ALJDEC decisions subject to certification as final

20A-201907397-NUR · State Board of Nursing · 2020-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN209515 AND ADVANCED PRACTICE CERTIFICATE NO. AP10484 ISSUED TO:

ALICE OKON MINKOFF,

AKA: Alice Okon Burkley,

RESPONDENT.

No. 20A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2020, at 9:00 a.m.

APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Elizabeth A. Campbell, Assistant Attorney General; Alice Okon Minkoff aka Alice Okon Burkley (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667.

Respondent holds Board-issued Registered Nurse License No. RN209515 and Advanced Practice Certificate No. AP10484.

Respondent does not have prescribing authority in Arizona.

The Board received complaints from the Arizona Department of Health Services (“ADHS”) and Respondent’s patient RJD that Respondent was prescribing medications over the phone at Arizona pharmacies based on telephonic examinations of Arizona patients that fell below the standard of care. In addition, the Colorado Nursing Board summarily suspended Respondent’s Colorado privilege to practice nursing under the Nurse Licensure Compact and Respondent’s Colorado-issued advanced practice nurse practitioner registration based on (1) Respondent’s prescriptions for Colorado patients at Colorado pharmacies, although Respondent lacked prescribing authority in Colorado; and (2) Respondent’s diagnoses and treatment recommendations without proper work up for conditions that required lab work and/or in-person review of symptoms (in many cases, Respondent providing nursing care based solely on patients’ texts to her).

The Board referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing.

On or about April 7, 2020, the Board issued a Complaint and Notice of Hearing that set a hearing on May 22, 2020, at 9:00 a.m. The Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(26)(d), 32-1601(26)(f), 32-1601(26)(h),and 32-1601(24)(j), as well as A.A.C. R4-19-403(26), R4-19-403(30), R4-19-403(31), and R-4-19-511(C).

On May 14, 2020, Respondent moved to vacate the hearing, as follows:

I will love to voluntarily surrender my license permanently. Life is too short and I want us to end this in harmony without any animosity.

The Board opposed the motion and the Administrative Law Judge denied it.

A telephonic hearing was held on May 22, 2020. The Board submitted 8 exhibits and presented the testimony of the Board’s nurse consultant, Diane Caruso, M.S.N. and Associate Director, Janeen Dahn, N.P, Ph.D.

OAH staff twice attempted to contact Respondent at her telephone number of record, but she did not answer the calls and OAH staff was unable to leave a message. Although the hearing did not begin until 9:19 a.m. and did not conclude for some time thereafter, Respondent did not contact OAH. Consequently, Respondent did not present any evidence to defend her registered nurse license and advanced practice certificate.

Hearing Evidence

The ADHS Complaint

On or about July 24, 2019, ADHS forwarded to the Board a complaint filed by Kevin M. Brown, the Chief Executive Officer of La Paz Regional Hospital. Mr. Brown stated that several of La Paz Regional Hospital’s patients told personnel at Law Paz Regional Hospital that they had spoken to an urgent care provider, whom they identified as Respondent, and had received prescriptions over the phone. Mr. Brown stated that Respondent’s business was Averdale Urgent Care at an address in Parker, Arizona. Mr. Brown went to the address, which he described as a pizza parlor with a boarded-up building attached. Mr. Brown called the Averdale Urgent Care’s number several times and was told that it saw patients by appointment only, but that he could speak to a provider over the phone. When Mr. Brown said that he preferred a face-to-face appointment, the person on the phone hung up. Mr. Brown noted that Complainant did not have prescribing authority in Arizona. The Board assigned ADHS’s complaint to Ms. Caruso for investigation.

On or about July 25, 2019, Respondent submitted a prescribing and dispensing application to the Board.

Ms. Caruso obtained from pharmacies copies of the 34 prescriptions that Respondent had written for 9 patients in Arizona. The prescriptions had Respondent’s DEA number, Respondent’s name as the prescriber, although one had the name “Alex Minkoff,” and were phoned into the pharmacy by “Alice” at 602-829-0355 or “Philip” at 480-252-2919. Ms. Caruso testified that she did an internet search and found Respondent’s grandfather’s obituary, which identified Philip as Respondent’s husband.

Ms. Caruso sent Respondent an Investigative Questionnaire. Respondent returned the questionnaire, stating that she had never been to Parker, Arizona, although she prescribed medication to her patients in Parker, Colorado, and that Google had incorrectly identified Parker, Arizona in its results of a search for her. Respondent stated that she had alerted Google to the error and had applied for prescription and dispensing authority in Arizona just to avoid problems in the future.

