ALJDEC decisions subject to certification as final

08-26-NCI · Board of Nursing Care Institution Administrators Examiners · 2008-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 2008 at 9:00 a.m. APPEARANCES: The Arizona State Board of Nursing Care Institution Administrators and Assisted Living Facility Managers appeared through Keely Verstegen, Esq., Assistant Attorney General; Respondent/Applicant Ernesto Recososa appeared through Lincoln Wright, Esq., Udall, Shumway & Lyons. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona State Board of Examiners of Nursing Care Institution Administrators and Assisted Living Facility Managers (“the Board”) is the duly constituted authority for licensing and regulating the practice of Nursing Care Institution Administrators and Assisted Living Facility Managers in the State of Arizona. 2. The Board issued Assistant Living Facility Manager’s Certificate No. 08576 to Respondent/Applicant Ernesto Recososa. 3. On June 6, 2006, the Board and Mr. Recososa entered into a Consent Agreement, which included the following terms: 1. PROBATION. The Board orders that [Mr. Recososa’s] certificate, Number 08576, be placed on probation for a period of twelve (12) months. During the probationary period, [Mr. Recososa] shall complete the following:

A. Pay a civil money penalty to the Board in the amount of $250.00 by cash, cashier’s check, or money order within six (6) months of the effective date of this Consent Agreement.

B. Re-take an NCIA Board approved eight (8) hour Assisted Living Facility Manager’s Training Course, and then successfully pass the Assisted Living Home Manger’s [sic] Examination within twelve (12) months of the effective date of this Consent Agreement.

C. Provide Board staff a copy of the [Arizona Department of Health Services (“DHS”)] 2006 Assisted Living Facility Renewal Survey for [Mr. Recososa’s] facility, Asela’s Care Home #2.

2. Failure to comply with the terms of this Agreement is grounds for further disciplinary action, including suspension or revocation of the license.

3. It shall be [Mr. Recososa’s] affirmative duty to seek termination of the term of probation. . . . .

5. [Mr. Recososa] has read and understands the conditions of Probation. [Emphasis in original.]

4. Mr. Recososa paid the $250.00 civil penalty and completed an NCIA 8-hour Board-approved Assisted Living Facility Manager’s Training Course. 5. During all relevant times, the Board offered the Assisted Living Home Manager’s Examination (“the Examination”) on the first Thursday of every month, at 8:00 a.m. and 11:00 a.m. A licensee was required to pay a $100.00 fee and to complete a registration form to sit for the Examination. The Examination consisted of 100 questions and took about 2 hours to complete. A passing score required correct answers to at least 75 questions. 6. In June or July, 2006, Mr. Recososa paid the $100.00 fee and submitted a completed registration form to take the Examination. 7. On July 12, 2006, the Board’s Licensing Coordinator Peggy Wilkinson sent a letter to Mr. Recososa, acknowledging receipt of his registration form and fee and informing him that he was scheduled to take the Examination on September 7, 2006 at 8:00 a.m. Ms. Wilkinson also recommended certain study materials, including the Board’s and DHS’s administrative statutes and regulations and the websites at which these materials could be found. 8. Mr. Recososa did not take the Examination on September 7, 2006. On September 12, 2006, Ms. Wilkinson sent another letter to Mr. Recososa, informing him that he had been rescheduled to take the Examination on October 5, 2006 at 8:00 a.m. and again recommending study materials. 9. On October 4, 2006, Mr. Recososa called Ms. Wilkinson to tell her that his arthritis had been acting up and that he wished to reschedule the examination from October 5 to November 2, 2006. 10. On October 4, 2006, Ms. Wilkinson sent another letter to Mr. Recososa, informing him that he had been rescheduled to take the Examination on November 2, 2006 at 8:00 a.m. and again recommending study materials. 11. Mr. Recososa took the Examination on December 7, 2006. On December 11, 2006, Ms. Wilkinson sent a letter to Mr. Recososa, informing him that he had scored 64% on the examination, which was below the required passing score. Ms. Wilkinson also informed Mr. Recososa that “[y]ou are eligible to retake the manager’s exam on January 4, 2007. To be scheduled return the enclosed form and pay the $100.00 re- exam fee . . . .” 12. Mr. Recososa paid the $100.00 re-exam fee and submitted another completed registration form for the Examination. 13. Ms. Wilkinson subsequently sent eight more letters to Mr. Recososa, scheduling him to take the Examination on January 4, 2007, February 1, 2007, March 1, 2007, April 5, 2007, May 3, 2007, June 7, 2007, July 5, 2007, and August 2, 2007. 14. Mr. Recososa did not appear for any of these examinations or contact Ms. Wilkinson again after October 4, 2006. 15. The Board sent all of the correspondence described in Findings of Fact Nos. 7, 8, 10, 11, and 13, supra, regarding scheduled dates for Mr. Recososa to take the Examination via regular mail to his address of record, his home address of 6860 E. Minton St., Mesa, AZ 85207. 16. On June 5, 2007, the Board received Mr. Recososa’s application to renew his Assisted Living Manager Certificate No. 08579. He provided the address of 6860 East Minton Street, Mesa, AZ 85207 on the application. 17. Mr. Recososa answered “no” to question no. 2 on the application, “Within the last 24 months have you ever been denied a professional license or had a professional license revoked, suspended, placed on probation, limited, or restricted in any way by any state or federal regulatory board (including this Board)?” 18. After receipt of the renewal application, the Board sent a renewal receipt to Mr. Recososa, renewing his license for two more years, or until June 30, 2009. 19. The Board considered Mr. Recososa’s renewal application and compliance with the June 6, 2006 Consent Agreement at its August 13, 2007 meeting. The Board determined to deny Mr. Recososa’s renewal application under A.R.S. § 32- 446.07(B)(8), A.A.C. R4-33-407(B)(12) and A.A.C. R4-33- 407(B)(13) because he had “misrepresented on your renewal application that you had not been disciplined within the last months, and you have failed to comply with a previous Board Order.” 20. Mr. Recososa appealed the Board’s decision. The Board referred the matters to the Office of Administrative Hearings pursuant to A.R.S. § 41-1092.01(E). 21. The Board designated as Case No. 08-26-NCI Mr. Recososa’s alleged failure to comply with the June 6, 2006 Consent Agreement and charged violations of A.R.S. § 36-446.04(B)(8) and A.A.C. R4-33-407(B)(13). 22. The Board designated as Case No. 08-110-NCI Mr. Recososa’s alleged misrepresentation on his renewal application and charged violations of A.R.S. § 36-446.04(B)(8), A.A.C. R4-33- 407(B)(12), and A.A.C. R4-33-407(B)(13). 23. The matters were consolidated for hearing and a hearing was held on June 4, 2008. The Board presented the testimony of Investigator Philip Smyth, Ms. Wilkinson, and Executive Director Allen Imig and had five exhibits admitted into evidence. Mr. Recososa testified on his own behalf and had admitted into evidence one exhibit. Additional Hearing Evidence 24. Mr. Smyth testified at the hearing that Mr. Recososa had not provided and the Board’s file for him did not include the DHS 2006 Assisted Living Facility Renewal Survey for Mr. Recososa’s facility, Asela’s Care Home #2. 25. Mr. Recososa’s attorney avowed at the hearing that he had brought a copy of the DHS 2006 Assisted Living Facility Renewal Survey for Mr. Recososa’s facility, Asela’s Care Home #2. 26. Mr. Smyth testified that the Board licenses 2,165 managers of assisted living facilities and 381 nursing care institution administrators. Many of the licensees have the same license renewal date. 27. Mr. Imig testified that the Board had hired a temporary administrative assistant to process applications. If the renewal appeared to be administratively complete, the assistant sent out a renewal receipt. 28. Ms. Wilkinson testified that she realized there was a problem with Mr. Recososa’s renewal application. On June 18, 2007, she sent a letter to Mr. Recososa, informing him that he would need to correct his response to question no. 2 on the application. Mr. Recososa never responded to Ms. Wilkinson’s letter. 29. Mr. Recososa testified that he owns four assisted living homes and was the manager at two of these homes. After the Board denied his renewal application, he hired two more managers to manage the homes that he had previously managed. 30. Mr. Recososa has lived in the United States for 19 years and has worked in the assisted living facility industry for nine years. 31. Mr. Recososa testified that his neighbors’ mail frequently is delivered to his house. He only received three of the Board’s notices that he had been scheduled to take the Examination. He believes the Board’s other notices were misdelivered to his neighbors’ addresses. 32. Mr. Recososa testified that, during the time that he was really sick, he rescheduled the Examination. That is the only time he attempted to contact the Board. 33. Mr. Recososa does not remember when he took the Examination. He had been really busy resolving problems with DHS and was distracted. 34. Mr. Recososa initially testified that he knew he had failed the Examination, with a score of 64%, but did not know that he could re-take the Examination. He was waiting for the Board’s notice that he could take the Examination again. 35. Mr. Recososa could not explain why he had paid $100.00 and submitted a second completed registration in January 2007. Later, Mr. Recososa admitted that he had received the Board’s December 11, 2006 letter informing him that he had failed the Examination. 36. Mr. Recososa does not speak English well or easily. He testified that he did not mean to misrepresent his status on the renewal application. He had read the first part of the question and answered it, without reading the rest. 37. Mr. Recososa testified that he knew that he had 12 months to take and pass the Examination. But he was scared to raise his hand and give his opinion at the Board’s August 13, 2007 meeting. 38. Mr. Recososa testified that he had failed the Examination because he also had misread the questions on it. He admitted that he had never looked at the Board’s website. But he had studied for the Examination. CONCLUSIONS OF LAW 1. These matters lie within the Board’s jurisdiction.[1] 2. The Board bears the burden of proof to establish cause to discipline Mr. Recososa’s Assisted Living Manager Certificate; Mr. Recososa bears the burden of proof to establish that he meets statutory qualifications to have his Assisted Living Manager Certificate renewed.[2] 3. The standard of proof for both parties is a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] 4. Fraud[6] and misrepresentation[7] require intent. Mr. Recososa was aware of the June 6, 2006 Consent Agreement. He knew the Board was aware of the June 6, 2006 Consent Agreement. His inaccurate response appears to be more likely due to his limited understanding of English and haste in completing the renewal application than any intent to deceive. 5. The Board therefore has not established cause to penalize Mr. Recososa’s Assisted Living Facility Manager’s Certificate under A.R.S. § 36-446.07(B)(2)[8] or A.R.S. § 36- 446.07(B)(8)[9] (specifically, A.A.C. R4-33-407(B)(12)[10]). 6. The Board has established that Mr. Recososa violated the Consent Agreement by failing to pass the Examination within months of the order. Mr. Recososa’s testimony that he did not receive any more than three of the Board’s repeated notices of examination was not credible, especially since the Board established that he received notice of his failure and right to re-take the Examination. 7. The Board therefore has established that Mr. Recososa violated A.R.S. § 36-446.07(B)(8) (specifically A.A.C. R4-33- 407(B)(13)[11]). 8. Mr. Recososa’s repeated failure to respond to the Board’s voluminous correspondence is considered as a factor in aggravation of the penalty. It does not appear that, at this time, Mr. Recososa can be regulated. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board revoke Assisted Living Facility Manager Certificate No. 08576 previously granted to Ernesto Recososa. It is further recommended that, based on the revocation, the cause for which occurred in the twelve months’ preceding the date that Mr. Recososa submitted his certificate renewal application, the Board affirm its denial of Mr. Recososa’s application to renew his Assisted Living Facility Manager Certificate No. 08576. Done this day, June 5, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Arizona State Board of Nursing Care Institution Administrators and Assisted Living Facility Managers Allen Imig, Executive Director 1400 W. Washington St., Suite B-8 Phoenix, AZ 85007

By ___________________________ ----------------------- [1] See A.R.S. §§ 36-446 et seq. [2] See A.R.S. § 41-1092.07(G)(1) and (2); A.A.C. R2-19-119(B). [3] See A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] “Fraud” is defined as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Id. at 685 (emphasis added). [7] “Misrepresentation” is defined as “[t]he act of making a false or misleading assertion about something, usu. with the intent to deceive.” Id. at 1022 (emphasis added). [8] This statute includes among the grounds to suspend, revoke, censure, of place on probation the certificate of an assisted living facility manager who has “[o]btain[ed] or renew[ed] a certificate by fraud or deceit.” [9] This statute includes among the grounds to suspend, revoke, censure, of place on probation the certificate of an assisted living facility manager who has committed a “[v]iolation of this article or a rule adopted pursuant to this article.” [10] The Board adopted this administrative regulation pursuant to the authority set forth in A.R.S. § 36-446.03(K). It provides that “[a] manager shall not . . . [p]rocure or attempt to procure by fraud or misrepresentation a certificate or renewal of a certificate as an assisted living facility manager.” [11] This administrative regulation provides that “[a] manager shall not . . . [v]iolate a formal order, condition of probation, or stipulation issued by the Board.”

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