ALJDEC - Licensing

22A-201909258-NUR · State Board of Nursing · 2023-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE PRACTICAL NURSE LICENSE NO. LP034959

ISSUED TO:

JESSICA R. GONZALEZ,

RESPONDENT.

No. 22A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2023

APPEARANCES: Assistant Attorney General Charles Hover, III represented the Arizona State Board of Nursing. Anna Anderson and Dr. Phillip Lett appeared as witnesses for the Arizona State Board of Nursing. Respondent Jessica Gonzalez appeared on her own behalf. Robin Jasper provided court reporting services.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

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 Arizona Revised Statutes (“A.R.S.”) §§ 32-1606, 32-1663, 32-1664, 41-1092.11(B). 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 -1667 and Arizona Administrative Code (“A.A.C.”) Rules 4-19-101 to -815.

Jessica R. Gonzalez (“Respondent”) holds Board issued Practical Nurse License Number LP034959 in the State of Arizona.

On September 13, 2019, the Board received a complaint from Sapphire of Tucson, in Tucson, Arizona, reporting that Respondent had assaulted another nurse on September 7, 2019. Based on this information the Board conducted an investigation.

Anna Anderson, Program Administrator for the Board’s Hearings Department and High Risk Investigations, investigated this matter. Ms. Anderson has investigated over four hundred complaints for the Board. In this case, Ms. Anderson subpoenaed the police report and Respondent’s employment records, and conducted interviews.

From January 2014 until August 2019, Respondent was employed as an LPN at Danville Services. In January 2017, Respondent was placed on a performance improvement plan after multiple instances of rudeness and confrontational behavior with other staff. In May 2019, Respondent was placed on a performance improvement plan and was required to take unpaid administrative leave after Respondent yelled at another staff member in a patient’s presence. In August 2019, Respondent was terminated following a report that Respondent and another staff member had been involved in a verbal altercation while in a patient’s presence.

On September 7, 2019, Respondent was on duty at Sapphire of Tucson, a nursing rehabilitation and care hospital in Tucson, Arizona. Respondent was involved in a verbal and physical altercation with another nurse, who suffered harm. The altercation took place in the presence of patients, and Respondent pushed the other nurse into a patient. The Tucson Police Department responded to the scene and arrested and cited Respondent for Assault-Physical Injury and Disorderly Conduct-Fighting.

On September 18, 2019 in Tucson City Court Case Number CM19052053, Respondent was charged with Disorderly Conduct-Fighting, a class 1 misdemeanor and Assault-With Intent or Knowingly Cause Injury to Others, a class 1 misdemeanor. Ms. Anderson testified that Respondent failed to report her charges within ten (10) days to the Board as required.

Ms. Anderson testified that the criminal charges against Respondent were dismissed due to an “unlikelihood of conviction” based upon the fact that the resident who witnessed the event is now deceased and the nurse who was involved in the incident with Respondent has moved out of state.

On or about December 7, 2021, the Board issued an Interim Order for a comprehensive psychological evaluation to be completed within 45 days. The Order advised Respondent that failure to comply with the Order constituted unprofessional conduct and may be cause for the Board to take disciplinary action against Respondent’s license.

Respondent failed to timely comply with the Interim Order. Respondent did not complete the evaluation until February 21, 2022.

On or about April 28, 2023, the Board issued a 2nd Amended Complaint and Notice of Hearing that alleged violations of A.R.S. § 32-1601(27)(d), (e), (h), (i), and (j) A.A.C. R4-19-403(2), (28) and (31), and A.R.S. § 32-3208(A) and (D).

Dr. Phillip Lett conducted the psychological evaluation of Respondent. Dr. Lett testified that he has been conducting evaluations for nurses since 1993 and has conducted over a thousand of such. Dr. Lett testified that his evaluation of Respondent consisted of a two hour clinical interview with Respondent as well as three to four hours of standardized testing. Based upon the February 21, 2022 evaluation, Dr. Lett found that Respondent provisionally met diagnostic criteria for a mental health condition and made treatment recommendations to address anger and other mental health issues.

Dr. Lett’s Comprehensive Psychological Evaluation for Anger Management indicates that in Respondent’s responses to the Investigative Questionnaire dated November 18, 2019, Respondent stated that she was terminated from Danville “after reporting another caregiver verbally attacked her.” Respondent also answered, “No,” to the question: “Do you have a history of discipline by a current or previous employer(s)?”

Dr. Lett concluded the following in pertinent part:

Given her history, [Respondent] presents as ‘at-risk’ for relapse to acute anxiety and/or depression. This may result from specific or prolonged stress, inappropriate and/or ineffective anger expression, and/or other emotional dysregulation experiences. Risk factors include behavioral health history, unlawful behavior history (i.e., disorderly conduct 2019), and occupational history. It is noteworthy that the record review indicates [Respondent] has worked as an LPN since 1999 and involuntarily terminated by employers three times since 2015.

. . . .

Based on this evaluation, it is within a reasonable degree of psychological certainty that [Respondent] has the ability to function safely as a nurse while she:

Undergoes consultation with a qualified adult psychiatrist and follows recommendations.

Completes a qualified anger management program approved by the Board.

Undergoes individual counseling/psychotherapy weekly for one month and then every other week for five months with a qualified mental health professional experienced treating clinical anxiety and depression with anger issues.

She causes the providers in #1, #2, and #3 above to share and coordinate her health status and history and provide compliance updates every other month.

She causes her employer to submit quarterly performance reports to the Board for one year.

Ms. Anderson testified that throughout the investigation, she attempted to contact Respondent multiple times through email, telephone, and the Board’s secure message center, however, Respondent only messaged Ms. Anderson one time to advise that she was working nights and had accidentally deleted her emails. Ms. Anderson further testified that at one point, later in the investigation, Respondent called her and was “yelling and angry” and accused the Board of harassing her.

Respondent testified that the filed complaint contains “false accusations and allegations.” Respondent testified that she “does not agree with the wrongful terminations since 2009.” Respondent further testified that she was “never terminated due to her actions.” Respondent asserted that she was “wrongfully terminated from the VA in 2009 and since then, she has been wrongfully terminated.” Respondent testified that she acted in “self-defense,” was “never physically aggressive with anyone in the work place,” “never used foul language,” however, “foul language has been directed toward her.” During her testimony Respondent continually blamed others for her altercations, whether verbal or physical, and for the resulting terminations. Respondent testified that she has “never had confrontational behavior,” however admitted to “lashing out at” Ms. Anderson because she was “frustrated.”

Respondent testified that she agrees with “most of Dr. Lett’s recommendations except for anger management.” Respondent acknowledged that she has not followed through with any of Dr. Lett’s recommendations notwithstanding that she has been aware of them since February 2022.

At the conclusion of the hearing, the Board requested an Order of Revocation due to Respondent’s lack of insight regarding her underlying issues, the fact that her conduct has escalated over the years, her lack of personal accountability, and the fact that Respondent has been aware of Dr. Lett’s recommendations and has not taken any steps toward remediation notwithstanding the passage of more than a year. Such behavior demonstrates that Respondent is not able and/or unwilling to be regulated.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction pursuant to A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof and must establish cause to penalize Respondent’s practical nurse license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct, specifically: i) conduct that is or might be harmful to the health of a patient or the public, including a) intentionally or negligently causing physical or emotional injury, b) failing to notify the Board in writing within ten (10) days of being charged with a felony or misdemeanor involving conduct that may affect patient safety, and (c) practicing in a manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed; ii) being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public; iii) committing an act that deceives, defrauds or harms the public; iv) failing to comply with a Board Order; and v) violating a Board statute or rule, as alleged in the Complaint and Notice of Hearing.

In light of the evidence of record and the risk of harm to which patients and the public were and could be exposed 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 A.R.S. § 32-1606(B)(10) and A.R.S. § 32-1663(D).

RECOMMENDED ORDER

IT IS RECOMMENDED that the Board revoke Respondent Jessica R. Gonzalez’s Practical Nurse License Number LP034959.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, August 7, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Joey Ridenour, RN, MN

Executive Director

State Board of Nursing

[email redacted]

Jessica R. Gonzalez

[email redacted]

Charles S. Hover, III

Office of the Attorney General

[email redacted]

By: OAH Staff