ALJDEC decisions subject to certification as final
18A-1511023-NUR · State Board of Nursing · 2017-10-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF THE PRIVILEGE TO PRACTICE NURSING UNDER THE NURSE LICENSURE COMPACT IN THE STATE OF ARIZONA ISSUED TO:
TONYA MELISSA OTTO,
RESPONDENT
(Iowa RN113120)
No. 18A-1511023-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 22, 2017
APPEARANCES: No one appeared for Respondent; Elizabeth Campbell, Esq. for the Board of Nursing
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.
Respondent Tonya Melissa Otto holds registered nurse license number RN113120 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 §§ 32-1668 and 32-1669.
Ms. Otto’s authority to practice in Arizona was summarily suspended prior to the hearing.
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.
Ms. Otto did not appear at the scheduled hearing time and the matter was convened in her absence at about 1:20 p.m.
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.
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).
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.
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.
Carondelet rescinded Ms. Otto’s position based on the results of its background check.
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 rousable.
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.
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.”
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.
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.
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.
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.
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.
On April 24, 2016, several people reported that Ms. Otto was asleep at her desk or lethargic. Ms. Otto again tested positive for narcotics.
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.
At the time of the May 18, 2016 examination, Ms. Otto’s medication list included Percocet, morphine, Depakote, clonazepam, Citalopram, and Adderall.
At the time of the May 18, 2016 examination, Ms. Otto was found to be unfit for duty.
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.
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.
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.
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.
A medical record dated July 6, 2015, shows that Ms. Otto had a history of bipolar disorder.
CONCLUSIONS OF LAW
The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).
The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
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).
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.
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).
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).
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 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).
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).
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.
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.
Considering the facts and circumstances of this matter, it is recommended that Ms. Otto’s privilege to practice nursing in Arizona be revoked.
RECOMMENDED ORDER
IT IS ORDERED that Tonya Melissa Otto’s privilege to practice nursing in Arizona is revoked.
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 25, 2017
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing