ALJDEC

00A-9912021-NUR · State Board of Nursing · 2000-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2000

APPEARANCES: Applicant appeared on his own behalf; Assistant Attorney General Mona Peugh-Baskin appeared on behalf of the State of Arizona, Arizona State Board of Nursing.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Albert Urbina (Applicant) appeals from the denial of his application for certification as a certified nursing assistant (CNA) by the Arizona State Board of Nursing (Board). The Board denied the application based on Applicant’s lack of full disclosure of his criminal history and other concerns. The parties presented evidence and testimony at the hearing and, based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order upholding the Board’s certification denial. FINDINGS OF FACT 1. In December 1999, Applicant filed with the Board an Application for Certified Nursing Assistant by Examination. (Exhibit NUR-1 through NUR- 3.) On the second page of the application, the following question appeared: Have you ever been convicted, entered a plea of guilty, nolo contendere or no contest, or have you ever been sentenced, served time in jail or prison, or had probation or sentence deferred in any misdemeanor or undesignated offense other than a minor traffic violation? Please be advised that a DUI is not a minor traffic violation.

(Emphasis in original.) Applicant answered “yes” and attached a guilty plea and sentencing order from a 1993 misdemeanor DUI conviction. (Exhibit NUR-4 and NUR-5.) 2. He also submitted, in February 2000, a “Respondent Questionnaire” form that is designed to give applicants an opportunity to explain and fully disclose any information about personal background. (Exhibit NUR-6 through NUR-9.) Applicant stated that “papers” would be sent by his current employer, Kivel Campus of Care (Kivel). He also stated: “I don’t know why this is happening but I understand. All I can say is that I told the truth about my past. I did do my time. I paid what I had to to the people that I caused damage to. You have my papers showing what I’ve done. I’ve found a life I love in what I do. All I need is for you to give me a chance.” (Exhibit NUR-8.) 3. Board staff conducted a background check on Applicant and uncovered other information, including another misdemeanor DUI conviction that Applicant did not disclose on his application. That background check shows the following events. 4. In July 1991, Applicant pleaded guilty to and was convicted of Driving While Under the Influence (DUI), a misdemeanor offense. Applicant was fined, sentenced to one day in jail, and ordered to get screened for alcohol abuse and comply with recommendations from that screening. (Exhibit NUR-21 through NUR-22.) 5. In June 1993, Applicant pleaded guilty to and was convicted of misdemeanor DUI with a prior DUI within 5 years, and no proof of insurance. The court sentenced Applicant to 3 years probation with 65 days in jail, imposed a significant fine, ordered Applicant to pay restitution to a passenger of a vehicle he hit while DUI, and revoked Applicant’s driver’s license. (Exhibit NUR-36 through NUR-38.) Again, the court ordered Applicant to alcohol abuse screening and possible treatment. There are no records in evidence showing successful completion of probation or any of the other terms. 6.. In February 1994, Applicant was once again arrested, this time for aggravated DUI, which is a felony. The police records show, by a preponderance of reliable evidence, that Applicant, for the third time, was driving drunk and without a license. (Exhibit NUR-39 through NUR-43.) This shows utter disregard for the laws of this State and the safety of others. According to Arizona Department of Transportation, Motor Vehicle Division (MVD) records, Applicant was found to be responsible for driving with a suspended or revoked license in April 1994. (Exhibit NUR-11.) There is no evidence showing any further information regarding that incident. 7. When Applicant applied for employment with Kivel in September 1999, he failed to answer a question on the application that asked, “Have you ever been convicted of a felony and/or misdemeanor?” (Exhibit NUR-44 through NUR-46.) Also, he answered “No” to the question, “Has your [driver’s] license been revoked in the last five years?” These answers were clearly false and deceptive. In March 2000, Kivel terminated his employment because of absenteeism and Applicant’s problems getting Board certification. (Exhibit NUR-47.) 8. In March 2000, Applicant spoke with a Board investigator about his application. During that conversation he lied. He told Vicki Johansen that he had only one DUI conviction. Later in the conversation, he admitted to more than one. He also told the investigator that he had a long history of alcohol use (beer), which at times has been quite heavy. 9. In June 2000, Applicant was assessed for substance abuse by Certified Substance Abuse Counselor Melanie Wall at the request of Board staff. (Exhibit NUR-48 through NUR-49.) Wall found that Applicant meets the criteria for a diagnosis of Alcohol Dependence and that he continues to use alcohol despite recurring problems effecting his social activities and occupational goals. In fact, Applicant used a significant quantity of alcohol the night before the assessment. Wall found that Applicant “is in denial regarding the severity of his alcohol dependency problem.” She recommended intensive outpatient treatment and when she mentioned it to him he became defensive and angry. Wall concluded that Applicant is not able to work safely as a nursing assistant. 10. A recurring theme throughout the documentary evidence is Applicant’s consistent tendency to minimize his responsibility for his actions. 11. In August 2000, the Board denied Applicant’s application because he had committed unprofessional conduct by not fully disclosing his criminal history on the application and he had engaged in conduct that was or could be harmful to patients or the public. (Exhibit NUR-50 through NUR- 54.) For some reason not evident in this record, the Board has never alleged Applicant’s misdemeanor convictions as grounds for denial. 12. At the hearing, Valerie Smith, the Board’s impaired practice consultant, testified credibly about Applicant’s chemical dependency and his failure to control it. She is a Masters-level nurse with special education and experience in substance abuse and dependence. She agreed with Wall’s findings and recommendation, and opined that Applicant is denying his dependence and failing to take steps for recovery. In her opinion, which this tribunal finds credible, Applicant is not safe to practice as a nursing assistant. 13. Applicant testified at the hearing. He admitted to the evidence showing his criminal history and employment, but stated that he was not trying to be deceptive. He blamed Kivel for the failure to disclose his full history on his CNA application, thus accenting his tendency to minimize responsibility for his actions. CONCLUSIONS OF LAW 1. The Board has discretion to deny an application if an applicant has committed unprofessional conduct as defined by statute. Arizona Revised Statutes (A.R.S.) § 32-1663(A). Unprofessional conduct is defined in A.R.S. § 32-1601(14)(a) through (k) (1999 Supp.). 2. Applicant has committed unprofessional conduct under subsection (a) of the statute, obtaining or attempting to obtain a license by fraud or deceit, by failing to disclose his 1991 DUI conviction on the application. 3. Applicant has committed unprofessional conduct under subsection (d) of the statute, which prohibits any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public, by failing to seriously seek recovery despite adverse consequences of his alcohol dependence and by remaining a danger to patients if he were to practice. 4. Applicant has committed unprofessional conduct under subsection (h) of the statute, which prohibits deceiving or defrauding the public, by lying about his driver’s license on his Kivel application and by failing to answer about his criminal history on his Kivel application. 5. The Board has grounds to deny Applicant’s application for a CNA certificate. RECOMMENDED ORDER Based on the findings and conclusions above, IT IS RECOMMENDED that the Arizona State Board of Nursing uphold its denial of Albert A. Urbina’s December 1999 application for certification as a nursing assistant.

Done this 9th day of November 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of November 2000, to:

Joey Ridenour, Executive Director ATTN: Audrey Rath Arizona State Board of Nursing 1651 West Morten, #150 Phoenix, AZ 85020

By ___________________________ -----------------------

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