ALJDEC decisions subject to certification as final

19A-1604106-NUR · State Board of Nursing · 2019-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2019, at 1:00 p.m. APPEARANCES: Cynthia Belmonte (“Applicant”) appeared telephonically on her own behalf; the Arizona State Board of Nursing (“the Board”) was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On or about April 29, 2016, Applicant submitted a license application for reissuance of her registered nurse (“RN”) License No. RN123397 to the Board,[1] which she had previously surrendered in 2011. The Board conducted an investigation. On July 27, 2018, the Board considered the matter and voted to offer Applicant a conditional licensure consisting of a Consent Agreement for a 36-month stayed revocation and probation, including the following terms: (1) The license would be initially limited to allow completion of an RN Board-approved refresher or equivalent course; (2) Upon successful completion of the refresher course, the limitation would be lifted, but probation would be continued; and (3) Applicant would be required to complete the remainder of the 36-month probationary term by agreeing to participate in various relapse prevention measures.[2] The Board gave Appellant 30 days to accept the Consent Agreement. She failed to do so. On December 6, 2018, the Board issued an Order of Denial based on Applicant’s unprofessional conduct as defined by A.R.S. § 32- 1601(24/26)(d), (f), and (j) and A.A.C. R4-19-403(17), (18), and (31), and A.A.C. R4-19-404.[3] On January 7, 2019, Applicant requested a hearing on the Board’s decision not to grant her an unrestricted, unconditional license.[4] Pursuant to A.R.S. § 41-1092.02, the Board referred Applicant’s appeal to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on March 1, 2019. The Board submitted nine exhibits and presented the testimony of Senior Investigator Susan Bushong. Applicant testified on her own behalf. Events Leading to Applicant’s Voluntary Surrender of her License In March 2010, Applicant came to the Board’s attention when it was reported that Applicant tested positive for codeine, for which she did not have a valid prescription, in a pre-employment drug test at Carondelet St. Joseph’s Hospital in Tucson. On July 5, 2011, Applicant submitted to an evaluation by Michel Sucher, M.D. Based on the evaluation, Dr. Sucher diagnosed Applicant with cocaine and opiate substance abuse or use disorders and a mental health condition. Dr. Sucher recommended monitoring to ensure Applicant engaged in treatment to address her substance use disorder and an independent psychiatric evaluation to determine the status of her mental health issues. On November 1, 2011, Applicant entered into consent for Entry of Voluntary Surrender No. 1003020 (“the Voluntary Surrender Agreement”) in which she admitted certain violations of the Nurse Practice Act including: (1) Testing positive for codeine during a pre-employment drug test without a valid prescription; (2) Having 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; (3) Multiple arrests, citations, and charges, including shoplifting, criminal damage, and possession of marijuana, and (4) Failing to notify the Board of the charges as required by statute.[5] Applicant’s Application for Reissuance of her License As noted above, on or about April 29, 2016, Applicant submitted an application for re-issuance of her RN license. Applicant provided the Board’s Reinstatement Questionnaire with updates as to her recovery efforts since the Voluntary Surrender Agreement, including intensive outpatient rehabilitation, an aftercare program, weekly meetings, alternative chronic pain management, and a strong support system.[6] On April 16, 2018, Applicant completed a relapse evaluation with Cheryl Martin, Ed.D., LPC. Dr. Martin opined that Applicant had availed herself to a full range of treatment and recovery modalities and that her substance use disorder was in full sustained remission. Dr. Martin did not recommend any worksite monitoring in addition to the Board’s usual requirements, but did recommend that Applicant abstain from all mood-altering substances, including alcohol, undergo drug screening, attend regular AA meetings and have a sponsor, and attend regular Nurse Support Group meetings. Dr. Martin also recommended that if Applicant experienced a return of any behavioral health symptoms, she meet with her primary care physician and follow up on any referrals to a psychiatrist and/or therapist for appropriate treatment.[7] Applicant disclosed on her application that she had not been employed since the voluntary surrender of her Arizona nursing license. She testified that she has not worked outside the home since the Voluntary Surrender Agreement because she has had two children when she was aged 35 and 38. Applicant’s Testimony Applicant testified that her sobriety date was April 1, 2013. Applicant acknowledged that when Board staff interviewed her on March 1, 2016, she stated that she drank alcohol about once a month. Applicant explained that she never had a problem with alcohol. Applicant submitted with her application a Certificate of Attendance for Completing an Intensive Outpatient Program at CODAC dated December 23, 2014.[8] Applicant testified that her aftercare treatment at CODAC involved random urine drug tests, sometimes once a week and sometimes once a month, at least during the last two years of her four years of treatment. Applicant testified that during the first two years of treatment, she was so frequently at the facility, that she would be tested whenever she went in for treatment. Applicant did not know exactly what substances were on the panel; she assumed alcohol was included. Applicant testified that she completed coursework for a Masters’ degree in Acupuncture between 2017 and 2018. Applicant testified that she submitted an updated application in 2018, which included her degree and letters of reference from her instructors. The record does not contain the updated application. Applicant appeared telephonically and did not submit any exhibits. The Board’s Evidence Ms. Bushong pointed out that the list of the dates on which Applicant had been administered drug tests at CODAC showed more than a month’s gap after tests on February 5, 2014, December 2, 2014, August 4, 2015, and December 23, 2015.[9] There was no evidence of any testing after March 7, 2016. This document did not support Applicant’s testimony that she was tested weekly or monthly at CODAC. Ms. Bushong testified that if a person knows that they will be tested for drugs, the drug test is not random. If Applicant knew that she would be tested for drugs every time she went to CODAC for the first two years of her aftercare treatment, she was not subject to random drug tests. The purpose of a random drug test is to show that a person is clean when she is not expecting to be tested. Ms. Bushong noted that Applicant acknowledged on the Reinstatement Questionnaire that she submitted with her application that she continued to drink “1-2 small classes of wine once a month.”[10] Ms. Bushong testified that she inferred that CODAC was not testing for alcohol. Applicant included in her application papers the Stipulated Surrender of her California Registered Nurse License No. 717464, which Applicant signed on July 23, 2014, and the California Board of Registered Nursing accepted on October 8, 2014, which was based on her 2011 Voluntary Surrender and Findings of Fact by the Arizona Board.[11] Ms. Bushong testified that Applicant’s California nursing license has not been reinstated. Applicant’s response to the question on the Reinstatement Questionnaire, “What type of nursing position are you interested in obtaining if your license is reinstated? (include what you anticipate to be STRESSORS for you as you return into the work force),” in relevant part as follows: The stressors of returning to nursing would involve physical stress & therefore my job would have to include physical limitations. I would not be able to work 12 hour shifts or doing very much heavy lifting. The positions I am interested in are triage nursing, outpatient pre-op working in the community at CODAC or the Red Cross, or a Doctor’s office.[12]

Ms. Bushong pointed out that the practice of nursing involves more that physical stress and that working in a doctor’s office would give Applicant access to drugs. Ms. Bushong also discussed the criminal history that Applicant provided with her Reinstatement questionnaire and Applicant’s explanation of the offenses, which were not consistent with the admissions that she made in the 2011 Voluntary Surrender Agreement and court documents regarding the role of alcohol in the offenses, as follows: 19.1 Regarding an April 7, 2004 arrest for possession of marijuana, Applicant explained that she was in the car with her boyfriend at the time when a domestic violence incident occurred, which resulted in police being called on her behalf. When police searched the car, they found marijuana in the console. The charge against was later dismissed.[13] 19.2 Regarding an arrest on January 14, 2009 arrest for trespassing, Applicant stated that she threw a magazine at hospital personnel and refused to leave after they told her she could not see her brother, whom she had brought in with a gunshot wound.[14] The Consent Order noted that “[a]ccording to the law enforcement officer’s report, [Applicant] admitted to ‘…drinking copious amounts of alcohol prior to driving to the hospital.’”[15] 19.3 Regarding an April 9, 2010 charge for criminal damage, Applicant explained that she had broken a window in a nightclub during an argument with a girl with whom Applicant’s boyfriend at the time was having an affair. Applicant did not mention alcohol in her narrative, but the judgment that she submitted with her explanation required her to complete alcohol education.[16] 19.4 Regarding an April 16, 2011 arrest for shoplifting, Applicant admitted in her narrative that she was under the influence of drugs, which she did not identify, when she took various items, including alcohol, from a Safeway.[17] 19.5 Regarding a September 10, 2010 arrest for shoplifting at the same Safeway, Applicant stated that she was also under the influence of drugs, but did not specify the drug.[18] Applicant completed a diversion program to avoid conviction, which Ms. Bushong testified usually involves counselling or education. Ms. Bushong noted that Dr. Martin’s April 16, 2018 Relapse Evaluation noted that Applicant had reported that by 2008, she had progressed to “heavy alcohol use and experienced blackouts, but that she continued to have “date nights” with her spouse involving one glass of wine and that her last use of alcohol was on April 1, 2016.[19] Applicant reported in the Relapse Evaluation that her last use of cocaine was when she was 30, which would have been in 2008, based on her birthdate in 1978.[20] Ms. Bushong noted that according to Dr. Sucher’s evaluation that was cited in the Consent Order, Applicant still tested positive for cocaine use in 2011.[21] Ms. Bushong noted that Applicant told Dr. Martin in the Relapse Prevention interview that she had started AA on February 16, 2017. Yet she stated that her recovery date from alcohol was April 1, 2016.[22] Ms. Bushong testified that for people in recovery, a stressful situation may trigger a relapse. Although it appeared that Applicant was in recovery, because the practice of nursing may be stressful, protection of the public requires the Board to be able to monitor her practice for the early stages of her re-licensure. CONCLUSIONS OF LAW The Board is the duly constituted authority for licensure and regulation of nurses in Arizona. This matter lies with its jurisdiction.[23] Applicant bears the burden of proof to establish by a preponderance of the evidence that she is qualified to granted an unrestricted license as an RN in Arizona and that the Board therefore erred in attempting to impose conditions on the reinstatement of her RN license.[24] The Board’s responsibility is to “to more effectively protect the public health safety and welfare” by regulating the practice of nursing in Arizona.[25] Applicant has an extensive criminal history involving substance abuse, spanning at least from April 2004, when marijuana was found in a car in which she was riding, to April 16, 2011, when she was arrested for shoplifting various items, including alcohol, while she was under the influence of an unidentified substance. On July 5, 2011, she tested positive for cocaine when she underwent an evaluation by Dr. Sucher. After the November 1, 2011 Voluntary Surrender Agreement, she continued to drink alcohol until at least April 1, 2016, despite acknowledged past “heavy alcohol use,” including blackouts. Despite strong evidence to the contrary, Applicant testified at the hearing that she never had a problem with alcohol. Although Applicant has made substantial progress address her substance abuse issues, the Board demonstrated that protecting the public health and safety requires reasonable conditions upon and monitoring of her practice under a reissued RN license. Unfortunately, Appellant is not willing to accept any restrictions on her license, which leaves the Board few options. Based on the foregoing, cause exists for the Board to deny Applicant’s application for reissuance of an unrestricted RN license because she has committed unprofessional conduct as defined by certain provisions of A.R.S. § 32-1601(24) and/or (26),[26] as well as A.A.C. R4-19-403[27] and A.A.C. R4-19-404(B).[28] Therefore, the Board should affirm its decision to deny Applicant’s application for reinstatement of her RN license under A.R.S. §§ 32-1663(A)[29] and 32-1664(O).[30] RECOMMENDED ORDER In view of the foregoing, IT IS ORDERED affirming the Board’s denial of Applicant Cynthia Belmonte’s application for reissuance of her RN License No. RN123397 and dismissing her appeal in Case No. 19A-1604106-NUR. 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 21, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See the Board’s Exhibit 3. [2] See the Board’s Exhibit 7 and 8. [3] See the Board’s Exhibit 8. [4] See the Board’s Exhibit 9. [5] See the Board’s Exhibit 2 at 27. [6] The Board’s Exhibit 3 at 25. [7] See the Board’s Exhibit 5. [8] See the Board’s Exhibit 3 at 47. [9] See the Board’s Exhibit 3 at 56. [10] See the Board’s Exhibit 3 at 36. [11] See the Board’s Exhibit 3 at 89-99. [12] The Board’s Exhibit 3 at 44. [13] See the Board’s Exhibit 3 at 115-117. [14] See the Board’s Exhibit 3 at 127. [15] The Board’s Exhibit 2 at 12. [16] See the Board’s Exhibit 3 at 130-131. [17] See the Board’s Exhibit 3 at 135. [18] See the Board’s Exhibit 3 at 146. [19] See the Board’s Exhibit 5 at 199. [20] See the Board’s Exhibit 5 at 199. [21] See the Board’s Exhibit 2 at 14. [22] See the Board’s Exhibit 5 at 205, 206. [23] A.R.S. § 32-1606(A)(8) [24] See A.R.S. §§ 32-1601(14)(d); 32-1663(A); 41-1092.07(G)(1); A.A.C. R2- 19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [25] Laws 1982, Ch. 190, § 1. [26] Former A.R.S. § 32-1601(24) was effective on July 1, 2016 and current A.R.S. § 32-1601(26) was effective on August 9, 2017. Both statutes contain identical provisions and provide 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. . . . . (f) Having a license, certificate, permit or registration to practice a health care profession denied, suspended, conditioned, limited or revoked in another jurisdiction and not reinstated by that jurisdiction. . . . . (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: . . . . 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; . . . . 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. R4-19-404 provides in relevant part as follows: B. A person whose nursing license is denied, revoked, or voluntarily surrendered under A.R.S. § 32-1663 may apply to the Board to issue or re-issue the license: . . . . 2. In accordance with the terms of a voluntary surrender agreement. C. A person who applies for issuance or re-issuance of a license under the conditions of subsection (B) is subject to the following terms and conditions: 1. The person shall submit a written application for issuance or re-issuance of the license that contains substantial evidence that the basis for surrendering, denying, or revoking the license has been removed and that the issuance or re-issuance of the license will not be a threat to public health or safety. 2. Safe practice. a. Under A.R.S. § 32-1664(F), the Board for reasonable cause may require a combination of mental, physical, nursing competency, psychological, or psychiatric evaluations, or any combination of evaluations, reports, and affidavits that the Board considers necessary to determine the person’s competence and conduct to safely practice nursing. . . . . 3. After receipt of the application, the information required under subsection (C)(2), and the completion of an investigation, the Board shall place the application on the agenda of a regularly scheduled Board meeting. 4. After consideration of the application and any information required under subsection (C)(2),the Board may: a. Grant the license with or without conditions or limitations; b. If other licensure requirements have been met, grant, with or without conditions, a temporary license for the sole purpose of allowing the applicant to successfully complete an approved nurse refresher course; c. Deny the license if the Board determines that licensure might be harmful or dangerous to the health of a patient or the public. [29] A.R.S. § 32-1663(A) concerns disciplinary action and provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.” [30] A.R.S. § 32-1664(O) concerns investigations and hearings and 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