ALJDEC decisions subject to certification as final

14A-121118-NUR · State Board of Nursing · 2014-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2014, at 8:00 a.m. APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General; Melinda Vasquez (“Respondent”) appeared personally on her own behalf. 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 the Nurse Practice Act. Respondent holds Board-issued certified nursing assistant (“CNA”) certificate number CNA764361803 in the State of Arizona. 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. Kindred did not hire Respondent but reported the positive drug test result to the Board. The Board opened an investigation. 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. 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. 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. 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 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 for Benzoylecgonine, a metabolite of cocaine. The positive result was confirmed through a GC/MS and/or LC-MS/MS test.[3] 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] On or about April 15, 2014, Mr. Pilder requested that Respondent take a random drug test. Respondent agreed and provided a sample. 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] 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. 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. 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. 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 This matter lies within the Board’s jurisdiction.[7] 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] 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. 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] 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] Therefore, the Board established cause to discipline Respondent’s CNA certificate under A.R.S. §§ 32-1663(D)[14] and 32-1664(N).[15] 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 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. RECOMMENDED ORDER In light of the Board’s evidence of Respondent Melinda Vasquez’s repeated acts of unprofessional conduct, it is recommended that the Board revoke Respondent’s Certified Nursing Assistant Certificate No. CNA764361803. 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, December 30, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See A.R.S. § 13-3401. [2] See A.R.S. § 13-3408(A). [3] See the Board’s Exhibit 1 at 6. [4] See the Board’s Exhibit 3 at 15. [5] See the Board’s Exhibit 2 at 9. [6] See id. at 11. [7] 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.” [8] 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). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999). [11] 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.” [12] 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.” [13] 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 . . . .

[14] 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.” [15] 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.”

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