ALJDEC decisions subject to certification as final

18A-1408111-NUR · State Board of Nursing · 2018-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN095841

ISSUED TO:

JENNIE ANN LAHAYE,

RESPONDENT

No. 18A-1408111-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 15, 2018, at 1:00 p.m.; the record was held open until March 2, 2018, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript in making her recommendation.

APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Elizabeth Campbell, Esq., Assistant Attorney General; Jennie Ann LaHaye (“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. 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.

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).

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 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.

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

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. Patient A had been diagnosed with pancreatic Cancer and liver metastatic disease, which Ms. Chambers testified were very painful conditions.

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.” Ms. Chambers stated such a conversation between a nurse and pharmacist would be unusual.

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.

Patient A’s husband told Ms. Dyer that Respondent had removed Patient A’s Vicodin without his permission. 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.

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 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.

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.

After Premier filed a complaint with the Board, it opened an investigation. Respondent filled out an investigative questionnaire that identified only two employers. 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.

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. .

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.

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.

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

The Board has jurisdiction to consider disciplinary proceedings against Respondent’s registered nurse license. 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.

The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s registered nurse license. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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.

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). 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).

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) and 32-1664(N). 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 Jennie Ann LaHaye’s numerous and serious acts of unprofessional conduct, it is ordered affirming the Board’s order summarily suspending Registered Nurse License No. RN095841.

It is further ordered revoking Registered Nurse License No. RN095841 previously issued to Jennie Ann LaHaye 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, March 13, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing