ALJDEC

96A-950925-NUR · State Board of Nursing · 1998-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 1998 APPEARANCES: The Arizona State Board of Nursing (“Board”) was represented by Assistant Attorney General M. Elizabeth Burns. The Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The commencement of the scheduled hearing was delayed for twenty minutes to allow for the late arrival of the Respondent. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Complaint and Notice of Hearing was amended at the request of the Board as follows: Paragraph 5, line 21, the correct reference should read “two tablets of Ativan, .5 mg.”. 2. Respondent holds professional nurse license number RN048091 issued by the Board. 3. Respondent entered into a Consent Agreement and Order, effective August 27, 1986, which provided for, among other things, a six month suspension of her license followed by an eighteen month probationary period. Respondent consented to the Board’s Finding of Fact No. 2 which read: “For a period of approximately 10 weeks, STEVENS (now Cragg) was diverting Librium and Valium periodically from the locked controlled substance cabinet at Maricopa Medical Center for her own use.” 4. On or about September 19, 1988, the Board issued an Order Terminating Probation finding that Respondent had complied with all conditions of the prior Order. 5. From March 9 through August 21, 1992, Respondent was employed as a registered nurse at Cosada Villa Nursing Center (“Nursing Center”), Mesa, Arizona. 6. According to personnel records at the Nursing Center, Respondent was scheduled to work the day shift on August 15, 1992. Respondent called the facility at 6:30 a.m. and reported that she would be unable to come to work as scheduled because she was at her other job and her replacement had not come in. When the Director of Nurses (“DON”) called Respondent back to see if she could come to work at the Nursing Center after her replacement arrived, she was told that Respondent was not scheduled for work at the other job. The DON left a message at Respondent’s home for Respondent to contact the DON, but Respondent never returned the call. On August 21, 1992, Respondent was noted to voluntarily quit her position at the Nursing Center for failing to appear or call. Respondent was noted as “No” for the question: “Is employee eligible for rehire?”. 7. From June 22 through September 1, 1992, Respondent was employed as a nurse at Park Regency Healthcare (“PRHC”) in Chandler, Arizona. While investigating incidents of missing narcotics in the facility, the DON found that Respondent had signed out two tablets of Ativan, .5 mg., for resident CH on August 12, 13, 17, 18, 22, 23, 24, 25, and 29, 1992. Respondent failed to document administration of any of the above doses on either the front or the back of the resident’s Medication Administration Record. On the contrary, notations on the resident’s Medication Administration Record for August 11-15, 19, 28, 29 and 30, 1992 indicated the Ativan medication was being withheld per the doctor’s request. 8. On or about September 1, 1992, Respondent was suspended by PRHC pending further investigation of drug losses on two occasions while she was on duty. Those incidents were also reported to the Board. On or about September 2, 1992, Respondent resigned from the facility. There is credible evidence that Respondent was not eligible for rehire at PRHC. 9. From April 4, 1994 through October 4, 1995, Respondent was employed by Hearthstone of Mesa (“HM”) located in Mesa, Arizona. 10. In a performance evaluation from HM dated July 11, 1994, Respondent was rated as unsatisfactory in attendance and punctuality with documentation noting that Respondent had three absences since her hire date. The evaluation also noted that Respondent needed to improve her attendance. Respondent’s evaluation for job knowledge and performance was less than the “attains” performance level. 11. On or about September 7, 1994, Respondent was given a written warning from HM for four absences in a 90 day period. The warning recommended that Respondent be terminated per the facility’s attendance policy if Respondent did not undertake appropriate corrective action. Respondent signed the employee counseling record. 12. On or about October 4, 1995, Respondent received a written warning from HM for failing to notify the facility two hours in advance of a “call- off”, failing to have initiated neuro sign checks for a head-injury resident, and failing to notify the physician of a resident’s fall. The employee counseling record recommended termination in light of Respondent’s recent job performance. 13. On or about October 4, 1995, Respondent was terminated from HM for progressive discipline. The employee termination record noted that Respondent was not eligible for rehire. 14. From October 21, 1994 through February 13, 1995, Respondent was employed at Desert Cove Nursing Center (“Desert Cove”) in Chandler, Arizona. 15. While employed at Desert Cove, Respondent documented administering two Percocet tablets to resident FL on December 25, 26, 27 and 30, 1994. In an interview with the DON on February 13, 1995, FL denied ever requesting or receiving any Percocet as documented by Respondent. 16. In January of 1995, Respondent, while working at Desert Cove, documented administering two Percocet tablets to resident FL on January 3, 5, 8, 9, 10, 11 (two doses), 17, 18, 26 and 27, 1995. In an interview with the DON on February 13, 1995, FL denied ever requesting or receiving any Percocet as documented by Respondent. 17. In February of 1995, Respondent, while employed at Desert Cove, documented administering two Percocet tablets to resident FL on February 2, 3, 5 and 9, 1995. In an interview with the DON on February 13, 1995, FL denied ever requesting or receiving any Percocet as documented by Respondent. 18. The Medication Administration Record for FL reflects that two tablets of Percocet are documented as being given to FL on February 9, 1995 at 6:00 p.m. by a nurse with initials “JC” In a written statement dated February 10, 1995, licensed practical nurse Judith Carsten, an employee at Desert Cove, stated that the initials on the record were not written by her. Nurse Carsten confirmed that statement at the instant hearing under oath. 19. On February 9, 1995, on the Medication Administration Record of resident FL, an unknown dose of Percocet tablets was documented as given by someone with the initials “M.B.”. No entry was made on the back of the Medication Administration Record to indicate the time the dose was administered. In a written statement dated February 10, 1995, licensed practical nurse Mary Brenneman, an employee at Desert Cove, denied signing out or giving medication to FL on that date. The February 11, 1995, narcotic sign-out record for Percocet for resident FL was found to be missing. Brenneman gave credible testimony under oath at the hearing substantiating her prior written statement. 20. On or about February 13, 1995, Respondent was given a disciplinary warning notice by Desert Cove’s DON regarding theft of company property, being the Percocet tablets, from Desert Cove. The document stated that after an investigation conducted by the facility, it became apparent that Respondent had signed out and charted those medications for resident FL which were not administered to FL. Respondent was terminated from employment at Desert Cove. The DON wrote a letter to the Board on the same date to report the matter. 21. On February 14, 1995, a Termination Report was prepared by staff at Desert Cove documenting Respondent’s discharge on February 13, 1995, for the following reasons: violation of company rule or policy by taking medications which she signed out as given to residents which had not been administered; dishonesty; and falsification of records. 22. In an interview with Board staff on or about August 6, 1887, Respondent admitted diverting Valium and Librium from Desert Cove, but denied diversion of Percocet. 23. On or about March 10, 1995, during an intake assessment for the Board’s non-disciplinary Chemically Addicted Nurses Diversion Option (“CANDO”), Respondent described her drug of choice as Valium with a buildup of use over a two year period to 20-30 mg. per day. Respondent also admitted that she obtained the drug from her employer by diversion. 24. On March 10, 1995, Respondent and the Board entered into a Stipulated Agreement for Treatment, Rehabilitation and Monitoring of chemical dependency which provided for random biological fluid testing for drugs. Respondent admitted to being chemically dependent. 25. On April 3, 1995, Respondent had a positive drug screen for marijuana. 26. On June 29, 1995, Respondent had a positive drug screen for morphine. Respondent reported to the Board’s assigned nurse consultant that the medication had been prescribed to her following a dental procedure. No documentation was ever received by the Board which indicated that Respondent had a current prescription for any prescription drugs, and no physician or dentist was located with the name provided by Respondent. 27. On August 9, 1995, Respondent was discharged from the CANDO program for non-compliance. 28. On or about November 13, 1995, while employed at East Valley Medical & Rehabilitation Center (“EVMRC”), Respondent documented administering on Roxicet (i.e. Percocet) tablet to resident RD at 3:00 p.m. On November 14, 1995, the resident denied she had received the drug. 29. On November 14, 1995, Respondent’s supervisor issued two employee concern reports pertaining to Respondent’s failure to perform treatment for four residents, failure to perform Accu check testing on residents as ordered, and failure to give medication to a patient despite having documented that Respondent did so. 30. On November 27, 1995, Respondent had a positive drug screen for marijuana. 31. Respondent has a twelve year history of illegal drug use and medication diversion while practicing nursing. Despite the Board’s prior non- disciplinary and disciplinary actions designed to aid Respondent’s personal and professional rehabilitation while allowing her to continue to practice nursing, such efforts were unsuccessful. Even Respondent’s written response to the complaint in this matter highlights her failure to grasp the severity of her deficient practice of nursing described in the above Findings of Fact. 32. The weight of credible and reliable evidence of record supports a finding that Respondent’s continued practice of nursing poses a threat to the public health and safety.

CONCLUSIONS OF LAW

1. The Board has authority pursuant to A.R.S. §§32-1606, 32-1663 and 32- 1664 to impose disciplinary sanctions against Respondent for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to -1667, including suspension, revocation, probation, censure and/or imposition of an administrative penalty. 2. The evidence of record is adequate to establish that Respondent has violated the following provisions of the Nurse Practice Act and Board rules as alleged in the Complaint: a. A.R.S.§ 32-1663(D)(4) (amended1993); b. A.R.S § 32-1663(D), as defined in A.R.S. § 32-1601(11)(d), (j) and (l) (amended 1995), A.R.S. §32-1601(10)(d), (j), (k) and (l) (amended 1997); c. A.A.C. R4-19-403(1), (5), (10), (12) and (13) (amended 1995); d. A.A.C. R4-19-403(1), (5), (6), (13), (14) and (25).

3. The evidence of record supports the revocation of Respondent’s professional nurse license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Arizona State Board of Nursing revoke Professional Nurse License No. RN048091 issued to Respondent. Done this day, December 28, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Joey Ridenour, RN, MN Director State Board of Nursing 1651 West Morten, #150 ATTN: Jane Werth, RN, MS Phoenix, AZ 85020

By _______________________________