ALJDEC - Licensing

23A-2021100244-NUR · State Board of Nursing · 2024-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN230476 AND PRACTICAL NURSE LICENSE NO. LP054298 ISSUED TO:

CANDY RAMIREZ,

RESPONDENT.

No. 23A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 20, 2024

APPEARANCES: Assistant Attorney General Deborah Abbey appeared on behalf of the Arizona State Board of Nursing. Candy Ramirez appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Arizona State Board of Nursing’s Exhibits 1 through 11 were admitted.

_____________________________________________________________________

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 Statute (“Ariz. Rev. Stat.”) §§ 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, Ariz. Rev. Stat. §§ 32-1601 to -1667 and Arizona Administrative Code (“Ariz. Admin. Code”) Rules 4-19-101 to -904.

Candy Ramirez (“Respondent”) holds Board issued registered nurse license number RN230476 and practical nurse license number LP054298 in the State of Arizona.

On or about October 14, 2021, the Board received a self-report from Respondent reporting that on October 13, 2021, she had been pulled over by Goodyear Police for failure to stop at a stop sign and, after submitting to a breath test, she was arrested for driving under the influence (“DUI”) in Goodyear, Arizona. Based on this information, the Board conducted an investigation.

On or about October 13, 2021, according to Goodyear Police Department report number 2021-00042323, at approximately 2:22 a.m., Respondent was stopped in her vehicle after she drove through a stop sign without stopping and she was driving at an excessive rate of speed. The officer observed a strong odor of alcohol coming from Respondent’s breath, her speech was slurred, and her eyes were bloodshot and watery. Respondent admitted she had consumed alcohol before driving, stating, “1 drink about 2 hours ago.” Respondent displayed signs of impairment on field sobriety tests. Police arrested Respondent for DUI, and she was taken to the station where she submitted to a breath test at 4:07 a.m., which revealed a BAC of 0.175% and at 4:26 a.m., a BAC of 0.172%.

On October 14, 2021, in case number TR202101379, a Complaint was filed charging Respondent with DUI, DUI with BAC .08 or more, and DUI Extreme with BAC 0.15 - 0.19 in Goodyear Municipal Court, Arizona.

On March 8, 2022, Respondent was convicted, pursuant to a guilty plea, of DUI, a misdemeanor.

On or about August 1, 2022, Respondent submitted to a psychological evaluation with Dr. David McGady, a Board approved licensed psychologist, who diagnosed Respondent with a mental health disorder as well as an Alcohol Use Disorder, Mild. Dr. McGady made treatment recommendations.

On or about September 23, 2022, the Board considered the matter and voted to offer Respondent a Consent Agreement for Probation with terms and conditions. The vote contained a provision that if the Consent Agreement was not signed within 30 days, a Notice of Charges would be issued. On September 28, 2022, Board Staff mailed the Consent Agreement to Respondent. Respondent did not return it.

On January 12, 2024, the Board filed its Complaint and Notice of Hearing to Respondent and referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. A hearing was held on February 20, 2024.

The Board submitted 11 exhibits and presented the testimony of Senior Investigator Bonnie Richter.

Ms. Richter testified that the Board routinely investigated nurses and DUIs because it may suggest that the nurse may have other issues, such as substance abuse issues, of which the Board may not be aware. She further testified that drinking and driving is unprofessional behavior and nurses should be professional 24 hours a day.

Ms. Richter testified to the DUI investigative reports and opined that it was concerning that Respondent tried to minimize her drink numbers when speaking with the police officers. She also stated that the fact that Respondent could have a high alcohol tolerance could also be an indication of a substance abuse issue.

Ms. Richter proceeded to testify to Respondent’s work history. Between 2020 and 2022, Respondent was terminated from several facilities at which she was practicing.

On July 25, 2020, Respondent was terminated from Maricopa County 4th Ave. Jail for failure to give notice when quitting.

On December 7, 2020, Respondent was terminated from Community Medical Services for excessive absences or tardiness and job performance.

She was terminated from Banner Health due to absences and not completing her continuing educational requirements.

Ms. Richter testified that it was concerning that Respondent seemed to be employed at one place for only six months at a time. She further testified that the absences at work were a red flag for substance abuse.

Ms. Richter further testified that she was unsure whether Respondent was “unsafe,” but noted Respondent had issues that could make her unsafe if she continued to have an alcohol use disorder and not get the treatment that she needed.

Lastly, Ms. Richter testified that Respondent’s refusal to accept the probationary period was concerning because this meant that she was not regulatable by the Board.

Dr. McGady’s testimony was admitted by way of his report contained in Exhibit 3.

Per Dr. McGady’s report, Dr. McGady stated that “it should be noted that [Respondent] reported that she was currently taking medications commonly used to treat symptoms of ADHD during the current evaluation.” He further noted that “[Respondent’s] results on these instruments raise concerns regarding the likelihood that they may underreport her true difficulties with alcohol use.” Dr. McGady opined that “given the totality of available information, there does appear to be sufficient evidence to support a diagnosis of Alcohol Use Disorder, Mild.” In referencing “the totality of available information,” Dr. McGady was referring to the following:

[Respondent] endorsed having experienced withdrawal (hangovers) symptoms from cessation of alcohol use. She additionally plead guilt[y] to driving an automobile while under the influence of intoxicating liquor, suggesting that she has used alcohol when physically hazardous to do so. [Respondent] endorsed current use of alcohol in spite of having been convicted of driving under the influence of alcohol, suggesting that she is continuing to use in spite of experiencing social/legal problems related to her alcohol use.

However, Dr. McGady’s ultimate opinion included that Respondent’s alcohol use appeared to be limited to her time outside of the work environment. He further opined that “while the severity of her alcohol use is unclear, due in large part to the defensiveness with which she approached assessment times, there does not appear to be any evidence to suggest that her use of alcohol impaired her ability to perform her duties as a nurse while employed” and further stated “alcohol use did not appear to be a documented factor” in her Banner Health performance issues. Dr. McGady continued by stating:

It does not presently appear that [Respondent’s] mental health symptoms or her alcohol use presently impair her ability to perform her duties as a nurse. Therefore, it is the opinion of this psychologist that [Respondent] is likely capable of practicing, under supervision, with concurrent substance use treatment at the Board’s discretion.

At hearing, Respondent testified that she wanted to work with the Board, but felt that 36 months of probation was excessive for a first time DUI. She further testified that she has a daughter and she followed her daughter’s schedule as she was growing up. That was the reason for her tardiness and absences at her various employments. Respondent testified that the Board was making assumptions as to why she was “calling out” and was trying to draw a connection to alcohol abuse which was untrue. Respondent testified that, when it came to her employment at Banner, she had an issue with the ratios that Banner was keeping and that was the reason she left that employment. She further stated that her current position, a traveling nurse, allowed her to not only follow the money, but also allowed her to have flexibility to care for her daughter.

Respondent stated that she had never gone to work under the influence, had never called off of work due to being hungover as was suggested, that she was a good nurse, ready to commit and do her work each time. She further reiterated that she loved her job and did not have any prior record.

Respondent testified that she completed everything she needed to do in order to get her driver’s license back as a result of the DUI and had completed everything she needed to complete as part of her plea agreement on the DUI.

Respondent testified that because she received the DUI, she believed the Board was now using her prior employment history to insinuate she had an alcohol disorder and that it was “not right.”

Respondent testified that she did continue to engage in alcohol consumption, mostly at family events, as it is part of her culture. However, she no longer drinks and drives as a result of the DUI. Respondent stated that to deny alcohol use would be a lie and she was not a liar.

Lastly, she testified that she did not have an Alcohol Use Disorder.

. . . . .

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-1606(B)(10). Pursuant to Ariz. Rev. Stat. § 32-1664(D), the Board retains jurisdiction of this matter despite Respondent’s practical nurse license expiring in 2022

The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, Ariz. Rev. Stat. §§ 32-1601 to -1667 and Ariz. Admin. Code Rules 4-19-101 to -904. Specifically, the Board asks that the Tribunal find that Respondent engaged in unprofessional conduct pursuant to Ariz. Rev. Stat. § 32-1601(27)(d) and (j). Even more specifically, for purposes of Ariz. Rev. Stat. § 32-1601(27)(d), the Board asks that the Tribunal find that Respondent engaged in unprofessional conduct pursuant to Ariz. Admin. Code R4-19-403(17).

The Board bears the burden of proof and must establish cause to penalize Respondent’s practical 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.”

In this case, Dr. McGady essentially formed his diagnosis of Alcohol Use Disorder, Mild based on three things: (1) Hangovers; (2) DUI; and (3) Respondent’s choice to continue drinking despite having received a DUI.

To base an Alcohol Use Disorder on whether an individual suffers from an occasional hangover would be to diagnose most of the population with this disorder.

Furthermore, receiving a DUI does not suggest that an individual has an Alcohol Use Disorder. It suggests that an individual made a mistake. In this case, Respondent immediately self-reported it to the Board, the very next day. It should also be noted that this DUI occurred over two years ago, with no incidents preceding it and no incidents occurring after it. Furthermore, Respondent admitted her guilt to the DUI by taking a plea rather than fighting the matter through a trial, further supporting the contention that she acknowledged her wrongdoing. Respondent fulfilled all of the requirements for the court, including Alcohol classes and maintaining an Interlock Device on her vehicle, which further supports her accountability and her ability to be regulated. Further, Respondent completed all the requirements needed to reinstate her driver’s license. All of these actions support the fact that Respondent is able to be regulated.

Lastly, the fact that Respondent still continues to enjoy alcohol responsibly despite having a DUI should not suggest she has an Alcohol Use Disorder. The fact that she no longer drinks and drives demonstrates a learning from her DUI. It would have been very easy for Respondent to deny the further use of alcohol to appease Dr. McGady, but instead Respondent stated her truth.

The Board attempted to make a connection between Respondent’s employment record, specifically the absences and tardiness reports, and Respondent’s alcohol use, suggesting it may be a red flag for substance abuse issues. This premise is simply unsupported in this case. It is nothing more than a mere assumption that is not even supported by Dr. McGady. In fact, Dr. McGady stated just the opposite in his report. To reiterate, Dr. McGady stated that Respondent’s alcohol use appeared to be limited to her time outside of the work environment and that there did not appear to be any evidence to suggest that her use of alcohol impaired her ability to perform her duties as a nurse while employed.

The Board was willing to place Respondent on probation and allow her to retain her license. The Board now contends that, because Respondent refused to agree to the terms presented, she is unregulatable and now seeks revocation. The Administrative Law Judge disagrees. Respondent exercised her rights. This does not make the Respondent unregulatable. The Board is now attempting to penalize Respondent for exercising her rights to an administrative hearing by seeking revocation.

Pursuant to Ariz. Rev. Stat. § 32-1601(27)(d), the Board has met its burden of proving that Respondent engaged in “unprofessional conduct” by drinking and driving, resulting in a DUI. The Administrative Law Judge finds that driving under the influence of alcohol is a conduct that is or might be harmful to the public.

However, taking the totality of the evidence, the Administrative Law Judge does not find a pattern of using or being under the influence of alcohol to the extent that judgment may be impaired and nursing practice detrimentally affected or while on duty. In fact, the Board can only prove one incident. All other insinuations are pure speculation.

Therefore, the Board did not establish by a preponderance of the evidence that Respondent violated Ariz. Admin. Code R4-19-403(17).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Board’s final order in this matter, the Board place Respondent on 12 months of probation with the same terms considered in the consent agreement originally offered to Respondent.

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, April 18, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

Deborah Abbey

Assistant Attorney General

Arizona Attorney General’s Office – CIV/LES

2005 N. Central Ave.,

Phoenix, AZ 85004-1592

[email redacted]

Candy Ramirez

323 East Kinderman Drive

Avondale, AZ 85323

[email redacted]

By: OAH Staff