ALJDEC decisions subject to certification as final

21A-202005213-NUR · State Board of Nursing · 2021-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN177164

ISSUED TO:

HEATHER MEGAN GARDNER,

AKA: HEATHER MEGAN LAKER

RESPONDENT

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2021, and January 7, 2021, with the record held open.

APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell. Respondent Heather Megan Gardner appeared and was represented by Joey Hamby.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona State Board of Nursing (Board) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to -1669 and A.A.C. R4-19-101 to -815.

Heather Megan Gardner (Respondent) holds Board-issued Registered Nurse License No. RN177164 in the State of Arizona.

On November 1, 2007, Respondent entered into a Consent Agreement with the Board regarding CNA Certificate [number redacted], Case No. 0608160, for Stayed Revocation/Suspension with a 12-month probation with substance use disorder stipulations based in part on conduct and convictions related to her use of alcohol and illicit drugs. The action was cleared on November 19, 2008.

In July 2019, the Board voted to issue a Letter of Concern for accessing patients’ medical records in April and May of 2018 while on medical leave as a Registered Nurse with Complete Hospice in Phoenix, Arizona.

In or about September 2018, when completing an online application for Seasons Hospice (Seasons) in Phoenix, Arizona, Respondent answered “No” to the question “Has your license or certification ever been suspended or revoked or any disciplinary action enacted against your license in any state?”

Beginning in September 2018, Respondent worked as an after-hours triage nurse for Seasons. As an after-hours triage nurse, Respondent’s was to visit patients only if there was a need and she was required to document all patient visits.

On or about November 21, 2018, Respondent made a visit to a Seasons’ patient that she documented as a “wellness check”, after which the patient reported that his Oxycodone was missing.

Respondent was counseled that she should not do “wellness visits” during her shift unless specifically instructed to do so.

On January 6, 2019, and January 9, 2019, Respondent made visits to a different Seasons’ patient that she documented as a “wellness check”, after which the patient reported missing medication.

Respondent was given a final written counseling and was warned to make no further unannounced and unassigned “wellness visits”.

At some point after receiving the discipline, Respondent went on medical/maternity leave.

In late January or early February 2020, Respondent returned to work. Because of her prolonged absence, Respondent was required to repeat the onboarding process.

As part of the onboarding process, Respondent accompanied another nurse during a competency visit at the home of Patient SS, an elderly man with Stage IV colon cancer, on February 21, 2020.

After the February 21, 2020 home visit, Seasons’ staff began to note shortages in Patient SS’s Oxycodone.

Seasons received reports that a nurse had made several unscheduled, unassigned, and unnecessary visits to Patient SS.

Patient SS reported that an individual brought him root beer and Zingers cakes on several occasions after hours and on weekends and, at each visit, went through his medications, which included Oxycodone.

Patient SS was shown photos of two Seasons’ nurses during an interview with Seasons’ staff. Patient SS identified Respondent as the individual who made the unannounced visits and brought him the treats.

Respondent denied any visits to Patient SS’s home apart from the initial competency visit.

Patient SS’s medical records did not include any indication of additional visits by Respondent.

Respondent was placed on administrative leave on May 8, 2020, and was terminated on May 14, 2020.

On July 10, 2020, based on concerns raised by previous Oxycodone miscounts, Patient SS’s RN Case Manager performed an audit of the remaining Oxycodone in the prescription bottle filled on April 15, 2020. The RN Case Manager noted that 2 of the 14 remaining tablets in Patient SS’s Oxycodone 5mg prescription bottle appeared different than the rest. The 2 tablets that were different from the others were identified as 5mg Oxycodone and the 12 remaining tablets in the Oxycodone bottle were identified as 2mg tizanidine, a muscle relaxer. Oxycodone 5mg and Tizanidine 2mg are both small white tablets almost identical in color and size.

Patient SS had never been prescribed 2mg tizanidine and self-administered his medications. Patient SS stated that other than himself, only Respondent and his RN Case Manager had access to his medications. After he learned that much of his remaining medication was not Oxycodone, Patient SS commented that he wondered why his pain medication had not been as effective as it had been in the past.

