ALJDEC decisions subject to certification as final
22A-2022020529-NUR · State Board of Nursing · 2022-07-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF REGISTERED NURSE LICENSE NO.RN168569 AND ADVANCED PRACTICE CERTIFICATE NO. AP4169
ISSUED TO:
MARK DAMIAN DECLOUET
AKA: MARK DAMIAN DECLOUET JR.
RESPONDENT.
No. 22A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 17, 2022, with the record held open until July 8, 2022.
APPEARANCES: Respondent Mark Damian Declouet did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Sunita Krishna.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
The 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 determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667.
Respondent holds Board-issued registered nurse license number RN168569 and advanced practice certificate number AP4169.
On or around November 2021, according to a Rapides Parish Sheriff’s Office (LA) police report, the Rapides Area Drug Enforcement Division (“RADE”) received complaints about Respondent, who would rent hotel rooms for his female patients and would have sex with them and in return, he would provide them with prescription drugs. Respondent was arrested and police submitted proposed charges for Criminal Conspiracy, Possession of Controlled Substance II, Produce, manufacture, distribute, dispense, attempt or conspire to, human trafficking, possession of drug.
On February 7, 2022, the Board opened an investigation when it became aware of the above through the National Council of State Boards of Nursing.
On March 1, 2022, Board staff sent Respondent an Investigative Questionnaire with instructions to complete it and include a written explanation in response to the complaint, and to complete a disclose each of his arrests, citations and charges and provide specific records regarding each incident, to Respondent’s address of record with a due date of March 15, 2022. Respondent failed to return the Completed Questionnaire or written statement as required in violation of the Board’s statutes and rules.
On March 21, 2022, the Louisiana Board of Nursing Summarily Suspended Respondent’s RN license and AP certification pending an administrative hearing. Respondent’s license was suspended for his February 2, 2022, arrest for Human Trafficking, Criminal Conspiracy, Possession of Controlled Substances, Possession of Drug Paraphernalia and Conspiracy to Distribute Controlled Substances. Respondent self-reported to the Louisiana Recovering Nurses Program that he was arrested and that he lived with an active patient of his clinic. Respondent also self-reported that while he was previously diagnosed with a mental health issue, he was allegedly not prescribed any medication and was not under a physician’s care.
Also on March 21, 2022, in an interview with Anna Anderson, Senior Investigator for the Board, Respondent admitted he recently was diagnosed with a substance use disorder, severe, when he attended a 30 day inpatient program in Louisiana. Respondent stated he was running his own practice with 11 clinicians and stress caused him to intermittently use methamphetamines. Respondent stated in the beginning he would use roughly once a week and sometime in the fall of 2021, he started using more frequently. Respondent stated by December 2021 his drug usage “peaked” and he was using 4 times a week by inhaling/smoking it and was using roughly a quarter of a gram a day. Respondent stated he was leaving to attend a 6-8 week treatment facility in Missouri. Respondent stated he agreed with his diagnosis and admitted to having a substance use disorder. Respondent stated he was charged with a handful of things and is working on them. Respondent stated about 4 months ago he was trying to help his partner get off fentanyl and began prescribing her buprenorphine to help her and he stated that this was “definitely a boundary crossing.” A confirming e-mail was also sent to Respondent.
Ms. Anderson also sent an e-mail to Respondent after a conversation which included a voluntary surrender document. Nothing was returned to the Board.
On May 9, 2022, the Board sent correspondence to Respondent informing him of a Board meeting on June 2, 2022, where his case was to be considered.
On June 2, 2022 the Board issued a summary suspension to Respondent.
On June 7, 2022, the Board issued a Complaint and Notice of Hearing setting a hearing on June 17, 2022 at the Office of Administrative Hearings, an independent State Agency.
At the hearing on June 17, 2022, Respondent did not file a response or exhibits with OAH, nor did he request that the hearing be continued prior to the hearing convening. Although the start of the hearing was delayed 15 minutes to allow Respondent additional time, he did not appear, personally or through an attorney, and did not contact the OAH 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 his Registered Nurse License.
The Board presented the testimony of Anna Anderson and offered ten exhibits into evidence.
Ms. Anderson testified as to the above events and added that she prepared and presented an Investigative Report to the Board.
Ms. Anderson testified that it was her opinion that based upon Respondent’s failure to cooperate with the Board, and the fact of his current suspension in Louisiana, that Respondent’s license should be revoked.
CONCLUSIONS OF LAW
The Notice of Hearing that the Board mailed to Respondent at her address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).
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. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary 1120 (8th ed. 2004).
The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct 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(N).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Mark Damian Declouet’s registered nurse license number RN168569 and advanced practice certificate number AP4169.
It is further recommended that the Board revoke Respondent Mark Damian Declouet’s registered nurse license number RN168569 and advanced practice certificate number AP4169.
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.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, July 20, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000By Miranda Alvarez
Legal Secretary