ALJDEC

98A-9804186-NUR-res · State Board of Nursing · 2001-11-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2001. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Seth T. Hargrave. The Respondent, Kari Mette McCain, L.P.N., R.N., appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 Respondent, Kari Mette McCain, is the holder of Professional Nurse License Number RN087183 and Practical Nurse License Number LP015858 issued by the Arizona State Board of Nursing (“Board”). 2. From on or about June 6, 1994 through September 4, 1996, Respondent was employed as a registered nurse at Yuma Regional Medical Center (“YRMC”) in Yuma, Arizona. 3. On or about December 27, 1995, Respondent telephoned the Board office and self-reported that she had been confronted by her supervisor at YRMC, who alleged that Respondent had signed out Morphine via the Sure Med dispensing machine utilizing the passwords of other staff not on duty. During the telephone call, Respondent denied any involvement or knowledge of the missing Morphine. 4. After receiving Respondent’s telephone call, Valerie Smith, then the Impaired Practice Consultant administering the Board’s Chemically Addicted Nurses’ Diversion Option (“CANDO”) program, telephoned YRMC to report her conversation with Respondent. Staff at YRMC replied that the facility was aware that Morphine had been diverted. 5. On December 27, 1995, YRMC management placed the Sure Med dispenser under surveillance. 6. On December 27, 1995, Respondent was observed signing out Morphine from the Sure Med dispenser under the password of another nurse to a patient that she was not assigned to and who did not have an order for Morphine. 7. On or about January 2, 1996, YRMC submitted a complaint to the Board against the Respondent. According to that complaint, between December 5, 1995 through December 27, 1995, Respondent had diverted Morphine from the Sure Med dispenser by signing out the medications to patients who had been discharged or patients who did not have orders for Morphine. The Morphine had been diverted using nine different security passwords. A check of personnel records indicated that Respondent was the only employee consistently on duty when the diversions occurred. 8. On or about January 12, 1996, Respondent met with her employer and Board staff. Initially, Respondent adamantly denied diverting any Morphine. Later she did admit to diverting Morphine and other controlled drugs for her own personal use. Respondent acknowledged that she was able to divert the drugs by utilizing the passwords of other staff. 9. On or about January 21, 1996, Respondent was admitted into inpatient treatment at Chandler Valley Hope. She was successfully discharged on February 16, 1996. 10. On or about February 5, 1996, Respondent entered into a Stipulated Agreement with the Board’s CANDO program, which required, among other things, that Respondent

a) abstain from the use of alcohol and all other unauthorized mood altering drugs; b) enter and complete a chemical dependency treatment program and a follow-up Aftercare program; c) attend a minimum of two Alcoholics Anonymous or equivalent program meetings each week; d) participate weekly in a nurse recovery group; e) abide by practice related restrictions; and f) document her compliance and submit it to the CANDO program by the last day of the months of March, May, July, September, November and January.

11. By letter dated March 4, 1996, Dr. James F. Martin, M.D. advised the Board that he was Respondent’s primary care physician and that he was aware that she was participating in the CANDO program. He further advised the Board that Respondent was prescribed Prozac and Trazadone. 12. Respondent’s AA/NA Attendance Report for the period from February 25, 1996 to March 30, 1996 reflected that she had attended five meetings. However, the total minimum number of classes required by CANDO was ten meetings. 13. By letter dated March 8, 1996, Sonora Laboratory Sciences advised the Board that Respondent’s assigned color was chosen on Tuesday, March 5, 1996. Respondent did not report to the lab for the test. 14. Respondent’s AA/NA Attendance Report for the period from May 1, 1996 to June 30, 1996 reflected that she had attended 17 meetings. The total minimum number of classes required by CANDO was 18. 15. Respondent’s self-report dated July 1, 1996 covering the period from May 1, 1996 to June 30, 1996 reflects that she attended all meetings during that period. 16. On or about August 2, 1996, Ms. Smith sent Respondent a notice that her Aftercare and Counseling Reports for the period ending July 31, 1996 had not been received by the Board. 17. On or about September 4, 1996, the CANDO program was notified that Respondent tested positive for alcohol in a random urine drug screen obtained by YRMC. Respondent denied having used any alcohol. YRMC terminated Respondent’s employment due to her failure to keep her substance abuse agreement. 18. On or about September 11, 1996, Ms. Smith sent Respondent a notice that her Self Report for the period ending July 31, 1996; her Aftercare Reports for the periods ending May 31, 1996 and July 31, 1996; and her AA/NA Report for the period ending July 31, 1996 had not been received by the Board. 19. On or about September 26, 1996, the Board received the following documentation from the Respondent:

a) Aftercare Reports for the reporting period of April 1, 1996 through May 31, 1996, which were due by May 31, 1996. b) Aftercare Reports for the reporting period of June 1, 1996 through September 30, 1996. Under the terms of the CANDO agreement, Respondent was required to submit separate reports for the periods of June 1, 1996 through July 31, 1996 and August 1, 1996 through September 30, 1996. c) AA/NA Attendance Reports for the period from July 1, 1996 through September 17, 1996. Under the terms of the CANDO agreement, Respondent was required to submit separate reports for the periods from June 1, 1996 through July 31, 1996, and August 1,1996 through September 30, 1996. d) Self Report for the reporting period from April 1, 1996 through May 31, 1996, which was due by May 31, 1996.