On or about May 9, 2020, and June 6, 2020, Patient AB, an elderly man on hospice service with Seasons, had unscheduled, unnecessary visits from a nurse at his home. Patient AB had also been prescribed Oxycodone. Nothing in Patient AB’s medical records documented the two visits.

In May 2020, Patient AB and his wife identified Respondent from two photos of Seasons’ nurses as the nurse who conducted the May 9, 2020 unannounced visit.

In June 2020, Patient AB again identified Respondent from two photos of Seasons’ nurses as the nurse who conducted the June 6, 2020 unannounced visit.

On or about June 12, 2020, when completing a written employment application for Stoneridge Hospice, Respondent answered “No” to the question “Have you ever been convicted of a criminal offense (felony or misdemeanor)?”

At or about 12:04 p.m. on June 15, 2020, Respondent emailed Board staff a completed Investigative Questionnaire regarding the May 14, 2020 complaint. In her response, Respondent indicated she was employed by Stoneridge Hospice with a hire date of June 12, 2020. Respondent also answered “No” to the question “Do you have any previous criminal convictions?”

At or about 1:48 p.m. on June 15, 2020, Board staff informed Respondent via email that she needed to submit a urine sample no later than Wednesday, June 17, 2020.

At or about 3:01 p.m. on June 15, 2020, Respondent replied to the email from Board staff stating, “I am currently in orientation for a new employer and I [have] orientation from 0800-1700 through Wednesday, can I submit for the UDS Thursday morning?”

At or about 3:28 p.m. on June 15, 2020, Board staff replied to Respondent that they had spoken to Respondent’s current employer, Stoneridge Hospice, who confirmed that Respondent did not have any orientation days scheduled that week and Respondent’s urine drug screen remained required by Wednesday, June 17, 2020.

At or about 3:53 p.m. on June 15, 2020, Respondent replied to Board staff that she had another job offer that afternoon from Prescott, but she was able to get the orientation rescheduled to the following week and would have the drug screen completed by June 17, 2020.

On June 17, 2020, Respondent submitted a urine drug screen as required. The results were positive for Oxycodone. Respondent had a prescription for Oxycodone. Therefore, the results of the drug screen were consistent with her known medications.

On or about June 26, 2020, Board staff received an Investigative Questionnaire from Respondent regarding the June 10, 2020 complaint. Respondent answered “No” to the question “Do you have any previous criminal convictions?”

On or about June 30, 2020, Respondent attended an in-person interview with Board staff. During that interview, Respondent informed Board staff that the Prescott new employer she had referred to was Maggie’s Hospice.

On or about July 1, 2020, Board staff spoke to Patty Smith, Director of Nursing, at Maggie’s Hospice who stated that Respondent had applied for a job, had been scheduled for an interview, did not show for the interview, had rescheduled the interview for June 18, 2020, or June 19, 2020, and eventually canceled the interview five minutes after the interview was scheduled to begin.

Respondent stated that she understood the interview was a formality and that she had basically been approved for hire at the time the interview was offered to her. Respondent did not offer an explanation, other than juggling her job search and two young children, as to why she told Board staff on June 15, 2020, that she had orientation scheduled with a new employer through June 17, 2020.

During the investigation of the complaints received against Respondent, Board staff determined Respondent had prior convictions including extreme DUI, prostitution, shoplifting, and possession of drug paraphernalia.

On or about July 23, 2020, the Board summarily suspended Respondent’s registered nurse license and requested that proceedings be promptly instituted and determined.

On or about August 13, 2020, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(d), (h), and (j); and A.A.C. R4-19-403(1), (7), (15), (16), (17), (18), (26), (27), and (31).

The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on October 30, 2020, and January 7, 2021.

The Board submitted 14 exhibits and presented the testimony of Pamela Roman, Kimberly Holloway, Tracy Villaplana, Heather Wicks, Patricia Gold, and Tiffany Fotinos. Respondent submitted 11 exhibits and presented the testimony of Respondent and Matthew Gardner.

At hearing, Kimberly Holloway, Patient SS’s daughter, testified that she typically visited her father every Sunday. Ms. Holloway was not able to specify exact dates, but she testified that Respondent visited Patient SS at his home on two separate Sundays when she was present. Ms. Holloway indicated that the first time Respondent visited while she was there, Respondent introduced herself and Patient SS introduced Respondent to Ms. Holloway. Ms. Holloway stated that Respondent brought Patient SS treats like zingers, ice cream, and root beer. Ms. Holloway testified that Patient SS told her that Respondent was “really nice” and would come to his house “extra” just to make sure that he was doing well, but that Ms. Holloway should not say anything because Respondent was not supposed to be at his home. Ms. Holloway reported that Respondent was average height and weight.

At hearing, Respondent denied making any of the unscheduled, unnecessary home visits of which she was accused. Respondent denied ever having been at Patient AB’s home and indicated the only time she was at Patient SS’s home was during the competency visit with another nurse. Respondent presented a series of photographs and receipts to establish her whereabouts on the dates at issue. Respondent provided her counsel with all the photographs she was able to recover, then her counsel selected the photographs that would be submitted at hearing. The photographs were a combination of cell phone pictures and pictures recovered from her security system. Respondent testified her family only had one vehicle at the time in question, so when that vehicle was visible in her driveway, she had to have been home and could not have been elsewhere.

Respondent testified she was 5’11” and was not generally described as an “average” height.

As to Respondent’s false answers regarding her criminal background on the investigative questionnaires and employment applications, Respondent stated that her attorney told her several years ago that the convictions had been expunged. Respondent understood that if she was asked about a prior convictions, she could deny having any convictions because her criminal record was clear.

As to Respondent’s false answers regarding her prior discipline with the Board, Respondent stated that she answered that she did not have any prior discipline because her Registered Nurse license had never been disciplined by the Board.

Respondent admitted that she had been prescribed 4mg tizanidine, but denied ever having received 2mg tizanidine.

Respondent’s counsel criticized the method of identification Seasons’ staff used in presenting the photographs to Patient SS and Patient AB and his wife as not being reliable.

CONCLUSIONS OF LAW

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 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).

On the investigative questionnaire and an employment application, Respondent falsely answered that she did not have any previous criminal convictions. While Respondent may have believed she did not have to report the purportedly expunged convictions, Respondent provided no reasonable basis for that belief.

On an employment application Respondent falsely answered that her license had not previously been disciplined by the Board. Respondent’s assertion that she answered “No” because her Registered Nurse license had not previously been disciplined was not credible.

As to the central accusation at issue, that Respondent made unscheduled and unnecessary home visits to Seasons’ patients and took Oxycodone from those patients, the weight of the credible evidence leads one to the conclusion that Respondent did visit Patient SS and Patient AB at their homes outside the scope of her work duties and took Oxycodone from each patient. Respondent’s history of discipline with Seasons prior to her medical/maternity leave included making similar visits. Respondent had a prescription for tizanidine, the same drug found in Patient SS’s Oxycodone pill bottle. While Respondent testified she had never been given 2mg pills, no evidence to support her assertion was presented.

Respondent’s photographs were compelling in showing Respondent’s actions on those specific days; however, they were not enough to overcome the weight of the evidence submitted by the Board. First, the exact dates of the visits were not established and could have occurred on a day different than those documented in the photographs. Second, few of the photographs show Respondent’s location at any given time; rather, most of the photographs showed a vehicle in the driveway.

Accordingly, the Board established by the preponderance of the evidence that Respondent engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (h), and (j); and A.A.C. R4-19-403(1), (7), (15), (16), (17), (18), (26), (27), and (31). Thus, 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 Heather Megan Gardner’s Registered Nurse License Number RN177164.

The Administrative Law Judge further recommends that the Board place Respondent Heather Megan Gardner’s Registered Nurse License Number RN177164 on a 36 month probation to include a comprehensive psychological evaluation (to include a substance abuse evaluation) to be scheduled within 30 days and completed within 60 days, and that Respondent complete all evaluator recommendations, and submit employer monitoring and reports.

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, March 16, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing-54864001

001

-137160-45720000