ALJDEC decisions subject to certification as final

20A-201901247-NUR · State Board of Nursing · 2022-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN179421 AND ADVANCED PRACTICE CERTIFICATE NO. AP7792

ISSUED TO:

DEANNA LEA WRIGHT,

AKA: DEANNA LEA RODRIGUEZ,

DEANNA LEA WAMBACH,

No. 20A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 25, 2022

APPEARANCES: Teressa Sanzio, Esq. for Deanna Lea Wright; Elizabeth Campbell, Esq. for the Arizona Board of Nursing

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.

On October 13, 2021, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on December 1, 2021 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued and the hearing was conducted on March 25, 2022.

Respondent Deanna Lea Wright appeared through counsel and presented her own testimony and that of Martha Carey-Lee, MS, FNP-C, and Melanie Balestra, JD, PNP, MN, BSN.

The Board presented the testimony of Diane Caruso MSN, FNP-c, CRRN, who is an Advanced Practice Consultant with the Board.

Ms. Wright became an RN in or about August 2013 and a FNP-C in or about May 2015, and she holds registered nurse license number RN179421 and advanced practice certificate number AP7792.

Ms. Wright was employed at Planned Parenthood (Tempe) from August 2013 through March 2021. She was the Lead Nurse Practitioner/Lead Clinician from February 2016 through September 2020 and she was also the Director of Family Planning from March 2017 through September 2020.

Ms. Wright’s duties included training and supervising new hires; she developed the training program.

Through its Complaint, the Board alleges that Ms. Wright committed acts of unprofessional conduct in August 2018 when she hired Whitney Pettijohn, RN as a clinician at which time now-Dr. Pettijohn did not hold the required advance practice certificate; and that while working under Ms. Wright’s supervision, now-Dr. Pettijohn performed tasks outside the scope of practice of an RN before she obtained her certification as a FNP.

Ms. Wright acknowledges that these events occurred, but explained that she had been of the belief that Dr. Pettijohn was allowed to perform the work under Ms. Wright’s supervision because Dr. Pettijohn had completed her clinical and educational training and had passed the national certification examination. Ms. Wright’s understanding was to the effect that her supervision of Dr. Pettijohn was equivalent to her supervising a student who was still obtaining their required educational/clinical training.

At the Board’s March 31, 2021 meeting, two Board members expressed opinions to this same effect (i.e., that it was allowable for Dr. Pettijohn to perform the work at issue because she was acting under Ms. Wright’s supervision). Janeen Dahn, who was then a member of the Board’s staff, expressed her opinion to the effect that although a student enrolled in school could perform work under the supervision of a nurse practitioner, once the student was no longer enrolled in a program, she could not perform that work.

At the hearing, Ms. Caruso testified to the effect that Dr. Pettijohn was not eligible to work under Ms. Wright’s supervision, because at the time she completed the work at issue Dr. Pettijohn was no longer enrolled in an educational program.

Ms. Carey-Lee and Ms. Balestra each testified to the effect that Ms. Wright’s supervision of Dr. Pettijohn was allowable and was a typical or common practice for practitioners who had completed their educational training, but were not yet certified.

Ms. Wright had supervised many students’ clinical work, but she had never before supervised someone like Dr. Pettijohn who had completed the clinical work, but was not yet certified. Based on the issues raised in this matter, Ms. Wright had no intention of again supervising someone in Dr. Pettijohn’s position.

There are three requirements to be certified as an advanced practice nurse practitioner in Arizona: (1) graduation from an accredited program; (2) passing a national certification examination; and (3) receiving certification from the Board. It is not necessary for the applicant to receive her degree before taking the certification examination, but rather she must only have completed the didactic and clinical education.

On December 21, 2017, Dr. Pettijohn was approved to sit for the American Academy of Nurse Practitioners Certification Board’s FNP examination, because she had completed her didactic and clinical education. She passed that examination in February 2018 and on August 31, 2018, the American Academy of Nurse Practitioners Certification Board certified Dr. Pettijohn as a family nurse practitioner.

On August 18, 2018, Dr. Pettijohn received from the University of Arizona College of Nursing her Doctor of Nurse Practice Degree with Family Nurse Practitioner Specialty.

Ms. Caruso acknowledged that although Dr. Pettijohn was not certified, she had demonstrated proficiency and competency as a FNP in that she had completed her didactic and clinical work and had passed the certification examination.

On August 22, 2018 Dr. Pettijohn applied to the Board for a temporary FNP certificate. The Board issued to Dr. Pettijohn her temporary certification on September 11, 2018 and her final certification on September 18, 2018.

Dr. Pettijohn applied for employment with Planned Parenthood in April 2018, at which time she was an RN. She was hired on August 6, 2018. She and Ms. Wright were acquainted and had worked together before, but Ms. Wright was not involved in the hiring decision.

As Director of Family Planning and Lead Clinician, Ms. Wright was responsible for training and ensuring proficiency of the NPs Planned Parenthood hired.

All Planned Parenthood employees undergo training, even those like Dr. Pettijohn who had completed her clinical and educational training and had passed the certification examination. While in training at Planned Parenthood, Dr. Pettijohn was assessed and found to be competent as a clinician.

Dr. Pettijohn’s training was taking place in Tempe and the plan was for her to work as a FNP and clinician in Tucson once her training was complete and she was certified by the Board.

Ms. Wright was Dr. Pettijohn’s supervisor and was responsible for training and for her work, all of which work except an occasional RN task was conducted under Ms. Wright’s supervision.

Ms. Wright had supervised many students in the same manner, although she had never supervised someone like Dr. Pettijohn who had completed her educational requirements.

Ms. Wright testified to the effect that supervision meant that she was responsible for the work. Ms. Wright signed all the charts, because the patients were her patients, and not Dr. Pettijohn’s.

Dr. Pettijohn’s training included observing Ms. Wright, learning about policy and procedure, and participating in patient care, including creating treatment plans, which included labs and medications.

On August 22, 2018, patient LR presented for the insertion of an IUD.

On August 23, 2018, patient JB presented for the removal of an IUD.

In both cases, Dr. Pettijohn performed the work under Ms. Wright’s supervision. Ms. Wright was standing behind Dr. Pettijohn and was observing, assisting, and ready to intercede if there was a need to do so or if there was any risk of harm to the patients. Ms. Wright signed the charts showing that she was the supervising provider.

Insertion and removal of IUDs are not within the scope of an RN, but are within the scope of a properly trained and educated FNP. As of August 22 and 23, 2018, Dr. Pettijohn had demonstrated that through her education and training she was competent to perform this work.

Before Dr. Pettijohn received her Board of Nursing certification, she was not allowed to write prescriptions, and Planned Parenthood’s computer system would not allow her to do so.

LR’s records have an entry under “meds prescribed” showing that Dr. Pettijohn ordered the Pargard T IUD, but this entry is not strictly accurate and actually shows that Dr. Pettijohn checked the box in med-module (i.e., the computer form) with the IUD being taken from Planned Parenthood’s inventory.

In Dr. Pettijohn’s case, although the Board issued her temporary certification on September 11, 2018, Planned Parenthood’s computer database was not initially updated and that system would not allow her to write prescriptions until it was updated on September 12, 2018.

Although the plan had been for Dr. Pettijohn to be certified by the Board before she returned to Tucson, there was a delay in the processing of her application and she had to return to Tucson before she was certified.

Ms. Wright and others from Planned Parenthood had discussed with Tucson employee Dawson Lopez that Ms. Lopez would supervise Dr. Pettijohn in the same manner that Ms. Wright had (understanding that Dr. Pettijohn could not practice alone because she was not yet certified). Ms. Lopez agreed to provide that supervision.

On Tuesday September 4, 2018, Ms. Wright and Dr. Pettijohn went to Tucson together.

At that time, Ms. Wright told Ms. Lopez that all the patients were still hers, and she showed Ms. Lopez how to make the appropriate entries in the computer system to show that Ms. Lopez was supervising Dr. Pettijohn’s work.

According to Ms. Wright, Ms. Lopez was excited to supervise Dr. Pettijohn and she understood that Dr. Pettijohn could participate in treatment plans but had to be supervised by a licensed provider who then had to sign off on the charts.

On September 7, 2018, Ms. Lopez sent Ms. Wright an email showing that she did not understand her role with respect to Dr. Pettijohn and requesting clarification as to whether Dr. Pettijohn could perform work under her supervision.

Because Ms. Lopez did not understand her role, Ms. Wright informed her that she would no longer be acting as Dr. Pettijohn’s supervisor and she reassigned Dr. Pettijohn to the ultrasound unit, which work could be performed by an RN.

In or about October 2018, Ms. Lopez was fired from Planned Parenthood for violating HIPPA. Soon thereafter, Ms. Lopez filed with the Board a complaint against Dr. Pettijohn and about a year later the complaint against Ms. Wright that gives rise to this matter.

The evidence strongly suggests that Ms. Lopez filed her complaints in retaliation.

Based on an Advisory Opinion, nurse externs, which includes those who have graduated from an approved nursing program and who are waiting to take the NCLEX, may practice under the supervision of an RN.

The Board’s November 19, 2009 Substantive Policy Statement includes as criteria for issuance of a letter of concern in matters that involve either: (1) a first time complaint with no harm to a patient and no risk of significant harm if the practitioner acted without intent, and (2) single or time-limited minor violations that did not result in harm and in which the practitioner does not demonstrate incompetence.

Ms. Caruso’s opinion was the events at issue are not minor because Dr. Pettijohn was practicing without certification.

Delegation is a technique that is related to the utilization of resources. As such, it would not make sense to delegate a task and then supervise the person to whom the task was delegated.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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).

The Board has jurisdiction over the practice of nursing in Arizona. Ariz. Rev. Stat. §§ 32-1606, 32-1663, 32-1664.

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The same rules in are used to construe both statutes and rules." Smith v. Arizona Citizens Clean Elections Comm'n, 212 Ariz. 407, 412, ¶ 18, 132 P.3d 1187, 1192 (2006).

To be certified as an advanced practice registered nurse, an applicant must meet the requirements set out in Ariz. Admin. Code section R4-19-505.

It is unlawful for a person who is not certified to practice as a registered nurse practitioner. Ariz. Rev. Stat. § 32-1666(A)(1).

There is however an exception in that the applicable statutes do not prohibit “Registered nurse practitioner ... practice by duly enrolled students under competent supervision as part of a registered nurse practitioner ... program ....” Ariz. Rev. Stat. § 32-1631(7).

Ariz. Rev. Stat. section 32-1601(27) provides that:

"Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

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(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

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(g) [Willfully] or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

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

Ariz. Admin. Code section R4-19-403 provides:

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:

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11. Failing to report to the Board a licensed nurse whose work history includes conduct, or a pattern of conduct, that leads to or may lead to an adverse patient outcome;

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14. Delegating services that require nursing judgment to an unauthorized person;

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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.

The preponderance of the evidence shows that Dr. Pettijohn performed work that requires an APRN certificate before she received her Board certification. Because Dr. Pettijohn was no longer a properly enrolled student when she performed that work, the safe harbor found in section 32-1631(7) is not applicable to her. There are also no advisory opinions showing that that safe harbor should be extended to cover someone who has completed all requirements for certification except the background check. The preponderance of the evidence also shows however, that members of the nursing community, including two board members, have a misunderstanding as to this limitation.

It has not been proven that Ms. Wright’s conduct was or might have been harmful to the public because in this particular case Dr. Pettijohn had met the educational and clinical requirements and had been found to be competent to provide the services at issue, and Ms. Wright was standing right behind Dr. Pettijohn and was prepared to intercede to prevent any harm if it was necessary to do so. Moreover, Ms. Wright had experience supervising the clinical work of many other students.

It has not been proven that Ms. Wright violated Ariz. Admin. Code section R4-19-403(14) because she never delegated any tasks to Dr. Pettijohn, but rather she was actively supervising Dr. Pettijohn’s work.

It has not been proven that Ms. Wright violated Ariz. Admin. Code section R4-19-403(11) because Ms. Wright had no basis on which to conclude that Dr. Pettijohn had engaged in conduct that was reportable. To the contrary, Ms. Wright had a good-faith belief that Dr. Pettijohn’s conduct was within the scope of the statutes and rules and Ms. Wright was supervising the work which effectively eliminated the possibility of an adverse patient outcome resulting from Dr. Pettijohn’s conduct.

It has not been proven that Ms. Wright violated Ariz. Admin. Code section R4-19-403(31) because there is no reasonable basis on which to conclude that the health of a patient or the public might be harmed by Ms. Wright’s actions. She and Dr. Pettijohn had demonstrated that they each had the required educational and clinical experience and that they were each competent to perform the work at issue. There is also no risk that Ms. Wright will repeat the behavior at issue because she is now aware that the exception allowing students to practice under supervision is not applicable to those like Dr. Pettijohn who have completed their didactic and clinical training and are awaiting Board certification.

It has not been proven that Ms. Wright violated Ariz. Rev. Stat. sections 32-1601(27)(g) or (27)(j).

Considering that it has not been proven that Ms. Wright committed the alleged violations, it is recommended that this matter be dismissed. However, even if Ms. Wright had committed one or more of the alleged violations, it would be appropriate for the Board to issue a letter of concern, rather than taking disciplinary action in light of the fact that members of the nursing community, including two Board members, have been working under a misunderstanding of the scope of the statutory exception that allows practitioners without certification to practice under proper supervision.

RECOMMENDED ORDER

IT IS ORDERED that the Complaint against Deanna Lea Wright is dismissed.

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.

-54864001

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-137160-45720000Done this day, May 17, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

-54864001

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-137160-45720000By Miranda Alvarez

Legal Secretary