FINACT18A-1701086-NURpdf

18A-1701086-NUR · State Board of Nursing · 2019-03-28

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 28, 2019

RE: Christopher Klaus Niemerg Docket No. 18A-1701086-NUR ______________________________________________________________________________

On March 22, 2019, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke the Undeclared Nursing Assistant Certificate no. UCNA1000019428, issued to Christopher Klaus Niemerg.

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 THE [LNA EQUIVALENT] UNDECLARED CERTIFIED FINDINGS OF FACT, NURSING ASSISTANT CERTIFICATE NO. CONCLUSIONS OF LAW UCNA1000019428 ISSUED TO: AND ORDER NO. 18A-1701086-NUR CHRISTOPHER KLAUS NIEMERG, RESPONDENT A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on February 4, 2019. Elizabeth Campbell,

Assistant Attorney General, appeared on behalf of the State. Christopher Klaus Niemerg,

(“Respondent”) appeared in person on his own behalf. On March 11, 2019, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On March 22, 2019, 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) has the authority to regulate and control the

practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the

Arizona Revised Statutes. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601-1667. 2. Christopher Klaus Niemerg (Respondent) held Board-issued nursing assistant license

number UCNA1000019428 in the State of Arizona, which expired on May 31, 2018.

3. On or about January 9, 2017, while employed as a nursing assistant with Good Samaritan Society in Peoria, Arizona, Respondent was selected to undergo a random urine drug screen. Respondent’s screen was positive for marijuana.

4. On or about January 23, 2017, Good Samaritan Society reported to the Board that

Respondent had tested positive for marijuana. The Board initiated an investigation. 5. On or about January 25, 2017, Respondent’s employment with Good Samaritan Society was terminated after he failed to attend an employee assistance program session and was unresponsive

to telephone calls from Good Samaritan Society.

6. On or about February 28, 2017, Board staff mailed Respondent an investigative questionnaire with the direction to complete and return the questionnaire by March 28, 2017. Respondent did not complete and return the questionnaire. 7. On or about April 5, 2017, Board staff mailed Respondent an investigative questionnaire

with the direction to complete and return the questionnaire within two weeks. Respondent did not

complete and return the questionnaire. 8. On or about June 5, 2017, Board staff emailed Respondent regarding the matter and requested that he submit the questionnaire by June 15, 2017. Respondent did not respond.

9. On or about December 7, 2018, the Board issued a Complaint and Notice of Hearing,

alleging that cause existed to discipline Respondent’s certified nursing assistant certificate under A.R.S. § 32-1601(26)(d) and (j) 1 (2017) 2 and A.A.C. R4-19-814(19) and (25)(c). 3

A.R.S. § 32-1601(26)(d) and (j) (2016) defined “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” 2 For conduct occurring before August 9, 2017, A.R.S. § 32-1601(24) (with language identical to the 2017 statute) applies. This decision will reference only the 2017 version of the statute for simplicity. A.A.C. R4-19-403 provides “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:” 19. Obtaining, possessing, using, or selling any narcotic, controlled substance, or illegal

10. On or about December 8, 2017, the Board received a letter from Respondent in which he stated that he was introduced to a topical pain relieving cream in November 2016 that he knew contained CBD components, but was unaware contained 300 mg of THC.

11. The Board referred the matter to the Office of Administrative Hearings (the OAH), an

independent agency, for an evidentiary hearing to convene on February 4, 2019. 12. At the hearing, Peter B. Wittenberg, Senior Investigator with the Board, testified regarding the Board’s investigation in this matter. Mr. Wittenberg testified that Respondent’s urine

drug screen was sent to the Medical Review Officer for verification. According to the Medical Review

Officer’s report, Respondent’s urine drug screen tested positive for THC at 781 ng/mL. Mr. Wittenberg testified that that such a result was a high level and indicated multiple and frequent use leading up to the positive result. Mr. Wittenberg stated that according to one medical article, very few studies had been done regarding the use of topical cannabis products, but the limited available data suggested that

most topical cannabis available in the forms of lotions, creams, and oils do not absorb well

systemically. That is they may help with inflammation and pain at a local level, but systemic absorption was likely negligible. Mr. Wittenberg also testified that Respondent would have needed a prescription to obtain a topical cream containing THC.

13. At the hearing, Respondent testified that had previously had a serious car accident and

experienced ongoing pain from the injuries. Respondent indicated that he became dependent on opiates, but obtained a medical marijuana card. Respondent acknowledged that his medical marijuana card expired a year prior to the urine drug screen at issue. Respondent indicated that he had been using a

CBD ointment to treat his pain that he was unaware had THC in it. Respondent stated that did not

drug in violation of any employer policy or any federal or state law; .... 25. Failing to cooperate with the Board during an investigation by: .... c. Not completing and returning a Board-issued questionnaire within 30 days.

participate in Good Samaritan Society’s employee assistance program because he did not have a drug problem. Respondent acknowledged that he did not respond to the communications from the Board. CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

2. The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the

contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1120 (8th ed. 2004).

4. The Board established by a preponderance of the evidence that Respondent engaged in

the conduct alleged in the Complaint and Notice of Hearing. 5. In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction

against Respondent’s license under A.R.S. § 32-1663(D) 4 and A.R.S. § 32-1664(N). 5

ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order:

4 A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license

Pursuant to A.R.S. § 32-1664(O), the Board REVOKES [LNA Equivalent] nursing assistant license number UCNA1000019428 issued to CHRISTOPHER KLAUS NIEMERG. 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. Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C). 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 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 said certificate/nursing assistant license

pursuant to A.A.C. R4-19-815 after a period of five years.

DATED this 22nd day of March, 2019. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 28th day of March, 2019, by First Class Mail and Certified Mail No.[account number redacted] 9161 to:

Christopher Klaus Niemerg 7779 W Myrtle Ave Glendale, AZ 85303

COPIES of the foregoing mailed this 28th day of March, 2019, 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