ALJDEC decisions subject to certification as final

19A-1801100-NUR · State Board of Nursing · 2018-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2018, with the record held open until October 16, 2018. APPEARANCES: Respondent Danielle Marie Summers 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 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 RN208594. On or about February 21, 2018, Respondent provided a written statement to the Board in which she reported that she had been arrested on December 14, 2017, and was being charged with organized retail theft and trafficking stolen property. Respondent stated that the charges were not drug charges, but were related to her drug use. Respondent stated that she was a drug addict and she relapsed after she passed the NCLEX. Respondent indicated that a few days after she was released from jail, she entered into a detox facility, and the day after she was discharged from the detox facility, she was admitted into a sober living facility and would be there at least 90 days. On or about March 13, 2018, Respondent told Board Staff that she had a substance abuse problem and just got out of a 90 day inpatient rehabilitation program, and was getting ready to go into sober living. On or about March 20, 2018, Respondent told Board Staff that her addiction was more than just alcohol and that she used heroin and methamphetamines. On or about May 30, 2018, Respondent told Board Staff that she had been using drugs for the past eight years. Respondent reported her use was off and on and when she began going to nursing school, she had been doing very well. Respondent stated that she graduated in 2017 and, within a few months, she relapsed and began smoking methamphetamines and heroin. On or about May 30, 2018, Respondent told Board Staff that her boyfriend got her addicted to drugs and he would steal clothing, jewelry, games, and Xboxes. Respondent admitted to Board Staff that her boyfriend would bring the items that he had stolen to her home and she sold the items online. On or about December 19, 2017, Respondent was charged with trafficking in stolen property and organized retail theft, felonies, in Maricopa County Superior Court in case number CR2017030600. On or about June 20, 2018, Respondent was convicted pursuant to her May 16, 2018 guilty plea to the amended charge of facilitation to commit trafficking in stolen property, a class 6 undesignated felony. On or about September 12, 2018, the Board summarily suspended Respondent’s registered nurse license and requested that proceedings be promptly instituted and determined. On or about September 19, 2018, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, that alleged violations of A.R.S. § 32-1601(26)(b), (d), (g), and (h);[1] A.A.C. R4-19-403(15), (17), and (18);[2] and A.R.S. § 32-1606(B)(16).[3] The Notice of Hearing was sent via certified mail to Respondent at her address of record. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued prior to the hearing convening. 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 prior to the hearing convening. Consequently, Respondent did not present any evidence to defend her Registered Nurse License. CONCLUSIONS OF LAW The 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. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). 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)[4] and A.R.S. § 32-1664(N).[5] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Danielle Marie Summers’ Registered Nurse License number RN208594. It is further recommended that the Board revoke Respondent Danielle Marie Summers’ Registered Nurse License number RN208594. 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, October 29, 2018.

/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(22)(b), (d), (g), and (h) defines “unprofessional conduct” to include, respectively, “[c]ommitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission,” “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public,” “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter,” and “[c]ommitting an act that deceives, defrauds or harms the public..” [2] This rule further defines “unprofessional conduct” to include the following:

15. Removing, without authorization, any money, property, or personal possessions, or requesting payment for services not performed from a patient, employer, co-worker, or member of the public. . . . . 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;

[3] A.R.S. § 32-1606(B)(16) provides that the Board shall, “[e]xcept for a licensee who has been convicted of a felony that has been designated a misdemeanor pursuant to section 13-604, revoke a license of a person . . . who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing an application pursuant to this chapter.” [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. [5] 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