ALJDEC decisions subject to certification as final

10A-0902044-NUR · State Board of Nursing · 2010-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2010 APPEARANCES: Applicant George Gardner appeared personally. The Arizona State Board of Nursing was represented by Assistant Attorney General Seth T. Hargraves. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Arizona State Board of Nursing (“Board”) is the authority for certifying and regulating certified nursing assistants in the State of Arizona. 2. This matter came on for hearing the appeal by George Gardner of the Board’s denial of his application for nursing assistant certification. 3. On January 5, 2009, Mr. Gardner submitted an application for certified nursing assistant to the Board. 4. By letter dated March 4, 2009, the Board’s senior investigator, Frank Curatola, informed Mr. Gardner that the Board received criminal history information from the fingerprints submitted by Mr. Gardner. Mr. Curatola informed Mr. Gardner that the Board would present his application to the Board. Mr. Curatola requested that Mr. Gardner complete the criminal history questionnaire sent with the letter and return them to the Board within four weeks. 5. By letter dated March 4, 2009, the Board’s Executive Director, Joey Ridenour, R.N., M.N., F.A.A.N., requested criminal records for Mr. Gardner from the Dewitt County Sheriff’s Department in Clinton, Illinois. 6. By letter dated March 4, 2009, Executive Director Ridenour transmitted a subpoena duces tecum for Mr. Gardner’s criminal records to the Tempe Police Department. 7. By letter dated March 4, 2009, Executive Director Ridenour transmitted a subpoena duces tecum for Mr. Gardner’s criminal records to the Tempe Municipal Court. 8. On March 4, 2009, Executive Director Ridenour transmitted a subpoena duces tecum for Mr. Gardner’s criminal records to the Mesa Municipal Court. 9. On or about March 9 and 13, 2009, the Tempe Municipal Court provided the Board with Mr. Gardner’s criminal records. 10. On March 10, 2009, the City of Mesa Police Department submitted Mr. Gardner’s criminal records in response to a Board subpoena duces tecum. 11. By letter dated March 13, 2009, Executive Director Ridenour requested criminal records for Mr. Gardner from the Dewitt County 6th Judicial Circuit Court. 12. By letter dated March 13, 2009, Executive Director Ridenour transmitted a subpoena duces tecum for Mr. Gardner’s criminal records to the Casa Grande Police Department. 13. By letter dated March 13, 2009, Executive Director Ridenour transmitted a subpoena duces tecum for Mr. Gardner’s criminal records to the Casa Grande City Court. 14. On March 16, 2009, the Board received criminal records for Mr. Gardner from the Tempe Police Department. 15. On or about March 17, 2009, the Mesa Municipal Court submitted Mr. Gardner’s criminal records to the Board. 16. On April 3, 2009, the Board received criminal records for Mr. Gardner from the Austin Police Department. 17. By letter dated April 3, 2009, Mr. Curatola sent Mr. Gardner a second questionnaire to complete since he had not complied with the first request. Mr. Curatola requested that Mr. Gardner complete the questionnaire and return it to the Board within two weeks. Mr. Curatola’s letter also contained the following warning to Mr. Gardner:

Failure to cooperate with the Board during an investigation may be considered a violation of the Nurse Practice Act, and the Board may take disciplinary measures against your application, including DENIAL of your application. (Emphasis in the original).

