ALJDEC decisions subject to certification as final

18A-1701086-NUR · State Board of Nursing · 2019-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2019, with the record held open until February 19, 2019. APPEARANCES: Respondent Christopher Klaus Niemerg appeared on his own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ 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] 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 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 § 5 (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] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke nursing assistant license number UCNA1000019428 previously issued to Respondent Christopher Klaus Niemerg. 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 11, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] 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. [3] 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 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. [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. [5] 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.

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