ALJDEC decisions subject to certification as final

15A-1402115-NUR · State Board of Nursing · 2015-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2014, with the record held open until January 12, 2015. APPEARANCES: Respondent Nicole Antionette Bishop 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. Nicole Antionette Bishop (Respondent) holds Board-issued Registered Nurse License No. RN143834 in the State of Arizona. 3. On October 28, 2014, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32- 1601(18)(d) (2009); A.R.S. § 32-1601(22)(b), (d), (g), (h), (j), and (l) (2012);[1] A.R.S. § 32-1606(B)(17);[2] A.R.S. § 32-3208(A) and (D);[3] A.C.C. R4-19-403(2), (17), (18), (28), and (29);[4] and A.A.C. R4-19-308(B).[5] 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 December 22, 2014. 6. The Board submitted nine exhibits and presented the testimony of Detective Michael Thomas and Kirk Olson. 7. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued prior to the hearing convening. 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 prior to the hearing convening. Consequently, Respondent did not present any evidence to defend her Registered Nurse license. Hearing Evidence 8. On or about October 31, 2009, Respondent struck her husband in the face during an alcohol-related incident. According to Phoenix, Arizona Police Department report number 2009 91730446, Respondent was cited for domestic violence assault that same day. 9. Respondent did not report this charge to the Board within 10 days. 10. On or about November 20, 2009, Respondent pled guilty to the charge of assault, a class 1 misdemeanor and entered into a Domestic Violence Diversion Program Plea Agreement in Phoenix Municipal Court in Phoenix, Arizona in case number 4088033. The terms of the agreement included a suspension of the entry of judgment pending completion of counseling, and upon successful completion, the charges would be dismissed. On or about August 23, 2010, the charges were dismissed. 11. On or about June 13, 2010, Respondent was transported to Maricopa Medical Center after being involved in a collision according to Scottsdale, Arizona Police Department report number 10-14706. 12. At the hospital, a police officer observed signs of impairment while interviewing Respondent. Respondent admitted to police that she had consumed alcohol. Respondent admitted to police that she took Zoloft (Sertraline) and Motrin. Police found beer in a water container in Respondent’s car. 13. On or about June 13, 2010, Respondent was cited with two counts of driving under the influence, open container in a motor vehicle, failure to control speed to avoid a collision, and failure to provide proof of insurance. 14. On or about July 2, 2010, in case number TR-[number redacted], prosecutors filed a Criminal Complaint adding a misdemeanor charge of reckless driving. 15. Respondent did not report these charges within ten days. 16. On or about September 7, 2010, Respondent was convicted, pursuant to a guilty plea, of reckless driving, a misdemeanor, in case number TR20100018704 in Scottsdale City Court in Scottsdale, Arizona. 17. On or about January 22, 2012, a Highway Patrol Officer observed Respondent traveling 100 miles per hour on Highway 101 in a zone marked 65 miles per hour in Maricopa County, Arizona. During law enforcement’s pursuit of the vehicle, Respondent reached speeds of 130 miles per hour. Respondent struck a wall while attempting to negotiate a curve on the ramp from Eastbound Highway 101 to Southbound Highway 51. Officers noticed signs of impairment, including erratic driving, fumbling for documents, difficulty exiting her vehicle, dilated eyes despite bright “take down” lights, pupillary unrest, slurred speech, and labored sentence formation. 18. Respondent performed poorly on the field sobriety tests that were administered. 19. Respondent initially denied having taken any medications, but eventually admitted to taking Soma (Carisoprodol)[6], Tramadol, Vicodin (Hydrocodone/APAP),[7] and Motrin for a neck injury. Respondent was found to be in possession of Ondansetron Hydrochloride (Zofran) and Carisoprodol. At the scene, a blood sample was drawn from Respondent. The blood tested positive for the presence of Meprobamate, Carisoprodol, Lorazepam,[8] Nordiazepam,[9] and Diazepam.[10] 20. On or about September 14, 2012, a Direct Complaint was filed in Maricopa County Superior Case No. CR2012-104915 charging Respondent with two counts of Aggravated DUI, both class 4 felonies; and two counts of possession of dangerous drugs (Oxandrolone and Carisoprodol), both class 4 felonies. 21. Respondent did not report these charges within ten days. 22. On or about February 12, 2014, Respondent was convicted, pursuant to her guilty plea, of aggravated DUI, a class 4 felony; and the amended charge of possession of drug paraphernalia, a class 6 undesignated felony. 23. Respondent did not report her felony convictions to the Board within ten days. 24. On or about October 27, 2012, Respondent authorized a Pep Boys in Phoenix, Arizona to perform repairs to her vehicle. On or about November 17, 2012, Respondent picked up her vehicle without paying for the repairs according to Phoenix Police Department report number 2012 02075408. 25. On or about July 12, 2013, a Direct Complaint was filed charging Respondent with theft, a class 5 felony, in Maricopa County, Arizona Superior Court Case No. CR2013-432258 for her conduct on or about November 17, 2012. 26. Respondent did not report this charge to the Board within ten days. 27. On or about February 12, 2014, Respondent was convicted, pursuant to her guilty plea, of theft, a class 5 felony. 28. Respondent did not report her felony conviction to the Board within ten days. 29. On or about April 3, 2014, Board Staff mailed Respondent an Investigative Questionnaire regarding the felony charges in Maricopa County Superior Court and an Arrest/Citation/Charge Questionnaire with instructions to complete the questionnaires and return them with a written explanation and specific court and police records regarding each of her arrests, citations or charges, by May 3, 2014. 30. On or about April 14, 2014, the mailing was returned by the Postal Service as undeliverable, with no forwarding address. 31. On May 9, 2014, the Board received a handwritten statement from Respondent regarding the 2012 DUI incident and the 2012 theft incident. 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 registered 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. 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(22)(b) (2012). The Board shall revoke the license of a person who has one or more felony convictions pursuant to A.R.S. § 32-1606(B)(17). 6. The Board established by a preponderance of the evidence that 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); and A.A.C. R4-19-403(17), (18), (28) and (29). 7. The Board established by a preponderance of the evidence that Respondent willfully or repeatedly violated a provision of the Board’s statutes or rules, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(22)(g) and (j) (2012). 8. 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(22)(h) (2012) and A.A.C. R4-19- 403(18). 9. The Board established by a preponderance of the evidence that Respondent failed to self-report a conviction for a felony of undesignated offense within ten days after the conviction, which constituted unprofessional conduct as defined by A.R.S. § 32-1601(22)(l) and A.A.C. R4-19-403(29). 10. The Board established by a preponderance of the evidence that Respondent failed to notify the Board of any change in mailing address within 30 days in violation of A.A.C. R4-19- 308(B). 11. Given Respondent’s criminal history, failure to properly report any of her criminal charges and/or convictions to the Board, failure to update her address with the Board, and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time. 12. 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)[11] and A.R.S. § 32-1664(N).[12] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Respondent Nicole Antionette Bishop’s Registered Nurse License No. RN143834. 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, February 2, 2015.

/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)(d) (2009); A.R.S. § 32-1601(22)(b), (d), (g), (h), (j), and (1) (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. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. . . . . (l) Failing to self-report a conviction for a felony or undesignated offense within ten days after the conviction.

[2] A.R.S. § 32-1606(B)(17) provides that the Board shall

[r]evoke a license of a person . . . who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application pursuant to this chapter.

[3] A.R.S. § 32-3208(A) and (D) provide, respectively, that

A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. . . . . D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of not more than one thousand dollars in addition to other disciplinary action it takes.

[4] This rule further defines “unprofessional conduct” to include:

2. Intentionally or negligently causing physical or emotional injury; . . . . 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; . . . . 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense; 29. Failing to notify the Board, in writing, of a conviction for a felony or an undesignated offense within 10 days of the conviction. The nurse or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the conviction; and c. Nature of the offense;

[5] A.A.C. R4-19-308 provides that a licensee “shall notify the Board in writing or electronically through the Board website of any change in mailing address within 30 days.” [6] Carisoprodol is a Schedule IV Controlled Substance. A.R.S. § 36-2515. [7] Hydrocodone/APAP is a Schedule III Controlled Substance. A.R.S. § 36- 2514. [8] Lorazepam is a Schedule IV Controlled Substance. A.R.S. § 36-2515. [9] Nordiazepam is a Schedule IV Controlled Substance. A.R.S. § 36-2515. [10] Diazepam is a Schedule IV Controlled Substance. A.R.S. § 36-2515. [11] 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. [12] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826