ALJDEC decisions subject to certification as final

21A-1701011-NUR · State Board of Nursing · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN161545,

ISSUED TO:

MCKENZIE LEA GALVAN

aka McKenzie Lea Vasquez; McKenzie Lea Maynard

RESPONDENT.

No. 21A-1701011-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 22, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Sunita Krishna, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with witnesses Stacey Aragon, Bridgette Weaver, Caryn Brett, Laura Peters, and Stephanie Cruz. No appearance(s) by or on behalf of McKenzie Galvan (“Respondent”). Mary Davis (CR No. 50271) served as the court reporter for these proceedings.

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

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken that Respondent was first issued Registered Nurse License No. RN161545 on February 02, 2010. On November 12, 2020, the license expired.

On November 12, 2020, the Board issued Findings of Public Emergency and Order of Summary Suspension in Case No. 1701011.

On December 04, 2020, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on December 22, 2020. The Complaint identified the issue for hearing as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against, McKenzie Lea Galvan, who holds registered nurse license number RN161545 to perform as a nurse in the State of Arizona.

The Board set forth 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(1), R4-19-403(7), R4-19-403(8), R4-19-403(16), R4-19-403(17), R4-19-403(25), R4-19-403(31), and R4-19-308(B); 32-1601(26)(g), 32-1601(26)(h), 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 the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.

On December 11, 2020, OAH issued an Order informing the parties that the hearing would take pace remotely. Videoconference and teleconference information was provided to the parties in the Order.

On December 17, 2020, OAH received its correspondence to Respondent returned as undeliverable by the United States Postal Service (“USPS”).

Hearing Evidence

The Board presented the testimonies of Stacey Aragon, Bridgette Weaver, Caryn Brett, Laura Peters, Stephanie Cruz, and submitted nine exhibits into the record. Respondent testified on her own behalf and submitted 7 exhibits into the record. The Complaint, December 11, 2020, Order and Respondent’s returned correspondence were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

On July 22, 2016, Respondent was hired by Hospice Promise (“HP”) located in Surprise, Arizona, as a home healthcare Registered Nurse. Respondent was assigned to patient PK.

On December 29, 2016, PK advised HP that he suspected Respondent of “taking my meds.” PK specified that prescription pain medication, Oxycodone, was routinely delivered to his home, and that Respondent had absconded with most of the prior day’s delivery during his afternoon nap. PK also shared that during the time he was in Respondent’s care the color of his regular prescription changed from pink to brown and gray.

Although PK’s December 21, 2020, prescription was for 60 pills, only 10 were in the bottle

On December 29, 2016, as a result of PK’s allegation, HP began to investigate the matter. HP discovered that on November 28, 2016, December 02, 2016, December 06, 2016, December 10, 2016 and December 21, 2016, Respondent submitted prescriptions on PK’s behalf for Oxycodone. The dates on each prescription looked as if they had been modified with Wite-Out correction fluid.

On December 29, 2016, Respondent submitted for a urinalysis which was returned negative.

On January 03, 2017, HP involuntarily terminated Respondent from employment.

On January 05, 2017, HP submitted a complaint to the Board against Respondent’s license. Based on the information it received the Board performed an investigation into the confirmable facts surrounding Respondent’s alleged conduct. Per interviews conducted, a review of subpoenaed records, and communications with Respondent, the Board discovered the following:

Respondent’s employment history

On May 22, 2017, Respondent was hired by Rosewood (“Rosewood”) located in Surprise, Arizona, as a behavioral disorder Registered Nurse.

On December 10, 2017, Rosewood staff reported observations of Respondent’s alleged impaired behavior. Specifically, it was reported that staff observed Respondent taking repeated lengthy breaks whereby she would return with “bloodshot” eyes, often unable to keep them open. Respondent would also be unable to stand up straight. It was also reported that Respondent was seen removing medications from the medication cart and Pixys machine, and placing the pills in her backpack or pockets.

On December 29, 2017, Respondent submitted for a urinalysis which was returned negative.

On January 03, 2018, Respondent voluntarily resigned her employment with Rosewood.

On February 26, 2019, Respondent was hired by Consumer Advocacy Project (“CAP”) located in Phoenix, Arizona, as a Registered Nurse in a group home.

On an unknown date, CAP staff reported that Respondent was allegedly impaired or otherwise under the influence. Specifically, it was reported that Respondent was repeatedly “off task” and taking repeated breaks outside, leaving her 1-on-1 client alone and unsupervised. When approached by a superior, Respondent became belligerent and verbally assaultive.

When asked to submit for a drug screening, Respondent refused.

On April 02, 2019, CAP involuntarily terminated Respondent from employment.

On or about August 10, 2018, Respondent was hired by Mobile Vascular Solutions (“MVS”) located in CITY, Arizona, as a Registered Nurse.

On February 02, 2019, Respondent was formally disciplined for reporting 1.5hrs late for an assignment in Bullhead City, Arizona, which delayed patient care. Respondent’s supervisor phoned her an hour into her shift to inquire about Respondent’s whereabouts. Respondent reported in a frazzled state and had to be redirected several times throughout her shift because she was not focused, could not sit still, and was generally unaware of what was happening due to repeated bathroom breaks.

On February 15, 2019, MVS involuntarily terminated Respondent from employment.

Respondent’s criminal records

On August 12, 2016, Respondent was cited for lack of insurance and driving on a suspended license.

On December 07, 2016, Respondent was cited for driving on a suspended license.

On October 12, 2017, Respondent was arrested on a warrant for driving on a suspended license, which she plead guilty to on October 31, 2017.

On March 04, 2018, Respondent was charged with driving on a suspended license, and later charged with failure to appear on April 03, 2018. On May 29, 2019, Respondent plead guilty to the charges.

On October 03, 2018, Respondent was charged with driving on a suspended license, and was later found guilty of the charge on January 17, 2019.

Controlled Substance Prescription Monitoring Program (“CSPMP”)

Respondent’s record reflects that she was not prescribed any controlled substances from January 01, 2016, through July 22, 2020.

Respondent’s correspondence with the Board

On February 27, 2017, the Board mailed Respondent an Investigative Questionnaire regarding her employment with HP and her care of patient PK, which was due returned by March 227, 2017.

On March 23, 2017, the questionnaire was returned by the USPS as undeliverable.

On August 11, 2017, the Board issued a letter to Respondent’s address of record.

On September 01, 2017, the letter was returned as undeliverable by the USPS.

On December 27, 2018, the Board mailed a copy of the Investigative Questionnaire to Respondent’s address of record, and also sent a copy via electronic mail. On January 28, 2019, Respondent contacted the Board and requested that the Investigative Questionnaire be mailed to a new address. The Board complied.

On January 24, 2019, the letter was returned by the USPS as undeliverable.

On May 20, 2019, the Board emailed another copy of the Investigative Questionnaire to Respondent.

On September 11, 2019, the Board warned Respondent in an email that failure to provide a detailed written statement was a violation of the Nurse Practice Act.

On September 23, 2019, the Board called Respondent. Respondent asked that another copy of the Investigative Questionnaire be mailed to her. The Board agreed, and noted that the questionnaire had to be completed and returned to the Board no later than October 07, 2019.

On July 30, 2020, the Board mailed another copy of the Investigative Questionnaire to Respondent, which was returned undeliverable by the USPS on September 09, 2020.

On September 16, 2020, the Board called Respondent and left a message for her, but Respondent did not return the call.

At the time of the hearing, Respondent had not updated her mailing address with the Board or returned the Investigative Questionnaire.

In closing, the Board argued that sufficient grounds existed for the Tribunal to uphold the Board’s Summary Suspension of Respondent’s license, and asked that Respondent’s nursing license to be revoked. The Board also noted that it did not know Respondent’s employment status or if Respondent was safe to practice.

CONCLUSION OF LAW

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 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.

(g) 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.

(h) Committing an act that deceives, defrauds or harms 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(26)(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:

(1) A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice;

* * *

(7) Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient;

(8) Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record: a. Regarding a patient, health care facility, school, institution, or other work place location; or b. Pertaining to obtaining, possessing, or administering any controlled substance as defined in the federal Uniform Controlled Substances Act, 21 U.S.C. 801 et seq., or Arizona’s Uniform Controlled Substances Act, A.R.S. Title 36, Chapter 27;

* * *

(16) Removing, without authorization, a narcotic, drug, controlled substance, supply, equipment, or medical record from any health care facility, school, institution, or other work place location;

(17) A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location;

* * *

(25) Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or b. Respond to a subpoena issued by the Board;

* * *

(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. Admin. Code R4-19-308(B) provides that “A licensee or applicant shall notify the Board in writing or electronically through the Board website of any change in mailing address within 30 days.”

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 or E 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 unprofessional conduct against Respondent to be credible. Respondent’s failure to appear and provide evidence in rebuttable to refute the Board’s claims are a factor in aggravation. 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 for the underlying events captured herein, which demonstrates she is unable to 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 Respondent’s employment records she has not consistently met these rudimentary standards to practice nursing.

The record reflects that Respondent engaged in a flagrant pattern of prescription medication diversion from former patients and employers, often resulting in on-shift impairment and termination from employment. The record also reflects that Respondent was derelict in her duties to provide care, from abandoning patients for unaccounted for periods of time to arriving excessively late for work.

Thus, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(1), R4-19-403(7), R4-19-403(8), R4-19-403(16), R4-19-403(17), R4-19-403(25), R4-19-403(31), and R4-19-308(B); 32-1601(26)(g), 32-1601(26)(h), and 32-1601(26)(j).

While Respondent may have undiagnosed substance abuse 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.

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 RN161545 be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke McKenzie Lea Galvan’s (surname also known as Vasquez and Maynard) registered nursing license number RN161545.

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, January 25, 2021.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing