ALJDEC decisions subject to certification as final

10A-0707125-NUR · State Board of Nursing · 2013-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2013, with the record held open until May 3, 2013. APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. Respondent Ernest Constantine Esteban did not appear. Respondent Care Learning Systems, Inc. did not appear through an authorized representative. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background The Arizona State Board of Nursing (the Board) has the authority to regulate and control the practice of nursing in the State of Arizona pursuant to A.R.S. §§ 32-1606, 1663, and 1664. The Board is also authorized to regulate and control educational programs in the nursing field in the State of Arizona. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667. In 1995, the Board issued Licensed Practical Nurse (LPN) License No. LP030781 to Respondent Ernest Constantine Esteban to allow him to practice nursing in the State of Arizona. In 2005, the Board issued Registered Nurse (RN) License No. RN133038 to Mr. Esteban. On March 7, 2011, the Board approved Adult Care Learning Systems, Inc.’s (ACLS) initial program application as a nursing assistant training program. ACLS was to provide 80 hours of didactic instruction and 40 hours of clinical instruction in a long-term care facility. Hearing Evidence On May 14, 2004, Mr. Esteban submitted an application to renew his LPN license. On that renewal application, Mr. Esteban stated that he was a naturopath. Mr. Esteban was not licensed as a naturopathic physician in Arizona at the time. Under the section entitled “College or University for Highest Degree Held,” Mr. Esteban indicated he had obtained a doctorate degree in December 2003 from St. Luke University Medical School in Monrovia, Liberia. Mr. Esteban also indicated that he had obtained a BSN in March 1985 from Far Eastern University in Manila, Philippines. On January 24, 2005, Mr. Esteban submitted his application for licensure by examination as an RN. Under the section entitled “College or University for Highest Degree Held,” Mr. Esteban indicated he had obtained a doctorate degree in April 2000 from “Southern Graduate” in Lexington, Kentucky. No such college or university existed. Mr. Esteban also indicated that he had obtained his RN associates degree in November 2004 from Excelsior College in Albany, New York. On May 23, 2005, Mr. Esteban submitted an employment application to Springdale West Rehabilitation Center in Mesa, Arizona. On the resume submitted with his application, Mr. Esteban indicated he was a Nationally Certified EMT/Paramedic. Mr. Esteban also indicated that he held the following degrees: B.A. Business Administration MBA – Management BSN (Nursing) M.S. (Chemistry) M.S. Respiratory Therapy & Pulmonary Physiology Ph.D. (Chemistry) N.D. (Naturopath) OMD (Acupuncturist)

Exhibit 3. On June 27, 2008, Mr. Esteban submitted his LPN renewal application to the Board. Under the section entitled “College or University for Highest Degree Held,” Mr. Esteban indicated he had obtained a doctorate degree in August 2004 from The Ottawa School of Traditional Chinese Medicine and Acupuncture (OSTCMA) in Ottawa, Canada. OSTCMA did not confer degrees. On August 1, 2008, Mr. Esteban submitted an employment application to Scottsdale Village Square in Scottsdale, Arizona. On the resume submitted with his application, Mr. Esteban indicated that he was a Nationally Certified EMT/Paramedic. Mr. Esteban also indicated that he held the following degrees: A.A. – Office Management B.A. – Business Administration A.S.N. – Nursing B.S. – Science B.S.N. – Nursing M.S.N. – Family Nurse Practitioner Ph.D. – Oriental Medicine

Exhibit 7. On March 29, 2009, Mr. Esteban submitted his RN renewal application to the Board. Under the section entitled “College or University for Highest Degree Held,” Mr. Esteban indicated he had obtained a BSN and MSN in September 2007 from the University of Science, Arts, and Technology (USAT) in Montserrat, British West Indies. On September 9, 2009, Mr. Esteban submitted an employment application to the Arizona Department of Veteran’s Services. On the resume submitted with his application, Mr. Esteban indicated that he was a Nationally Certified EMT/Paramedic. Mr. Esteban also indicated that he held the following degrees: B.S. – Physical Science B.A. – Business Administration B.Ed. – General Sciene [sic] and Music – Secondary Education BSN – (Nursing) M.S.N. – Medical Surgery and Urgent Care Graduate Diploma – Family Nurse PRactitioner [sic] M.S. – Chemistry D.Ph..- [sic] (Doctor of Public Health) MAOM/DAOM – Masters and Doctorate in Acupuncture and Oriental Medicine

Exhibit 6. From August 2008 through January 2010, Mr. Esteban worked as a weekend RN supervisor at Scottsdale Village Square in Scottsdale, Arizona. In July 2007, the Board received a complaint from Kimberly K. Dalla- Vicenza, Registered Nurse, Director of Nursing & Assistant Administrator at Springdale West Rehabilitation Center in Mesa, Arizona. The complaint alleged that Mr. Esteban was marketing a “nursing educational program” to Springdale employees. Mr. Esteban was also passing out “discount coupons” to be applied to the tuition costs for USAT, through the Montserrat’s Cornwallis School of Nursing. On July 23, 2007, the Board issued a Cease and Desist Letter to Mr. Esteban and USAT regarding the operation of Alternative Medicine Learning Systems (AMLS). The Board determined the AMLS was conducting a pre-licensure nursing program in Arizona without the approval of the Board. The notice demanded that AMLS and USAT “immediately cease and desist all advertising, recruitment, and instruction for any RN, LPN, C.N.A. or Nurse Practitioner program in Arizona.” The notice also stated that the Board would not authorize any graduates from the program to take the NCLEX® examination or become licensed in the state of Arizona. On August 20, 2007, Karen McFerrin paid $5,995.00 to AMLS for enrollment in its BSN nursing program. AMLS represented to Ms. McFerrin that she would received a BSN degree and would be eligible to sit for the RN-NCLEX® test in Arizona. As part of the AMLS program, for four months in 2009 and 2010, Ms. McFerrin participated in clinicals at Scottsdale Village Square. Mr. Esteban was the preceptor for Ms. McFerrin’s clinical experience. When Ms. McFerrin expressed her concerns regarding the AMLS program, Pamela Davis, the program administrator, assured her that the program was approved and accredited. Ms. Davis promised to refund Ms. McFerrin her tuition at a rate of $300.00 per month. As of the hearing, Ms. McFerrin had not received any repayment. In March 2011, the Board approved ACLS’s certified nursing assistant training program. In May 2011, the Board received an instructor application naming Mr. Esteban as an instructor for ACLS. In November 2011, the Board received a Nursing Assistant Training Program Coordinator/Instructor Application naming Mr. Esteban as the program coordinator for ACLS. While providing instruction and overseeing clinicals, Mr. Esteban told students to refer to him as “Dr. Esteban.” Ms. Davis was the program administrator for ACLS. Ms. Davis introduced herself to students as “Dr. Davis.” In June 2011, Ms. Davis signed a Certificate of Completion for an ACLS student indicating she was a medical doctor. Ms. Davis is not licensed as a medical doctor in the state of Arizona. Ms. Davis is a licensed acupuncturist and massage therapist in Arizona. In September 2012, Ms. Davis performed a tuberculosis skin test on ACLS students. The skin test requires an injection, and Ms. Davis was not licensed to perform tuberculosis skin tests in Arizona. On September 25, 2012, the Board received a complaint from Gina Brooks regarding ACLS. Ms. Brooks reported that the first three days of class were taught by Ms. Davis, who was not a registered nurse; that John Davis, CNA and son of Ms. Davis, taught all the didactic instruction; and that Mr. Esteban did not teach any of the course material. Ms. Brooks also stated that while the class was scheduled for 4:45 p.m. to 10:15 p.m., Mr. Davis usually began teaching between 5:30 p.m. and 6:00 p.m. and the class was dismissed before 9:00 p.m. each night. At approximately 7:00 p.m. on September 26, 2012, Board staff made an unannounced site visit to the ACLS facilities. When staff entered the classroom, Mr. Davis was at the front of the class and Mr. Esteban was absent. Mr. Esteban was located in the next building moving furniture. Mr. Esteban was interviewed the evening of the site visit. At that time, he stated he did all the teaching and Mr. Davis did the reinforcement. Mr. Esteban denied that classes started late and dismissed early. Mr. Esteban indicated Ms. Davis held a doctorate degree in acupuncture. Mr. Davis was also interviewed the evening of the site visit. Mr. Davis indicated he did front office work, answered phones, checked attendance sheets, and assisted “Dr. Esteban” with whatever he needed done. Mr. Davis acknowledged he had spoken in front of the class before, but claimed that Mr. Esteban was always in the room at those times. During its investigation, Board staff interviewed several other students who also reported that Ms. Davis taught the first few sessions, that Mr. Davis taught the remaining sessions, and Mr. Esteban did not teach any of the course. The students also reported they were not provided with a copy of the courses policies and procedures at any time during the class. Students also reported that clinicals were performed at Desert Blossom Health and Rehabilitation (Desert Blossom), a skilled nursing facility, in Mesa, Arizona. Mr. Esteban would meet the students at 6:00 a.m. and then would leave the facility for the rest of the shift. Different students were considered “Team Leaders” and any problems were to be reported to the Team Leaders. Often, more than ten students would be attending clinicals at any given time. During the investigation, Mr. Esteban submitted evidence of multiple advanced degrees. In total, Mr. Esteban claimed to have obtained the following degrees: Bachelor of Science in Nursing from Far Eastern University on March 27, 1985 Associate in Science (Nursing) from Excelsior College on November 19, 2004 Doctor of Science Medical Biochemistry and Medical Genetics from USAT on February 19, 2005 Doctor of Public Health from USAT on May 15, 2005 Bachelor of Science in Nursing from USAT on September 15, 2006 Master of Science in Nursing from USAT on September 15, 2007 Diploma in Family Nurse Practitioner from USAT on September 15, 2008 The Board noted Far Eastern University was not an accredited university at the time Mr. Esteban was awarded the Bachelor of Science in Nursing. Mr. Esteban’s Associate in Science (Nursing) from Excelsior College was recognized as a legitimate degree. The Board considered the numerous advanced degrees from USAT in such a short time period as evidence the degrees did not represent a legitimate course of study. Mr. Esteban also provided a copy of a National Registry of Emergency Medical Technicians certificate indicating “Ernest C. Esteban” was a certified Emergency Medical Technician – Ambulance issued on November 29, 1980. Mr. Esteban informed Board staff that the certificate was his son’s, who shares his name, and was accidentally included in the packet. Board staff noted that Mr. Esteban’s son would have been a young child in 1980 when the certificate was issued. On February 21, 2013, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Mr. Esteban’s registered nurse license and licensed practical nurse license under A.R.S. § 32-1601(16)(d), (g), (h), and (j) (2002); A.R.S. § 32-1601(18)(d), (g), (h), and (j) (2009); A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012); A.C.C. R4-19- 403(15) and (25) (1995); A.C.C. R4-19-403(B)(20), (27), and (31) (2005); A.C.C. R4-19-403(9), (10), (13), (20), (27), (31) (2009); and A.A.C. R4-19- 402(B)(2) (2009). The Complaint and Notice of Hearing was sent via certified mail to Mr. Esteban at his address of record. The Complaint and Notice of Hearing also alleged that cause existed to rescind or take other disciplinary action against ACLS under A.R.S. § 32- 1663; A.A.C. R4-19-805(A)(2)(c); A.A.C. R4-19-801(B)(3); A.A.C. R4-19- 801(C), and A.A.C. R4-19-801(D). The Complaint and Notice of Hearing was sent via certified mail to ACLS at its address of record. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on April 17, 2013. The Board submitted 20 exhibits and presented the testimony of eight witnesses: (1) Jessica Cana, Weekend Nursing Supervisor at Desert Blossom; (2) Ms. McFerrin; (3) Sabrina Lukavsky, a graduate of ACLS; (4) Flor Rios, a graduate of ACLS; (5) Steven Tenud, a graduate of ACLS; (6) Valerie Smith, Consultant to the Executive Director of the Board; (7) Opal Wagner, Nurse Practice Consultant with the Board; and (8) Pamela Randolph, Associate Director of Education with the Board. Mr. Esteban did not request to appear telephonically at the duly noticed hearing. Mr. Esteban requested a continuance the day prior to the hearing, and that request was denied. Although the start of the hearing was delayed 25 minutes to allow Mr. Esteban additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Mr. Esteban did not present any evidence to defend his licenses. ACLS did not request that a representative be allowed to appear telephonically at the duly noticed hearing and did not request a continuance. Although the start of the hearing was delayed 25 minutes to allow an ACLS representative additional travel time, no one appeared, personally or through an attorney, and no one contacted the OAH to request that the start of the hearing be further delayed. Consequently, ACLS did not present any evidence to defend its approval as a nursing assistant training program. CONCLUSIONS OF LAW The Complaints and Notices of Public Hearing that the Board mailed to Mr. Esteban and ACLS at their addresses of record was reasonable, and they are deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). The Board bears the burden of proof and must establish cause to penalize Mr. Esteban’s licenses and ACLS’s approval as a nursing assistant training program by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary 1120 (8th ed. 2004). The Board established that Mr. Esteban committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(d), (g), (h), and (j) (2002); A.R.S. § 32- 1601(18)(d), (g), (h), and (j) (2009); A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012);[1] A.C.C. R4-19-403(15) and (25) (1995); A.C.C. R4-19- 403(B)(20), (27), and (31) (2005); A.C.C. R4-19-403(9), (10), (13), (20), (27), (31) (2009);[2] and A.A.C. R4-19-402(B)(2) (2009).[3] Given Mr. Esteban’s ongoing untruthfulness with respect to his education and qualifications and his failure to appear at the duly noticed hearing, Mr. Esteban cannot be regulated at this time. In light of the risk of potential harm to patients, the Board established cause to revoke, suspend, or otherwise discipline Mr. Esteban’s licenses under A.R.S. § 32-1663(D)[4] and A.R.S. § 32-1664(N).[5] The Board established that ACLS violated the rules governing nursing assistant training programs. Specifically, ACLS was in violation of A.A.C. R4-19-805(A)(2)(c);[6] A.A.C. R4-19-801(B)(3);[7] A.A.C. R4-19-801(C),[8] and A.A.C. R4-19-801(D).[9] In light of the risk of potential harm to patients by means of nursing assistants not trained in accordance with Board policies and procedures, the Board established cause to rescind or take other disciplinary action against ACLS under A.R.S. § 32-1663. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Respondent Ernest Constantine Esteban’s Licensed Practical Nurse License No. LP030781 and Registered Nurse License No. RN133038. It is further recommended that the Board rescind the approval of the nursing assistant training program previously granted to ACLS. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, May 23, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge Transmitted electronically to: Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] A.R.S. § 32-1601(16)(d), (g), (h), and (j) (2002); A.R.S. § 32- 1601(18)(d), (g), (h), and (j) (2009); A.R.S. § 32-1601(22)(d), (g), (h), and (j) (2012) define “unprofessional conduct” to include, respectively, (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. (g) Wilfully 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 this chapter or a rule that is adopted by the board pursuant to this chapter. [2] This rule further defines “unprofessional conduct” to include 9. Failing to take appropriate action to safeguard a patient's welfare or follow policies and procedures of the nurse's employer designed to safeguard the patient; 10. Failing to take action in a health care setting to protect a patient whose safety or welfare is at risk from incompetent health care practice, or to report the incompetent health care practice to employment or licensing authorities; . . . . 13. Failing to supervise a person to whom nursing functions are delegated; . . . . 20. Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate; . . . . 27. Making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education, or credentials; . . . . 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed. [3] R4-19-402(B)(2) requires than a registered nurse “[d]emonstrate honesty and integrity.” [4] A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. [5] A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license. [6] A.A.C R4-19-805(A)(2)(c) provides that “[t]he Board may rescind the approval of a nursing assistant training program or take other disciplinary action under A.R.S. § 32-1663 based on the number and severity of violations for . . . [n]oncompliance with federal, state, or if applicable, private postsecondary requirements.” [7] A.A.C. R4-19-801(B)(3) provides that: A nursing assistant training program shall promulgate written policies and procedures that are consistent with the policies and procedures of the parent institution, if any, and contain an effective and review date for each policy or procedure. The program shall provide a copy of its policies and procedures to each student on or before the first day the student participates in the program. The program shall develop and adhere to policies and procedures in the following areas: a. Student attendance ensuring that a student receives 120 hours of instruction or the equivalent of 120 hours; . . . . e. Instructor supervision of students in the clinical area, providing for: . . . . ii. Instructor rounds for each student according to patient or resident need and student ability; iii. Direct observation and documentation of student performance, consistent with course and clinical objectives.

[8] A.A.C. R4-19-801(C) provides that: 3. A program coordinator shall: . . . b. Ensure that instructors meet Board qualifications; and; c. Ensure that the written policies in subsection (B) are available to students on or before the first day of the program; 4. A program instructor shall: a. Hold a current, registered nurse license that is active and in good standing under A.R.S. Title 32, Chapter 15; and b. Possess one or more of the following: i. Credit for a course on teaching adults, ii. One year of experience teaching adults, or iii. One year of experience supervising nursing assistants. 5. For classroom and clinical, excluding hours spent in a traineeship, a program instructor shall: . . . . f. Supervise any student who provides care to clients in clinical areas, consistent with the requirements of subsection (B)(3)(e); g. Be present in the classroom during all instruction; and . . . . 6. A certified or licensed health care professional shall not assist the program instructor unless the health care professional has at least one year of experience in the field of licensure or certification and the learning activity is within the scope of practice of the licensee or certificate holder. A certified nursing assistant shall not provide classroom or clinical instruction in a nursing assistant training program. [9] A.A.C. R4-19-801(D)(1) provides that [a] nursing assistant training program shall provide a minimum of one clinical instructor for every 10 students if students perform one or more nursing assistant activities for a patient or resident. The program shall ensure that the instructor is physically present in the health care setting during each performance of a nursing assistant activity for a patient or resident.”

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

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