ALJDEC decisions subject to certification as final

20A-1803003-NUR-RES · State Board of Nursing · 2020-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN118999

ISSUED TO:

ESTELLA ANITA YAHYA,

A.K.A.: ESTELLA ANITA NOALL, ESTELLA ANITA GUTIERREZ,

RESPONDENT

No. 20A-1803003-NUR-RES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 15, 2020; the record was held open until July 24, 2020, for the receipt of the transcript

APPEARANCES: Respondent Estella Anita Yahya appeared on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. Witnesses Stephanie Cruz and Emily Bashah, Psy.D. were also present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

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 A.R.S. §§ 32-1606, 1663, and 1664. 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 through 1667 and the Arizona Administrative Code Rules 4-19-101 to 4-19-815.

Respondent Estella Anita Yahya (“Respondent”) holds Board-issued registered nurse (RN) license number RN118999.

In March 2018, Respondent self-reported to the Board that she had been arrested for driving under the influence (“DUI”). As a result, the Board opened an investigation.

Senior Investigator for the Board, Stephanie Cruz, investigated this matter. Ms. Cruz sent Respondent an Investigative Questionnaire. Respondent provided a written description of the incident in pertinent part as follows:

On the morning of 02/16/18 I was experiencing insomnia and anxiety. I had minimal sleep the past few days. My provider had recently prescribed an extended release Ambien and I took one at approximately 0800. . . . I do not recall getting into my car or leaving my home. I do recall that I was driving east on Germann Rd toward Kelly Automotive to have my car serviced. I vaguely recall entering the establishment and waiting in line to be helped. It was at this time that I was approached by a police officer . . .

. . . .

Prior to my arrest, I had seen my medical provider for a refill of my prescription of Ambien 10 mg tablets which I had been taking for approximately 10 years with no adverse effects.

. . . .

On February 16, 2018 I took my first Ambien CR tablet after experiencing insomnia and I had not slept for over 24 hours. I was not scheduled to work until 02/18/18. It was this event that led to my arrest and conviction for DUI.

As to my revocation of probation due to seven “dirty” urine tests, these were due to diluted samples and not to the detection of any drugs or alcohol. However, I was informed that diluted samples were considered positive tests. I was subsequently placed back on unsupervised probation and ordered to continue drug and alcohol counseling, community service and to submit to random urinalysis drug screenings.

My second revocation of unsupervised probation occurred in February of this year and was due to one diluted sample and two no shows to random urine screening with TASC. . . .

The Gilbert Police Department Incident/Investigation Report regarding this incident was provided to the Board by Respondent as an attachment to the Investigative Questionnaire. The Gilbert Police had received a report of reckless driving involving the vehicle driven by Respondent. When Gilbert Police made contact with Respondent, signs and symptoms of impairment were noted, specifically, a strong odor of alcohol emanated from Respondent’s breath, her eyes were bloodshot and watery, and her speech was slurred. When asked whether she had consumed any alcohol, Respondent initially denied consuming alcohol, and then admitted to having consumed two glasses of wine. Respondent admitted to taking Ambien. Respondent performed poorly on field sobriety tests. Respondent was arrested for DUI and submitted to a blood draw. The blood test results indicated that Respondent’s blood alcohol concentration at the time of the test was 0.154. Respondent’s DUI charge was amended to a charge of Extreme DUI.

On June 25, 2018, Respondent pled guilty to DUI in Gilbert Municipal Court, placed on probation, and ordered to comply with requirements of probation, including not possessing or consuming alcoholic beverages and completing substance abuse counseling.

On December 31, 2018, the Gilbert Municipal Court determined that Respondent had violated the terms of her probation by failing to refrain from possession or consumption of alcohol as directed and failing to complete substance abuse counseling as directed.

On March 28, 2019, the Gilbert Municipal Court determined that Respondent violated the terms of her probation by failing to complete substance abuse counseling as directed and failing to complete community service hours.

On August 1, 2019, the Board issued an Interim Order requiring Respondent to submit to a psychological evaluation, to include a substance abuse evaluation by a Board approved licensed psychologist, within 45 days of the service of the Order. The Order further advised Respondent that failure to comply with the Order constituted unprofessional conduct and may be cause for the Board to take disciplinary action against Respondent’s license.

Respondent failed to timely complete the required evaluation. A Notice of Charge was issued. However, the Board subsequently learned from licensed psychologist, Emily Bashah, Psy.D., that Respondent was scheduled for an evaluation, and Respondent completed the evaluation on October 18, 2019.

Dr. Bashah testified at hearing that she is a licensed psychologist by the Board of Psychological Examiners and she is trained in substance abuse disorders and co-occurring disorders. Dr. Bashah testified that she completed an evaluation with Respondent on October 18, 2019, and that during the course of the evaluation, Respondent disclosed a history of increased tolerance and dependence on Ambien. Respondent was aware that consuming alcohol while taking Ambien is contraindicated. Respondent expressed her concerned “about ‘being tested’ for Ambien by her employer.”

During the evaluation, Respondent told Dr. Bashah, “. . . that on the day of her DUI, she ‘blacked out on Ambien.’ She stated that she later found that her ‘garage was totally rearranged’ and found she drank three quarters of a bottle of ‘cheap cooking wine.’”

Dr. Bashah noted that at the time of the evaluation, Respondent was still on probation, yet Respondent admitted to consuming alcohol on September 24, 2019, at a concert. Respondent admitted that she had positive urinalyses for alcohol, and some were found to be diluted. Respondent explained the positive screens by stating, “I cook with a lot of wine.” Respondent also admitted to having “a couple of glasses of wine” when she went out to dinner for a friend’s birthday.

At hearing. Dr. Bashah expressed concern that Respondent was aware that she was not supposed to drink while on probation, yet continued to do so.

Dr. Bashah diagnosed Respondent with: i) Major Depressive Disorder, Unspecified; ii) Alcohol Use Disorder, Moderate; and iii) Sedative-Hypnotic Use Disorder, Mild.

Dr. Bashah made the following recommendations in light of the evaluation findings:

Medication monitoring and oversight by a Board approved psychiatric provider for symptoms related to depression and associated sleep disturbances by a provider qualified to treat co-occurring disorders. Addressing concerns of dependence, increased tolerance and misuse of Ambien medications is clinically indicated.

Although [Respondent] reported that she completed the court-mandated drug and alcohol counseling, it is concerning that she continues to drink alcohol despite being prohibited from doing so by her probation conditions. It is recommended that [Respondent] engage in an outpatient substance use treatment program that provides group therapy for didactic psychoeducation and skills building, meeting once a week, until successful completion and graduation, upon determination of the treatment provider. Additionally, [Respondent’s] motivation for treatment is assessed to be low, therefore, the therapist will need to ensure therapeutic rapport to maximize treatment effectiveness.

Specifically relating to individual psychotherapy, it is recommended that [Respondent] engage in treatment with a doctoral level provider who has expertise in alcohol use and mood related symptoms. Treatment goals should include psychoeducation on substance use, emotion regulation, coping skills, increasing insight and judgment, promoting awareness of disturbances related to alcohol use with psychological stabilization, awareness of triggers and relapse prevention. The frequency of therapy is suggested to be weekly for a minimum of four months, then reduced to bimonthly for an additional two months, or at the discretion of the treatment provider.

Random urine analysis is recommended to monitor compliance and accountability. Weekly support group attendance to Alcoholics Anonymous (or equivalent) groups and obtaining a recovery sponsor is recommended.

It is also suggested that the Board receive monitoring reports from her employer, her psychotherapist, treatment provider and psychiatric provider in order to monitor compliance and progress towards improved psychological functioning. It is recommended that [Respondent] not continue to work night shifts for a sustained duration of at least 12 months as it appears to exacerbate her risk of medication misuse with sleep disturbances.

Respondent testified that she experiences insomnia and attributed her issues with mood function to menopause. Respondent testified that she has been taking Ambien as prescribed by her provider for many years. Respondent explained that when she visited her provider for a refill on January 26, 2018, the provider advised that Respondent’s usual 10 mg dose of Ambien could no longer be prescribed. Respondent was prescribed other medications to try and when those were not successful in treating her symptoms, her provider prescribed extended release Ambien. Upon Respondent’s taking of the first dose of extended release Ambien, the DUI incident occurred. Respondent asserted that she agrees with Dr. Bashah’s findings and recommendations and is “willing to do what the Board recommends.” Respondent also testified that she “likes wine” and cannot work the day shift. However, Respondent urged that she wishes to continue with her nursing career.

On or about June 11, 2020, the Board issued a Complaint and Notice of Hearing that alleged violations of A.R.S. § 32-1601(26)(d), (i), (j); and A.A.C. R4-19-403(17). At the conclusion of the hearing, the Board requested an Order for Probation for thirty-six (36) months to include Dr. Bashah’s recommendations, abstaining from alcohol and non-prescribed medication usage, employer monitoring, and a designated RN to be Respondent’s supervisor to report to the Board.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction pursuant to 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. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct, specifically: i) conduct that is or might be harmful to the health of a patient or the public; ii) failing to comply with a Board Order; and iii) engaging in conduct that is or might be harmful or dangerous to the health of a patient or the public including, a pattern of using or being under the influence of alcohol and/or drugs to the extent that judgment may be impaired and nursing practice detrimentally affected, as alleged in the Complaint and Notice of Hearing.

In light of the risk of potential harm to which patients were exposed 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 A.R.S. § 32-1606(B)(10) and A.R.S. § 32-1663(D).

RECOMMENDED ORDER

IT IS RECOMMENDED that the Board place Respondent Estella Anita Yahya’s registered nurse license number RN118999 on probation for thirty-six (36) months.

IT IS FURTHER RECOMMENDED that during Respondent’s probationary period Respondent adhere to and complete the five (5) recommendations made by Dr. Bashah, abstain from alcohol consumption and non-prescribed medication usage, and obtain a designated RN employer monitor.

IT IS FURTHER RECOMMENDED that if Respondent fails to fully and timely comply with the aforementioned recommendations, absent written permission from the Board, the Board revoke registered nurse license number RN118999.

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.

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-137160-45720000Done this day, August 10, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

-54864001

001

-137160-45720000