ALJDEC decisions subject to certification as final

21A-1807050-NUR · State Board of Nursing · 2020-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN150438

ISSUED TO:

SHAWN “LANE” SMITH; aka LANE SMITH,

RESPONDENT.

No. 21A-1807050-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 4, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared one behalf of the Arizona State Board of Nursing (“Board”) with Anna Anderson, Tammy Lester, and Carol Schmekle as witnesses. No appearance(s) by or on behalf of Shawn Lane Smith (Respondent”). Kristi Spires (CCR No. 50135) served as the official court reporter for the proceedings. Candice Pullman and Amy Sammito observed.

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. RN150438 on January 25, 2008. The license is inactive because it expired on September 24, 2020.

On October 19, 2020, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on November 04, 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, Shawn Lane Smith, registered nurse license number RN150438 to perform as a registered 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(2), R4-19-403(18), R4-19-403(28), and R4-19-403(31); 32-1601(26)(e), 32-1601(26)(g), 32-1601(26)(j), and 32-3208(A). 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, an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.

Hearing Evidence

The Board presented the testimonies of Anna Anderson, Tammy Lester, and Carol Schmekle, and submitted 8 exhibits into the record. The Complaint was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

On an unknown date Respondent was hired by Flagstaff Medical Center (“FMC”) as a Charge Nurse.

In summer of 2018 FMC began to notice major changes to Respondent’s behavior. Specifically, Respondent had become “very irritable and flummoxed” with staff and issues within his department. Respondent began to suffer from lack of sleep, and obsessed over only eating red and green foods.

During the first week on June in 2018, Respondent called off each of his shifts.

On July 05, 2018, Respondent called his supervisor and made several disparaging remarks and accusations against FMC. Respondent also made threatening remarks against multiple staff members, and noted that he kept a firearm in his vehicle.

On July 06, 2018, Respondent reported for work looking disheveled and changed into scrubs. Security was called after Respondent refused to leave and attempted to corner FMC’s Director in a hallway. Respondent was escorted off the property. Later that same day, Respondent sent a litany of threatening emails staff at FMC. As a result, Respondent’s email access was rescinded. Respondent continued sending emails via his wife’s (“Wife”) account, as she was also an FMC employee. Wife’s email access was rescinded as well. FMC advised Respondent by phone that he was not permitted on campus and no longer had online access to FMC.

The police were notified, resulting in an official report. Employees named in Respondent’s threatening correspondence were granted Orders of Protection against Respondent.

On July 09, 2018, Respondent was asked to submit to a Fit for Duty drug screen. Respondent complied, and tested positive for marijuana.. As a result, Respondent was terminated that same day.

On July 10, 2018, FMC filed an online complaint against Respondent and provided notice of his termination from employment. As a result, the Board opened an investigation into the confirmable facts alleged in FMC’s complaint.

On July 12, 20118, police responded to a domestic disturbance call at Respondent’s residence. Wife reported to responding officers that Respondent was “having a nervous breakdown” due to being terminated from employment. Respondent broke out a second floor window and cursed and shouted incoherently to officers. Officers entered the home, subdued Respondent without incident, and escorted him outside to receive wound care. Respondent was later placed under arrest for Criminal Damage and Disorderly Conduct, and then taken into custody.

On July 14, 2018, a court-ordered mental health evaluation was ordered for Respondent. Ultimately, Respondent was diagnosed with unspecified bipolar and related disorder. On July 22, 2018, Respondent was discharged from care with instructions to continue psychiatric treatment.

On October 11, 2018, Respondent submitted his answers to the Board’s investigative questionnaire. The crux of Respondent’s position was that he had an extreme physiological response to Wife’s termination of employment, which he perceived to be retaliatory and harassing in nature. To that end, Respondent shared that he experienced mania and paranoia as a result.

On February 01, 2019, Respondent plead guilty to both misdemeanor charges. Respondent was sentenced to 9 months of unsupervised probation and ordered to participate in a diversion program.

Respondent did not report his arrest or convictions to the Board.

The Board subpoenaed Respondent’s medical records and determined that on June 04, 2020, during a therapy session, Respondent admitted that it had been 8 weeks since his last session, and that he was suffering from insomnia, mania, paranoia, trembling, aches, sweats, and was having difficulty completing tasks. During a subsequent therapy session on June 17, 2020, Respondent admitted that his symptoms had not changed. Respondent’s prescriptions were modified as a result.

During the Board’s September 2020 meeting, the Board was presented with an Investigation Report regarding Respondent. On September 11, 2020, the Board issued a Notice of Board Consideration of Proposed Findings of Public Emergency and Order of Summary Suspension (“Order of Summary Suspension”). On September 24, 2020, the Board issued Findings of Public Emergency and Order of Summary Suspension.

In closing, the Board argued that Respondent’s behavior since the Board began its investigation evinced his unwillingness to communicate or cooperate with the Board, which could only be interpreted as Respondent’s refusal to submit to Board regulation. The Board also argued that Respondent’s inconsistent mental health treatment were cause for legitimate concern for public safety. The Board concluded by beseeching the Tribunal to uphold Respondent’s Order of Summary Suspension and issue a recommendation to revoke Respondent’s nursing license.

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.

(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.

* * *

(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(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:

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

Intentionally or negligently causing physical or emotional injury;

* * *

(18) Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices;

* * *

(28) If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged;

* * *

(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. § 32-3208(A) provides that “A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional’s regulatory board in writing within ten working days after the charge is filed.”

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.

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 has not consistently met these rudimentary standards to practice nursing.

The record reflects that Respondent was terminated from employment by FMC for engaging in conduct that objectively and materially interfered with Respondent’s ability to perform his job duties in a safe and respectful manner. The evidence also reflects that Respondent failed to notify the Board of his arrest and convictions. The evidence further reflects that Respondent is not currently safe to practice nursing, or willing to submit to regulation by the Board.

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(2), R4-19-403(18), R4-19-403(28), and R4-19-403(31); 32-1601(26)(e), 32-1601(26)(g), 32-1601(26)(j), and 32-3208(A).

By failing to appear, Respondent has effectively acquiesced to all of the Board’s allegations, declined to offer any mitigating evidence in rebuttal or his defense, and established that he is unwilling to submit to the Board’s regulation of his license at this time.

The Board has a 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 and 32-1664.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke Respondent Shawn “Lane” Smith’s, aka Lane Smith’s, registered nursing license number RN150438.

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, December 02, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing