ALJDEC

99A-970120-NUR · State Board of Nursing · 1999-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: The hearing commenced on October 1, 1999, and was concluded on October 14, 1999. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Mona Peugh-Baskin. Respondent was represented by her attorney, Lawrence J. Rosenfeld, Esq. 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 Arizona State Board of Nursing (“Board”) has 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. Kelly Pickering (“Respondent”) holds practical nurse license number LP032408 and professional nurse license number RN101864 issued by the Board. 3. On December 11, 1996, Respondent applied to the Board for practical nurse licensure. 4. On January 14, 1998, Respondent and the Board entered into a Consent Agreement and Order No. 970120 (“Consent Agreement and Order”). The Consent Agreement and Order granted Respondent Practical Nurse License No LP032408 and placed that license on probation for 36 months. 5. In the Consent Agreement and Order, the Board made the following Findings of Fact:

Finding of Fact No. 1: On December 11, 1996, Applicant filed an application for practical nurse licensure by examination with the Board.

Finding of Fact No. 2: Applicant has a 1986 conviction for solicitation to possess a narcotic drug, that was designated a misdemeanor on August 15, 1988. Applicant has a 1984 conviction for attempt to maintain a prostitution enterprise, that was designated a misdemeanor on April 11, 1988. According to Applicant, she has had no other convictions and has been licensed by the Department of Health Services as an Emergency Medical Technician, to work in pediatric behavioral/mental health, the Department of Public Safety as a private investigator, and the Arizona Racing Commission.

Finding of Fact No. 3: From July of 1995 to September of 1996, Applicant was employed at Meta (“Meta”) Services as a Psychiatric Technician.

Finding of Fact No. 4: In September of 1996, patient R.J., a psychotic schizophrenic who at the time was exhibiting delusions and hallucinations, filed a written complaint with ComCare stating that Applicant kissed him one night while he was at Meta. In his complaint, patient R.J. alleged that he and Applicant mutually caressed each other in a sexual manner.

Finding of Fact No. 5: Patient R.J. also alleged that Applicant visited him at his sister’s home after he left treatment without authorization. According to patient R.J.’s complaint, Applicant drank a beer during the visit. In September, 1996, Applicant was interviewed regarding R.J.’s complaint. Applicant admitted to visiting R.J. and drinking a beer during the visit.

Finding of Fact No. 6: According to Applicant, she encouraged R.J. to return to psychiatric treatment. R.J. refused and Applicant informed him that she could not help him and would have no further contact with him if he was not going to remain in treatment. R.J. attempted to contact Applicant several dozen times per day by phone after Applicant visited him. Applicant did not contact R.J. and placed a call rejection service on her phone to prevent R.J.’s calls. After being unable to reach Applicant, R.J. filed a complaint with ComCare. Applicant has consistently denied sexual contact of any sort or nature with patient R.J. or any other patient.

Finding of Fact No. 7: Following patient R.J.’s complaint to ComCare about his relationship with Applicant, patient R.J. overdosed on his psychiatric medications.

Finding of Fact No. 8: On May 13, 1997, Applicant underwent a psychological evaluation with Dr. Marilyn Kieffer-Andrews. Dr. Kieffer-Andrews’ assessment states that Applicant’s history and personality profile “may compromise her ability to consistently apply the knowledge she has gained from previous inappropriate, illegal or unethical actions to new situations”. Dr. Kieffer- Andrew’s (sic) assessment states that “Ms. Pickering did not have a clear mental illness, personality disorder, or mental incapacity that would prevent her from performing duties as a registered nurse”. Dr. Kieffer-Andrews recommended that Kelly Pickering be employed in situations where she is supervised and has resources to provide information and support or is directly accountable for her decisions and actions.

6. The Board concluded as a matter of law that the “conduct and circumstances described in the Findings of Fact constituted violations of A.R.S. §32-1601(13)(b)(d)(j) amended 1997”.[1] 7. By entering into the Consent Agreement and Order, Respondent acknowledged and accepted the Board’s Findings of Facts and Conclusions of Law. 8. By entering into the Consent Agreement and Order, Respondent waived her rights “to a hearing, rehearing, appeal or judicial review relating to the Order except in the limited circumstance specified in Paragraph 15 of this Order”.[2] 9. Respondent acknowledged understanding that the admissions contained in the Consent Agreement and Order could be used for the “purposes of determining sanctions in any further disciplinary matter”. 10. Respondent was represented by her prior attorney[3] during the negotiations resulting in the Consent Agreement and Order and at the time she executed the document. 11. The Board, with the consent of Respondent, then issued the following Order:

a) Applicant’s consent to the terms and conditions of the Order and waiver of public hearing are accepted. b) Applicant’s license is placed on probation for 36 months. Prior to the termination of probation, Applicant shall work as a practical nurse for a minimum of 36 months (not less than 16 hours/week).

12. The Consent Agreement and Order contains the terms of Respondent’s probation, which are found on pages 6 through 12 and are incorporated herein by reference. 13. On January 7, 1997, Respondent applied to the Board for licensure as a professional nurse. 14. On February 25, 1998, the Board issued the First Amendment to Consent Agreement and Order No. 970120 (“amendment”), which placed Respondent’s professional nurse license on probation subject to the terms and conditions of the Consent Agreement and Order, including the terms of probation. 15. Term 2 of Respondent’s terms of probation provides:

All current and future settings in which the Applicant practices nursing shall be promptly provided with a copy of the Findings of Fact, Conclusions of Law and Order, and informed of the probationary status. Within ten days of Applicant’s employment on probationary status, Applicant shall cause the immediate supervisor to inform the Board, in writing and on employer letterhead, acknowledging receipt of a copy of the Order and the ability to comply with the conditions of probation. In the event Applicant is attending a nursing program, Applicant shall provide a copy of the Order to the Program Director. Applicant shall cause the Program Director to inform the Board, in writing and on school letterhead, acknowledging receipt of a copy of the Order and ability of the program to comply with the conditions of probation during clinical experiences.

Respondent is found to have, and to have had, an affirmative obligation to comply with those notification requirements. 16. From on or about July 7, 1998, to on or about July 15, 1998, Respondent was employed at Health Services Advisory Group, Inc. (“Health Services”) as a registered nurse (“R.N.”) to perform medical review/abstraction. Respondent failed to provide Health Services with a copy of the Consent Agreement and Order, as amended. 17. It is determined that the terms and conditions of the Consent Agreement and Order, as amended, required Respondent to comply with Term 2 of the terms of probation with respect to her employment at Health Services. 18. From on or about September 14, 1998, to on or about October 25, 1998, Respondent was employed as an R.N. at Casa Blanca Medical Group (“Casa Blanca”) in Mesa, Arizona. 19. On or about October 2, 1998, Board staff was contacted by the Health Connection Department Manager at Casa Blanca. The manager informed Board staff that Respondent had been employed by Casa Blanca since September 14, 1998, and that Respondent had failed to provide the manager with a complete copy of the Consent Agreement and Order, as amended. Respondent did provide the manager with a document containing three of the 19 terms of Respondent’s probation. In the document Respondent submitted to Casa Blanca, terms of probation numbers 2, 3 and were unnumbered, the final sentence of term 2 was missing, and the document had different spacing from the original Consent Agreement and Order, as amended. 20. On September 30, 1998, the Board received a letter from Respondent and Casa Blanca’s manager requesting a modification to the terms of Respondent’s probation to allow her to accept full-time employment working the evening shift from 2:30 p.m. to 1:00 a.m. Accepting employment during that shift would leave Respondent without a preceptor from 11:30 p.m. to 1:00 a.m. The Board did not approve Respondent’s request. 21. On or about October 2, 1998, the Board’s assigned Nursing Consultant faxed Casa Blanca’s manager a copy of Respondent’s Findings of Facts and Conclusions of Law contained in the Consent Agreement and Order, as amended. 22. On or about November 2, 1998, the Board received a letter from Respondent. In that letter Respondent explained her understanding of her obligations under the Consent Agreement and Order, as amended. Specifically, she wrote,

Today (October 26, 1998) I went back and read everything I was given back in January, and found on the Nurse’s Instruction Sheet that it is my responsibility to give a copy of my agreement to the employer within 10 days of employment…I now understand I am to provide copies of all documents within 10 days of the date of hire rather than the date of employment.

23. On or about December 10, 1998, the Board reviewed allegations of noncompliance by Respondent’s failure to provide her entire Consent Agreement and Order, as amended, to employers at Health Services and Casa. No stipulated resolution was reached and the matter was later transferred to the Board’s Hearing Department, pursuant to the December 10, 1998, Board vote. 24. As required by the second paragraph of term 2 of Respondent’s terms of probation,

Applicant shall practice only in the presence of an R.N. preceptor after beginning employment. Director (sic) supervision is defined as having a registered nurse present on the same unit with the Applicant whenever Applicant is practicing as a practical nurse. This registered nurse shall have read the Applicant’s Findings of Fact, Conclusions of Law and the Order, and the registered nurse shall provide input on Applicant’s employer evaluations to the Board. The preceptor may delegate preceptor responsibilities to one other registered nurse whose name shall be provided to the Board…

The above requirements were later expanded by the amendment to the Consent Agreement and Order to include Respondent’s professional nursing license. 25. On or about March 11, 1999, the Board received written notification from Linda Justice, Administrative Assistant, that Respondent was employed by Dr. Paul Blumberg in the capacity of Operating Room circulator/recovery room nurse. When contacted by Board staff on or about March 16, 1999, to ascertain if an R.N. preceptor supervision was in place for Respondent as required by the Consent Agreement and Order, as amended, Justice reported that Respondent was being supervised by Dr. Blumberg. 26. Dr. Blumberg, a physician, does not presently meet the requirements for the R.N. preceptor supervision required by the Consent Agreement and Order, as amended. 27. On or about March 17, 1999, Justice contacted Board staff to clarify if a certified registered nurse anesthetist (“CRNA”) working in Dr. Blumberg’s office could provide R.N. preceptor supervision. When Board staff attempted to review the wording from the Consent Agreement and Order, as amended, with Justice, Justice reported that the wording in the documentation supplied to her by Respondent was different from the wording read by Board staff from the Consent Agreement and Order, as amended. Upon further review and comparison, Justice stated that the documentation supplied to her by Respondent was 9 pages in length, while the Consent Agreement and Order entered by the Board was 13 pages in length. Board staff requested that Justice immediately fax to the Board a copy of the Consent Agreement and Order supplied to her by Respondent. In a later conversation on that same day, Justice told Board staff that she had spoken with Respondent, and Respondent had reported that she had provided Dr. Blumberg with what an attorney told her to provide. 28. The purported Consent Agreement and Order provided to Justice by Respondent differs from the actual Consent Agreement and Order in the following areas:

a) different type styles b) omissions or differences in wording in the first two initial paragraphs and six Findings of Fact c) different dates that Respondent signed the agreement d) an omission of the Board Executive Director’s official stamped signature replaced by wording “Sig on file” e) omissions and alteration in three of the terms of probation f) omission of 15 terms of probation

29. In the documentation that Respondent provided to Dr. Blumberg, Respondent deleted the title “Consent Agreement” and the two paragraphs that follow the title. 30. In Finding of Fact No. 2 in the documentation that Respondent submitted to Dr. Blumberg, Respondent had deleted a portion of that Finding contained in the official Consent Agreement and Order. She deleted the beginning of the third sentence which reads: “According to Applicant, she”. 31. In Finding of Fact No. 4 of the documentation supplied by Respondent, she deleted and substituted wording in the first sentence and completely deleted the second sentence written in the official Consent Agreement and Order. The Respondent added the following language:

In September of 1996, patient R.J., a psychotic schizophrenic who at the time was exhibiting delusions and hallucinations, filed a written complaint with ComCare alleging that Applicant sexually harassed him while he was at Meta.

32. Respondent altered Finding of Fact No. 5 of the Consent Agreement and Order by adding the following underlined language to the fourth sentence:

Patient R.J. also alleged that Applicant visited him at his sister’s home after he left treatment without authorization. According to patient R.J.’s complaint, Applicant drank a beer during the visit. In September 1996, Applicant was interviewed regarding R.J.’s complaint. Applicant admitted to visiting R.J. upon the request of R.J.’s sister, and drinking a beer during the visit.

33. Respondent altered Finding of Fact No. 6 of the Consent Agreement and Order by adding language to the first sentence and deleting the entire last sentence. Respondent modified and added the following underlined wording to the first sentence:

According to Applicant, she visited R.J. for the purpose of encouraging R.J. to return to psychiatric treatment.

34. In Finding of Fact No. 7 in the documentation submitted by Respondent to Dr., Blumberg, Respondent completely deleted the Finding of Fact as written in the official Consent Agreement and Order. She replaced the deleted language with the wording from the sixth and final sentence of the official Finding of Fact No. 6. The altered language reads:

Applicant has consistently denied sexual contact of any sort or nature with patient R.J. or any other patient.

35. In the documentation supplied to Dr. Blumberg, Respondent deleted the following underlined wording from the official Finding of Fact No. 8:

On May 13, 1997, Applicant underwent a psychological evaluation with Dr. Marilyn Kieffer-Andrews. Dr. Kieffer-Andrews’ assessment states that Applicant’s history and personality profile may compromise her ability to consistently apply the knowledge she has gained from previous inappropriate, illegal or unethical actions to new situations. Dr. Kieffer-Andrew’s (sic) assessment states that Ms. Pickering did not have a clear mental illness, personality disorder, or mental incapacity that would prevent her from performing duties as a registered nurse. Dr. Kieffer-Andrews recommended that Kelly Pickering be employed in situations where she is supervised and has resources to provide information and support or is directly accountable for her decisions and actions.

36. The Consent Agreement and Order indicates that Respondent signed it on January 14, 1998, and it bears the official stamped signature of Joey Ridenour, R.N., M.N., the Executive Director of the Board. The documentation provided by Respondent to Dr. Blumberg indicates that Respondent signed it on November 20, 1997, and in the signature space for Director Ridenour, a handwritten note reads: “Sig of File”. 37. In term 1 of the terms of probation set forth in the documentation submitted by Respondent to Dr. Blumberg, Respondent substituted the word “certificated” for the word “certificates” as provided in the Consent Agreement and Order. 38. Respondent also deleted the following language of term 2 of Respondent’s probation:

In the event Applicant is attending a nursing program, Applicant shall provide a copy of the Order to the Program Director. Applicant shall cause the Program Director to inform the Board, in writing and on school letterhead, acknowledging receipt of a copy of the Order and ability of the program to comply with the conditions of probation during clinical experiences.

39. Respondent altered term of probation number 4 of the Consent Agreement and Order by reversing paragraphs 1 and 2, changed a word in the second sentence of paragraph 2, and deleted a word and phrase in the final sentence of paragraph 4. 40. The documentation Respondent presented to Dr. Blumberg does not contain the following remaining terms of probation contained in the Consent Agreement and Order:

a) 5. Acceptable Hours of Work b) 6. Registry Work Prohibited c) 7. Out-of-State Practice/Residence d) 8. Drug use exception e) 9. Biological Fluid Testing f) 10. Release of Information Forms g) 11. Interview with the Board or its Designee h) 12. Renewal of License i) 13. Change of Employment/Personal Address/Telephone Number j) 14. Obey All Laws k) 15. Costs l) 16. Violation of Probation m) 17. Voluntary Revocation of License n) 18. Reevaluation of Conditions o) 19. Completion of Probation

41. In a telephone interview with Board staff on or about March 18, 1999, Respondent reported that she had provided Dr. Blumberg’s office with only what her attorney had instructed her to provide: Findings of Fact, Conclusions of Law and Order. Respondent further reported that she did not have to provide the terms of probation. When asked by Board staff to provide the name of the attorney who had given her that advice, Respondent stated she did not have an attorney, but was actually given such advice by a paralegal she had met on a ski trip and who she knew only by her first name. 42. During the meeting on or about April 8, 1999, with Board staff, Respondent and her present attorney, Respondent admitted working from March 1, 1999, through March 16, 1999, as a circulator nurse under the supervision of Dr. Blumberg without the presence of an R.N. preceptor, in violation of the terms of the Consent Agreement and Order, as amended. 43. During the meeting on April 8, 1999, Respondent admitted that she had retyped the Consent Agreement and Order. Respondent initially stated that she included only the necessary components so that her retyped agreement “would look good” when she had to present it to an employer. Respondent also reported that, other than typographical errors, the wording in the Consent Agreement and Order and her typed agreement were identical. 44. Later in the April 8, 1999, meeting, Board staff reviewed and compared the Consent Agreement and Order and Respondent’s generated agreement. Board staff enumerated the differences between the two documents. After the review, Respondent admitted that she had changed the wording in her retyped document and wrote “Sig on File” in the space for the Board Executive Director’s signature. Respondent explained that she had applied for over 300 jobs without obtaining employment in nursing. Due to this, Respondent reported she experienced financial difficulties, including declaration of bankruptcy. Respondent admitted at the time she retyped the Consent Agreement and Order she was desperate, and that she had to do anything possible to obtain employment. Respondent admitted to Board staff that her attorney was unaware, prior to the meeting with Board staff, that Respondent had altered the content from the Consent Agreement and Order to her retyped agreement. 45. The Consent Agreement and Order consists of 13 pages. The amendment to it consists of one page. It is determined that the spirit and intent of the Consent Agreement and Order, as amended, required Respondent to present all 14 pages to her employers rather than unauthorized edited versions of those documents. 46. At no time did Respondent ever have the Board’s permission to change or modify the official Consent Agreement and Order, as amended. 47. On or about April 22, 1999, the Board reviewed the allegations of Respondent’s noncompliance with the terms and conditions of the Consent Agreement and Order, as amended. Respondent, with the assistance of her attorney, addressed the Board and admitted she had changed the language in the Consent Agreement and that she changed the language to soften the impact to her employer. Respondent stated that her conduct was foolish. 48. Respondent’s above described acts and omissions are deemed unprofessional conduct which pose a risk to the public health and safety.

CONCLUSIONS OF LAW

1. The conduct and circumstances set forth in the above Findings of Facts constitute violations by Respondent of A.R.S. §32-1663(D), as defined in A.R.S. §32-1601(13)(d), (g), (h) and (I) (amended 1998), A.R.S. §32- 1601(14)(d), (g), (h) and (I) and A.A.C. R4-19-403(1). 2. The evidence of record supports the revocation of Respondent’s professional nursing license. 3. The evidence of record supports the revocation of Respondent’s practical nursing license. 4. The revocation of Respondent’s professional and practical nursing licenses should not serve as a permanent ban from the nursing profession. However, she is going to have to establish sustained and effective rehabilitation before being permitted to return to the nursing profession. 5. The Board has the authority to impose a civil penalty for Respondent’s unprofessional conduct described in the above Findings of Facts. A.R.S. §32-1663(D)(2). The Board may impose a civil penalty, not to exceed $1,000.00, either singly or in combination with any disciplinary action available to the Board. A.R.S. §32-1606(C)(5). Respondent’s acts and omissions described in the above Findings of Facts warrant the imposition of a civil penalty in this matter. . . . . . . RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Professional Nurse License No. RN101864 be revoked. It is further recommended, in addition to the revocation of Respondent’s professional nurse license, that her Practical Nurse License No. LP032408 be revoked. It is further recommended that Respondent be permitted to apply to the Board for a professional nurse license and/or a practical nurse license beginning one year from the date of revocation of her current licenses. It is further recommended, in addition to the above-provided disciplinary penalties, that Respondent be assessed a civil penalty in the amount of $1,000.00. No application for nursing licensure shall be accepted by the Board from Respondent unless the civil penalty has been paid in full to the Board. Done this day, November 3, 1999

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of November, 1999, to:

Joey Ridenour, R.N., M.N. Executive Director State Board of Nursing ATTN: Audrey Rath, R.N.,M.S. 1651 West Morten, #150 Phoenix, AZ 85020

By _______________________________ ----------------------- [1] Conclusion of Law No. 2 of the Consent Agreement and Order [2] Paragraph 15 of the Consent Agreement and Order provides that “Applicant shall bear all costs of complying with this Order”. [3] Gordon Lewis, Esq.

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