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18A-1711005-NUR-RES · State Board of Nursing · 2018-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED No. 14A-1204037-NUR-RES NURSE LICENSE NO. RN162082 ISSUED TO: ADMINISTRATIVE LAW JUDGE DECISION EZEKIEL TOLU OPUROKU, RESPONDENT.

HEARING: April 19, 2018 APPEARANCES: Respondent Ezekiel Tolu Opuroku did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. The Arizona State Board of Nursing (“the 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. Ezekiel Tolu Opuroku (Respondent) holds Board-issued Registered Nurse License No. RN162082 in the State of Arizona, which was first issued in February 2010. Respondent was previously licensed as a practical nurse with the Board from 2001 until 2007. 3. On February 28, 2018, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 A.R.S. § 32-1601(26)(a), (d), (g), (i), and (j);1 A.R.S. § 32-3208(A) and (D);2 and A.A.C. R4-19-403(17), (18), and (20).3 The Complaint and Notice of Hearing was sent via certified mail to Respondent at his address of record. 4. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on April 19, 2018. 5. The Board submitted 12 exhibits and presented the testimony of Kathleen Harrington, Nurse Practice Consultant with the Board.

1 A.R.S. § 32-1601(24) defines “unprofessional conduct” to include, in pertinent part, as follows: (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. .... (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. .... (g) Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. .... (i) Failing to comply with a stipulated agreement, consent agreement or board order. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. A.R.S. § 32-3208 provides, in pertinent part, as follows:

A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. .... D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of not more than one thousand dollars in addition to other disciplinary action it takes. A.A.C. R4-19-403 (17), (18), and (20) defines “unprofessional conduct” to include, respectively, 17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location; 18. Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices; .... 20. Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate[.] 6. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his registered nurse license. HEARING EVIDENCE 7. On March 20, 2006, Respondent entered into Consent Agreement and Order No. 0401095 based upon conduct and circumstances including a 2004 drug test that was positive for marijuana (the 2006 Consent Agreement). The 2006 Consent Agreement placed Respondent’s LPN license on probation and required, among other things, that Respondent participate in treatment. 8. Respondent failed to comply with the treatment provisions of the 2006 Consent Agreement. In addition, Board staff learned that Respondent had failed to disclose a 2005 driving under the influence incident where Respondent tested positive for alcohol and marijuana. 9. On January 24, 2007, Respondent entered into Consent Agreement and Order No. 06A-0604128-NUR, which included an initial period of suspension followed by a probationary period (the 2007 Consent Agreement). In May 2007, the Board revoked Respondent’s practical nurse license for failure to comply with the 2007 Consent Agreement. 10. In February 2010, Respondent’s application for licensure as a registered nurse was granted pursuant to Consent Agreement and Order No. 0905139 (the 2010 Consent Agreement). By the terms of the 2010 Consent Agreement, the license was revoked, but the revocation was stayed for as long as Respondent was in compliance with the 2010 Consent Agreement. Respondent’s license was placed on probation for 12 months with terms and conditions followed by 12 months of standard probation. Before the 2010 Consent Agreement terminated, Respondent was required to work as a registered nurse for a minimum of 24 months working at least 16 hours per week. 11. The 2010 Consent Agreement provided Respondent was to abstain from the use of alcohol and drugs, submit to drug testing, remain enrolled in a drug testing program, and participate in an interview with the Board upon request. Further, Respondent was to have his immediate supervisor inform the Board, in writing, that the supervisor had received a copy of the 2010 Consent Agreement and to have his employer submit quarterly employer evaluations. Abstain from the Use of Alcohol and Drugs 12. Just after midnight on June 25, 2010, Phoenix Police responded to the scene of a collision accident. Respondent, who had run a red light, displayed signs and symptoms of impairment. Respondent’s blood test was positive for marijuana and alcohol at a concentration of 0.237. 13. On August 27, 2010, in Phoenix, Arizona Municipal Court, Case No. [number redacted], Respondent was charges with four counts of driving under the influence (DUI). 14. On October 18, 2010, another count for driving with a drug or drug metabolite in the body was added. 15. On December 7, 2012, Respondent was convicted on two counts of driving under the influence. 16. Respondent did not report the DUI charges to the Board. 17. On March 9, 2014, Respondent submitted a renewal application. On the renewal, Respondent denied having any drug or alcohol related convictions since his last renewal. Drug Testing Program 18. By the terms of the 2010 Board Order, Respondent was required to enroll in a program that met the Board’s criteria for random drug testing. 19. On April 16, 2012, Respondent submitted a urine specimen for random drug testing, which was positive for marijuana. Respondent’s urine sample was re-tested on April 18, 2012, and was confirmed positive for marijuana. 20. On June 9, 2014, and October 10, 2014, Respondent submitted urine specimens for random drug testing that were also positive for marijuana. 21. Respondent failed to submit to drug testing on October 25, 2012; April 8, 2013; November 6, 2013; November 22, 2013; November 13, 2014; September 9, 2015; April 19, 2016; June 13, 2016; October 7, 2016; December 13, 2016; April 6, 2017; May 26, 2017; May 30, 2017; June 13. 2017; June 21, 2017; and June 27, 2017. Respondent had not submitted to any drug testing since July 7, 2017. 22. In July 2014, Respondent participated in a relapse/recovery evaluation with Leonard Days, LISAC. Mr. Days’ evaluation report did not reflect that Respondent disclosed the June 2010 driving under the influence incident. Mr. Days’ considered that April 16, 2012, and June 14, 2014 drug tests that were positive for marijuana use. Mr. Days recommended that, in addition to continued drug testing, Respondent engage in treatment and recovery support. Employer Acknowledgment 23. From May 2012 until approximately November 2015, Respondent worked as a registered nurse for Haven Health in Arizona. 24. From December 2015 to March 2016, Respondent worked as a registered nurse at Granite Creek Health and Rehabilitation Center in Prescott, Arizona. 25. From March 2016 until at least late 2017, Respondent worked as a registered nurse at Camelback Post-Acute and Rehab in Phoenix, Arizona. 26. The Board did not received an acknowledgement from either Granite Creek or Camelback Post-Acute and Rehab that they had received a copy of the 2010 Consent Agreement and would comply with the conditions of probation. Quarterly Employer Evaluations 27. By the terms of the 2010 Consent Agreement, Respondent was required to cause every employer to submit to the Board, in writing, quarterly employer evaluations. 28. Since July 2013, the Board received only two employer evaluations, one dated January 9, 2014, and one received on December 31, 2014. Board Interview 29. On October 2, 2017, the Board sent Respondent a letter notifying him of an interview with Board staff set for October 10, 2017. 30. Respondent emailed Board staff on the morning of October 10, 2017, requesting that the interview be rescheduled. 31. On October 10, 2017, Board staff replied to Respondent’s email and requested that Respondent provide a date that would work with his schedule within the next week. Respondent did not respond to Board staff. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). 2. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 3. The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse 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, Ariz. 369, 372, 249 P.2d 837 (1952). 4. “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). 5. The Board established by a preponderance of the evidence that Respondent failed to comply with the 2010 Consent Agreement on multiple occasions with respect to multiple requirements. 6. Respondent’s failure to comply with the 2010 Consent Agreement constituted unprofessional conduct as defined by A.R.S. § 32-1601(26)(a), (d), (g), (i), and (j); A.R.S. § 32-3208(A) and (D); and A.A.C. R4-19-403(17), (18), and (20). 7. Given Respondent’s long history of failing to comply with consent agreements with the Board, Respondent’s failure to notify the Board when and where he was working, Respondent’s failure to respond to the Board’s request for an interview, and Respondent’s failure to attend the hearing in this matter, Respondent has demonstrated that he cannot be regulated at this time. Thus, 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 License No. RN162082 previously issued to Respondent Ezekiel Tolu Opuroku. 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, May 9, 2018

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

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.