FINACT16A-1209067-NUR.pdf

16A-1209067-NUR · State Board of Nursing · 2018-09-14

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 Phone (602) 771-7800 Fax (602) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: September 13, 2018

RE: Kimber J. Brewer Docket No. 16A-1209067-NUR ______________________________________________________________________________

On September 13, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board place Registered Nurse License Number RN000099095 , issued to Kimber J. Brewer on probation and that Respondent be required to participate in inpatient alcohol rehabilitation treatment, an approved after care program, and monitoring.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN000099095 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER KIMBER J. BREWER, NO. 16A-1209067-NUR RESPONDENT. A hearing was held before Jenna Clark, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on July 24, 2018. Sunita A. Krishna, Assistant Attorney

General, appeared on behalf of the State. Kimber J. Brewer (“Respondent”) appeared in person on his

own behalf. Hearing record held open until August 10, 2018, to receive official hearing transcript from Ottomar & Associates, Inc. 1 On August 10, 2018, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On September 13, 2018, 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. Administrative notice is taken that Respondent was first issued Registered Nurse License No. RN000099095 on August 12, 1997. 2 Respondent’s license is due for renewal on April 04, 2022, and is in good standing. 3

1 Both parties agreed at the onset of the hearing that Ms. Kuhnhenn’s Court Report Transcript would serve

as the official record for 16A-1209067-NUR. 2 See https://www.azbn.gov/services/verification-details/102069. Respondent’s license was issued prior to the

statutory change in ARIZ. REV. STAT. § 32-1646, effective July 01, 2016, and is therefore equivalent to the

2. On June 12, 2018, the Board issued a COMPLAINT AND NOTICE OF HEARING setting the above-captioned matter for hearing at 9:00 a.m. on July 24, 2018. The NOTICE OF HEARING identified the issue as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Kimber Brewer, holder of Registered Nurse License No RN000099095, to perform as a nurse in the State of Arizona.” 4

3. The Board set forth four specific factual allegations in the COMPLAINT, and based on

those allegations the Board charged Respondent with having committed unprofessional conduct as defined by ARIZ. REV. STAT. §§ 32-1601(26)(d), as more specifically defined by ARIZ. ADMIN. CODE R4-19-403(17) and R4-19-403(28); 32-1601(26)(j); 32-3208(A); and 32-3208(D). 5 Violations

of the forgoing constitute grounds for discipline under ARIZ. REV. STAT. §§ 32-1663 and 32-1664.

4. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the allegations in the Board’s COMPLAINT. HEARING EVIDENCE

5. The Board presented the testimony of Jennifer Ingram and submitted Exhibits 1-9.

Respondent testified on his own behalf and submitted Exhibits A-O. The hearing file was also admitted into the evidentiary record. Allegation #1 - Respondent’s Timeliness of Self-Reporting 6. On or about September 22, 2012, Respondent self-reported to the Board that he was

charged by police with Driving Under the Influence (“DUI”) on April 22, 2012. Respondent denied

current Licensed Nursing Assistant for purposes of determining whether he engaged in unprofessional conduct under ARIZ. REV. STAT. § 32-1601(26) and ARIZ. ADMIN. CODE R4-19-814. See https://www.azbn.gov/services/verification-details/102069. See Hearing File, page 1. ARIZ. REV. STAT. § 32-1601(26) was effective August 09, 2017. For conduct occurring before August 9, 2017, ARIZ. REV. STAT. § 32-1601(24) (with language identical to the 2017 statute) applies. For conduct occurring before July 01, 2016, ARIZ. REV. STAT. § 32-1601(22) (with language identical to the 2017 statute) applies. This decision will reference only the 2016 version of the statute for simplicity.

having a substance abuse problem and declined participation in the Board’s Chemically Addicted Nurses Diversion Option (“CANDO”) program. 6 7. The Board initiated an investigation as a result of Respondent’s self-report, including

subpoenaing Respondent’s court and medical records. 7

Allegation #2 - Respondent’s Arrest, Guilty Plea Agreement & Criminal Conviction 8. On or about April 22, 2012, Respondent was stopped for unsafe driving by an officer of the Tucson Police Department. 8 Respondent exhibited signs of impairment due to alcohol. Upon

inquiry, Respondent consented to a blood draw. 9 Respondent had a blood alcohol content (“BAC”) of

0.283. 10 Respondent received a citation for DUI and moving violation. 11 9. As a result of his citation, Respondent was issued four additional charges. On May 03, 2013, Respondent was formally charged for violations of ARIZ. REV. STAT. §§ 28-1281(A)(1) and 28-856(1). Respondent did not notify the Board within ten days of being charged, as required by ARIZ.

REV. STAT. § 32-3208(A) and ARIZ. ADMIN. CODE R4-19-403(28). 12

10. On July 26, 2012, a CRIMINAL COMPLAINT was issued that charged Respondent with two Class 1 Misdemeanors: Count B – Blood Alcohol Concentration of .15 Percent or More (Extreme DUI), and Count C – Blood Alcohol Concentration of .20 Percent or More (Super Extreme

See Board Exhibit 1. CANDO is the Board’s non-disciplinary, confidential monitoring program for substance dependent nurses. The purpose of CANDO is to protect the health, safety, and welfare of the public through the early detection, treatment, and monitoring of substance dependent nurses. It is an alternative to formal disciplinary action. Applicants must meet the eligibility/admission criteria in order to participate. See https://www.azbn.gov/documents/cando/CANDO-FREQUENTLY-ASKED-QUESREVISED% 203-2011.pdf. Confidential Board Exhibit 5 contains the Board’s investigation report. See Board Exhibits 2-3. See Board Exhibit 2. Id. Id. Respondent was charged with violating ARIZ. REV. STAT. §§ 28-1281(A)(1) and 28-856(1). See Board Exhibit 4.

DUI). 13 Respondent did not notify the Board within ten days of being charged, as required by ARIZ. REV. STAT. § 32-3208(A) and ARIZ. ADMIN. CODE R4-19-403(28). 14 11. On October, 24, 2012, a CRIMINAL COMPLAINT was issued that charged Respondent

with a Class 1 Misdemeanor: Count A – Blood Alcohol Concentration of .08 Percent or More. 15

Respondent did not notify the Board within ten days of being charged, as required by ARIZ. REV. STAT. § 32-3208(A) and ARIZ. ADMIN. CODE R4-19-403(28). 16 12. All CRIMINAL COMPLAINT charges were consolidated by Tucson City Court

because the charges arose from the same incident. 17

13. On July 12, 2013, Respondent was convicted, pursuant to a duly entered plea agreement, of Misdemeanor DUI. Respondent was fined $1,530.00, assessed $254.00 in jail fees, $214.00 in DUI recovery charges, $20.00 installment fee for a required ignition interlock device, sentenced to one hundred and eighty days of jail and twenty-four months of unsupervised probation. 18

Allegation #3 - Respondent’s Medical Records

14. The Board received Respondent’s 2012 and 2013 medical records from University Medical Center and Tucson Medical Center. Respondent’s medical history, in pertinent part, reflects years of alcohol abuse and significant, and at some periods life-threatening, physical conditions and

complications as a direct result of long-term alcohol use. 19 For example:

• In February of 2012 Respondent was diagnosed with alcoholic cirrhosis of the liver. Respondent reported over thirty years of alcohol consumption.

See Board Exhibit 3. See ARIZ. REV. STAT. §§ 28-1382(A)(1) and 28-1382(A)(2). See Board Exhibit 4. See Board Exhibit 3. See ARIZ. REV. STAT. § 28-1381(A)(2). See Board Exhibit 4. See Board Exhibit 3. See Board Exhibit 3. One hundred seventy-nine days of Respondent’s jail sentence were suspended, and he was given credit for the single day he spent in custody. Confidential Board Exhibit 8 contains Respondent’s relevant medical records. No further citations to this exhibit will be offered.

• On November 19, 2012, Respondent was diagnosed with acute renal failure, acute liver disease, acute kidney injury, liver disease due to alcohol, and other unspecified alcohol dependence. • On January 30, 2013, Respondent was noted as having a history of ethyl alcohol abuse, reporting to his attending physician that he vomited five times the prior day after drinking. Respondent was referred to an alcohol rehabilitation program.

• Respondent was hospitalized from February 01, 2012, through February 09, 2012, due to complications related to alcohol cirrhosis of the liver. • On or about February 01 2013, Respondent was transferred between hospitals for a liver transplant evaluation. Respondent was noted as having end-stage liver disease. Respondent was questioned as to whether he had stopped drinking alcohol in September of 2012 as alleged, because he self-reported that he was currently drinking three to four shots of alcohol four to five days per week. Respondent denied that his alcohol intake was a disruption in his life, despite a recent DUI arrest. • On or about February 02, 2013, Respondent’s Hepatitis panel was returned negative. Respondent results also reported negative for staph infection. During a consultation to review his test results, Respondent admitted that he began binge-drinking at nineteen years old, continued for about eleven years, stopped for about nine years, and then started again sometime between 2001 and 2003.

• In September of 2013 Respondent was placed on an active list to receive a liver transplant.

• On December 02, 2013, Respondent was noted as being sober for the past six months. His liver transplant status remained pending because Respondent had not completed a rehabilitation from alcohol program. Alcohol was listed as the likely cause of Respondent’s cirrhosis.

• On March 03, 2014, Respondent reported to physicians that he remained sober from alcohol for the past eighteen months, as he was participating in recovery programs and support meetings. However, Respondent still suffered from alcohol cirrhosis of the liver.

Allegation #4 - Respondent’s Substance Abuse Evaluation

15. Respondent agreed to be evaluated on April 01, 2015, by Jacquelyn St. Germaine, Ph.D., a Board approved evaluator, regarding his alleged alcohol abuse. 20 Based on her in-person interview with Respondent and review of Respondent’s medical records, Dr. St. Germaine gave her expert

opinion to the Board that Respondent should complete an intensive outpatient rehabilitation program

for alcohol abuse, participate in aftercare program, attend Nurse Recovery Group meetings, and abstain from using alcohol. Dr. St. Germaine also opined that Respondent could continue to work as a Registered Nurse if he adhered to the aforementioned recommendations, but not before completing

patient care classes if he was going to be directly involved with patients.

Witness Testimony Jennifer Ingram’s testimony 16. In addressing the Board’s concerns, as they relate to the allegations at issue against Respondent, Ms. Ingram testified that Respondent was arrested for DUI in 1997 with a BAC of 0.11,

which was not in the Board’s records.

17. Ms. Ingram also testified that the Board was concerned by Respondent’s lack of accurate historical reporting and by Respondent’s denial of alcohol abuse. Ms. Ingram testified that Respondent gave conflicting accounts of his DUI arrest, which exemplified the Board’s position that Respondent

was unable to correctly perceive and recall events.

18. Ms. Ingram attested that the mission of the Board is to protect and promote the welfare of the public by ensuring that each person holding a nursing license or certificate is competent to practice safely. Per Ms. Ingram, nurses must possess honesty and integrity to practice nursing in

Arizona, because patient health and safety are paramount to a nurse’s own interests.

Confidential Board Exhibits 5 and 6 contain Dr. St. Germaine’s psychological and substance use evaluation. No further citations to this exhibit will be offered.

19. Here, Ms. Ingram opined, Respondent’s failure to report his 2012 DUI timely impeded the Board’s ability to investigate and ensure patient safety. Further, because Respondent did not participate in the outpatient treatment program that Dr. St. Germaine recommended, or the related

aftercare program, the Board had concerns regarding Respondent’s alcohol abuse – particularly as it

related to potential theft of medication that could result in injury to patients. Respondent’s testimony 20. Respondent testified that although he knew he was supposed to report his DUI to the

Board within ten days, he was instructed by his attorney not to.

21. Regarding the BAC underscoring the DUI conviction, Respondent testified that he had two drinks on September 22, 2012, and that he did not challenge the blood draw result although he was represented by an attorney at the time. 22. Respondent testified that, per the terms of his plea agreement, he attended ten DUI

classes, a MADD class, completed eighteen hours of a court-ordered recovery program, and completed

a year of random drug screens and interlock system use on his vehicle sans incident. 21 23. Respondent testified that he did not believe the Board should require him to complete additional treatment, or face further discipline, because he completed all of his court-ordered

requirements and had his sentence set aside on April 09, 2015. 22

24. When asked, Respondent could not clarify or explain why he gave three different accounts regarding the DUI he received on April 22, 2012. 23 25. Respondent also testified that he believed that the information contained in his medical

records was incorrect.

Mothers Against Drunk Driving (“MADD”) is a nonprofit organization that advocates on behalf of victims of drunk driving accidents. The classes in question are called Victim Impact Panels. See https://www.maddvip.org. See Respondent Exhibit F. See Board Exhibit 9.

26. Respondent testified that he believed he did not have to submit to further disciplinary action as he had already been permitted to renew his license, which he did on March 04, 2018. 24 CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under ARIZ. REV. STAT. §§ 32-

1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in the State of Arizona. Pursuant to ARIZ. REV. STAT. §§ 32-1601 to 1669 and R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act.

2. The Board bears the burden of proof to establish cause to discipline Respondent’s

practical nursing license. 25 Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. 26 3. The Board’s burden is a preponderance of the evidence. ARIZ. ADMIN. CODE R2-19- 119.

4. A preponderance of the evidence is:

The 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. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. ARIZ. REV. STAT. § 32-1601(26) defines unprofessional conduct in the nursing

profession, in pertinent part, as follows:

"Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: *** See Respondent Exhibit K. ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. REV. CODE R2-19-119(B)(2).

(d) As any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. *** (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

6. ARIZ. ADMIN. CODE R4-19-403 defines unprofessional conduct in the nursing

profession, in pertinent part, as follows: For purposes of A.R.S. § 32-1601(24)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following: *** (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. *** (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; 7. ARIZ. REV. STAT. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows:

*** (D) If 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. *** (F) If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to subsection D or E of this section, the board may serve on the licensee or certificate holder a written notice that states: (1) That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter. (2) The nature of the allegations asserted and that cites the specific statutes or rules violated.

8. ARIZ. REV. STAT. § 32-1664(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating that, “If 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.”

9. Here, the Board has sustained its burden of proof. 10. The Board established by a preponderance of the evidence that Respondent did not timely self-report his DUI from April 22, 2012, within ten days as required by ARIZ. REV. STAT. § 32-

3208(A) and ARIZ. ADMIN. CODE R4-19-403(28). Respondent admitted as much during his

testimony. 11. The Board established by a preponderance of the evidence that Respondent received a CRIMINAL COMPLAINT for DUI charges on May 03, 2012, and July 26, 2012, which were all consolidated on October 24, 2012, with another DUI charge. Further, the Board established by a

preponderance of the evidence that Respondent did not notify the Board within ten days of being

charged, as required by ARIZ. REV. STAT. § 32-3208(A) and ARIZ. ADMIN. CODE R4-19-403(28). The Board also established by a preponderance of the evidence that Respondent was convicted, via a guilty plea agreement, on July 12, 2013, for Misdemeanor DUI.

12. The Board established by a preponderance of the evidence that Respondent’s medical

records reflected decades of alcohol abuse by Respondent, as well as the resulting damage Respondent’s alcohol abuse caused his body. Respondent’s denials of alcohol abuse were not credible in light of the evidence to the contrary, nor were his assertions that his illnesses were not alcohol

related. Moreover, Respondent’s accusation that his medical records were incorrect was also not

credible.

13. The Board established by a preponderance of the evidence that Respondent was evaluated independently, but did not adhere to any of the recommendations the evaluator made regarding Respondent’s participation in alcohol abuse treatment programs or patient care courses.

14. Thus, the Board established that Respondent committed unprofessional conduct pursuant

to ARIZ. REV. STAT. §§ 32-1601(26)(d), 32-1601(26)(j), 32-3208(A), 32-3208(D), and ARIZ. ADMIN. CODE R4-19-403(17) and ARIZ. ADMIN. CODE R4-19-403(28). 15. The Board has a legitimate interest in protecting the public. Respondent’s BAC is

indicative of long-term alcohol abuse and a high tolerance for alcohol consumption. Without proper

treatment, Respondent is a threat to patient safety and could be a liability to an Arizona employer. The Tribunal applauds and acknowledges Respondent’s sobriety to date, however, there remains a potential for Respondent to relapse without proper treatment. 16. Additionally, because Respondent was impeached regarding his ability to perceive and recall

the specific events of April 22, 2012, and because Respondent provided no proof that he has since

complied with Dr. St. Germaine’s treatment recommendations, it cannot be argued that Respondent is safe to practice nursing in the State of Arizona. The fact that Respondent is currently employed in the State of California is irrelevant, as Respondent is free to move and seek employment elsewhere at any

time.

17. 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 has established cause to impose discipline against Respondent’s license under ARIZ. REV. STAT. §§ 32- ARIZ. REV. STAT. §§ 32-1663(D-F) and 32-

1664(O).

ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order:

A. The Registered Nurse License No. RN000099095 issued to KIMBER J. BREWER, is placed on PROBATION for at minimum 36 months with terms and conditions. B. Prior to termination of probation, Respondent shall work as a registered nurse for a

minimum of 18 months (not less than sixteen hours a week).

C. While this Board Order is in effect and/or Respondent’s license is subject to discipline, up to and including revocation or voluntary surrender, Respondent is not eligible to renew any other expired license or certificate previously held by Respondent without prior review and approval by the

Board.

D. At any time Respondent is required by terms of the Board Order to provide a copy of the Board Order to another individual or facility Respondent shall provide all pages of the Board Order. E. If Respondent is convicted of a felony, Respondent’s license shall be automatically revoked and Respondent may not apply for reissuance for a minimum period of five years. Respondent

waives any and all rights to a hearing, rehearing or judicial review of any revocation imposed pursuant

to this paragraph. F. If Respondent is noncompliant with any of the terms of the Board Order, Respondent’s

noncompliance shall be reviewed by the Board for consideration of possible further discipline on

Respondent's nursing license. G. Probation is subject to the following terms and conditions: TERMS OF PROBATION

1. License(s) and Certificate(s) on Probation

While this Order is in effect, if the Board issues any licenses or certificates authorized by statute except a nursing assistant certificate, such certificate or license shall be marked “Probation.” Respondent is not eligible for a multistate “Compact” license.

While this Order is in effect, any license or certificate that Respondent presents to any employer or other member of the public shall be clearly marked “Probation.” 2. Rehabilitation Program

Within 7 days of the effective date of this Order, Respondent shall enter a substance use

disorder rehabilitation program. Upon entry, Respondent shall execute the appropriate release of information form allowing the rehabilitation program to inform the Board of Respondent’s entry. Respondent shall also cause the rehabilitation program to notify the Board as to Respondent’s

participation and progress in, and discharge or termination from the program. At the completion of the

rehabilitation program, Respondent shall cause the program director to provide the Board with documentation concerning Respondent’s completion of the rehabilitation program and recommendations for follow-up treatment. 3. Aftercare Program

Within 7 days of the completion of the rehabilitation program, Respondent shall enter

and must successfully complete a state licensed substance use disorder aftercare program. Upon entry, Respondent shall execute the appropriate release of information form allowing the aftercare program to inform the Board of Respondent’s entry into the program. Respondent shall also cause the aftercare

program to submit to the Board, in writing and on the Board-approved form, evidence of Respondent’s

satisfactory participation and progress in the program, as well as discharge or termination from the program. Such reports are due beginning on the first quarterly reporting date after entry into the program and quarterly thereafter for the remainder of the probationary period or until completion of the

aftercare program.

..... .....

4. Nurse Recovery Group Within 7 days of the completion of a Rehabilitation Program, Respondent shall enroll in a Board-acceptable Nurse Recovery Group if a group is available within forty miles of Respondent’s

residence or place of employment. Respondent shall attend the Nurse Recovery Group once per week

and have no “Unexcused” absences or “No call/No show” occurrences. Respondent shall provide, in advance of travel or unavailability, at least 3 calendar days’ written notice to the Nurse Recovery Group facilitator and to the Board’s designee of any out-of-town travel or other unavailability to attend the

weekly meeting. All requests to be temporarily excused from attendance in the Nurse Recovery Group

must be approved in advance by the Board or its designee. Respondent shall cause the Nurse Recovery Group facilitator to report to the Board, in writing, Respondent’s entry and attendance in the group on the Board-approved form. The written report is due on or before the last day of each month. 5. Participation in AA/NA

(a) Within 7 days of the effective date of this Order, and throughout the term of this

Order, Respondent shall participate at least 3 times weekly, or as recommended by the rehabilitation program, in Alcoholics Anonymous, Narcotics Anonymous, or a Board-approved equivalent program, and shall submit to the Board, in writing on Board-approved forms, quarterly reports which are initialed

by his sponsor. The first report is due by the first date on the Quarterly Reporting Due Date form, and

quarterly thereafter. Failure to provide quarterly reports within 7 days of the reporting due date shall constitute non-compliance with this Order. (b) Respondent shall obtain a temporary sponsor, if participating in a twelve-step

program, within thirty days of the effective date of this Order and a permanent sponsor within sixty

days. Respondent shall maintain a sponsor relationship throughout the terms of this Order.

6. Relapse Prevention/Recovery Evaluation Eighteen months prior to the termination of the Order or as requested by the Board or its designee, Respondent shall complete an evaluation by a Board approved evaluator who has expertise in

substance use disorders and relapse prevention. Prior to the evaluation, Respondent shall furnish a

complete copy of this Order to the evaluator who shall verify receipt of the Order and any other materials provided in a written report on letterhead to the Board. Respondent shall execute release of information form(s) to allow the evaluator to communicate information with the Board or its designee.

Respondent shall direct the evaluator to provide a report to the Board summarizing the evaluation

within thirty days after the completed appointment for the evaluation. If recommended by the evaluator, Respondent shall enter, within thirty days of notification, participate as recommended and successfully complete a relapse prevention program or other recommended treatment. Prior to entry into a relapse prevention program or any type of other

recommended treatment, Respondent shall provide a copy of this Order to include Findings of Fact and

Conclusions of Law, and Order to the treatment provider/program. Respondent shall execute the appropriate release of information form(s) to allow the treatment provider/program to communicate information with the Board or its designee. Within 7 days of entry into the recommended treatment,

Respondent shall cause the treatment provider/program to inform the Board in writing verifying

enrollment and receipt of a complete copy of this Order and a copy of the evaluation. Respondent shall participate in the treatment program or therapy until the Board receives verification from the treatment provider/program in writing that Respondent has successfully completed the program. During

participation in the program or other recommended treatment, Respondent shall cause the treatment

provider/program to submit to the Board, in writing on a Board-approved form, evidence of satisfactory attendance, participation, discharge and successful completion of the program/treatment. Such reports

are due beginning on the first quarterly reporting date after entry into the relapse prevention program or other recommended treatment and quarterly thereafter, according to schedule, for the remainder of the probationary period or verification of successful completion of the program. Failure to provide

quarterly reports within 7 days of the reporting due date shall constitute non-compliance with this

Order. 7. Alcohol and Alcohol Containing Substances Respondent shall not consume any alcohol or any substances containing alcohol and

shall avoid all products containing alcohol for the duration of the Order.

