FINACT15A-1502005-NUR.pdf

15A-1502005-NUR · State Board of Nursing · 2015-11-25

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: November 20, 2015

RE: Kelly Payne Docket No. 15A-1502005-NUR ______________________________________________________________________________

On November 20, 2105, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board revoked practical nurse license number LP035029 issued to Kelly Jean Payne.

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 PRACTICAL NURSE LICENSE NO. LP035029 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER NO. 15A-1502005-NUR KELLY JEAN PAYNE, RESPONDENT.

A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1400

West Washington Suite 101, Phoenix Arizona, on September 8, 2015. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Kelly Jean Payne (“Respondent”) appeared in person on her own behalf.

On September 28, 2015, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On November 20, 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 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. Kelly Jean Payne (Respondent) holds Board-issued Practical Nurse License No. LP035029 in the State of Arizona.

3. On July 8, 2015, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent's practical nurse license under A.R.S. § 32-1601 (22)(d), (i), and (j) and A.AC. R4-19-403.

4. 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 August 21, 2015. 5. The Board submitted six exhibits and presented the testimony of Jacquelyn St. Germaine, Ph.D., and Tamara Greabell, Nurse Practice Consultant with the Board. Respondent testified

on her own behalf.

HEARING EVIDENCE 6. In 1999, the Board issued a Letter of Concern to Respondent for driving under the influence in 1993. 7. In 2006, Respondent's practical nurse license number LP035029 was revoked based

upon violations of the Nurse Practice Act, including testing positive for methamphetamines on a for-

cause urine drug test after she had been reported for sleeping while on duty. 8. On November 9, 2012, Respondent entered into a Reissuance Consent Agreement and Order No. 1201054 for the reissuance of her practical nurse license (the 2012 Consent Agreement).

9. As part of the 2012 Consent Agreement, Respondent was required, among other things

to "completely abstain from the use of alcohol" and to enroll in a program that met the Board's criteria for random drug testing. Exhibit 2 at page 13-14. 10. On Tuesday, August 19, 2014, Respondent tested positive for the alcohol biomarkers of

Ethyl Gluconoride (EtG) and Ethyl Sulfate (EtS). The EtG level was 12398 ng/ml, a high positive, and

the EtS level was 1281 ng/ml.

11. On August 28, 2014, the positive alcohol test result was confirmed by a medical review officer. 12. On November 3, 2014, Respondent completed a substance abuse evaluation with Dr. St.

Germaine, who recommended that Respondent participate in an intensive outpatient treatment for

alcohol use and obtain dual diagnosis treatment related to a mental health condition, namely post- traumatic stress disorder (PTSD). 13. Dr. St. Germaine testified that during the evaluation, Respondent's affect was not

consistent with the situation. Respondent was laughing and giggling excessively when describing the

abuse and neglect she experienced growing up and the domestic violence of her marriage. Dr. St. Germaine testified that Respondent had credited the positive urine screen on a Tuesday to food she had eaten over the prior weekend that may have been prepared with alcohol. Dr. St. Germaine assessed Respondent's judgement and insight was fair to poor. Dr. St. Germaine testified that Respondent's

personal stressors may have been in play as Respondent relayed she was starting her first LPN job in

almost a decade on August 14, 2014, and then she had a positive test on August 19, 2014. Dr. St. Germaine concluded that untreated PTSD may be the underlying source of Respondent's problems. 14. Ms. Greabell testified that on August 28, 2014, Respondent had suggested to the medical

review officer that the positive urine screen was the result of hand sanitizer. On that same day,

Respondent suggested to Ms. Greabell that the positive drug screen was the result of cough medicine she had taken. Ms. Greabell testified that the levels of metabolite indicated in the urine screen results were not consistent with the types of incidental exposure, especially days after the possible exposure,

suggested by Respondent. Further, Ms. Greabell stated that the use of cough medicine containing

alcohol would also be in violation of the 2012 Consent Agreement.

15. Respondent testified that she had not been drinking and that she had not missed a urine screen in 34 months because she had nothing to hide. Respondent asserted that she would never go to that lab again because it was filthy and they refused to take a sample at 3:00 p.m. one time. Respondent

stated that she did not have time to engage in any drinking in the days leading up to the urine screen

because she was moving to Yuma, Arizona and actually started work on the day of the positive screen. Respondent offered no other explanation as to why the screen was positive than those previously offered.

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.RS. § 41-1092.04; A.RS. § 41-1061 (A). 2. This matter lies within the Board's jurisdiction under A.RS. § 32-1606(B)(10). 3. The Board bears the burden of proof and must establish cause to penalize Respondent's

practical nurse's license by a preponderance of the evidence. See A.RS.§ 41-1092.07(G)(2); A.AC. 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§ (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 failed to comply with the 2012 Consent Agreement in that she had a urine screen that was positive for alcohol

metabolites.

6. Respondent's failure to comply with the 2012 Consent Agreement constituted unprofessional conduct as defined by A.R.S. § 32-1601 (22)(d), (i), and (j) 1 and A.AC. R4-19- 403(17). 2

7. Respondent's failure to admit any wrongdoing or offer any plausible explanation for the

positive drug screen demonstrates that she is not able to be regulated at this time. 8. In light of the risk of potential harm to patients 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) 3 and A.R.S. § 32-1664(N). 4

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 practical nurse license number LP035029 issued to Kelly Jean Payne.

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 Hearing Department,

A.R.S. § 32-1601(22)(d), (i), and G) defines "unprofessional conduct" to include, respectively, "[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public," "[flailing to comply with a stipulated agreement, consent agreement or board order," and "[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter." A.AC. R4-19-403(17) defines "any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes: "[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." A.R.S. § 32-1663(0) 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. 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.

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 the Hearing Department 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 the said license pursuant to A.A.C. R4-19-404 after a period of five years. DATED this 20th day of November, 2015. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 20th day of November, 2015, by Certified Mail No. [account number redacted] 4527 and First Class Mail to: Kelly Jean Payne 3929 Newport Ave Fort Wayne, IN 46805

COPIES of the foregoing mailed this 20th day of November, 2015, to:

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

Elizabeth Campbell Assistant Attorney General 1275 W Washington CIV/LES Section

Phoenix AZ 85007

By: T. Smith