ALJDEC decisions subject to certification as final
21A-2021010153-NUR · State Board of Nursing · 2021-04-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP051122
ISSUED TO:
ELOISE ANNETTE MOLINA,
RESPONDENT.
No. 21A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 26, 2021 at 9:00 AM.
APPEARANCES: Eloise Molina (“Respondent”) appeared on her own behalf. Assistant Attorney General Sunita Krishna, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Brent Sutter as a witness. Kristy Spires (CR No. 50135) served at the Court Reporter for this matter.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.
FINDINGS OF FACT
Background and Procedure
Administrative Notice is taken that Respondent was first issued Practical Nurse License No. LP051122 on July 17, 2015. The license expired on January 28, 2021.
On February 10, 2021, the Board issued a Complaint and Notice of Hearing – Summary Suspension Expedited Hearing (“Complaint” and “Notice of Hearing”) setting the above-captioned matter for hearing at 9:00 a.m. on February 26, 2021. The Notice of Hearing identified the issues as follows:
[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Eloise Annette Molina, who holds practical nurse license number LP051122 to perform as a practical nurse in the State of Arizona.”
The Board set forth four specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-1601(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(17) and R4-19-403(18); 32-1601(26)(i); and 32-1601(26)(j). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.
The Board referred the matter to OAH, an independent agency, for an evidentiary hearing on the allegations in the Board’s Complaint.
Hearing Evidence
Respondent testified on her own behalf. The Board presented the testimony of Brent Sutter and submitted Exhibits 1-13 and 15-17. The Notice of Hearing was also admitted into the evidentiary record as its own exhibit. The substantive evidence of record is as follows:
On or about November 12, 2015, Respondent self-reported to the Board that she had a substance use disorder.
On November 19, 2015, the Board received a complaint from a Recovery Coach at CODAC Health, Recovery, & Wellness, Inc. who reported that Respondent had a meeting at CODAC on November 04, 2015, to re-engage in services and offer options for treatment. Respondent reported that she had relapsed and was having issues dealing with withdrawals.
On or about November 23, 2015, Respondent was interviewed by Board staff and admitted that she had a substance use disorder.
On December 02, 2015, Respondent voluntarily entered into a 3-year Chemically Addicted Nurses Diversion Option (“CANDO”) agreement which required, among other things, abstinence from alcohol, mind altering, and other controlled or potentially addictive substances, randomized drug testing, Alcoholics Anonymous/Narcotics Anonymous(“AA/NA”) or equivalent meetings and employment supervision upon approval to return to work.
Term 10(a) of the agreement required Respondent to submit reports to CANDO on February 28, 2016, April 30, 2016, June 30, 2016, August 31, 2016, October 31, 2016, and December 31, 2016. Term 13(f) of the agreement notes that noncompliance with any enumerated term would be considered a violation of the Nurse Practice Act and subject to additional discipline.
Respondent failed to submit AA/NA attendance reports due on June 30, 2020, August 31, 2020, October 31, 2020, and December 31, 2020 in violation of the Stipulated Agreement. Respondent also failed to submit self-report forms to the Board within 7-days of the aforementioned reporting due dates.
The only self-report Respondent submitted was for the period March to April 2020.
On or about May 25, 2017, due to non-compliance with reporting, nurse recovery group attendance, and missed random urine drug testing Respondent signed and entered into a First Addendum to the Stipulated Agreement that allowed Respondent to continue in the program for 3-years from the effective of the addendum with terms and conditions.
On September 30, 2020, Respondent submitted a specimen for random drug testing. Respondent’s sample tested positive for opiates at codeine at 2308 ng/ml and Morphine at 324 ng/ml. Respondent did not provide proof of a valid opiate-based prescription to the Board.
On October 01, 2020, the Board notified Respondent that she was missing multiple reports and other documentation that required her submittal under the Stipulated Agreement. On October 21, 2020, the Board followed up with Respondent to advise that the reports it requested earlier in the month had still not been received. Respondent was advised to submit them so that her reporting could be “brought up to date.”
Between August 08, 2016, and January 12, 2021, Respondent missed 12 tests. Including testing on July 27, 2017, December 19, 2017, December 11, 2018, December 10, 2020, and December 17, 2020.
