ALJDEC decisions subject to certification as final

09A-0903024-NUR · State Board of Nursing · 2009-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2009 APPEARANCES: Assistant Attorney General Nina Zimmerman appeared on behalf of the Arizona State Board of Nursing; Dawn Marie Reeves did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT Background 1. The Arizona legislature has authorized the Arizona State Board of Nursing (“the Board”) 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 legislature also has authorized the Board 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. The Board has issued practical nurse license number LP042368 (“License”) to Dawn Marie Reeves (“Respondent”). 3. The Board received information that Respondent had been convicted of a felony and commenced an investigation of Respondent. 4. As a result of the Board’s investigation in the matter, on June 9, 2009, the Board issued a Notice of Charges in this matter and alleged grounds to discipline the License. 5. Respondent appealed the Board’s determination and requested a hearing. This resulted in the Board referred the matter to the Office of Administrative Hearings, an

independent state agency, to conduct of an administrative hearing. 6. On September 9, 2009, the Board issued a Complaint and Notice of Hearing in this matter, which alleged certain facts and, based on those alleged facts, charged violations of the Nurse Practice Act. Hearing Evidence 7. Doug Parlin (“Mr. Parlin”), an investigator for the Board, was assigned to investigate the information that was presented to the Board regarding Respondent. 8. During the course of the investigation, Mr. Parlin obtained Court records from the Maricopa County Superior Court that showed: a. On August 13, 2007, in Maricopa County Superior Court Case Number CR2007-006892-001DT (“Criminal Case”), Respondent was indicted on three counts of Forgery, each a class 4 felony, for writing and cashing checks from the personal bank account of her mother-in-law while the mother-in-law was hospitalized. b. Respondent did not report to the Board the pending felony charges of forgery in the Criminal Case. c. On January 22, 2008, in the Criminal Case, Respondent entered into a guilty plea and was convicted of Criminal Possession of a Forgery Device, a class 6 felony, and convicted of Criminal Possession of a Forgery Device, a class 6 undesignated offense. d. Respondent failed to report her felony conviction in the Criminal Case to the Board. 9. Mr. Parlin testified that, as a licensed practical nurse, there are times when the nurse does not have a supervisor present and that a license practical nurse has to be honest and have integrity. 10. According to Mr. Parlin, the nature of the above-mentioned felony conviction, the fact that it was a recent conviction, that the underlying events involved Respondent taking advantage of a vulnerable adult, and Respondent’s failure to inform the Board of the pending felony charges or of the conviction in the Criminal Case caused the Board to be concerned that Respondent lacks the honesty, integrity and trust required of a licensee. The Board determined that Respondent poses a risk to the public to practice safely as a licensed practical nurse. 12. Respondent did not present any evidence to refute or rebut the evidence presented by the Board, as set forth above. APPLICABLE LAW 1. A.R.S. § 32-1663(D) provides as follows: If the board finds after affording an opportunity to request an administrative hearing that a person who holds an Arizona nursing license has committed an act of unprofessional conduct it may do any of the following:

1. Revoke or suspend the license. 2. Impose a civil penalty. 3. Censure the licensee. 4. Place the licensee on probation. 5. Accept the voluntary surrender of a license.

2. A.R.S. § 32-1664, concerning investigation of complaints, provides, in pertinent part: A. The board on its own motion may investigate any evidence that appears to show that a licensee or a certificate holder is or may be guilty of violating this chapter or rules adopted pursuant to this chapter.

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E. On receipt by the board of a complaint charging a licensee or certificate holder with an act of unprofessional conduct, the board may conduct an investigation of the complaint. For purposes of the investigation, the board may employ investigators.

3. A.R.S. § 32-1601(18)[1] defines “unprofessional conduct” to include the following whether occurring in this state or elsewhere:

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. (h) Committing an act that deceives, defrauds or harms the public. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. (l) Failing to self-report a conviction for a felony or undesignated offense within ten days after the conviction.

4. A.R.S. § 32-3208 provides:

A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. * * * D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of not more than one thousand dollars in addition to other disciplinary action it takes.

5. A.R.S. § 1606(B) (17) provides that the Board shall:

Revoke a license of a person, revoke the multistate licensure privilege of a person pursuant to section 32-1669 or not issue a license or renewal to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application pursuant to this chapter.

6. A.A.C. R4-19-403(B) defines any conduct or 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)[2] as follows: For purposes of A.R.S. § 32-1601(16)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following:

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15. Removing, without authorization, any money, property, or personal possessions, or requesting payment for services not performed from a patient, employer, co-worker, or member of the public. * * * 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense; 29. Failing to notify the Board, in writing, of a conviction for a felony or an undesignated offense within 10 days of the conviction. The nurse or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the conviction; and c. Nature of the offense; …

CONCLUSIONS OF LAW 1. The Board is authorized to regulate and control the practice of nursing in the State of Arizona and can 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. Pursuant to A.R.S. § 41-1092.07(G)(2), and A.A.C. R2-19-119(A ), the Board has the burden of proof in this matter and the standard of proof on all issues is by a preponderance of the evidence. 3. A preponderance of the evidence is “evidence of greater weight or more convincing than the 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.” Black’s Law Dictionary 1182 (6th ed. 1990). 4. The conduct of Respondent, as set forth above in the Findings of Fact constitutes a violation of A.R.S. § 32-1663(D) as defined in A.R.S. § 32- 1601( b), (committing a felony); (h) (committing an act that deceives, defrauds, or harms the public); (j) ( violating a Board Rule, namely: A.A.C R4-19-403(B)(15)(removing money, property or personal possessions from a member of the public); A.A.C. R4-19-29(a), (b) and (c) (failing to notify the Board within ten days of a felony conviction). 5. Respondent’s conduct, as set forth above in the Findings of Fact, does not constitute a violation of A.R.S. § 32-1601(j) with respect to A.A.C. R4-19-403(B)(28)(a), (b), or (c)(failing to notify the Board within ten days of the felony charge) because there is no showing that the conduct underlying the felony charges was or might be harmful to the health of a patient or a member of the public. 6. The conduct of Respondent, as set forth in the above Findings of Fact, does not constitute a violation of A.R.S. § 32-1663(D) as defined in 32-1601(18) (d) (any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public) because there was no showing that the conduct underlying the felony conviction was or might be harmful to the health of a patient or member of the public. 7. The weight of the evidence of record does not establish that grounds exist pursuant to A.R.S. § 32-1606(B)(17) for revocation of the License because there was no showing that the conviction occurred five or more years prior to Respondent’s application for licensure. However, the above described statutory and regulatory violations, constituting unprofessional conduct, are grounds for revocation of the License pursuant to A.R.S. §§ 32- 1663 and 32-1664. ORDER Based upon the above, the License shall be revoked on the effective date of the Order entered in this matter. Done this day, November 17, 2009.

______________________________________ /s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

----------------------- [1] Effective as of September 30, 2009, A.R.S. § 32- 1601(16) (unprofessional conduct) was renumbered as A.R.S. § 32-1601(18). [2] As mentioned in the above footnote, that section of the statute was renumbered.

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