ALJDEC decisions subject to certification as final

19A-1501006-NUR · State Board of Nursing · 2019-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2019, at 8:30 a.m.; the record was held open until October 25, 2019, to allow for the court reporter time to prepare the transcript of the hearing. APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Sunita Krishna, Esq., Assistant Attorney General; Julie Diane Russell (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 32-1663, and 32- 1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. Respondent holds Board-issued Practical Nurse License No. LP048760 (“LPN license”) and (LNA Equivalent) Undeclared Certified Nursing Assistant Certificate No. UCNA1000006973 (“CNA certificate”). The Board received complaints from two of Respondent’s employers. After the Board’s Senior Investigator, Susan Bushong, prepared a report of her investigation into the complaints, on September 5, 2019, the Board issued a Complaint and Notice of Hearing, alleging certain facts and, based on those facts, charging Respondent with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(26)(d), 32-1601(26)(e), 32-1601(26)(h), 32- 1601(26)(j) and, for conduct occurring between July 1, 2016, and August 9, 2017, or between August 2, 2012, and July 1, 2016, the same subsections of A.R.S. § 32-1601(24) or A.R.S. § 32-1601(22).[1] The Board also charged Respondent with having committed unprofessional conduct as further defined by A.A.C. R4-19-403(2), R4-19-403(9), R4-19-403(17), R4-19-403(18), R4-19- 403(25)(a), R4-19-403(28), and R4-19-403(31),[2] and A.R.S. § 32-3208(A) and (D). The Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. The Complaint and Notice of Hearing set an evidentiary hearing on October 10, 2019, at 8:30 a.m. at OAH. The Board sent the Complaint and Notice of Hearing to Respondent at her last known address of record by first-class and certified mail. A hearing was held on October 10, 2019. The Board submitted ten exhibits and presented the testimony of Michael Serrano, RN, BHMP, Respondent’s supervisor at Mohave Mental Health Clinic, Inc., and Ms. Bushong. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the duly noticed hearing did not begin until 9:00 a.m., Respondent did not appear, personally or through an attorney, and did not contact OAH to request that hearing be continued or that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her LPN license or CNA certificate. Hearing evidence On or about January 5, 2015, the Board received a complaint from Assistant Director of Nursing Stephanie Dunajski, RN at The Gardens Rehabilitation and Care Center in Kingman, Arizona (“The Gardens”), Respondent’s former employer. The complaint stated that on December 31, 2014, while Respondent was working as an LPN at The Gardens, she had been observed having behavioral issues, possibly indicating impairment, and when she was told to take a drug screen for reasonable suspicion, she refused and left the facility. The complaint also alleged that Respondent’s count of narcotic drugs that were ordered for patients was later determined to have discrepancies.[3] The Board opened an investigation. The Board obtained Respondent’s employment records from The Gardens pursuant to subpoena. Ms. Dunajski reported that, on December 31, 2014, after a staff meeting, she noticed that Respondent was behaving erratically. When she attempted to talk to Respondent about her concerns, Respondent screamed, “If I can’t do anything right then just fire me now.” Ms. Dunajski and another nurse noticed that Respondent had “pin point pupils,” was yelling at the nurse’s station, and seemed unable to focus. When Ms. Dunajski told Respondent she should report for a reasonable suspicious drug screen, Respondent kept asking, “Why?” and then, while on her way to the Human Resources office, threw herself on the snow outside the office and stated she would not move until she was able to smoke a cigarette. Although Respondent eventually went to the Human Resources office, she refused to sign the consent form and ran from the office. When Ms. Dunajski caught up with her, Respondent stated that she did not care if she was terminated and that she wished she was dead.[4] After Respondent left the facility, she stuck her badge on the fence, and Ms. Dunajski called the police and requested that they perform a welfare check on Respondent. Another nurse who worked with Respondent at The Gardens in December 2014, reported similar concerns, stating that when the Percocet that had been prescribed to a patient was not readily available, Respondent stated “Just give her a Tylenol 500mg, it looks like a Percocet, she won’t know the difference anyways,” that Respondent had difficulty staying awake at work, that Respondent frequently left the floor without notifying anyone, and that Respondent’s "moods throughout the day are like a roller coaster, one moment she is happy and giggling and another moment she is crying, sad, and slamming things on the desk and med cart.”