ALJDEC decisions subject to certification as final
24A-2023070220-NUR · State Board of Nursing · 2024-10-11
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:
ANDREW STEVEN HESSLER,
RESPONDENT
(Ohio RN487680) Multistate Privilege to Practice.
No. 24A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 09, 2024, at 9:00 AM.
APPEARANCES: Assistant Attorney General Roberto Pulver, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Michelina Stazzone as a witness. Andrew S. Hessler (“Respondent”) appeared on his own behalf. Cindy Bachman (CCR No. 50763) served as the Court Reporter for the proceedings.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Complaint and Notice of Hearing (“Complaint“) was admitted into the evidentiary record along with the April 01, 2024, Hearing Order, April 29, 2024, Minute Entry – Granting Continuance, June 18, 2024, Continued Hearing Order, and Board Exhibits 1-15.
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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 RN497680 by the State of Ohio on September 04, 2021, which is scheduled to expire on October 31, 2025.
On June 13, 2023, while working as a Registered Nurse (“RN”) at Banner Del Webb Medical Center (“Banner”) in Sun City West, Arizona, on assignment from Travel Nurses, a private nursing agency, Respondent allegedly removed Oxycodone 5 mg from an automated medication dispenser (“Pyxis”) for Patient D.Z., but did not document his administration, waste, or return in the medication administration record.
On June 18, 2023, at 8:05 p.m. while working as an RN at Banner, Respondent allegedly removed 2 tablets of Oxycodone-Acetaminophen 5/325 mg for Patient P.S. but did not document administration, waste, or return of the medications in the medication administration record. Hours later, on June 19, 2023, at 3:33 a.m. Respondent allegedly removed another 2 tablets of Oxycodone-Acetaminophen 5/325 mg for Patient P.S. Respondent did not document any administration, waste, or return of the medications in the medication administration record.
On July 09, 2023, while working as an RN at Banner, Respondent allegedly removed 2 tablets of Oxycodone-Acetaminophen 5/325 mg for Patient A.H., but did not document any administration, waste, or return in the medication administration record.
On July 14, 2023, the Board received a complaint from Banner’s Interim Associate Chief of Nursing regarding the aforementioned conduct and the hospital’s suspicion that Respondent was diverting narcotics. Specifically, it was reported that there were inconsistencies of pain medications given by Respondent during this shifts whereby the family members of patients had complained that prescribed medications had never been administered to their relatives. During its own investigation, Banner pulled pharmacy reports and heliometrics software reports which established that high numbers of narcotics had been pulled by Respondent in comparison to his nursing peers, and further determined that seven (7) tablets of Oxycodone were unaccounted for on four (4) of the five (5) shifts worked by Respondent. Although Respondent was scheduled to work on July 15, 2023, he called off a few hours before his shift began. Banner was unable to obtain a drug screen from Respondent or interview him.
As a result, the Board initiated an investigation into the confirmable facts regarding the underlying complaint. The Board subpoenaed Patient D.Z.’s, P.S.’s, and A.H.’s medical records from Banner, obtained Banner’s controlled substances policy and Respondent’s prior employment records, and reviewed Respondent’s reply to an Investigative Questionnaire received December 14, 2023, whereby Respondent blamed any unaccounted for medications on a “system error” and accused other nursing staff of “not doing their jobs.”
During the Board’s March 21, 2024, public meeting, the complaint against Respondent was discussed and the Board voted, pursuant to Arizona Revised Statute (“Ariz. Rev. Stat.”) § 41-1092.11(B), to summarily suspend Respondent’s multistate privilege to practice nursing in the State of Arizona under the Nurse Licensure Compact.
On March 21, 2024, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing April 29, 2024. Per the March 27, 2024, Complaint and Notice of Hearing (“Notice of Hearing”) the issues to be determined are whether the Board has cause to discipline Respondent’s multistate privilege to practice, including summary suspension and revocation, based on alleged violations of Ariz. Rev. Stat. §§ 32-1601(27)(d); Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(1), R4-19-403(7), R4-19-403(8), R4-19-403(9), and R4-19-403(31), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27)(j).
Hearing Evidence
The Board called investigator Michelina Stazzone (“Investigator Stazzone”) as a witness. Respondent testified on his own behalf. The substantive evidence of record is as follows:
Investigator Stazzone obtained the following information:
Respondent’s contract with Banner, through Travel Nurses, was from June 05, 2023, to September 02, 2023, though his last day on the job was July 14, 2023. During that time, Respondent worked a total of eight (8) shifts. On July 31, 2023, Banner completed its investigation of Respondent which resulted in a universal Do Not Return order placed in his employment file.
Patient D.Z.
Patient D.Z. was a 91 year old female with a history of asthma, anxiety, depression, hypertension, breast cancer, advanced Alzheimer’s disease, and dementia. On June 13, 2023, Patient D.Z. was admitted to Banner with acute kidney injury due to dehydration, and acute tubular necrosis. Her treating physician ordered Oxycodone 5mg, orally every 3 hours as needed for moderate pain, and Morphine 2mg intravenously every 3 hours as needed if not taking oral medication. Banner’s heliometrics report for Patient D.Z. establishes that she was administered Oxycodone 5mg by LPN L. Rocha at 2:46 a.m. on June 13, 2023, and that at 4:48 a.m. that same date Respondent removed Oxycodone 5mg for Patient D.Z. but did not chart any administration of the medication. Patient D.Z. was discharged on June 15, 2023.
Patient P.S.
Patient P.S. was a 78 year old female with a history of hypertension, depression, and anxiety. On June 14, 2023, Patient P.S. was admitted to Banner for osteomyelitis of the left tow, and a urinary tract infection. Her treating physician ordered Tylenol 500mg every 6 hours as needed for mild pain, Oxycodone-Acetaminophen 5/325mg every 4 hours as needed for moderate pain, and Gabapentin 300mg orally 3 times per day. Banner’s Pyxis report for Patient P.S. establishes that on June 18, 2023, at 8:05 p.m. Respondent removed 2 tablets of Oxycodone-Acetaminophen 5/325mg for Patient P.S. but did not chart any administration of the medication, and that on June 19, 2023, at 3:33 a.m. Respondent removed 2 tablets of Oxycodone-Acetaminophen 5/325mg for Patient P.S. but did not chart any administration of that medication either.
Patient A.H.
Patient A.H. was an 87 year old male with a history of dementia, benign prostatic hypertrophy, congestive heart failure, diabetes mellitus, left hydronephrosis, and Parkinson’s disease. On July 05, 2023, Patient A.H. was admitted to Banner with osteomyelitis of the sacrum. His treating physician ordered a tablet of Oxycodone-Acetaminophen 5325mg every 4 hours as needed for moderate pain, and 2 tablets of Oxycodone-Acetaminophen 5/325mg every 4 hours as needed for severe pain. Banner’s Pyxis report for Patient A.H. establishes that on July 09, 2023, at 3:54 a.m. Respondent removed 2 tablets of Oxycodone-Acetaminophen 5/325mg for Patient A.H. but did not chart any administration of the medication.
Banner’s Controlled Substances policy, last revised July 15, 2021, was implemented to define consistent practices, maintain systems of strict accountability, and ensure compliance with applicable regulations and standards of professional practice. Section III(D)(7), Distribution – Nurse dispensing from automated medication distribution locations, provides as follows, in pertinent parts:
(a) All controlled substances will be removed from the ADM by an authorized ADM user.
(e) Controlled substances will be documented at the time of administration consistent with the administration guidelines for other medications.
(g) Undamaged, and unused medications will be returned to the medication pocket or return bin, as determined by the facility, from the same ADM they were removed from, with a witness if blind count is not utilized.
Section III(E)(1), Waste Disposal and Documentation, provides as follows:
(a) When controlled substances need to be wasted, the wasting activity will be done and appropriately documented as soon as possible.
(b) All controlled substance waste will be witnessed by two authorized health care professionals and documented in the ADM or on the Controlled Substance Record. The witnessing individual cannot be the individual who vended or administered the controlled substance.
Despite repeated attempts by Investigator Stazzone between January 31, 2024, and February 23, 2024, to interview Respondent, he would not submit for an interview. No other persons were interviewed by Investigator Stazzone.
Additional Evidence
On March 05, 2024, the Board issued a Notice of Board Consideration of Proposed Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted].
On May 30, 2024, a representative from the Ohio Board of Nursing contacted the Board to report that Respondent had informed them that he was no longer “in trouble” in Arizona, but later accidentally sent a text message stating he had “buffaloed” Arizona. Respondent’s Arizona file was requested so it could be reviewed as a part of their investigation as well. The Ohio Board of Nursing’s representative also advised that that the Washington State Board of Nursing was also investigating Respondent.
Respondent testified that he was assigned as a travel RN to work at Banner 1 to 2 days per week. Per Respondent, he received Banner’s Controlled Substance Policy at the onset of his assignment and signed-off on it. Respondent testified that if he pulled medication for a patient that meant he had been assigned as a member of their care team, and that he specifically recalled administering medications to Patients D.Z., P.S., and A.H. When asked about his apparent lack of documentation for the administration of patient medications, Respondent testified that he was unfamiliar with Banner’s software and all instances at issue constituted “misscans.” Per Respondent, he did not notice any errors and was not notified by other staff members that his scans did not go through or were otherwise incorrect. After his staffing agency advised him of the Board’s investigation, Respondent did not participate in an interview or provide the Board with any documentation.