18. By letter dated April 21, 2009, Mr. Curatola sent Mr. Gardner a third request for his submission of the criminal history questionnaire. Mr. Curatola’s letter informed Mr. Gardner that “[t]his will be the final request for this information.” (Emphasis in the original). Mr. Curatola’s letter also contained the warning set forth in Finding of Fact No. 17 above. 18. By letter dated October 30, 2009, Executive Director Ridenour informed Mr. Gardner that his application would be considered by the Board at its meeting on November 18, 2009. 19. On November 18, 2009, the Board voted 6 to 0 to deny Mr. Gardner’s application for nursing assistant certification. 20. On November 19, 2009, the Board, through Executive Director Ridenour, issued an Order of Denial No. 0902044, which contained Findings of Fact, Conclusions of Law, and Order denying Mr. Gardner’s application. The Order of Denial No. 0902044 is incorporated herein by reference. 21. On January 4, 2010, the Board received Mr. Gardner’s written request to appeal the Board’s denial of his application. 22. The Board forwarded Mr. Gardner’s appeal to the Office of Administrative Hearings, an independent agency, for formal hearing. 23. Mr. Gardner’s wife, Jacqueline Gardner, testified that Mr. Gardner is an active member in Alcoholics Anonymous. She stated that Mr. Gardner cares about people, he is very honest, and he has been working hard correcting himself. 24. Larry Ritterbach has been a member of Alcoholics Anonymous for 33 years. He confirmed that Mr. Gardner is active in Alcoholics Anonymous, including helping to clean its facility. Mr. Ritterbach opined that Mr. Gardner seems like a good guy. 25. Mr. Gardner testified that he lived a careless life in the past, but that he has been working hard to change his lifestyle. Mr. Gardner has been trying to rehabilitate himself. 26. Mr. Gardner acknowledged receiving correspondence from the Board and not responding to the Board’s numerous requests for information. Mr. Gardner claimed that he did not know how to obtain the requested information. However, Mr. Gardner failed to respond in any manner to the Board’s numerous requests. 27. Susan Barber, R.N., M.S.N., is a Nurse Practice Consultant for the Board. Ms. Barber has been with the Board for approximately 23 years. 28. Ms. Barber testified that honesty and reporting are important traits for a certified nursing assistant. 29. Mr. Gardner has an extensive criminal history showing a pattern of alcohol use resulting in criminal activity. 30. Mr. Gardner successfully completed the certified nursing assistant program. 31. Mr. Gardner should be commended for his personal commitment to, and positive steps towards, rehabilitation. 32. However, the Board has a legitimate concern pertaining to Mr. Gardner’s failure to respond to the Board’s numerous requests for information about his criminal history. A certified nursing assistant must be compliant with the Board. Mr. Gardner’s failure to respond to the Board’s three requests shows a pattern of non-compliance. Mr. Gardner’s lack of compliance with the Board’s requests for information resulted in the Board having to conduct an intensive investigation. If Mr. Gardner cannot be compliant with the Board while attempting to become certified as a nursing assistant, then his ability to be regulated if approved to become a certified nursing assistant does not appear likely at this time. CONCLUSIONS OF LAW 1. The Board has jurisdiction over the appeal in this matter. 2. Pursuant to A.R.S. § 41-1092.07(G) (1) and A.A.C. R2-19-119(B), Mr. Gardner has the burden of proving his eligibility for certification as a nursing assistant in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The Board has cause to deny Mr. Gardner’s application for certification pursuant to A.R.S. §§ 32-1646 and 32-1663(A), as defined in A.R.S. § 32-1601(16) (b), (d), (h), and (j), and A.A.C. R4-19- 814(B) (14) (adopted effective December 5, 2005), and A.A.C. R4-19- 814(23) (a) and (c) (adopted effective February 2, 2009). The above Findings of Fact support this conclusion. 4. The evidence of record does not support a conclusion that A.R.S § 32- 1663(B) is applicable in this matter. There is no evidence in the record that Mr. Gardner obtained a temporary nursing assistant certification, pursuant to A.R.S. § 32-1646(A) (5). 5. The evidence of record does not support a conclusion that A.A.C. R4-19- 814(B) (13) is applicable in this matter. RECOMMENDED ORDER Respondent’s appeal in this matter shall be dismissed on the effective date of the Order entered in this matter. The Board’s denial of Mr. Gardner’s application for nursing assistant certification is upheld and affirmed.

Done this day, March 24, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

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

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