FINACT16A-1212101-NUR-RES.pdf

16A-1212101-NUR-RES · State Board of Nursing · 2016-10-04

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 4747 North 7th Street, Suite 200 Phoenix. AZ 85014-3655 Phone (602) 771-7800 Fax (602) 771-7884 E-Mail: [email redacted] Home Page: http://www.nursing.state.az.us

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: September 22, 2016

RE: Karen Lee Hayes Docket No. 16A-1212101-NUR-RES

On September 16, 2016, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Suspend Certified Nursing Assistant Certificate No. CNA1000007904 issued to Karen Lee Hayes to be suspended until Karen Lee Hayes presents to the Board new evidence, of her own choosing, that convinces the Board that she is able and prepared to practice competently, the time and evidence of such presentation to be limited in accordance with the sound discretion of the Board.

The Board adopted the Findings of Fact 1 through 8 in its entirety.

The Board Modified Conclusions of Law as detailed below:

Requested Changes in the Conclusions of Law.

No changes are being requested in Conclusions of Law Nos. 1, 2, 3, or 7.

A. Delete Conclusion of Law No. 4 and replace it with the following: Respondent’s guilty plea in 1989 to possession of cocaine 1 and Respondent’s convictions for DUI resulting from incidents in 2012 and 2014 2 support a finding of unprofessional conduct pursuant to A.R.S. § 32-1601(24)(d)(Any conduct or practice that is or might

See Finding of Fact Nos. 1, 2, and 3. See Finding of Fact No. 5. Karen Lee Hayes Docket No. 16A-1212101-NUR-RES be harmful or dangerous to the health of the patient or the public) and A.A.C. R4-19-814(16)(Practice or conduct that is or might be harmful or dangerous to the health of a patient or the public includes 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). 3

The plain language of the Board’s statute and rule does not require that actual harm to

patients or the pubic have occurred before the Board may take disciplinary action. Such an

interpretation would not be in keeping with the Board’s purpose to protect the public.

Respondent’s 1989 guilty plea to cocaine possession in addition to the DUI convictions resulting

from incidents in 2012 and 2014 support a finding of repeated use of intoxicants to the extent

that judgment may be impaired and practice detrimentally affected.

B. Conclusion of Law No. 5 should be amended as follows: 5. The evidence supported a finding of unprofessional conduct pursuant to A.RS. § 32-1601(24)(i) because Respondent failed to comply with the Board's order. It should be noted that the order required Respondent to pay for her own evaluation; therefore, her inability to pay is a valid defense. The evidence did not establish a violation of A.RS. § 32-1601(24)(h) because insufficient evidence was offered to establish that Respondent deceived, defrauded, or harmed the public, even though her actions did establish the risk of that result.

Under A.R.S. § 32-1601(24)(i), Respondent was required to comply with the Board’s

Interim Order for an evaluation. (See Hearing Exhibit 9, Board’s Interim Order.) The Board

statutes do not contain an exception for failing to comply with a Board order based upon

financial hardship. As a certificate holder, under A.R.S. § 32-1664(F), Respondent was required

to complete the Interim Order at her own expense.

C. Conclusion of Law No. 6 should be amended as follows:

A.A.C. R4-19-814 has been amended numerous times. The definition of unprofessional conduct with regard to the use of intoxicants has not substantially changed since 2000 and is now codified at A.A.C. R4-19-814(16). 6. Respondent's 1989 guilty plea to possession of cocaine, a felony, constitutes above-noted conduct does not constitute unprofessional conduct pursuant to A.RS. § 32-1601(24)(b) as it concerns the 1989 cocaine conviction because Respondent was not certified at the time of the conviction. It would not be appropriate to find that the requirements of professional conduct apply to someone who was not a professional, as it is understood by the statute, at the time of the action that gave rise to the conviction. It is not appropriate to find that the rules pertaining to licensed and certified individuals govern the actions of anyone who is not yet licensed or certified unless those rules specify it, such as providing that an applicant shall not have a history of a conviction. In this case, the statute finds that it is unprofessional conduct to commit the felony. Therefore, it does not apply to Respondent's behavior in 1989. The same reasoning applies to A.A.C. R4-19-814(19), 4 which specifies that violation of federal or state laws regarding illegal drugs violates the standards of conduct for licensees and certificate holders.

The factual addition regarding the 1989 guilty plea to possession of cocaine, a felony, is

supported by Finding of Fact Nos. 1 and 5.

If a regulated party is found to have committed an act of unprofessional conduct, the

Board may take disciplinary action. A.R.S. §§ 32-1646(A)(4), -1663(A), and -1664(N). There is

no requirement in the Board’s statutes or rules that requires that the act of unprofessional conduct

occur after licensure or certification. Such an interpretation of the Board’s statues would

severely compromise the Board’s ability to serve its regulatory purpose and protect the public.

First, conduct occurring before licensure or certification must necessarily be considered in

connection with an application. Second, relevant conduct may be unknown to the Board at the

time of licensure or certification. Finally, conduct that demonstrates a pattern or repeated use in

violation of the Board’s rules 5 may occur both before and after licensure or certification.

The definition of unprofessional conduct with regard to the illegal possession of drugs has not substantially changed since 2000 and is now codified at A.A.C. R4-19-814(19). See, e.g., A.A.C. R4-19-814(16)(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. D. Conclusion of Law No. 8 should be deleted.

This conclusion of law as written constitutes a recommended order instead of a

conclusion of law. As a result, it is most appropriately considered by the Board in connection

with the Board’s Order.

The Board Rejected the ALJ’s Recommended Order.

The Board Rejected the ALJ’s Recommended Order that the Board indefinitely suspend

Respondent’s certification until Respondent can present the Board with evidence that she is able

and prepared to practice competently. (See ALJ Recommended Conclusion of Law No. 8 and

ALJ Recommended Decision.) Instead, the Board Ordered Stayed Revocation/Suspension not to

exceed 12 months if not found to have a substance use disorder and for 36 months if found to

have substance use disorder or treatment needed.

ARIZONA STATE BOARD OF NURSING 4747 North 7th Street Ste 200 Phoenix AZ 85014-3655 602-771-7800

IN THE MATTER OF NURSING ASSISTANT CERTIFICATE NO. CNA1000007904 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER NO. KAREN LEE HAYES, 16A-1212101-NUR-RES RESPONDENT.

A hearing was held before Dorinda M. Lang, Administrative Law Judge (“ALJ”), at 1400 West Washington Suite 101, Phoenix Arizona, on August 17, 2016. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Karen Lee Hayes (“Respondent”) appeared in person on her

own behalf.

On September 2, 2016, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On September 16, 2016, 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 hearing in this matter convened to determine whether grounds exist to take disciplinary action, including suspension or revocation against Karen Lee Hayes ("Respondent") who holds a Certified Nursing Assistant certificate with the Arizona Board of Nursing ("Board"). On

December 27, 2012, Respondent reported that she had been arrested on November 29, 2012. The

Board sent Respondent a questionnaire, which she filled out and submitted to the Board on or about August 26, 2013. In it, Respondent reported an arrest in 1989 for cocaine possession. The information provided by Respondent disclosed that she pled guilty and that the conviction was set aside on October

30, 2000. Respondent's November 9, 2005 Application for Certified Nursing Assistant by Examination contained a "no" answer to the question of whether Respondent had ever been convicted of a felony. 2. An investigator for the Board obtained documentation reflecting that during the

November 29, 2012 arrest, Respondent was found to have Blood Alcohol Content ("BAC") of .089 and

.088 during two tests. Respondent was charged with DUI, "Impaired to the Slightest Degree" and DUI, ".080+ BAC within hours" and was convicted on both counts by a jury. 3. The investigator also found that Respondent was arrested on December 20, 2014 with a

BAC of .198.

4. The minutes of the Board's July 2015 meeting reflected a vote that and interim order for psychiatric testing with a substance use evaluation would be issued. That order was issued on July 23, 2015. According to the testimony of the investigator, no evaluation was submitted to the Board in response to the interim order.

5. Respondent appeared at the hearing and testified that she had not been guilty in 1989

but had been intimidated into taking a guilty plea. She also stated that she did not know that it had been a felony conviction. However, she said, she had revealed the facts of that conviction in her application. Respondent admitted to having been convicted of a DUI in 2012 and a DUI in 2015 and

she explained the circumstances involved. She also admitted that she had not obtained a psychiatric

evaluation because she couldn't afford it. She stated that she is unemployed and homeless right now, which makes her circumstances even more difficult. However, she argued that the events leading to her convictions had nothing to do with the performance of her job and had happened on her own time.

....

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CONCLUSIONS OF LAW 1. The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.RS. §§ 32-1606, 32-1663, 32-1664, and 41-1092.11(B). The Board also has the

authority, pursuant to A.R.S. § 32-1663 and A.R.S. § 32-1664, to impose disciplinary sanctions against

the holders of nursing licenses/certified nursing assistants for unprofessional conduct. The Board has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.R.S. § 41-1092.07(G).

2. Arizona law defines unprofessional conduct in the nursing profession at A.R.S. §32-

1601(24)8 which provides, in relevant part, as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:(a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter.

(b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving

moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. ****

(d)Any conduct or practice that is or might be harmful or dangerous to the health of a patient or

the public. **** (h) Committing an act that deceives, defrauds or harms the public.

(i) Failing to comply with a stipulated agreement, consent agreement or board order.

3. A.A.C. R4-19-814(16) further describes unprofessional conduct as follows:

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

4. Respondent’s guilty plea in 1989 to possession of cocaine and Respondent’s convictions

for DUI resulting from incidents in 2012 and 2014 support a finding of unprofessional conduct pursuant to A.R.S. § 32-1601(24)(d)(Any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public) and A.A.C. R4-19-814(16)(Practice or conduct that is or might

be harmful or dangerous to the health of a patient or the public includes 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). 5. The evidence supported a finding of unprofessional conduct pursuant to A.RS. § 32- 1601(24)(i) because Respondent failed to comply with the Board's order.

6. Respondent's 1989 guilty plea to possession of cocaine constitutes a felony. The same

reasoning applies to A.A.C. R4-19-814(19), which specifies that violation of federal or state laws regarding illegal drugs violates the standards of conduct for licensees and certificate holders. 7. It was established that Respondent failed to mark that she had a felony conviction on her

application, which may implicate unprofessional conduct pursuant to A.RS. § 32-1601(24)(a). It was

undisputed that Respondent disclosed the facts of the conviction in her application. This indicates that she did not intend to commit fraud or deceit in order to obtain her certification. Therefore, the greater weight of the evidence did not establish unprofessional conduct as it is

described in A.RS. § 32-1601(24)(a).

.... ....

ORDER In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order: Pursuant to A.R.S. § 32-1664(N), the Board places Respondent’s Certified Nursing Assistant

Certificate No. CNA1000007904 on a disciplinary Stayed Revocation Suspension not to exceed 12

months, followed by Stayed Revocation Probation for at minimum twelve months. If Respondent found to have substance use disorder or need for treatment the stayed revocation suspension shall be a minimum of thirty-six months, subject to terms and conditions imposed by the Board, with the

following conditions:

If Respondent is non-compliant with any of the terms of the Order during the stayed revocation period, the stay of the revocation shall be lifted and Respondent’s certificate shall be automatically revoked for a minimum period of 5 years. Except as provided in paragraph titled Drug Testing and paragraph titled Performance Evaluations/Self-Reports of this Order, the Board or its designee, in its

sole discretion, shall determine noncompliance with the stayed portion of the Order. With the

exception of the provisions identified in paragraph titled Drug Testing and paragraph titled Performance Evaluations/Self-Reports), Respondent’s right to further review of any revocation imposed pursuant to this paragraph is limited to review by the Board.

TERMS OF STAYED REVOCATION/SUSPENSION

1. Surrender of Nursing Assistant Certification

Within 7 days of the effective date of the Order, Respondent shall surrender her

certificate to the Board and Respondent shall not practice as a nursing assistant during the term of suspension.

2. Psychological Evaluation During the period of Suspension, Respondent shall make an appointment to undergo a psychological and substance use disorder evaluation to occur within by a Board approved licensed

psychologist. Respondent shall immediately execute release of information form(s) to allow the

evaluator to communicate information with the Board or its designee. Prior to the evaluation, Respondent shall furnish a copy of this Order to include Findings of Fact Conclusions of Law, 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 direct the evaluator to provide a report to the Board

summarizing the evaluation within thirty days after the completed appointment for the evaluation. The report shall include a history of chemical use, past and present treatment and/or recovery activities, results of any testing, recommendations for treatment, if any, and an assessment as to Respondent’s ability to function safely as a certified nursing assistant based on Respondent’s

recovery status.

Respondent shall complete any and all recommendations made by the evaluator. If treatment or therapy is recommended, Respondent shall, within seven days of notification of the recommendation(s), submit to the Board or its designee for prior approval the name and qualifications

of treatment facilities and/or therapists of Respondent’s choice. Respondent shall, within thirty days of

the Board’s receipt of the evaluator’s report, initiate all treatment and or therapy activities. The Board reserves the right to amend the Order based upon the recommendations of the evaluator. If Respondent fails to undergo the evaluation within twelve (12) months of the effective date of this Order,

Respondent’s certificate shall be automatically revoked for at minimum, five (5) years.

3. Rehabilitation Program If Respondent is found to have a substance use disorder and/or in need of treatment, within 30 days of the Board’s receipt of the evaluator’s report, Respondent shall enter a substance use disorder

rehabilitation program. Upon entry, Respondent shall execute the appropriate release of information form allowing the program to inform the Board of Respondent’s entry and shall provide the Rehabilitation Program with a copy of this Order to include Findings of Fact and Conclusions of Law,

and a copy of the completed evaluation. Respondent shall cause the Rehabilitation Program to verify

receipt of the Order and any other materials provided in a written report on letterhead to the Board. The rehabilitation program shall also 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 program and recommendations and arrangements for appropriate follow-up treatment.

4. Completion of Suspension If Respondent fails to successfully complete the terms of Stayed Revocation Suspension within twelve (12) months of the effective date of this Order, the Stay shall be lifted and Respondent’s certificate shall be revoked.

After Respondent has successfully completed all terms of the Stayed Revocation Suspension as determined by the Board’s designee, Respondent’s certificate shall be placed on a Stayed Revocation for thirty six months if Respondent is found to have a substance use disorder by the evaluator, or for

twelve months if no substance use disorder is found by the evaluator with the following terms and

conditions: TERMS OF STAYED REVOCATION

1. Notification of Practice Settings

Any setting in which Respondent accepts employment, which requires certification, shall be provided with a copy of the entire Order on or before the date of hire. Within three (3)

calendar days of Respondent’s date of hire, Respondent shall cause her 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 his Suspension. 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 suspension during clinical experiences.

2. Performance Evaluations/Self-Reports

Respondent shall cause every employer Respondent has worked for to submit to the Board, in writing, quarterly employer evaluations on the Board-approved form. In the event Respondent is not working in a position which required CNA certification or attending 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, sub-standard 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 screen/testing, shall be investigated by Board staff and reviewed and substantiated by the Board’s designee. If so investigated, reviewed and substantiated, the employment disciplinary

action shall be considered as noncompliance with the terms of the Order, and the stay of revocation

shall be lifted and Respondent’s certificate automatically revoked. If Respondent contests the lifting of the stay as it relates to this paragraph, Respondent shall request in writing, within 10 days of being

notified of the automatic revocation of certification, that the matter be placed on the Board agenda for the Board to review and determine if the automatic revocation of Respondent’s certificate was supported by substantial evidence. If the written request is received within ten (10) days of a regularly

scheduled Board meeting, the request will NOT be heard at that meeting, but will be heard at the NEXT

regularly scheduled Board meeting. Pending the Board’s review, Respondent’s certificate shall be reported as revoked – under review. Respondent may not work in any capacity involving CNA certification pending the Board’s review. The Board’s decision and Order shall not be subject to

further review.

Failure to provide employer evaluations or if not working as a certified nursing assistant, self-reports, within seven days of the reporting date is non-compliance with this Order and is not subject to further review. 3. Practice Under Direct Supervision

Respondent shall practice as a certified nursing assistant or in a student nurse capacity,

only under the direct supervision of a registered nurse in good standing with the Board. Direct supervision is defined as having a registered nurse present on the same unit with the Respondent whenever Respondent is practicing as a certified nursing assistant or student nurse. 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 employer 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 that the

assigned supervising nurse is no longer responsible for the supervision required by this paragraph,

Respondent shall cause her new supervising nurse to inform the Board, in writing and on employer letterhead, acknowledgment of the new supervisor’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 within ten days of assignment of a new supervising nurse. 4. 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. 5. Prohibited Work Respondent may not work for a nurse’s registry, home health, traveling nurse agency, and any other temporary employing agencies, float pool, or position that requires on-call status.

TERMS OF STAYED REVOCATION/SUSPENSION AND STAYED REVOCATION THE FOLLOWING TERMS ARE APPLICABLE TO THE ENTIRE PERIOD OF THE ORDER:

1. Renewal of Certificate

If Respondent’s nursing assistant certificate is expired at the time of the effective date of the Order, Respondent must renew the certificate within 7 days of the effective date. In the event the nursing assistant certificate is scheduled to expire during the term of the Order, Respondent shall apply

for renewal of the certificate and pay the applicable fee before the expiration date. Failure to renew

within seven days of the effective date of this Order, if it is expired, or failure to renew a certificate by the last date in which the certificate is to expire, shall be considered as noncompliance.

2. Aftercare Program If Respondent is found to have a substance use disorder and/or in need of treatment, within seven days of the completion of the rehabilitation program, Respondent shall enter and must

successfully complete a state licensed chemical rehabilitation aftercare program. Upon entry,

Respondent shall execute the appropriate release of information form allowing the program to inform the Board of Respondent’s entry into the program. Respondent shall also cause the program to submit to the Board, in writing and on the Board-approved form, evidence of 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 according to schedule, for the remainder of the probationary period or until completion of the aftercare program. 3. Participation in AA/NA

If Respondent is found to have a substance use disorder and/or in need of treatment by

the Board’s evaluator, the following requirements (a) and (b) apply: (a) Within seven days of the Board’s receipt of the evaluator’s report effective, and throughout the term of this Order, Respondent shall participate at least three (3) times weekly, or as

recommended by the Rehabilitation Program, in Alcoholics Anonymous, Narcotics Anonymous, or an

equivalent program, and shall submit to the Board, in writing on Board-approved forms, quarterly reports which are initialed by his/her sponsor. The first report is due commencing the on the first quarterly reporting date after entry into AA/NA participation and quarterly thereafter.

(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.

4. 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.

5. Abstain from Unauthorized Drug Use/Proof of Prescription

Respondent shall completely abstain from the use or possession of controlled substances, 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 her health care needs and to be aware of all prescriptions utilized. 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 the 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 and of the existence of the 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 her prescribing provider to provide monthly reports to the Board regarding the continued need for

the prescribed narcotic or mood-altering medications 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. 6. Drug Testing Within seven (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 program. Drug testing may include testing of urine, hair, 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 at minimum, throughout the term of suspension and for at minimum, the first half

of the Stayed Revocation, 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 three (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 seven (7) days of a missed drug test due to an unexpected illness, Respondent

shall 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 missed drug test and that Respondent was not physically able to report to the laboratory for drug testing. During the Stayed Revocation, failing to submit to two or more random drug tests;

or failing to submit to a drug test on a day when a drug test has been requested by the Board, its

designee, Respondent’s healthcare employer, or the drug testing program will constitute noncompliance with this Order and Respondent’s certificate shall be automatically revoked for at minimum five (5) years, NOT subject to further review. A positive drug test showing evidence of any substance (alcohol or drug) other than an authorized drug may result in Board staff notifying

Respondent’s employer.

Any occurrence of the following constitutes noncompliance with this Order, subject to further review if contested in writing by Respondent: a positive drug test showing evidence of any substance other than an authorized drug; submission of a specimen for which the integrity has been

compromised, 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. If Respondent contests the results, Respondent shall, within five (5) days of being notified of the noncompliance, submit a written request for further review and Respondent’s reason(s) for contesting the results. If contested, the

alleged noncompliance shall be investigated by Board staff and reviewed and substantiated by the

Board’s designee, including a written verification attesting to the validity and reliability of Respondent’s drug testing results from the Toxicologist or Medical Review Officer affiliated with

the drug testing program or laboratory. If, after the investigation and review, noncompliance is substantiated, the stay of revocation shall be lifted and Respondent’s certificate automatically revoked. Respondent’s rights to further review of any revocation imposed pursuant to this paragraph is

limited to review by the Board.

Failing to submit to a drug test on a day when a drug test has been requested by the Board, its designee, a healthcare employer, or the drug testing program constitutes a violation of this Agreement for which Respondent may not request further review/investigation by the Board’s

designee.

At any time during the term of this Order, if Respondent submits three (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 (10) 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) ten 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.

7. 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 noncompliance with this Order.

8. 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 and with notice of at least two (2) days. 9. Change of Employment/Personal Address/Telephone Number

Respondent shall notify the Board, in writing, within seven (7) days of any change in

nursing employment, personal address or telephone number. Changes in nursing employment include the acceptance, resignation or termination or employment. 10. Obey All Laws

Respondent shall obey all 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 or conviction.

11. Costs

Respondent shall bear all costs of complying with this Order. 12. Voluntary Surrender of License

Respondent may, at any time this Order is in effect, voluntarily request surrender of her certificate. 13. Completion of Stayed Revocation

Respondent is not eligible for early termination of this Order. Following successful

completion of the terms of the Order, Respondent shall make a request, in writing, to the Board for review of the terms of suspension and to determine the status of Respondent’s nursing assistant certification.

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, 4747 North 7th Street Ste 200, Phoenix AZ 85014-3655, 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. DATED this 16th day of September, 2016. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 22nd day of September, 2016, by Certified Mail No. [account number redacted] 8524 and First Class Mail to:

Karen Lee Hayes 8120 W. Trafalgar Ave Phoenix, AZ 85033 COPIES of the foregoing mailed this 22nd day of September, 2016, to: Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 85007

By: T. Smith