ALJDEC decisions subject to certification as final

15A-1412038-NUR · State Board of Nursing · 2015-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20, 2015, at 1:00 p.m. The record was held open to allow sufficient time for the preparation and filing of the transcript of the hearing. APPEARANCES: The Arizona State Board of Nursing (hereinafter “Board”) was represented by Assistant Attorney General Elizabeth A. Campbell. Adrian Wayne Lilly (hereinafter “Respondent” or “Mr. Lilly”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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 to 32-1667. 2. Mr. Lilly holds Board-issued Registered Nurse License No. RN15489s in the State of Arizona. 3. On or about June 17, 2013, The Chief Nursing Officer at Oro Valley Hospital (“OVH”) in Oro Valley, Arizona, submitted a complaint to the Board alleging that Respondent, then a staff nurse at OVH, had removed medications, including Dilaudid, for patients without recording the medications as administered, wasted, or returned.[1] 4. On or about July 17, 2013, in a telephonic interview, Respondent admitted to Board staff that he had become physically and emotionally dependent on opiates about a year before the Complaint was filed.[2] 5. During his CANDO Eligibility and History Interview Respondent admitted that he had diverted Dilaudid from OVH on two occasions in May 2013 for his own use intravenously.[3] 6. On or about October 17, 2013, Respondent signed a Stipulated Agreement for three years’ participation in the Board’s CANDO Program. The Stipulated Agreement required, among other things, Respondent to abstain from using alcohol and other controlled or potentially addictive substances, to cease nursing practice until authorized by the Board to return, to attend substance abuse treatment, to submit to random drug testing, to attend AA or NA and Nurse Recovery Group meetings, and to file employer notifications and reports.[4] 7. On February 6, 2015, 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) (effective 09/30/2009), specifically A.A.C. R4-9- 403(18), (26), and (31), A.R.S. § 13-3401(20) and (21), A.R.S. § 32-1601(22)(d) (effective 08/02/2012), specifically, A.C.C. R4-19-403(3), (7), (16), (17), (18), (26), and (31), and A.R.S. § 32-1601(22) (g), (h), (i), and (j), A.R.S. § 36- 2513, and A.R.S. § 13-3408.[5] 8. The Complaint and Notice of Hearing was sent via certified mail to Respondent at his address of record. 9. 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 March 20, 2015. 10. The Board submitted eight exhibits and presented the testimony of Janet Kerrigan, Christine Valle, Kayla Peterson, and Colin Robertson. 11. 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 15 minutes to allow Respondent additional travel time, he 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 his Registered Nurse license. Hearing Evidence 12. Christine Valle (hereinafter “Ms. Valle”) testified that she is a Network Specialist for PPEP Behavioral Health in Tucson, Arizona (hereinafter “PPEP”). Ms. Valle stated that she had been employed at PPEP for approximately 20 years. Ms. Valle said that she had reviewed the documents that had been submitted by Respondent regarding his supposed enrollment as a patient at PPEP.[6] 13. Ms. Valle testified that the documents were fraudulent. Ms. Valle stated that Mr. Lilly had never been a patient at PPEP. Ms. Valle said that there was no Dr. Paul Ohm, MSW, LSW, Psy.D. (hereinafter “Dr. Ohm”), employed at PPEP. Ms. Valle said that there had never been a Dr. Ohm at PPEP. Ms. Valle said: No, we have never had a therapist or psychologist by that name. As a matter of fact, we don't have Psychologists at our Tucson location. We are outpatient, strictly outpatient. There is no type of psychiatric or psychological [services at that] location.

14. Ms. Valle testified that the report was not a PPEP report. Ms. Valle stated that the report was a fabricated document. 15. Kayla Peterson (hereinafter “Ms. Peterson”) testified that she is the Director of Human Resources at La Frontera Behavioral Health Services (hereinafter “La Frontera”). Ms. Petersen stated that she was familiar with the matter at issue. Ms. Petersen said that Mr. Lilly was employed as an RN at La Frontera from November 17, 2014, through December 23, 2014. 16. Ms. Peterson testified that Mr. Lilly did not inform La Frontera that he was a participant in the CANDO program. Ms. Petersen stated that Mr. Lilly necessarily handled narcotics while he was employed at La Frontera and that he would not have been hired to work at La Frontera if he had disclosed that he was a CANDO participant. Ms. Petersen said that Mr. Lilly was dismissed from La Frontera because of attendance issues. 17. Colin Robertson, RN (hereinafter “Mr. Robertson”) testified that he is a nursing supervisor at La Frontera. Mr. Robertson stated that he was the Respondent’s nursing supervisor while Mr. Lilly was employed at La Frontera. Mr. Robertson said that he was never aware that Mr. Lilly was a participant in the CANDO program. 18. Mr. Robertson testified that Mr. Lilly was a staff nurse at on the Psychiatric Hospital Facility unit and had access to narcotics while he was employed at La Frontera. Mr. Robertson stated that he was not a sponsor for the Respondent and that he was not aware that Respondent was in recovery. Mr. Robertson said that he was unaware that Mr. Lilly had represented that Mr. Robertson was Mr. Lilly’s sponsor. Mr. Robertson reviewed documentation that had been presented by the Respondent as La Frontera documentation and stated that the documentation was fraudulent. 19. Janet Kerrigan, RN (hereinafter “Ms. Kerrigan”) testified that she is a CANDO Nurse Consultant. Ms. Kerrigan stated that she had been an RN for approximately 41 years. Ms. Kerrigan that she is the nurse responsible for administering the CANDO program for the Board.[7] 20. Ms. Kerrigan testified that on July 17, 2013, Mr. Lilly called her and admitted that he had become emotionally and physically dependent on drugs. Ms. Kerrigan stated that she interviewed him personally on July 29, 2013. Ms. Kerrigan said that Mr. Lilly admitted to having diverted drugs while he was working as a nurse at OVH. 21. Ms. Kerrigan testified that Mr. Lilly entered into the Board’s CANDO program on October 17, 2013. Ms. Kerrigan stated that Mr. Lilly was discharged from the Board’s CANDO program on December 19, 2014. Ms. Kerrigan said that Respondent was discharged from the CANDO program for multiple incidents of non-compliance with the CANDO program. 22. Ms. Kerrigan testified that Respondent failed to enter into a required Nurse Recovery Group, failed to undergo an evaluation by a Board-approved evaluator, failed to comply with drug testing requirements, failed to attend NA/AA meetings, and worked as a nurse without notifying the Board’s CANDO program or his employer that he was participating in the Board’s CANDO program, all in violation of the CANDO agreement. 23. Ms. Kerrigan testified that AA/NA signature report forms that Mr. Lilly submitted to the Board were false.[8] Ms. Kerrigan stated that the AA/NA signature report forms identify Colin Robertson as Mr. Lilly’s sponsor. Ms. Kerrigan said that Mr. Robertson denied that he was ever Respondent’s sponsor. Ms. Kerrigan stated that Mr. Lilly did not provide the Board with the name of a sponsor other than Mr. Robertson. Ms. Kerrigan said that the CANDO program required that Mr. Lilly obtain a sponsor within 60 days of entering the CANDO program. 24. Ms. Kerrigan testified that in addition to obtaining a sponsor, Respondent was required to participate in AA/NA meetings and provide the CANDO program with proof of his attendance. Ms. Kerrigan stated that the AA/NA meeting reports that Mr. Lilly submitted to the Board’s CANDO program were not submitted in a timely manner and the AA/NA meeting reports were fraudulent. 25. Ms. Kerrigan testified that the Board periodically checks wage reports for participants in the Board’s CANDO program. Ms. Kerrigan stated that she ran a wage report for the Respondent and discovered that Mr. Lilly had obtained nursing employment without reporting the nursing employment to the Board. 26. Ms. Kerrigan testified that at first, Mr. Lilly denied that he had been employed as a nurse. Ms. Kerrigan stated that she informed Mr. Lilly that she had proof that he had been working as a nurse. Ms. Kerrigan said that Mr. Lilly then admitted that he had obtained nursing employment at Kindred Hospital without notifying the Board of his employment as a nurse at Kindred Hospital. 27. Ms. Kerrigan testified that Mr. Lilly asserted that he had informed Kindred Hospital of his participation in the CANDO program. Ms. Kerrigan stated that Mr. Lilly admitted that he had failed to provide a copy of his CANDO agreement to Kindred Hospital. Ms. Kerrigan said that Mr. Lilly also admitted that he had failed to notify his nursing supervisor at Kindred Hospital that he was a participant in the CANDO program. 28. Ms. Kerrigan testified that Mr. Lilly was prevented from handling or dispensing narcotics under his CANDO agreement. Ms. Kerrigan stated that Mr. Lilly said that “he couldn’t remember he had” dispensed narcotics while he was employed at Kindred Hospital. 29. Ms. Kerrigan testified that she had spoken with the Human Resources manager at Kindred Hospital before her December 19, 2013 interview with Respondent. Ms. Kerrigan stated that the Human Resources manager at Kindred Hospital was unaware of Mr. Lilly’s participation in the CANDO program. 30. Ms. Kerrigan testified that she also spoke with Mr. Lilly’s nursing supervisor at Kindred Hospital. Ms. Kerrigan stated that Mr. Lilly did not inform his nursing supervisor of his participation in the CANDO program and did not provide his nursing supervisor with a copy of his CANDO agreement. Ms. Kerrigan said that Mr. Lilly’s supervisor informed her that it would have been expected that Mr. Lilly would handle and administer narcotics while he was employed as a nurse at Kindred Hospital. 31. Ms. Kerrigan testified that Mr. Lilly was required to submit completed Self-Report Forms to the Board as part of his CANDO agreement.[9] Ms. Kerrigan stated that in the Self-Report Form that Mr. Lilly submitted while he was employed as a nurse at Kindred Hospital, he said he was not employed “even though school feels like a job.” Ms. Kerrigan said that Mr. Lilly failed to file his Self-Report Forms in a timely manner and the Self-Report Forms were not truthful. 32. Ms. Kerrigan testified that Mr. Lilly was employed as a staff nurse at La Frontera from November 17, 2014, through December 23, 2014. Ms. Kerrigan stated that in his Self-Report From for the period from November 17, 2014, through December 23, 2014, the Respondent falsely reported that he was unemployed. 33. Ms. Kerrigan testified that Mr. Lilly was required under the CANDO program to undergo a recovery/relapse risk evaluation after his first year in the CANDO program. Ms. Kerrigan stated that Mr. Lilly failed to undergo a recovery/relapse risk evaluation. 34. Ms. Kerrigan testified that Mr. Lilly was required to undergo periodic drug testing pursuant to the terms of his CANDO agreement. Ms. Kerrigan stated that Mr. Lilly was not compliant with the drug testing requirement. Ms. Kerrigan said that Mr. Lilly missed numerous scheduled drug tests. 35. Ms. Kerrigan testified that as part of his CANDO agreement, Mr. Lilly was required to participate in a licensed and Board- approved chemical dependency program. Ms. Kerrigan stated that Mr. Lilly submitted documentation that he had entered and completed in a chemical dependency program at PPEP in Tucson, Arizona with a Dr. Ohm.[10] Ms. Kerrigan said that she checked with PPEP and found that the documentation had been falsified. 36. Ms. Kerrigan testified that PPEP had no record of client with Respondent’s name and that there was no provider named Paul Ohm at PPEP. Ms. Kerrigan stated that she was informed that the letters and logo on the document were from the PPEP website and were not the same as the letters and logo on PPEP’s documents. Ms. Kerrigan stated that she checked with the Arizona Board of Behavioral Health Examiners and the Arizona Board of Psychologist Examiners and did not find a Paul Ohm who was licensed as MSW or Psy.D. 37. Ms. Kerrigan testified that as part of his CANDO agreement, Mr. Lilly was required to participate in and complete an aftercare/continuing treatment program. Ms. Kerrigan stated that Mr. Lilly submitted documentation that he had participated in aftercare treatment as a patient at La Frontera in Tucson, Arizona. Ms. Kerrigan said that there was no record of Mr. Lilly being a patient at La Frontera and that the signature on the document did not appear to be a signature of anyone employed at La Frontera. Ms. Kerrigan opined that the documentation submitted by Mr. Lilly was false. 38. Ms. Kerrigan’s testimony is found to be credible. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at his 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 at 1120 (8th ed. 2004). 5. The Board established by a preponderance of the evidence that Respondent failed to comply with a consent agreement in violation of A.R.S. § 32-1601(22)(d)(i) (effective date 2012).

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) (effective date 2009); A.R.S. § 32-1601(22)(d) (effective date 2012); and A.A.C. R4- 19-403(7), (16), (17), (18), (26) and (31). 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) (effective date 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) (effective date 2012) and A.A.C. R4-19-403(18). 9. The Board established by a preponderance of the evidence that Respondent repeatedly made written false and inaccurate statements to the Board or the Board’s designee in the course of an investigation in violation of the charged provisions of A.R.S. § 32-1601(22)(d) (effective date 2012) and A.A.C. R4- 10-403 10. Given Respondent’s and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time. 11. 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’s Registered Nurse License No. RN154892. 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, April 9, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

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

----------------------- [1] See Exhibit 1 (6/17/13 Complaint from Oro Valley Hospital). [2] See Exhibit 8 (Investigative Report). [3] See Exhibit 8 (Investigative Report). [4] See Exhibit 2 (10/17/13 CANDO Stipulated Agreement). [5] See Notice of Hearing Electronic Record. [6] See Exhibit 6 IOP Documentation supposedly from PPEP Behavioral Health. [7] CANDO (Chemically Addicted Nurses Diversion Option). [8] See Exhibit 3 (AA/NA Attendance Reports). [9] See Exhibit 4 (Self-Report Forms). [10] See Exhibit 6 (IOP Documentation from PPEP Behavioral Health). [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.

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

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