FINACT18A-1511023-NUR.pdf

18A-1511023-NUR · State Board of Nursing · 2017-11-20

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 17, 2017

RE: Tonya Melissa Otto Docket No. 18A-1511023-NUR ______________________________________________________________________________

On November 17, 2017, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Revoke Tonya Melissa Otto’s Privilege to Practice Nursing in Arizona under the Nurse Licensure Compact.

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 THE PRIVILEGE TO PRACTICE NURSING UNDER THE NURSE FINDINGS OF FACT, LICENSURE COMPACT IN THE STATE OF CONCLUSIONS OF LAW ARIZONA ISSUED TO: AND ORDER NO. 18A-1511023-NUR TONYA MELISSA OTTO, RESPONDENT (Iowa) NURSE LICENSE NO. RN 113120

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

Washington Suite 101, Phoenix Arizona, on September 22, 2017. Elizabeth Campbell, Assistant

Attorney General, appeared on behalf of the State. Tonya Melissa Otto (“Respondent”) was not present and was not represented by counsel. On October 25, 2017, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On November 17, 2017, 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 Tonya Melissa Otto holds registered nurse license number RN 113120 issued by the State of Iowa. Ms. Otto had been granted authority to practice in Arizona based on the

Nurse Licensure Compact, ARIZ. REV. STAT. sections§§ 32-23 1668 and 32-1669.

3. Ms. Otto's authority to practice in Arizona was summarily suspended prior to the hearing.

4. On August 11, 2017, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. September 22, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

5. Ms. Otto did not appear at the scheduled hearing time and the matter was convened in

her absence at about 1:20 p.m. 6. The Board presented the testimony of Beth Erickson, a nurse who was Ms. Otto's landlady and roommate between August 2015 and February 2016, Marcy Milbrandt, RN, Banner

University South Campus's emergency department's nurse manager, and Ruth Kish RN, a Board nurse

practice consultant. 7. On November 11, 2015, Carondelet Health Network - St. Joseph's Hospital filed a Complaint with the Board regarding Ms. Otto. The complaint shows that on October 23, 2015, during a pre-employment drug screen Ms. Otto tested positive for morphine, benzodiazepines, and oxycodone

(Percocet).

8. Ms. Otto had disclosed to Carondelet that she had prescriptions for the benzodiazepines and Percocet, but not the morphine. Ms. Otto did however have a prescription for morphine. 9. In her Carondelet application, Ms. Otto also failed to disclose that she had several

criminal convictions and she answered "no" to a question asking whether she had ever been convicted

of any offense other than a traffic violation. 10. Carondelet rescinded Ms. Otto's position based on the results of its background check. 11. Ms. Erickson testified that during the time she lived with Ms. Otto, Ms. Otto displayed

signs of impairment: she would nod off during conversations, frequently sleep on the couch, and was

not reusable.

12. When Ms. Otto moved out of Ms. Erickson's house, Ms. Erickson found an empty vial of herperin and one of Ativan. In addition, Ms. Otto's area of the house was full of trash and dog feces and urine.

13. On April 6, 2016, Ms. Milbrandt was the supervisor at Banner University's emergency

department night shift when she received report that Ms. Otto was acting "funny." 14. Ms. Otto fell asleep while talking to Ms. Milbrandt and she needed to be nudged to awaken. Ms. Milbrandt gave Ms. Otto a chance to rouse herself, but over the course of about twenty

minutes Ms. Otto did not fully did so. The house supervisor had another nurse sent to cover for Ms.

Otto. 15. While waiting for the manager to arrive, Ms. Milbrandt observed Ms. Otto trying to reset her computer password when Ms. Otto fell asleep with her finger on a key, which caused the character to go off the screen.

16. In the early morning of April 7th a for-cause drug screen was conducted; Ms. Otto was

positive for morphine, oxycodone, and oxymorphone. Ms. Otto had prescriptions for these narcotics. 17. On April 21, 2016, Banner referred Ms. Otto for a fitness-for-duty examination. At that time Ms. Otto was being prescribed Percocet, morphine sulfate, Soma, and clonazepam. Soma is a

muscle relaxant that potentiates the narcotics.

18. Ms. Otto was cleared to return to work, but with a restriction that she not perform any safety-sensitive duties. Patient care is a safety-sensitive duty. 19. On April 24, 2016, several people reported that Ms. Otto was asleep at her desk or

lethargic. Ms. Otto again tested positive for narcotics.

20. On May 18, 2016, Ms. Otto underwent a second fitness-for-duty examination. In that examination, Ms. Otto acknowledged that she had used Percocet before going to work on April 24,

2016. Ms. Otto further reported that on April 22, 2016, she had consumed a large amount of alcohol and injured herself in fall; she went to the emergency department where she was prescribed Percocet. 21. At the time of the May 18, 2016 examination, Ms. Otto's medication list included

Percocet, morphine, Depakote, clonazepam, Citalopram, and Adderall.

22. At the time of the May 18, 2016 examination, Ms. Otto was found to be unfit for duty. 23. On June 5, 2016, Ms. Otto was found to be fit to return to duty at Banner, but she was not allowed to engage in patient care or in other safety-sensitive positions.

24. The Board sent Ms. Otto a Questionnaire related to the Carondelet complainant dated

December 28, 2015. Ms. Otto did not respond to the Questionnaire. Board investigator Susan Bushong sent Ms. Otto a follow-up letter dated April 5, 2016, and a second Questionnaire dated June 15, 2016. As of the hearing date, Ms. Otto had not responded to either Questionnaire. 25. On November 8, 2016, Ms. Otto sent Ms. Bushong an email in which Ms. Otto reported

that she had not taken narcotics for several months and that she had never had any patient care issues.

26. Ms. Otto's Controlled Substances Prescription Monitoring Report shows a gap between August and December 2016 when she did not receive any prescriptions for narcotics. In December she received a prescription for the narcotic Vicodin and she was receiving prescriptions for

benzodiazepines.

27. A medical record dated July 6, 2015, shows that Ms. Otto had a history of bipolar disorder. 28. The Board has authority to take adverse action related to Ms. Otto's privilege to practice

in Arizona. ARIZ. REV. STAT. § 32-1668, Articles II(H), III(B) and V(C), and § 32-1669.

29. The preponderance of the evidence shows that Ms. Otto 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(26)(d). 1

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 Ms. Otto may be physically unsafe to a degree 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 (26)( e ).

5. The preponderance of the evidence shows that Ms. Otto engaged in pattern of using or

being under the influence drugs to the extent that her judgment may be impaired and nursing practice detrimentally affected, and that she used drugs while on duty in any health care facility, which is a violation of ARIZ. ADMIN. CODE sections 4-19-403(1) and (17), and is unprofessional conduct under

ARIZ. REV. STAT. sections 32-1601 (26)(d) and ( j).

The current versions of the applicable statutes and rules are cited.

6. The preponderance of the evidence shows that Ms. Otto failed to respond to the Board's Questionnaires, which is a violation of ARIZ. ADMIN. CODE section 4-19-403(25)(a), and is unprofessional conduct under ARIZ. REV. STAT. sections 32-1601 (26)(d) and (j).

7. The preponderance of the evidence shows that Ms. Otto provided false or misleading

statements on a nursing or health care related employment or credential application, which is a violation of ARIZ. ADMIN. CODE section 4-19-403(27) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601 (26)(d) and (j).

8. The Board also alleges that Ms. Otto violated Ariz. Admin. Code 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.

9. Because Ms. Otto has committed unprofessional conduct, the Board has authority to

revoke her authority to practice nursing in Arizona. See ARIZ. REV. STAT. §§ 32-1663 and 32-1664. 10. Considering the facts and circumstances of this matter, it is recommended that Ms. Otto's privilege to practice nursing in Arizona 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(O), the Board REVOKES Tonya Otto’s Privilege to Practice

Nursing in Arizona based on the Nurse Licensure Compact. 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 privilege pursuant to A.A.C. R4-19-404 after a period of five years. DATED this 17th day of November, 2017.

ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 17th day of November, 2017, by Certified Mail No. [account number redacted] 1250 and First Class Mail to: Tonya Melissa Otto 306 2ND ST ST SW Buffalo Center, IA 50424 Respondent COPIES mailed this 17th day of November, 2017, by Certified Mail No. [account number redacted] 1267 and First Class Mail to: Tonya Melissa Otto 8110 E. Speedway Blvd. # 3231 Tucson, AZ 85710 Respondent

COPIES of the foregoing mailed this 17th day of November, 2017, to:

Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 85007

By: T. Smith