ALJDEC decisions subject to certification as final

20A-1705089-NUR · State Board of Nursing · 2020-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN162204

ISSUED TO:

LISA MARIE BOYLE,

RESPONDENT.

No. 20A-1705089-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 21, 2020 with the record held open until May 1, 2020.

APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. Lisa Marie Boyle, Respondent, was not present at the hearing.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board of Nursing (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 (A.R.S.). 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.

Lisa Marie Boyle (Respondent) holds Board-issued RN License No. RN162204 in the State of Arizona.

On or about May 28, 2017, the Board received a complaint from a family member of Respondent’s patient that alleged Respondent smelled of alcohol and was intoxicated. The Board conducted an investigation.

On or about October 5, 2017, an occupational health provider reported that Respondent reported that she was not present at work due to delirium tremens, alcohol withdrawal, seizures, and gastrointestinal bleeding. Respondent inquired about the CANDO program. An interview was set up for October 11, 2017.

On or about October 11, 2017, Respondent met with the Board’s staff to be considered for the Board’s Alternative to Discipline Program. At this meeting, Respondent admitted to Board staff that she had a substance use disorder and admitted to her recent hospitalization in August 2017, due to alcohol abuse. She also admitted that she took time off of work due to excessive alcohol consumption.

On or about October 16, 2017, Respondent voluntarily entered into the CANDO Agreement. The CANDO Agreement was for a minimum of three years and required abstinence from alcohol, mind altering, and other controlled or potentially addictive substances, submission to randomized drug testing, participation in alcohol anonymous, narcotics anonymous, or equivalent meetings, and employment supervision upon approval to return to work.

On or about October 19, 2017, Respondent tested positive on a drug screening.

On or about October 20, 2017, Respondent informed the Board staff that she was terminated form her employment at Banner University Medical Center in Tucson, Arizona due to a positive drug screen for alcohol.

On November 16, 2017, Respondent tested positive for alcohol biomarkers on randomized drug tests in violation of the CANDO Agreement and the Board’s Drug testing Policy.

November 29, 2017, Respondent tested positive again for alcohol biomarkers on randomized drug tests.

On or about December 5, 2017, Respondent informed the Board of her relapse.

On or about December 6, 2017, Respondent signed and voluntarily entered into Second Addendum for Treatment, Rehabilitation, and Monitoring of Chemical Dependency Case no. 1705089.

On October 24, 2019, Respondent tested positive on a scheduled Peth (Phosphatidylethanol) test for alcohol biomarkers in violation of the CANDO Agreement. Respondent contested the results. The results were confirmed positive by the Medical Review Officer.

On or about January 22, 2020, Respondent submitted to a dilute specimen.

On or about January 31, 2020, Respondent admitted to Board staff to a relapse of alcohol due to the death of a close family member.

On or about February 5, 2020, the Board left Respondent a voicemail and sent her an email. Respondent never returned the Board’s messages.

On or about February 6, 2020, February 20, 2020, and March 2, 2020, Respondent failed to submit to randomized drug testing in violation of the CANDO Agreement.

On or about February 27, 2020, a refrain from practice letter and non-compliance letter was sent to Respondent’s address of record via regular and certified mail. The Board also sent Respondent a letter notifying her of an interview that was set for March 6, 2020, at 11:00 a.m.

On or about March 2, 2020, Respondent failed to submit to drug testing in violation of the CANDO Agreement.

On or about March 6, 2020, Respondent failed to attend the Board’s interview at the Board office in violation of the CANDO Agreement.

On or about March 23, 2020 Respondent was discharged from the Board’s Alternative to Discipline Program for non-compliance.

On or about March 31, 2020, the Board issued a Complaint, Notice of Hearing, and Summary Suspension Expedited Hearing alleging that cause existed to discipline Respondent’s Board-issued RN License No. RN162204 under A.R.S. § 32-1601 through 1669, and Arizona Administrative Code (A.A.C.) R4-19-101 to R-19-815.

The Board alleged that Respondent committed the following violations:

A.R.S. § 32-1601(26)(d)(any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public) and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

A.R.S. § 32-1601(26)(e)(Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public) and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

A.R.S. § 32-1601(26)(i) (Failing to comply with a stipulated agreement, consent agreement or board order) and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664..

A.R.S. § 32-1601(26)(j) (Violating a rule that is adopted by the Board) and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

A.A.C. R4-19-403 (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) and is grounds for disciplinary action pursuant to A.R.S. § 32-1663 and § 32-1664.

The Board referred the matter to the Office of Administrative Hearings (OAH), an independent agency, for an evidentiary hearing. A hearing was scheduled to convene on April 21, 2020. Respondent failed to appear.

HEARING EVIDENCE

The Board presented witness Kathleen Harrington, RN, program administrator, advanced practice consultant, and investigator for the Board. Nurse Harrington testified that on October 16, 2017, Respondent signed the CANDO Agreement. Respondent was to abstain from alcohol and any mind altering substance. As part of the CANDO Agreement, Respondent was to submit to two drug tests per month for 18 months. Respondent was also required to appear for in person interviews.

Non-compliance with the CANDO Agreement would result in discharge. That meant that all records would no longer be confidential and would be subject to public records.

On or about November 16, 2017, and November 29, 2017, Respondent tested positive for ethyl glucuronide which was a violation of the CANDO Agreement.

On or about December 6, 2017, Respondent signed a Second Addendum to the CANDO Agreement. Respondent admitted to a relapse and acknowledged the November 16, 2017, positive test. Per the Second Addendum, Respondent was to stay in the CANDO program for another three years, submit to drug testing, and attend alcoholics anonymous.

On or about October 24, 2019, Respondent tested positive for alcohol biomarkers after a Peth test was conducted. Pursuant to a physician’s review, the positive results were confirmed. Respondent contested the results and denied consumption.

Between January 2020, and March 2020, based on the Trek-story, Respondent checked in for drug testing but never took the drug tests. After February 12, 2020, Respondent never checked in or logged in.

On or about February 27, 2020, the Board sent Respondent a letter to discuss Respondent’s actions. Between January 2020, and March 23, 2020, several attempts were made to contact Respondent. Respondent never responded to any of the Board’s correspondence.

On or about March 23, 2020, Respondent was discharged.

Nurse Harrington testified that Respondent abandoned the CANDO Agreement. She opined that Respondent was unsafe to practice nursing and could not be monitored. The Board gave Respondent many chances yet Respondent continued to ingest alcohol and was unable to sustain sobriety. Nurse Harrington recommended that the Board approved summary suspension be upheld and Respondent’s nursing license be revoked.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under A.R.S. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the licensure and practice of nursing in the State of Arizona. Pursuant to A.R.S. §§ 32-1601 to 1669 and A.A.C. R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act.

The Complaint, Notice of Public Hearing, and Summary Suspension Hearing that the Board emailed 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, 41-1061(A).

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 evidence showed that the Board established, by a preponderance of the evidence, that Respondent engaged in the conduct alleged in the Complaint, Notice of Public Hearing, and Summary Suspension Hearing.

In light of the risk of potential harm and danger to patients as a result of Respondent’s violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1601(26)(d) and § 32-1601(26)(e).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge affirms the summary suspension and recommends that the Board revoke Registered Nurse License No. RN162204 previously issued to Respondent Lisa Marie Boyle.

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 8, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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