ALJDEC decisions subject to certification as final

20A-201902294-NUR · State Board of Nursing · 2020-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN120289

ISSUED TO:

ELIZABETH INEZ ATKINSON;

AKA: BENITES; ELIZABETH;

MILITTI; ELIZABETH

RESPONDENT

No. 20A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 6 and 29, 2020

APPEARANCES: Elizabeth Atkinson on her own behalf; Sunita Krishna, Esq. for the State 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.

Respondent Elizabeth Inez Atkinson holds registered nurse license number RN120289 issued by the Board. At its meeting held on November 19, 2020, the Board summarily suspended Ms. Atkinson’s license.

On December 4, 2019, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on December 23, 2019 at the Office of Administrative Hearings in Phoenix, Arizona.

The matter was continued and the hearing was conducted on May 6 and 29, 2020.

The Board alleges that Ms. Atkinson committed acts of unprofessional conduct by: (1) putting patients’ personal protected information at risk by allowing her children to use a computer where confidential patient information was stored; (2) refusing to undergo a fitness-for-duty assessment on September 20, 2018; (3) being prescribed monthly prescriptions for an opiate analgesic at a dose that may cause impairment and affect her ability to safely practice as a Registered Nurse; (4) testing positive nine times for cocaine, (an illegal substance) and testing positive for benzodiazepines, a controlled substance, eleven times without a current, valid prescription; and (5) making false statements to the Board.

Ms. Atkinson was employed at Tenant Carondelet St. Joseph’s Hospital in Tucson; on September 25, 2018, she was fired from her position for insubordination after the hospital determined that she refused a fitness-for-duty assessment.

Ms. Atkinson appeared and testified on her own behalf and also presented the testimony Teri Flanagan, Director of Rehabilitative Services at the hospital, who had been Ms. Atkinson’s supervisor; Charles Blake, M.D., who has known Ms. Atkinson for about twenty years and shared an office at the hospital with her; and Suzanne Garcia, a clinical psychologist and the liaison who brought the patients to the hospital’s rehab unit where Ms. Atkinson worked.

The Board presented the testimony of Kimberly Diaz, the hospital’s CNO and formerly Senior Nursing Director; and Stephanie Chambers, RN, a nurse practice consultant employed by the Board, who has a background in psychiatric and substance abuse issues.

In addition to her testimony, Ms. Atkinson had entered into evidence a written statement about the issues for hearing.

Ms. Atkinson presented evidence about circumstances that led to a highly stressful work environment and that she believes affected her treatment at the hospital.

Among these are: (1) speaking out about perceived safety issues; (2) opposing what she saw as an unethical policy; (3) issues that arose after it became known that she was in a personal relationship with the hospital’s CEO; (4) documenting a doctor’s deviation from the standard of care; (5) an allegation that she was working in a hostile environment after filing a complaint against the former nursing supervisor; and (6) threats that she alleges were made in conjunction with efforts to unionize the hospital.

Ms. Atkinson also presented evidence about issues in her personal life including that she is involved in two family law matters in the civil courts, one of which is with her ex-husband Dr. Charles Atkinson.

As a result of that matter, she is subject to random drug testing and must have a supervisor present when she is with her children. The supervisor is Kenneth Baldauf, who lives in her house, and who was described by Dr. Atkinson as Ms. Atkinson’s boyfriend. Ms. Atkinson made allegations that Mr. Baldauf is abusive and that he is responsible for some of her positive test results for cocaine.

The second family law matter Ms. Atkinson is involved with is the lawsuit between Mr. Baldauf and his wife or ex-wife.

Allegation 1 – allowing children access to confidential patient information

Dr. Atkinson worked at the hospital and there were times that Ms. Atkinson brought their children to work and allowed them to wait in her office until their father could take over supervision.

The Board alleges that Ms. Atkinson put patients’ personal health information at risk when on several occasions she logged into a facility computer and allowed her children access to the computer where confidential patient information is stored.

An entity known as the Joint Commission investigated allegations against Ms. Atkinson related to her children being in her office, including that the children had been using a computer on which patient information was displayed.

The Joint Commission concluded that the allegations were partially substantiated in that: Ms. Atkinson did allow her 10-year-old to use an obsolete computer to watch YouTube, but no patient data was displayed; and that her children may have had incidental exposure to patient information while on the unit, but the risk of a HIPAA violation was minimal considering their ages.

Ms. Flanagan was of the opinion that the computer did not have functionality to access medical records. There was protected health information in Ms. Atkinson’s office.

The hospital’s privacy and security officer found that what Ms. Atkinson did was inappropriate, regardless of the ages of children, and that children are not allowed at the nursing station or where protected health information is accessible.

Ms. Atkinson was required to review two hospital policies, and to acknowledge that she would stop allowing her children in areas with protected health information and that any future violations might result in discipline.

Despite the Joint Commission’s conclusions, Ms. Chambers’ opinion was that this was still an issue because Ms. Atkinson violated hospital policy and was required to review its HIPAA policy.

Allegation 2 - the fitness-for-duty evaluation

The crux of the allegation is that beginning at about 2:50 p.m. on September 20, 2018, Ms. Diaz and others at Carondelet saw signs that Ms. Atkinson might be impaired and she was told to undergo a fitness-for-duty test, which she refused.

The hospital considered this refusal to be insubordination in violation of its policies, and effective on September 25, 2018, Ms. Atkinson was fired.

Dr. Blake saw Ms. Atkinson on September 20th, but not during the time at issue. When he did see her, her appearance and affect did not show that she was impaired.

Although Ms. Flanagan authored the letter through which Ms. Atkinson was advised that she was being fired, she did not see the incidents at issue on September 20, 2018, but when she saw Ms. Atkinson earlier that day, Ms. Atkinson did not appear impaired.

Ms. Flanagan’s letter of September 24, 2018 shows that: on September 20th, CNO Nancy Melcher requested that Ms. Atkinson undergo the assessment based on after observable changes in her behavior, appearance and speech that occurred during a meeting with Ms. Melcher and Ms. Diaz; Ms. Atkinson refused and “fled the hospital;” at 5:31 p.m., Chief Human Resources Officer, Vera Daniel spoke to her by phone and reiterated that the test was required; Ms. Atkinson stated that she was leaving for New Mexico and would not be available.

Ms. Atkinson denies that she was asked to undergo the assessment and she explained that she left the hospital because disturbing pictures had been found on her child’s phone and she left the hospital in a rush to pick him up from school. She also explained that she had been scheduled to be on vacation as soon as her shift ended on September 20, 2018.

Ms. Diaz provided credible testimony as to the events that occurred on September 20, 2018. She prepared a report on that date that is in evidence as Ms. Atkinson’s exhibit V.

Ms. Diaz’s testimony and report show that:

At about 2:50, she and Rebecca Amick went to talk to Ms. Atkinson about a possible personnel change. They knocked on the door and Ms. Atkinson took 45 seconds or more to answer; when she did, she opened it only about eight inches and exposed her head only; she appeared disheveled; she let us in; her scrubs were crooked and a shoulder was exposed; and she looked sleepy.

We discussed the personnel issue and left her office.

Ms. Amick and I were discussing that Ms. Atkinson seemed very inappropriate in her responses. Ms. Atkinson came up to us, asking to talk; she was disoriented and confused; she was saying “it’s a conspiracy,” but we didn’t know what she was talking about.

Ms. Atkinson asked if Vera Daniel was there and I walked her to human resources; she was saying it was a conspiracy against her and talking about the CEO. I did not understand because she was not completing her thoughts or sentences.

On arrival at Ms. Daniel’s office, Ms. Atkinson needed a prompt, then began rambling again. Ms. Atkinson’s phone rang and she took the call and left HR.

I called Nancy Melcher; we met in the hall and I filled her in; we went back to Ms. Atkinson’s office; again she took 45 seconds to answer.

Ms. Atkinson opened the door and Ms. Melcher asked if she was ok; Ms. Atkinson did not respond in clear sentences.

Ms. Melcher said come with us to HR, you need to be tested, to which Ms. Atkinson replied “No.”

Ms. Atkinson pushed Ms. Melcher and ran out to her car. We contacted security because we did not think she was safe to drive, but she got away.

When Ms. Diaz was asked to describe Ms. Atkinson’s signs of impairment, she responded: her eyes were droopy, almost like she had just woken up; her pupils, from my recollection, were constricted and her eyes appeared glassy; her speech was very slow and slurred; she appeared confused and was speaking incoherent sentences; while we were walking to HR, she kept bumping into me like she was swaying, so her balance seemed to be a bit off and her movements were a bit jerky; she seemed to be very nervous, and her demeanor seemed very confused and anxious.

Ms. Diaz’s opinion was that Ms. Atkinson was not fit for duty on September 20, 2018, nor was she safe to drive. She added that Ms. Atkinson refused immediately when we requested the fit-for-duty assessment, and her belief was that Ms. Atkinson knew she would fail. Based on what Ms. Diaz saw, her opinion was that Ms. Atkinson is not safe to practice.

Ms. Daniel also prepared a report about the incident that is in evidence as Ms. Atkinson’s exhibit W. Ms. Daniel’s report is dated September 20, 2018, but she could not have written it on that date because she refers to events that occurred on September 24, 2018.

Ms. Daniel’s report provides that:

Ms. Atkinson and Ms. Diaz came into my office; Ms. Atkinson was not put together, but messy, which was out of character; she mentioned the union; she was incoherent and rambling, jumping from topic to topic; she said that the team is against her or being turned against her; that it was a conspiracy.

I could not follow her; I asked how can I help, and she yelled don’t patronize me. It was then clear to me that she was impaired in some fashion.

She took a phone call and left the room.

Ms. Diaz and I agreed that a fitness-for-duty test was required.

I learned that she had refused the test and pushed Ms. Melcher, and that she had left the hospital.

At about 5:30 p.m. I called her; I told her that she looked impaired and need to be tested immediately. She rambled about her kids being with Siri who is part of the conspiracy against her. I asked her to take the test and she refused, saying she was going on vacation to New Mexico. I told her we must meet by 9:00 a.m., when the call dropped and I believe she hung up.

I sent a text to inform her that she was suspended for violation of the drug policy and to ask her to contact me, but she did not respond.

Later that night I sent a courier with a letter of suspension; the courier could not deliver it because there was a police barrier set up at the house; he said that something serious had happened.

On September 24th or 25th, Ms. Flanagan sent her the notice of termination.

Ms. Atkinson did not undergo the requested fitness-for-duty assessment.

Ms. Atkinson provided the following description of the events:

After they discussed the personnel issue, she decided to go to HR.

She was concerned and intimidated by the upcoming union decisions; she wanted to ask Ms. Diaz’s advice. Ms. Diaz was an “official responder” for the union negotiations.

She was fearful and wanted to disclose things in a safe environment; on the way to HR she was asking Ms. Diaz about union scare tactics.

In HR she felt as though she was being shut down; she received the phone call and left the office.

She learned that disturbing pictures had been found on her son’s cell phone; she suspected a nurse who was living in her house was responsible; that nurse was supposed to pick up the child at school; she called the nurse and told her not to do so.

She was gathering her things so that she could leave immediately; she was leaving and Ms. Melcher was obstructing the door.

She was on the phone with someone and told that person that Ms. Melcher was preventing her from leaving to get her children in an emergent situation and that Ms. Melcher went so far as to grab her.

Ms. Melcher said she wanted to talk, but did not tell her to take the test; and Ms. Melcher was alone, not with Ms. Diaz.

She told Ms. Melcher that she had to go to get her kids, but Ms. Melcher pursued her.

She remained on the phone the whole time so it was witnessed in real-time.

She took the stairs down elevator B and Ms. Melcher followed her.

By the time she left, she was on vacation and she was not asked to take a fitness-for-duty test while on campus.

Later she was told that the reports provided by Ms. Diaz and Ms. Melcher included the information that they should have included if they had actually observed her to be impaired.

Ms. Atkinson did not provide any written statement or testimony from the person who purportedly was on the phone with her, and she did not even provide that person’s name. She did provide as an exhibit a page from a police report dealing with the issue.

Allegation 3 – the oxycodone dosage

Morphine milligram equivalency (“MME”) is a way to compare and monitor the opiate levels for people who are receiving different medications and dosages.

The Board alleges that from in or around October 2018 to at least September 2019, Ms. Atkinson has been prescribed monthly prescriptions for an opiate analgesic at a dose that may cause impairment and affect her ability to safely practice as a Registered Nurse.

Ms. Chambers testified that beginning in October 2018 and continuing through November 2019, Ms. Atkinson was getting monthly prescriptions for 120 15-mg tablets of oxycodone, which is 90 MME.

Oxycodone is an opiate and analgesic; it is considered a narcotic and is a controlled substance.

Ms. Atkinson acknowledged that she has been on the medication at decreasing or stable doses for over ten years, that her medical chart documents her chronic use and tolerance, and that her provider and other specialists have monitored her care.

Ms. Atkinson did not offer medical records to support her testimony.

Ms. Atkinson had disclosed her use to the hospital and received approval from “occupational health” before she was hired.

