FINACT17A-1412043-NUR.pdf

17A-1412043-NUR · State Board of Nursing · 2017-04-19

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) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: November 21, 2016

RE: Miguel Menendez Docket No. 17A-1412043-NUR ______________________________________________________________________________

On November 18, 2016, the Board considered the Administrative Law Judge

Decision (“ALJ Decision”), which recommended that the Board Revoke Registered Nurse

License No. RN184986, issued to Miguel Menendez.

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 REGISTERED NURSE LICENSE NO. RN184986 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER NO. 17A-1412043-NUR MIGUEL MENENDEZ, RESPONDENT

A hearing was held before Thomas Shedden, Administrative Law Judge (“ALJ”), at 1400 West Washington Suite 101, Phoenix Arizona, on October 7, 2016. Sunita A. Krishna, Assistant Attorney

General, appeared on behalf of the State. Miguel Menendez (“Respondent”) was not present and was

not represented by counsel. On November 9, 2016, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On November 18, 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 ("Board") is the authority for licensing and

regulating the practice of nursing in the State of Arizona.

2. Respondent Miguel Menendez holds registered nurse license number RN184986, which had been summarily suspended prior to the hearing. 3. On September 2, 2016, the Board issued a Complaint and Notice of Hearing setting the

above-captioned matter for hearing at 1:00 p.m. October 7, 2016, at the Office of Administrative

Hearings in Phoenix, Arizona.

4. Mr. Menendez did not appear at the scheduled time and the matter was convened in his absence at about 1:20 p.m. 5. The Board presented the testimony of Mark Stemwedel, RN, an RN supervisor at Honor

Health's Thompson Peak emergency room, and nurse practice consultant Stephanie Chambers, RN.

6. In early December 2014, Mr. Menendez was working for Concentric Healthcare Solutions as a contract nurse at Honor Health where Mr. Stemwedel was his supervisor. 7. Mr. Menendez's behavior had given Mr. Stemwedel cause for concern for reasons

including that he would pull medicine from more than one Pyxis and there were concerns about

discrepancies in the Pyxis. 8. In addition, Mr. Menendez had been observed to take frequent, long trips to the restroom that had caused Honor's doctors to believe that there was an issue. Mr. Menendez had at times failed to notify another nurse that he was leaving the floor as required.

9. On December 6, 2014, Honor found a discrepancy related to Propofol, Benadryl, and

Lidocaine in which Mr. Menendez's name was associated with the "pulls." 10. After Mr. Menendez had signed off, he was found to have a partially used vial of Propofol on his person. 1 In addition, he acknowledged that a second vial he had checked out was near

his computer. That vial was actually pushed back behind the computer monitor where it was not visible.

11. When asked about the Propofol, Mr. Menendez exhibited jittery and nervous behavior that in Mr. Stemwedel's opinion was indicative of someone who was using drugs. Mr. Stemwedel was of the opinion that Mr. Menendez was mainlining or shooting-up the Propofol.

12. On or about December 7, 2014, Honor filed with the Board a complaint showing that

Mr. Menendez had been terminated for diverting substances.

Propofol is a narcotic.

13. Honor's complaint showed that on December 6, 2014, Mr. Menendez had entered into a patient's chart that 200 m/g Propofol had been administered, whereas the doctor's note shows that only m/g was. The doctor's notes are generally considered to be more reliable because she administered

the drug. Moreover, in this instance, it is reasonable to conclude that the partially used vial of Propofol

that Mr. Menendez had on his person accounted for the 120 m/g difference. 14. Standard of care calls for unused Propofol to be wasted in the presence of a second nurse. Ms. Chambers' opinion was that Mr. Menendez had violated the standard of care by removing

from the Pyxis Propofol that was not used, wasted, or returned.

15. Mr. Menendez violated Concentric's Employee Ethics Agreement in that he diverted medications while at Honor. 16. Diversion of medication creates a public safety concern because the medication administration record will not coincide with the amount removed from Pyxis. This creates a situation

whereby other care-providers will not know how much medication a patient actually received.

17. In December 2014 and January 2015, the Board sent to Mr. Menendez letters requesting that he respond to the complaint from Honor and that he answer a Board questionnaire. 18. These requests were returned to the Board as undeliverable and Mr. Menendez never

responded to the Board or returned the questionnaire.

19. In June 2016, the Board received a second complaint in that Mr. Menendez's Florida nursing license had been summarily suspended on June 8, 2016. 20. On June 16, 2016, the Board sent Mr. Menendez an email and a letter informing him of

the new complaint and a requesting that he complete a Board questionnaire about the matter.

21. Mr. Menendez never responded to these communications and he did not return the questionnaire.

22. On June 16, 2016, Ms. Chambers called Mr. Menendez at his mobile phone of record. The call was answered, but when she asked if she had Mr. Menendez, the other party hung up. She called again, but no one answered.

23. The Board had admitted into evidence an Order and other documentation from the

Florida Department of Health related to its summary suspension of Mr. Menendez's license. These documents show that Mr. Menendez: a. Had tested positive for Propofol;

b. Had been found bleeding and unconscious while on duty;

c. Had admitted that he had diverted Propofol and Citicoline, which he had injected intravenously with the intent of committing suicide; d. Had acknowledged that he struggles with depression; e. Had acknowledged using crack cocaine and that he had overdosed on

Propofol in the past;

f. Had tested positive for amphetamine. 24. In Florida, Mr. Menendez was evaluated by both a psychiatrist and a neuropsychologist who concluded that Mr. Menendez makes numerous errors in judgment, that is impulse control and

judgment are impaired, and that he has very little insight into his problems and how he creates them.

25. Florida's medical evaluations show that Mr. Menendez's diagnoses include: a. Other stimulant dependence with stimulant-induced mood disorder; b. Current manic symptoms with severe and active use of amphetamine;

c. Poisoning by other antiepileptic and sedative-hypnotic drugs;

d. Intentional self-harm; e. Bipolar disorder, unspecified;

f. Personality disorder, unspecified. 26. Mr. Menendez was also considered to have a severe substance use disorder. 27. Florida Department of Health found that Mr. Menendez was not capable of practicing

nursing with reasonable skill and safety to patients due to his concurrent manic symptoms, active

chemical dependence, cognitive limitations, and severe character pathology symptoms, and that he was not safe to administer or to have access to drugs because of these problems. 28. Florida Department of Health suspended Mr. Menendez's license and ordered that he not

be allowed to practice until its impaired practitioner program determined that he was safe to practice.

29. As of June 7, 2016, Mr. Menendez was not participating in any treatment through Florida's impaired practitioner program. 30. Ms. Chambers' opinion was that Mr. Menendez cannot be regulated and that his license should be revoked.

CONCLUSIONS OF LAW

1. The Board bears the burden of persuasion. ARIZ. REV. STAT. § 41-1092.07(G)(2).

2. The standard of proof on all issues is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK'S LAW DICTIONARY 1373 (10th ed. 2014).

4. The preponderance of the evidence shows that Mr. Menendez engaged in conduct that is, or might be, harmful or dangerous to the health of a patient or the public, which constitutes unprofessional conduct under ARIZ. REV. STAT. section 32-1601(24)(d). 2

5. The preponderance of the evidence shows that Mr. Menendez is physically unsafe to a

degree that is or might be harmful or dangerous to the health of a patient or the public, which is unprofessional conduct under ARIZ. REV. STAT. section 32-1601(24)(e). 6. The preponderance of the evidence shows that Florida Department of Health has

suspended Mr. Menendez's license in that state, which constitutes unprofessional conduct under ARIZ.

REV. STAT. section 32-1601(24)(f). 7. The preponderance of the evidence shows that Mr. Menendez has falsified a patient record pertaining to obtaining, possessing, or administering any controlled substance, which is a violation of ARIZ. ADMIN. CODE section R4-19-403(8)(b) and unprofessional conduct under ARIZ.

REV. STAT. sections 32-1601(24)(d) and (j).

8. The preponderance of the evidence shows that Mr. Menendez has failed to follow his employer's policies and procedures designed to safeguard the patient, which is a violation of ARIZ. ADMIN. CODE section R4-19-403(9) and unprofessional conduct under ARIZ. REV. STAT. sections

32-1601(24)(d) and(j).

9. The preponderance of the evidence shows that Mr. Menendez diverted narcotics and controlled substances from a health care facility, which is a violation of ARIZ. ADMIN. CODE section R4-19-403(16) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601(24)(d) and (j).

10. The preponderance of the evidence shows that Mr. Menendez has a pattern of using and

being under the influence of drugs to the extent that his judgment may be impaired and nursing practice

The current versions of the applicable statutes are cited; the definitions of unprofessional conduct were previously found in ARIZ. REV. STAT. section 32-1601(22).

detrimentally affected, and that he was under the influence of drugs while on duty at health care facilities, which is a violation of ARIZ. ADMIN. CODE section R4-19-403(17) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601(24)(d) and (j).

11. The preponderance of the evidence shows that Mr. Menendez failed to furnish the Board

with an explanation of the complaints filed against him, which is a violation of ARIZ. ADMIN. CODE section R4-19-403(25) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601(24)(d) and (J).

12. The preponderance of the evidence shows that Mr. Menendez did not notify the Board

that his mailing address had changed as required by ARIZ. ADMIN. CODE section R4-19-308. 13. The Board also alleges that Mr. Menendez violated ARIZ. ADMIN. CODE section R4- 19-403(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."). The Board has not proven this allegation by a

preponderance of the evidence because it presented no evidence of wrong-doing that is not included

within the statutes and rules previously cited. 14. Because Mr. Menendez has committed unprofessional conduct, the Board has authority to revoke his registered nurse license. ARIZ. REV. STAT. §§ 32-1663 and 32- 1664.

15. Considering the facts and circumstances of this matter, it is recommended that Mr.

Menendez's registered nurse license number RN184986 be revoked. 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 registered nurse license number

RN184986 issued to Miguel Menendez.

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 DATED this 18th day of November, 2016. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 21st day of November, 2016, by Certified Mail No. [account number redacted] 7770 and First Class Mail to:

Miguel Menendez 1815 E Speedway Blvd #106 Tucson, AZ 85719 COPIES of the foregoing mailed this 21st day of November, 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