FINACT16A-1412048-NUR.pdf

16A-1412048-NUR · State Board of Nursing · 2016-07-27

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: July 22, 2016

RE: Nikki Williams-Tate Docket No. 16A-1412048-NUR ______________________________________________________________________________

On July 22, 2016, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board revoke practical nurse license number LP047258.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 4747 North 7th Street Ste 200 Phoenix AZ 85014-3655 602-771-7800

IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP047258 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER NO. 16A-1412048-NUR NIKKI RENEE WILLIAMS-TATE, RESPONDENT.

A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1400 West Washington Suite 101, Phoenix Arizona, on May 26, 2016. Sunita Krishna, Assistant Attorney General, appeared on behalf of the State. Nikki Renee Williams-Tate (“Respondent”) was not present

and was not represented by counsel.

On July 14, 2016, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On July 22, 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 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 A.R.S. §§ 32-1606, 1663, and

1664. 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 through 1667. 2. In 2011, the Board first licensed Respondent Nikki Renee Williams-Tate, who held Licensed Practical Nurse (LPN) license number LP047258, which allow her to practice

nursing in the State of Arizona.

3. On or about April 22, 2014, while employed at Corizon Healthcare as an LPN and on-duty at an Arizona Department of Corrections (DOC) facility in Florence, Arizona, Respondent was observed sitting at the nursing station with an electronic cigarette in her mouth. A supervisor

counseled Respondent that it was against policy and inappropriate to be smoking in patient care

areas and reviewed the smoking policy with Respondent. 4. Later the same day, Respondent was again seen using an electronic cigarette. A

supervisor counseled Respondent a second time that day for the same violation of policy and again

reviewed the policy with Respondent. The supervisor informed Respondent that if Respondent was non-compliant again, a final written warning would be issued.

5. On or about August 8, 2014, while on duty Respondent documented in the Controlled

Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco (Hydrocodone Bitartrate and Acetaminophen) 1 from the Norco floor stock inventory at 7:21 a.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 830 tablets to 818

tablets. Respondent's notation resulted in a discrepancy of 10 missing tablets as Respondent reported

only removing 2 tablets, but the inventory decreased by 12. 6. On or about August 9, 2014, while on duty Respondent documented in the Controlled

Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor

stock inventory at 6:19 a.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 780 tablets to 750 tablets. Respondent's notation resulted in a discrepancy of 28 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 30.

Norco contains Hydrocodone, a narcotic drug. A.R.S. § 13-3401 (20)(jjj) and (21)(n). It is illegal to possess or use narcotic drugs. A.R.S. § 13-3408.

7. On or about August 23, 2014, while on duty Respondent documented in the Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor stock inventory at 6:59 a.m.; however, Respondent recorded on the same line that the inventory of

Norco decreased from 140 tablets to 120 tablets. Respondent's notation resulted in a discrepancy of 18

missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 20. 8. On or about August 29, 2014, while on duty Respondent documented in the Controlled

Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor

stock inventory at 6:38 a.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 369 tablets to 349 tablets. Respondent's notation resulted in a discrepancy of 18 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 20.

9. On or about September 3, 2014, while on duty Respondent documented in the Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor stock inventory at 5:09 p.m.; however, Respondent recorded on the same line that the

inventory of Norco decreased from 147 tablets to 125 tablets. Respondent's notation resulted in a

discrepancy of 20 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 22.

10. On or about September 4, 2014, while on duty Respondent documented in the

Controlled Drug Manifest that she signed for and received 500 tablets of Norco from Pharmacorr, the pharmacy that provides the clinical stock, RX No. 31466216, for the clinical stock on the North Unit at ASPC Florence. On or about September 4, 2014, Respondent documented at 2:43 p.m. in the

Controlled Substance Perpetual Inventory/Usage Record that 400 tablets were added to the inventory,

which increased from 101 to 501. Respondent's notation resulted in a discrepancy of 100 missing tablets as Respondent acknowledged receiving 500 tablets, but only added 400 tablets to the inventory.

11. On or about September 11, 2014, while on duty Respondent documented in the Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor stock inventory at 5:53 p.m.; however, Respondent recorded on the same line that the

inventory of Norco decreased from 179 tablets to 159 tablets. Respondent's notation resulted in a

discrepancy of 18 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 20.

12. On or about September 13, 2014, while on duty Respondent documented in the

Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor stock inventory at 3:02 p.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 82 tablets to 80 tablets; however the line immediately above

Respondent's entry indicated a starting inventory of 92. Respondent's notation resulted in a discrepancy

of 10 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 12.

13. On or about September 13, 2014, while on duty Respondent documented in the

Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the Norco floor stock inventory at 3:34 p.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 80 tablets (the incorrect inventory noted above) to 60 tablets.

Respondent's notation resulted in a discrepancy of 18 missing tablets as Respondent reported only

removing 2 tablets, but the inventory decreased by 20. 14. On or about September 20, 2014, while on duty Respondent documented in the

Controlled Substance Perpetual Inventory/Usage Record that she removed 2 tablets of Norco from the

Norco floor stock inventory at 5:23 p.m.; however, Respondent recorded on the same line that the inventory of Norco decreased from 245 tablets to 225 tablets. Respondent's notation resulted in a

discrepancy of 18 missing tablets as Respondent reported only removing 2 tablets, but the inventory decreased by 20.

15. On or about September 24, 2014, while on duty Respondent documented in the

Controlled Drug Manifest that she signed for and received 470 tablets of Norco from Pharmacorr, RX No. 31598238, for the clinical stock on the East Unit at ASPC Florence. On or about September 24, 2014, Respondent documented at 4:59 p.m. in the Controlled Substance Perpetual Inventory/Usage

Record that 400 tablets were added to the inventory, which increased from 44 to 444. Respondent's

notation resulted in a discrepancy of 70 missing tablets as Respondent acknowledged receiving 470 tablets, but only added 400 tablets to the inventory.

16. On or about December 23, 2014, the Board received a complaint from Kathleen

Campbell, the Program Evaluation Administrator, at the DOC in Phoenix, Arizona, alleging that, from August 1, 2014, to September 24, 2014, while on duty as an LPN at the Arizona DOC facility in Florence, Arizona, Respondent had diverted up to 398 tablets of Narco. The Board opened an

investigation.

17. On or about April 20, 2015, Respondent was indicted in Pinal County on 30 felony counts stemming from the entries noted above. On or about July 1, 2015, Respondent was arraigned on

the charges. For each of the ten dates identified, Respondent was charged with three separate felonies,

totaling 30 charged felonies: 1)Committing Fraudulent Schemes and Artifices by, pursuant to a scheme or artifice to defraud, knowingly obtaining a benefit by means of false or fraudulent pretenses, representations, a class 2 felony; 2) Committing Fraudulent Schemes and Practices by, pursuant to a

scheme or artifice to defraud or deceive, knowingly falsifying, concealing or covering up a material

fact by a trick, scheme or device or making or using any false writing or document knowing such writing or document contains any false, fictitious or fraudulent entry, by altering the total balance of

"Norco" in the Narcotic Books during the times she dispensed Norco to the inmates, a class 5 felony; 3) Committing forgery by, with the intent to defraud, falsely making, completing, or altering a written instrument, specifically the narcotics book and controlled drug manifests, a class 4 felony.

18. Respondent did not report the indictment to the Board within 10 days as required by statute and rule.

19. On or about February 3, 2016, the Board mailed Respondent an Investigative Questionnaire and an Arrest and Conviction Questionnaire, with instructions to provide a written explanation and specific court and police records regarding each of her arrests, citations, or charges, and return it to the Board by February 15, 2016. Respondent submitted a written description, but did

not turn in a "full and complete' explanation of the events as required by the statute and rule.

20. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

21. On April 19, 2016, the Board issued a Complaint and Notice of Hearing and Summary Suspension, alleging that cause existed to discipline Respondent's Practical Nurse license under A.RS.§

32-1601(22)(b), (d), (e), (g), (h), and (j) (2012); 2 and A.A.C. R4-19-403(1), (7), (8)(a), (8)(b), (16),

A.R.S. § 32-1601(22)(b), (d), (e), (g), (h), and (j) (2012) define "unprofessional conduct" as follows: (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. (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. (g) Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. (h) Committing an act that deceives, defrauds or harms the public. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

(18), (19), (25)(a), (28), and (31) (2009). 3 The Complaint and Notice of Hearing was sent via certified mail to Respondent at her address of record.

22. A hearing was held on May 26, 2016. The Board submitted 16 exhibits and presented

the testimony of three witnesses: (1) Kathy lnjulli, (2) Sandra Marques, and (3) Michael Pilder.

23. Respondent did not request to appear telephonically at the duly noticed hearing and did

not request that the hearing be continued. Although the start of the hearing was delayed 30 minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did

3 This rule further defines "unprofessional conduct" to include the following:

1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice; 7. Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient; 8. Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record: a. Regarding a patient, health care facility, school, institution, or other work place location; or b. Pertaining to obtaining, possessing, or administering any controlled substance as defined in the federal Uniform Controlled Substances Act, 21 U.S.C. 801 et seq., or Arizona's Uniform Controlled Substances Act, A.RS. Title 36, Chapter 27; 16. Removing, without authorization, a narcotic, drug, controlled substance, supply, equipment, or medical record from any health care facility, school, institution, or other work place location; 18. Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices; 19. Providing or administering any controlled substance or prescription-only drug for other than accepted therapeutic or research purposes; 25. Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.RS.§ 32-1664, or 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.RS.§ 32-3208, within 10 days of being charged. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense; .... 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her Practical Nurse license.

CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing.

See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

2. This matter lies within the Board's jurisdiction under A.R.S. § 32-1606(A)(8). 3. The Board bears the burden of proof and must establish cause to penalize Respondent's Practical Nurse license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.AC. R2-

19-119(A) and (B)(1 ); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

4. "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 § (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). 5. The facts, as set forth previously, establish that Respondent committed unprofessional conduct as defined by A.RS. § 32-1601(22)(b), (d), (e), (g), (h), and (j)(2012); and A.AC. R4-19- 403(1), (7), (8)(a), (8)(b), (16), (18), (19), (25)(a), (28), and (31) (2009).

6. Given Respondent's egregious behavior, her failure to respond to the Board, and her

failure to appear at the duly noticed hearing, Respondent has demonstrated that she cannot be regulated at this time.

7. In light of the risk of potential harm to the public, the Board established cause to revoke, suspend, or otherwise discipline Respondent's license under A.RS. §32-1663(D) 4 and A.RS.§ 32- 1664(N). 5

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 REVOKES practical nurse license number LP047258 issued to Nikki Renee Williams-Tate.

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. Respondent may apply for reinstatement of the said license pursuant to A.A.C. R4-19-404 after a period of five years.

A.RS. § 32-1663(0) 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. A.RS.§ 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.

DATED this 22nd day of July, 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 July, 2016, by Certified Mail No.[account number redacted] 7609 and First Class Mail to:

Nikki Williams-Tate 4531 E Harmony Ave Mesa, AZ 85206

COPIES of the foregoing mailed this 22nd day of July, 2016, to:

Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007 Sunita A. Krishna Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 85007

By: T. Smith