ALJDEC decisions subject to certification as final

21A-201908161-NUR · State Board of Nursing · 2020-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF PRACTICAL NURSE LICENSE NO. 222403

ISSUED TO:

SHEENA M. LEACH,

RESPONDENT

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 2, 2020

APPEARANCES: Respondent Sheena M. Leach did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

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 practical nurse license number 222403.

On June 24, 2019, while completing the onboarding process to be hired as an LPN at Pronghorn Psychiatry, Respondent completed a drug test. On June 26, 2019, was confirmed positive for marijuana. Respondent was informed that she would be re-tested in 2 weeks. On July 30, 2019, Respondent completed a retest which, on August 1, 2019, was confirmed positive for heroin.

On July 18, 2019, according to Prescott Police Department Report Number 19-006429, Citation Number [number redacted], it was documented in the police report that Respondent’s car was sitting at a northbound stop sign at an intersection, holding up three to four vehicles. Respondent informed the officer that she was driving to work and officers documented noting signs and symptoms of impairment. It was documented Respondent admitted to smoking marijuana approximately two months prior and using heroin approximately six months prior; police also found two white pills in the center console that were marked with “H114”, later identified as a prescription only drug, Methocarbamol. Upon transport to the police facility, Respondent’s urine drug test was positive for Marijuana and Opiates. While in the processing room, Respondent reported she had used heroin one to two days prior. Respondent was charged with Driving Under the Influence and Prescription Drug-Possession/Use, Misdemeanors. On October 25, 2019, according to Prescott Municipal Court Case Number M1343CM2019000596, the case was dismissed without prejudice.

On August 30, 2019, according to Yavapai County Sheriff’s Office, incident number 19-030077, at 12:37 a.m., deputies conducted a traffic stop during which Respondent consented to a search of her vehicle. Upon searching the vehicle, a zip-lock bag was found inside the purse that was sitting on the floorboard on the passenger side at Respondent’s feet. The zip-lock bag contained seven needles containing a brown residue, an elastic band, two cords, an open paperclip with black residue and two cotton swaps. Respondent claimed that she had last used heroin two days prior, but deputies observed signs and symptoms of impairment, including slow and slurred speech. On August 30, 2019, in Prescott Municipal Court Case No. M1343CM2019000596, summons were issued for DUI Liquor/Drugs/Vapors, a Misdemeanor; DUI Drug or Metabolite, a Misdemeanor; and Prescription Drug Possession/Use, a Misdemeanor. On September 3, 2019, in Case No. DR No. 19-030077, the Yavapai County Attorney’s Office declined to file felony charges.

Respondent failed to disclose all three of the above incidents to the Board.

On August 22, 2019, Board staff mailed an Investigative Questionnaire, via first-class mail, to Respondent at her address of record with the Board. Respondent failed to provide a written statement of the reported matter in violation of statute and rule. On May 18, 2020, the Board sent Respondent a second Investigative Questionnaire, but again received no response in violation of statute and rule.

Susan Bushong, was the assigned Board investigator. Ms. Bushong compiled all of the records relevant to the above three incidents. While Respondent failed to respond to the Investigative Questionnaires, Ms. Bushong was able to contact Respondent in August, but still Respondent made no attempts to comply with the requests for information. Ms. Bushong then made a recommendation to the Board for a summary suspension of Respondent’s license.

On or about September 24, 2020, the Board summarily suspended Respondent’s practical nurse license and requested that proceedings be promptly instituted and determined.

On or about October 19, 2020, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, that alleged violations of A.R.S. § 32-3208(A) and (D), A.R.S. § 32-1601(26)(d), (g), and (j) and A.A.C. R4-19-403(9), (17), (18), (25)(a), and (28).

The Notice of Hearing was sent via certified mail to Respondent at her address of record. Further, on or about October 19, 2020, the Office of Administrative Hearings (OAH) sent an Order converting the hearing to a “Google Meet” to Respondent’s address of record.

Respondent did not file a response or exhibits with OAH, nor did she request that the hearing be continued prior to the hearing convening. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed prior to the hearing convening. Consequently, Respondent did not present any evidence to defend her Practical Nurse License.

CONCLUSIONS OF LAW

The Notice of 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’s 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).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Sheena M. Leach’s Practical Nurse License number 222403.

It is further recommended that the Board revoke Respondent Sheena M. Leach’s Registered Nurse License number 222403.

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, November 6, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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-137160-45720000