ALJDEC decisions subject to certification as final
22A-202006188-NUR · State Board of Nursing · 2022-06-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN208867
ISSUED TO:
KELLY DeBERNARDO
AKA: Kelly A. DeBernardo,
RESPONDENT.
No. 22A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: May 26, 2022
APPEARANCES: Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. Dawn Miller and Diane Caruso appeared as witnesses for the Arizona State Board of Nursing. Respondent Kelly DeBernardo did not appear.
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 A.R.S. §§ 32-1606, 1663, and 1664. 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 through 1667 and the Arizona Administrative Code Rules 4-19-101 to 4-19-815.
Kelly DeBernardo (“Respondent”) holds Board-issued registered nurse license number RN208867.
On or about June 10, 2020, Dawn Miller, who at that time was employed as the Executive Director of Wellsprings of Phoenix (“Wellsprings”), filed a Complaint with the Board against Respondent. Wellsprings is a skilled nursing facility that provides short term rehabilitation for patients. Respondent had been employed as the Director of Nursing for Wellsprings. Dr. Raj Ravula was the contracted medical director for Wellsprings.
Ms. Miller testified that on June 4, 2020, she received a call from Dr. Ravula after he had received a call from a pharmacist requesting verification of two suspicious prescriptions for controlled substances that had been faxed from Wellsprings and identified Dr. Ravula as the prescribing physician. Dr. Ravula discovered that someone had forged his signature and used his DEA number on the two prescriptions.
Ms. Miller began an investigation and found evidence that the faxed prescriptions appeared to have been created, forged and faxed to the pharmacy by Respondent. Mr. Miller looked at the prescriptions and the electronic medical record (“EMR”) for the two patients (“BC” and “AL”). Ms. Miller’s review of the EMR revealed Respondent’s name as the creator of the two fraudulent prescriptions. The review further indicated that the medication orders were generated using Respondent’s name for two prescriptions with future dates and then were quickly canceled in the EMR.
Specifically, for patient A.L., the EMR showed Respondent as having created, confirmed, and revised an order for 90 tablets of oxycodone HCL 30 mg on June 4, 2020 between 13:16 and 13:19. The order had a future start date of June 7, 2020, and was created at 13:16 and then discontinued and cancelled in the system at 13:19.
For patient B.C., the EMR showed Respondent as having created, confirmed, and revised an order for 90 tablets of amphetamine-dextroamphetamine 20 mg (Adderall) on June 4, 2020 between 13:09 and 13:11. The order had a future start of June 7, 2020, and was created at 13:09 and then discontinued and cancelled in the system at 13:11.
Ms. Miller testified that the records revealed that immediately after these two prescriptions were created and discontinued in the EMR system, both forged prescriptions were faxed to the pharmacy on June 4, 2020, at 13:22 and 13:23 respectively.
Respondent was working at Wellsprings on June 4, 2020, and had access to the EMR system. Dr. Ravula confirmed the two prescriptions were forged and that he did not prescribe the medications for those patients.
Ms. Miller asked Respondent about the prescriptions and Respondent denied any knowledge about them, and claimed that someone must have used her password and was “setting her up.”
Ms. Miller investigated further and on June 8, 2020, she, Dr. Ravula, and the assistant director of nursing for Wellsprings listened to a voice recording from the pharmacy that was of Respondent’s voice. Respondent identified herself on the recording, referenced the two prescriptions that were faxed to the pharmacy, and requested that B.C.’s prescription be completed “stat,” meaning immediately.
On June 9, 2020, Respondent was terminated from her employment with Wellsprings.
During the course of the investigation, Ms. Miller identified 49 patients with 90 fraudulent prescriptions for controlled substances with all of the same characteristics as patients A.L. and B.C., for the time period January 1, 2020 through June 4, 2020.
Diane Caruso, Associate Director of Complaints and Investigations, testified that she investigated this case for the Board. Ms. Caruso was formerly an Advanced Practice Consultant for the Board. Ms. Caruso testified that a 30 mg dosage of the controlled substance, oxycodone, is a “substantial dose” especially given the age of these patients.
Ms. Caruso testified that Respondent’s Controlled Substances Prescription Monitoring Report indicates that she did not have any controlled substances prescribed to her prior to June 11, 2020, yet beginning June 11, 2020, Respondent was prescribed Suboxone, a drug treatment for opioid addiction, and that as of the hearing date, Respondent was continuing treatment for opioid addiction.
On or about January 27, 2022, the Board summarily suspended Respondent’s registered nurse license and requested that proceedings be promptly instituted and determined.
On or about March 22, 2022, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, that alleged violations of A.R.S. § 32-1601(27)(d) and (j) and A.A.C. R4-19-403(1), (8)(b), (16), (18) and (31).
The Notice of Hearing was sent via certified mail to Respondent at her then attorney’s address of record.
Respondent did not appear at the duly noticed hearing and did not request to appear telephonically or via video, or that the hearing be continued prior to the hearing convening. Although the start of the hearing was delayed ten (10) minutes to allow Respondent additional time for appearance, she did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings 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 her registered nurse license.
CONCLUSIONS OF LAW
The Notice of Hearing that the Board mailed to Respondent at her then attorney’s 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 A.R.S. § 32-1606(B)(10).
The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s 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 and conduct that is or might be harmful to the health of a patient or the public, as alleged in the Complaint and Notice of Hearing. As such, 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(O).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Kelly DeBernardo’s Registered Nurse License number RN208867.
It is further recommended that the Board revoke Respondent Kelly DeBernardo’s Registered Nurse License number RN208867.
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 (5) days from the date of that certification.
-54864001
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-137160-45720000Done this day, June 22, 2022.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing
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-137160-45720000By Miranda Alvarez
Legal Secretary