ALJDEC decisions subject to certification as final

21A-201902225-NUR · State Board of Nursing · 2021-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN136150 AND ADVANCED PRACTICE NURSE CERTIFICATE NO. AP4770 ISSUED TO:

CANDICE MARIE GAITANIS,

A.K.A.: CANDICE MARIE BRAUN,

RESPONDENT

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 5, 2021, with the record held open until June 21, 2021

APPEARANCES: Respondent Candice Marie Gaitanis appeared on her own behalf and was represented by Scott King. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 1663, and 1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667.

Respondent holds Board-issued Registered Nurse License No. RN136150 and Advanced Practice Nurse Certificate No. AP4770.

On or about February 13, 2019, the Board received a complaint from a family member of Patient J.L., an elderly woman with dementia, who reported to the Board that Respondent had authorized an orthotic leg brace for J.L. without performing an examination. The complaint provided as follows:

[Respondent] wrote orders for my mom for bilateral knee braces and suspension sleeves without ever meeting or talking with my mom, or my father or myself, since we serve as her Medical Powers of Attorney, given her diagnosis of dementia. [Respondent] was contracted with a telemedicine company and received information that my mom “would benefit” from these devices. [Respondent] wrote the orders based on input from a non-medical telemarketer. She wrote detailed orders, diagnosed my mom with bilateral “primary osteoarthritis” and chronic instability of bilateral knees as well as composed a SOAP note . . . .

Based on this complaint the Board opened an investigation. Following the conclusion of the investigation, the Board determined discipline was appropriate.

On or about March 18, 2021, the Board issued a Complaint and Notice of hearing that alleged violations of A.R.S. § 32-1601(26)(d), (h), and (j) and A.A.C. R4-19-403(7), (8)(a), (30), and (31).

At hearing, Respondent testified that in July 2018, she was placed with Comprehensive Telecare LLC and/or Remn Management, LLC (collectively Remn) through a placement agency. In October 2018, Respondent started working directly for Remn. Respondent indicated that Remn provided telecare to patients and then forwarded the charts to her for review and approval of the medical devices recommended. Respondent admitted she never talked to the patients and never physically examined the patients. Respondent maintained that she had questioned the legality of the process and was assured by Remn that they had discussed the issue with their legal counsel and everything was being done in accordance with the applicable law. Respondent testified that she was paid $15.00 per chart review she completed and that she completed eight to ten charts a week. Initially, Respondent stated that she was given “pre-populated charts” with everything already written on the chart and she just had to add her initials; Respondent was unable to add or change anything on the chart. Respondent stated that she had to initial each section of the chart to move on to the next section and she could not complete the chart review until she had initialed all the sections. In the final phase, Respondent initialed the chart indicating that the medical device being recommended and prescribed for the patient was supported by the “objective findings”. Upon further questioning, Respondent admitted that she did not see any of the information entered on the form, including any type of “objective findings” and was given, essentially, a blank form with the recommended medical device listed and places for her to initial, which she did. Respondent was unable to think of an instance in which she found that a medical device was not appropriate for a patient in a chart review. Respondent maintained that she resigned as soon as she learned what she was doing was not proper.

At hearing, Ruth Kish, Registered Nurse and Nurse Practice Consultant with the Board, stated that during her investigation of the matter, she learned that Remn’s owner had pled guilty to Medicare fraud for the scheme.

At hearing, Janeen Dahn, Nurse Practitioner, testified that the information documented on a patient chart must be accurate. Dr. Dahn indicated that Respondent should not have relied on the response of Remn that what she was doing was legal. Dr. Dahn stated that Respondent was ultimately responsible for her own license and that, if she had questions or concerns regarding the process, she should have consulted with her own attorney to ensure she was complying with the law. Dr. Dahn testified that a nurse cannot write a prescription if they do not assess the patient.

CONCLUSIONS OF LAW

The 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. 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 practical 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 engaged in unprofessional conduct as alleged in the Complaint and Notice of Hearing. As such, 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).

Of particular concern was Respondent’s apparent belief that she was conducting “chart reviews” when she never saw any information regarding the patient other than the device being prescribed and that she placed her initials on the charts because she could not complete a “chart review” until she had initialed all the boxes. Given even that limited information, one would presumably know that they were not engaging in “chart reviews”, but signing their name to a medical record that was being used to justify the prescription of a medical device.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board place Respondent Candice Marie Gaitanis’s Registered Nurse License No. RN136150 and Advanced Practice Nurse Certificate No. AP4770 on probation for a period of 12 months including practice monitoring and such other conditions as the Board deems appropriate.

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.

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-137160-45720000Done this day, July 12, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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-137160-45720000