20. On or about September 30, Ms. Smith had a conversation with Respondent wherein Respondent admitted that the positive drug screen results obtained by YRMC for alcohol use was valid and that she had relapsed on alcohol. 21. On or about October 10, 1996, the Board received Respondent’s Self Report for the period ending September 30, 1996. According to the reports submitted, Respondent did not attend all required meetings in August and September. Respondent indicated that she attended counseling only once a month instead of the required weekly sessions. 22. On or about October 16, 1996, Respondent’s drug screen results were negative. The laboratory did note that Creatinine and specific gravity were below acceptable limits. The laboratory suggested recollection of Respondent’s specimen. 23. On or about December 16, 1996, the Board received reports from Respondent for the reporting period from October 1, 1996 through November 30, 1996 which, under the terms of the CANDO agreement, were required to be submitted by November 30, 1996. 24. Respondent’s AA/NA Attendance Report for the period from September 17, 1996 to November 30, 1996 reflect that Respondent attended 30 meetings. The minimum number of meetings required by CANDO for that period was 24 meetings. 25. On or about December 27, 1996, Respondent signed an Addendum to her CANDO agreement which required, among other things, additional treatment, monitoring and the continuing submission of documentation to CANDO that validated Respondent’s ongoing compliance. 26. On or about January 14, 1997, Respondent began employment with Palm View Rehabilitation and Care Center. 27. On or about February 14,1997, the Board received a Self Report from Respondent for the reporting period from December 1, 1996 through January 31, 1997 which, under the terms of the CANDO agreement, was required to be submitted by January 31, 1997. The last page of that report contains Respondent’s handwritten note which reads:

“October 1st. I was wondering when can I apply to be released from narcotic restriction and 2 random drug screens a month?”

28. Respondent failed to submit an AA/NA Attendance Report for the reporting period from December 1, 1996 through January 31, 1997. According to the report submitted on or about February 14, 1997, Respondent did not attend all required meetings. 29. On or about April 28, 1997, Respondent was required to submit to a random urine drug screen. Respondent failed to submit to the drug screen as required by her CANDO agreement and addendum. 30. On or about May 8, 1997, the Board received a Self Report and an AA/NA Attendance Report from Respondent for the reporting period from February 1, 1997 through March 31, 1997 which, under the terms of the CANDO agreement and addendum, were required to be submitted by March 31, 1997. The AA/NA Attendance Report indicates that Respondent did not attend all required meetings. 31. On or about June 20, 1997, the Board received a Self Report and an AA/NA Attendance Report from Respondent for the reporting period from April 1, 1997 through May 31, 1997 which, under the terms of the CANDO agreement and addendum, were required to be submitted by May 31, 1997. The AA/NA Attendance Report was not completed by Respondent’s sponsor. 32. On or about November 11, 1997, Respondent was required to submit to a random urine drug screen. Respondent failed to timely submit to the drug screen as required by her stipulated agreement and addendum. She submitted to the drug screen the next day. Respondent is found to have had insufficient justification for not leaving her employment to timely submit to the drug screen. 33. On or about November 17, 1997, Ms. Smith sent Respondent a notice of her unacceptable attendance in the nurse recovery group meetings for the month of October. 34. On or about November 20, 1997, the Board received Self Reports and AA/NA Attendance Reports from Respondent for the reporting periods from June 1, 1997 through July 31, 1997, and August 1, 1997 through September 30, 1997, which, under the terms of the CANDO agreement and addendum, were required to be submitted by July 31, 1997 and September 30, 1997, respectively. According to the reports submitted, Respondent did not attend all required meetings in June and July, 1997. 35. On or about November 25, 1997, CANDO consultant Smith received information that co-workers of Respondent expressed concerns that Respondent demonstrated poor concentration and was “nodding off” while on duty. 36. On or about November 26, 1997, Respondent was required to submit to a urine drug screen. The drug screen results were positive for meperidine. 37. On or about December 5, 1997, in a telephone conversation with Respondent’s employer, Board staff were informed that, despite the provisions of her CANDO agreement and addendum, Respondent had been working over 40 hours a week throughout her employment, and that she had gained access to controlled drugs prior to receiving written permission from the CANDO program. 38. On or about December 18, 1997, Respondent was required, pursuant to the terms of her agreement and addendum, to undergo a relapse evaluation and to submit the results and recommendations for treatment, if any, to the CANDO program. Respondent failed to comply and did not obtain such an evaluation. 39. On or about February 23 and March 1998, Respondent was sent notices from the Board advising her of non-compliance with the provisions of the CANDO agreement and addendum including, but not limited to, lack of documentation and attendance at AA/NA and nurse recovery group sessions, submission of self reports, and participation in relapse prevention evaluation 40. On or about March 31, 1998, the Board received Self Reports and AA/NA Attendance Reports from Respondent for the reporting period from October 1, 1997 through November 30, 1997, and December 1, 1997 through January 31, 1998 which, under the terms of the CANDO agreement and addendum, were required to be submitted by November 30, 1997 and January 31, 1998 respectively. According to those reports submitted, Respondent did not attend all required meetings in October, November and December. In Respondent’s letter to Board staff sent with those reports, Respondent admitted that the reports were submitted “very late”. 41. On or about April 8, 1998, Respondent again denied any chemical relapse to Consultant Smith. Respondent submitted past due AA/NA and self reports but failed to submit evidence of having undergone the requested relapse evaluation. 42. On or about April 9, 1998, Respondent was discharged from the CANDO program for her non-compliance with the agreement signed on February, 5, 1996. A complaint against Respondent’s nursing licenses was also filed on that date. 43. The Board is found to have had reasonable cause to require that Respondent undergo a relapse evaluation. 44. On May 21, 1998, the Board, in open meeting, reviewed the complaint against Respondent and directed Consultant Smith to offer Respondent a Consent Agreement in lieu of a hearing on the complaint. Respondent declined to sign the Consent Agreement.

CONCLUSIONS OF LAW

1. The Board has the authority, pursuant to A.R.S. §§ 32-1606, 32-1663 and 32-1664, to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to -1667. 2. Pursuant to the provisions of A.R.S. § 32-1664(F), the Board had the authority to require Respondent to undergo the relapse evaluation to determine her competence and conduct. 3. The Board’s requirement that Respondent undergo a relapse evaluation and its prosecution of the complaint against her was not, and is not, prohibited by either the Americans with Disabilities Act or the Arizona Civil Rights Act. 4. The conduct and circumstances described above constitute violations of A.R.S. § 32-1663(d), as defined in A.R.S. § 32-1601(10)(d), (h) and (k) (amended 1997); A.R.S. § 32-1601(13)(d), (g) and (I) (amended 1998); and A.A.C. R4-19-403(1), (5), (11), (12), (13), (14) and (25). 5. Pursuant to A.R.S. § 32-1663(D), the Board has the authority to discipline Respondent’s nursing licenses due to her above-describe acts of unprofessional conduct.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Professional Nurse License Number RN087183 and Practical Nurse License Number LP015858 be revoked on the effective date of the entered Order in this matter It is further recommended that the revocations of Respondent’s nursing licenses be stayed under the following terms and conditions:

I. On or before the effective date of the entered Order in this matter, Respondent must undergo a relapse evaluation, at her sole cost and expense and as approved by the Board, and submit the results of the evaluation to the Board for its review. II. Upon Respondent’s timely compliance with the above-described condition, the revocation of her nursing licenses would then be stayed for a period of 4 ½ years from the effective date of the entered Order in this matter and instead those licenses would be indefinitely suspended pending 18 consecutive months of compliance with the terms and conditions of the Consent Agreement presented to Respondent by the Board’s letter dated May 27, 1998, those terms and conditions shall be incorporated herein by reference. III. Upon successful completion of Respondent’s suspension, her nursing licenses would then be placed on formal disciplinary probation for months, subject to the above-described terms and conditions contained in the new Consent Agreement. IV. There shall be zero tolerance as to Respondent’s compliance with the terms and conditions of any such suspension and probation. Any violation by Respondent shall be deemed grounds for lifting the stay of the revocation of her nursing licenses. V. Upon the successful completion of the suspension and probation, then Respondent’s nursing licenses shall not be subject to further disciplinary penalties as to this disciplinary action.

It is further recommended, in addition to the above-provided disciplinary penalties, that Respondent be assessed a civil penalty in an amount equal to the Board’s cost to bring this matter through the administrative hearing process. That civil penalty shall be paid to the Board no later than one year from the effective date of the entered Order in this matter. Respondent’s failure to pay the entire amount of the civil penalty shall result in the automatic revocation of Respondent’s nursing licenses, effective on such deadline date. No future nursing licenses shall be issued to Respondent unless payment of any outstanding civil penalty is tendered to the Board. Done this day, November 27, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

State Board of Nursing Joey Ridenour, R.N., M.N. ATTN: Vicky Driver 1651 West Morten, Suite 150 Phoenix, AZ 85020

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826