Ms. Caruso testified that she went to the website for Respondent’s business, FastenP, which listed minor injuries that Respondent could treat and that Arizona was listed among the states where Respondent could provide care. When Ms. Caruso spoke to Respondent on the telephone, Respondent explained that she should have said that her prescription authority in Arizona was pending. When Ms. Caruso next looked at the FastenP website, Arizona had been removed from the list of states for whose residents Respondent could render care.

The Board issued subpoenas to Respondent for the records of Arizona patients BD, RV, and SL, to whom she had written prescriptions. Respondent responded with a statement that she did not have any medical records for these patients because she had never treated them and that she believed it was a case of identity fraud.

Ms. Caruso testified that the Board denied Respondent’s application for prescribing and dispensing authority at its March 2020 meeting.

RJD’s Complaint

Respondent’s patient RJD contacted the Board on February 7, 2020, to complain about Respondent’s practice. Dr. Dahn testified that RJD stated he was looking into a nurse practitioner, whom he identified as Respondent, and asked if she had prescribing authority in Arizona. Dr. Dahn testified that RJD worked for a news outlet.

Dr. Dahn testified that RJD had called Respondent’s urgent care number and gone to its address, which was a vacant lot. He called the urgent care again and was informed that it was not taking walk-ins, but that a provider would call him. RJD called the provider at 602-839-0355, which was the same number listed on Respondent’s prescriptions obtained in response to ADHS’s complaint.

RJD provided the texts that Respondent had sent him, in which she identified herself and asked about his symptoms, which he described as sinus congestion. The texts did not show that Respondent took a medical history of RJD. As a result of the texts, Respondent called into the pharmacy prescriptions for Azithromycin, or a Z-pack, an antibiotic, Prednisone, a steroid anti-inflammatory, and a cough suppressant.

Dr. Dahn testified that Respondent’s treatment of RJD was below the standard of care. Respondent did not elicit the information that was needed to prescribe an antibiotic or anti-inflammatory. She made no diagnosis, only noting that RJD had sinus congestion, which could have resulted from seasonal allergies. If RJD’s condition resulted from a virus, antibiotics would not treat it.

The Board issued a subpoena to Respondent for RJD’s records. Respondent responded that she had never spoken to RJD and that she was convinced there was a fraudulent copycat of her business model.

The Colorado Board’s Summary Suspension

On November 25, 2019, the Colorado Board of Nursing summarily suspended Respondent’s registered nurse and nurse practitioner licenses. According to the Colorado Board’s order, Respondent provided telemedicine services to patients in Colorado through her business, FastenP, including drug prescriptions, although she lacked prescribing privileges in Colorado, had failed to perform a proper workup for the patients, and in some cases had prescribed medication based solely on texts from the patients, which fell below the standard of care.

CONCLUSIONS OF LAW

The Board has jurisdiction to consider disciplinary proceedings against Respondent’s registered nurse license and advanced practice certificate. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Complaint and Notice of Hearing that the Board mailed to Respondent at her address of record was reasonable and it appears that Respondent actually received notice of the hearing.

The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s registered nurse license and advanced practice certificate. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The Board established that Respondent repeatedly and persistently prescribed medications to Arizona patients based solely on telephonic or text contact, without obtaining an adequate history, that her treatment was below the standard of care, that she lacked prescribing or dispensing privileges in Arizona, and that she made false written statements to the Board during the course of its investigation. The Board thereby established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (h), and (j) and A.A.C. R4-19-403(1), (26), (30), and (31) and A.A.C. R4-19-511(C).

The Board also established that the Colorado Nursing Board summarily suspended Respondent’s registered nurse license and nurse practice certificate for committing similar acts in Colorado. The Board thereby established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1602(26)(f).

Respondent’s numerous and repeated acts of unprofessional conduct furnish cause for the Board to discipline her registered nurse license and advanced practice certificate under A.R.S. §§ 32-1663(D) and 32-1664(N). Respondent’s failure to attend the hearing or to present any evidence in her defense shows that at this time, she cannot be regulated

RECOMMENDED ORDER

In light of Respondent Alice Okon Minkoff’s numerous and serious acts of unprofessional conduct, it is revoking her Registered Nurse License No. RN209515 and Advanced Practice Certificate No. AP10484.

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, June 11, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing