FINACT16A-1211148-NUR-RES.pdf

16A-1211148-NUR-RES · State Board of Nursing · 2018-02-02

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: January 26, 2018

RE: Mandi Rachelle Moreno Docket No. 16A-1211148-NUR-RES ______________________________________________________________________________

On January 26, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke Certified Nursing Assistant Certificate No. CNA1000010805 issued to Respondent, Mandi Rachelle Moreno.

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 CERTIFIED FINDINGS OF FACT, NURSING ASSISTANT CERIFICATE NO. CNA1000010805 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 16A-1211148-NUR-RES MANDI RACHELLE MORENO, RESPONDENT.

A hearing was held before Diane Mihalsky, Administrative Law Judge (“ALJ”), at 1400 West

Washington Suite 101, Phoenix Arizona, on November 29, 2017. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Mandi Rachelle Moreno (“Respondent”) appeared in person on her own behalf.

On December 8, 2017, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On January 26, 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

1. The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667.

2. Since 2006, Respondent has held Board-issued certified nursing assistant (“CNA”)

certificate number CNA1000010805.

3. On October 19, 2017, the Board issued a Complaint and Notice of Hearing, setting forth certain factual allegations and, based on those alleged facts, charging that Respondent had committed unprofessional conduct as defined by A.R.S. §§ 32-1601(22)(d) or 32-1601(18)(d) 1, as further defined

by A.A.C. R4-19-814(16) 2, R4-19-814(23)(a), R4-19-814(23)(c) 3, R4-19-814(27) 4, R4-19-814(32) 5,

A.R.S. §§ 32-1601(22)(e), 32-1601(24)(i) 6, 32-1601(22)(j), and 32-3208(D), thereby furnishing cause to discipline her CNA certificate under A.R.S. §§ 32-1663 and 32-1664. 4. An evidentiary hearing was held on November 29, 2017 before the Office of

Administrative Hearings, an independent state agency. The Board submitted ten exhibits and presented

the testimony of Valerie Smith, R.N., M.S., F.R.E., its associate director. Respondent testified on her own behalf. HEARING EVIDENCE 5. Ms. Smith has been a registered nurse for 39 years. She has 25-30 years of experience

in substance abuse, beginning with performing workplace interventions at Maricopa Medical Center

and starting the Board’s Chemically Addicted Nurses Diversion Option, a confidential, non- disciplinary program for nurses who report substance abuse issues. The August 14, 2011 Extreme DUI

6. On August 14, 2011, at approximately 9:31 p.m., according to Tolleson, Arizona Police

Department report number [number redacted], police observed Respondent asleep in the driver’s seat of her 1 A.R.S. § 32-1601(22)(d) was effective August 2, 2012. For conduct occurring before August 2, 2012,

the Board charged A.R.S. § 32-1601(18)(d) (effective September 30, 2009, with identical language). A.A.C. R4-19-814(16) was effective September 8, 2014. For conduct occurring before September 8,

2014, A.A.C. R4-19-814(14) (effective January 31, 2009, which had language that was identical to the 2014 rule, was charged. A.A.C. R4-19-814(23) was effective January 31, 2009. A.A.C. R4-19-814(27) was effective January 31, 2009. A.A.C. R4-19-814(32) was effective September 8, 2014. For conduct occurring before September 8, 2014, A.A.C. R4-19-814(29) (effective January 31, 2009, which contains language identical to the 2014 rule, applies. A.R.S. § 32-1601(24)(i) was effective July 1, 2016, For conduct occurring before July 1, 2016, A.R.S.

§ 32-1601(22)(i) (effective August 2, 2012) contains language that is identical to the 2016 amendment applies.)

vehicle, which was running and had the lights on, in the parking lot of a Circle K store. A preliminary breath test indicated a blood alcohol concentration of .168 at 9:50 p.m. Respondent was arrested and transported to the police station, where additional breath tests were conducted that indicated blood

alcohol concentrations of .239 at 11:44 p.m. and .227 at 11:50 p.m. 7

7. Ms. Smith testified that Respondent’s breath alcohol content readings after 11:00 were approximately three times the legal limit, which suggested that Respondent engaged in heavy alcohol use. The breath tests were taken at least an hour after officers had arrived and, if tests had been

administered earlier, the results probably would have been higher.

8. On or about August 15, 2011, Respondent was charged with three counts of Driving Under the Influence (“DUI”). On or about December 8, 2011, Respondent was convicted of Extreme DUI, a Class 1 Misdemeanor, in Tolleson Municipal Court case number TR20111068 pursuant to her plea agreement. 8

Respondent’s Report of DUI to Board and Failure to Respond to Board

9. Respondent did not report the DUI charges within ten days of August 15, 2011. Respondent testified that she did not know that she was required to report such charges to the Board within ten days.

10. With Respondent’s 2012 renewal application, she disclosed her December 8, 2011

Extreme DUI conviction and provided court documents. 11. On January 9, 2013, the Board sent Respondent a letter, notifying her that an investigation had been opened under A.R.S. § 32-1664 into her affirmative answer on the renewal

See the Board’s Exhibit 1. The Arizona Department of Motor Vehicle Implied Consent Form and test

results confirmed the readings in the police report. See the Board’s Exhibit 2. See the Board’s Exhibits 3 and 4.

application. The Board requested that Respondent provide additional information about the conviction on or before February 8, 2013. 9 Respondent did not respond to that letter. 12. Respondent testified that she did not understand what the Board wanted, since she had

already provided court documents with her renewal application.

13. On November 29, 2013, Board staff sent a second letter to Respondent, requesting that she complete and return the attached investigative questionnaire for each arrest, citation, or charge, and provide police and court records on or before December 13, 2013. The letter indicated that the request

was the second and final request 10.Respondent did not respond to the second letter.

14. On April 9, 2015, Board staff sent a third letter to Respondent, again enclosing an investigative questionnaire and requesting that she complete the questionnaire on or before April 23, 2015. 11 Respondent did not respond to the third letter. Respondent’s Employment at Banner Estrella and Sierra Winds

15. As part of the Board’s investigation, it obtained Respondent’s employment records through subpoenas to her employers. 16. From August 2007 until November 2011, Respondent was employed as a CNA at

Banner Estrella Medical Center in Phoenix, Arizona (“Banner”).

17. On or about October 13, 2011, Banner issued a Corrective Action Statement against Respondent for her conduct at work on October 1, 2011, that provided in relevant part as follows: [I]t was stated that at 1930 you went to the Café to get patient’s food and did not return until 2020. At 2120 you stated that you were taking your 15 minute break but then stated, Oh my boss is coming I’ll go when she leaves.” At this time it was reported that you were just looking at things on the computer.” 2230 you were seen feeding an infant while the infant was still lying flat, and at that time you were instructed to hold infant upright during feedings. 0030 at this time you See the Board’s Exhibit 5 at 28. See the Board’s Exhibit 5 at 29. See the Board’s Exhibit 5 at 25.

were observed propping the bottle with your cheek while feeding an infant. A little before 0400 you went to the bathroom and by 0500 when you had not returned the nurse knocked several times loudly on the door and called your name before you answered. At 0505 you were seen feeding another baby with the bottle propped by your cheek and your eyes closed; apparently several times you were told, “Be careful you are holding a baby.” 0510 in the complaint the entry at this t me states, “as I write this her head is back and eyes closed. 12 Although Respondent’s response to the Corrective Action Statement disputed its accuracy, she

admitted to closing her eyes. Respondent stated that “from now on, if I feel someone I work with may

have an issue with me, I will find a way to bring it up unless it is something I feel I need to go to the CM or supervisor for.” 13 18. Ms. Smith testified that during the hour and 50 minutes when Respondent was in the

café or the bathroom, she was not available to her patients. Her absence created a safety issue,

especially for vulnerable patients, such as infants. A CNA is expected to stay awake and remain with her patients during her shift to monitor her patients and to ensure their safety. 19. On or about October 25, 2011, Banner issued a Corrective Action Statement against

Respondent for her conduct at work on October 23, 2017, when at 0615, a patient’s family summoned a

staff member into the patient’s room, where Respondent appeared to be sleeping. Respondent was advised that she needed to rest at home and not bring home issues to work. 14 20. On or about November 20, 2011, three registered nurses reported that Respondent was sleeping while caring for a 1:1 patient, which resulted in her termination from Banner. According to

Resignation/Discharge form, Respondent could not be aroused by a verbal command and had to be

touched by one of the registered nurses to be woken up. According to the form, Respondent confessed

The Board’s Exhibit 6 at 32. Id. at 33. See the Board’s Exhibit 6 at 36-37.

that she had nodded off during her shift. 15 As a result of the incident, Banner terminated Respondent’s employment. 21. Ms. Smith testified that a 1:1 patient requires that staff be present at all times. A sleeping

nurse is not present.

22. From November 2012 until August 19, 2015, Respondent was employed as a CNA at Sierra Winds, an assisted living facility in Peoria, Arizona. 23. On or about July 21, 2015, Respondent reportedly had “closed her eyes,” and had driven

over a curb and into a lamp post on the parking lot at Sierra Winds. She reported the accident to a

security guard and showed him a “large scuff” on the lamp post. 16 24. On or about June 23, 2015, Respondent’s supervisor requested that she undergo a random drug screen. 17 Respondent agreed to undergo the screen and stated that the accident resulted from her being tired.

25. Although the results of the screen was negative, the Specimen Result Certificate was

signed by a medical review officer. 18 Ms. Smith testified that a medical review officer is typically called in after a result is positive for a controlled substance to see if the test subject has a legitimate prescription for the controlled substance.

26. The Board submitted Respondent’s prescription monitoring profile from the Arizona

Board of Pharmacy. The profile showed that between December 17, 2010, and October 12, 2017, Respondent had filled numerous prescriptions for controlled substances. 19 27. Ms. Smith testified that even if a nurse has a valid prescription for a drug, it is never

acceptable for the nurse to be impaired at work as a result of taking the prescribed drug.

See the Board’s Exhibit 6 at 38. See the Board’s Exhibit 7 at 44. See the Board’s Exhibit 7 at 41. See the Board’s Exhibit 7 at 43. See the Board’s Exhibit 10.

28. On or about July 25, 2015, Respondent attended a mandatory nursing meeting at Sierra Winds and was observed to be sitting with her eyes closed during the meeting. 20 29. On or about the night of August 11-12, 2015, Respondent was observed by other night

shift personnel to be drowsy while on duty. Respondent informed the other nursing staff at

approximately 3:30 a.m. that she was going to the store for a lunch break. At approximately 4:30 a.m., other staff started looking for Respondent, but she was nowhere to be found. At approximately 5:00 a.m., another CNA saw Respondent’s car parked with the door open and called security. Security found

Respondent asleep in her car. 21 As a result, Sierra Winds terminated Respondent’s employment.

30. Ms. Smith testified that CNAs have an obligation to remain awake, alert, and present whenever they are on duty to take care of their patients. The Board’s Interim Order 31. At its May 2016 meeting, the Board voted to issue an Interim Order for a psychological

and neuropsychological evaluation. The Interim Order was issued on June 14, 2016, and required that

Respondent complete the evaluation within 60 days. 22 To date, Respondent has not undergone a psychological and neuropsychological evaluation. She also has not contacted the Board to request additional time to have the evaluation performed.

32. Respondent testified that she could not afford to pay $4,000.00 for an evaluation within

the 60 days that the Board’s Interim Order allowed. 33. In her written answer to the Board’s initial Complaint and Notice of Hearing, Respondent admitted to falling asleep twice during her shifts at Banner and twice during her shifts at

Sierra Winds because she had not been able to sleep at home “due to issues with my children.” 23

See the Board’s Exhibit 7 at 46. See the Board’s Exhibit 7 at 47. See the Board’s Exhibit 8. The Board’s Exhibit 9.

34. Respondent acknowledged at the hearing that she had fallen asleep twice at Banner and three times at Sierra Winds. Respondent testified that she has never been in trouble before. 35. Respondent denied every being under the influence of her prescription medications

while she was at work. Respondent testified that she has anxiety and that the only thing she did wrong

was that she did not go to her supervisor to request that she not be scheduled to work nights. She failed to request that she be allowed to work days because she was afraid. 36. Respondent testified that she has always worked nights, with the exception of a short

time in 2007. Respondent testified that because she has small children, working days in 2007 did not

work out because her husband works during the day and cares for the children at night, while she worked nights and cared for the children during the day. 37. Respondent testified that since her first daughter was born 19 years ago, the only thing that she has wanted to do was to work in the medical field. After Sierra Winds terminated her

employment, she has applied for other CNA positions and has been offered several positions, but when

employers learn of the pending complaint, they tell her to come back when she has resolved the complaint. Respondent testified that she wants to keep her CNA certificate for her children.

CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 2. The Board bears the burden of proof to establish by a preponderance of the evidence

cause to discipline Respondent’s CNA certificate. 24 Respondent bears the burden of proof to establish

affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. 25

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). See A.A.C. R2-19-119(B)(2).

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 26 A preponderance of the evidence is “[t]he 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.” 27 4. The Board established, and Respondent did not dispute, that she fell asleep at least five

times during her shifts at Banner and Sierra Winds. Ms. Smith’s testimony established that a nurse who

falls asleep during her shift does not meet the standard of care for nurses because she is not available to care for her patients, which results in a patient safety issue. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(d) and former A.R.S. § 32-1601(18)(d) and A.R.S. § 32-1601(22)(e) and former A.R.S. § 32-1601(18)(e). 28 The

Board also established that Respondent committed unprofessional conduct as further defined by A.A.C.

