ALJDEC decisions subject to certification as final

16A-1211148-NUR-RES · State Board of Nursing · 2017-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF CERTIFIED NURSING ASSISTANT CERTIFICATE NO. CNA1000010805

ISSUED TO:

MANDI RACHELLE MORENO,

RESPONDENT

No. 16A-1211148-NUR-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 29, 2017, at 9:00 a.m.

APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Elizabeth C. Campbell, Esq., Assistant Attorney General; Mandi Rachelle Moreno (“Respondent”) appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

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.

Since 2006, Respondent has held Board-issued certified nursing assistant (“CNA”) certificate number CNA1000010805.

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), as further defined by A.A.C. R4-19-814(16), R4-19-814(23)(a), R4-19-814(23)(c), R4-19-814(27), R4-19-814(32), A.R.S. §§ 32- 1601(22)(e), 32-1601(24)(i), 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.

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

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

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 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.

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.

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.

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

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.

With Respondent’s 2012 renewal application, she disclosed her December 8, 2011 Extreme DUI conviction and provided court documents.

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 application. The Board requested that Respondent provide additional information about the conviction on or before February 8, 2013. Respondent did not respond to that letter.

Respondent testified that she did not understand what the Board wanted, since she had already provided court documents with her renewal application.

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. Respondent did not respond to the second letter.

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. Respondent did not respond to the third letter.

Respondent’s Employment at Banner Estrella and Sierra Winds

As part of the Board’s investigation, it obtained Respondent’s employment records through subpoenas to her employers.

From August 2007 until November 2011, Respondent was employed as a CNA at Banner Estrella Medical Center in Phoenix, Arizona (“Banner”).

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 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 time states, “as I write this her head is back and eyes closed.”

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.”

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.

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.

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 that she had nodded off during her shift. As a result of the incident, Banner terminated Respondent’s employment.

Ms. Smith testified that a 1:1 patient requires that staff be present at all times. A sleeping nurse is not present.

From November 2012 until August 19, 2015, Respondent was employed as a CNA at Sierra Winds, an assisted living facility in Peoria, Arizona.

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.

On or about June 23, 2015, Respondent’s supervisor requested that she undergo a random drug screen. Respondent agreed to undergo the screen and stated that the accident resulted from her being tired.

Although the results of the screen was negative, the Specimen Result Certificate was signed by a medical review officer. 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.

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.

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.

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.

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. As a result, Sierra Winds terminated Respondent’s employment.

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

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. 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.

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.

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.”

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.

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.

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.

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

This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s CNA certificate. Respondent bears the burden of proof to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

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). 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).

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), and A.R.S. § 32-3208 by failing to report to the Board that she had been charged with extreme DUI within ten days of August 15, 2011.

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), 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.

The Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(24)(i) by failing to comply with the June 14, 2016 Interim Order that required her to obtain a psychological and neuropsychological evaluation.

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. R4-19-814(16) and former A.A.C. R4-19-814(14). 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).

Respondent’s unprofessional conduct furnishes cause for the Board to discipline her CNA certificate under A.R.S. § 32-1663(D).

The Board’s responsibility is to “to more effectively protect the public health safety and welfare” by regulating the practice of nursing in Arizona. 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) to revoke Respondent’s CNA certificate.

RECOMMENDED ORDER

In light of Respondent Mandi Rachelle Moreno’s serious and repeated acts of unprofessional conduct, it is ordered that on the effective date of the final order in this matter, Respondent Mandi Rachelle Moreno’s Certified Nursing Assistant Certificate No. CNA1000010805 shall be revoked.

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, December 8, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing