ALJDEC decisions subject to certification as final

16A-1412048-NUR · State Board of Nursing · 2016-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 26, 2016, with the record held open until June 24, 2016 APPEARANCES: Respondent did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 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. 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. 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. 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. 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. 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 tablets, but the inventory decreased by 30. 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 tablets, but the inventory decreased by 20. 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 tablets, but the inventory decreased by 20. 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 tablets, but the inventory decreased by 22. 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. 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 tablets, but the inventory decreased by 20. 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. 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. 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 tablets, but the inventory decreased by 20. 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. 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. 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 charges with three separate felonies, totaling 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. Respondent did not report the indictment to the Board within 10 days as required by statute and rule. 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. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 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.R.S. § 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), (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. A hearing was held on May 26, 2016. The Board submitted 16 exhibits and presented the testimony of three witnesses: (1) Kathy Injulli, (2) Sandra Marques, and (3) Michael Pilder. 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 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 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). This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). 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.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). The facts, as set forth previously, establish that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(b), (d), (e), (g), (h), and (j) (2012); and A.A.C. R4-19-403(1), (7), (8)(a), (8)(b), (16), (18), (19), (25)(a), (28), and (31) (2009). 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. 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.R.S. § 32-1663(D)[4] and A.R.S. § 32-1664(N).[5] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Nikki Renee Williams-Tate’s Practical Nurse License number LP047258. It is further recommended that the Board revoke Respondent Nickki Renee Williams-Tate’s Practical Nurse License number LP047258. 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, July 14, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] 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. [2] 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.

[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.R.S. 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.R.S. § 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.R.S. § 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. [4] 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. [5] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826