ALJDEC - Licensing

23A-2021100288-NUR · State Board of Nursing · 2024-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN207510 AND PRACTICAL NURSE LICENSE NO. LP047582

ISSUED TO:

JOSE RANGEL BAUTISTA,

RESPONDENT.

No. 23A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 21, 2024, with the record held open until June 14, 2024 for purposes of receiving the transcript.

APPEARANCES: Assistant Attorney General Deborah Abbey appeared on behalf of the Arizona State Board of Nursing. Respondent Jose Rangel Bautista appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Exhibits 1-5 and 7-16 from the Arizona State Board of Nursing were admitted into evidence. Respondent’s Exhibit A was admitted into evidence.

_____________________________________________________________________

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 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 RN207510 and practical nurse license number LP047582.

On or about October 15, 2021, Respondent self-reported that he was charged with a DUI on October 9, 2021. On January 5, 2022, in case number M-0762-TR-[number redacted], Respondent was convicted, pursuant to a guilty plea, of DUI-Liquor with a BAC .08 or more, a misdemeanor, in Goodyear Municipal Court, Goodyear, Arizona. Pursuant to the guilty plea, the charges of DUI-Liquor/Vapors/Drugs 1st, DUI-Extreme with a BAC 0.15 or Higher, and Speed Greater Than Reasonable and Prudent were dismissed with prejudice.

Because of the self-report, the Board initiated an investigation.

On or about September 19, 2022, Respondent underwent a Board-ordered comprehensive psychological evaluation through McGady & Associates Psychological Services, P.L.C. The evaluator diagnosed Respondent with Alcohol Use Disorder, Mild to Moderate, and made the following recommendations:

1. It is recommended that Mr. Bautista participate in individual counseling with a master’s or doctoral level clinician who has experience in treating medical professionals with a mild to moderate substance use disorder. Treatment should focus on the following:

a. Developing an understanding of the underlying issues related to Mr. Bautista’s alcohol use as well as developing an understanding of the cognitive distortions used to sustain his substance use. It is also recommended that the role Mr. Bautista is likely to require increased mastery of peer refusal skills, distress tolerance, and effectively and appropriately managing cravings for alcohol. Mr. Bautista is additionally like to require development of positive peer and social supports that are also geared to Mr. Bautista’s long-term sobriety.

2. Mr. Bautista reported currently taking psychiatric medication; however, he reported that he is currently not experiencing symptoms and is working with his psychiatric provider to titrate off of his Xanax. It is recommended that he continue to work with the psychiatric provider to determine the best course of action regarding his current psychiatric medication regimen.

3. It is recommended that Mr. Bautista participate in AA/NA or similar peer support group/program. Mr. Bautista did not report having previously participated in AA/NA. It is recommended that Mr. Bautista complete program assignments related to AA/NA with a sponsor who has at least five years of sobriety and has been a sponsor to at least one other adult. Mr. Bautista could, at the Board discretion, participate in a SMART recovery program as an alternative. If the Board allowed Mr. Bautista to participate in a SMART recovery program it is recommended that Mr. Bautista complete all program task and assignments.

4. It is recommended that Mr. Bautista continue to participate in random alcohol screening through the AZBN.

5. Mr. Bautista’s alcohol use appeared to be limited to his time outside of the work environment. There does not appear to be any evidence to suggest that his use of alcohol impaired his ability to perform his duties as a nurse while employed. It does not presently appear that Mr. Bautista’s alcohol use presently impairs his ability to perform his duties as a nurse. Therefore, it is the opinion of this psychologist that Mr. Bautista is likely capable of practicing with concurrent substance use treatment at the Board’s discretion.

Based upon the above, as well as the full investigative report, the Board recommended a Consent Agreement, and sent the same to Respondent. The specific terms included a 36 month probation; that Respondent: work no more than 84 hours in a two-week pay period; attend substance abuse therapy; continue work with a psychiatric provider; enroll in a Nurse Recovery Group; participate in AA/NA meetings at least three times weekly; abstain from alcohol and non-prescription drug use; participate in random drug urine testing and random PEth testing; practice under on-site supervision; submission of performance evaluation reports from employers; and other clerical requirements.

Respondent refused to sign the Consent Agreement and on or about January 17, 2024, the Board issued a Complaint and Notice of Hearing, setting a hearing on February 29, 2024, before the Office of Administrative Hearings, an independent State agency. The Complaint alleged that Respondent violated the Nurse Practice Act, A.R.S. §§ 32-1601(27)(d), (g), and (j), as well as Arizona Administrative Code (“A.A.C.”) Rule 4-19-403(17). After several continuances, the hearing was held on May 21, 2024.

At hearing, the Board presented the testimony of Sara Steffen and Amy Sammito. Respondent testified on his own behalf.

Sara Steffen’s testimony

Ms. Steffen was a Program Administrator II with the Board.

Ms. Steffen testified that the Board utilized the Substance Use Disorder in Nursing resource manual, from the National Council of State Boards of Nursing to craft the terms on the Consent Agreement. She testified that this manual was just a guideline and that the Board may alter the terms to specific cases. For example, the Board had now approved Respondent to work a total of 96 hours in the two-week pay period rather than the original 84 hours previously offered.

Ms. Steffen testified further that having an hour limit was important to help reduce stressors, as there would be an additional time commitment with the addition of the Nurse Recovery Group, AA meetings, counseling, drug testing and the like.

In addition, Ms. Steffen added that after one year of successful completion of the terms, Respondent could be able to request of the Board that more work hours be granted.

Amy Sammito’s testimony.

Ms. Sammito was the Board’s Senior Investigator and compiled a report based upon her findings. Ms. Sammito testified that this was not Respondents first action before the Board, as he had been previously issued a Letter of Concern in March 2016, due to a DUI conviction in January 2016.

Ms. Sammito reviewed Respondent’s employment records and noticed that he had good reviews and worked an average of 98 hours per pay period. Ms. Sammito testified that there was no evidence of Respondent being unsafe to the public.

Also, Ms. Sammito testified that Respondent complied with all requests from the Board, including evaluations. Ms. Sammito testified that Respondent underwent a second evaluation on February 19, 2024 through Growing Edges, but that the recommendations were the same.

Respondent’s testimony.

Respondent testified that there was no excuse for what he did, but was concerned that the guidelines used to craft the Consent Agreement were from 2011 and therefore, outdated.

In addition, Respondent testified that as a result of the second evaluation, his diagnosis had been downgraded to Moderate Substance Use Disorder for Alcohol Sustained Remission. Respondent testified that this was due to his reduced intake of alcohol, and seeking treatment from a Nurse Practioner for anxiety, for which he is currently taking medication. Also, Respondent testified that he had offered to take a second PEth test during his second evaluation, but a Board representative informed him it was not necessary.

Respondent testified further that the hour requirement could cause increased stress, as he helps pay for his nephew’s education. Respondent also testified that he was a member of several committees at the hospital.

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).

At the outset, the Administrative Law Judge commends Respondent for timely reporting the DUI arrest, as well as all of the progress he had made since the same, and his cooperation throughout the process.

There was no dispute from Respondent that his actions were in violation of the Nurse Practice Act, A.R.S. §§ 32-1601(27)(d), (g), and (j), as well as Arizona Administrative Code (“A.A.C.”) Rule 4-19-403(17).

As to the appropriate discipline, the Tribunal generally agrees with the Board’s previous recommendation, including increasing the maximum hours to 96 per two-week pay period. However, the tribunal is concerned that if those hours are inclusive of Respondent’s committee requirements that may be a barrier, as Respondent represented to be very proud of his participation in the same.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board place Respondent Jose Rangel Bautista’s Registered Nurse License number RN 207510 and Practical Nurse License number LP047582 on probation for a period of thirty-six months. In addition, the Administrative Law Judge recommends that the Board adopt the Terms of Probation as outlined in the Consent Order provided in Exhibit 15, but for the following:

Respondent work no more than 96 hours in a two-week pay period, exclusive of this various committee obligations.

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, June 27, 2024.

/s/ Adam D. Stone

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

[email redacted]

Jose Rangel Bautista

[email redacted]

By: OAH Staff