[5] Ms. Bushong testified that not only did the symptoms that Ms. Dunajski and the other nurse reported indicate possible impairment, Respondent’s possibly giving a patient medication that was not ordered and leaving the floor without permission could have affected patient safety. Ms. Bushong testified that when she interviewed Respondent on August 7, 2018, Respondent acknowledged that in December 2014, she used marijuana without a medical marijuana card and that, if she had taken the drug test, she probably would have failed it. Respondent also stated she had not completed administrating medications to patients before she left the floor and that she administered medication to patients before she documenting the administration.[6] On or about August 7, 2015, the Board received a second complaint from Mohave Mental Health Clinic, Inc. (“MMHC”), signed by Timothy Davis, the Director/ Administrator, Mike Serrano, RN, the Nurse Manager, Alicia Deltorre, LPN, a coworker. The complaint alleged that in or around July 2015, while Respondent was employed as a nurse for MMHC, Respondent destroyed narcotic medication that had fallen onto the floor without reporting the incident to the charge nurse, thereby failing to follow MMHC’s policy for destruction of narcotic medications. Respondent failed to administer and could not account for other medications and stated that she administered medications to patients for whom the medications had not been prescribed. Respondent displayed slurred speech and appeared sleepy while on shift and was sent home and/or temporarily reassigned due to concerns over her ability to perform her duties. Respondent’s urine drug screen was positive.[7] Mr. Serrano testified consistently with the written complaint. He testified that, in his opinion, Respondent was not safe to practice. The Board obtained records from police agencies and courts in Mohave County regarding Respondent. The records included a report from the Kingman Police Department that on or about October 28, 2016, at approximately 10:45 p.m., police responded to a “delayed suspicious circumstance” that possibly occurred at Respondent’s address when Respondent’s ex-husband who was the father of Respondent’s eight-year-old son requested a welfare check. According to the report, Respondent’s son told his father that Respondent had thrown something at him, which caused a mark near his eye, and Respondent had hit him until he was bleeding because he had gotten bad grades on his report card. Respondent’s ex-husband attempted to contact Respondent, but her boyfriend at the time said she had been drinking and had gone to bed. Police officers who responded to the call observed injuries under Respondent’s son’s right eye and bruises and scrape marks to his upper back and right side.[8] On November 3, 2016, police interviewed Respondent’s son and he stated that Respondent had yelled in his ear, slapped him, causing his lip to bleed, kicked him in the back, and had thrown things at him.[9] The Board obtained court records from the Kingman/Cerbat Justice Court. On or about December 22, 2016, a criminal complaint was issued against Respondent for child abuse by domestic violence, a class 4 felony, based on Respondent’s son’s account of her actions on October 28, 2016.[10] Ms. Bushong testified that Respondent failed to notify the Board that she had been charged with a felony within ten days, as required by Arizona statute and the Board’s regulations. Ms. Bushong testified that nurses are expected to be professional, open, and honest with the Board because they are members of a respected profession. The Board needs to know about criminal charges so it can investigate the circumstances behind the charges. On or about February 8, 2017, Respondent pled guilty to Child Abuse by Domestic Violence, a Class 1 misdemeanor, and was sentenced to pay fines and to undergo anger management/domestic violence counseling and counseling for drug and alcohol abuse.[11] On May 16, 2017, Respondent was found to be in compliance with all terms of her sentence and a determination was made that no further review was required.[12] On or about February 26, 2017, at approximately 3:23 p.m., Respondent’s mother called officers from the Kingman Police Department to her residence because Respondent had gone to her mother’s house and had become obnoxious and appeared impaired. Officers reported that Respondent was on the driveway when they arrived and that she smelled of alcohol. Respondent’s mother did not want her arrested; she just wanted Respondent to get help and to prevent her from driving. After Respondent refused to cooperate with the police, she was arrested for domestic violence.[13] On February 27, 2017, Respondent was charged with Disorderly Conduct—Disturbance in Kingman Municipal Court but, on October 6, 2017, the charges were dismissed.[14] Ms. Bushong testified that Respondent again did not report the charges to the Board with ten days. Ms. Bushong testified that Respondent appeared to make poor choices when she is drinking. On or about July 26, 2018, Respondent sought help from MMHC as a patient. Respondent was found to be a danger to herself or others based on prior suicide attempts and her angry mood/agitation, prior hospitalizations for dangerousness, and current psychosocial stressors.[15] Respondent was diagnosed with major depressive disorder, Dysthymic Disorder, anxiety disorder, Attention-Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder, Obsessive-Compulsive Personality Disorder, and Cannabis Use.[16] Ms. Bushong testified that the findings that Respondent was found to be a danger to herself and others raised concerns about her ability to safely practice. The number of Respondent’s diagnoses was concerning because they could interfere with Respondent’s ability to safely practice, especially if Respondent’s behavioral health diagnoses were not treated. On or about August 9, 2017, Respondent was discharged from MMHC’s treatment due to lack of contact.[17] Ms. Bushong testified that after the Board receives a complaint against a nurse, it routinely requests that licensees complete Investigative Questionnaires to aid in the investigation. The Board required that Respondent provide a written response to the complaints on February 6, 2015 and June 26, 2018.[18] Ms. Bushong testified that Respondent had never provided a written response to the complaints. Ms. Bushong testified that the Board expects nurses to cooperate with investigations. Ms. Bushong testified that she interviewed Respondent on July 24, 2018. Ms. Bushong was concerned about Respondent’s recall of events and putting the blame on others, rather than taking responsibility for her actions. Ms. Bushong testified that it was hard to keep Respondent focused; Respondent would get off-track and Ms. Bushong would have to redirect her. Ms. Bushong testified that Respondent did not have any insight into the Board’s concerns and that Respondent said she would get treatment, but that she did not. Ms. Bushong testified that Respondent is not safe to practice because she has not taken any steps to get the help she says she needs. On or about October 4, 2018, Respondent underwent an Independent Psychological Evaluation by Mark J. Harvaneik, Ed.D. and agreed that the results of the evaluation could be released to the Board. Dr. Harvaneik noted discrepancies between Respondent’s responses to questions in his interview and on various tests and concluded that “her judgment and insight were evaluated as questionable . . . based on what appeared to be greater substance abuse problems than she was willing to reveal, and based on a longstanding history of considerable relational dysfunction.”[19] Respondent admitted to Dr. Harvaneik that she was fired from The Gardens and from MMHC. Dr. Harvaneik reported the following regarding Respondent’s substance use: [Respondent] said that the first time she tried alcohol was when she was two years old, though said that she really started drinking when she was nine years old, and said that the last time she had a drink was yesterday. [Respondent] said that she hasn’t suffered blackouts from drinking, though has passed out, experienced increased tolerance to alcohol, and hasn’t experienced withdrawal symptoms. When asked about other drugs, [Respondent] said that the first time she tried marijuana was when she was six years old and said that she started using the drug daily when she was 12 years old. [Respondent] said that she tried mushrooms a month ago, said that she wanted to see if it helped with her depression, said that it did help, and said that she used the drug only the one time. [Respondent] said that she tried what she believed to be cocaine one time when she was 16 years old. [Respondent] also said that she hadn’t been through any type of alcohol or other drug treatment.[20]

With respect to Respondent’s ability to safely practice, Dr. Harvaneik opined that “[Respondent’s] ability to function safely as an [LPN] is unknown until such time that she completes more intensive interventions to address significant substance use problems, considerable relational dysfunction, and mood instability exacerbated by substance use.”[21] CONCLUSIONS OF LAW The Board has jurisdiction to consider disciplinary proceedings against Respondent’s LPN license and CNA certificate.[22] This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). The Complaint and Notice of 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.[23] The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s LPN license and CNA certificate.[24] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[25] The Board established that between December 2014, and October 2018, Respondent abused alcohol and marijuana, that between those same dates, she had other serious behavioral health issues, that she only sporadically obtained treatment for her substance abuse and other behavioral health issues, which did not result in any sustained recovery, and that Respondent’s substance abuse and/or behavioral health issues affected her nursing practice. Therefore, the Board established that Respondent committed unprofessional conduct as defined by current A.R.S. §§ 32- 1601(26)(d), 32-1601(26)(e), 32-1601(26)(h), 32-1601(26)(j) or those statutes’ predecessors[26] and A.A.C. R4-19-403(2), R4-19-403(9), R4-19- 403(17), R4-19-403(18), and R4-19-403(31).[27] The Board established that Respondent failed to complete and return to the Board Investigative Questionnaires after the Board informed her of The Gardens’ and MMHC’s complaints, thereby committing additional unprofessional conduct as defined by former A.R.S. § 32-1601(22)(d) and current A.R.S. § 32-1601(26)(d), as further defined by R4-19- 403(25)(a).[28] The Board established that Respondent failed to inform the Board within ten days after December 22, 2016, when she was charged with child abuse by domestic violence, a class 4 felony, in Kingman/Cerbat Justice Court and February 27, 2017, when she was charged with disorderly conduct—disturbance in Kingman Municipal Court. The Board therefore established that Respondent committed unprofessional conduct as defined by former A.R.S. § 32-1601(24)(d), A.A.C. R4-19-403(28),[29] and A.R.S. § 32-3208(A) and (D).[30] Respondent’s numerous and repeated acts of unprofessional conduct furnish cause for the Board to discipline her LPN license and CNA certificate under A.R.S. §§ 32-1663(D)[31] and 32-1664(N).[32] Respondent’s failure to attend the hearing or to present any evidence in her defense shows that, at this time, she cannot be regulated. RECOMMENDED ORDER In light of Respondent Julie Diane Russell’s numerous and serious acts of unprofessional conduct, IT IS ORDERED revoking Practical Nurse License No. LP048760 and (LNA Equivalent) Undeclared Certified Nursing Assistant Certificate No. UCNA1000006973 previously issued to Respondent on the effective date of the final order in this matter. 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, November 5, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The statute defining “unprofessional conduct” was amended three times during the time periods during which the Board alleges that Respondent acts that constituted cause for discipline. All three amendments were non- substantive and did not change statutory language or letters enumerating sub-subsections, but only the numbers of the subsections of the statute. A.R.S. § 32-1601(26) was effective on August 9, 2017; A.R.S. § 32-1601(24) was effective July 1, 2016; and A.R.S. § 32-1601(22) was effective August 2, 2012. [2] The most recent version of A.A.C. R4-19-403 became effective January 31, 2009. [3] See the Board’s Exhibit 1. [4] See the Department’s Exhibit 2 at 64-65. [5] The Board’s Exhibit 2 at 66-67. [6] See the Board’s Exhibit 10 at 214-215. [7] See the Board’s Exhibit 3. [8] See the Board’s Exhibit 4 at 98. [9] See id. at 100. [10] See the Board’s Exhibit 5 at 108. [11] See id. at 119, 121 [12] See id. at 129. [13] See the Board’s Exhibit 4 at 103. [14] See the Board’s Exhibit 6 at 132. [15] See the Board’s Exhibit 7 at 138-139. [16] See id. at 140-141. [17] See id. at 146-147. [18] See the Board’s Exhibit 8 at 150 and 175. [19] The Board’s Exhibit 9 at 196. [20] Id. at 198-199. [21] Id. at 205. [22] See A.R.S. § 32-1664. [23] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [24] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [25] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [26] A.R.S. § 32-1601(26) provides and former A.R.S. § 32-1601(24) and A.R.S. § 32-1601(22) provided in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: . . . . (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. (e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. . . . . (h) Committing an act that deceives, defrauds or harms the public. . . . . (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

[27] A.A.C. R4-19-403 provides in relevant part as follows: For purposes of A.R.S. § 32-1601(24)(d), 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: . . . . 2. Intentionally or negligently causing physical or emotional injury; . . . . 9. Failing to take appropriate action to safeguard a patient’s welfare or follow policies and procedures of the nurse’s employer designed to safeguard the patient; . . . . 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; [or] . . . . 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

[28] A.A.C. R4-19-403(25)(a) further defines “any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public” to include “[f]ailing to . . . [f]urnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664.” [29] A.A.C. R4-19-403(28) further defines “any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public” to include the following: If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. . . . [30] A.R.S. § 32-3208 provides in relevant 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.

[31] A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” [32] A.R.S. § 32-1664(N) provides that “[i]f the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826