ALJDEC decisions subject to certification as final

20A-201907444-NUR · State Board of Nursing · 2020-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP049920 ISSUED TO:

DENISE MARIE TRAVIS,

aka Denise Baxter-Travis; Denise Marie Baxter,

RESPONDENT.

No. 20A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 19, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Sunita Krishna, Esq. appeared on behalf of the Arizona Board of Nursing (“Board”) with Tala Rassoul, Lynette Drafton, and Susan Bushong as witnesses. No appearance(s) by or on behalf of Denise Marie Travis (“Respondent”). Cindy Bachman, Arizona CCR No. 50763, served as the official hearing court reporter.

ADMINISTRATIVE LAW JUDGE: Jenna Clark

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Administrative Notice is taken that Respondent was first issued Registered Nurse License No. LP049920 on February 19, 2014. The license expired on January 23, 2020.

On February 05, 2020, the Board issued a Complaint and Notice of Hearing – Summary Suspension Expedited Hearing setting the above-captioned matter for hearing at 9:00 a.m. on February 19, 2020. The Notice of Hearing identified the issues as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Denise Marie Travis, who holds registered nurse license number LP049920 to perform as a practical nurse in the State of Arizona.”

The Board set forth four specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-1601(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(2) and R4-19-403(31); 32-1601(26)(e); and 32-1601(26)(j). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

The Board referred the matter to OAH, an independent agency, for an evidentiary hearing on the allegations in the Board’s Complaint.

Hearing Evidence

The Board presented the testimony of Tala Rassoul, Lynette Drafton, and Susan Bushong, and submitted Exhibits 1-6. The Complaint and Notice of Hearing was also admitted into the evidentiary record as its own exhibit.

Nursing Solutions, which is located in Phoenix, AZ, is a licensed home health agency that specializes in long term skilled nursing. In July of 2019, Respondent was employed by Nursing Solutions from February 06, 2016, until July 18, 2019, as an in-home nurse for a patient (“Patient”). As part of her onboarding, Respondent completed Ariz. Admin. Code R6-6-901 (“Article IX”) training for managing inappropriate client behavior(s) for patients covered by the Arizona Department of Economic Security – Division of Developmental Disabilities (“DDD”). In July of 2019, Patient was 56 years old and suffered from mental and physical disabilities. Respondent was assigned as Patient’s nurse to assist Patient with activities of daily living, safety, and provide Patient with decision-making assistance.

On July 16, 2019, Respondent reported to the Clinical Manager at Nursing Solutions that during her shift, Respondent and Patient had a conflict. Specifically, Respondent advised that she and Patient got into a verbal argument that escalated to Respondent throwing a sandwich at Patient’s face. Respondent reported she was wrong, but alleged that she had acted in self-defense. Law enforcement was called because Respondent had refused to leave the residence. She was forcibly removed. Patient was taken to an Urgent Care medical facility where she was evaluated and treated for minor injuries.

On July 17, 2019, Respondent sent a number of text messages around midnight to Patient’s primary caregiver, which read in pertinent part as follows:

I will be calling the health department. I will tell them she is a danger

Yes she is a danger

Apparently she can kill someone and that is ok

Please leave me alone

Just think of the tax dollars spent on this woman...what a shame

I did everything I could to please [Patient] and I get punched out. Nurses need to be warned about her.She can punch you out and you have to take it because she is retarded... retarded? Manipulative and sharp as a whip...far from restarted...angry and dangerous.

(All errors in original.)

On July 26, 2019, an Administrator from Nursing Solutions filed a complaint with the Board against Respondent for the July 16, 2019, incident.

On July 27, 2019, a nurse from Nursing Solutions filed a second complaint with the Board against Respondent for the July 16, 2019, incident. It was disclosed that Respondent failed a drug screen by testing positive for marijuana. Respondent did not respond to requests from the Board to provide proof of a valid medical marijuana user card.

On August 14, 2019, during a telephonic discussion with Board staff, Respondent stated that she was upset regarding the Board’s perceived response to complaints about her July 16, 2019, incident. During the call Respondent repeatedly stated that she was going to kill herself. Respondent also made other worrisome statements related to her well-being. Respondent refused to disclose her location or receive medical assistance.

On August 19, 2019, during a telephonic interview with Board staff, Respondent admitted to throwing a sandwich at Patient in the homecare setting.

On August 29, 2019, Board staff received Respondent’s written description of the incident whereby Respondent admitted she struck Patient in the face with a hot sandwich. Respondent alleged that Patient was “violent.” Respondent accused Nursing Solutions of intentionally failing to inform her that Patient engaged in “dangerous behaviors.” Regarding the July 16, 2019, incident, Respondent accused Patient of punching her while she was preparing Patient’s sandwich on the stovetop. Respondent attached a copy of the related police report.

On October 22, 2019, during a telephonic interview with Board Staff, Respondent admitted for the first time that she has suffered from a mental health condition for many years.

In correspondence between Respondent and the Board from October 23, 2019, to October 24, 2019, Respondent was asked to obtain a mental health evaluation from a Board-approved psychologist. Respondent replied that the July 16, 2019, incident was not her fault, and pontificated surrendering her license to practice nursing to avoid “being dragged through the mud after getting beat up by a DDD client and getting blamed for it.” After being offered an opportunity to voluntarily surrender her nursing license Respondent replied, “Please just leave me alone.”

On October 28, 2019, the Board’s Executive Director issued an Interim Order to Respondent pursuant to Ariz. Rev. Stat. § 32-1664(F).

On November 13, 2019, Respondent failed to report to an Alternative to Discipline meeting with Board staff, or provide notice of her absence in advance.

On December 03, 2019, Board staff received a call from Respondent. Respondent stated that she had been hospitalized on or about November 13, 2019, for attempting suicide.

At the Board’s January 2020 Board meeting, an investigative report regarding Respondent’s alleged factual and statutory violations were presented to Board members. As a result, Respondent’s nursing license was summarily suspended pending an evidentiary hearing before OAH.

Closing Statements

The Board argued that Respondent’s overall conduct amounted to unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(26)(d); Ariz. Admin. Code R4-19-403(2) and R4-19-403(31), 32-1601(26)(e) and 32-1601(26)(j), which established grounds for discipline pursuant to Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

Specifically, the Board noted that Respondent’s act of throwing an object at her patient violated the Nurse Practice Act, Respondent’s threats of self-harm and actual self-harm called into question her ability to safely practice as a nurse, and because Respondent refused to be evaluated by a mental health care professional she evinced her inability to be properly regulated by the Board.

CONCLUSION OF LAW

The Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing.

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in the State of Arizona. Pursuant to Ariz. Rev. Stat. §§ 32-1601 through 1669 and Ariz. Admin. Code R4-19-101 through 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Board bears the burden of proof to establish cause to penalize Respondent’s registered nursing license. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

The Board’s burden is a preponderance of the evidence.

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).

Ariz. Rev. Stat. § 32-1601(26) defines unprofessional conduct in the nursing profession, in pertinent part, as follows:

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

* * *

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

(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.

* * *

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

Ariz. Admin. Code R4-19-403 defines unprofessional conduct in the nursing profession, in pertinent part, as follows:

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:

* * *

(2) Intentionally or negligently causing physical or emotional injury;

* * *

(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.

Ariz. Rev. Stat. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows:

* * *

(D) If the board finds, after affording an opportunity to request an administrative hearing pursuant to Title 41, Chapter 6, Article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.

* * *

(F) If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to [subsection D] of this section, the board may serve on the licensee or certificate holder a written notice that states:

(1) That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter.

(2) The nature of the allegations asserted and that cites the specific statutes or rules violated.

Ariz. Rev. Stat. § 32-1664(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating that, “If the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

Here, the Board has sustained its burden of proof.

The undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of inappropriate conduct against Respondent to be credible. Respondent failed to appear and provide exonerating or mitigating evidence to refute the Board’s claims. Moreover, there is no evidence in the record to reasonably suggest that Respondent ever fully admitted any wrongdoing to the Board or attempted to enter into the Interim Order she was offered for the underlying events captured herein, demonstrating that she is not able to be regulated at this time.

Thus, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(26)(d), 32-1601(26)(e), and 32-1601(26)(j), and Ariz. Admin. Code R4-19-403(2) and R4-19-403(31).

While Respondent may have unaddressed/undiagnosed behavioral health issues that affect her practice of nursing, those issues do not excuse her behavior or absolve her from responsibility from consequences stemming therefrom. Nor do they trump the Board’s legitimate interest in protecting the public. Because Respondent will not or cannot take responsibility for her actions, it does not appear that she can be regulated at this time.

In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients and other healthcare providers. It is clear from a review of the record that Respondent is not able to meet these rudimentary standards to practice nursing.

In light of the risk of potential harm to patients 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 Ariz. Rev. Stat. §§ 32-1663(D), 32-1663(F), and 32-1664(O).

Considering the facts and circumstances of this matter, it is recommended that registered nursing license number LP049920 be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke Respondent Denise Marie Travis’ registered nursing license number LP049920.

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, March 09, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing