ALJDEC decisions subject to certification as final

20A-201909381-NUR-RES · State Board of Nursing · 2020-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN166566

ISSUED TO:

BENJAMIN TYLER BROWER,

RESPONDENT

No. 20A-[number redacted]-NUR-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 26, 2020, with the record held open until June 15, 2020

APPEARANCES: Respondent Benjamin Tyler Brower appeared on his own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

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 Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. 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. §§ 32-1601-1667.

Benjamin Tyler Brower (Respondent) holds Board-issued Registered Nurse License No. RN166566 in the State of Arizona.

On April 15, 2020, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d), (e), (i), and (j); and A.A.C. R4-19-403(17). The Complaint and Notice of Hearing was sent via certified mail to Respondent at her address of record.

The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on May 26, 2020.

The Board submitted five exhibits and presented the testimony of Brent Sutter, Senior Investigator with the Board. Respondent testified on his own behalf.

Hearing Evidence

On or about June 22, 2016, Respondent and the Board entered into a Consent Agreement and Order No. 1501030 (Consent Order) for a minimum 36 month probation with terms and conditions based on issues primarily related to alcohol abuse. Before the termination of the probation, Respondent was required to work as a registered nurse for a minimum of 36 months, with 6 of the months being continuous employment of not less than 16 hours per week.

Under Paragraph 6, page 8, of the Consent Order, Respondent was prohibited from consuming alcohol or any substances containing alcohol.

On April 2, 2019, the Board received information regarding Respondent from Ana Opat, Director of Nursing at Banner Estrella Medical Center (Banner Estrella). Ms. Opat stated that Respondent was a no call, no show on March 29, 2019, and that he had called in sick three shifts in a row prior to that date. On March 30, 2019, Respondent spoke with his supervisor Anthony Whitt and stated that he was having a hard time and felt like putting a bullet through his head. Banner Estrella asked the police department to perform a wellness check on Respondent. The police department concluded Respondent was not a danger to himself or others, but observed that he seemed very intoxicated with alcohol. Respondent’s employment status with Banner Estrella remained unchanged, but Respondent was not allowed to return to work until a fit for duty evaluation was completed.

On or about April 11, 2019, Mr. Sutter spoke with Respondent by telephone regarding the information that was received from his employer. Respondent indicated that he had been taking Ambien and Clonazepam medications as prescribed, but the medications stopped helping him sleep at night. Respondent stated that the lack of sleep resulted in depression, so he ended up going to Banner Thunderbird and was treated for one week. Respondent denied consuming alcohol. Mr. Sutter informed Respondent that the Board was requesting that he complete a Phosphatidylethanol (PEth) blood alcohol test so the Board could confirm whether he had been consuming alcohol. Respondent agreed to submit to PEth testing on April 15, 2019. Respondent did not submit to PEth testing.

On April 22, 2019, Respondent emailed Mr. Sutter indicating that on the day he was to complete the PEth testing, he ended up back in the hospital for a week. Respondent submitted hospital documentation from Dr. Drew Maygren, D.O., at Banner Del E. Webb Medical Center (Banner Del Webb), which indicated Respondent was recently hospitalized. According to Dr. Maygren, the episode of care was initiated on April 16, 2019, and Respondent was discharged on April 19, 2019.

On April 23, 2019, Mr. Sutter emailed Respondent and requested that he complete a hair/nail test including testing for alcohol biomarkers. On April 26, 2019, Respondent submitted to the hair/nail test, which was negative for alcohol.

On April 29, 2019, the Board received information regarding Respondent from Sandra Marken-George, RN, MBA, BSN, with Banner Thunderbird Medical Center (Banner Thunderbird). Ms. Marken-George indicated that, pursuant to A.R.S. § 32-1664, she was reporting a potential violation involving Respondent. According to Ms. Marken-George, Respondent presented to Banner Thunderbird’s emergency department on April 3, 2019 informing the provider that he “has been drinking 2 bottles of wine every day for the last couple of weeks.”

On or about May 14, 2019, a member of Board staff contacted Respondent by telephone regarding the complaint that was received by the Board. According to Board staff, Respondent sounded intoxicated or very sleepy and had a hard time talking. Respondent asserted that the Banner Thunderbird emergency department should not have disclosed information about him and his treatment at that facility as it constituted a HIPAA violation. Board staff asked Respondent if he was seeking any help and he indicated he was not. Respondent stated he was taking Klonopin for anxiety and sleep. When asked when he last drank alcohol, Respondent declined to answer.

On June 13, 2019, Board staff sent Respondent an Investigative Questionnaire with instructions to complete and return the form by June 27, 2019.

On or about July 5, 2019, Respondent submitted the Investigative Questionnaire to Mr. Sutter by email without a note to “See Attached Typed Statement,” but a written statement was not attached. In the body of the email, Respondent stated that he did his “best filling this out” and that he was going to write the description of the incident in separate email.

Mr. Sutter called Respondent to discuss the matter directly. At first, Respondent denied consuming alcohol, but eventually admitted that he had a slip up on or about April 2, 2019, or April 3, 2019. Respondent indicated he was self-medicating because he was unable to sleep as the medications he had been taking to treat his insomnia for the previous five or six years had stopped working. Respondent stated he went to the emergency department on April 3, 2019, because he had considered ending his life but decided to get help instead. Respondent indicated he had wanted to talk to Mr. Sutter prior to submitting his written response and that he would submit that response and a signed release of information form for his treatment records.

As of the date of the hearing, Respondent had not submitted the written response or release of information form.

At the hearing, Respondent asserted that everything in the letter from Banner Thunderbird was false and was retaliation for Respondent reporting poor care he received at the facility. Respondent denied that he was a danger to himself or others or that he was unsafe to practice nursing.

CONCLUSIONS OF LAW

The Complaint and Notice of Public Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary 1120 (8th ed. 2004).

The Board established by a preponderance of the evidence that Respondent failed to comply with the Consent Order in that he consumed alcohol and failed to provide a written response to the Investigative Questionnaire.

Respondent’s failure to comply with the Order constituted unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (e), (i), and (j) and A.A.C. R4-19-403(17).

Given Respondent’s failure to comply with the terms of the Consent Order Order and Respondent’s failure to submit a completed Investigative Questionnaire, Respondent has demonstrated that he cannot be regulated at this time. Thus, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board revoke License No. RN166566 previously issued to Respondent Benjamin Tyler Brower.

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, July 8, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing-54864001

001

-137160-45720000