ALJDEC - Licensing
24A-2024040432-NUR · State Board of Nursing · 2024-09-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF THE REGISTERED NURSE LICENSE NO.
RN131749 ISSUED TO:
MARY ELIZABETH HENDERSON
A.K.A.: Mary Elizabeth McGough,
RESPONDENT.
No. 24A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 6, 2024.
APPEARANCES: Assistant Attorney General Jeanne Galvin appeared for the Arizona Board of Nursing. Mary Henderson appeared on her own behalf.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Board’s Exhibits 1 through 13.
_____________________________________________________________________
FINDINGS OF FACT
The Arizona State Board of Nursing (Board) had the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Arizona Revised Statutes (A.R.S.) §§ 32-1606, 32-1663, 32-1664, 41-1092.11(B). The Board also had the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 et seq. and Arizona Administrative Code (A.A.C.) Rules 4-19-101 et seq.
Mary Elizabeth Henderson (Respondent) held Board issued Registered Nurse License Number RN131749 in the State of Arizona.
On January 16, 2020, the Board received a complaint from Nancy Adamson, CNO, and Gary Nechvatal, Director of Pharmacy at Banner Boswell Medical Center, in Sun City, Arizona, reporting that Respondent was suspected “of diversion of controlled substances, falsification of medical records and testing positive on a for-cause drug screen,” resulting in the termination of her employment. Based on this information the Board conducted an investigation.
On January 17, 2023, the Board received a complaint from Melanie Margeson, Division Director of Employee and Labor Relations at Dignity Health Medical Center, in Phoenix, Arizona, reporting that a pharmacy audit revealed several instances of narcotics removed by Respondent for patients who were not in the department and instances of narcotics being removed from multiple locations. Respondent refused a for-cause drug test, opting to resign.
It was undisputed that on or around November 17, 2023, Respondent entered a Consent Agreement with the Board. In that Consent Agreement, Respondent admitted to the facts contained in Factual Allegation 1:
Respondent admits the Board’s Findings of Facts and Conclusions of Law and agrees to issuance of the following Order and waives all rights to a hearing, rehearing, appeal or judicial review relating to this matter. . . . Respondent understands that the Findings of Fact, Conclusions of Law and Order are conclusive evidence of a prior violation of the Nurse Practice Act and may be used for purposes of determining sanctions in any future disciplinary matter.
The Consent Agreement included the following terms of a probation period:
Respondent shall completely abstain from the use of alcohol, alcohol-containing substances and/or potentially addictive substances. This includes poppy seeds, or any other food or liquids that may affect toxicology results, including but not limited to: foods prepared with alcohol, mouthwash containing alcohol, kombucha teas, cold remedies containing alcohol[, etc.]
. . . .
Respondent shall completely abstain from the use or possession of illegal drugs or any drugs requiring a prescription or authorization.
Orders prohibiting Respondent from personal use or possession of drugs requiring a prescription do not apply to medications lawfully prescribed to Respondent for an illness or condition by a medical provider. . . . Respondent shall select one medical provider to coordinate her health care needs and to be aware of all prescriptions utilized by Respondent. Within 7 days of the effective date of this Order, Respondent shall cause all medical providers who have prescribed medications which are currently being used by the Respondent daily or on an as needed basis to provide in writing, on letterhead, verification of knowledge of Respondent’s history of substance use, awareness of Respondent’s Consent Agreement and Order with the Board, and documentation of current medications prescribed for Respondent. . . . Prior to receiving treatment from any other medical provider(s), Respondent shall notify the medical provider(s) of Respondent’s history of substance use provide the provider with a copy of this Consent Agreement and Order. DURING THE COURSE OF THE ORDER RESPONDENT SHALL CAUSE ANY AND ALL PROVIDERS TO NOTIFY THE BOARD OF THEIR AWARENESS OF RESPONDENT’S HISTORY OF SUBSTANCE USE, BOARD ORDER, AND NOTIFICATION OF ANY MEDICATIONS ORDERED BY THE PROVIDER, THE NOTIFICATION SHALL BE MADE IN WRITING WITHIN ONE WEEK OF THE PROVIDER’S ISSUANCE OF THE PRESCRIPTION.
. . . .
Within 7 days of the effective date of the Order, and throughout the term of this Order, Respondent shall enroll and remain enrolled in the Board approved third party program for random drug and alcohol testing. Drug testing may include testing of urine, hair follicle, nail, saliva or blood, as determined by the Board or the Board’s designee.
Senior investigator Brent Sutter investigated this matter.
On March 11, 2024, Respondent took a random urine drug test; it was positive for alcohol biomarkers Ethyl Glucuronide (“EtG”) at 382 ng/ml and Ethyl Sulfate at 252 ng/ml, which indicated prior drinking or extraneous exposure.
On or about March 25, 2024, the Board asked Respondent to complete a Phosphatidylethanol (PETH) test; it was positive at 98 ng/ml, which indicated moderate alcohol consumption in the prior 2 to 4 week period.
Respondent stated that she had not been drinking. She believed the positive result was due to daily consumption of apple cider vinegar. She contested the result with a Medical Review Officer (MRO) evaluation.
The MRO commented that he was unable to identify the cause of the significantly elevated PETH test. He noted that Respondent’s results were most consistent with significant alcohol intake.
On April 17, 2024, Investigator Sutter identified a Phentermine prescription, written by Stephanie Huston, NMD.
Phentermine was a schedule IV controlled medication.
The Board had not received a medical provider report about the prescription.
Respondent had not provided Dr. Huston with a copy of the Consent Agreement. Respondent also refused to provide Dr. Huston with a copy of the Consent Agreement when Investigator Sutter requested that she do so.
Respondent testified that the origin of the Consent Agreement was not true. She stated that the original drug test, which was positive for Midazolam and Fentanyl, was incorrect. Respondent explained that she would not have been able to work with the drugs present in that test result.
Respondent testified that she was not allowed to contest the results; instead, she was terminated for cause. Respondent stated that she was later asked to take a hair follicle test by the board, which returned a negative result. Respondent testified that her allegation—that her original drug test sample was incorrect—was never truly investigated.
Respondent sought to contest the Consent Agreement and challenge the terms of her prior arrangement with the Board.
Respondent testified that, while she was still under investigation by the Board for the first drug test, she was accused of diverting drugs at her new job and was asked to take another drug test. Respondent refused to take that drug test and resigned. Afterwards, the Board sent her for a follicle test, which was negative for opiates and Midazolam.
At the conclusion of the hearing, the Board requested a recommendation of revocation due to Respondent’s ongoing refusal to comply with the Consent Agreement. According to the Board, such behavior demonstrated that Respondent was unable or unwilling to be regulated.
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction pursuant to A.R.S. § 32-1606(B)(10).
The Board bore the burden of proof to establish cause to penalize Respondent’s practical nurse 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.”
Respondent admitted to Factual Allegation 1 in the Consent Agreement.
The Board established Factual Allegation 2 by a preponderance of the evidence. The PETH test scores indicated that Respondent most likely consumed alcohol in violation of the Consent Agreement. Respondent argued that the PETH scores had a different cause; however, she did not establish another cause by a preponderance of the evidence.
The Board established Factual Allegation 3 by a preponderance of the evidence. At hearing, Respondent admitted that she would not provide her medical provider a copy of the Consent Agreement in violation of the terms of the Consent Agreement.
The Board established a violation of A.R.S. § 32-1601(27)(d) by a preponderance of the evidence.
The Board established a violation of A.R.S. § 32-1601(27)(i) by a preponderance of the evidence.
The Board established a violation of A.R.S. § 32-1601(27)(j) by a preponderance of the evidence.
The Board established a violation of A.A.C. R4-19-403(17) by a preponderance of the evidence.
The Board established by a preponderance of the evidence that Respondent was not regulatable.
In light of the evidence of record, including Respondent’s outright refusal to follow the Consent Agreement, and the risk of harm to which patients and the public were and could be exposed as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1606(B)(10) and A.R.S. § 32-1663(D).
RECOMMENDED ORDER
IT IS RECOMMENDED that the Board revoke Respondent Mary Elizabeth Henderson’s Registered Nurse License Number RN131749.
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, September 9, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing
Deborah Abbey
Office of the Attorney General
[email redacted]
Mary Elizabeth Henderson
[email redacted]
By: OAH Staff