Closing Arguments
Respondent declined to provide a closing argument.
In closing, the Board argued that the substantive evidence of record compelled it to take swift action against Respondent in order to protect the public’s health and safety. The Board argued that Respondent had taken controlled substances ordered for three (3) patients in his care, all of whom were vulnerable, and diverted them. The Board further argued that the five 12-hour shifts Respondent worked at Banner resulted in more controlled substances being pulled by him than any other RN during that same period. Coupled with Respondent’s accidentally transmitted text message to the Ohio Board of Nursing, Respondent’s unceremonious early termination of his assignment at Banner, and his subsequent lack of communication with the Board, it argued that Respondent’s unprofessional conduct rendered him unregulatable by the Board. As such, the Board asked that its Summary Suspension be affirmed by the Tribunal, and that an Order recommending revocation of Respondent’s multistate privilege to practice be issued in the matter.
CONCLUSION OF LAW
This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606, 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 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.
Here, the Board bears the burden of proof to establish cause to take disciplinary action against Respondent’s Multistate Privilege to Practice. 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) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.
(h) Committing an act that deceives, defrauds or harms the public.
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(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(24)(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;
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(7) Failing to maintain for a patient record that accurately reflects the nursing assessment, care, treatment, and other nursing services provided to the patient;
(8) Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record:
(a) Regarding a patient, health care facility, school, institution, or other work place location; or
(b) Pertaining to obtaining, possessing, or administering any controlled substance as defined in the federal Uniform Controlled Substances Act, 21 U.S.C. 801 et. Seq., or Arizona’s Uniform Controlled Substances Act, A.R.S. Title 36, Chapter 27;
(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;
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(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. § 32-1606(B)(10) provides that the Board shall determine and administer appropriate disciplinary action against all regulated parties who are found guilty of violating this chapter or rules adopted by the board.
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.
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(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(P) 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.”
“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 issue in the case at bar, in light of Respondent’s conduct, is whether grounds exist for the Board to take disciplinary action against his multistate privilege to practice under Ohio RN487680.
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 established Respondent’s violations of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(27)(d); Ariz. Admin. Code R4-19-403(1), R4-19-403(7), R4-19-403(8), R4-19-403(9), and R4-19-403(31), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27)(j) by a preponderance of the evidence.
The credible evidence of record establishes that Respondent is unsafe to practice nursing in the State of Arizona. Most concerning is Respondent’s obfuscation under oath regarding multiple controlled substances withdrawn for three (3) patients between June 13, 2023, and July 09, 2023, that were never accounted for. The record clearly reflects, and Respondent did not deny, pulling said opioids under various patient names for administration. Respondent did not evince any sense of accountability regarding the fact that his patients failed to receive medications to decrease their pain levels, or the potential liabilities Banner faced in the wake of several missing controlled substances having been pulled by him. These are factors in aggravation. Respondent’s assertions that the unaccounted for medications were the result of his unfamiliarity with Banner’s software and/or some type of technological error are nonsensical. Another factor in aggravation. Respondent’s dishonest correspondences and accidental text to the Ohio Nursing Board’s representative regarding his underlying conduct and the Board’s related investigation, are additional factors in aggravation.
There is no mitigating evidence in the record for Respondent’s actions, or lack thereof.
Respondent’s intentional refusal to communicate with the Board during its investigation further evinces his unwillingness to submit to the Board’s authority and jurisdiction. Had he done so, Respondent could have avail himself of substantive assistance the Board could have provided.
In light of the risk of potential harm to patients 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 multistate privilege to practice under Ariz. Rev. Stat. §§ 32-1663(D) and 32-1664(P). Because Respondent has committed unprofessional conduct, the Board has authority to revoke his privilege to practice nursing in the State of Arizona.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Board’s March 05, 2024, Summary Suspension in Case No. [number redacted] be affirmed.
IT IS FURTHER RECOMMENDED that the Board revoke Andrew Steven Hessler’s multistate privilege to practice under Ohio Registered Nursing License No. RN487680.
NOTICE
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.
Done this day, October 11, 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
Arizona State Board of Nursing, Complainant
ATTN: Trina Smith
1740 W. Adams St., Ste. 2000
Phoenix, AZ 85007
[email redacted]
Roberto Pulver, Esq., Assistant Attorney General
Arizona Office of the Attorney General
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
[email redacted]
Andrew Steven Hessler, Respondent
848 Old Coach Rd.
Westerville, OH 43081
[email redacted]
By: OAH Staff