ALJDEC decisions subject to certification as final

19A-1803099-NUR · State Board of Nursing · 2019-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2019. APPEARANCES: Valerie Arden Pruett did not appear. Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Nursing (“the 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. Valerie Arden Pruett (Respondent) holds Board-issued Registered Nurse License No. RN197431 in the State of Arizona. 3. In March 2018, the Board received a complaint regarding Respondent having charted 4 doses of Fentanyl to a patient on 2-28-18.[1] That patient’s chart indicated that the next day, when a different nurse gave that patient 1 dose, the patient complained of feeling “funny” and clarified for that nurse she had not been given 4 doses the previous day. The complaint further indicated that the facility noted multiple irregularities regarding amounts of withdraws (from the Acudose) and a high rate of wastage.[2] Additionally, the facility noted that it had determined that Respondent had used another nurse’s password to the Acudose and electronic medical records (EMR) systems, and had also indicated that the other nurse was witness to the wastage, at times when that nurse was not even on shift.[3] The facility determined that such falsification actions had occurred with respect to multiple patients and that Respondent had even sought out the other patients who were receiving Fentanyl in order to give nursing care to those other patients.[4] 4. While Respondent was interviewed two times in March 2018 about these discrepancies, she denied using narcotics; she also denied using narcotics when she later resigned on May 9, 2018. Respondent was suspended the day of the first interview but cooperated with a urine drug screen. 5. On March 19, 2018, the drug screen results showed positive for fentanyl. 6. On March 21, 2019, the Board issued a Summary Suspension of Respondent’s RN License.[5] 7. Since the time of the facility complaint, Respondent has failed to respond to numerous attempts by the Board to contact her. Respondent failed to furnish in writing a full and complete explanation of this matter. 8. On March 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), (g), (h), and (j);[6] A.A.C. R4-19-403(1), (8)(a), (8)(b), (9), (16), (17), (18), (25)(a), and (31).[7] The Complaint and Notice of Hearing was sent via email, via first class mail, and via certified mail to Respondent at her address of record. 9. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. 10. 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 more than 20 minutes to allow Respondent additional time to appear, 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 dispute the allegations within the Board Complaint or to defend her RN license. 11. At hearing, the Board submitted 8 exhibits[8] and presented the testimony of Stephanie Chambers, Nurse Practitioner Consultant to the Board. Ms. Chambers presented credible testimony regarding the at-issue actions of Respondent with regard to inappropriate and fraudulent medicine draws from Acudose for three patients, wastage (not in compliance with law or policy), and obtaining Fentanyl in violation of federal and state laws and rules. Ms. Chamber’s credible testimony was fully supported by the documented, confidential, exhibits. 12. The Board’s March 22, 2019 Complaint and Notice of Hearing is hereby incorporated into the official hearing record. 13. The hearing record concluded on May 6, 2019 following receipt of the Board’s prepared transcript as the official written record of the April 12, 2019 administrative hearing session and the Administrative Law Judge’s review of the entire record. 14. The Administrative Law Judge determines that the Board proved each of the allegations of law and rule the Board had made in its Complaint and Notice of Hearing regarding Respondent. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board e- mailed and 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). 3. The Board bears the burden of proof and must establish cause to discipline Respondent’s RN 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 acted in violation of federal and state laws and Arizona Board-regulated standards and practices as defined in A.R.S. § 32-1601(26)(d), (g), (h), and (j); A.R.S. §§ 32-1663 and 32-1664; and A.A.C. R4-19-403(1), (8)(a), (8)(b), (9), (16), (17), (18), (25)(a), and (31). 6. Given Respondent’s violations of law and rules, and Respondent’s failure to attend the hearing in this matter, Respondent has demonstrated that she cannot be regulated. Thus, the Board established cause to impose a disciplinary sanctions, suspension, or revocation against Respondent’s license under the foregoing laws and rules. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board uphold its March 21, 2019 Summary Suspension Order and, further recommends that the Board revoke RN License 197431 issued to Respondent Valerie Arden Pruett. 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, May 28, 2019.

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See Exhibit 1. [2] See Exhibit 2, page 7. [3] The other referenced RN, B. Cummins, did indicate that she had “one time” given Respondent her Acudose password. RN Cummins was negative on her urine drug screen results; she has been allowed to return to work under corrective action parameters. See Exhibit 1, page 3. [4] See Exhibit 3 (Acudose events); see also Exhibit 4 (Patient 8893837 Medication Administration records 2-5-2018 through 2-15-2018), Exhibit 5 (Patient 8888548 Medication Administration records 2-7-2018 through 2-11- 2018), and Exhibit 6 (Patient 8899278 Medication Administration records 2- 24-2018 through 3-3-2018). [5] Although referenced in the Board’s Complaint and Notice of Hearing, the hearing record does not contain a copy of the Board’s Summary Suspension Order. [6] 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. . . . . (g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. . . . . (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.

[7] A.A.C. R4-19-403 describes various conducts or practices that are or might be harmful to the public and, as charged in this matter, respectively,

1. A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice. . . . . 8. Falsifying or making a materially incorrect, inconsistent or unintelligible entry in any record: (a) [r]egarding a patient … (b) [p]ertaining to obtaining, possessing, or administering any controlled substance as defined in the federal Uniform Controlled Substances Act, 21 U.S.C. 801 et seq., or Arizona’s Uniform Controlled Substances Act, A.R.S. Title 36, Chapter 27. 9. Failing to take appropriate action to safeguard a patient’s welfare of follow policies and procedures of the nurse’s employer designed to safeguard the patient. . . . . 16. Removing, without authorization, a narcotic, drug, controlled substance, supply equipment, or medical record from any health care facility, school, institution, or other work location. 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. . . . . 25(a). Failing to furnish in writing a full and completed explanation of a matter reported pursuant to A.R.S. § 32-1664 … . . . . 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.

[8] Admitted Hearing Exhibits #3, #4, #5, #6, #7, and #8 are deemed confidential.

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