ALJDEC decisions subject to certification as final

19A-1309029-NUR-RES · State Board of Nursing · 2019-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 2019, with the record held open until July 1, 2019 APPEARANCES: Respondent Diana Kaye Tucker did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 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. Diana Kaye Tucker (Respondent) holds Board-issued Registered Nurse License No. RN133453 in the State of Arizona, which was first issued in July 2005. 3. On April 22, 2019, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d), (i), and (j)[1]; and A.A.C. R4-19-403(25)(a).[2] The Complaint and Notice of Hearing was sent via certified mail to Respondent at her 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 June 17, 2019. 5. The Board submitted six exhibits and presented the testimony of Naira Kutnerian, Investigator with the Board. 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, she 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 her registered nurse license. Hearing Evidence 7. On November 15, 2018, after an administrative hearing was conducted at the Office of Administrative Hearings, the Board adopted the Administrative Law Judge’s recommended decision and issued Findings of Fact, Conclusions of Law, and Order No. 1309029 (Order) against Respondent for 36-months’ probation, with terms and conditions, due to diverting narcotic medications while employed at Banner Gateway in 2017, and due to a criminal conviction related to filing forged prescriptions in 2013. 8. Pursuant to the Order, Respondent was required within seven days of the effective date of the Order, and throughout the term of the Order, to enroll and remain enrolled in the Board-approved third-party program for drug and alcohol testing. 9. Respondent failed to enroll with Recovery Trek. 10. Pursuant to the Order, Respondent was required within seven days of the effective date of the Order to enter into a substance use disorder rehabilitation program and was required to notify the Board of participation in a program. 11. Respondent failed to enter into a rehabilitation program. 12. Pursuant to the Order, Respondent was required within seven days of the effective date of the Order, and throughout the term of the Order, to participate at least three times weekly or as recommended by a rehabilitation program, in Alcoholics Anonymous (AA), Narcotics Anonymous, or a Board-approved equivalent program, and submit to the Board, in writing on Board- approved forms, quarterly reports. 13. Respondent did not confirm her participation in AA and did not submit AA reports for the due date of January 31, 2019. 14. Pursuant to the Order, Respondent was required within three days of date of hire, or within three days from the effective date of the Order if then employed, to cause her immediate supervisor to inform the Board, in writing and on employer letterhead, acknowledgment of the supervisor’s receipt of a copy of the Order to her employer. 15. Respondent failed to notify her supervisor of the Order; failed to provide the copy of the entire Order to her employer, The River Source; and failed to cause her supervisor to submit an acknowledgment of the supervisor’s receipt of a copy of the Order. 16. Pursuant to the Order, Respondent was required to submit performance evaluations by the first date of the quarterly reporting due date, and thereafter on the Board-approved form, to be completed by Respondent’s direct supervisor. If Respondent was not employed in nursing or attending nursing school during any quarter, Respondent was to submit to the Board a self-report describing other employment or activities on the Board-approved form. 17. Respondent did not submit quarterly employee performance reports were due on January 31, 2019, and self-reports from January 18, 2019, to January 31, 2019. 18. On or about January 18, 2019, the Board received a complaint from The River Source, Respondent’s employer, indicating that Respondent had been observed putting a large amount of medical papers in the shred box and was deleting files from the RN laptop. It was also reported that after Respondent was terminated, the shred box was opened and narcotics logs, medication records, doctors orders, employee TB tests, invoices/packing slips, contents from coworker work folder, and other medical documents were retrieved. The laptop was found to have had all documents deleted from it. 19. On or about January 25, 2019, the Board received a complaint from The River Source indicating that during their investigation of the Board proceedings and action in the prior matter, they discovered that Respondent was required to notify her employer of the probation within three days. The River Source stated that Respondent had never notified it of the Order. 20. On or about February 7, 2019, the Board received a complaint from The River Source indicating that on January 31, 2019, it reviewed the 2018 controlled substance records and found that an estimated 75 percent of the records were missing. The complaint noted that on January 18, 2019, Respondent was observed going out to her car numerous times with her large purse, which was abnormal behavior for her. 21. On February 8, 2019, the Board issued a letter to Respondent informing her that the Board had received a complaint against her registered nursing license. The letter included an Investigative Questionnaire that Respondent was to complete and submit by February 18, 2019. 22. Respondent did not return the completed Investigative Questionnaire. 23. On or about February 20, 2019, and February 21, 2019, Board staff attempted to contact Respondent by telephone, but was unsuccessful. 24. On or about February 20, 2019, Board staff sent a letter to Respondent indicating a Board interview would be conducted on February 27, 2019, regarding her case. 25. Respondent did not appear for the February 27, 2019 interview. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at her 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, 74 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 Order on multiple occasions with respect to multiple requirements. 6. Respondent’s failure to comply with the Order constituted unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (i), and (j) and A.A.C. R4-19-403(25)(a). 7. Given Respondent’s complete failure to comply with the terms of the Order, Respondent’s failure to notify the Board when and where she was working, Respondent’s failure to submit a completed Investigative Questionnaire, 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 she 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)[3] and A.R.S. § 32-1664(N).[4] / / / / / / / / / / / / RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke License No. RN133453 previously issued to Respondent Diana Kaye Tucker. 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, July 18, 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) defines “unprofessional conduct” to include, in pertinent part, as follows:

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (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.

[2] A.A.C. R4-19-403(25)(a) defines “unprofessional conduct” to include failing to “[f]urnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664.” [3] 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. [4] 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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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826