ALJDEC decisions subject to certification as final

16A-1502008-NUR · State Board of Nursing · 2016-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 29, 2016, at 9:00 a.m.; the record was held open until April 12, 2016 to allow for the filing of the court reporter’s transcript and redacted exhibits. APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Sunita A. Krishna, Esq., Assistant Attorney General; Mary Ann Hoffend (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 32-1663, and 32- 1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. Respondent holds Board-issued Registered Nurse License No. RN073837. The Board summarily suspended Respondent’s registered nurse license and referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On or about February 22, 2016, the Board issued a Complaint and Notice of Hearing that set a hearing on March 29, 2016, at 9:00 a.m. The Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(22)(b), 32- 1601(22)(d), 32-1601(22)(g), 32-1601(22)(h), and 32-1601(22)(j). For purposes of A.R.S. § 32-1601(22)(d), the Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as further defined by A.A.C. R4-19-403(1), R4-19-403(2), R4-19-403(7), R4-19- 403(8)(a), R4-19-403(8)(b), R4-19-403(9), R4-19-403(16), R4-19-403(17), R4- 19-403(18), R4-19-403(19), and R4-19-403(31). The Board sent the Complaint and Notice of Hearing to Respondent at her last known address of record by first-class and certified mail. A hearing was held on March 29, 2016. The Board presented the testimony of Cindy K. Waldron, R.N. (“Ms. Waldron”), the former Director of Nursing at Life Care Center of Paradise Valley (“Life Care”), Detective Toni Brown (“Detective Brown”), formerly of the Phoenix Police Department (“PPD”), and the Board’s Nurse Consultant Cindy Mand (“Ms. Mand”) and submitted thirteen exhibits. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the duly noticed hearing did not conclude for over two and a quarter hours, Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be delayed. Consequently, Respondent did not present any evidence to defend her registered nurse license. Hearing Evidence In November 2014, Life Care performed an audit of employees’ administration of medications to their patients. Life Care determined that Respondent’s records showed discrepancies regarding Clonazepam, a benzodiazepine commonly used to treat panic disorders, anxiety and seizures, that she had removed for Patient C (P.S.) on six separate occasions and failed to document as given, wasted, or returned.[1] Ms. Waldron testified that at Life Care nurses are required to document medications that they remove from the medication cart and to document the medication as administered and the effect on the patient or to document the medication as returned or wasted, with the signature of a nurse who witnessed the return or destruction of the medication. On November 4, 2014, Respondent signed the audit form to acknowledge that she was aware of the results of the audit. Ms. Waldron testified that Life Care subsequently audited the records of 11 of Respondent’s patients and discovered continued discrepancies. On December 9, 2014, Ms. Waldron prepared a Corrective Action Form for Respondent to sign.[2] Ms. Waldron testified that she called and left messages for Respondent to come to the office and review and sign the form, but that Respondent never responded to the messages through the holidays. Between approximately January 23, 2015, and January 25, 2015, Respondent cared for Patient A (P.A.) at Life Care. Patient A is a 69-year-old woman who had been prescribed Oxycodone to manage her chronic pain. Patient A was familiar with the effects of Oxycodone and noticed that she did not get the expected pain relief from the pills that Respondent administered. Patient A also had unexplained edema of her upper right arm and chest. Patient A decided that she would keep the pills that Respondent administered in her cheek to have them analyzed. When nurse Maria Sowers (“Ms. Sowers”) relieved Respondent, Patient A gave Ms. Sowers the pills that Respondent had administered as Oxycodone. The pharmacist at Life Care determined that four of the pills were Fludrocortisone (brand name Florinef), a corticosteroid commonly used to treat adrenocortical insufficiency, and one of the pills was Promethazine (brand name Phenergan), which is commonly used to treat nausea and vomiting. Neither of these medications had been prescribed to Patient A.[3] Ms. Waldron testified that she left messages for Respondent to discuss her care of Patient A, but that Respondent never returned the messages. On January 27, 2015, the Life Care social worker (“SW”) interviewed Patient A and reported as follows: SW asked to speak with resident today regarding a concern with the nightshift weekend nurse giving her the wrong medications. SW asked resident to explain the situation. Resident began to become very tearful and shake. Resident explains that the older female nurse on the weekend gives her the wrong pills. She says she has been taking for 5 years and she is very aware of what it looks like, even the generic forms. She states this nurse has not been giving her the oxy and is instead giving her some other pills in place of the oxy. Resident say[s] she acts like she will take them, but then spits them out because she is afraid of what they are. Resident states, “I’m scared for my life because I don’t know what she’s giving me. I’m scared that they will do something bad to me.” Resident is afraid that the nurse will be fired and then she won’t be able to support her family. She explains that she didn’t want to tell anyone because she doesn’t want to get the nurse fired. SW explained that she did the right thing by telling someone. Resident expressed appreciation for facility taking it seriously and she says she doesn’t want this to happen to anyone else.[4]

As required by law, on or about February 2, 2015, Ms. Waldron reported the incident involving Respondent and Patient A to the Arizona Department of Health Services as an incident of suspected narcotic diversion and misappropriation of patient belongings. On February 10, 2015, Life Care terminated Respondent’s employment, noting that the last day she had worked was on January 25, 2015. Ms. Waldron testified that she scheduled a meeting with Respondent on January 30, 2015, but that Respondent never returned to Life Care. Ms. Waldron testified that Patient A transferred to a skilled care facility because she did not want to return to Life Care. Ms. Waldron testified that there is no other explanation for Patient A’s unexplained edema other than the Fludrocortisone that Respondent administered, but Patient A’s doctor did not prescribe. On or about January 29, 2015, Ms. Waldron and the social worker reported the incident involving Respondent and Patient A to PPD. PPD officers executed a search warrant at Respondent’s residence and found a card with tablets of Cymbalta that had been prescribed to Patient B (L.F.), a former Life Care patient. Respondent told police that she must have mistakenly picked up the Cymbalta when she scooped up her belongings from the counter before she left Life Care for the last time. Ms. Waldron testified that medication cards are in a bin, not laying on the counter. Respondent told PPD officers that Patient A had made the allegations against her because she had refused Patient A’s offer of money over the holidays. Ms. Waldron testified that Respondent had not reported Patient A’s offer. Ms. Waldron testified that Respondent’s explanations to the police were not credible. Detective Brown testified that the original report of possession of narcotics was changed to elder abuse after police learned of the harm that Patient A experienced due to Respondent’s intentional substitution of non- prescribed Fludrocortisone for the Oxycodone that had been prescribed to treat her pain. Detective Brown testified that when PPD officers executed the search warrant at Respondent’s home, she saw Respondent grab a large bottle of pills while she was getting dressed. The bottle of pills was Oxycodone and showed a prescription that had been made out to Respondent. The prescription had been filled on February 5, 2015 for 120 pills, one pill four times a day. On February 10, 2015, at 8:55 a.m., when PPD officers executed the search warrant, there were only 87 pills left in the bottle, with 33 pills gone in the four days since Respondent had filled the prescription. Detective Brown testified that it appeared that Respondent was taking 8-1/4 pills of Oxycodone a day, more than twice the prescribed amount. Detective Brown testified that Respondent admitted to taking more Oxycodone than had been prescribed to her, but stated that she only took six pills a day. Detective Brown testified that Respondent’s home was filthy, with a horrible stench of a backed up sewer. The toilet was overflowing and there were gin and vodka bottles scattered on the floor throughout the home. Ms. Mand testified that Life Care kept narcotic medications in a locked box. Nurses were required to sign to indicate the number of pills remaining on a card after removing medication to administer to patients. Ms. Mand testified that the controlled substance record is important because it is the only way that a nursing facility can keep track of the medications. A nurse must administer narcotic medications quickly to patients, within 30 minutes of the time that the medications are removed, and must document the time the medication is removed, the time it is given to the patient, and the effect of the medication on the patient. Ms. Mand testified that if a nurse does not follow protocol, a following nurse may administer duplicate medications, causing the patient to overdose. In addition, the prescribing physician needs to know whether the dose is adequate. On January 22, 2016, Ms. Mand interviewed Respondent. Respondent stated that Ms. Waldron counseled her regarding her lack of documentation of narcotic administration for 11 patients from on or around November 15, 2014, to December 8, 2014, involving anywhere from 30-60 narcotic tablets. Respondent stated that she had previously told Ms. Waldron that “those were just documentation errors.” At the hearing, the Board established the following discrepancies: 24.1 Patient F (L.H.): 4 tablets of Oxycodone 5 mg. 24.2 Patient H (S.B.): 8 tablets of Oxycodone 5 mg. 24.3 Patient I (C.C.): 8 tablets of Oxycodone 5 mg./acetaminophen 325 mg. 24.4 Patient L (S.W.): 2 tablets of Oxycodone 5 mg. 24.5 Patient M (S.Z.): 2 tablets of Oxycodone 5 mg. 24.6 Patient N (J.B.): 2 tablets of Tramadol 50 mg. On or about November 30, 2015, Respondent was charged in Maricopa County Superior Court Case No. CR2015-106805-001 with one count of vulnerable adult abuse, a class 4 felony, four counts of possession or use of narcotic drugs, class 4 felonies, and one count of theft, a class 1 misdemeanor. CONCLUSIONS OF LAW The Board has jurisdiction to consider disciplinary proceedings against Respondent’s registered nurse license.[5] This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). The Complaint and Notice of 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.[6] The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s registered nurse license.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] The Board established that Respondent diverted narcotic medication from at least six patients. The Board also established that it is more likely than not that Respondent abused narcotic and other prescription drugs while she was working at Life Care. The Board also established that Respondent stole from Life Care 26 tablets of Cymbalta that had been prescribed for Patient B and took them to her home. The Board established that Respondent not only diverted Oxycodone from Patient A, but administered a drug that was not prescribed, causing Patient A to suffer physical harm, to fear for her personal safety, and to suffer extreme emotional distress. The Board thereby established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(b), (d), (g), (h), and (j),[9] and as further defined by A.A.C. R4-19-403(1), (2), (7), (8)(a), (8)(b), (9), (16), (17), (18), (19), and (31).[10] Respondent’s numerous acts of unprofessional conduct furnish cause for the Board to discipline her registered nurse license under A.R.S. §§ 32- 1663(D)[11] and 32-1664(N).[12] Respondent’s failure to attend the hearing or to present any evidence in her defense shows that at this time, she cannot be regulated. The Board also has established that the protection of the public health, safety, and welfare required it to summarily suspend Respondent’s license to prevent her from being employed as a registered nurse at the time that it became aware of her unprofessional conduct. RECOMMENDED ORDER In light of Respondent Mary Ann Hoffend’s numerous acts of unprofessional conduct, it is ordered affirming the Board’s order summarily suspending Registered Nurse License No. RN073837. It is further ordered revoking Registered Nurse License No. RN073837 previously issued to Mary Ann Hoffend on the effective date of the final order in this matter. 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, April 18, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See Exhibit 2. [2] See Exhibit 3. [3] See Exhibit 11. [4] Exhibit 11 at 103. [5] See A.R.S. § 32-1664. [6] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] A.R.S. § 32-1601(22) became effective on August 2, 2012, and provides in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: . . . . (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. . . . . (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. [10] A.A.C. R4-19-403 became effective on January 31, 2009, and provides in relevant part as follows: For purposes of A.R.S. § 32-1601(22)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following: 1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice; 2. Intentionally or negligently causing physical or emotional injury; . . . . 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; 9. Failing to take appropriate action to safeguard a patient’s welfare or follow policies and procedures of the nurse’s employer designed to safeguard the patient; . . . . 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; 17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work 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; . . . . 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. [11] A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” [12] A.R.S. § 32-1664(N) provides that “[i]f the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

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