ALJDEC decisions subject to certification as final

21A-202004039-NUR · State Board of Nursing · 2020-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF DENIAL OF APPLICATION FOR LICENSE TO PRACTICE PRACTICAL NURSING IN THE STATE OF ARIZONA,

AND

IN THE MATTER OF THE PRIVILEGE TO PRACTICE NURSING UNDER THE NURSE LICENSURE COMPACT IN THE STATE OF ARIZONA:

JARRED ALLEN VINCENT

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 27, 2020, with the record held open until November 16, 2020

APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna. Respondent Jarred Allen Vincent did not appear.

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 Licensed Practical Nurse License Number L2-0013134, issued by the Delaware Board of Nursing, a Compact State, with multistate licensure privileges (Privilege) under the Nurse Licensure Compact (Compact) pursuant to A.R.S. § 32-1668 and 1669, which provided him with the privilege to practice in Arizona.

On or about March 9, 2013, Respondent was cited by the Tucson Police Department, citation number 20514062, for Driving Under the Influence (DUI) of Liquor/Drugs/Vapors 1st offense, DUI with a Breath Alcohol Concentration (BAC) or .08% or above; DUI Extreme with a BAC of .15 to .199%; Criminal Damage; and Failure to Control Speed to Avoid Accident.

On or about June 5, 2013, pursuant to a plea agreement, Respondent was found guilty of DUI of Liquor/Drugs/Vapors 1st offense, a misdemeanor, with all other charges dismissed.

On or about March 24, 2020, while working as a licensed practical nurse (LPN) at Desert Rose Integrated Clinic in Tucson, Arizona, Respondent was observed by other staff being unsteady, fumbling, jerky, and sweaty together with actions that were described as erratic and hyperactive. Respondent was asked about his behavior and admitted to his supervisor that he was under the influence of a substance, specifically, that he was using crystal methamphetamine.

On or about March 25, 2020, Respondent completed a for-cause drug screen.

On or about April 2, 2020, the drug screen returned positive for Methamphetamine.

On or about April 2, 2020, the Board received a complaint from Desert Rose Integrated Clinic detailing the observed behaviors of Respondent, his admissions, and the results of his drug screen. Based on this complaint the Board opened an investigation.

On or about May 20, 2020, Board staff received Respondent’s Investigative Questionnaire, in which he included his written explanation of the events related to Desert Rose Integrated Clinic. On page 14, Section VI of the questionnaire, Arrest/Citations/Charges, Respondent marked “No” to the question that asked if Respondent had ever been arrested, cited, or charged. Respondent signed the questionnaire verifying that all information provided by him was complete and correct to the best of his knowledge and belief. Respondent failed to disclose or provide documentation related to his 2013 charge for DUI.

On or about July 12, 2020, while working at Sapphire of Tucson in Tucson, Arizona, Respondent was observed by other staff to be showing signs of impairment, including appearing extremely sweaty and talking fast with notably slurred speech.

Respondent completed a for-cause urine drug screen that was positive for Methylenedioxymethamphetamine (commonly known as MDMA, Ecstasy, or Molly), Methamphetamines, and Benzodiazepines.

On or about July 14, 2020, Respondent completed a reasonable suspicion for-cause drug screen.

On or about July 21, 2020, Respondent submitted a self-report to the Board regarding the circumstances surrounding his termination from Sapphire of Tucson. Respondent described the events as follows:

I had asked another nurse to cover the first half of my shift to allow time ot catch up on a statistics class that I was taking online, and she said she would I was over at a friends house who was assisting me with the homework when what I thought was an emergency with another person in the home brought me into the bathroom of the home. I almost started to perform CPR when they said it was a joke so I went back to my seat and drank my glass of water. At this time my friends had assumed I would not need to report to work until 11:30. What did they was place a pill of exstacy into my glass of water thinking it would kick in before I would have to go to work thus forcing me to call out. My work then called me informing me the nurse that had said she would cover the first part of my shift now reigned on her promise and I needed to come in. At this time I was not feeling the effects of the drug in part due to time of ingestion as well as I take a medication that has a tendency to mask sedative type drugs. When I came into work I was not feeling right but thought it was due to lack of sleep from work and school. My coworkers were concerned, I was brought into HR and drug tested where I was found to have illegal substances in my urine. I showed my DON the medications I was prescribed. I was sent home and ordered to be drug tested at a concentra. I do not know those results as of yet, but I do now know what happened as why I tested positive for illegal substances. I was told by DON no one was injured no patients were harmed during the time I was on the floor. I have seence been terminated and am now self-reportings. I have an Evaluation set of august 17th for admission into the ICAN program.

All errors in original.

On or about July 23, 2020, the drug screen returned positive for Amphetamine and Methamphetamine.

On or about July 28, 2020, the Board received a complaint from Sapphire of Tucson detailing the observed behaviors of Respondent, his admissions, and the results of his drug screen. Based on this complaint the Board opened an investigation.

On or about August 17, 2020, Board staff received Respondent’s Investigative Questionnaire via email, in which he included his written explanation of the events related to Sapphire of Tucson. On page 13, Section VI of the questionnaire, Arrest/Citations/Charges, Respondent checked “No” to the question that asked if Respondent had ever been arrested, cited, or charged. Respondent signed the questionnaire verifying that all information provided by him was complete and correct to the best of his knowledge and belief. Respondent failed to disclose or provide documentation related to his 2013 charge for DUI.

On or about August 26, 2020, during a telephone interview with Board staff, Respondent admitted to having two DUI arrests but stated he misinterpreted the question as applying to criminal charges and did not consider his DUI’s as criminal charges.

On or about August 26, 2020, Respondent applied for licensure in Arizona as a Practical Nurse by Endorsement and declared Arizona as his primary state of residence. On the application question #6, related to any criminal offenses not previously reported to the Board, Respondent indicated that he had been cited or charged with a violation and disclosed his DUI arrest in 2013. Respondent failed to report a 2002 DUI. Respondent marked the box declaring under penalty of perjury under the laws of Arizona, that the statements he provided were true in every respect to the best of his knowledge and he had not suppressed any information that would affect his application.

On or about August 30, 2020, Respondent submitted an Arrest/Charge/Citation Questionnaire in which Respondent indicated he had a 2002 and a 2013 conviction for DUI both in Tucson, Arizona.

On or about September 18, 2020, Respondent completed a comprehensive psychological evaluation which included a substance abuse evaluation, with a Board-approved evaluator, who opined that Respondent did not meet criteria for a substance use disorder, but did meet criteria for mental health disorders and made treatment recommendations.

On or about September 24, 2020, the Board voted to deny Respondent’s application for practical nurse licensure based on its determination that Respondent had committed acts of unprofessional conduct. The Board also summarily suspended Respondent’s compact privilege to practice nursing in Arizona and requested that proceedings be promptly instituted and determined.

On or about October 9, 2020, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, that alleged violations of A.R.S. § 32-1601(26) (d), (e), (g), and (j) and A.A.C. R4-19-403(1), (9), (17), (18), (20), and (31).

The Notice of Hearing was sent via certified mail to Respondent at his address of record.

On or about October 14, 2020, the Office of Administrative Hearings issued an order to the parties informing them that the hearing would be conducted via Google Meet and the parties could attend through videoconference or by telephone. The order was sent to Respondent at his address of record.

Respondent did not appear at the duly noticed hearing and did not 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 time, he 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 his privilege to practice in the State of Arizona or to present evidence as to why his application should be granted.

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).

As to the summary suspension, the Board bears the burden of proof and must establish cause to penalize Respondent’s privilege to practice nursing under the Nurse Licensure Compact 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).

As to the application denial, Respondent bears the burden of proof to establish by a preponderance of the evidence that he was met the qualifications to practice in Arizona and that, therefore, the Board erred in denying his application. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; 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 privilege to practice under A.R.S. § 32-1663(D) and A.R.S. § 32-1664(N).

Respondent failed to appear at the hearing and therefore, failed to present any evidence to establish his qualification to practice nursing in the state of Arizona. Therefore, Respondent failed to meet his burden of proof that the Board erroneously denied his application.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Jarred Allen Vincent’s privilege to practice nursing under the Nurse Licensure Compact in the State of Arizona.

It is further recommended that that Board revoke Respondent Jarred Allen Vincent’s privilege to practice nursing under the Nurse Licensure Compact in the State of Arizona.

It is further recommended that Respondent’s appeal of the denial of his application be denied.

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.

-54864001

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-137160-45720000Done this day, December 7, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing-54864001

001

-137160-45720000