ALJDEC

00A-NOD21-ACC · Department of Public Safety - Adult Care Clearance · 2000-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2000 APPEARANCES: Complainant : Sharon Summerford appeared at the hearing pro se. Respondent : The Department of Public Safety (DPS) was represented by Lisa Stelly, Assistant Attorney General, State of Arizona; Mike Timmerman, DPS Application Unit Supervisor gave testimony. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Having heard the testimony presented at the hearing and having examined the evidence and considered the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Based upon its review, the Department of Public Safety denied Appellant’s October 12, 1999 application for registration with the Department of Public Safety for work as a Certified Nurse Assistant in a residential care institution, home health agency or nursing home. 2. Appellant timely filed her appeal and a hearing was conducted before the Office of Administrative Hearings on March 10, 2000. 3. The issue addressed by this appeal concerns whether the Department properly denied Ms. Summerford’s application in accordance with applicable law. 4. Appellant, a 45 year-old female, has enjoyed working in the residential nursing care field, having some experience serving at a long term care nursing facility. Ms. Summerford is currently employed by the Samaritan Healthcare System and works at the Good Samaritan facility in Phoenix, Arizona. 5. On the Department’s Notarized Application To Work With Vulnerable Adults In A Residential Care Institution Home Health Agency Nursing Care Institution Pursuant To A.R.S ( 36-411, an applicant is asked whether the applicant has ever been convicted of any of the enumerated offenses. Among the 23 offenses listed is included fraud and fraudulent schemes (#21). Appellant affixed her signature to the Notarized Application on October 12, 1999, while working at Good Samaritan, attesting that she had not been convicted of one or more of the crimes set forth therein. Exhibit A. 6. A Department of Public Safety criminal records check, conducted on November 2, 1999, revealed that Ms. Summerford has a felony conviction for fraud on record. The conviction was entered on April 14, 1994, upon a guilty plea, resulting in a sentence of three years probation. 7. Appellant stipulates that she entered a plea of guilty to the charge and was placed on probation as a result of her plea. Ms. Summerford further notes that she was thereafter required to spend one month in the Maricopa County Jail, having broken the terms of the probation. Ms. Summerford successfully completed the terms of probation after it had been reinstated. 8. As a condition of employment in a residential care institution, nursing care institution or home health agency, employees and prospective employees are required to submit to a fingerprinting for use by the Department of Public Safety which, in turn, runs a prior criminal history records check, along with that of the Federal Bureau of Investigation, to ascertain whether the applicant/employee satisfies the condition set forth at A.R.S ( 36-411 (A) that such applicant/employee not have been convicted of one of the enumerated crimes. Further, the statute requires at section (C) that all applicants/employees submit a notarized avowal indicative whether the individual has a relevant conviction in Arizona or elsewhere. 9. Section (D) of A.R.S ( 36-411 prohibits a residential care institution, nursing care institution or home health agency from employing any individual who has been convicted of one of the specified offenses or is awaiting a trial thereon. 10. Except for two specific offenses, neither of which being relevant to immediate consideration, the language of the statute does not appear to allow for a mitigation based upon the remoteness of time from the commission of the offense(s) to the date of application. Further, the statute does not distinguish felonies from misdemeanors. 11. A.R.S ( 36-411 (D) (21) identifies fraud and fraudulent schemes as disqualifying offenses. The records check evinces that it was a charge of fraud to which the applicant entered her plea. Exhibit B.

CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S ( 41-1092. 2. The burden of proof at an administrative hearing concerning a license denial falls to the applicant. A.R.S. ( 41-1065. While this matter involves registration rather than licensing, the issues are similar. It is the burden of the Agency/Department, on the other hand, to base its denial decision upon substantial and competent evidence. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Ms. Summerford has brought this appeal in an effort to demonstrate that the Department of Public Safety has implicitly and improperly denied her an opportunity for employment in her field of choice as a Respiratory Therapist. (Appellant’s request for hearing, January 3, 2000) Exhibit D. 3. Pursuant to A.R.S ( 36-411 (D), a residential care institution, nursing care institution or home health agency is prohibited from employing or contracting with an individual to provide such care one convicted of one of the enumerated criminal offenses. Among the offenses are identified fraud and fraudulent schemes. 4. The Arizona legislature does not appear to have afforded the Director of the Department of Public Safety discretion in this matter. Respondent has submitted competent evidence that Appellant has a conviction on her record, the offense included among those proscribed by A.R.S ( 36- 411 (D). Ms. Summerford does not dispute the fact of the conviction.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Director of the Department of Public Safety deny this appeal, the Department having satisfied its burden of demonstration that Appellant has a conviction on her record which would disqualify her from registration as an employee in a residential care center as required by A.R.S ( 36-411. Set forth this 14th day of March in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Public Safety - Adult Care Clearance Dennis A. Garrett Mail Code 2300 Arizona Department of Public Safety Applicant Team #2/Attn. Mike Timmerman Post Office Box 6638 Phoenix, AZ 85005

By ___________________________

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