ALJDEC decisions subject to certification as final

22A-2021020160-NUR · State Board of Nursing · 2021-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE PRIVILEGE TO

PRACTICE NURSING UNDER THE NURSE LICENSURE COMPACT IN THE STATE OF ARIZONA ISSUED TO:

LETICIA MURK,

AKA: LETICIA APPLETON

RESPONDENT

(GA) NURSE LICENSE NO. LPN097505

No. 22A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 13, 2021 at 9:00 AM.

APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared on behalf of the Arizona Board of Nursing (“Board”) with Corporal Dustin Everheart, Sarah Johnson, RN, and Amy Heistand, RN-Investigator as witnesses. No appearance(s) by or on behalf of Leticia Murk (“Respondent”). Cindy Bachman (CR No. 50763) served as the official court reporter for the proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

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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 issued Practical Nurse License No. LPN097505 on May 30, 2019, in the State of Georgia. Respondent was granted privilege to practice in Arizona under the Nurse Licensure Compact. The license is scheduled to expire on March 31, 2023.

On September 23, 2021, the Board issued Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted].

On September 29, 2021, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 9:00 a.m. on October 13, 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, Leticia Murk’s privilege to practice nursing in the State of Arizona under the Nurse Licensure Compact based upon her Georgia practical nurse license.

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 Ariz. Rev. Stat. §§ 32-1601(26)(d), as more specifically defined by Ariz. Admin. Code R4-19-403(9), R4-19-403(16), R4-19-403(17), R4-19-403(18), R4-19-403(25)(a), R4-19-403(28), and R4-19-403(31); 32-1601(26)(e), 32-1601(26)(g), 32-1601(26)(h), 32-1601(26)(j), and failed to provide written notice of her criminal charges in violation of 32-3208(A). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

On September 27, 2021, 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.

Hearing Evidence

The Board presented the testimonies of Dustin Everheart, Sarah Johnson, Amy Heistand, and submitted Exhibits 1-11 into the record. The Complaint and October 07, 2021, Order were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

On February 10, 2021, the Board received anonymous complaint regarding incidents that took place during Respondent’s employment at Haven Health in Flagstaff, AZ. Specifically, it was alleged that during her tenure Respondent took multiple bathroom breaks in excess of 10 minutes each, and made several trips to her vehicle. It was also alleged that Respondent was often gone beyond her allotted time for lunch, and would return smelling of marijuana. It was also alleged that Respondent would report for work smelling of alcohol. It was also alleged that Respondent administered narcotics to patients that typically did not request them, or issued them more often than usual. It was further alleged that Respondent documented narcotic administration during a drug count to “make the numbers match” with the count. The tipster advised Respondent had been terminated from employment for failing a for-cause drug screen, as Respondent had tested positive for multiple prescription drugs that she did not possess a valid prescription for.

On April 19, 2021, a second complaint from Haven Health submitted by its Director of Nursing, Sarah Johnson (“Director Johnson”). Specifically, it was alleged that on February 01, 2021, Respondent had “acted off” during her narcotic count and claimed to have “forgotten” to sign for 2 narcotic administrations to a patient. After a full audit it was determined that between January 30, 3031 and February 03, 2021, Respondent documented 21 late narcotic administrations; ranging between 45 minutes and 12 hours late. 14 of the late narcotic administrations occurred on February 01, 2021. Director Johnson also noted that Respondent was brought in for questioning on February 03, 2021, whereby she behaved in an “erratic” and “tangential” manner. After testing positive for “opiates, oxy, THC, and barbiturates” Respondent was unable to provide proof of prescriptions for any of the resulting drugs present in her screen. Respondent tried unsuccessfully to phone her pharmacy six times before she was able to dial out. It was further alleged that Respondent refused to leave before she was permitted to count her narcotics. As a result, staff performed a count and discovered that 4 narcotic cards did not match their respective sign-out sheet. Afterward, staff had to arrange for Respondent to be driven home because she was unable to drive or coordinate her own transportation. On February 05, 2021, Respondent was terminated from employment.

On February 19, 2021, the Board issued an Investigative Questionnaire to Respondent’s address of record in Georgia regarding the first complaint about her employment with Haven Health, which was due returned by March 22, 2021.

Respondent failed to timely comply with a response.

On April 27, 2021, the Board issued a second Investigative Questionnaire to Respondent’s address of record in Georgia regarding the second complaint about her employment with Haven Health, which was due returned by May 11, 2021.

Respondent failed to timely comply with a response.