Dr. Atkinson was aware of Ms. Atkinson’s long-standing use of prescription opiates and that it caused him no concerns.

Ms. Chambers acknowledged that people can develop a tolerance to narcotics.

Dr. Blake’s opinion was that someone could develop a tolerance to narcotics and be able to function without being impaired. Dr. Blake had never seen Ms. Atkinson impaired in any workplace.

Dr. Blake was aware that Ms. Atkinson takes narcotics and benzodiazepine and of some of her reasons for doing so, including a rheumatologic disorder causing pain.

Dr. Blake is not Ms. Atkinson’s care provider or prescriber, he had not reviewed her pharmacy profile, and he did not know her dosages, but rather was aware of only what Ms. Atkinson had told her about her usage.

The Center for Disease Control published information showing that the risk of overdose for 90 MME is 10 times as great as that of 20 MME and it recommends avoiding doses of 90 MME or more.

Ms. Chamber’s opinion is that a dose of 90 MME could impair a nurse’s judgment and affect her physical ability. She also was of the opinion that the length of time Ms. Atkinson had been taking the medication was a concern because there was a greater chance for abuse or misuse, including impairment while on duty.

Ms. Chambers subpoenaed pharmacy records going back only to January 2018 because that was the time period under the Board’s consideration.

Ms. Atkinson was of the opinion that the Board’s analysis was flawed because it provided only a snapshot in time.

Ms. Atkinson’s opinion was that the use of a numeric score is flawed because it does reflect the response and tolerance of individual patients regardless of their length of treatment and the stability of the dosage.

Allegation 4 – illicit drug use

Ms. Atkinson is subject to random drug testing under court order in the civil/family law matter involving Dr. Atkinson. That testing was instituted after she was fired from the hospital.

The Board subpoenaed drug-testing records from TASC.

On October 1, 2018, Ms. Atkinson tested positive for cocaine in a hair follicle test. This was eleven days after she refused the fitness-for-duty assessment at the hospital. Hair follicle testing shows drug use going back ninety days.

The TASC records showed the following positive results:

October 9, 2018 cocaine;

November 14, 2018 benzodiazepines;

January 25, 2019 cocaine;

March 13, 2019 cocaine and opiates;

March 19, 2019 cocaine and opiates;

March 28, 2019 cocaine and opiates;

April 19, 2019 for benzodiazepine;

May 10, 2019 benzodiazepine and opiates;

May 29, 2019 benzodiazepine;

June 15, 2019 benzodiazepine;

June 13, 2019 benzodiazepine;

June 19, 2019 benzodiazepine;

August 21, 2019 benzodiazepine;

September 19, 2019 benzodiazepine;

October 25, 2019 benzodiazepine and cocaine;

October 30, 2019 benzodiazepine.

Ms. Atkinson’s pharmacy records show that she had a prescription filled for benzodiazepine in February 2018.

Ms. Chambers testified that a prescription for benzodiazepine would be valid for only six months after it was written. Consequently, her opinion was that any positive results for benzodiazepine more than six months after the prescription was written would be an unauthorized use and a violation of law. Ms. Chambers concluded that Ms. Atkinson’s eleven positive tests for benzodiazepine were for uses that were not authorized and therefore unlawful.

Ms. Atkinson testified that Ms. Chambers’ claim that a prescription is valid for only six months is not accurate for prescriptions to be taken as needed because the patient is to use her discretion. She added that she was using the medication judiciously and that the medication she used was not expired, and therefore her use at the time of the positive tests was valid.

At the time of the hearing, Ms. Atkinson had a current prescription for benzodiazepines.

Ms. Atkinson had disclosed to the hospital her use of benzodiazepines.

Ms. Atkinson also testified that she had had a prescription for Ambien, which often creates false positive for benzodiazepines. Ms. Chambers noted that a person can have the medical review officer investigate allegations that she had a false positive test, but Ms. Atkinson never did so.

Ms. Atkinson had admitted into evidence Dr. Atkinson’s September 20, 2019 letter to the judge in the civil suit between Mr. Baldauf and his wife or ex-wife.

Mr. Baldauf is the court appointed supervisor who lives in Ms. Atkinson’s home and who must be present when Ms. Atkinson is with her children. Dr. Atkinson describes Mr. Baldauf as Ms. Atkinson’s boyfriend.

Dr. Atkinson expressed his opinion as to the vindictiveness that Ms. Baldauf was displaying toward Mr. Baldauf and Ms. Atkinson, and that Ms. Baldauf had fabricated complaints against Ms. Atkinson with the Board.

Dr. Atkinson notes that Ms. Atkinson’s use of prescription narcotics and benzodiazepines was long standing for her medical issues, and was not a concern of his. What had been a concern was her use of cocaine, but as far as he knew, she had been clean since June 2019.

As Ms. Atkinson’s drug tests show, she tested positive for cocaine in October 25, 2019, or just over a month after Dr. Atkinson’s letter.

In his letter, Dr. Atkinson reported that he is familiar with the signs of impairment and had never exercised his right to have Ms. Atkinson undergo any extra drug screens because she had never appeared to be impaired.

Ms. Atkinson had informed Ms. Chambers of her belief that Mr. Baldauf was responsible for at least some of her positive test results. Ms. Chambers testified to the effect that she did not find Ms. Atkinson’s explanation for her positive test results to be very credible.

At the hearing, Ms. Atkinson testified that Dr. Atkinson was not strictly holding her to the drug-testing regimen because he knew that Mr. Baldauf had a motive to stay in her house and he was abusing her. This testimony is not supported by Dr. Atkinson’s letter.

Ms. Chambers’ concerns regarding the positive drug-test results were that: even though Ms. Atkinson knew that she was under court-ordered testing, she was still using cocaine, an illegal substance; she was positive for benzodiazepines without a valid prescription; and that although she is prescribed opiates, many of the tests were negative, which could indicate that she was not taking them as prescribed.

Allegation 5 – making false statements

The Board alleges that on August 29, 2019, during a telephone conversation with Board staff, and in writing to the Board on August 22, 2019, and October 3, 2019, Ms. Atkinson provided false or misleading information to the Board when she reported that she is the “Clinical Director of Business Development” at her current employer, Patient Care Advocates in Tucson, Arizona

Ms. Chambers sent an email to Ms. Romero, who was Ms. Atkinson’s supervisor, to confirm that Ms. Atkinson worked for the agency. Ms. Romero wrote that Ms. Atkinson is on a PRN or as-needed basis. "However, she is currently taking care of an ill relative and has no skilled cases with us. During her employment with our agency, we have never had a complaint from her clients or a family member."

On September 18, 2019, Ms. Atkinson called Ms. Romero to confirm this information.

Based on the information from Ms. Romero, Ms. Chambers was of the opinion that Ms. Atkinson was not a clinical business director. Ms. Chambers explained that nurses must be trustworthy, and she was of the opinion that Ms. Atkinson violated the Board’s rules by lying.

Ms. Atkinson had entered into evidence copies of business cards that show she is or was the Clinical Director of Business Development. Ms. Chambers had not seen those business cards before the hearing.

In her written statement, Ms. Atkinson referred to Patient Care Advocates as her former employor. She explained that when she left to care for her family members, she could no longer perform marketing duties, that she was not aware Patient Care Advocates had changed her job title, and that she planned to return to her full-time positon.

Ms. Chambers acknowledged that when she talked to Ms. Romero she inquired only about Ms. Atkinson’s current status with Patient Care Advocates, not what her position may have been before she took a leave.

Other evidence

Possible ramifications of working while impaired include giving a patient the wrong medication dose, an inability to properly judge or assess situations, and poor communication with patients and other staff, which can put patient safety at risk.

Ms. Atkinson’s responses to Ms. Chambers’ contacts during the investigation were intermittent at best; Ms. Atkinson claimed not to have received information that Ms. Chambers mailed to; and Ms. Atkinson did not return Ms. Chambers’ telephone calls.

When Ms. Chambers requested that Ms. Atkinson send her the drug-testing results, Ms. Atkinson sent only the results that were not positive for cocaine, and she asserted that she had lost the positive results, which was deception on Ms. Atkinson’s part.

Ms. Atkinson requested the chance to participate in an alternative-to-discipline, but did not qualify for the Board’s program(s) and/or treatment track because she did not admit to having a problem with substances.

Ms. Chambers’ opinion was that Ms. Atkinson was not safe to practice, and based on her inconsistencies in responding to the Board, that Ms. Atkinson was not regulatable. Ms. Chambers also expressed concerns about Ms. Atkinsons’ oxycodone refills.

Ms. Chambers’ opinion was that Ms. Atkinson’s license should be revoked, which is the remedy the Board is requesting.

Dr. Blake has known Ms. Atkinson for about twenty years and he saw months of her work at the hospital. He found her to be an excellent nurse, always; that she was respectful; well-reasoned in her responses; that she was dedicated to patients in both words and deeds; and she would go the extra mile in providing care.

Ms. Flanagan had heard of no concerns about patient safety related to Ms. Atkinson, from either the staff or the patients.

Ms. Atkinson acknowledged that she has made poor choices in her personal life, for which she is suffering the consequences. She denied that she had ever put the safety of patients at risk, she argued that the Board had failed to prove that she had, and she testified that no patient had ever complained about her.

Ms. Atkinson testified that she has had a seventeen year career without a blemish and that the Board had not considered that fact. Presumably referring to issues in the lawsuit involving the Baldaufs, she asserted that the Board was not taking into account the malicious intent to destroy her career.

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 not shown by a preponderance of the evidence that Ms. Atkinson allowed her children to use a computer on which confidential patient information was stored. Although Ms. Atkinson brought her children to her office and those children were allowed to use a computer, that computer was obsolete and did not have any confidential patient information on it.

The preponderance of the evidence shows that Ms. Atkinson refused to take a fitness-for-duty test after she showed signs of impairment, which is a violation of Ariz. Rev. Stat sections 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 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 a violation of Ariz. Admin. Code section R4-19-403(9)(failing to follow policies and procedures of the nurse's employer designed to safeguard the patient).

The preponderance of the evidence shows that between October 2018 and September 2019, Ms. Atkinson has been prescribed monthly prescriptions for an opiate analgesic at a dose that may cause impairment and affect her ability to safely practice as a registered nurse. Although Ms. Atkinson had a ten-year history of using the opiates, the only time she had been observed to be impaired was on September 20, 2018, and it appears likely that she had a tolerance to the drugs, the applicable rule, R4-19-403(17), does not require actual impairment, but rather only the risk of impairment. Consequently, Ms. Atkinson is in violation of Ariz. Admin. Code section R4-19-403(17)(a pattern of using or being under the influence of drugs or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected), which is also a violation of Ariz. Rev. Stat sections 32-1601(26)(d) and 32-1601(26)(e).

The preponderance of the evidence shows that between October 2018 and October 2019, Ms. Atkinson tested positive for cocaine on nine occasions. The evidence also shows that her ex-husband, a doctor, believed she had a substance abuse problem with cocaine. This is a violation of Ariz. Rev. Stat sections 32-1601(26)(d) and (26)(e), and of Ariz. Admin. Code section R4-19-403(17).

Relying on Ms. Chambers’ testimony, the Board alleges that Ms. Atkinson’s use of benzodiazepine was unlawful beginning six months after her last prescription. But the Board presented no legal authority to support the position that such use was unlawful.

The preponderance of the evidence shows that Ms. Atkinson made misleading statements to the Board when she reported that she was the Clinical Director of Business Development at Patient Care Advocates after she no longer held that position, which is a violation of Ariz. Admin. Code section R4-19-403(26) (making a written false or inaccurate statement to the Board or the Board's designee in the course of an investigation).

The preponderance of the evidence shows that Ms. Atkinson has violated rules adopted by the Board, which is a violation of Ariz. Rev. Stat sections 32-1601(26)(j).

Because Ms. Atkinson has committed unprofessional conduct, the Board has authority to discipline her registered nurse license. Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

The evidence shows that during the time at issue, Ms. Atkinson was under stress resulting from factors at work and in her personal life, which weighs as a mitigating factor. Also in mitigation is the evidence showing that Ms. Atkinson was a good nurse who cared about her patients, including raising what she saw as potential ethical lapses at the hospital.

The evidence shows that Ms. Atkinson was not forthcoming and cooperative during the Board’s investigation, particularly with regard to her failure to produce the positive drug test results and in her failures to timely respond to Ms. Chambers.

The evidence shows that Ms. Atkinson may have a substance abuse problem, specifically with cocaine, that she is unwilling to acknowledge. There is no substantial evidence as to whether or how that potential substance abuse issue affected her interactions with Ms. Chambers, but it is reasonable to conclude that Ms. Atkinson’s failure to produce the positive drug tests is a manifestation of a substance abuse issue.

Considering the facts and circumstances of this matter, including that Ms. Atkinson does not qualify for an alternative to discipline, it is recommended that Ms. Atkinson’s registered nurse license number RN120289 be revoked.

RECOMMENDED ORDER

IT IS ORDERED that Elizabeth Inez Atkinson’s registered nurse license number RN120289 is revoked.

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, July 30, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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-137160-45720000