ALJDEC decisions subject to certification as final

15A-1502005-NUR · State Board of Nursing · 2015-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2015, with the record held open until September 8, 2015. APPEARANCES: The Arizona State Board of Nursing appeared through Assistant Attorney General Elizabeth Campbell. Respondent Kelly Jean Payne appeared on her own behalf. 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. Kelly Jean Payne (Respondent) holds Board-issued Practical Nurse License No. LP035029in 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.A.C. 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 In 2006, Respondent’s practical nurse license number LP035029 was revoked based upon violations of the Nurse Practice Act, including testing positive for methamphetamines on a for- cause urine drug test after she had been reported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.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 practical 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 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.A.C. 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] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke License No. LP035029 previously issued to Respondent Kelly Jean Payne. 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, September 28, 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(22)(d), (i), and (j) 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,” “[f]ailing 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.” [2] A.A.C. 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.” [3] 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. [4] 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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