On November 24, 2020, Respondent submitted another specimen for random drug testing. Respondent’s sample tested positive for cocaine at 247 ng/ml.
On December 02 2020, during a telephonic interview with Board staff, Respondent denied cocaine use and stated that opiates were her “drug of choice.”
On December 07, 2020, December 09, 2020, and December 10, 2020, a Medical Review Officer (“MRO”) attempted to review Respondent’s specimen with her per her request, but was unable to reach her. Respondent never returned any of the MRO’s voicemail messages. As a result, Respondent’s result remained an unauthorized positive.
The only AA/NA attendance reporting form received from Respondent covered May through June 2020.
The Board did not receive monthly reports from Respondent’s healthcare provider, regarding Respondent’s controlled prescription for Suboxone, from July 31, 2020 to December 31, 2020.
On January 04, 2021, the Board advised Respondent that a telephonic appointment had been set for her at 11:00 a.m. on January 11, 2021, regarding Respondent’s noncompliance of the Stipulated Agreement.
On January 27, 2021, the Board advised Respondent of her discharge from the CANDO program.
On January 27, 2021, an investigative Non-Compliance Report about Respondent was presented to the Board for review. The Board voted to send the matter to OAH for an administrative hearing.
In closing, the Board argued that Respondent had been given multiple opportunities to rehabilitate herself, despite her agreement violations. The Board also argued that Respondent failure to follow-up with the MRO after a positive drug screen, failure to provide proof of prescription(s) to justify her positive drug screen(s), and failure to maintain contact with the Board and submit required documents in a timely fashion evidenced her inability to be properly regulated by the Board. The Board concluded by requesting that Respondent’s license be revoked.
Respondent declined to provide a closing argument.
CONCLUSION OF LAW
The Complaint and 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.
This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in the State of Arizona. Pursuant to Ariz. Rev. Stat. §§ 32-1601 through 1669 and Ariz. Admin. Code R4-19-101 through 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The Board bears the burden of proof to establish cause to penalize Respondent’s registered nursing license. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.
The Board’s burden is a preponderance of the evidence.
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).
Ariz. Rev. Stat. § 32-1601(26) defines unprofessional conduct in the nursing profession, in pertinent part, as follows:
"Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:
(d) As any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.
* * *
(i) Failing to comply with a stipulated agreement, consent agreement or board order.
(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.
Ariz. Admin. Code R4-19-403 defines unprofessional conduct in the nursing profession, in pertinent part, as follows:
For purposes of A.R.S. § 32-1601(24)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following:
(7) Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient;
* * *
(18) Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices.
Ariz. Rev. Stat. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows:
* * *
(D) If the board finds, after affording an opportunity to request an administrative hearing pursuant to Title 41, Chapter 6, Article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.
* * *
(F) If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to [subsection D] of this section, the board may serve on the licensee or certificate holder a written notice that states:
(1) That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter.
(2) The nature of the allegations asserted and that cites the specific statutes or rules violated.
Ariz. Rev. Stat. § 32-1664(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating that, “If the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”
Here, the Board has sustained its burden of proof.
The undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of inappropriate conduct against Respondent to be credible. During her testimony Respondent failed to provide exonerating or mitigating evidence to refute the Board’s substantive evidence. Moreover, Respondent never provided the Board with the documents it repeatedly requested for Respondent to be in compliance with her Stipulated Agreement, and Respondent never followed-up with the MRO regarding either of her positive drug screen results. Respondent’s conduct has demonstrated that she is not able to be regulated at this time.
In order to deliver effective healthcare to patients, nurses must be safe and adhere to Board rules and regulations. It is clear from a review of the record that Respondent is not able to meet these rudimentary standards to practice nursing.
In light of the risk of potential harm to patients as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under Ariz. Rev. Stat. §§ 32-1663(D), 32-1663(F), and 32-1664(O).
Considering the facts and circumstances of this matter, it is recommended that practical nursing license number LP051122 be revoked.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Board revoke Respondent Eloise Annette Molina’s practical nursing license number LP051122.
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, April 02, 2021.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing