ALJDEC decisions subject to certification as final

18A-1309029-NUR · State Board of Nursing · 2018-10-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2017.[1] APPEARANCES: Diana Kay Tucker appeared, representing herself. Assistant Attorney General Sunita Krishna represented the Arizona Board of Nursing. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ FINDINGS OF FACT[2] 1. The Arizona State Board of Nursing (“Board”) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Arizona Revised Statutes (“A.R.S.”) §§ 32-1606, 32-1663, and 32-1664. 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. §§ 32-1601-1667. 2. Diane Kay Tucker (“Respondent”) holds Board-issued Registered Nurse License No. RN133453 (issued in July of 2005) in the State of Arizona. 3. On or about September 20, 2013, the Board received a complaint from Banner Gateway Medical Center (“Banner”), alleging that Respondent was diverting narcotic medications on or about September 17, 2013, while working as a Registered Nurse (“RN”). 4. Based upon this information, the Board opened an investigation. 5. During the investigation, the Board received a second complaint from Banner on or about December 31, 2013, alleging that Banner had been contacted by the Maricopa Police Department and had been advised that Respondent would not be reporting for work that evening because she had been taken into custody. 6. According to Maricopa Police Department, in Pinal County, AZ, report number [number redacted], on or about December 18, 2013, an officer was dispatched to a Walmart in Pinal County for possible prescription fraud. A pharmacist at Walgreens reported that Respondent had attempted to fill a prescription for 156 Percocet 10-325 Mg tablets dated December 13, 2013.[3] The Pharmacy Manager informed the officer that Walgreens had not filled the prescription and had contacted surrounding pharmacies. The Pharmacy Manager further informed the officer that, after they received the prescription from Respondent, they had run a pharmacy report which showed the same prescription had been filled six times since November 19, 2013. 7. Physician office records documented that Respondent’s last visit to the foot physician had been on November 19, 2013, and that Respondent had not been to their office since that date. 8. Respondent was subsequently arrested on December 18, 2013. She was charged with four counts: One Count, Forgery, possessing forged instrument; One Count, Forgery, offers forged instrument; One Count, Forgery, with written instrument; and One Count, Forgery, possessing forged instrument. 9. On or about April 23, 2014, in Pinal County Superior Court, Arizona, Case Number CR201400838/EDC, Respondent was charged with eight Felonies: (1) two Counts of Fraudulent Schemes and Artifices, a class 2 Felony, for knowingly obtaining and benefit by means of false or fraudulent pretenses, representations, promises, or omissions; and (2) six Counts of Forgery, Class 4 Felonies, for intent to defraud, offering or presenting a forged instrument or one which contains false information, to wit: presented altered prescriptions. Respondent failed to report the charges to the Board within days in violation of statute and rule. 10. On or about June 20, 2014, in the Pinal County Superior Court in Maricopa, AZ, Case Number S1100CR201400838/EDC, Respondent was convicted of Two Counts of Criminal Simulation, Class 6 undesignated Felonies, pursuant to a guilty plea. Respondent failed to report the Felony convictions to the Board within days in violation of statute and rule. 11. On or about January 26, 2016, an Order of Discharge from Probation was signed by the Judge of the Superior Court, finding that Respondent had completed the terms of her probation on January 14, 2016, and ordered the convictions to be designated as Class 1 Misdemeanors. 12. After her December 2013 arrest, on an application for employment to Spectrum Solutions, The River Source, dated September 15, 2014, Respondent made false or misleading statements on a health care related employment application in violation of statute and rule. She falsely checked “NO” to the question: Have you ever been convicted of a crime other than a traffic ticket violation in the past 3 years, despite being convicted of two felonies approximately three months prior to submitting her application.[4] She failed to disclose that she had been previously employed at Banner in or around November 2012 to December 2013.[5] She failed to disclose that she had been previously employed at Maricopa Unified School District in or around July 2012 to December 2012, in violation of statute and rule.[6] Finally, she listed her most recent employment as Paradise Valley Hospital with dates of employment as January 10, 2010, to 2014, despite the fact that Respondent resigned on July 11, 2012.

13. On February 8, 2017, the Board issued an Interim Order, ordering Respondent to obtain a substance abuse evaluation. 14. On March 17, 2017, Respondent underwent an evaluation with Dr. Nicole Lazorwitz, Psy.D. In her report, Dr. Lazorwitz noted that Respondent had reported to both Dr. Lazorwitz and Board staff in 2016-2017 that Respondent was frequently out of state because her father was very ill and that Respondent had told a previous physician that her father passed away in 2012.[7] Dr. Lazorwitz opined that Respondent has a history of significant substance use and inconsistencies in reporting which has negatively impacted her functioning, both criminally and vocationally. Dr. Lazorwitz diagnosed Respondent with a substance use disorder and recommended Respondent obtain chemical dependency treatment, attend AA/NA meetings, attend nurse recovery group meetings, and undergo random drug testing. Dr. Lazorwitz also recommended work restrictions. 15. The Board offered Respondent a referral to its CANDO program; however, Respondent did not agree to the referral indicating to the investigator that she did not believe she had an issue with opiates. 16. The matter was not resolved informally and was forwarded to the Tribunal for administrative hearing. 17. At hearing, Respondent provided narrative that basically followed her written statement in response to the Complaint.[8] Respondent indicated that she had did not believe she needed to report to the Board until after the court matter was completed.[9] 18. At hearing, the Board requested that, on consideration of the evidence and record, the Tribunal recommend probation with stipulated terms that would be consistent with Dr. Lazorwitz’ evaluation. 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). 3. “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). 4. The Board established by a preponderance of the evidence that Respondent engaged in the conduct that was alleged in the Complaint and Notice of Hearing. Respondent presented no credible evidence to dispute the conduct as charged. 5. The charged conduct constitutes unprofessional conduct as defined by A.R.S. § 32-1601(26)(b),[10] A.R.S. § 32- 1601(26)(d),[11] A.R.S. § 32-1601(26)(g),[12] A.R.S. § 32- 1601(26)(h),[13] A.R.S. § 32-1601(26)(j),[14] and A.R.S. § 32- 1601(26)(l),[15] all of which are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664. 6. In light of the risk of potential harm to patients and the public 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)[16] and A.R.S. § 32-1664(N).[17] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board discipline Respondent’s Registered Nurse License No. RN133453 as follows: Board to determine and impose a period of probation with stipulations for chemical dependency treatment, AA/NA attendance, nursing recovery group attendance, random drug screens, and work restrictions. 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, October 4, 2018

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

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

----------------------- [1] Hearing record held open in regard to the court reporter’s transcript, which was the official record of the administrative hearing. Additionally, the Department’s Exhibits 1-12 were admitted to the record as well as Respondent’s Exhibits A-F. [2] Taken primarily from Complaint and Notice of Hearing. [3] The original prescription was written by Dr. Carl Beecroft on November 19, 2013; the prescription presented to Walgreens had been altered to read December 13, 2013. Dr. Beecroft later advised law enforcement that the prescription had been copied onto a paper that was different than the paper his office used to print out prescriptions. [4] At hearing, she indicated she had not recalled answering “no” and that she had not been trying to “hide” anything. [5] At hearing, she indicated that she was embarrassed at having been terminated. [6] At hearing, she indicated that she had only worked there for 6 months and she did not think it was a big deal. [7] This discrepancy was cleared up at hearing, when Respondent explained that, due to how close she was to her godfather, she called her godfather “father” and that it was the godfather who had passed away. [8] Respondent’s Exhibit A. [9] She believed that, based on April 18, 2014 letter from Adult Probation for Pinal County, she did not need to report to the Board. Respondent’s Exhibit B. [10] Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude; conviction by a court of competent jurisdiction or a plea of no contest its conclusive evidence of the commission. See also Arizona Administrative Code (“A.A.C.”) R4-19-403(17), R4-19-403(18), R4-19-403(27), R4-19-403(28)(a), and R4-19-403(29). [11] Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. [12] Willfully or repeatedly violating a provision of this chapter of a rule adopted pursuant to this chapter. [13] Committing an act that deceives, defrauds, or harms the public. [14] Violating a rule adopted by the Board. [15] Failing to self-report a conviction for a felony or undesignated offense within ten days after the conviction. [16] 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. [17] 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 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826