ALJDEC decisions subject to certification as final

07A-0602118-NUR-res · State Board of Nursing · 2008-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2008 at 9:00 a.m. APPEARANCES: The Arizona State Board of Nursing appeared through Kim Zack, Esq., Assistant Attorney General; Respondent Peter Lynn Mosher appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona State Board of Nursing (“the Board”) has been authorized to regulate and control the practice of nursing in the State of Arizona pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664. The Board also has been authorized to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to 32-1667. 2. The Board granted Respondent Peter Lynn Mosher’s Application for Certified Nursing Assistant by Endorsement and issued Nursing Assistant Certificate No. CNA818947666. Mr. Mosher’s certificate expired on July 1, 2007. 3. On November 29, 2007, the Board issued a Complaint and Notice of Hearing in this action, which set forth certain factual allegations and, based on those allegations, charged Mr. Mosher with violations of the Nurse Practice Act, A.R.S. § 32- 1663(F) (as defined by A.R.S. § 32-1601(16)(a), (d), (g), (h), and (j)) and A.A.C. R4-19-814(B)(1), (2), (6), (9), (11), (21), (22), (23), (24), (25), (26), and (29), which charged violations furnished cause to sanction his Nursing Assistant Certificate under A.R.S. §§ 32-1663 and 32-1664. 4. On December 26, 2007, the Board received Mr. Mosher’s answer to the Complaint, which denied any wrongdoing or statutory violations and affirmatively alleged that all the complaints were made by Black or Mexican complainants because Mr. Mosher is a white male. 5. A hearing was held on January 31, 2008. The Board had admitted into evidence nineteen exhibits and presented the testimony of three witnesses: Betty Nelson, RN, MS, the Board’s Nurse Practice Consultant; Mary Alarcon, CNA, Mr. Mosher’s co-worker at Ridgecrest Healthcare (“Ridgecrest”); and Troy Lorenz, RN, the Director of Nursing (“DON”) at Life Care Center of Paradise Valley (“Life Care”) while Mr. Mosher was employed there. Mr. Mosher offered into evidence one exhibit and testified on his own behalf. Hearing Evidence The Complaint 6. The Board received a complaint from the Arizona Department of Health Services (“ADHS”), which was dated January 31, 2006, that it had investigated Mr. Mosher three times and that “the frequency of the alleged misconduct is suspicious, if not coincidental.” ADHS attached to the complaint its field reports of its investigations at Ridgecrest and Life Care (two incidents). 7. The complaint was assigned to Ms. Nelson to investigate. Ms. Nelson sent a copy of the complaint, along with the three ADHS field reports, to Mr. Mosher and requested his response. She also had subpoenas issued to ADHS and Mr. Mosher’s former employers. 8. Ms. Nelson testified that there was a six-month delay in informing Mr. Mosher of the complaint because he had moved and failed to provide his new address to the Board. 9. On February 2, 2006, according to the Board’s date-stamp, the Board received from Mr. Mosher’s a hand-written response, which he may have completed in Ms. Nelson’s office. Mr. Mosher stated that he had turned a resident, who was very combative, onto his side. The resident was covered in feces. A housekeeper had said that Mr. Mosher turned the resident too fast and was rough. Mr. Mosher stated that he had been a “nurse” for 40 years and no one had ever accused him of abusing a patient. The complaints had been made because he did not fit into any clique at the facility. He did not deserve the complaint. 10. Mr. Mosher did not address the other three incidents that ADHS investigated. He also did not ever complete a Board- issued investigative questionnaire on the Board’s form. 11. Ms. Nelson testified that, on August 14, 2007, she interviewed Mr. Mosher. She specifically asked him about whether he had ever been certified or worked in North Carolina. Mr. Mosher had denied ever living in North Carolina. He said he had never before been accused of patient abuse or neglect. According to Ms. Nelson, Mr. Mosher “spent most of the interview placing blame on others.” 12. Ms. Nelson testified that the Board looks for licensees to show that they are honest, trustworthy, patient, kind, and competent. In her investigation, Mr. Mosher had not demonstrated these qualities. It appears that he lied on his application for licensure by omitting his licensure and substantiated incident of neglect in North Carolina. It also appears that he was deceitful in the applications for employment that he submitted in Arizona because he omitted from his employment history recent employers who had terminated him. In addition, Mr. Mosher had a history of injuring the vulnerable patients under his care. After having been given numerous opportunities, he had failed to correct the behaviors that resulted in the injuries. Mr. Mosher’s Application to the Board for Certified Nursing Assistant by Endorsement

13. On March 18, 2005, the Board received Mr. Mosher’s application for Certified Nursing Assistant by Endorsement. 14. On the application, Mr. Mosher indicated that he had been licensed in New York. He did not identify any other state in which he had been licensed. 15. Mr. Mosher answered “no” to the question on the application, “Are you currently under investigation or is disciplinary action pending against your CNA certificate or nursing license in any state, other than Arizona, or territory of the United States?” 16. Mr. Mosher signed under the Verification by Oath or Affirmation on the application, verifying that the statements on the application were “true in every respect” and that he had “not suppressed any information that would affect this application.” The Substantiated Incident of Neglect in North Carolina 17. Ms. Nelson testified that, as part of her investigation, she had planned to call the New York licensing agency. However, the number for the North Carolina licensing agency is underneath the number for the New York licensing agency on the Board’s list. By accident, Ms. Nelson called the North Carolina Nurse Aide I Registry and learned that Mr. Mosher had been licensed in North Carolina and had an incident of neglect that had been substantiated against his North Carolina license. Ms. Nelson obtained records of the substantiation pursuant to the Board’s subpoena. 18. The substantiated incident of neglect was based on an incident that had occurred on October 27, 2001, while Mr. Mosher had been employed as a Nurse Aide at the Reidsville Rehabilitation and Care Center in Reidsville, North Carolina. At around 10:00 p.m., the LPN on duty had called the DON to report that one of the residents, M.M. “had a hematoma like a ‘goose egg’ on her forehead.” Mr. Mosher had been the CNA assigned to M.M. on that shift. 19. M.M. was transported to a hospital emergency room for treatment of her injury. 20. At first, Mr. Mosher had denied having any knowledge of the incident. According to the report, after repeated questioning, Mr. Mosher had later admitted to one of the nurses and to a police detective who was investigating the incident that he had left the bedrail down on M.M.’s bed and left the room to answer a call light. When Mr. Mosher returned to M.M.’s room, she was lying on the floor. Mr. Mosher was terminated as a result of the incident. 21. Included in the investigation file that Ms. Nelson obtained pursuant to the Board’s subpoena was Mr. Mosher’s handwritten, signed statement, which was dated October 30, 2001, in relevant part as follows: I Peter Mosher was taking care of [M.M.] Sat. Oct. 27th about 9:00 p.m. on second shift. I was giving [sic] her bed and cleaning her up. I ran out of the room because one of the other aids asked me to help pick up a heavy lady off the floor. I was answering a call light in the hall all evening long. I left the bed rail down and ran out of the room to help someone else. I think I was trying to work too fast to get all of my patients cleaned up and ready for bed the night the incident happened and I left the bed rail down and I came back in the room and she was on the floor. I got scared and I put her into bed and called the nurse. She told me to get her ready so she could go over to the hospital to be checked. The nurse called the administrator and told me that I had to go home. I know it was wrong that I didn’t tell the truth the first night. I know that I will never make another mistake like that again.

Complaints during Mr. Mosher’s Employment at Ridgecrest 22. Mr. Mosher worked at Ridgecrest between June 4, 2005 and October 25, 2005, a total of approximately four and one-half months. 23. On August 20, 2005, Mr. Mosher received a written warning that an alert and oriented resident had complained that Mr. Mosher had given the resident a cold shower and had been rough when transferring the resident. Mr. Mosher was warned to check the water temperature before giving residents showers and to “be gentle with residents.” 24. On October 20, 2005, resident S.L. reported to his case manager that he had told Mr. Mosher that he did not want a shower. According to S.L., Mr. Mosher had then smacked him with an open hand to the left side of his face and had left the shower room. Another CNA was in the shower room at the time, who told ADHS investigators that he did not see Mr. Mosher take a swing at S.L., but did see S.L. take a swing at Mr. Mosher while Mr. Mosher was shaving S.L. 25. According to the ADHS report, S.L. had been diagnosed with bipolar disorder and had cognitive deficits with limited insight and judgment. He had been expressing multiple complaints and was easily annoyed by others. 26. On October 25, 2005, resident C.W. complained that, when Mr. Mosher washed his genitals in the shower, he took too long. C.W. asked that Mr. Mosher not shower him in the future because “he felt like Mr. Mosher looked and washed him a little too long and he felt violated.” 27. ADHS did not substantiate either S.L.’s or C.W.’s complaints because no other witnesses could verify the complaints. 28. Mary Alarcon, a CNA who worked with Mr. Mosher at Ridgecrest, testified that Ridgecrest provided residential care for elderly and behavioral health patients. All of the patients at Ridgecrest were vulnerable and could not take care of themselves. Most patients were alert and oriented. 29. Ms. Alarcon testified that she was involved in the incident involving C.W. October 25, 2005 was “shower day” and she went to put C.W. back into bed. C.W. required “total care,” which meant showers on a body board. C.W. told her that he did not want Mr. Mosher close to him in the shower because he felt that Mr. Mosher took too long washing his genitals. C.W. felt violated. 30. Ms. Alarcon testified that she had cared for C.W. a long time. He had made no other complaints. He was alert and oriented. 31. Ms. Alarcon testified that four or five other residents at Ridgecrest complained about Mr. Mosher. One female resident did not want Mr. Mosher in her room. Some of the residents just said that Mr. Mosher made them uncomfortable. Others complained that Mr. Mosher was rough and did not use safe practices. 32. Ms. Alarcon testified that Mr. Mosher was unorthodox. For example, he did not use the Hoyer lift that was available or ask another CNA or nurse to help him transfer residents. Mr. Mosher said he could do it by himself. Ms. Alarcon testified that she had twice witnessed Mr. Mosher use “inappropriate private techniques” in transfers. 33. Ms. Alarcon testified that Ridgecrest policy required CNAs to use the lift in patient transfers, for their own and the resident’s safety. 34. Ms. Alarcon denied that staff were “out to get” Mr. Mosher. On cross-examination, she did not remember ever asking Mr. Mosher to pick up a patient that she could not lift. 35. On October 26, 2005, Mr. Mosher was terminated from his employment at Ridgecrest as a result of the complaints. He is not eligible for rehire. Complaints during Mr. Mosher’s Employment Encore Senior Village at Paradise Valley

36. Mr. Mosher was employed by Encore Senior Village at Paradise Valley (“Encore”) between August 23, 2005 and November 9, 2005. He indicated his current employment at Ridgecrest on his application. 37. On November 2, 2005, Mr. Mosher was written up for “inappropriate methods of keeping residents clean” and “numerous complaints of how cottage was left after shift – dirty, unsanitary beds with urine on sheets BM on walls.” 38. On November 4, 2005, a caregiver complained that Mr. Mosher had left the cottage a mess at the end of his night shift. After one of the residents had diarrhea, Mr. Mosher had used all of the good towels to clean the resident, rather than putting the resident in the shower and using wipes or clean rags to clean the area. 39. On November 7, 2005, another caregiver complained that Mr. Mosher had been sleeping in a rocker from 12:30 a.m. to 4:00 a.m., snoring, with the “windows & doors wide open & lights off, TV on” and that he “manhandled” residents. Although Mr. Mosher had said he was going to clean, there were feces on the wall in the morning. 40. As a result of the complaints and Mr. Mosher’s “unacceptable care of residents Cottage #1,” on November 9, 2005, Mr. Mosher was terminated from Encore. Because he had been found to have violated Encore’s rules and regulations, he is not eligible for rehire. Complaints during Mr. Mosher’s Employment at Life Care 41. Mr. Mosher worked at Life Care between November 2, 2005 and December 1, 2005, a period of only one month. 42. Mr. Mosher listed Encore but not Ridgecrest on his application for employment at Life Care, which was dated October 28, 2005. 43. On November 22, 2005, a housekeeper reported that she saw Mr. Mosher “throwing” resident G.A. onto his bed and that Mr. Mosher had a “mad look” on his face. Mr. Lorenz, the DON of Life Care, reported the incident to ADHS. 44. ADHS investigated the incident. Mr. Mosher told investigators that G.A. had been resistive to transfer and combative and had been “covered in stool,” which made it difficult to remove G.A.’s clothing and clean him. 45. Because Mr. Mosher’s back was to the housekeeper when the transfer occurred and there were no other witnesses, neither ADHS nor Life Care could substantiate the incident. 46. Life Care did determine that Mr. Mosher had not followed its safety guidelines for safely transferring a resident, because he did not use a gait belt and did not obtain assistance when the resident was combative, which would have been appropriate. Mr. Mosher was required to receive additional education on safe transfers and caring for combative residents. 47. On December 2, 2005, two residents made complaints against Mr. Mosher. L.S. said that Mr. Mosher was rough with her and pushed her on the bed. A.M. said that Mr. Mosher hit and slapped her and threw things around the room. 48. According to ADHS’ investigative report, L.S was documented as having short-term memory loss and impaired decision-making skills. A.M. refused to speak to investigators. 49. A CNA who worked with Mr. Mosher, Sonja Martinskis, told ADHS investigators that she was uncomfortable working with Mr. Mosher and was concerned because he always cared for residents behind closed doors, contrary to Life Care’s policy. 50. Because no witnesses or other evidence corroborated L.S.’s and A.M.’s complaints, ADHS and Life Care could not substantiate the incidents. 51. However, because three complaints had been made in a short time against Mr. Mosher and he was still on probation, Life Care terminated his employment. He is not eligible for rehire. 52. Mr. Lorenz, the DON at Life Care, testified that Mr. Mosher violated Life Care policy when he transferred G.A. without using a gait belt. In addition, if G.A. had been combative, Life Care policy required Mr. Mosher to obtain another CNA’s assistance in the transfer. 53. Mr. Lorenz testified that other CNAs at Life Care told him that Mr. Mosher was “rushed” in his care of patients. After Mr. Mosher had been trained how to reposition patients using a draw sheet, he continued using his bare hands. Mr. Lorenz testified that this was a concern because Life Care patients are fragile. Not using a draw sheet could result in skin tears. Complaints during Mr. Mosher’s Employment at Arizona State Hospital 54. Mr. Mosher worked at Arizona State Hospital (“ASH”) between February 27, 2006 and March 24, 2006, a period of one month. 55. Mr. Mosher did not list Ridgecrest, Encore, or Life Care on the employment application he submitted to ASH on February 22, 2006. Mr. Mosher signed to verify that the information on the employment application was correct. 56. Mr. Mosher was terminated from ASH on March 27, 2006. 57. Ms. Nelson testified that, although the ASH employment records did not state the reason for the termination, she had spoken to DON Deborah Trosco on April 27, 2007 as part of her investigation. According to Ms. Trosco, an elderly male resident had reported that Mr. Mosher had inappropriately touched his penis. Mr. Mosher had been suspended pending investigation and then terminated when he failed to appear for an investigatory meeting. Complaints during Mr. Mosher’s Employment at Scottsdale Village Square 58. Mr. Mosher worked at Scottsdale Village Square (“Village Square”) between November 2006 and April 10, 2007. 59. Mr. Mosher did not list Ridgecrest, Encore, Life Care, or ASH on the employment application he submitted to Village Square on November 8, 2006. 60. On March 21, 2007, Mr. Mosher was given written counseling and placed on disciplinary suspension for three days after a new skin tear was observed on a resident under his care. The Disciplinary Report noted that Mr. Mosher “has had a variety of skin tears/bruises occur on residents assigned to his care. CNA does not always follow the directions of charge nurse.” 61. On April 3, 2007, a resident under Mr. Mosher’s care was found to have a “large skin tear” and blood was seen on Mr. Mosher’s clothing. Mr. Mosher denied any knowledge of how the tear had occurred. Mr. Mosher was counseled and warned that any new incidents would result in his termination. 62. On April 10, 2007, several residents complained that Mr. Mosher was “very rough” and “not right” and, as result, that they were “scared to be cared for by him and requested not to be under his care.” Mr. Mosher was given a written warning. 63. On April 10, 2007, a resident under Mr. Mosher’s care was observed who “had a leg which was turning outward.” The resident was sent to the emergency room for evaluation. As a result, Mr. Mosher was given the choice of resignation or termination. He chose to resign. 64. Ms. Nelson testified that, on August 28, 2007, she had interviewed Anna Viarico, the charge nurse at Village Square. Ms. Viarico said that Mr. Mosher was “always rushing” and failed to take appropriate safety measures. For example, Ms. Viarico had observed Mr. Mosher transferring a patient into a wheelchair without moving the foot pedals, which had resulted in the patient’s feet hitting the chair. 65. Ms. Nelson testified that she also interviewed Sherry O’Meary, the DON at Village Square. Ms. O’Meary told her that the resident who had been taken to the Emergency Room had been found to have a dislocated hip. Ms. O’Meary attributed the injury to Mr. Mosher’s knowledge deficit and failure to follow the care techniques that he had been taught. Mr. Mosher’ Hearing Evidence and Testimony 66. Mr. Mosher had admitted into evidence a letter from his wife, Barbara Mosher, whom he testified he had married after moving to Arizona. According to Mrs. Mosher, Peter Mosher is the kindest, most caring person I have ever met. I cannot believe any of the allegations you are charging him with. I am fully convinced these must come from people who have a personal vendetta against him and are covering up their own misdeeds.

This man even feels sorry for the poor stray cats and kittens in our neighborhood. He would never put me in any of these nursing homes he has worked in because of the conditions he has seen, which the supervisors do nothing about when he has told them. These people are just trying to distract you from their poor performance.

67. Mr. Mosher testified that he has been a CNA for 30 years and has raised four kids. 68. Mr. Mosher testified that the employees of Ridgecrest were mostly Blacks and Mexicans. One Black nurse had sexually harassed him. He did not say anything at first because he did not want to make a scene. He had been molested by a Catholic priest when he was a child. After he reported the Black nurse’s abuse, he was retaliated against and terminated. He did not list Ridgecrest on the other employment applications after his termination because he did not want the gossip to follow him. 69. Mr. Mosher testified that his superiors at Ridgecrest “hated him because they knew he would tell the truth about a patient falling out of a Hoya lift.” 70. Mr. Mosher testified that he is a “farm boy from upstate New York.” He was working in a rural area of North Carolina in a hospital “where they still fly the Confederate flag.” Mr. Mosher “wears a Yankees ball cap” and does not “kiss butt or gossip.” He did not have a chance in the rural North Carolina hospital or the facilities in Arizona, where he “was working with all Mexicans.” 71. Mr. Mosher testified that he has “been discriminated against since he came to Arizona” because he is male, white, and heterosexual. He knows he is different from Mexicans and Blacks, but he also has rights. Martin Luther King protected everyone’s rights. 72. Mr. Mosher testified that the gossip from Ridgecrest followed him across the street to his subsequent employments. In addition, some nurses did not like him because he was “macho.” He should not lose his license because of gossip. 73. Mr. Mosher testified that his supervisor at ASH was “gay and may have been intimidated” by Mr. Mosher. Mr. Mosher testified that he had stepped in front of an administrator at ASH because “a patient was going to hit her.” 74. Mr. Mosher testified that Ms. Alarcon admired his strength. He is gentler than a person could be who lacked his strength. Other CNAs frequently asked him to lift patients that they could not lift. 75. Mr. Mosher wished to undergo a psychiatric evaluation at the Veterans Administration for the Board to consider in this matter. He believes that he could get hired at the VA. 76. Mr. Mosher testified that he worked 20 years in New York at a hospital for the criminally insane. Once, “ten rednecks took a patient into a padded room and kicked his brains in.” Mr. Mosher had “turned the whole institution into Governor Cuomo.” They had “tore up his motorcycle.” Mr. Mosher had started working at that position in 1970, and had cared for alcoholics and the mentally ill. He had seen lots of racism in New York, but ignored it “because he had a union.” 77. Mr. Mosher testified that he “forgives people who can’t accept him for what he is.” 78. Mr. Mosher testified that the last nursing home, on Thomas Road, bothered him the most. Many people came to him for help. A Black girl left all her residents’ lights on and he took care of them. He was the only white CNA on staff. APPLICABLE LAW The Complaint and Notice of Hearing cited the statutes and regulations set both below as authority to discipline Mr. Mosher’s certificate, based on the facts on which evidence as presented at the hearing, as set forth above. 1. A.R.S. § 32-1663(F) allows the Board to revoke or suspend a certificate, impose a civil penalty, or accept voluntary surrender of a certificate if, after affording the licensee an opportunity for a hearing, the Board finds that the licensee has committed an act of unprofessional conduct. 2. A.R.S. § 32-1601(16) defines “unprofessional conduct” to include the following: (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. . . . .

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . .

(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(h) Committing an act that deceives, defrauds or harms the public. . . . .

j) Violating any rule that is adopted pursuant to this chapter.

3. Pursuant to its statutory authority, the Board promulgated A.A.C. R4-19-814(B), which defines “a practice that is or might be harmful or dangerous to the health of a patient or the public” under A.R.S. § 32-1601(16)(d) and “constitutes a basis for disciplinary action on a certificate includes the following,” in relevant part: (1) Failing to maintain professional boundaries or engaging in a dual relationship with a patient, resident, or any member of the patient’s or resident’s family;

(2) Engaging in sexual conduct with a patient, resident, or any member of the patient’s or resident’s family who does not have a pre-existing relationship with the nursing assistant, or any conduct in the work place that a reasonable person would interpret as sexual; . . . .

(6) Failing to follow an employer’s policies and procedures designed to safeguard the patient or resident; . . . .

(9) Violating the rights or dignity of a patient or resident; . . . .

(11) Neglecting or abusing a patient or resident physically, verbally, emotionally, or financially; . . . .

(21) Threatening, harassing, or exploiting an individual;

(22) Using violent or abusive behavior in any work setting;

(23) Failing to cooperate with the Board during an investigation by:

a. Not furnishing in writing a complete explanation of a matter reported under A.R.S. § 32-1664; . . . .

c. Not completing and returning a Board-issued questionnaire within 30 days; or

d. Not informing the Board of a change of address or phone number within 10 days of each change.

(24) Engaging in fraud or deceit regarding the certification exam or an initial or renewal application for certification;

(25) Making a written false or inaccurate statement to the Board or the Board’s designee during the course of an investigation; . . . .

(26) Making a false or misleading statement on a nursing assistant or health care related employment or credential application concerning previous employment, employment experience, education, or credentials . . . .

4. A.R.S. § 32-1664 allowed the Board to conduct an investigation of any complaint it receives that a licensee has committed unprofessional conduct and requires, if the licensee requested a hearing on proposed discipline, that the matter be referred to the Office of Administrative Hearings for conduct of a fair hearing. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(A)(8) and 32-1664. 2. The Board bears the burden of proof and must establish cause to sanction Mr. Mosher’s professional nurse’s license by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[3] 3. The Board has borne its burden to establish that Mr. Mosher lied on the Application for Certified Nursing Assistant by Endorsement when he failed to disclose that he had been licensed in North Carolina; that he failed to follow his employers’ policies when he failed to use a Hoya belt at Ridgecrest and failed to use a gait belt or draw sheet or obtain the assistance of another CNA when he transferred a combative resident at Life Care; that he deliberately withheld information when he failed to disclose past employers who had terminated him on his applications to Life Care, ASH, and Village Square; that, to date, he has failed to provide a complete written explanation of the ADHS complaints involving S.L. and C.W. at Ridgecrest and L.S. and A.M. at Life Care; and that he lied when he told Ms. Nelson that he had never been licensed, worked as a CNA, or lived in North Carolina. The Board therefore has established that Mr. Mosher committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(a), (g), (j) (specifically, A.A.C. R4-19- 814(B)(6), (23)(a), (24), (25), and 26)). 4. At the hearing, Mr. Mosher was proud of his physical strength, which he testified made him a better CNA. The Board has established on this record a disturbing pattern of conduct by Mr. Mosher of rushing through his job responsibilities and choosing to rely on his perceived physical strength rather than employers’ procedures in transferring and tending to patients, which procedures were designed to protect patients from injuries. As a result of Mr. Mosher’s hurried and unorthodox care, at least several patients were injured and several more were intimated and reasonably apprehensive of injury. The Board therefore has established that Mr. Mosher committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(d) and (j) (specifically, A.A.C. R4-19-814(B)(9), (11), and (22)). 5. The Board has also established that Mr. Mosher’s failure to identify past employers on employment applications, which would have allowed Life Care, ASH, and Village Care to protect their residents by denying his application for employment based on his past patterns of abuse, constitutes unprofessional conduct under A.R.S. § 32-1601(16)(h). 6. Although two patient complaints involved allegations of inappropriate sexual touching by Mr. Mosher, this kind of misconduct is not a reported pattern of conduct. The reports of inappropriate touching accounts were by patients to investigators, none of whom testified at the hearing, and therefore are double hearsay.[4] Although hearsay may be admitted in an administrative hearing,[5] it should not be relied upon if it is unreliable or not the kind of evidence that reasonable persons would rely upon in serious matters.[6] The Board therefore has not borne its burden to establish that Mr. Mosher committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(j) (as defined by A.A.C. R4- 19-814(B)(1), (2), (21)). 7. Ms. Nelson testified that there was a delay in notifying Mr. Mosher of the ADHS complaint because he had not updated his address of record with the Board. But the date on the face of the ADHS Complaint was January 31, 2006 and the Board’s date stamp on Mr. Mosher’s handwritten response was February 6, 2006, a week later. Because there is no other explanation for Mr. Mosher’s appearance at Ms. Nelson’s office on February 6, 2006, the Administrative Law Judge assumes that he was somehow summoned there on account of the ADHS complaint. On this record, therefore, the Board has not established that Mr. Mosher committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(j) (specifically A.A.C. R4- 19-814(B)(23)(d)). 8. Because the record does not contain a Board-issued questionnaire completed by Mr. Mosher, the Board has established that he committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(j) (specifically A.A.C. R4-19- 814(B)(23)(c)). 9. Based on the violations described above, the Board has established cause to sanction Mr. Mosher’s license under A.R.S. §§ 32-1663 and -1664. 10. Mr. Mosher has been a Certified Nursing Assistant for several decades. For most of this time, he was employed in a correctional institution for the criminally insane in New York, who appear to have been less fragile than the population of elderly residents he served in Arizona. The incident in North Carolina, along with the incidents at Ridgecrest, Encore, Life Care, ASH, and Village Square indicate that Mr. Mosher lacks the skills to care for the fragile population that CNAs serve in Arizona. Mr. Mosher’s deceit in his application for certification and applications for employment, responses to the Board’s investigation, and testimony at hearing indicate that, at this time, he does not take responsibility for his poor skills or the injuries to his patients caused by these poor skills. At this point, measures necessary to protect the public foreclose measures to salvage Mr. Mosher’s career. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Nursing Assistant Certificate No. CNA818947666 previously issued to Mr. Mosher. Done this day, February 11, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of February, 2008, to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ATTN: Vicky Driver 4747 N. 7th Street, Suite # 200 Phoenix, AZ 85014

By ___________________________ ----------------------- [1] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary at page 1120 (8th ed. 2004). [4] See Ariz. R. Evid. 801. [5] See A.R.S. § 41-1092.07(F)(1). [6] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981).

-----------------------

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