ALJDEC decisions subject to certification as final

21A-2021030403-NUR · State Board of Nursing · 2021-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED

NURSE LICENSE NO. RN190503

ISSUED TO:

WESLEY DAVID HULLEY,

RESPONDENT.

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 15, 2021 at 9:00 AM.

APPEARANCES: No appearance(s) by or on behalf of Wesley David Hulley (“Respondent”). Assistant Attorney General Sunita Krishna, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Anna Anderson as a witness. Robin Jasper (CRR No. 50286) served as the court reporter. Anna Spiegel observed.

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

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken that Respondent was first issued Registered Nurse License No. RN190503 on February 05, 2015.

On May 27, 2021, the Board issued Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted].

On June 04, 2021, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on June 15, 2021. The Complaint identified the issue for hearing as follows:

[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against, Wesley David Hulley, who holds registered nurse license number RN190503 to perform as a registered nurse in the State of Arizona.

The Board set forth specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1601(26)(d); as more specifically defined by Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(17), R4-19-403(25), and R4-19-403(31), 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 the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.

On June 11, 2021, OAH issued an Order informing the parties that the hearing would take pace remotely. Videoconference and teleconference information was provided to the parties in the Order. Correspondence issued to Respondent was not returned by the United States Postal Services or email domain as undeliverable.

No request was received by or on behalf of Respondent to appear for the hearing via alternative means, nor were any such requests received by or on behalf of Respondent to continue the matter.

Hearing Evidence

The Board presented the testimony of Anna Anderson – Senior Board Investigator and submitted Exhibits 1-7 into the record. The Complaint and June 11, 2021 Order were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

On May 01, 2017, Respondent was hired by Dignity Health located in Chandler, Arizona, as a Registered Nurse.

On March 18, 2021, Respondent reportedly consuming alcohol until 11:00 p.m.

On March 19, 2021, prior to arriving for his shift at work, Respondent reportedly consumed a mixed alcoholic beverage to “rid” him of his hangover. Dignity Health administered a for-cause drug screen and placed Respondent on suspension pending the outcome of the test.

On March 25, 2021, submitted a self-report to the Board whereby he provided notice of his workplace drug screen. Respondent also noted that he had a “history of alcohol abuse” but asserted that he no longer drank to the extent he did previously, in part, due to participation in an Alternative to Discipline program and monitoring.

On April 14, 2010, Respondent was convicted, pursuant to a guilty plea, of Reckless Driving, a class 1 Misdemeanor. Respondent was sentenced to 10-days in jail and 6-months of monitored probation.

On March 31, 2021, an official Medical Review Officer (“MRO”) Report was issued for Respondent’s screen, which confirmed Respondent’s 0.02% blood alcohol content (“BAC”) breathalyzed result and 0.056% ethanol content urinalysis result. Respondent’s screen also returned positive for amphetamines in violation of his employer’s Drug Free Workplace Policy.

Respondent did not possess a valid prescription for amphetamines during the relevant time period.

On April 01, 2021, Respondent was terminated from employment.

On April 02, 2021, the Board mailed an Investigative Questionnaire to Respondent’s address of record. Although a response was due on or before May 03, 2021, Respondent did not comply.

On May 12, 2021, the Board issued an Interim Order to Respondent, and attached an Affirmation of Intent to Comply with the Board’s request for Respondent to submit to a psychological evaluation with a Board-approved psychologist. Although a response was due on or before May 27, 2021, Respondent did not comply.

Although the Board made numerous attempts to reach Respondent in April and May of 2021 via telephone, email, and regular mail, Respondent never respond need to any of the Board’s correspondence.

On May 27, 2021, during a noticed meeting of the Board, Investigator Anderson presented her Investigative Report to the Board. Afterward, the Board voted to summarily suspend Respondent’s license and refer the matter to OAH for hearing.

In closing, the Board argued that although Respondent appropriately self-reported on March 25, 2021, Respondent failed to cooperate with the Board’s investigation and had effectively refused to maintain contact. The Board opined that sufficient grounds existed for the Tribunal to uphold its Summary Suspension of Respondent’s license, and asked that Respondent’s nursing license to be revoked.

CONCLUSION OF LAW

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 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.

* * *

(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(26)(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:

(17) A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location;

* * *

(25) Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or b. Respond to a subpoena issued by the Board;

* * *

(31) Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

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 or E 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 unprofessional conduct against Respondent to be credible. Respondent’s failure to appear and provide evidence in rebuttal to refute the Board’s claims are a factor in aggravation. Moreover, there is no evidence in the record to reasonably suggest that Respondent ever fully admitted any wrongdoing to the Board or attempted to enter into the Interim Order for the underlying events captured herein, which demonstrates he is unable to be regulated at this time.

The record reflects that Respondent was terminated from employment by Dignity Health for engaging in conduct that objectively and materially interfered with Respondent’s ability to perform his job duties in a safe and respectful manner. The evidence also reflects that Respondent failed to respond to any of the Board’s correspondence. The evidence further reflects that Respondent is not currently safe to practice nursing, or willing to submit to regulation by the Board.

Thus, the Board established that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(26)(d); as more specifically defined by Ariz. Admin. Code R4-19-403(17), R4-19-403(25), and R4-19-403(31), and 32-1601(26)(j).

In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients, other healthcare providers, and the Board. It is clear from a review of Respondent’s employment records he has not consistently met these rudimentary standards to practice nursing.

While Respondent may have undiagnosed substance abuse issues that affect his practice of nursing, those issues do not excuse his behavior or absolve him from responsibility from consequences stemming therefrom. Nor do they trump the Board’s legitimate interest in protecting the public.

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 and 32-1664.

Considering the facts and circumstances of this matter, it is recommended that registered nursing license number RN190503 be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke Respondent Wesley David Hulley’s registered nursing license number RN190503.

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, July 16, 2021.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing