ALJDEC decisions subject to certification as final

19A-1607019-NUR · State Board of Nursing · 2019-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2019, with the record held open until APPEARANCES: Respondent appeared on behalf of herself. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 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, 1663, and 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 1667. Respondent holds Board-issued registered nurse (RN) license number RN184039. On or about July 12, 2016, the Board received a complaint from Respondent’s primary care provider at the Veterans Healthcare Administration (VA) in Sierra Vista, Arizona. The VA alleged that Responded admitted to abusing prescription medication and attempting to self-harm on or about May 27, 2016. On September 14, 2006, Respondent was issued a Reprimand, a disciplinary action, from the Nevada State Board of Nursing. In that case, Respondent failed to properly administer and document controlled substances while employed as a RN at Manor Health Care Center in Nevada. Per the Reprimand, Respondent was required to submit to drug testing and complete coursework. In 2012, Respondent reported that she entered into and completed a substance abuse intensive out-patient treatment program in Nevada. On May 27, 2016, Respondent consumed numerous oxycodone tablets and applied a Fentanyl transdermal patch that was not prescribed to her. This resulted in Respondent becoming unresponsive and requiring treatment in the emergency room at Benson Hospital in Benson, Arizona. On May 28, 2016, Respondent requested to go into in patient treatment for substance use at the VA. There is no evidence whether she received any treatment at the VA. On August 17, 2016, Respondent underwent a psychological assessment/substance use disorder evaluation with Cheryl Martin, Ed.D., LPC (Dr. Martin), a Board approved evaluator. Dr. Martin opined that Respondent was at high risk for substance abuse use disorder and recommended participation in the Board’s Alternative to Discipline Program and an on- going recovery plan. Respondent declined the Board’s program. On or around January 2019, Respondent underwent a second evaluation given by Mark A. Nichols, LPC (Mr. Nichols). Mr. Nichols opined that Respondent haD a high probability of having a substance use disorder and prescription drug abuse issue. Mr. Nichols recommended random drug screens. On or about June 5, 2019, the Board issued a Complaint and Notice of Hearing and Summary Suspension Expedited Hearing (Notice of Hearing), alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d) and (j) (2017);[1] A.A.C. R4-19- 403(17) and (18).[2] The Board referred the matter to the Office of Administrative Hearings (OAH), an independent agency, for an evidentiary hearing. A hearing was held on July 18, 2019. The Board submitted seven exhibits and presented the testimony of Stephanie Chambers, BA, RN, MS, RN (Ms. Chambers). At hearing Ms. Chambers testified that on May 26, 2016, Respondent overdosed with Oxycodone and a Fentanyl patch and was found unresponsive, by her partner, in the bathroom. Ms. Chambers stated that the hospital administered four doses of Narcan to Respondent before she regained consciousness. Ms. Chambers stated that, on May 28, 2016, Respondent was told to self-report this incident. Respondent failed to report this incident to the Board. Ms. Chambers testified that Respondent had a long pattern of instances of abuse of controlled substances dating back to September 14, 2006, when she signed a Reprimand in Nevada. Ms. Chambers voiced concern with the evaluations that were conducted in that Respondent made no effort to complete treatment. She stated that Respondent ultimately expressed interest in entering the Board’s “CANDO” program. Ms. Chambers stated that Respondent attended a 3 day in patient program but failed to attend any extra treatment after her detoxification. Ms. Chambers further opined that this type of drug history affects the ability to practice as a RN because it impairs judgement, causes impulsive behavior, and may result in potential relapse especially working in an environment surrounded by prescription drugs. She further stated that Respondent’s failure to report the May 2016 incident was concerning as well with regards to Respondent’s accountability. Ms. Chambers testified that the Board recommended that Respondent be placed on probation for 36 months with treatment recommendations, including RN support group, relapse prevention treatment, and drug testing. At hearing, Respondent admitted to not reporting the May 2016 incident to the Board. Respondent stated that she was prescribed medication after she broke her wrist and had surgery in 2015. Respondent stated that she also injured her shoulder from a hover board accident. Respondent stated that she admitted herself to in patient care the day after she overdosed. She stated that the incident scared her and her partner and she wanted help. Respondent stated that she did not complete her treatment at the VA because she had a negative experience with a judgmental nurse. Respondent stated that she never put patients in harm’s way and could connect with difficult patients because she could understand them. She stated that has entered into a master’s program at Grand Canyon State University, for counseling, because she wanted to counsel others on substance abuse. Respondent stated that she also gained insight from listening to Joel Osteen. Respondent stated that she did not attend Narcotics Anonymous for the fact that they live in the past, not the present. Respondent stated that she did drug testing for her partner. She stated that she attempted to reschedule missed treatment appointments but gave no reason why she missed those appointments. Respondent later redefined her overdose as an “18 hour relapse.” Respondent testified that she wanted to do the “CANDO” program offered by the Board. She stated that the reason why she stopped the program was because of a conflict of interest with her partner’s job with the government. Respondent stated that she currently worked in a long-term nursing care facility as a RN manager. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(B)(10). 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). “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). The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct as alleged in the Complaint and Notice of Hearing. As such, 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 affirm its order summarily suspending Respondent Jan Marie Vinson’s Registered Nurse License number RN184039 and place Respondent on probation for 36 months with treatment conditions. 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, August 5, 2019.

/s/ Antara Nath Rivera 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) (2017) define “unprofessional conduct” to include, respectively:

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

[2] A.A.C. R4-19-403(17) and (18) define “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 judgement 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 drub 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.

[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