8. Abstain From Unauthorized Drug Use/Proof of Prescription Respondent shall abstain completely from the personal use or possession of controlled substances, as defined in the State Controlled Substances Act, and dangerous drugs as defined by law, or any drugs requiring a prescription.

Orders prohibiting Respondent from personal use or possession of controlled substances

or dangerous drugs do not apply to medications lawfully prescribed to Respondent for an illness or condition by a medical provider. During the duration of this Order, Respondent shall select one medical provider to coordinate his health care needs and to be aware of all prescriptions utilized by

Respondent. Within 7 days of the effective date of this Order, Respondent shall cause all medical

providers who have prescribed medications which are currently being used by Respondent daily or on an as needed basis to provide in writing, on letterhead, verification of knowledge of Respondent’s history of substance use, awareness of Respondent’s Order with the Board, and documentation of

current medications prescribed for Respondent. Respondent shall execute all release of information

form(s) as required by the Board or its designee so that Respondent’s medical providers shall be able to communicate information with the Board. Prior to receiving treatment from any other medical

provider(s), Respondent shall notify the medical provider(s) of Respondent’s history of substance use provide the provider with a copy of this Order. DURING THE COURSE OF THE ORDER RESPONDENT SHALL CAUSE ANY AND ALL PROVIDERS TO NOTIFY THE BOARD OF

THEIR AWARENESS OF RESPONDENT’S HISTORY OF SUBSTANCE USE, BOARD ORDER,

AND NOTIFICATION OF ANY MEDICATIONS ORDERED BY THE PROVIDER. THE NOTIFICATION SHALL BE MADE IN WRITING WITHIN ONE WEEK OF THE PROVIDER’S ISSUANCE OF THE PRESCRIPTION.

If Respondent has a lawful prescription for a controlled substance, Respondent shall

cause his prescribing provider to provide monthly reports to the Board regarding the continued need for the medication(s) within 7 days of the 30th day of each month. The Board or its designee may, at any time, request the provider to document the continued need for prescribed medications. Such report from the provider shall be received by the Board within 14 days of the request. Respondent shall keep

a written record of medications taken, including over-the-counter drugs, and produce such record upon

request by the Board or its designee. 9. Drug Testing Within 7 days of the effective date of the Order, and throughout the term of this Order,

Respondent shall enroll and remain enrolled in the Board approved third party program for random

drug and alcohol testing. Drug testing may include testing of urine, hair follicle, nail, saliva or blood, as determined by the Board or the Board’s designee. For random urine drug testing, Respondent shall submit a urine specimen a minimum of

twice per month for the first eighteen months and until receiving written authorization from the Board

or its designee that the frequency of drug testing may be reduced. Thereafter, Respondent shall submit

a urine specimen a minimum of once per month for the duration of the Order, and may be required to submit a specimen more frequently, as determined by the Board or its designee. Respondent shall provide, in advance of travel or unavailability, at least 3 calendar days’

written notice to the drug testing program and to the Board’s designee of any out-of-town travel or

other unavailability to test. All requests to be temporarily excused from drug testing must be approved in advance by the Board or its designee. Within 7 days of a missed drug test due to an unexpected illness, Respondent must

provide the Board or the Board’s designee with written documentation from a medical provider stating

that the medical provider personally examined Respondent on the day of the requested drug test and that Respondent was not physically able to report to the laboratory for drug testing. If Respondent tests positive for any unauthorized substance; misses two or more random drug tests throughout the entire time of the Order; fails to submit a specimen suitable for drug testing

including submission of a specimen for which the integrity has been compromise as indicated by the

presence of adulterants; or submission of a urine sample that is below the acceptable volume or outside of the temperature range to be tested; fails to submit to a drug test that has been requested by the Board, the Board’s designee, including the drug testing program, or Respondent’s healthcare employer; the

Board or Board’s designee may direct Respondent to cease practicing pending further determination by

the Board or the Board’s designee; and Respondent shall not return to practice until receiving written authorization from the Board or the Board’s designee. A complaint will be issued against Respondent’s license and the investigative findings will be submitted to the Board for the Board’s review and

decision. The Board’s designee may notify Respondent’s employer that Respondent is required to cease

practice.

At any time during the term of this Order, if Respondent submits 3 or more dilute urine specimens the Board or Board’s designee may direct Respondent to cease practicing pending further determination by the Board or the Board’s designee; and Respondent shall not return to practice until

receiving written authorization from the Board or the Board’s designee. The Board’s designee may

notify Respondent’s employer that Respondent is required to cease practice. If the Board or Board designee directs Respondent to cease practice as stated in the above paragraphs, Respondent may request in writing, that the matter be placed on the Board agenda

for the Board to review and determine if the requirement to cease practice should remain in place.

Respondent may make this request even if the investigation is not yet complete. If Respondent’s written request is received more than ten business days before a regularly scheduled Board meeting, the request shall be placed on that Board meeting’s agenda. If the written request is received 10 or less business days before a regularly scheduled Board meeting, the

request will NOT be heard at that meeting, but shall be heard at the following regularly scheduled

Board meeting. Respondent has received a copy of the Board’s policy entitled “Guidelines For Non- Compliance With Drug Testing – Monitoring And CANDO Departments” dated January 2015

(“Policy”), and agrees to abide by the terms and conditions set forth in the Policy. If there is any

conflict between the Policy and this Agreement, this Agreement governs. 10. Notification of Practice Settings Any setting in which Respondent accepts employment that requires nursing licensure

shall be provided with a copy of the entire Order on or before the date of hire or within 3 days from the

effective date of this Order if currently employed. Within 3 days of Respondent’s date of hire, or within 3 days from the effective date of this Order if currently employed, Respondent shall cause

Respondent’s immediate supervisor to inform the Board, in writing and on employer letterhead, acknowledgment of the supervisor’s receipt of a copy of this Order and the employer’s ability to comply with the conditions of probation.

In the event Respondent is attending a nursing program, Respondent shall provide a

copy of the entire Order to the Program Director. Respondent shall cause the Program Director to inform the Board, in writing and on school letterhead, acknowledgment of the program’s receipt of a copy of the Order and the program’s ability to comply with the conditions of probation during clinical

experiences.

11. Practice Under On-Site Supervision Respondent shall practice as a nurse only under the on-site supervision of a registered nurse in good standing with the Board. On-site supervision is defined as having a registered nurse present in the building whenever Respondent is practicing nursing. The supervising nurse shall have

read this Order to include the Findings of Fact and Conclusions of Law, and Order, and shall provide

input on Respondent’s performance evaluations to the Board. The supervising nurse shall be primarily one person, who may periodically delegate to other qualified personnel, who shall also have read this Order to include Findings of Fact, Conclusions of Law. In the event the assigned supervising nurse is

no longer responsible for the supervision required by this paragraph, within 7 days of the assignment of

a new supervising nurse, Respondent shall cause license’s new supervising nurse to inform the Board, in writing and on employer letterhead, acknowledgment of the new supervising nurse’s receipt of a copy of this Order to include the Findings of Fact and Conclusions of Law and the new supervising

nurse’s agreement to comply with the conditions of probation.

12. Acceptable Hours of Work Respondent shall work only the day or evening shift. Evening shift is defined as a shift that ends prior to midnight.

Within a 14-day period Respondent shall not work more than 84 scheduled hours. Respondent may work three 12-hour shifts in one seven day period and four 12-hour shifts in the other seven-day period, but Respondent may not work more than 3 consecutive 12-hour shifts during this

probationary period. Respondent shall not work 2 consecutive 8 hour shifts within a 24 hour period or

be scheduled to work 16 hours within a 24 hour period. 13. Work Prohibited Respondent may not work for a nurse’s registry, home health, traveling nurse agency, any other temporary employing agencies, float pool, or position in which the supervision requirements

identified above are unable to be maintained.

14. Performance Evaluations/Self-Reports By the first date on the Quarterly Reporting Due Date form, and quarterly thereafter, Respondent shall cause every employer Respondent has worked for to submit to the Board, in writing,

quarterly performance evaluations on the Board-approved form and completed by Respondent’s direct

supervisor. In the event Respondent is not employed in nursing or attending nursing school during any quarter or portion thereof, Respondent shall submit to the Board, in writing, a self-report describing other employment or activities on the Board-approved form.

Receipt of confirmation of employment disciplinary action, including written

counseling(s), suspension, termination or resignation in lieu of termination from a place of employment, any of which pertains to improper patient care, unsafe practice, inappropriate medication removal or administration, substandard documentation, or impairment on duty, positive drug test

showing evidence of any drug other than an authorized drug, and/or refusal to submit to an employer-

requested drug test, shall be investigated by Board staff. If the Board’s designee reviews and substantiates the employment disciplinary action, it shall be considered as noncompliance with the terms of the Order.

Failure to provide employer evaluations or if not working in nursing, self-reports, within 7 days of the reporting date is noncompliance with this Order. 15. Out-of-State Practice/Residence

Respondent is currently residing and employed in the State of California. Unless

otherwise prohibited by the California Board of Nursing, Respondent may fulfill the terms of this Order in California contingent upon Respondent’s employment setting being consistent with the requirements provided in the Order as well as paragraphs Notification of Practice Setting; Practice Under Direct

Supervision; Acceptable Hours of Work; Work Prohibited; and Performance Evaluations/Self-Reports.

While this Order is in effect, and prior to accepting any out-of-state nursing practice/employment, Respondent shall notify the licensing/certification Board of the State(s) in which Respondent seeks to practice as a nurse of this Order and shall obtain authorization from the licensing/certification Board(s) to practice as a nurse in another State. Respondent shall direct the

licensing Board of the other State(s) to submit authorization to the Board verifying Respondent is

approved to practice nursing in that State. Once authorization is received by the Board, Respondent may submit a written request to the Board requesting an amendment to the Order to permit Respondent to fulfill the terms and conditions of this Order in that State.

Respondent shall comply with all terms and conditions of this Order whether practicing

in Arizona or practicing in any other State. 16. Release of Information Forms Respondent shall sign all release of information forms as required by the Board or its

designee and return them to the Board within 10 days of the Board’s written request. Failure to provide

for the release of information, as required by this paragraph constitutes non-compliance with this Order. 17. Interview With the Board or Its Designee

Respondent shall appear in person or, if residing out of state, telephonically for interviews with the Board or its designee upon request at various intervals and with notice of at least 2 days.

18. Renewal of License

In the event the license is scheduled to expire while this Order if in effect, Respondent shall apply for renewal of the license, pay the applicable fee, and otherwise maintain qualification to practice nursing in Arizona.

19. Change of Employment/Personal Address/Telephone Number

Respondent shall notify the Board, in writing, within 7 days of any change in nursing employment. Changes in nursing employment includes, but is not limited to, a change in nursing supervisor, the acceptance, resignation or termination of employment. Respondent shall notify the Board, in writing, within 7 days of any change in personal

address or telephone number. Written notification shall be satisfied if Respondent updates his address

through the Board’s secure online “My Services” portal. 20. Obey All Laws Respondent shall obey laws/rules governing the practice of nursing in this state and obey

all federal, state and local criminal laws. Respondent shall report to the Board, within 10 days, any

misdemeanor or felony arrest, citation, or charge. Additionally, Respondent shall notify the Board of any felony or undesignated offense conviction within 10 days of the conviction. 21. Costs

Respondent shall bear all costs of complying with this Order.

22. Voluntary Surrender of License Respondent may, at any time this Order is in effect, voluntarily request surrender of Respondent’s license.

23. Violation of Probation

If Respondent is noncompliant with this Order in any respect, the Board or its designee may notify Respondent’s employer of the noncompliance. Additionally, the Board may revoke probation and take further disciplinary action for noncompliance with this Order after affording

Respondent notice and the opportunity to be heard. If a complaint or petition to revoke probation is

filed against Respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final. 24. Completion of Probation Respondent is not eligible for early termination of this Order. When Respondent has

nine months left in the probationary period Respondent’s compliance will be reviewed by the Board’s

designee. If Respondent has demonstrated compliance with all terms of the Order, Respondent will be eligible to participate in a “stepdown” component of the Order where attendance at and reports from AA and Nurse Recovery Group will no longer be required. At the end of the probationary period,

Respondent shall request review by the Board, and after review by the Board, Respondent’s nursing

license may be fully restored by the appropriate Board action if compliance with this Order has been demonstrated. Board Date: September 13, 2018

Joey Ridenour, R.N., M.N., F.A.A.N. Executive Director ARIZONA STATE BOARD OF NURSING

Acceptance Date: September 13, 2018

JR/VS

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.

Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C). The motion for rehearing or review shall be made to the attention of Hearing Department, Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, 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 13th day of September, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 13th day of September, 2018, by First Class Mail and Certified Mail No. [account number redacted] 7160 to:

Kimber J. Brewer 4809 E Copper St Tucson, AZ 85712 Respondent

COPIES of the foregoing mailed this 13th day of September, 2018, to: Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007 Sunita A. Krishna Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith