ALJDEC decisions subject to certification as final

21A-201812118-NUR · State Board of Nursing · 2021-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP028937

ISSUED TO:

CINDY LISA GAWELKO,

AKA: CINDY LISA PRESNELL; AKA: CINDY LISA MACIEJEWSKI; AKA: CINDY LISA WEIDNER

RESPONDENT.

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 20, 2021, with the record help open until May 21, 2021.

APPEARANCES: Respondent Cindy Lisa Gawelko did not appear. Assistant Attorney General Elizabeth Campbell appeared on behalf of the Arizona State Board of Nursing.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

The Board has the authority to regulate and control the practice of nursing

in the State of Arizona pursuant to Ariz. Rev. Stat. §§ 32-1606, 32-1663, and 32-1664. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, Ariz. Rev. Stat. §§ 32-1601 through 32-1667.

The Board issued Practical Nurse License (LPN) License No. LP028937 in

the State of Arizona to Respondent Cindy Marie Gawelko.

On March 30, 2021, the Board summarily suspended Ms. Gawelko’s

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

On April 5, 2021, the Board issued a Complaint and Notice of

Hearing on the summary suspension, setting a hearing on April 20, 2021, at 9:00 a.m. The Complaint and Notice of Hearing alleged certain facts and, based on those facts, charged cause to discipline Respondent’s license.

5. The Board sent the Complaint and Notice of Hearing via certified and

regular mail to Respondent at her address of record.

6. A hearing was held on April 20, 2021. The Board presented the testimony

of the Board’s Nurse Practice Consultant, Stephanie Chambers.

7. Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend her license.

8. In November of 2018, Ms. Gawelko worked as an LPN at North Mountain Medical Rehabilitation Center (North Mountain) in Phoenix, Arizona. While working the overnight shift at North Mountain on November 19, 2018, November 23, 2018, and November 28, 2018, Ms. Gawelko failed to account for narcotics and controlled substances.

9. On November 19, 2018, at 5:20 a.m., Ms. Gawelko signed out and removed 10 mg of oxycodone, an opiate controlled substance, for Patient JC. However, Ms. Gawelko failed to document in the electronic medication administration record (EMAR) that the medication for Patient JC was administered, wasted or returned.

See Exhibit 2, Bates 005 and 006.

10. On November 23, 2018, Ms. Gawelko documented in the EMAR that she administered, wasted, or returned medication for Patient SR at 2:00 a.m. and 6:32 a.m. See Exhibit 2, Bates 007 and 008.

11. On November 23, 2018, at 2:10 a.m., Ms. Gawelko signed out and removed 10 mg of oxycodone, for Patient SR, but did not document in the EMAR that the medication was administered, wasted or returned. See Exhibit 2, Bates 7 and 8.

12. On November 24, 2018, at 2:00 a.m. and 6:30 a.m., Ms. Gawelko signed out and removed 10 mg of oxycodone, for Patient SR, but did not document in the EMAR that the medication was administered, wasted or returned. See Exhibit 2, Bates 007 and 008.

13. On November 28, 2018, at 10:40 a.m., a day nurse at North Mountain signed out and removed 10 mg of oxycodone, for Patient GR, and documented in the EMAR that the medication was administered. See Exhibit 2, Bates 009 -010 and HA at 16:57 – 18:53.

14. During the night shift from November 28, 2018 to November 29, 2018, a total of 9 doses of oxycodone were signed out and removed from Patient GR’s supply, however, none of the doses were documented in the EMAR as being administered, wasted signed out or removed. See Exhibit 2, Bates 009 - 010 and the HA at 17:02 – 21:23.

15. On August 21, 2018, Ms. Gawelko received a written warning for gross misconduct and poor performance. See Exhibit 3, Bates 013. The written warning provided under the section corrective action, “Nurse will complete all documentation timely and completely, including daily skilled documentation, monthly summaries, MAR/TARs. Nurse will obtain adequate amount of sleep prior to working shift in order to provide the best patient care possible.”

16. On December 3, 2018, Ms. Gawelko was terminated from employment at North Mountain.

17. On December 4, 2018, the Board received a complaint against

Ms. Gawelko alleging that she failed to account for several narcotics while working as a nurse at North Mountain. The complaint was submitted by Ashley Thomas, a nurse at North Mountain. Ms. Thomas reported that she discovered that Ms. Gawelko forged the signatures of other nurses and documented 9 doses of oxycodone that were signed out and removed from Patient GR’s supply during the night shift from November 28, 2018 to November 29, 2018. Ms. Thomas reported that Ms. Gawelko made up the times and dates that she listed next to the forged signatures. Ms. Thomas reported that Ms. Gawelko was the only person who had access to the narcotic box when the day shift gave the medication and signed in the EMAR on November 28, 2018. See id.

18. On or about March 21, 2019, Ms. Gawelko worked as an LPN at Allegian Healthcare of Phoenix. On March 21, 2019, the charge nurse observed that

Ms. Gawelko had a medication cup sitting on her medication cart which contained 2 oxycodone tablets and an Ultram (tramadol, a narcotic-like controlled substance) tablet. See Exhibit 6, Bates 038 -039. Ms. Gawelko was unable to specify the patient for whom the medications were intended. A short time later, Ms. Gawelko was observed by the charge nurse to be walking down a hallway and a container that appeared to be full of urine fell out of her pocket. Ms. Gawelko was observed on camera to be carrying a box of unknown contents from the facility to her car. Ms. Gawelko was also observed on camera to go outside several times with a family member of a patient, and was reported to have left the unit to go to central supply on more than one occasion for unknown reasons. A review of the narcotic sign-out sheets found them to be illegible. Ms. Gawelko was asked to provide a urine sample for drug testing, but after several hours of drinking fluids, Ms. Gawelko was not able to void and sign a waiver stating that she was refusing to provide a urine sample, which resulted in her termination. See id at Bates 038-040.

19. On October 23, 2020, Ms. Gawelko stole a large rug from a business office in Phoenix, Arizona. See Exhibit 8, Bates 89. Ms. Gawelko admitted to Phoenix Police Officers that she had stolen the rug. Ms. Gawelko was charged with criminal theft and criminal trespassing. See id. Ms. Gawelko was found to be in possession of what appeared to be a white crystalline illegal substance which was confiscated by police officers for destruction. See Exhibit 8, Bates 088.

20. On November 2, 2020, Ms. Gawelko failed to appear for an initial appearance and arraignment in a Phoenix, Arizona court. See Exhibit 9. The court issued a warrant for failure to appear. See id. Ms. Gawelko failed to report the theft and trespassing charges to the Board as required. See Ms. Chambers’s testimony on HA at 38:30 to 40:25.

21. On November 21, 2020, Ms. Gawelko crossed into the United States from Mexico with heroin hidden in the tires of her car. See Exhibit 10. Ms. Gawelko admitted to the arresting officers that she had crossed the border approximately six previous times while transporting illegal substances. Ms. Gawelko further informed the officers that she expected to be paid with fentanyl (a narcotic and controlled substance) tablets or money. See id.

22. On or about November 23, 2020, Ms. Gawelko was charged with Felony Possession with Intent to Distribute after she attempted to smuggle heroin, a Class 1 controlled substance and illegal drug, into Arizona from Mexico. See Exhibit 10.

Ms. Gawelko failed to report the felony charge to the Board as required. See

Ms. Chambers’s testimony on the HA at 38:30 to 43:30.

23. On December 16, 2020, Ms. Gawelko appeared in the United States District Court in Tucson, AZ regarding the felony charge. See Exhibit 10, Bates 098. The Court agreed to release Ms. Gawelko to Crossroads, a drug rehabilitation center, when bed space became available. See id. Ms. Gawelko was released to Crossroads subject to several conditions including the requirement to participate in a mental health treatment program and to reside in an inpatient substance use treatment facility or halfway house. See id.

24. On or about December 1, 2020, an Investigative Questionnaire was sent to four addresses of record for Ms. Gawelko, asking that she complete and return it to the Board by December 15, 2020. See Exhibit 11, Bates 114 and the HA at 46:47 to 48:06. Ms. Gawelko failed to return the Questionnaire to the Board with a description of the events leading to the federal criminal charges. See Exhibit 11, Bates 111 and 114.

25. Ms. Chambers called Ms. Gawelko’s phone number of record and left two voice mail messages regarding the complaints. See HA at 46:00 to 46:46. However, Ms. Gawelko did not return Ms. Chambers’s phone calls. See id.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-1606.

The Board bears the burden of persuasion to establish cause to penalize Ms. Gawelko’s licensed practical nurse license. Ariz. Rev. Stat. § 41-1092.07(G)(2);

The Board’s burden is a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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).

The facts, as set forth previously, establish that Ms. Gawelko committed unprofessional conduct as defined by Ariz. Rev. Stat. § 32-3208(A) and (D) and Ariz. Rev. Stat. § 32-1601(26)(d),(g), (h), (j); A.A.C. R4-19-403(1),(7),(8)(b), (9), (16), (18), (25)(a),(28), and (31).

Because Respondent has committed unprofessional conduct, the Board had authority to suspend and revoke her Practical Nurse License. Ariz. Rev. Stat. § 32-1663; and § 32-1664.

7. Considering the facts and circumstances of this matter, it is recommended

that the Board’s decision to summarily suspend Ms. Gawelko’s Practical Nurse License be upheld.

8. The Board has established cause to impose disciplinary sanctions against Ms. Gawelko’s Practical Nurse License under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board’s order summarily suspending Respondent’s Practical Nurse License be upheld.

It is further recommended that the Board revoke Respondent Cindy Lisa Gawelko’s Practical Nurse License No. LP028937.

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, May 19, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing