ALJDEC decisions subject to certification as final

13A-1211165-NUR · State Board of Nursing · 2013-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2013, at 8:00 a.m. The matter was held open for ten days to allow time for the transcript of the hearing to be prepared. APPEARANCES: The Arizona State Board of Nursing (hereinafter the “Board”) was represented by Assistant Attorney General Sarah Selzer, Esq. Respondent Kevin Joseph Milles (hereinafter “Mr. Milles”) did not appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: 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, 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. Mr. Milles holds Board issued practical nurse license number LP043941. On or about August 27, 2010, Mr. Milles entered into Consent Agreement and Order No. 1002022 (the “Order”).[1] The Order provided, among other things, that Mr. Milles was required to participate in random drug testing, to abstain from alcohol use, and to have his employers acknowledge receipt of the Order. On May 14, 2012, Mr. Milles submitted a dilute urine drug specimen when he was required to provide a random sample pursuant to the Order. Mr. Milles failed to cause his employer, Desert Blossom Health and Rehab, to submit an acknowledgement letter to the Board by the date that the Order required, June 22, 2012. On September 7, 2012, Mr. Milles tested positive for alcohol in a random urine drug screen, in violation of the Order. On June 20, 2013, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Mr. Milles’ practical nurse license number LP043941 under A.R.S. §§ 32-1601(18)(d), 1601(18)(j), namely, A.A.C. R4-19-403(17), 32-1601(22)(d), and 32-1601(22)(j), namely, A.A.C. R4-19-403(17). The Complaint and Notice of Hearing was sent via certified mail to Mr. Milles at his address of record. A hearing was held on August 15, 2013. The Board submitted three exhibits and presented the testimony of one witness, Divan Galan, J.D., L.L.M. Mr. Milles 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 fifteen minutes to allow Mr. Milles additional travel time, he did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed. Consequently, Mr. Milles did not present any evidence to defend his practical nurse license number LP04394. The case record reflects that Mr. Milles did make contact with the Office of Administrative Hearings by telephone at 8:45 a.m. on August 15, 2013, stating that he was enroute to the Phoenix hearing site from Kingman. The hearing had concluded and the Board’s attorney and witnesses had already been excused. Hearing Evidence Divan Galan, J.D., L.L.M (hereinafter “Investigator Galan”) testified that she is the senior investigator for the Board’s monitoring department. Investigator Galan stated that the monitoring department oversees compliance for RNs, CNAs and LPNs who have entered into consent agreements with the Board. Investigator Galan testified that she had been working for the Board for approximately 18 months. Investigator Galan testified that Mr. Milles knowingly entered into the Order.[2] Investigator Galan stated that pursuant to the terms of the Order, Mr. Milles was required to participate in random drug testing, to abstain from alcohol, and to have his employers acknowledge receipt of the Order. Investigator Galan testified that paragraph 7 of the Terms of Probation in the Order provided that any occurrence of the following conditions constitutes noncompliance with the Order: 1. A positive drug test showing evidence of any drug other than an authorized drug. 2. Submission of a specimen where the integrity has been compromised. 3. Failure to submit to a drug test on a day when a drug test has been requested by the Board, its designee, or the laboratory. 4. Submission of a urine sample that is below the acceptable volume or temperature to be tested. Investigator Galan testified that paragraph 8 of the Terms of Probation in the Order provided that Mr. Milles shall abstain completely from the personal use of alcoholic beverages. Investigator Galan testified that paragraph 10 of the Terms of Probation in the Order required written notification of practice setting from Desert Blossom Health and Rehab acknowledging that Mr. Milles had provided his immediate supervisor with a copy of the Order and that Desert Blossom Health and Rehab was willing and able to comply with the conditions of probation set forth in the Order. Investigator Galan testified that Mr. Milles failed to comply with the terms of probation set forth in the Order. Investigator Galan acknowledged that the Board received an employee evaluation for Mr. Milles from Desert Blossom Health and Rehab, where Mr. Milles was employed. Investigator Galan stated that the Board did not receive the required written notification of practice setting from Desert Blossom Health and Rehab acknowledging that Mr. Milles had provided his immediate supervisor with a copy of the Order and that Desert Blossom Health and Rehab was willing and able to comply with the conditions of probation set forth in the Order. Investigator Galan testified that on May 14, 2012, Mr. Milles submitted a dilute urine sample when he was required to provide a random urine sample pursuant to the Order.[3] Investigator Galan stated that a dilute urine sample is technically non-compliant with the Order. Investigator Galan testified that in practice the Board usually just sends a warning letter for the first dilute sample. Investigator Galan stated that the warning letter would admonish the individual that a second dilute urine sample would be treated as non-compliant with the terms of the Order. Investigator Galan testified that the Board treats dilute urine samples differently than alcohol positive samples because the Board recognizes that during different seasons of the year, people drink different amounts of liquid. Investigator Galan stated that the Board expects people to drink more liquids during the hotter part of the year. Investigator Galan testified that once the individual is warned about a dilute sample, the individual is expected to know that they should provide their urine sample first thing in the morning. Investigator Galan testified that Mr. Milles tested positive for alcohol on September 7, 2012.[4] Investigator Galan stated that she had a telephone conversation with Mr. Milles about the September 7, 2012 positive test. Investigator Galan testified that Mr. Milles admitted that he had relapsed and that he had drank alcohol on or about September 7, 2012. Investigator Galan testified that that the September 7, 2012 positive drug-test for alcohol was a violation of the Order. Investigator Galan testified that the Board does not give individuals a second chance after they test positive for alcohol. Investigator Galan stated that paragraph 8 of the Terms of Probation in the Order specifically required Mr. Milles to abstain completely from the personal use of alcoholic beverages. Investigator Galan testified that a positive alcohol test is very specific and provides a “black and white” type of result. Investigator Galan stated that that the September 7, 2012 positive drug test result demonstrated that Mr. Milles had an unauthorized drug in his blood system that could not be justified or excused by a prescription. Investigator Galan testified that Mr. Milles had violated the Order by using alcohol, despite the fact that Mr. Milles knew that the personal use of alcoholic beverages was prohibited by the Order. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A).[5] 2. The Complaint and Notice of Public Hearing that the Board mailed to Mr. Milles at his address of record was reasonable, and Mr. Milles is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04[6]; A.R.S. § 41-1061.[7] 3. The Board bears the burden of proof and must establish cause to penalize Mr. Milles’ practical nurse license number LP043941. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2- 19-119.[8] 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). 5. The Board established that Mr. Milles committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(d),(i), and (j),[9] specifically, A.A.C. R4-19-403(17),[10] and A.R.S. § 32-1601(18)(j) (violating a rule that is adopted by the Board), specifically A.A.C. R4-19-403(17). RECOMMENDed order Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Mr. Milles’ practical nurse license number LP04394. In the event of certification of this 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 the certification Done this day, August 29, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

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

----------------------- [1] See Exhibit No. 1 (Consent Agreement and Order No. 1002022). [2] See Exhibit No. 1 (Consent Agreement and Order No. 1002022). [3] See Exhibit No. 2 (Sonora Quest Laboratories Drug Screen collected 05/14/12). [4] See Exhibit No. 3 (Sonora Quest Laboratories Drug Screen collected 9/7/12). [5] A.R.S. § 32-1606 includes among the Board’s statutory responsibilities and powers the following:

A. The board may: 5. Establish a confidential program for the monitoring of licensees who are chemically dependent and who enroll in rehabilitation programs that meet the criteria established by the board. The board may take further action if the licensee refuses to enter into a stipulated agreement or fails to comply with its terms. In order to protect the public health and safety, the confidentiality requirements of this paragraph do not apply if the licensee does not comply with the stipulated agreement. 21. Adopt rules to establish competency standards for obtaining and maintaining a license. C. The board may conduct an investigation on receipt of information that indicates that a person or regulated party may have violated this chapter or a rule adopted pursuant to this chapter. Following the investigation, the board may take disciplinary action pursuant to this chapter. E. Failure to comply with any final order of the board, including an order of censure or probation, is cause for suspension or revocation of a license or a certificate.

[6] A.R.S. § 41-1092.04 provides as follows: Unless otherwise provided in this article, every notice or decision under this article shall be served by personal delivery or certified mail, return receipt requested, or by any other method reasonably calculated to effect actual notice on the agency and every other party to the action to the party's last address of record with the agency. Each party shall inform the agency and the office of any change of address within five days of the change. [7] A.R.S. § 41-1061 provides as follows: A. In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Unless otherwise provided by law, the notice shall be given at least twenty days prior to the date set for the hearing. B. The notice shall include: 1. A statement of the time, place and nature of the hearing. 2. A statement of the legal authority and jurisdiction under which the hearing is to be held. 3. A reference to the particular sections of the statutes and rules involved. 4. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished. C. Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved. D. Unless precluded by law, and except as to claims for compensation and benefits under chapter 6 of title 23, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. E. The record in a contested case shall include: 1. All pleadings, motions, interlocutory rulings. 2. Evidence received or considered. 3. A statement of matters officially noticed. 4. Objections and offers of proof and rulings thereon. 5. Proposed findings and exceptions. 6. Any decision, opinion or report by the officer presiding at the hearing. 7. All staff memoranda, other than privileged communications, or data submitted to the hearing officer or members of the agency in connection with their consideration of the case. F. Oral proceedings or any part thereof shall be recorded manually or by a recording device and shall be transcribed on request of any party, unless otherwise provided by law. The cost of such transcript shall be paid by the party making the request, unless otherwise provided by law or unless assessment of the cost is waived by the agency. G. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. [8] A.A.C. R2-19-119 provides as follows:

A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the evidence. B. Burden of proof. Unless otherwise provided by law: 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense; and 3. The proponent of a motion shall establish the grounds to support the motion.

[9] A.R.S. § 32-1601(D) provides, in relevant part, as follows:

Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: . . . .

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or 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. . . .

[10] A.A.C. R4-19-403(17) provides as follows:

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;

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