing in substance abuse treatment and evaluation since 1989, and has specialized in treatment and diagnosis of health care providers. In his career, Dr. Lett has evaluated over 700 physicians and considerably more than 1,000 other health care providers for issues related to substance abuse. Dr. Lett is currently on the Board’s list of approved substance abuse evaluators and is an acknowledged expert in the field of diagnosis and treatment of substance abuse. On November 13, 2013, Dr. Lett performed a substance abuse evaluation of Ms. Smyrski. Dr. Lett reported the following substance use history: [Ms. Smyrski] took her first drink of alcohol when she was about years old and was first intoxicated at this same age. She reports her last drink of alcohol was in July 2013. She adamantly states that she is not an alcoholic. When she drinks she prefers to drink red wine. She states she feels the effects of alcohol after consuming two standard glasses of wine per occasion once or twice a month. She typically would drink at home and occasionally would have a drink at dinner with a friend. As a result of using alcohol, she has experienced a hangover and has drunk more alcohol than she intended to on at least one occasion. She reports that no one has ever complained about her drinking, and she has not experienced a blackout, morning drinking, or DT’s. . . . She enrolled to complete 12 three hour classes and has already completed six classes (18 hours).

She experimented with marijuana once when she was 18 years old. She states she did not like and has not used it since. . . .[16]

Dr. Lett also reported Ms. Smyrski’s score on substance use measures and emotional functioning: Substance Use Measures

On the ASUSR, a substance use disorder screening measure, her profile is characterized by Strengths and Defensive scale raw scores that fall in the HIGH deciles rank. This suggests she believes that she has the resources available to organize and cope effectively with the stresses of everyday living. In addition, she was rather reluctant to endorse[] items indicating personal shortcomings or weaknesses that most people readily endorse. Although the profile does not indicate active substance dependency, profiles with elevated defensive scales may miss persons with substance use disorder.

On the SASSI, another substance use disorder screening measure she obtained a profile (based on lifetime experience) that suggests a Low Probability of a substance dependence disorder. However, she obtained a Defensiveness score that falls above the average range. Elevated defensiveness scores increase the possibility of the SASSI missing substance dependent individuals. Elevated defensiveness scores may also reflect situational factors.

Emotional Functioning

The MMPI2, an objective measure of personality disorder and screen for clinical psychopathology was administered. She obtained a valid profile. Therefore the clinical profile can be confidently interpreted. The validity profile indicates she approached the test in a moderately defensive manner. It is not unusual for persons who are referred for evaluation by outside societal agents for high stakes evaluations (i.e., employment, custody) to attempt to present a positive impression. Her profile suggests experiences of irritability, being easily hurt, and not being able to resolve anger easily. Anger may be expressed in subtle, indirect ways. She obtained a raw score on a scale of addiction propensity that suggests average risk for developing an addictive disorder. A review of critical items is unremarkable. The profile does not indicate clinical psychopathology.

On an objective measure of clinical depression, she obtained a raw score that indicates minimal clinical depression.[17]

Based on the evaluation, Dr. Lett diagnosed Ms. Smyrski with alcohol abuse in full sustained remission. Dr. Lett opined that “it is within a reasonable degree of psychological certainty that Ms. Smyrski has the capabilities to function safely as a nurse.”[18] Although Dr. Lett recommended that Ms. Smyrski complete the 36 hours of alcohol education and counseling in which she was currently enrolled, Dr. Lett espressly declined to make any recommendations for evaluation, treatment, work restrictions, or monitoring by the Board.[19] Dr. Lett testified that even if a subject of an evaluation is defensive, she can be honest. Dr. Lett testified that although Ms. Smyrski had wanted to make a good impression, he did not conclude that her defensiveness invalidated her scores on objective tests and the results of his his clinical interview. Dr. Lett testified that Ms. Smyrski was no more defensive than the usual subject of an evaluation. Dr. Lett testified that practitioners may define “blackout” differently, which may cause subjects to give different responses. Dr. Lett acknowledged that if a person wakes up after drinking and cannot remember part of the evening, she has experienced a blackout. Dr. Lett testified that when he asked Ms. Smyrski if she had ever experienced such an event, she responded, “no.” Dr. Lett testified that Ms. Smyrski’s history included a pattern of alcohol abuse, not alcohol dependence. Alcohol dependence involves withdrawal and physiological changes if the person stops drinking alcohol, increasing tolerance so that the person must drink more and is able to function with a higher BAC, and the person seeking alcohol. A person with alcohol dependence will continue to drink despite a significant impact on a major life area. Dr. Lett testified that Ms. Smyrski did not have alcohol dependence. Although she had a high tolerance, she did not experience any symptoms of withdrawal after she stopped drinking. Dr. Lett testified that although Ms. Smyrski had been arrested three times for alcohol related incidents between the ages of 19 and 25, her alcohol abuse had not had major consequences in significant area of her life within the past two years. Dr. Lett testified that Ms. Smyrski had reported that she had not abused alcohol since November 2011, the date of her last arrest, which sufficed to support a diagnosis of alcohol abuse in complete remission. Dr. Lett testified that many college students abuse alcohol up to the age of 25 years or so. Although they may drink a lot of alcohol, they do not meet the criteria for alcohol dependence. Dr. Lett explained that he did not recommend further monitoring of Ms. Smyrski because she does not currently meet criteria for acute alcohol abuse. Although Ms. Smyrski presented with a moderate risk profile, Dr. Lett testified that her profile did not warrant the Board imposing restrictions contingent on the possibility of her future alcohol abuse. Dr. Lett testified that in his opinion, the Board should grant Ms. Smyrski an unrestricted license. Ms. Smyrski’s Personal, Work, and Other History Ms. Smyrski registered for and started the 36 hours of alcohol education and counseling that Dr. St. Germaine and Dr. Lett recommended in August 2013, and completed the course in December 2013. Ms. Smyrski testified that she learned a great deal from the education and counseling, including the patterns of addiction, the effect of alcohol on the body, the stressors that make alcohol abuse more likely, and the coping mechanisms to avoid alcohol abuse. Ms. Smyrski testified that she has huge support systems in Arizona and in Vermont who are willing to call her out. Ms. Smyrski testified that she has not abused alcohol in the last twelve months or drank more than one or two glasses of wine on occasion. Ms. Smyrski testified that she has not had anything to drink since July 2013, and that she did not experience any withdrawal symptoms. Ms. Smyrski testified that in June 2013, she intended to take the 36 hours of alcohol education and counseling that Dr. St. Germaine had recommended. Ms. Smyrski testified that she does not know if she qualifies for the CANDO program because she has never been diagnosed with alcohol dependence and that she met with the Board’s employee, Valerie Smith, who told her she did not qualify. Ms. Krupnick and Ms. Smyrski testified that the house in which they live is located at the base of Granite Mountain. During the Doce fire in June 2013, they were forced to evacuate from the house for between five and ten days. Ms. Smyrski testified that she left for a pre-planned trip after she was allowed to return to the house. Ms. Smyrski testified that after she returned from her trip, everything was up in the air due to the tragic deaths of the Granite Mountain Hotshots. Ms. Smyrski testified that two of the Hotshots, Travis Turbyfill and Christopher McKenzie, had been personal friends and that she worked extra shifts to allow her co-workers to attend funerals. Ms. Smyrski testified that the summer of 2013 was a tragic and hectic time for the Prescott community and that she registered and started taking the 36 hours of alcohol education and counseling as soon as she was able. Ms. Smyrski testified that she graduated from high school in 2004 and went directly to Western Massachusetts College. Ms. Smyrski testified that after a year of college she took a year off after her uncle died to decide what she wanted to do. The 2006 incidents occurred during this time. Ms. Smyrski testified that she disclosed the three incidents to the Vermont licensing authority and that it granted her an unrestricted license to practice nursing in Vermont. Ms. Smyrski testified that since she graduated from nursing school, she rarely drinks, mainly during family holidays. She no longer focuses on drinking to get drunk. Ms. Smyrski testified that she provided the same information to Dr. Germaine and to Dr. Lett. Ms. Smyrski testified that she did not try to hide anything from Ms. Richter or the Board. Ms. Smyrski acknowledged that she answered “no” to the question on the Vermont application, “Have you ever been convicted of a crime other than a minor traffic violation? (Driving While Intoxicated and [DUI] are not minor).”[20] Ms. Smyrski also acknowledged that she signed the application under penalty of perjury. Ms. Smyrski testified that she thought that the 2006 conviction for careless or negligent operation of a motor vehicle was a traffic violation and that the charge for providing false information based on the 2011 incident was pending. Ms. Smyrski explained that she did not have the court records when she filled out the Vermont application. Mr. Herbert has been licensed as a registered nurse in Arizona since 1994. Mr. Herbert worked with Ms. Smyrski for six months at Prescott Valley Good Samaritan Society, an assisted living facility, on an average of two 12-hour shifts per week. For three months, Mr. Herbert was Ms. Smyrski’s supervisor. Mr. Herbert testified that Ms. Smyrski was responsible for the whole care of each of her patients, including assessment, medication administration, and supervision of Certified Nursing Assistants and Licensed Practical Nurses. Mr. Herbert rated Ms. Smyrski’s skills as above average and described her as skilled and caring, especially for her level of experience. Mr. Herbert testified that Ms. Smyrski never appeared to be impaired and was reliable, although she had some absenteeism related to her pet and the expiration of her temporary license. Mr. Herbert testified that otherwise, Ms. Smyrski was always on time and picked up extra shifts. Mr. Herbert testified that based on his observations, no restrictions on Ms. Smyrski’s license were warranted. Mr. Herbert was aware that the hearing involved Ms. Smyrski’s issues with alcohol. Mr. Herbert acknowledged that he was only aware of one incident involving Ms. Smyrski’s drinking in 2006 and that she had not shared the August 2006 and November 2011 incidents. Mr. Herbert testified, however, that learning of two more incidents did not change his opinion of Ms. Smyrski. Ms. Dow testified that she has been a nurse for more than 22 years. Ms. Dow testified in 2008, she worked for Dr. Krupnick in Vermont while he employed Ms. Smyrski as a medical assistant for eight to ten hours a day. Ms. Dow testified that at that time, Ms. Smyrski was going to school to become a nurse. Ms. Dow testified that she later changed offices and Ms. Smyrski stopped working for Dr. Krupnick to go to school full-time. Ms. Dow testified that between the times that Ms. Smyrski graduated from nursing school and passed her nursing examination in Vermont, she worked as a graduate nurse under Ms. Dow’s supervision for four to six months. Ms. Dow testified that she never had any concerns about Ms. Smyrski’s alcohol use. Ms. Smyrski was always a competent professional with great integrity and compassion. Ms. Dow testified that she is acquainted with Ms. Smyrski’s mother, who told her that Ms. Smyrski had at least one alcohol related incident. The alcohol related incidents do not change Ms. Dow’s opinions of Ms. Smyrski. Ms. Dow would not recommend any restrictions or monitoring of Ms. Smyrski’s license. Ms. Krupnick is Ms. Smyrski’s aunt. Ms. Krupnick is also holds licenses as a registered nurse and nurse practitioner and has been practicing nursing for 27 years. Ms. Krupnick testified since Ms. Smyrski was 16 years old, she had worked for Ms. Krupnick and her husband, who is a physician, in their practice in Vermont. Ms. Krupnick testified that in 2005, her brother, Ms. Smyrski’s uncle, died. Ms. Krupnick testified that she was aware of the two incidents in 2006 because Ms. Smyrski never tried to hide them. Ms. Krupnick testified that she was not aware of any reason to believe that Ms. Smyrski was an alcoholic or that she habitually abused alcohol. Ms. Krupnick testified that Ms. Smyrski went on trips with the family as a nanny and took care of her and her husband’s five- and nine-year-old children in 2006. Ms. Krupnick testified that she never would have allowed Ms. Smyrski to care for her children if she thought she had a serious problem with alcohol. Ms. Krupnick testified that she never saw Ms. Smyrski drink. Although she was aware of the two incidents in 2006, she remembered what it was like to be a nineteen-year-old. Ms. Krupnick testified that she had encouraged Ms. Smyrski to go to nursing school. Ms. Krupnick testified that she and her family moved to Arizona in 2009. After Ms. Smyrski graduated from nursing school, Ms. Krupnick encouraged her to move to Arizona to get away from the small town in Vermont and to obtain hospital experience because Dr. Krupnick is a hospitalist. Because Vermont had not restricted Ms. Smyrski’s license in Vermont, Ms. Krupnick did not think that Ms. Smyrski would have any problem getting licensed in Arizona. Ms. Krupnick testified that Ms. Smyrski has been living with the Krupnick family since August or September of 2012. Ms. Krupnick has not observed any signs or symptoms of abuse or impairment, but would report them if she had. Ms. Smyrski is responsible for her own bills, including huge student loans. Ms. Smyrski testified that she loves working with patients and was increasing her professional competency while she was working under the temporary Arizona license. The Prescott Valley Good Samaritan Society is willing to rehire her if the Board issues a license. Ms. Smyrski testified that that she would not be able to pursue some career objectives on a restricted license. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(B)(5). Ms. Smyrski bears the burden of proof to establish that she is qualified to be licensed as a registered nurse by a preponderance of the evidence.[21] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[22] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[23] A.R.S. § 32-1663(A) allows the Board to deny Ms. Smyrski’s Application or if it grants the license, to discipline her registered nurse license if she has committed the acts of unprofessional conduct charged in the Order of Denial.[24] The Board did not charge Ms. Smyrski with failing to cooperate with the Board’s investigation or with providing false information to the Board.[25] All of the incidents of Ms. Smyrski’s alcohol abuse occurred before she applied for a nursing license or worked as a registered nurse. Ms. Smyrski testified credibly to the circumstances of the March 2006, August 2006, and November 2011 incidents and her responses to the Board’s investigation. Both Dr. St. Germaine and Dr. Lett diagnosed Ms. Smyrski with alcohol abuse. Neither Dr. St. Germaine nor Dr. Lett noted any incidents involving Ms. Smyrski’s abuse of alcohol after November 2011. According to the definition that Dr. St. Germaine provided at the hearing and Dr. Lett’s report and testimony, Ms. Smyrski’s alcohol abuse is in full remission. Both Dr. Lett and Dr. St. Germaine’s written report opined that if Ms. Smyrski completed 36 hours of alcohol education and counseling, the Board should issue an unrestricted license to her. Dr. St. Germaine’s hearing testimony was not consistent with the recommendations in her report or the evidence that was presented at the hearing. The Board should not impose discipline on or restrict a license based upon a remote possibility that the licensee may commit an act of unprofessional conduct in the future. Ms. Smyrski credibly testified about the circumstances that prevented her from enrolling in the alcohol education and counseling courses before August 2013, or from completing the courses until December 2013. She established that her failure to complete the courses was not due to any resistance to the Board’s attempts to regulate her. Ms. Smyrski established that she has not committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(d) and (j),[26] as further defined by A.A.C. R4-19-403(17).[27] Ms. Smyrski established that she meets all statutory and regulatory requirements for licensure and that she can competently and safely practice nursing. RECOMMENDED ORDER In light of the foregoing, it is recommended that the Board rescind its Order of Denial of Applicant Ashley Lynn Smyrski’s license application and issue an unrestricted license to her to practice as a registered nurse in the State of Arizona. 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 29, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See the Board’s Exhibit 1. [2] The Board’s Exhibit 5 at 3. [3] See the Board’s Exhibit 6. [4] Effective August 2, 2012. [5] Effective January 31, 2009. [6] See the Board’s Exhibit 3 (Fair Haven P.D. report). [7] The Board’s Exhibit 3 at 15. [8] See the Board’s Exhibit 2 at 23. [9] See the Board’s Exhibit 4 at 15. [10] See the Board’s Exhibit 6 at 3. [11] See Ms. Smyrski’s Exhibit 21. [12] The Board’s Exhibit 5 at 2. [13] Id. at 3. [14] See id. at 2-3. [15] Ms. Richter’s Investigative Report indicates that Ms. Smyrski said that she is 5’3” and weighs 119 lbs. See the Board’s Exhibit 6 at 4 (initial report). [16] The Board’s Exhibit 9 at 4. [17] Id. at 5. [18] Id. at 7. [19] See id. at 8. [20] The Board’s Exhibit 10 at 3. [21] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [22] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [23] Black’s Law Dictionary at 1220 (8th ed. 1999). [24] A.R.S. § 32-1663(A) provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.” [25] See A.A.C. R4-19-403, which further defines “unprofessional conduct” under A.R.S. § 32-1601(22)(d) to include the following: 25. Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or b. Respond to a subpoena issued by the Board; 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 . . . . As noted above, the Board did not charge Ms. Smyrski with having committed unprofessional conduct as further defined by these regulations. The evidence of inconsistencies was considered to gauge Ms. Smyrski’s credibility. [26] These statutory subsections define “unprofessional conduct” as follows: (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. [27] A.A.C. R4-19-403(17) further defines “unprofessional conduct” under A.R.S. § 32-1601(22)(d) as “[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.”

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826