FINACT18A-1408111-NUR.pdf

18A-1408111-NUR · State Board of Nursing · 2018-03-27

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 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: March 27, 2018

RE: Jennie Ann LaHaye Docket No. 18A-1408111-NUR ______________________________________________________________________________

On March 23, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke RN095841 issued to Jennie Ann LaHaye.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN095841 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER JENNIE ANN LAHAYE, NO. 18A-1408111-NUR RESPONDENT.

A hearing was held before Diane Mihalsky, Administrative Law Judge (“ALJ”), at 1400 West

Washington Suite 101, Phoenix Arizona, on February 15, 2018. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Jennie Ann LaHaye (“Respondent”) was not present and was not represented by counsel.

On March 13, 2018, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On March 23, 2018, 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

BACKGROUND AND PROCEDURE 1. 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.

2. Respondent holds Board-issued Registered Nurse License No. RN095841. 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.

3. On or about January 30, 2018, the Board issued a Complaint and Notice of Hearing that set a hearing on February 15, 2018, at 1:00 p.m. The Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(26)(d),

32-1601(26)(h), and 32-1601(26)(j), for conduct occurring before August 9, 2017, A.R.S. §§ 32-

1601(24)(d), 32-1601(24)(h), and 32-1601(24)(j), and for conduct occurring before July 1, 2016, A.R.S. §§ 32-1601(22)(d), 32-1601(22)(h), and 32-1601(22)(j). For purposes of A.R.S. §§ 32- 1601(26)(d), 32-1601(24)(d), or 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(9), R4-19-403(16), R4-19-403(18), and R4-19- 403(31). 4. The Board sent the Complaint and Notice of Hearing to Respondent at her last known address of record by first-class and certified mail. 5. A hearing was held on February 15, 2018. The Board submitted six exhibits and

presented the testimony of Todd Armstrong, the Administrator at Sante of North Scottsdale (“Sante”),

and the Board’s Nurse Consultant Stephanie Chambers, RN. 6. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the duly noticed hearing did not conclude for over an hour and twenty minutes,

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

7. On March 8, 2016, while working as a home health nurse for Premier Hospice in

Phoenix, Arizona (“Premier”), Respondent removed Vicodin (Hydrocodone- Acetaminophen, a narcotic pain medication and controlled substance) from Patient A’s house without authorization and

without accounting for the medication, leaving Patient A without medication to relieve her pain. 1 Patient A had been diagnosed with pancreatic Cancer and liver metastatic disease, which Ms. Chambers testified were very painful conditions.

8. Respondent’s note for Patient A for March 8, 2016, stated “No pain medications ordered

at this time but I did speak with pharmacist at one point . . . and he states Dilaudid would be the best choice for pain management with patient due to liver involvement.” 2 Ms. Chambers stated such a conversation between a nurse and pharmacist would be unusual.

9. On March 9, 2016, Patient A’s husband called Premier, distraught, because Patient A

was in pain and he had no pain medication to give her. Ursula Dyer, RN, went to the house and found Patient A’s husband to be overwhelmed. Patient A.’s husband stated that he had called 911. Patient A’s physician authorized Dilaudid, which Patient A’s husband administered to her after it was delivered. 10. Patient A’s husband told Ms. Dyer that Respondent had removed Patient A’s Vicodin

without his permission.3 Ms. Chambers testified that like Dilaudid, Vicodin is an opioid. Premier’s

policy required its home health care employees to have family members witness their waste of medications. Ms. Chambers noted that Respondent did not document destruction of Patient A’s pain medication. Patient A’s husband told Ms. Dyer that Respondent said because Patient A did not need

pain medication, she would take it with her.

11. Premier investigated Patient A’s husband’s complaint. During the investigation, Respondent stated that she had destroyed the medication. Respondent’s supervisor, Diana J. Brown, RN, MS, asked Respondent if the patient’s family had witnessed the destruction, and Respondent said

they had not. Premier required Respondent to undergo a urine drug screen that day, and she stated that

See Exhibit 2. Exhibit 2 at 6. Exhibit 6 at 91.

she had a dentist appointment. Respondent later stated that she had gone to the drug screening facility, but because there were two people there, she left to go to her dentist appointment. 12. On March 10, 2016, at approximately 9:30 a.m., Respondent underwent a drug screen,

which was positive for benzodiazepines, Oxycodone, and opiates. The Medical Review Officer

determined that the test was positive for Morphine, an opiate. Respondent did not provide valid prescriptions for the drugs. After receiving the results of the drug screen, Premier terminated Respondent’s employment. 4

13. After Premier filed a complaint with the Board, it opened an investigation. Respondent

filled out an investigative questionnaire that identified only two employers. 5 However, the Board determined that Respondent had at least thirteen employers between November 2011, and October 2017. The Board issued subpoenas for Respondent’s employment records and learned that Respondent had been involuntarily terminated from at least three of her last thirteen employers, including Premier. 6

14. On December 12, 2017, while employed by All-Stat Staffing Services and on duty as an

RN at Sante, a skilled nursing facility, another nurse observed Respondent to be placing medications in her personal bag. 15. The Scottsdale Police Department (“SPD”) was called. After SPD officers arrived,

Respondent admitted to taking patient medications for her own use. When SPD officers searched

Respondent’s bag, they found patient medications, most with Sante patient labels and patient names. The patient medications removed by Respondent included significant amounts of the prescription medications Methocabamol (muscle relaxer), Cyclobenzaprine (muscle relaxer), and Gabapentin (anti-

seizure medication also used for pain), which are all drugs of potential abuse misuse. 7

Exhibit 2 at 12-13. Exhibit 3. Exhibit 6 at 85. Exhibit 5.

16. On December 12, 2017, after SPD officers were called to Sante to investigate Respondent’s theft of patient medications, they also found in her bag an aspirin bottle containing loose pills, that were later determined to be Oxycodone, Lorazepam, and Tramadol, which are all opiates and

controlled substances.

17. Mr. Chambers testified that Respondent did not produce any prescriptions for the medications found in her bag. Ms. Chambers testified that the Board obtained a Controlled Substance Prescription Monitoring Report for Respondent from the Arizona Board of Pharmacy, which showed

that Respondent did not have a valid prescription for any of the controlled substances found in her bag.

CONCLUSIONS OF LAW 1. The Board has jurisdiction to consider disciplinary proceedings against Respondent’s registered nurse license. 8 This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(B)(10).

2. 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. 9 3. The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s registered nurse license. 10 “A preponderance of the evidence is such

proof as convinces the trier of fact that the contention is more probably true than not.” 11

4. The Board also established that Respondent stole from Patient A and from patients at Sante various opioids and controlled substances. She also had in her possession controlled substances for which she did not have valid prescriptions.

See A.R.S. § 32-1664. See A.R.S. §§ 41-1092.04; 41-1092.05(D). 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). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).

5. The Board thereby established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22), (24), or (26)(d), (h), and (j). 12 For purposes of A.R.S. §§ 32- 1601(22)(d), (24)(d), or (26)(d), the Board established that Respondent committed unprofessional

conduct as further defined by A.A.C. R4-19- 403(1), (9), (16), (18), and (31). 13

A.R.S. § 32-1601(26) became effective on August 9, 2017, and provides in relevant part as follows:

"Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: .... (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. .... (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 For conduct occurring before August 9, 2017, A.R.S. § 32-1601(24)(d), (h), and (j), which became effective on July 1, 2016, have identical language to the 2017 statute. For conduct occurring before July 1, 2016, A.R.S. § 32-1601(22)(d), (h), and (j), which became effective on August 2, 2012, have identical language to the 2017 statute. 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; .... 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; .... 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.

6. 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) 14 and 32- 1664(N). 15 Respondent’s failure to attend the hearing or to present any evidence in her defense shows that at this time, she cannot

be regulated.

7. 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.

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 RN095841 issued to Jennie Ann LaHaye. 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, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, 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

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.” 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.”

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 23rd day of March, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 26th day of March, 2018, by First Class Mail and Certified Mail No. [account number redacted] 7811 to:

Jennie Ann LaHaye 13413 N. 35th Avenue, #2071B Phoenix, AZ 85029 Respondent COPIES mailed this 26th day of March, 2018, by First Class Mail and Certified Mail No. [account number redacted] 7828 to: Jennie LaHaye 2902 W. Sweetwater, Apt. 3036 Phoenix, AZ 85029.

COPIES of the foregoing mailed this 26th day of March, 2018, to: Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007 Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith