ALJDEC decisions subject to certification as final

16A-1209067-NUR · State Board of Nursing · 2018-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN000099095 ISSUED TO:

KIMBER J BREWER,

RESPONDENT.

No. 16A-1209067-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 24, 2018 at 9:00 AM. Hearing record held open until August 10, 2018, to receive official hearing transcript from Ottomar & Associates, Inc.

APPEARANCES: Assistant Attorney General Sunita Krishna appeared on behalf of the Arizona State Board of Nursing (“the Board”), with Jennifer Ingram as a witness. Kimber Brewer (“Respondent”) appeared on his own behalf. Lauren Kuhnhenn served as the official Court Reporter.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

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

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.”

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). Violations of the forgoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

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

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

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 having a substance abuse problem and declined participation in the Board’s Chemically Addicted Nurses Diversion Option (“CANDO”) program.

The Board initiated an investigation as a result of Respondent’s self-report, including subpoenaing Respondent’s court and medical records.

Allegation #2 - Respondent’s Arrest, Guilty Plea Agreement & Criminal Conviction

On or about April 22, 2012, Respondent was stopped for unsafe driving by an officer of the Tucson Police Department. Respondent exhibited signs of impairment due to alcohol. Upon inquiry, Respondent consented to a blood draw. Respondent had a blood alcohol content (“BAC”) of 0.283. Respondent received a citation for DUI and moving violation.

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).

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 DUI). 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).

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. 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).

All Criminal Complaint charges were consolidated by Tucson City Court because the charges arose from the same incident.

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.

Allegation #3 - Respondent’s Medical Records

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. For example:

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

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

Respondent agreed to be evaluated on April 01, 2015, by Jacquelyn St. Germaine, Ph.D., a Board approved evaluator, regarding his alleged alcohol abuse. 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

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.

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.

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.

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

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.

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.

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.

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.

When asked, Respondent could not clarify or explain why he gave three different accounts regarding the DUI he received on April 22, 2012.

Respondent also testified that he believed that the information contained in his medical records was incorrect.

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.

CONCLUSIONS OF LAW

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.

The Board bears the burden of proof to establish cause to discipline Respondent’s practical nursing license. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

The Board’s burden is a preponderance of the evidence. Ariz. Admin. Code R2-19-119.

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).

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:

* * *

(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.

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;

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.

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.”

Here, the Board has sustained its burden of proof.

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.

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.

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.

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.

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).

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.

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.

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).

RECOMMENDED ORDER

Based on the foregoing facts and conclusions of law,

IT IS recommended by the undersigned Administrative Law Judge that Respondent’s Registered Nurse License No. RN000099095 be placed on probation for a time to be determined by the Board.

IT IS FURTHER RECOMMENDED that Respondent be required to participate in inpatient alcohol rehabilitation treatment, an approved after care program, and monitoring.

IT IS FURTHER RECOMMENDED that Respondent’s Registered Nurse License No. RN000099095 be revoked if Respondent does not adhere to the Board’s Order.

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, August 10, 2018.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing