ALJDEC decisions subject to certification as final

24A-201903201-NUR · State Board of Nursing · 2024-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE PRACTICAL NURSE LICENSE NO. LP038091

ISSUED TO:

MARSHA ANN WILLIAMS

aka MARSHA ANN TURNAGE,

RESPONDENT.

No. 24A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 04, 2023 at 9:00 AM.

APPEARANCES: Assistant Attorney General Charles Hover, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Janet Olson as a witness. Bretton Barber, Esq. appeared on behalf of Marsha Ann Williams (“Respondent”) with Respondent as a witness. Teresa Watson (CCR 50876) served as the court reporter for the proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark

EXHIBITS ADMITTED INTO EVIDENCE: Board Exhibits 1-14 and a November 17, 2023 Minute Entry.

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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

Respondent was first issued December 04, 2002, and is scheduled to expire April 01, 2027.

From May 29, 2018, through February 27, 2019, Respondent was employed by Amedisys (“Amedisys”) Home Health Care as a licensed practical nurse (“LPN”). On March 12, 2019, the Board received a complaint from Amedisys against Respondent that alleged that on or about February 12, 2019, Respondent falsified a patient’s medical records. Specifically, the complaint alleged that Respondent had falsified patient F.M.'s vitals and note(s) in F.M.’s chart, as she had not change F.M.'s urine bag. Subsequently, F.M. was transported to a local hospital for treatment. Respondent’s employment was terminated as a result.

From December 08, 2020, through November 06, 2021, Respondent was employed by Estrella Home Health (“Estrella”) as a LPN. On November 21, 2023, the Board received a complaint from a physician at a local hospital that alleged Respondent had practiced beyond the scope of her license. Specifically, the complaint alleged that Respondent had adjusted patient M.G.’s prescription medication for the past 6 years without instructions to do so. The complaint further alleged that Respondent had not informed patient M.G.’s prior primary care provider of her direct management of his illness. After M.G. changed providers on September 30, 2021, the complaining physician noticed inconsistencies with M.G.’s care and admitted him for renal failure; where he was ultimately placed on dialysis and diagnosed as legally blind due to the alleged mismanagement of his underlying illness.

After reviewing pertinent patient medical records, Amedisys investigation records, Investigative Questionnaire responses submitted by Respondent, and interviewing Respondent on September 26, 2022, the Board voted to offer Respondent a Consent Agreement for Stayed Revocation Suspension, not to exceed 12 months, pending the completion of an LPN Skills Evaluation (“Consent Agreement”), and the successful completion of any remediation or recommendations resulting from the evaluation, and confirmation from either the evaluator or remediation providers that Respondent is safe to return to practice, followed by a Stayed Revocation Probation for a minimum of 24 months and to include the attached stipulations. Because the Consent Agreement was not signed by Respondent within 30 days of issuance, a Notice of Charges was issued.

On September 25, 2023, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 04-05, 2023. Per the September 29, 2023, Complaint and Notice of Hearing (“Notice of Hearing”) the issues to be determined are whether the Board has cause to discipline Respondent’s license based on alleged violations of Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1601(27)(d); Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(1), R4-19-403(2), R4-19-403(8), R4-19-403(9), R4-19-403(12), R4-19-403(31), 32-1601(27)(g), and 32-1601(27)(j).

On November 27, 2023, OAH issued a Minute Entry to the parties that provided remote participation information, including a videoconference hyperlink and teleconference dial-in information, for the scheduled hearing.

Hearing Evidence

Respondent testified on her own behalf. The Board called investigator Janet Olson (“Investigator Olson”) as a witness. The substantive evidence of record is as follows:

During the course of her investigation, Investigator Olson subpoenaed Respondent’s employment records, patients F.M.’s and M.G.’s medical records, and Respondent’s investigative questionnaire responses. Investigator Olson also interviewed Respondent. As a result, Investigator Olson obtained the following information:

Complaint #1 –

During its internal investigation of the incident with F.M. on February 12, 2019, Amedisys discovered that Respondent put another patient’s vital information on F.M.’s chart; as Respondent had not actually performed a vital examination, wound care, or administered bladder irrigation on F.M. that day yet noted having done so.

Additionally, a following LPN noted her observations of Respondent’s care of F.M. that day, as well as information received from F.M.’s caregiver. Specifically, it was noted that Respondent had not moved F.M. from a reclining chair to a bed to check catheter placement, or check F.M.’s vital signs, oxygen, or pulse oximeter.

Moreover, in a subsequently related interview, Respondent admitted that neither wound care nor catheter placement was performed on F.M. February 12, 2019.

Complaint #2 –

Between December 13, 2020, and February 10, 2021, patient M.G.’s primary care provider prescribed blood sugar medication that was only to be administered, in specific doses, if M.G.’s blood sugar tested at certain levels. Records indicate that Respondent administered the prescription to M.G. on numerous occasions well outside of the prescriber’s order.

An identical prescription for M.G. was issued by the same prescriber for the period of February 11, 2021, through April 11, 2021. Again, records reflect that Respondent administered M.G.’s prescription on multiple occasions in excess of the prescriber’s order.

Another blood sugar prescription for M.G. was issued by the same prescriber for the period of April 12, 2021, through June 10, 2021. The order, however, was incomplete, at it failed to provide to dose administration instructions. Respondent did not seek clarification from the provider or her supervisor. Records reflect that Respondent administered prescription medication to M.G. on several occasions without a valid order.

Another incomplete blood sugar prescription was issued by the same prescriber for M.G. for the period of June 11, 2021, through August 09, 2021. Again, Respondent did not seek to clarify the order and administered medication to M.G. without a valid order.

A valid blood sugar prescription was issued by the same prescriber for M.G. for the period of August 10, 2021, through October 08, 2021. Records reflect that Respondent administered M.G.’s prescription on multiple occasions in excess of the prescriber’s order.

Another valid blood sugar prescription was issued by the same prescriber for M.G. for the period of October 09, 2021, through December 07, 2021. Again, records reflect that Respondent administered M.G.’s prescription on multiple occasions in excess of the prescriber’s order. For that same time period, M.G.’s prescriber also issued an order for a different blood sugar medication, which records establish Respondent under-administered to M.G. on at least one occasion.

The standard of practice for LPNs is to follow a provider’s valid orders. Care that exceeds or fails to meet orders breaches the standard of care because patients are not kept safe, which is extremely dangerous.

Ultimately, after reviewing the foregoing, it was determined by the Board that Respondent acted outside the scope of practice by administering prescription medication outside of related orders relative to M.G.’s recorded blood sugar levels. Respondent did not have authority or discretion to ignore, exceed, or otherwise modify M.G.’s prescriber’s order(s). The Board further determined that Respondent had breached the standard of care, and that Respondent engaged in conduct that was, could have been, and/or could be harmful or dangerous to the health of her patient(s) and/or the public.

Additional Evidence

In her written response to the Board regarding F.M.’s case, Respondent never denied the vitals falsification allegation. During a later interview Respondent admitted that she had not changed F.M.’s catheter because it was draining, and also admitted that she had not provided F.M. with wound care. These admissions were reiterated during Respondent’s testimony.

In her written response to the Board regarding M.G.’s case, Respondent asserted that she followed a standing blood sugar medication order for M.G., issued by another provider, from November 2018 through September 2021. Respondent alleged that M.G.’s “caregivers continually kept [Respondent] out of the communication with new doctor,” and that M.G.’s hospital visits, test results, and provider orders were purposefully withheld by M.G.’s caregivers. Although Respondent initially claimed that she was aware that M.G. had daily abnormal blood sugars, which she would report to M.G.’s provider, Respondent also alleged that she “had never been made aware of [M.G.’s] abnormal blood sugars.” During a later interview Respondent stated that she thought providers signed-off on verbal orders, and that those orders followed the patient. Relatedly, Respondent reiterated her prior denials of wrongdoing during her testimony.

Closing Arguments

Respondent’s Closing Argument

In closing, Respondent argued that the Board was not able to substantiate any of the factual allegations in the first complaint, in large part, because the complaint was largely ignored by the Board for several years. Per Respondent, Investigator Olson relied on hearsay within hearsay without ever going to a purported source to investigate for herself. Specifically, Respondent alleged that Investigator Olson solely made assumptions and assertions based on notes from an unknown author. Respondent opined that the Board failed to call firsthand witnesses due to the fact that most, if not all, were unavailable because of the amount of time that had lapsed since the alleged violation(s) occurred. Ultimately, Respondent argued that the Board failed to meet its burden of proof regarding both the factual allegations and the alleged statutory and/or regulatory violations as outlined in the Notice of Hearing.

Board’s Closing Argument

In closing, the Board opined that it had sustained its burden of proof. The Board argued that regarding F.M.’s vital signs, at one point Respondent claimed that she had charted information for a different patient, then later admitted that she had not performed vitals for F.M.; which corroborates F.M.’s caregiver’s firsthand observations of Respondent’s care that day. Regarding F.M.’s wound care, Respondent told Investigator Olson that she did not complete it, later testified that she could not recall if she did so, but F.M.’s chart by Respondent notes that she performed it. Regarding F.M.’s catheter, Respondent did not note changing the bag or moving the patient, which corroborates F.M.’s caregiver’s firsthand observations of Respondent’s care that day.

Regarding M.G.’s blood sugar medication administration, the Board argued that Respondent admitted that she assumed there had been a continuation of the original orders, and that she just “went along” with what she had done before. Respondent further admitted that she never asked her supervisor or M.G.’s provider for confirmation or clarification regarding the order(s).

As such, the Board asked that the Tribunal recommend disciplinary action against Respondent’s LPN license by adopting Proposed Order No. [number redacted]. In sum, the Board asked that a recommendation be issued revoking Respondent’s LPN license, but that the revocation be stayed for a period not less than one year, and that Respondent undergo a nursing skills evaluation and undertake any of the remediation recommended by that evaluator; after which, that Respondent’s LPN license remain in a state of stayed revocation and she be placed on probation for no less than 24 months. The Board asked that the order include that during Respondent’s probationary period, all of Respondent’s employers shall be required to provide the Board with monthly performance evaluations, that Respondent practice under direct supervision, and that Respondent limit her hours of acceptable work to those specifically set forth in that order. The Board also requested that Respondent not be allowed to work for a nurse registry, home health, traveling nurse agency or any other temporary employing agency, float pool or position in which the supervision requirements are unable to be maintained. The Board further requested that the order contain the Board's standard terms and conditions for its orders of probation as highlighted by and referred to in Proposed Order No. [number redacted].

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(27) 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.

* * *

(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.

* * *

(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(27)(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:

(1) A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice;

(2) Intentionally or negligently causing physical or emotional injury;

* * *

(8) Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record: a. Regarding a patient;

(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;

* * *

(12) Assuming patient care responsibilities that the nurse lacks the education to perform, for which the nurse has failed to maintain nursing competence, or that are outside the scope of practice of the nurse;

* * *

(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. § 32-1663 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.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Each word, phrase, clause, and sentence must be given meaning so that no part of the legislation will be void, inert, or trivial. Legislation must also be given a sensible construction that avoids absurd results. If the words do not disclose the legislative intent, the court will scrutinize the statute as a whole and give it a fair and sensible meaning.

A 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 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.

In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients, other healthcare providers, and the Board. Care is required to be documented, in large part, to assist providers who follow-up on that care. Thus, if care is not properly documented there is no way for follow-up care to be provided accurately.

The issue in the case at bar, is whether Respondent violated one or more standards of practice, and if so, whether grounds exist for the Board to take disciplinary action against her license for engaging in unprofessional conduct.

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.

Regarding Complaint #1, it is clear from a review of the substantive evidence in this matter that Respondent charted care for F.M. that she did not perform. Regarding Complaint #2, it is clear from a review of the substantive evidence in this matter that Respondent acted outside the scope of practice by administering prescription medication outside of related orders relative to M.G.’s recorded blood sugar levels. However, the record establishes that Respondent adjusted M.G.’s prescription medication for about 3 years without instructions to do so, not 6 years.

There is insufficient evidence to establish that Respondent intentionally or negligently caused physical and/or emotional injury to F.M. or M.G.

Notably, the record is devoid of any mitigating evidence that would excuse or otherwise justify Respondent conduct. Documents created and signed by Respondent, as well as prior statements Respondent made closer in time to the alleged events at issue, are more reliable and therefore given more weight than Respondent’s contrary or prevaricated testimony.

Respondent’s dissatisfaction with the time it took for the Board to investigate the underlying complaints, as well as Respondent’s displeasure with the Board’s determination to call additional witnesses, are immaterial. Nor do they trump the Board’s legitimate interest in protecting the public.

Thus, based on the record, the undersigned concludes that the Board has established by a preponderance of the evidence that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(27)(d); Ariz. Admin. Code R4-19-403(1), R4-19-403(8), R4-19-403(9), R4-19-403(12), R4-19-403(31), 32-1601(27)(g), and 32-1601(27)(j). A violation of Ariz. Rev. Stat. § 32-1601(27)(d); Ariz. Admin. Code R4-19-403(2) has not been established by a preponderance of the evidence.

In light of the risk of potential harm to patients and the public at large as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose disciplinary sanctions against Respondent’s license under Ariz. Rev. Stat. §§ 32-1663(D-F) and 32-1664(O).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke Practical Nurse License No. LP038091, as issued to Respondent Marsha Ann Williams, aka Marsh Ann Turnage, in accordance with and as specified by Proposed Order No. [number redacted].

IT IS FURTHER RECOMMENDED that the Board amend Proposed Order No. [number redacted], as necessary, to account for the unsubstantiation of Respondent’s alleged violation of Ariz. Rev. Stat. § 32-1601(27)(d); Ariz. Admin. Code R4-19-403(2).

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, January 03, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

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

Joey Ridenour, RN, MN, Executive Director

ATTN: Trina Smith

State Board of Nursing

1740 W. Adams St., Ste. 2000

Phoenix, AZ 85007

[email redacted]

Bretton Barber, Esq.

Barber Law Group, PLLC, Counsel for Respondent

2 N. Central Ave., Ste. 1800

Phoenix, AZ 85004

[email redacted]

Charles S. Hover, III, Assistant Attorney General

Office of the Attorney General – CIV/LES

2005 N. Central Ave.,

Phoenix, AZ 85004-1592

[email redacted]

By: OAH Staff