ALJDEC decisions subject to certification as final

19A-1807042-NUR · State Board of Nursing · 2018-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 03, 2018 at 1:30 PM.[1] APPEARANCES: The Arizona State Board of Nursing (“Board”) was represented by Assistant Attorney General Elizabeth Campbell, Esq., who appeared with Brent Sutter as a witness. No appearance(s) on behalf of Elizabeth Crounse (“Respondent”). Robin Jasper (Certificate No. 50286) served as the Court Reporter.[2] ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board. FINDINGS OF FACT Background and Procedure 1. Administrative Notice is taken that Respondent was first issued Registered Nurse License No. RN145023 on March 07, 2007.[3] Respondent’s license is unencumbered and due for renewal on April 01, 2019.[4] The license is in good standing. 2. On November 19, 2018, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 1:30 p.m. on December 03, 2018. The Notice of Hearing identified the issue as follows: [T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Elizabeth Crounse, who holds registered nurse license number RN145023 to perform as a registered nurse in the State of Arizona.”[5]

3. The Board set forth eleven specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-1601(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(17), R4-19-403(18), and R4-19-403(31); 32-1601(26)(g); 32-1601(26)(i); and 32-1601(26)(j).[6] Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664. 4. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the allegations in the Board’s Complaint. Hearing Evidence 5. The Board presented the testimony of Brent Sutter and submitted Exhibits 1-10.[7] The Complaint was also admitted into the evidentiary record. 6. On or about September 30, 2016, Respondent’s employer, St. Joseph’s Hospital, administered a for-cause drug screen to Respondent whereby Respondent tested positive for marijuana and ethyl glucuronide.[8] Respondent tendered her resignation of employment effective October 03, 2016. On or about October 07, 2016, the Board received information regarding the underlying reasons for Respondent’s separation of employment from St. Joseph’s Hospital.[9] 7. On or about November 04, 2016, Respondent entered into a three-year non-disciplinary stipulated agreement with the Board to participate in a diversion program for chemically addicted nurses (“CANDO”).[10] The agreement, in part, requires Respondent to notify the Board, through her healthcare provider, if she is prescribed a potentially addictive or mind-altering medication.[11] The monthly report would also include the provider’s justification for the continued prescription.[12] The agreement also required Respondent to submit bimonthly self-report forms to the program.[13] 8. On December 30, 2016, the Board received a letter from Respondent’s healthcare provider regarding Respondent’s participation in CANDO.[14] The provider disclosed that Respondent had been prescribed controlled substances from September 2016 that would continue through October 2018.[15] No monthly prescription reports regarding Respondent’s prescriptions were submitted to CANDO, in violation of Respondent’s stipulated agreement with the Board. 9. Respondent relapsed and tested positive for marijuana on five separate occasions: January, 20, 2017, February 14, 2017, February 27, 2017, March 10, 2017, and March 23, 2017, in violation of her signed Board agreement.[16] 10. The Board agreed to provide Respondent with a second chance and permitted her to enter into an addendum to her stipulated agreement on February 23, 2017.[17] In addition to adhering to the original agreement, Respondent was further required to adhere to twelve additional requirements, including submitting bimonthly treatment and support group reports to the Board.[18] The addendum also reset her three year program commitment. 11. On or about June 22, 2018, Respondent was subject to a drug screen whereby her urine specimen tested “invalid” due to interference.[19] A secondary screen was administered on July 05, 2018, whereby Respondent tested positive for alcohol.[20] When questioned by the Board on July 24, 2018, Respondent admitted that she had relapsed in June of 2018 and consumed alcohol in violation of her stipulated agreement. 12. On August 30, 2018, the Board emailed Respondent a proposed Consent Agreement[21], which Respondent responded to the Board on August 31, 2018, as follows: “I’d like to know how many board members and government cogs like you ever worked in conditions that are expected of floor nurses today. I’m not excusing my ‘trangessions’ [sic] of using marijuana or (gasp!) alcohol, but I seriously doubt any of you were quality nurses. If you were, you’d remain at the bedside like I have for 14 years. Fuck all of you. Revoke my license, put me on the OIG list. At least I can go to bed at night knowing I’m an expert nurse who made a difference instead of being an incompetent, lazy bureaucrat.”[22]

13. Respondent was scheduled for urine testing on September 06, 2018, but refused to submit a specimen for examination. She also failed to report for scheduled testing on September 19, 2018, October 05, 2018, and October 17, 2018, in violation of her stipulated agreement with the Board. 14. The Board received an attendance report from Respondent’s nurse recovery program on or about September 26, 2018, which stated that Respondent failed to attend a meeting held September 03, 2018, and that on September 04, 2018, Respondent informed the facilitator that she had surrendered her nursing license.[23] Respondent did not return to the nurse recovery group, in violation of her stipulated agreement with the Board. 15. Respondent did not submit her self-report to CANDO on September 30, 2018, or within the seven-day grace period she was afforded by agreement, or anytime thereafter.[24] 16. Per her signed stipulated agreement, Respondent was required to obtain a recovery/relapse prevention evaluation within one year of her signed addendum (e.g. by February 23, 2018). Although Respondent was permitted to complete an exam and provide the resulting evaluation to the Board by September 19, 2018, she failed to do so, in violation of the addendum.[25]

CONCLUSION OF LAW

1. The Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See Ariz. Rev. Stat. §§ 41-1092.04 and 41-1061(A). 2. This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41- 1092.11(B) to regulate and control the practice of nursing in the State of Arizona. Pursuant to Ariz. Rev. Stat. §§ 32-1601 through 1669 and Ariz. Admin. Code R4-19-101 through 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. 3. The Board bears the burden of proof to establish cause to penalize Respondent’s registered nursing license.[26] Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[27] 4. The Board’s burden is a preponderance of the evidence.[28] 5. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

6. Ariz. Rev. Stat. § 32-1601(26) defines unprofessional conduct in the nursing profession, in pertinent part, as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(d) As 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.

* * *

(i) Failing to comply with a stipulated agreement, consent agreement or board order.

(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

7. Ariz. Admin. Code R4-19-403 defines unprofessional conduct in the nursing profession, in pertinent 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.

8. Ariz. Rev. Stat. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows: * * * (D) If 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. * * * (F) If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to subsection D or E of this section, the board may serve on the licensee or certificate holder a written notice that states: (1) That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter. (2) The nature of the allegations asserted and that cites the specific statutes or rules violated.

9. Ariz. Rev. Stat. § 32-1664(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating that, “If 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.” 10. Here, the Board has sustained its burden of proof. 11. The Board established by a preponderance of the evidence that Respondent failed an employer-administered drug screen on or about September 30, 2016, in violation of Ariz. Rev. Stat. § 32- 1601(26)(d) and Ariz. Admin. Code R4-19-403(18). 12. Moreover, the Board established by a preponderance of the evidence that Respondent entered into a stipulated agreement with the Board on or about November 04, 2016, whereby she was required, in pertinent part, to participate in rehabilitation programs, support groups, submit bi/monthly reports, make timely disclosures, and submit to drug and alcohol screenings. The Board further established that Respondent failed to fulfill the aforementioned obligations she agreed to adhere to, as outlined in her signed stipulated agreement, and failed multiple drug screens in violation of Ariz. Rev. Stat. §§ 32-1601(26)(g) and 32-1601(26)(i), and Ariz. Admin. Code R4-19-403(17). 13. The Board also established by a preponderance of the evidence that after Respondent’s multiple failed drug screens, she was given another chance by way of an addendum. The Board further established that Respondent continued to fail her drug and alcohol screens, and that at least on one occasion she tampered with her screen resulting in an invalid result, in violation of Ariz. Rev. Stat. §§ 32-1601(26)(g), 32-1601(26)(i), and 32- 1601(26)(j), and Ariz. Admin. Code R4-19-403(17). 14. Lastly, the Board established by a preponderance of the evidence that Respondent refused a Consent Agreement offered by the Board on August 30, 2018, in a combative and hostile manner. 15. The undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of inappropriate conduct against Respondent to be credible. Respondent failed to appear and provide exonerating or mitigating evidence to refute the Board’s claims. Moreover, there is no evidence in the record to reasonably suggest that Respondent ever fully admitted any wrongdoing to the Board or attempted to enter into the Consent Order she was offered for the underlying events captured herein, demonstrating that she is not able to be regulated at this time. 16. Thus, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32- 1601(26)(d), 32-1601(26)(g), 32-1601(26)(i), 32-1601(26)(j), and Ariz. Admin. Code R4-19-403(17), R4-19-403(18), and R4-19- 403(31). 17. Because Respondent has committed unprofessional conduct, the Board has authority to revoke her registered nursing license. Ariz. Rev. Stat. §§ 32-1663(D) and 32-1664(O). 18. The Board has a legitimate interest in protecting the public. In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under Ariz. Rev. Stat. §§ 32- 1663(D)[29] and 32-1664(N).[30] 19. Considering the facts and circumstances of this matter, it is recommended that registered nursing license number RN145023 be revoked. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the Board revoke Elizabeth Crounse’s registered nursing license number RN145023. 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, December 18, 2018.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The record was held open until December 14, 2018, to allow the Office of Administrative Hearings to receive the court reporter’s official hearing transcript for this matter. [2] Ms. Jasper’s Reporter’s Transcript of Proceedings is the official record for 19A-1807042-NUR. [3] See https://www.nursys.com/LQC/LQCViewReport.aspx. Respondent also holds an unencumbered license in the State of New York (License No. 693546, effective October 21, 2014), which will expire January 31, 2020. Respondent was licensed in the State of New Mexico York (License No. R49861, effective July 01, 2003), but allowed the license to expire sans renewal on July 31, 2007. [4] Id. [5] See Hearing File, page 1. [6] Ariz. Rev. Stat. § 32-1601(26) was effective August 09, 2017. For conduct occurring before August 9, 2017, Ariz. Rev. Stat. § 32-1601(24) (with language identical to the 2017 statute) applies. For conduct occurring before July 01, 2016, Ariz. Rev. Stat. § 32-1601(22) (with language identical to the 2017 statute) applies. This decision will reference only the 2016 version of the statute for simplicity. [7] Board Exhibits 1-5 and 8-10 were admitted into the public hearing record. Board Exhibits 6 and 7 were admitted as confidential. [8] See Board Exhibit 2. [9] See Board Exhibit 1. [10] See Board Exhibit 3. [11] Id. [12] Id. [13] Id. [14] See Confidential Board Exhibit 6. [15] See Confidential Board Exhibit 7. [16] See Board Exhibit 4. [17] See Board Exhibit 5. [18] Specifically, Respondent was required to attend at least two weekly Alcoholics Anonymous, Narcotics Anonymous, or equivalent community programs, and submit bimonthly attendance reports. Respondent was also required to attend a Board-approved weekly nurse recovery group whereby the facilitator would provide the Board with weekly attendance reports. [19] See Board Exhibit 4. [20] Id. [21] See Board Exhibit 8. [22] Id. [23] See Board Exhibit 10. [24] See Board Exhibit 9. [25] Id. [26] See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19- 119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [27] See Ariz. Rev. Code R2-19-119(B)(2). [28] See Ariz. Admin. Code R2-19-119. [29] Ariz. Rev. Stat. § 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. [30] Ariz. Rev. Stat. § 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