ALJDEC decisions subject to certification as final

16A-1303024-NUR · State Board of Nursing · 2016-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2016, with the record held open until January 21, 2016, to permit preparation of the written hearing transcript. APPEARANCES: Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. Respondent Samantha Ann Macejka appeared telephonically on her own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona State Board of Nursing (“the Board”) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes (“A.R.S.”). The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act. A.R.S. §§ 32-1601-1667. 2. Samantha Ann Macejka (“Respondent”) held Board issued Certified Nursing Assistant Certificate No. CNA1000029471 in the State of Arizona. Respondent’s Certified Nursing Assistant Certificate No. CNA1000029471 expired on April 30, 2015. The Board retains jurisdiction to proceed with an investigation and/or disciplinary proceeding against a regulated party whose license or certificate expired not more than five years before the Board initiates the investigation.[1] 3. On or about March 21, 2013, Respondent self-reported a charge of Driving under the Influence based upon a July 18, 2012, incident in Gilbert, Arizona. 4. On July 18, 2012, at approximately 9:33 a.m., according to Gilbert, Arizona, Police Department report number 12-[number redacted], Respondent was observed to be driving erratically. Respondent told police that she had taken Tylenol with Codeine (her grandmother’s prescription medication) at approximately 10:00 a.m., oxycodone at approximately 10:00 a.m., and Xanax (Alprazolam) at approximately 2:00 p.m. Respondent showed signs of impairment during the field sobriety test, and had a Portable Breathalyzer result of 0.00% Blood Alcohol Content (“BAC”). Respondent agreed to a urine drug test and tested positive for Alprazolam, Oxymorphone, and Oxycodone. 5. On January 23, 2012, Respondent was charged with Driving Under the Influence and Driving Under the Influence of Drugs, both misdemeanors. Respondent failed to report her charges to the Board within 10 days as required. 6. On April 18, 2013, in case number 2013CT112, Respondent was convicted pursuant to a guilty plea of Driving Under the Influence (Alcohol, Drugs, Toxic Vapors, or Combination), a misdemeanor, in the Gilbert Municipal Court, in Gilbert, Arizona. 7. On or about January 18, 2014, according to the Gilbert, Arizona, Police Department report number 14-[number redacted], Police received a call from one of Respondent’s family members that Respondent was behaving in a violent and erratic manner. When police arrived, Respondent’s mother reported that she and Respondent had a tug-of- war over car keys and struggled for possession of the keys. Respondent’s mother reported to police that Respondent was a recovering heroin addict. When Police questioned Respondent, she admitted that she has a heroin addiction and that she had last used heroin two days before. 8. On January 18, 2014, Respondent was cited for Disorderly Conduct. Respondent failed to report her charges to the Board within 10 days as required. 9. On or about January 21, 2014, in case number 2014-CT-000749, Respondent pleaded guilty to Disorderly Conduct, a misdemeanor, in the Gilbert Municipal Court, in Gilbert, Arizona. 10. On March 22, 2013, and on July 18, 2013, Board Staff mailed Respondent Investigative Questionnaires. Respondent failed to respond to questionnaires. TESTIMONY 11. Larry Eugene Sinks, Jr., (hereinafter “Officer Sinks”) testified that he is a patrol officer with the Gilbert Police Department. Officer Sinks stated that he came into contact with the Respondent on January 18, 2014. Officer Sinks said that on January 18, 2014, he was sent to a family fight at the Respondent’s residence. Officer Sinks said that Respondent’s brother alleged that Respondent was on meth, being violent, and is bipolar. 12. Officer Sinks testified that Respondent’s mother informed him that Respondent is a recovering heroin user and that they had a problem with her on January 18, 2014, when she was trying to leave for work. Respondent’s mother stated that she was worried that Respondent was going to get more drugs before leaving for work. Respondent’s mother said that she struggled with Respondent over the car keys as Respondent tried to leave with the car. 13. Officer Sinks testified that he then spoke with Respondent’s father. Officer Sinks stated that Respondent’s father said that there were problems with Respondent in the home and that Respondent and Respondent’s mother had been struggling over the car keys. 14. Officer Sinks testified that he then spoke with Respondent. Officer Sinks stated that Respondent acknowledged that she had struggled with her mother over the car keys. Respondent stated that she simply wanted to leave early for work. Respondent said that nothing physical happened. 15. Officer Sinks testified that he questioned Respondent about her alleged drug use. Officer Sinks stated that Respondent admitted to being a heroin user and that Respondent said that she had last used heroin two days prior to the his contact with her. Officer Sinks said that Respondent represented that she was taking a drug to deal with the withdrawal from heroin. Officer Sinks said that Respondent was arrested for Disorderly Conduct. 16. Officer Sinks’ testimony is found to be credible. 17. Michelle Domenica Morton (hereinafter “Investigator Morton”) testified that she is a senior investigator for the Board. Investigator Morton stated that she investigated Respondent’s self- reported DUI. Investigator Morton said that the incident occurred on July 18, 2012, and that Respondent self-reported the incident on March 21, 2013. Investigator Morton said that as part of her investigation she subpoenaed records from the Gilbert Police Department.[2] 18. Investigator Morton testified that the police records indicate that Respondent was stopped on July 18, 2012, after a bystander reported that she was driving at an erratic speed and swerving. Investigator Morton stated that Respondent informed the police that she had taken Xanax, oxycodone and Tylenol with codeine. Investigator Morton said that the police observed that Respondent displayed signs of impairment and that as a result a drug test was performed. Investigator Morton said that Respondent tested positive for alprazolam (Xanax), Oxymorphone, and oxycodone. 19. Investigator Morton testified that she also obtained records from the Gilbert Municipal Court.[3] Investigator Morton stated that as a result of Respondent’s arrest on July 18, 2012, she was charged with DUI on January 13, 2013. Investigator Morton said that Respondent pled guilty to the DUI, Alcohol, Drugs, Toxic Vapors or Combination on April 18, 2013. Investigator Morton said that DUIs are one of the categories of charges that nurses are required to report to the Board within 10 days. Investigator Morton said that Respondent did not report the DUI charge to the Board within the 10 day period. 20. Investigator Morton testified that the records also substantiate that Respondent was arrested and charged with Disorderly Conduct on January 18, 2014. Investigator Morton stated that Respondent entered a plea of guilty to the charge of Disorderly Conduct. Investigator Morton said that Respondent failed to report the charge of Disorderly Conduct to the Board. 21. Investigator Morton testified that on March 22, 2013, and on July 18, 2013, she mailed Respondent letters with Investigative Questionnaires.[4] Investigator Morton stated that Respondent failed to respond to questionnaires. Investigator Morton said that she repeatedly tried to conduct the Respondent. Investigator Morton said that she finally received an email with an updated telephone number from Respondent on February 5, 2015. Investigator Morton said that she left a message on Respondent’s voice mail. Investigator Morton said that she prepared the Investigative Report in this matter.[5] 22. Investigator Morton’s testimony is found to be credible. 23. Respondent testified that she was working as a Certified Nursing Assistant (“CNA”) on July 18, 2012, when she was arrested for DUI. Respondent stated that she was taking prescription medication that had been prescribed for her. Respondent said that she did report her arrest for DUI to the Board. Respondent acknowledged that she did not report the DUI arrest within 10 days. 23. Respondent testified that she was not working as a CNA on January 18, 2014. Respondent stated that the only reason that she pleaded guilty to the Disorderly Conduct charge was because she received a deferred judgment. Respondent said that she completed all of her classes that were required by the deferred judgment. Respondent said that she does not plan on working as a CNA anymore and does not live in the State of Arizona. 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 and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. 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). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004). 3. The Board established by a preponderance of the evidence that Respondent’s actions in, using heroin, driving while under the influence of drugs, being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, failing to report the criminal charges that were filed against her to the Board in a timely manner, and her failure to answer the Board’s questionnaires constitute unprofessional conduct pursuant to A.R.S. § 32-1601(22)(d) and is grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. 4. The Board established by a preponderance of the evidence that Respondent’s actions in using heroin, driving while under the influence of drugs and being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, failing to report the criminal charges that were filed against her to the Board in a timely manner, and her failure to answer the Board’s questionnaire constituted unprofessional conduct as defined in A.R.S. § 32-1601(22)(j),[6] and are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. 5. For purposes of A.R.S. §§ 32-1601(18)(d) and 32-1601(22)(d), the Board established by a preponderance of the evidence that Respondent’s actions in using heroin, driving while under the influence of drugs and being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, and failing to report the criminal charges that were filed against her to the Board in a timely manner constitutes a conduct or practice that is or might be harmful to the health of a patient or the public pursuant to Arizona Administrative Code (“A.A.C.”) R4-19- 814(14). 6. For purposes of A.R.S. §§ 32-1601(18)(d) and 32-1601(22)(d), the Board established by a preponderance of the evidence that Respondent’s actions in using heroin, driving while under the influence of drugs and being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, and failing to report the criminal charges that were filed against her to the Board in a timely manner constitutes a conduct or practice that is or might be harmful to the health of a patient or the public pursuant to Arizona Administrative Code (“A.A.C.”) R4-19- 814(17). 7. For purposes of A.R.S. §§ 32-1601(18)(d) and 32-1601(22)(d), the Board established by a preponderance of the evidence that Respondent’s actions in having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct and failing to report the matter to the Board in a timely manner constitutes conduct or practice that is or might be harmful to the health of a patient or the public pursuant to A.A.C. R4-19-814(21). 8. For purposes of A.R.S. §§ 32-1601(18)(d) and 32-1601(22)(d), the Board established by a preponderance of the evidence that Respondent’s failure to answer the Board’s questionnaires constitutes a violation of A.A.C. R4-19-814(23)(c). 9. For purposes of A.R.S. §§ 32-1601(18)(d) and 32-1601(22)(d), the Board established by a preponderance of the evidence that Respondent’s actions in using heroin, driving while under the influence of drugs and being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, and failing to report the criminal charges that were filed against her to the Board in a timely manner constitutes a conduct or practice that is or might be harmful to the health of a patient or the public pursuant to A.A.C. R4-19-814(27). 10. Respondent’s actions in using heroin, driving while under the influence of drugs, being convicted of DUI Alcohol, Drugs, Toxic Vapors or Combination, having a struggle with her mother over car keys leading to her arrest and conviction of Disorderly Conduct, and failing to report the criminal charges that were filed against her to the Board in a timely manner constitutes unprofessional conduct and grounds for discipline pursuant to A.R.S. § 32-3208(A) and (D). 11. In light of the risk of potential harm to which patients were exposed as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D)[7] and A.R.S. § 32-1664(N).[8] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Certified Nursing Assistant Certificate No. CNA1000029471 previously issued to Respondent Samantha Ann Macejka. 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, February 4, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

----------------------- [1] A.R.S. § 32-1664(C). [2] See Exhibit 1 (Gilbert Police Records). [3] See Exhibit 2 (Gilbert Municipal Court Records). [4] See Exhibit 3 (Letters with Investigative Questionnaires). [5] See Exhibit 4 (Investigative Report). [6] A.R.S. § 32-1601(22)(j) defines “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public,” “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter,” “[c]ommitting an act that deceives, defrauds or harms the public,” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [7] A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. [8] A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

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