FINACT14A-1211118-NUR.pdf

14A-121118-NUR · State Board of Nursing · 2015-02-02

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 4747 North 7th Street, Suite 200 Phoenix. AZ 85014-3655 Phone (602) 771-7800 Fax (602) 771-7884 E-Mail: [email redacted] Home Page: http://www.nursing.state.az.us

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: January 30, 2015

RE: Melinda Vasquez Docket No. 14A-1211118-NUR ______________________________________________________________________________

On January 30, 2015, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 4747 North 7th Street Ste 200 Phoenix AZ 85014-3655 602-771-7800

IN THE MATTER OF THE CERTIFIED NURSING ASSISTANT CERTIFICATE NO. FINDINGS OF FACT, CNA764361803 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 14A-1211118-NUR MELINDA VASQUEZ, RESPONDENT

A hearing was held before Diane Mihalsky, Administrative Law Judge (“ALJ”), at 1400 West Washington Suite 101, Phoenix Arizona, on December 18, 2014. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Melinda Vasquez (“Respondent”). Appeared in

person on her own behalf.

On December 30, 2014, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On January 30, 2015, the Arizona State Board of Nursing met to consider the ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this matter, the Board makes the following Findings of Fact and Conclusions of Law.

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 the Nurse Practice Act.

2. Respondent holds Board-issued certified nursing assistant (“CNA”) certificate number

CNA764361803 in the State of Arizona.

3. On November 13, 2012, Respondent submitted to a pre-employment urine drug test for Kindred Transitional Care and Rehabilitation – Northwest (“Kindred”) in Tucson, Arizona. Respondent’s drug test was positive for cocaine.

4. Kindred did not hire Respondent but reported the positive drug test result to the Board.

The Board opened an investigation. 5. On April 15, 2014, at the request of Board staff, Respondent voluntarily submitted to a urine drug test. Respondent’s April 15, 2014 drug test was positive for cocaine.

6. Cocaine is a narcotic drug.1 It is illegal to possess or to use narcotic drugs in the State of

Arizona.2 The Board determined to discipline Respondent’s CNA certificate. Respondent requested a hearing. 7. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on whether Respondent should remain certified as a CNA.

8. A hearing was held on December 18, 2014. The Board submitted three exhibits and

presented the testimony of two witnesses: (1) Michael Joseph Pilder, R.N., the Board’s Nurse Consultant who investigated the complaint against Respondent; and (2) Valerie Smith, R.N., M.S., F.R.E., the Board’s Associate Director, who has significant expertise in substance abuse and

interpreting drug test results. Respondent testified on her own behalf.

HEARING EVIDENCE 9. The Board obtained the result of the November 13, 2012 pre-employment drug test for Kindred through a subpoena and submitted the result into evidence. The result of the test was positive

See A.R.S. § 13-3401. See A.R.S. § 13-3408(A).

for Benzoylecgonine, a metabolite of cocaine. The positive result was confirmed through a GC/MS and/or LC-MS/MS test.3 10. On or about July 24, 2013, the Board received Respondent’s completed Investigative

Questionnaire about the positive result on the Kindred pre-employment drug test. Respondent indicated

on the Investigative Questionnaire that someone must have slipped her cocaine at a party without her knowledge because she does not use drugs and had never before had a drug test that was positive for any drug.4

11. On or about April 15, 2014, Mr. Pilder requested that Respondent take a random drug

test. Respondent agreed and provided a sample. 12. The Board submitted the chain-of-custody from Sonora Quest Laboratories for the sample that Respondent provided on April 15, 2014.5 The result of test on the sample was positive for the cocaine metabolite at a 300 ng/mL cut-off and the positive result was confirmed by GC/MS.6

13. Respondent testified that after the sample that she provided on April 15, 2014, tested

positive for cocaine, her husband confessed that he used cocaine. Respondent insisted that she does not take illegal drugs and that both positive drug test results must have been caused by her husband somehow contaminating her through the exchange of saliva, sperm, or some other bodily fluid.

14. Ms. Smith has been a professional nurse for thirty-six years and has worked for the

Board for nineteen years. Ms. Smith has substantial experience in substance abuse treatment and the regulation of nurses who abuse various substances. When Ms. Smith started working for the Board, she was instrumental in creating the Chemically Addicted Nurses Diversion Option (“CANDO”) program

to identify and treat nurses with substance abuse issues before the abuse results in a major event.

See the Board’s Exhibit 1 at 6. See the Board’s Exhibit 3 at 15. See the Board’s Exhibit 2 at 9. See id. at 11.

15. Ms. Smith testified that she has seen many drug test results and has been trained to evaluate the significance of a positive test result. Ms. Smith testified that if a test returns a positive result for any substance, the result is confirmed in a second test, frequently a Gas Chromatography

Mass Spectrometry test. Ms. Smith explained that a person cannot test positive unless molecules of the

substance are present at a level that could not be explained by passive exposure to saliva, sperm, or other bodily fluids. 16. Ms. Smith opined that Respondent’s explanation that physical contact with her husband

caused both the November 13, 2012 and April 15, 2014 drug test results that were positive for cocaine

was not plausible. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.7 2. The Board bears the burden of proof to establish cause to discipline Respondent’s CNA

certificate by a preponderance of the evidence.8 “A preponderance of the evidence is such proof as

convinces the trier of fact that the contention is more probably true than not.”9 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.”10

See A.R.S. § 32-1606(B)(10), which requires the Board to “[d]etermine and administer appropriate

disciplinary action against all regulated parties who are found guilty of violating this chapter or rules adopted by the board.” See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999).

3. The Board established that the November 13, 2012 and April 15, 2014 drug test results that were positive for cocaine more likely than not were caused by Respondent’s direct and active use of cocaine.

4. The Board established that Respondent’s positive drug test results and use of cocaine, an

illegal drug, constituted unprofessional conduct as defined by A.R.S. §§32-1601(22)(d)11 and 32- 1601(22)(j).12 5. The Board also established that Respondent’s two positive drug tests constitute a

conduct or practice that is or might be harmful to the health of a patient or the public under A.R.S. §

32-1601(22)(d) pursuant to A.A.C. R4-19-814(14) and (17).13 6. Therefore, the Board established cause to discipline Respondent’s CNA certificate under A.R.S. §§ 32-1663(D)14 and 32-1664(N).15 7. With respect to the penalty, Respondent did not take any ownership of the use of cocaine

that the Board established resulted in two positive drug test results over a period of seventeen months.

Respondent’s implausible explanation for the positive drug test results shows that she cannot be A.R.S. § 32-1601(22)(d) (effective August 2, 2012) defines unprofessional conduct as “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” A.R.S. § 32-1601(22)(j) (effective August 2, 2012) defines unprofessional conduct as “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” A.A.C. R4-19-814 (effective January 31, 2009) further defines a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes an additional basis for disciplinary action on a certificate for purposes of A.R.S. § 32-1601(16)(d) for a CNA as follows: 14. Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting; [or] .... 17. Obtaining, possessing, using, or selling any narcotic, controlled substance, or illegal drug in violation of any employer policy or any federal or state law . . . . A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an

administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” A.R.S. § 32-1664(N) provides that “[i]f the regulated party is found to have committed an act of

unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

regulated at this time. Because the Board’s primary responsibility is to protect the public health and safety, the Board should revoke Respondent’s CNA certificate.

ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order: Pursuant to A.R.S. § 32-1664(N), the Board REVOKES certified nursing assistant certificate number CNA764361803 issued to Melinda Vasquez.

RIGHT TO PETITION FOR REHEARING OR REVIEW Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing or review within 30 days after service of this decision with the Arizona State Board of Nursing. The motion for rehearing or review shall be made to the attention of Trina Smith, Arizona State

Board of Nursing, 4747 North 7th Street Ste 200, Phoenix AZ 85014-3655, and must set forth

legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608. For answers to questions regarding a rehearing, contact Trina Smith at (602) 771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing or review

within 30 days after service of this decision, Respondent shall be prohibited from seeking judicial

review of this decision. This decision is effective upon expiration of the time for filing a request for rehearing or review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609. Respondent may apply for reinstatement of said certificate pursuant to A.A.C. R4-19-815 after a

period of five years

DATED this ____ day of _________, 2015.

ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 30th day of January, 2015, by Certified Mail No. [account number redacted] 5884 and First Class Mail to: Melinda Vasquez 2020 E. 31st Street Tucson, AZ 85713

COPIES of the foregoing mailed this 30th day of January, 2015, to:

Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General 1275 W Washington LES Section Phoenix AZ 85007

By: Trina Smith