During its investigation the Board obtained an Incident Report from the Flagstaff Police Department that revealed on June 17, 2021, at about 12:20 a.m. Respondent was observed driving her vehicle through a parking lot without its headlights on, which turned onto a street with an non-working taillight shortly thereafter. After Respondent was stopped and asked to exit her vehicle, the responding officer observed a “balled up piece of tinfoil” in the driver’s side door panel and a rolled up dollar bill and lighter on the driver’s seat. A pill was also discovered on the floorboard behind the driver’s seat. When asked, Respondent denied the paraphernalia and pill were hers. Respondent was placed under arrest and transported to a nearby jail. When Respondent exited the squad car a blue pill marked “M30” fell out of her lap. Again, Respondent denied the pill was hers. The pills were later determined to be Gabapentin and Fentanyl. Respondent was charged with Ariz. Rev. Stat. §§ 13-3408(A)(1); Possession/Use of Narcotic Drugs – a Felony, 13-3415(A); Drug Paraphernalia Possession/Use – a Felony, 13-3406(A)(1); Prescription Drug Possession/Use – a Misdemeanor, and 13-2505(A)(1); Knowingly Taking Contraband into a Correctional Facility – a Felony.

During its investigation the Board obtained a Traffic Ticket and Complaint issued to Respondent on August 22, 2021, whereby Respondent was alleged to have been involved in a car accident. Respondent was subsequently arrested for Driving Under the Influence and Driving While Intoxicated in violation of Ariz. Rev. Stat. §§ 28-1381(A)(1) and 28-1381(A)(3). Respondent was arraigned in Holbrook Justice Court.

During the Board’s September 2021 meeting, it was presented with an investigation summary for both complaints received against Respondent. The Board moved to suspend Respondent’s privilege to practice in Arizona with her Georgia license, pending the outcome of a promptly instituted administrative hearing.

Additional Evidence

On May 03, 2021, Respondent contacted the Board investigator assigned to her case(s) and verified her receipt of Complaints 1 & 2, but did not provide her local Arizona mailing address.

On May 04, 2021, Respondent requested to submit for a 10-panel hair and fingernail drug screen, but never followed-through.

On June 07, 2021, Respondent contacted the Board and asked for permission to submit one response to both complaints, but she never tendered a submission.

The Board declined to provide a closing argument.

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.

(e) 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.

(g) 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.

(h) Committing an act that deceives, defrauds or harms 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:

(9) Failing to take appropriate action to safeguard a patient’s welfare or follow policies and procedures of the nurse’s employer designed to safeguard the patient;

* * *

(16) Removing, without authorization, a narcotic, drug, controlled substance, supply, equipment, or medical record from any health care facility, school, institution, or other work place location;

(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;

(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;

* * *

(25) Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664;

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(28) If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense;

* * *

(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. § 32-3208(A) provides that “A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed.”

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.”

The mission of the Board is to protect and promote the welfare of the public by ensuring that each person holding a nursing license or certificate is competent to practice safely. This mission is fulfilled through the regulation of the practice of nursing and the approval of nursing education programs, and supersedes the interest(s) of any individual or group.

The Nurse Licensure Compact is a mutual recognition model of nurse licensure that allows a nurse to have one license to practice with patients across state lines, subject to each participating state’s practice laws and regulations. The State of Arizona is a participating state.

A multistate license to practice nursing is a privilege, not a right. The legislature has charged the Board with protecting the public and those who deal with licensed practitioners when it issues certificates and licenses. The Board has discretion to grant or deny a license to an applicant under Ariz. Rev. Stat. §§ 32-1663(A) and 32-1601(26).

The issue in the case at bar, in light of Respondent’s conduct, is whether grounds exist for the Board to take disciplinary action against her license.

Here, the Board has sustained its burden of proof.

After closely scrutinizing the record and giving all relevant facts careful consideration, the undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of unprofessional conduct against Respondent to be credible. The Tribunal also finds that Respondent failed to provide timely written notice of her multiple criminal charges to the Board. Respondent’s failure to appear and provide evidence in rebuttable 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 she is unable to be regulated at this time.

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

The record reflects that Respondent engaged in a flagrant pattern of prescription medication diversion from patients and her employer, often resulting in on-shift impairment and ultimate termination from employment. The record also reflects that Respondent was derelict in her duties to provide care, and reported to work under the influence on multiple occasions.

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(9), R4-19-403(16), R4-19-403(17), R4-19-403(18), R4-19-403(25)(a), R4-19-403(28), and R4-19-403(31); 32-1601(26)(e), 32-1601(26)(g), 32-1601(26)(h), 32-1601(26)(j), and failed to provide written notice of her criminal charges in violation of 32-3208(A).

While Respondent may have undiagnosed substance abuse issues that affect her practice of nursing, those issues do not excuse her behavior or absolve her 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 and Nurse Licensure Compact, the Board established cause to impose disciplinary sanctions against Respondent’s license under Ariz. Rev. Stat. §§ 32-1663(D-F) and 32-1664(O).

Considering the facts and circumstances of this matter, it is recommended that Respondent’s privilege to practice nursing in the State of Arizona under practical license number LPN097505 be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke all privileges afforded to Leticia Murk’s (surname also known as Appleton) practical nursing license, LPN097505.

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 Final Order will be five days from the date of that certification.

Done this day, November 09, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

Arizona State Board of Nursing