R4-19-814(32) and former A.A.C. R4-19-814(29). 29 5. The Board established that Respondent committed unprofessional conduct as defined by former A.R.S. § 32-1601(18)(d), as more specifically defined by A.A.C. R4-19-814(27), 30 and A.R.S. §

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 27 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999) A.R.S. § 32-1601(22) provides and former A.R.S. § 32-1601(18)(d) provided the following definitions of unprofessional conduct: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: .... (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. (e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. A.A.C. R4-19-814(32) and former A.A.C. R4-19-814(29) further define unprofessional conduct under

A.R.S. § 32-1601(22)(d) and former A.R.S. § 32-1601(18)(d) for a CNA her commission of the following : Practicing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed.

32-3208 31 by failing to report to the Board that she had been charged with extreme DUI within ten days of August 15, 2011. 6. The Board established that Respondent committed unprofessional conduct as defined by

A.R.S. § 32-1601(22)(d), more specifically defined in A.A.C. R4-19-814(23)(a) and (c), 32 by failing to

provide a completed investigative questionnaire, as requested by the Board’s January 9, 2013, November 29, 2013, and April 15, 2013 letters. 7. The Board established that Respondent committed unprofessional conduct as defined by

A.R.S. § 32-1601(24)(i) 33 by failing to comply with the June 14, 2016 Interim Order that required her

to obtain a psychological and neuropsychological evaluation. 8. In the absence of such an evaluation, the Board’s concern that Respondent’s inability to remain awake during her shifts may be related to taking the prescribed controlled substances is not unreasonable. Therefore, the Board established that Respondent committed unprofessional conduct as

defined by A.R.S. § 32-1601(22)(d) and former A.R.S. § 32-1601(18)(d), as further defined by A.A.C.

A.A.C. R4-19-814(27) further defines unprofessional conduct under A.R.S. § 32-1601(18)(d) for a CNA her commission of the following : If an applicant, licensee or CMA certificate holder is charged with a felony or a misdemeanor, involving conduct that may affect patient safety, failing to notify the Board, in writing, within 10 working days of being charged under A.R.S. § 32-3208. . . . A.R.S. § 32-3208(A) provides in relevant part as follows A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. Former A.A.C. R4-19-814(27) further defines unprofessional conduct under A.R.S. § 32-1601(22)(d) for a CNA her commission of the following : Failing to cooperate with the Board during an investigation by: a. Not furnishing in writing a complete explanation of a matter reported under A.R.S. § 32-1664; .... c. Not completing and returning a Board-issued questionnaire within 30 days . . . . A.R.S. § 32-1601(24)(i) defines unprofessional conduct as “[f]ailing to comply with a stipulated agreement, consent agreement or board order.”

R4-19-814(16) and former A.A.C. R4-19-814(14). 34 The Board has also established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(j) and former A.R.S. § 32- 1601(18)(j). 35

9. Respondent’s unprofessional conduct furnishes cause for the Board to discipline her

CNA certificate under A.R.S. § 32-1663(D). 36 10. The Board’s responsibility is to “to more effectively protect the public health safety and welfare” by regulating the practice of nursing in Arizona. 37 A CNA cares for the most vulnerable

patients and practices without constant supervision, whether she is employed as a caregiver in a private

home or a hospital. The nature of a CNA’s practice prevents the Board from imposing conditions that would protect the public from any future inability to stay awake during her shift or possible impairment. Respondent has not responded to the Board’s letters or the Interim Order, which indicates that she may not be capable of being regulated at this time. The Board therefore established cause under

32-1663(A) 38 to revoke Respondent’s CNA certificate.

ORDER

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

A.A.C. R4-19-814(16) and former A.A.C. R4-19-814(14) further define unprofessional conduct under A.R.S. § 32-1601(22)(d) for a CNA her commission of the following : Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting A.R.S. § 32-1601(22)(j) and former A.R.S. § 32-1601(18)(j) defined unprofessional conduct as including

“[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” A.R.S. § 32-1663(D) provides that “[i]f 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.” Laws 1982, Ch. 190, § 1. A.R.S. § 32-1663(A) concerns disciplinary action and provides as follows: If an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.

Pursuant to A.R.S. § 32-1664(N), the Board REVOKES nursing assistant certificate number CNA1000010805 issued to Mandi Rachelle Moreno. 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, 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 said license/certificate pursuant to A.A.C. R4-19- 815 after a period of five years. DATED this 26th day of January, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 26th day of January, 2018, by Certified Mail No. [account number redacted] 1304 and First Class Mail to:

Mandi Rachelle Moreno 3065 N 67TH Ave #114 Phoenix, AZ 85033 COPIES of the foregoing mailed this 26th day of January, 2018, to: Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office SGD/LES 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith