FINACT18A-1701031-NUR.pdf

18A-1701031-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: Loyd Jamell Sinclair Docket No. 18A-1701031-NUR ______________________________________________________________________________

On November 17, 2017, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which affirmed the Summary Suspension of license number, RN073666, issued to Loyd Jamell Sinclair.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety with minor correct to Conclusion of Law No. 5.

In Conclusion of Law No. 5 on page 12, the citation to A.R.S. § 32-1601(22)(j) be corrected to A.R.S. § 32-1601(24)(j). Conclusion of Law No. 5 states: “[The Findings of Fact] establish that Respondent committed unprofessional conduct as defined by Ariz. Rev. Stat. section 32- 1601(24)(d), (e), (h); 32-1601(22)(j); and A.A.C. R4-19-403(2), (9), and (31).

A.R.S. § 32-1601(22)(j) and A.R.S. § 32-1601(24)(j) contain identical language stating that it is an act of unprofessional conduct to violate a Board rule. However, A.R.S. § 32- 1601(24)(j), effective July 1, 2016, was the number of the statute in effect at the time of the conduct alleged in the Complaint and Notice of Hearing.

In addition to the minor change in the Conclusions of Law, based upon the Findings of Fact and the Conclusion of Law No. 5, the Board imposed a disciplinary order to include a 24- month stayed suspension/probation ARIZONA STATE BOARD OF NURSING 4747 North 7th Street, Ste 200 Phoenix, Arizona 85014-3655 602-771-7800

IN THE MATTER OF THE REGISTERED FINDINGS OF FACT, NURSE LICENSE NO. RN073666 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 18A-1701031-NUR LOYD JAMELL SINCLAIR “RESPONDENT”

A hearing was held before Velva Moses-Thompson, Administrative Law Judge (“ALJ”), at

1400 West Washington Suite 101, Phoenix Arizona, on September 11, 2017, September 12, 2017, and September 13, 2017. Elizabeth A. Campbell, Assistant Attorney General, appeared on behalf of the State. Loyd Jamell Sinclair (“Respondent”) appeared in person represented by Teressa M. Sanzio,

Attorney at Law.

On October 23, 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.

FINDING OF FACT 1. The Arizona State Board of Nursing ("Board") issued Registered Nurse License No. RN073666 to Respondent Loyd Jamell Sinclair ("Mr. Sinclair"). 2. Mr. Sinclair has been a nurse for approximately 30 years.

3. On or about January 3, 2017, Mr. Sinclair was on duty as a Registered Nurse ("RN") at

Banner University Medical Center - South, located in Tucson, AZ ("Banner"). During his shift, Mr. Sinclair was asked to assist other nurses in the room of Patient L.G. ("Patient"). There were at least two other nurses in Patient's room.

4. Patient was diagnosed with HIV and Hepatitis C. Patient was also suffered from with schizophrenia, bipolar depression and borderline personality disorder. 5. Mr. Sinclair entered Patient's room and began assisting another nurse with securing a

restraint on Patient's left arm. At the time, Patient was lying flat on her back in the bed. While Mr.

Sinclair was assisting the nurse, Patient looked at Mr. Sinclair and began raising up her torso. As she raised up, Patient told Mr. Sinclair that she was going to spit on him. Patient began coughing up spit in her throat and at the time that she began to release the spit, Mr. Sinclair placed his hand over

Patient's mouth, pushed her back onto the bed, and turned Patient's head to the side. Mr. Sinclair

leaned on Patient as he turned her head to the side. 6. At the time that Mr. Sinclair placed his hands over Patient's mouth, Patient spit on Mr. Sinclair's hand. 7. Mr. Sinclair removed his hand and stood back up. Mr. Sinclair pointed his finger at

Patient and told her that he would not allow her to spit on him or anyone else.

8. At the time that Patient lifted off the bed prior to spitting, Patient's left hand was locked in a restraint. However, the restraint was not tightened. 9. Mr. Sinclair informed his Supervisor later that day that Patient attempted to spit on him

and the other nurses, and he held her down to prevent it. Patient told his Supervisor that Patient spit in

his hand. 10. In 2017, Mr. Sinclair was terminated from his position as an RN at Banner. Mr. Sinclair worked for Banner hospital for approximately six years.

11. On or about January 6, 2017, the Board received a complaint from Banner that Sinclair

used excessive force against Patient when attempting to readjust Patient's restraints. 12. The Board assigned Stephanie Chambers to investigate the complaint.

13. In May of 2017, Ms. Chambers presented the findings from her investigation to the Board. Ms. Chambers did not inform the Board that Patient was diagnosed with HIV and Hepatitis C. 14. On May 18, 2017, the Board issued an Interim Order requiring that Mr. Sinclair submit

to an anger management/impulse control evaluation to be completed by a board psychologist.

15. On June 22, 2017, Emily T. Bashah, Psy.D. conducted an independent evaluation of Mr. Sinclair for anger management and an impulse control assessment in her office. 16. On July 12, 2017, Dr. Bashah issued a report regarding her evaluation and concluded

that Mr. Sinclair suffered from Post-Traumatic Stress Disorder (PTSD) and made recommendations

for treatment. 17. The Board received Dr. Bashah's report decided to summarily suspend Mr. Sinclair's RN license. 18. Mr. Sinclair filed a timely appeal to the summary suspension.

19. The matter was referred to the Office of Administrative Hearings for an evidentiary

hearing. 20. At hearing, the Board presented the testimony of Valerie Alexander, RN, Emily T. Bashah, Psy.D, Stephanie Chambers, RN, and submitted exhibits 1 through Mr. Sinclair testified on

his own behalf and presented the testimony of also presented the testimony of Mario Penia, RN, Ray

Lemberg, Ph.D., and submitted exhibits A through G. 21. Stephanie Chambers is a surgical nurse and has worked for 29 years in acute facilities. Ms. Chambers testified that if a patient threatens to spit, the nurse should move away or use a towel to

block the spit. Ms. Chambers also stated that a nurse should use a spit guard to protect themselves

from making direct contact with the spit. 22. Ms. Chambers testified that she watched the video of the incident that took place on

January 3, 2017. Ms. Chambers stated that Mr. Sinclair was not wearing gloves when he made physical contact with Patient. Ms. Chambers testified that Mr. Sinclair placed his hand directly over Patient's mouth and came in direct contact with mucus membranes and blood. Ms. Chambers testified

that while Mr. Sinclair's hands were covering Patient's mouth, he had Patient's face pressed down on

the mat. Ms. Chambers stated that Patient's face becomes blanch due to the lack of blood circulation. 23. Ms. Chambers testified that she observed Mr. Sinclair point at Patient after he stood back up. Ms. Chambers testified that Mr. Sinclair's act of pointing at Patient was inappropriate

because a nurse should not engage with the patient while the patient is in restraints, especially if the

nurse knows that the patient is a spitter. 24. Ms. Chambers testified that Mr. Sinclair's conduct was not standard practice because he should have got a towel, stepped back and refrained from placing his body weight on Patient's mouth. Ms. Chambers testified that because Patient was already in restraints, Mr. Sinclair should have used

the least amount of force needed.

25. Ms. Chambers testified that other than the January 3, 2017 incident, she was not aware of any incident where Mr. Sinclair engaged in unprofessional conduct other than an incident in 2012 at Banner. In 2012, the Director of Nursing at Banner completed a corrective action form and

required that Mr. Sinclair resolve issues related to was required to take corrective action related to

unprofessional conduct in his role as a nurse. According to the report, Mr. Sinclair failed to maintain a good hold on a patient while transporting the patient from the dining room to the seclusion room. 26. Valerie Alexander is an RN at Banner. Ms. Alexander was Mr. Sinclair's RN nurse

manager in the adult acute patient unit on the night of the incident. Ms. Alexander testified that

Patient was in a closed unit that served people who were actively experiencing symptoms of their mental illness. Ms. Alexander stated that Patient was put in the seclusion room because Patient had

assaulted a physician and started banging her head which led to her being placed in four point restraints. 27. Ms. Alexander testified that Mr. Sinclair told her about the incident shortly after it

occurred. Ms. Alexander stated that Mr. Sinclair told her that Patient had been abusive toward him.

Ms. Alexander testified that Mr. Sinclair told her that he had an accidental contact with Patients' mouth and caused blood on her lip due to her attempt to spit. Ms. Alexander stated that Mr. Sinclair told her that he tried to block the spit, but lost his balance and went forward.

28. Ms. Alexander stated that she has watched a videotape of the incident several times.

Ms. Alexander stated that the video tape does not have sound. Ms. Alexander testified that Mr. Sinclair never appeared to lose his balance. Ms. Alexander stated that when Mr. Sinclair reported the event to her, he was adamant about his position that he would not allow Patient to spit on him. 29. Ms. Alexander testified that according to Banner Policies Blood Borne Pathogen

Exposure Control Plan, gloves are to be worn at all times when a patient is in seclusion in restrains.

Ms. Alexander testified that Mr. Sinclair was not wearing gloves in Patient's room. 30. Ms. Alexander testified that it appeared that Mr. Sinclair was retaliating because placing one's hand over a patents mouth is not a part of the Banner restraint policy. Ms. Alexander

testified that the nurses are trained in performing specific holds and the hold that Mr. Sinclair used

was not a hold that the nurses used. Ms. Alexander also testified that Patient's spit would have presented an exposure to HIV. 31. Dr. Emily T. Bashah, Psy. D. testified that she conducts forensic evaluations for the

Board. Dr. Bashah stated that the board must approve her as an independent evaluator. Dr. Bashah

testified that she has completed 10-12 evaluations for the Board as a licensed psychologist. Dr. Bashah testified that most were substance abuse evaluations and about half of the evaluations were

performed to assess anger management or impulse control. 32. Dr. Bashah testified that the Board requested that she conduct a forensic evaluation of Mr. Sinclair. Dr. Bashah testified that she administered two exams to Mr. Sinclair. Dr. Bashah

conducted an independent evaluation and an MPPl-2RF. Dr. Bashah testified that while she was

conducting her examination, Mr. Sinclair was came physically close to her as he reenacted the events of January 3, 2017. Dr. Bashah concluded that Mr. Sinclair suffers from PTSD and recommended follow up treatment. Dr. Bashah's forensic evaluation provides, in relevant part as follows: 1

DSM-5 Diagnostic Formulation and Summary:

The observations, test results and reported history suggest that Mr. Sinclair likely meets criteria for Posttraumatic Stress Disorder, although his insight into current symptoms appear limited. As indicated above, he appeared to learn to suppress his emotions from childhood to cope with the extensive violence, victimization and abuse he experienced. It is important to note that the experiences during the Vietnam War and working in the underground mine were also traumatic. He acknowledged that he would benefit from psychological services at the Southern Arizona Veterans Affairs Health Care System in Tucson but was hesitant to personally endorse specific symptoms of Posttraumatic Stress Disorder. It appears likely that he learned to suppress reactions and trauma responses in order to cope and adapt with everyday life demands but when he is triggered, he is likely to become over-activated emotionally and behaviorally unrestrained. It is likely that his paranoid/persecutory ideations, impulse control problems, emotional instability and poor interpersonal boundary maintenance are all related to his history of exposure to violence, racial persecution, war trauma, intimate partner abuse. As such, these contribute to a constellation of symptoms of an undiagnosed and untreated Posttraumatic Stress Disorder.

DSM-5 Diagnostic Impression: Posttraumatic Stress Disorder

Treatment Recommendations: The following recommendations me included for Mr. Sinclair in light of evaluation findings: 1) Individual psychotherapy to assist Mr. Sinclair in improving his mental, emotional, behavioral and interpersonal functioning. It is also See Exhibit 7, pages 9-10.

recommended that Mr. Sinclair foster healing from the extensive and compounded traumas and losses he endured throughout his lifetime. He would benefit from learning adaptive coping skills to limit suppression of emotional and thought disturbances. Mr. Sinclair would benefit from skills training in interpersonal boundaries, impulse control, and emotional awareness and developing insight into his own thoughts, action urges and internal experiences. It is recommended that he work with a therapist who is culturally competent in working with wax veterans and with African American individuals. Weekly individual therapy is recommended for a minimum of twelve sessions, then decreased to once every other week, for a total duration of one year, for maximum and maintained benefit. 2) Group therapy would be beneficial for Mr. Sinclair to help normalize his experiences of trauma, grief and loss and to learn skills, such as anger management, through psychoeducational groups (also offered through the Veterans Affairs.) 3) Assessment results suggest that Mr. Sinclair poses a risk to patients at present as he remains untreated for trauma, displays poor interpersonal insight into boundaries, with limited impulse control and emotional reactivity. It is cautioned that he continues to pose a risk, especially among patients or situations that may trigger him. As such, it is recommended that he currently be restricted from working in direct patient care and especially among vulnerable or unstable populations. 4) A re-evaluation of Mr. Sinclair's treatment progress, that includes his mental, emotional, behavioral and interpersonal boundary functioning, may be beneficial at approximately one year and re-evaluate conditions of work restrictions (if imposed by the Board).

33. Ray Lemberg, Ph.D. testified that he is a clinical psychologist and has been licensed for

40 years. Mr. Lemberg testified that in the last 10 years he has been an expert witness in civil and criminal cases. Mr. Lemberg testified that he has received training in MMPl-2RF. Mr. Lemberg testified that he was first trainee with MMPl-2RF in graduate school and took his latest course about

6-7 years ago. Mr. Lemberg testified that he has taken training for PTSD through the years and he

conducts private PTSD assessments for the Veterans Administration. 34. Dr. Lemberg testified that he reviewed Dr. Bashah's evaluation and raw data. Dr.

Lemberg testified that on September 4, 2017, he met with Mr. Sinclair for about an hour and a quarter. Dr. Lemberg testified that he conducted a mental status exam a fill-in-the-gap psychological history, asked about Mr. Sinclair's PTSD symptoms and why Mr. Sinclair answered true or false on

the MPPl-2RF. Dr. Lemberg testified that he did not administer the MPPl-2RF himself. Dr. Lemberg

testified that he conducted no additional testing other than a PTSD self-endorsement screen. 35. Dr. Lemberg testified that Dr. Bashah failed to administer a full battery test. Mr. Lemberg testified that he conducted an evaluation of Mr. Sinclair in a coffee shop in Tucson, AZ.

36. Mr. Lemberg opined that Mr. Sinclair does not suffer from PTSD and believed that Dr.

Bashah does not have enough experience to properly administer and interpret the MMPl-2RF. Additionally, Dr. Lemberg opined that even if Mr. Sinclair were diagnosed with PTSD, it would take a "leap of faith" to infer that he would be a danger to himself or others. See Exhibit G, page 4. Dr. Lemberg's evaluation provides, in relevant part, as follows: 2

EXAMINER'S CONCLUSIONS

* * * * 10. Recent statistics indicate that approximately 94% of veterans deployed in a war zone will not commit violence toward others. Most of the violent acts toward others, involved domestic violence. However, over the past 15 years, civilian suicides increased by 23%, while veteran suicides increased by 23%, while veteran suicides increased by 32%.

11. If PTSD were to trigger aggression toward others, it is most likelywould be by a combat veteran who has a "fight or flight response" and, although the flight response is more common, i.e. being triggered by a loud noise such as a firecracker or a vehicle backfiring resulting in going for cove, versus a fight response, i.e., aggression. Mr. Sinclair was not a combat veteran and has not had any history of violence.

SUMMARY [Mr. Sinclair] is a 64-year-old male whose license as an RN was suspended based on Dr. Bashah’s See Exhibit G, pages 4-5.

reporting that he has PTSD and poses a danger to others. It is this psychologist's opinion that Mr. Sinclair does not suffer from PTSD, and even if he did, the conclusion that he is a danger toward other would be erroneous. Additionally, the methods upon which Dr. Bashah's conclusions were developed were flawed insofar as she based them largely on one psychological instrument, i.e., the MMPl- 2RF, which is not critically analyzed and was misinterpreted.

The Arizona State Board of Nursing has concluded that Mr. Sinclair is not mentally competent, which in itself is an erroneous conclusion. Although it appears that mental incompetence is not spelled out by the Board, nevertheless from criminal and civil interpretation of competency, there is a strong suggestion the individual suffers from a mental disability that renders them incapable of managing personal affairs, making important decisions and understanding the consequences of his actions. None of these apply to Mr. Sinclair in this examiner's opinion. It is the opinion of this examiner that Mr. Sinclair does not suffer from a psychiatric disorder and therefore does not need psychological or psychiatric treatment. In Mr. Sinclair's 30 year history as a registered nurse, he has no personal or professional history of aggression, violence or inappropriate conduct. Hopefully, the Administrative Law Judge in this case will consider that Mr. Sinclair is competent as a nurse, mentally competent, safe to perform his duties, and that his license will be reinstated.

37. Mr. Sinclair presented the testimony of Mario Pena. Mr. Pena testified that he has

known Mr. Sinclair for the last 6 years. Mr. Pena stated that he has been a RN for 7 years and worked in the psychiatric unit at Banner on the date of the January 3, 2017 incident. Mr. Pena testified that he resigned from Banner to do a grant proposal related to multiple sclerosis. Mr. Pena stated that he worked with Mr. Sinclair 50% of the time. Mr. Pena state that he knows Patient and has cared for her

many times. Mr. Pena stated that Patient frequently goes into seclusion. Mr. Pena testified Banner

didnot have a policy of refraining from talking to Patients while they are in restraints. Mr. Pena testified that Mr. Sinclair is a team player. Mr. Pena testified that Mr. Sinclair is respectful and uses strategies to help calm patients. Mr. Pena testified that he has never seen Mr. Sinclair be physical

aggressive or get into a verbal confrontation.

38. Mr. Pena stated that he has never seen Mr. Sinclair take statements personally. Mr. Pena testified that assertiveness is required when working in the psychiatric unit. Mr. Pena testified that he has never seen Mr. Sinclair fighting anyone at work. Mr. Pena testified that there are no spit

guards in the seclusion room. Mr. Pena testified that he would have reacted the same way that Mr.

Sinclair reacted in the same situation. Mr. Pena stated that spitting is considered a physical assault and if youdo not react, people get hurt. Mr. Pena testified that the new director at Banner came in and changed policies and it was unclear when to use your hands on a patient. Mr. Pena stated that the new

changes happened in January of 2017. Mr. Pena testified that he believes that the least amount of

force should be used. 39. Mr. Sinclair testified that he has been a RN for 30 years. Mr. Sinclair testified that at the time of the incident, he lost his balance. Mr. Sinclair stated that he simply wanted to block the spit. Mr. Sinclair testified that he was not originally attempting to cover Patient's mouth. However,

Mr. Sinclair stated that he believed that Patient's left hand was unlocked.

40. Mr. Sinclair testified that Patient did not use a racial slur. Mr. Sinclair testified that he wanted to block the spit because Patient was HIV Positive and had been diagnosed with Hepatitis C. 41. Mr. Sinclair testified that he did not wear gloves because he believed that he was going

into Patient's room to readjust the restraints. Mr. Sinclair testified that he did not anticipate that

Patient would try to spit on him. Mr. Sinclair testified that he learned after the incident that Patient had been spitting at a nurse by the name of Catherine. However, Mr. Sinclair testified that Catherine did not tell anyone.

42. Mr. Sinclair testified that a hearing would not have been necessary if the video had

sound. Mr. Sinclair state that everyone would have heard Patient state "I will spit on you" and how Patient coughed up the spit from deep within her throat.

43. Mr. Sinclair testified that when he pointed his finger at Patient, he was telling her that he would not allow Patient to spit on him or any of the other staff. 44. Mr. Sinclair testified that Patient spit in his hand but that she did not break his skin. Mr.

Sinclair testified that he did not tell Ms. Alexander anything about blood but he did tell Ms.

Alexander that Patient spit in his hand. 45. Mr. Sinclair testified that he did not walk away from Patient or distance himself because the events happened so fast that he just reacted. Mr. Sinclair testified that there were no

towels in the room and no spit guards. Mr. Sinclair also testified that he never told Dr. Bashah that

Patient "breaked his skin". 46. Mr. Sinclair also provided testimony about the 2012 incident. Mr. Sinclair testified that he did not use excessive force. Mr. Sinclair testified that he was attempting to remove Patient from the lunch room at a time that she was unwilling to leave voluntarily.

47. Mr. Sinclair testified that he does not believe that his childhood experiences were

traumas. Mr. Sinclair testified that he still sees his ex-wife because he visits with the grandchildren. Mr. Sinclair testified that it does not trigger any of the negative events of his past. Mr. Sinclair testified that he believes that he "broke the chains" of abuse. Mr. Sinclair testified that his daughters

were never abused and he never abused his daughters.

48. Mr. Sinclair testified that he never stood close to Ms. Bashah during the evaluation. Mr. Sinclair testified that he demonstrated the incident in her office so that she could understand the events that occurred.

49. Mr. Sinclair testified that when he feels low, he spends time with his grandchildren. Mr.

Sinclair testified that a Veterans Administration doctor stated that he did not have PTSD. Mr. Sinclair testified that he never saw blood in Patient's mouth.

50. The Board contended that the hold used by Mr. Sinclair was not a taught hold. The Board contended that Ms. Chambers testified that excessive force can be seen by the wrinkles on the bed as Mr. Sinclair holds down Patient. The Board contended that Mr. Sinclair's words to Patient

were not therapeutic. The Board argued that Mr. Pena could not tell how much force was being used.

The Board contended that Ms. Alexander stated Mr. Sinclair appeared to be irritated. 51. The Board contended that Dr. Bashah testified that during the evaluation, Mr. Sinclair was activated and close to her face. The Board contended that Dr. Bashah testified that Mr. Sinclair has

learned to suppress his emotions and at some point that catches up with you. The Board argued that

Dr. Bashah's video was not based on the MMPl-2RF alone but also on the video. Based upon Dr. Bashah's training and experience, she concluded that Mr. Sinclair is not safe to practice. The Board contended that Dr. Lemberg did not conduct a clinical interview and did not request a detailed interview. Furthermore, the Board contended that Dr. Lemberg did not watch the video of the incident

and conducted the interview in a public place.

52. The Board contended that based upon the video and testimony, Mr. Sinclair stepped forward when he should have stepped back. The Board argued that that the video and the testimony show that Mr. Sinclair used excessive force when he placed his hand over Patient's face and pushed

her head on to the bed. The Board contended that Mr. Sinclair did not wear gloves and that there was

blood on Patient's mouth after the incident and the pressure on her face shows that she was harmed. 53. Mr. Sinclair contended that at the time that the Board summarily suspended Mr. Sinclair's license, there was no imminent threat to the public because it waited 6 months after the

incident to suspend Mr. Sinclair. Mr. Sinclair contended that Dr. Bashah is inexperienced and that she

failed to analyze critical questions and did not use a PTSD scale.

CONCLUSIONS OF LAW 1. This matter lies within the Board's jurisdiction under ARIZ. REV. STAT. § 32- 1606(A)(8).

2. The Board bears the burden of persuasion to establish cause to penalize Mr. Sinclair's

registered nurse license. ARIZ. REV. STAT. § 41-1092.07(G)(2); 3. The Board bears the burden of proof and must establish cause to penalize Respondent's privilege to practice nursing in Arizona by a preponderance of the evidence. See A.R.S. § 41-

1092.07(G)(2); A.AC. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 ARIZ. 369,

372, 249 P.2d 837 (1952). 4. 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). 5. The facts, as set forth previously, establish that Respondent committed unprofessional conduct as defined by ARIZ. REV. STAT. section 32-1601(24)(d), (e), (h); 32-1601(24)(j); and

A.A.C. R4-19-403(2), (9), (31 ).

6. Because Respondent has committed unprofessional conduct, the Board has authority to suspend his license to practice nursing in Arizona. ARIZ. REV. STAT. § 32-1663(A), (D); and § 32- 1664(O).

7. Considering the facts and circumstances of this matter, it is recommended that the order

summarily suspending Respondent Loyd Sinclair's RN be affirmed.

ORDER In view of the above Findings of Fact and Conclusions of Law, and pursuant to A.R.S. § 32- 1664(O), the Board issues the following Order:

A. Respondent’s registered nurse license number RN073666 issued to Loyd Jamell Sinclair

is hereby suspended. However, the suspension is stayed for as long as Respondent remains in compliance with this Order. During the stay of the suspension, Respondent’s registered nurse license will be placed on at minimum, twenty-four months of Stayed Suspension Probation with terms and

conditions as set forth herein. Prior to termination of probation, Respondent shall work as a nurse for a

minimum of twenty-four months, not less than sixteen hours a week. B. If Respondent is non-compliant with any of the terms of the Order during the Stayed Suspension period, the stay of Suspension shall be lifted and Respondent’s license shall be automatically suspended for a minimum of twenty-four months. Except as provided in the paragraph

entitled Performance Evaluation/Self-Reports, the Board or its designee, in its sole discretion, shall

determine non-compliance with the stayed portion of the Order. C. If a complaint is filed against Respondent during any period of this Order, the Board shall have continuing jurisdiction until the matter is final, and the Order may be extended until the

matter is final.

D. While this Order is in effect and/or Respondent’s license is subject to discipline, up to and including revocation or voluntary surrender, Respondent is not eligible to renew any other expired license or certificate previously held by Respondent without prior review and approval by the Board.

E. At any time Respondent is required by terms of the Order to provide a copy of the Order

to another individual or facility Respondent must provide all pages of the Order, and to include the attachments/exhibits, if any.

F. If Respondent is convicted of a felony, Respondent’s license shall be automatically revoked, and Respondent may not apply for reissuance for a minimum period of 5 years. G. The stayed revocation is subject to the following terms and conditions:

TERMS OF STAYED SUSPENSION/PROBATION 1. License on Probation

While this Order is in effect, any license or certificate that Respondent presents to any

employer or other member of the public shall be clearly marked “Probation.” 2. Psychological Counseling and Treatment Within thirty days of the effective date of this Order, Respondent shall submit for Board

approval, the name of a licensed psychologist who has expertise working with individuals with impulse

control and post-traumatic stress disorder (PTSD). Within 30 days of the Board’s approval, Respondent shall begin individual therapy. Prior to the initial appointment, Respondent shall provide a copy of the entire Board Order, and a copy of the psychological evaluation completed by Dr. Bashah,

Psy.D. to the treating psychologist. Respondent shall execute the appropriate release of information

form(s) to allow the treating psychologist to communicate information to the Board or its designee. Within seven days of the beginning of treatment, Respondent shall cause the treating psychologist to provide written verification of enrollment in treatment and verifying receipt of the Board Order and Dr.

Bashah’s report and evaluation. Thereafter, Respondent shall cause the treating psychologist to provide

quarterly reports to the Board. The reports are due as noted on the Quarterly Reporting Due Date form. Respondent shall continue undergoing treatment until the treating psychologist notifies the Board, in writing on letterhead, that treatment is no longer needed. The Board reserves the right to amend the Order based on recommendation(s) of treating psychologist.

3. Group Psycho-Educational Counseling and Treatment Within thirty days of the effective date of this Order, Respondent shall submit to the Board for approval the name of a treatment professional of Respondent’s choice, who is at minimum

Masters’ prepared and has expertise in trauma, grief and loss, to conduct psycho-educational group

therapy sessions with Respondent focusing on coping skills, including anger management. Respondent shall execute the appropriate release of information form(s) to allow the treating therapist to communicate information to the Board or its designee. Within seven days of receipt of approval

from the Board or designee, Respondent shall make an appointment to begin participation in group

psycho-educational sessions. Within seven days of the beginning of treatment, Respondent shall cause the treatment professional(s) to provide written verification of enrollment in treatment and verifying receipt of this Board Order and a copy of the psychological evaluation completed by Dr. Bashah, Psy.D.. Thereafter, Respondent shall cause the treatment professional(s) to provide quarterly reports to

the Board. The reports are due as noted on the Quarterly Reporting Due Date form. Respondent shall

attend psycho-educational group therapy sessions at least once monthly and until the treatment professional(s) notifies the Board, in writing on letterhead, that treatment is no longer needed. The Board reserves the right to amend this Order based upon the recommendation(s) of the treatment

professional(s).

4. Psychological Re-Evaluation Twelve months after the effective date of Stayed Suspension Probation portion of this Order, Respondent shall make an appointment to undergo a psychological re-evaluation by a Board-

approved licensed psychologist. The psychological evaluation must include an assessment of

Respondent’s mental, emotional, behavioral and interpersonal boundary functioning. Respondent shall execute the appropriate release of information form(s) to allow the evaluator to communicate

information to the Board or its designee. Prior to the evaluation, Respondent shall furnish a copy of this Board Order and a copy of the evaluation completed by Dr. Bashah, Psy.D. to the evaluator, who shall verify receipt of the documents in a written report on letterhead to the Board. Respondent

consents to the Board providing the evaluator with any other documents deemed pertinent by the Board

or its designee, which may include the Board’s investigative report. Respondent shall direct the evaluator to provide a written report to the Board summarizing Respondent’s mental, emotional, behavioral and interpersonal boundary functioning and any resulting recommendations within thirty

days after the evaluation is completed

Respondent shall comply with treatment recommendations, if any, resulting from the evaluation. Respondent shall, within seven days of notification of the recommendation(s), provide to the Board or its designee for prior approval, the name and qualifications of treatment professional(s) with appropriate level of expertise of Respondent’s choice. Upon approval of the treatment

professional(s), Respondent shall provide a copy of the entire Board Order and the psychological

evaluation completed by Dr. Bashah, Psy.D. which the treatment professional(s) shall verify in writing on letterhead in their first report to the Board. Respondent shall undergo and continue treatment until the treatment professional(s) determines and reports to the Board in writing and on letterhead, that

treatment is no longer considered necessary. Respondent shall cause the treatment professional(s) to

provide written reports to the Board every three months. The reports are due as noted on the Quarterly Reporting Due Date form. The Board reserves the right to amend this Order based on the evaluation results or the treatment professional’s recommendations.

5. Notification of Practice Settings

Any setting in which Respondent accepts employment that requires nursing licensure shall be provided with a copy of the entire Order on or before the date of hire. Within 3 days of

Respondent’s date of hire, Respondent shall cause Respondent’s immediate supervisor to inform the Board, in writing and on employer letterhead, acknowledgment of the supervisor’s receipt of a copy of this Order and the employer’s ability to comply with the conditions of probation.

6. Practice Under Direct Supervision

Respondent shall practice as a nurse only under the direct supervision of a registered nurse in good standing with the Board. Direct supervision is defined as having a registered nurse present on the same unit with Respondent whenever Respondent is practicing nursing. The supervising

nurse shall have read this Order to include the Findings of Fact and Conclusions of Law, and Order,

and shall provide input on Respondent’s performance evaluations to the Board. The supervising nurse shall be primarily one person, who may periodically delegate to other qualified personnel, who shall also have read this Order to include Findings of Fact, Conclusions of Law. In the event that the assigned supervising nurse is no longer responsible for the supervision required by this paragraph,

within 7 days of the assignment of a new supervising nurse, Respondent shall cause licensee’s new

supervising nurse to inform the Board, in writing and on employer letterhead, acknowledgment of the new supervisor’s receipt of a copy of this Order to include the Findings of Fact and Conclusions of Law and the new supervising nurse’s agreement to comply with the conditions of probation.

7. Acceptable Hours of Work

Respondent may work any shift. Within a 14-day period Respondent shall not work more than 84 scheduled hours. Respondent may work three 12-hour shifts in one 7-day period and four 12-hour shifts in the other 7- day period, but Respondent may not work more than 3 consecutive 12-hour shifts during this

probationary period. Respondent shall not work two consecutive 8 hour shifts within a 24 hour period

or be scheduled to work sixteen hours within a 24 hour period.

8. Work Prohibited Respondent may not work for a nurse’s registry, home health, traveling nurse agency, any other temporary employing agencies, float pool, or position in which the above supervision

requirements are unable to be maintained.

9. Performance Evaluation/Self-Reports Within 30 days of returning to nursing practice, and monthly for at minimum the first

twelve months of nursing practice, Respondent shall cause every employer Respondent has worked for

to submit to the Board, in writing, monthly performance evaluations on the Board-approved form and completed by his direct supervisor. In the event Respondent is not employed during any month or portion thereof, Respondent shall submit to the Board, in writing, a self-report describing other employment or activities on the Board-approved form. After the initial twelve months of nursing

practice and contingent upon the findings of a psychological re-evaluation supporting less frequent

reporting and written notification from the Board’s designee, Respondent shall cause every employer Respondent has worked for to submit to the Board, in writing, quarterly performance evaluations on the Board-approved form and completed by his direct supervisor. The reports are due as noted on the

Reporting Due Date form.

Receipt of confirmation of employment disciplinary action, including written counseling(s), suspension, termination or resignation in lieu of termination from a place of employment, any of which pertains to improper patient care, improper conduct with family member(s)

of patient, unsafe practice, inappropriate medication removal or administration, sub-standard

documentation, or impairment on duty, positive drug test showing evidence of any drug other than an authorized drug, and/or refusal to submit to an employer requested drug test, shall be investigated by Board staff and reviewed and substantiated by the Board’s designee. If so investigated, reviewed and

substantiated, the employment disciplinary action shall be constitute noncompliance with the terms of the Order, and the stay of Suspension shall be lifted and Respondent’s license automatically suspended for at minimum, twenty-four months. If Respondent contests the lifting of the stay as it relates to

this paragraph, Respondent shall request in writing, within 10 business days of being notified of

the automatic suspension of licensure, that the matter be placed on the Board agenda for the Board to review and determine if the automatic suspension of Respondent’s license was supported by substantial evidence. If the written request is received within 10 business days of a

regularly scheduled Board meeting, the request will NOT be heard at that meeting, but will be

heard at the NEXT regularly scheduled Board meeting. Pending the Board’s review, Respondent’s license shall be reported as suspended – under review. Respondent may not work in any capacity involving nursing licensure pending the Board’s review. The Board’s decision and Order shall not be subject to further review.

Failure to provide employer evaluations or if not working in nursing, self-reports, within

seven days of the reporting date is non-compliance with this Order and is not subject to further review. 10. Renewal of License In the event the nursing license is scheduled to expire during the duration of this Order,

Respondent shall apply for renewal of the nursing license and pay the applicable fee before the

expiration date. Failure to renew a license by the last date in which the license is to expire, shall constitute non-compliance with this Order. 11. Release of Information Forms

Respondent shall sign all release of information forms as required by the Board or its

designee and return them to the Board within 10 days of the Board’s written request. Failure to provide for the release of information, as required by this paragraph constitutes noncompliance with this Order.

12. Interview with the Board or its Designee Respondent shall appear in person or, if residing out of state, telephonically for interviews with the Board or its designee upon request and with notice of at least 2 days.

13. Change of Employment/Personal Address/Telephone Number

Respondent shall notify the Board, in writing, within 7 days of any change in nursing employment. Changes in nursing employment includes, but is not limited to, a change in nursing supervisor, the acceptance, resignation or termination of employment.

Respondent shall notify the Board, in writing, within 7 days of any change in personal

address or telephone number. Written notification shall be satisfied if Respondent updates his address through the Board’s secure online “My Services” portal. 14. Obey All Laws Respondent shall obey all laws/rules governing the practice of nursing in this state and

obey all federal, state and local criminal laws. Respondent shall report to the Board, within 10 days,

any misdemeanor or felony arrest, citation, or charge. Additionally, Respondent shall notify the Board of any felony or undesignated offense conviction within 10 days of the conviction.

15. Costs

Respondent shall bear all costs of complying with this Order. 16. Voluntary Surrender of License

Respondent may, at any time this Order is in effect, voluntarily request surrender of his

license. 17. Violation of Order If Respondent is non-compliant with any of the terms of the Order during the Stayed

Suspension period, the stay of Suspension shall be lifted and Respondent’s license shall be

automatically suspended for a minimum of twenty-four months. Except as provided in the paragraph entitled Performance Evaluation/Self-Reports, the Board or its designee, in its sole discretion, shall determine non-compliance with the stayed portion of the Order.

If a complaint is filed against Respondent while this Order is in effect, the Board shall

have continuing jurisdiction until the matter is final, and the Order shall be extended until the matter is final. 18. Out of State Practice/Residence

While this Order is in effect, and prior to accepting any out-of-state nursing

practice/employment, Respondent shall notify the licensing/certification Board of the State(s) in which Respondent seeks to practice as a nurse of this Order and shall obtain written permission from the licensing/certification Board(s) to practice as a nurse in another State. Respondent shall direct the licensing Board of the other State(s) to submit written authorization to the Board verifying Respondent

is approved to practice nursing in that State. Once written verification is received by the Board,

Respondent may submit a written request to the Board requesting an amendment to the Order to permit Respondent to fulfill the terms and conditions of this Order in that State. 19. Completion of Probation

Respondent is not eligible for early termination of this Order. Upon successful

completion of the terms of the Order, Respondent shall request formal review by the Board, and after formal review by the Board, Respondent’s nursing license may be fully restored by the appropriate Board action if compliance with this Order has been demonstrated.

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 thirty (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 thirty (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. DATED this 17th day of November. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES e-mailed and mailed this 17th day of November 2017 by Certified Mail No. [account number redacted] 1557 to:

Teressa M. Sanzio Law Office of Teressa M. Sanzio, P.C. 428 E. Thunderbird Rd., #238 Phoenix, AZ 85022 [email redacted] Attorney for Respondent AND COPIES mailed this 17th day of November 2017 by First Class Mail to: Loyd Jamell Sinclair 16005 W. Ravinia HCR 1BOX 481 Tucson, AZ 85736 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

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

Elizabeth Campbell Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 8500

By: T. Smith