ALJDEC decisions subject to certification as final

10A-1008027-NUR · State Board of Nursing · 2010-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 2010 at 8:00 a.m. APPEARANCES: The Arizona State Board of Nursing appeared through Emma Mamaluy, Esq., Assistant Attorney General; Respondent Vicki L. Bailey did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. 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 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. 2. The Board issued Certified Nursing Assistant Certificate No. CNA999948995 to Respondent Vicki L. Bailey to allow her to practice as a certified nursing assistant in the State of Arizona. 3. On or about August 2, 2010, the Board received a complaint from Kristen Robb, an administrator for Respondent’s employer, Caring Senior Service in Scottsdale, Arizona. Ms. Robb reported that Respondent had used a false Social Security number to conceal her criminal history when she applied for employment at Caring Senior Service. Ms. Robb also reported that a client’s daughter, RJ, had accused Respondent of theft while she was caring for the client at RJ’s home. 4. The Board determined that public health, safety, and welfare imperatively required emergency action, and voted to summarily suspend Respondent’s certified nursing assistant (“CNA”) certificate. 5. On November 2, 2010, the Board issued a Complaint and Notice of Hearing, setting an expedited evidentiary hearing on December 2, 2010, in the Office of Administrative Hearings (“the OAH”), an independent agency. 6. The Complaint and Notice of Hearing alleged that cause existed to revoke Respondent’s CNA certificate under A.R.S. §§ 32-1663 and 32-1664(B), based on Respondent’s misrepresentations on her employment application to Caring Senior Service, theft from RJ, and failure to disclose her criminal background on the license renewal applications that she submitted to the Board in 2007 and 2009. 7. The Board sent a copy of the Complaint and Notice of Hearing to Respondent at her last known address. The United States Postal Service returned the Complaint and Notice of Hearing to the Board as “moved left no address unable to forward.” 8. An expedited hearing was held on December 2, 2010. The Board submitted 18 exhibits and presented the testimony of three witnesses: (1) Ms. Robb, the administrator (presently agency director) at Caring Senior Service, who made the complaint; (2) Scottsdale Police Department Detective Rebecca Gavin, who investigated Respondent’s misappropriation of a Social Security number; and (3) Ron Lester, Sr., the Board’s senior investigator who investigated the complaint. 9. Although the beginning of the hearing was delayed fifteen minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Respondent did not present any evidence to defend her CNA certificate. Hearing Evidence Respondent’s Employment at Caring Senior Service 10. As part of its business, Caring Senior Service dispatches certified nursing assistants and other health care providers to the homes of vulnerable elderly patients to render care and assistance. On or about January 5, 2010, Respondent submitted an application to work for Caring Senior Service. Respondent completed five documents during the application process: (1) An application form; (2) A Criminal History Check; (3) A Form I-19 for Employment Eligibility Verification; (4) A Form W-4 Withholding Allowance for federal taxes; and (5) A Form A-4 for Arizona Withholding Percentage election. 11. Respondent provided her Social Security number as having the last four digits, “3355” on the application form and Criminal History Check. Although Respondent wrote the first “3” with a loop at the bottom, it clearly was the number “3.” Respondent’s Social Security number does not have as its last four digits, “3355.” 12. Respondent provided her Social Security number as having the last four digits, “2355” on the Form I-19 for Employment Eligibility Verification, Form W-4 Withholding Allowance for federal taxes, and Form A-4 for Arizona Withholding Percentage election. Respondent’s true Social Security number has as its last four digits, “2355.” 13. Caring Senior Service’s employee who processed Respondent’s employment application did not notice that she used two Social Security numbers. Caring Senior Service performed a criminal background check using the Social Security number that Respondent had provided that had as its last four digits, “3355,” found no criminal history, and hired Respondent. 14. RJ’s father lives in her home in Chandler, Arizona and has been diagnosed with Alzheimer’s disease. On July 30, 2010, Caring Senior Service sent Respondent to provide care services for RJ’s father for an evening when RJ would not be at home. 15. Respondent arrived at approximately 6:30 p.m. on July 30, 2010, and spent approximately a half hour with her supervisor and RJ, going over RJ’s father’s needs. RJ’s father’s bedroom is at the end of a hall, with a guest bathroom next door. 16. RJ’s bedroom is the master suite at the other end of the hall. RJ left two gold bracelets that she decided not to wear on the counter in the master bathroom. RJ kept her grandmother’s diamond and ruby wedding ring in a velvet pouch in a cabinet beneath the counter in the master bathroom. When RJ left Respondent, the doors to the master bedroom and master bathroom were closed. Respondent had no reason to go into the master bedroom or master bathroom. 17. Caring Senior Service’s policies require employees to remain in the area of a home where they will render care to a patient. 18. RJ left Respondent alone with her father at approximately 7:00 p.m. on July 30, 2010. RJ returned at approximately 12:45 a.m. and signed Respondent’s progress note. Respondent immediately left. 19. On August 1, 2010, RJ looked for the gold bracelets where she had left them in the master bathroom, could not find the bracelets, and reported Respondent’s theft to Ms. Robb. Ms. Robb and RJ both reported the theft to the Chandler Police Department (“CPD”). RJ later realized that her grandmother’s wedding ring and her father’s wallet were also missing. RJ later located the wallet in a pair of pants that her father had not been wearing on July 30, 2010, but discovered that a $100 bill was missing from the wallet. 20. RJ was distraught because the jewelry had great sentimental as well as monetary value. She contacted a television station, “3 on Your Side,” and it aired a segment on the theft. 21. When Ms. Robb confronted Respondent about the theft, she denied it. On August 3, 2010, Caring Senior Service terminated Respondent’s employment. 22. CPD opened an investigation. When CPD interviewed Respondent, she denied the theft. On August 7, 2010, CPD’s investigation was suspended for “lack of suspects/leads.” Respondent’s Violation of A.R.S. § 13-2310 and Criminal History 23. After RJ reported the theft of her jewelry, Ms. Robb examined Respondent’s employment application documents and discovered the two Social Security numbers that Respondent had used to obtain employment at Caring Senior Service. 24. On August 2, 2010, Ms. Robb reported Respondent’s misrepresentations on her employment application documents to the Scottsdale Police Department (“SPD”). Ms. Robb, SPD Detective Gavin, and Mr. Lester all performed criminal background checks on Respondent’s correct Social Security number and discovered that she had an extensive criminal history, in relevant part as follows. 1. On or about March 22, 2005, in Hot Spring County Circuit Court in Malvern, Arkansas, Case Number CR 2006-071-2, Respondent pled guilty to and was convicted of Breaking and Entering, a class D felony. As a result of the conviction, Respondent was placed on probation and fined. 2. On or about July 12, 2005, in Hot Spring County Circuit Court in Malvern, Arkansas, Case Number CR 2006-072-2, Respondent pled guilty to and was convicted of a Hot Check Violation, a class C felony. As a result of the conviction, Respondent was placed on probation and fined. 3. On or about January 10, 2008, in Hot Spring County Circuit Court in Malvern, Arkansas, Case Numbers CR 2006-71-2 and CR 2006-72-2, Respondent violated the terms of her probation by leaving the State of Arkansas and failing to pay $4,715.43 in fines. 4. On or about January 31, 2008, a warrant was issued for Respondent’s arrest with a bond amount of $5,000.00 in Hot Spring County Circuit Court, Case Numbers CR 2006-71-2 and CR 2006-72-2. Mr. Lester testified that he contacted the court and confirmed that the warrant was still outstanding. On the date of the hearing, personnel at the Office of Administrative Hearings were instructed that if Respondent appeared for the hearing, police were to be informed so that they could start the process of extraditing her back to Arkansas. 5. On or about May 25, 2007, Gilbert Police Department (“GPD”) officers cited Respondent for Driving on a Suspended Driver’s License in Gilbert, Arizona. The GPD report noted that Respondent had needle marks on her arms and hands. As a result, Respondent was criminally cited in Gilbert Municipal Court Case Number 2007TR14400OC. 6. On or about June 21, 200, and August 1, 2007, Gilbert Municipal Court issued arrest warrants for Respondent for failing to appear in Case Number 2007 TR14400OC. Mr. Lester testified that the warrant was still active and outstanding. 25. Detective Gavin testified that she attempted to contact Respondent at several different addresses and telephone numbers without success. Detective Gavin testified that Respondent has a history of using numerous aliases and is currently a fugitive from justice. 26. Detective Gavin testified that she believes that Respondent committed the crime of fraudulent schemes and artifices, in violation of A.R.S. § 13-2310,[1] when she used another person’s Social Security number to obtain employment at Caring Senior Service. Detective Gavin has submitted that charge to the Scottsdale City Attorney for prosecution. Respondent’s Licensing History and the Board’s Investigation 27. On or about May 23, 2007, and December 30, 2009, Respondent submitted applications to the Board to renew her CNA certificate. On the applications, Respondent answered, “No” to the following question Since your certificate was granted or your last renewal, whichever is later, have you ever been convicted, entered a plea of guilty, nolo contendre or no contest or have you ever been sentenced, served time in jail or prison, or had prosecution deferred or sentence deferred or probation deferred in any felony or undesignated offense?

28. On September 1, 2010, on behalf of the Board, Mr. Lester sent a letter to Respondent at her address of record, informing her of Ms. Robb’s complaint and asking her to furnish a completed investigative questionnaire to the Board within four weeks. 29. Four weeks later, on September 29, 2010, Mr. Lester sent a second letter to Respondent at her address of record, asking her to furnish a completed investigative questionnaire to the Board within two weeks and informing her that the Board could consider her failure to do so as a violation of the Nurse Practice Act. 30. Respondent never provided a completed investigative questionnaire to the Board. 31. On October 19, 2010, Respondent left a message for Mr. Lester with her current address and telephone number. After numerous attempts, on October 25, 2010, Mr. Lester spoke to Respondent in a telephone conversation, informing her of the complaint and the Board’s investigation. Respondent admitted the 2005 convictions for breaking and entering and issuing a hot check in Arkansas, but denied any theft from RJ or her father. Mr. Lester on behalf of the Board offered to allow Respondent to voluntarily surrender her CNA certificate. Respondent said she would think about it, but never contacted Mr. Lester, and he was unable to contact her again. 32. Mr. Lester went to Respondent’s last known address. Her landlord informed Mr. Lester that Respondent had moved out a week earlier and had left no forwarding address. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under A.R.S. §§ 32- 1606(B)(10) and (C), 32-1663(D), 32-1664, and 32-1646(A)(4). 2. The Complaint and Notice of Hearing that the Board mailed to Respondent at her last known address was reasonable, and she is deemed to have received notice of the hearing.[2] 3. The Board bears the burden of proof and must establish cause to penalize Respondent’s CNA certificate by a preponderance of the evidence.[3] 4. “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 “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.”[5] 5. The Board established that the public health, safety, and welfare imperatively required summary suspension of Respondent’s CNA certificate. 6. The Board also established that in the five years prior to Respondent’s submissions of the renewal applications in 2007 and 2009, Respondent was convicted of two felonies in Arkansas. The Board has therefore established that Respondent’s CNA certificate must be revoked under A.R.S. § 32-1646(B).[6] 7. The Board also has established that Respondent’s commission of the felony crimes of breaking and entering and of issuing a hot check in Arkansas constituted unprofessional conduct as defined by A.R.S. § 32- 1601(16)(d), (d), and (h) (effective May 9, 2002).[7] 8. The Board also established that Respondent stole jewelry from RJ and $100 from RJ’s father, and that Respondent committed the crime of fraudulent schemes and artifices by misrepresenting her Social Security number in order to be hired by Caring Senior Service and to thereby have an opportunity to commit the thefts. Respondent thereby committed unprofessional conduct as defined by A.R.S. §§ 32- 1601(18)(b), (d), (h), and (j) (effective October 14, 2009),[8] as further defined by A.A.C. R4-19-814(13), (21), (4), (17), and (31) (effective February 2, 2009).[9] 9. The Board also established that Respondent’s failure to disclose her two felony convictions on her 2007 renewal application constituted unprofessional conduct under A.R.S. § 32-1601(16)(d) and (j) (effective May 9, 2002), as further defined by A.A.C. R4-19- 814(B)(24) (effective December 5, 2005) and that Respondent’s failure to disclose her two felony convictions on her 2009 renewal application constituted unprofessional conduct under A.R.S. § 32- 1601(18)(d) and (j) (effective October 14, 2009), as further defined by A.A.C. R4-19-814(24) (effective February 2, 2009).[10] 10. The Board also established that Respondent committed unprofessional conduct under A.R.S. § 32-1601(18)(d) and (j), as further defined by A.A.C. R4-19-814(23)(a)[11] when she failed to provide to the Board a completed questionnaire in response to its request and the complaint that had been made against her. 11. The Board established cause to revoke Respondent’s CNA certificate under A.R.S. §§ 32-1663(D) and 32-1664(N) (effective October 14, 2009).[12] Respondent’s failure to attend the hearing or to take responsibility for the unprofessional conduct that the Board established at the hearing indicates that at this time she cannot be regulated. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its decision to summarily suspend Certified Nursing Assistant Certificate No. CNA999948995 previously issued to Respondent Vicki L. Bailey. The Administrative Law Judge further recommends that as a result of the statutory violations and unprofessional conduct that the Board established in this case, the Board revoke Certified Nursing Assistant Certificate No. CNA999948995 previously issued to Respondent Vicki L. Bailey. 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, December 21, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The statute provides in relevant part as follows:

A. Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony.

B. Reliance on the part of any person shall not be a necessary element of the offense described in subsection A of this section. . . . .

E. As used in this section, "scheme or artifice to defraud" includes a scheme or artifice to deprive a person of the intangible right of honest services.

[2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1120 (8th ed. 2004). [6] This statute provides as follows:

The board shall revoke a certificate of a person or not issue a certificate or recertification 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 prior to the date of filing an application pursuant to this chapter. [7] These statutory subsections define “unprofessional conduct” to include the following:

(b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. . . . .

(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. [8] These statutory subsections correspond to the same letters as the earlier version of the statute and further define “unprofessional conduct” to include the following:

(j) Violating a rule that is adopted by the board pursuant to this chapter.

[9] This rule concerns standards of conduct for certified nursing assistants and further defines “a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public” under A.R.S. § 32-1601(18)(d) to include the following:

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; . . . .

13. Removing, without authorization, any money, property, or personal possessions . . . from a patient, resident, employer, co-worker, or member of the public. . . . .

21. Threatening, harassing, or exploiting an individual; [or] . . . .

31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient, resident, or the public may be harmed.

[10] Both versions of the rule defined conduct that is or might be harmful or dangerous to the health of a patient or the public to include “[e]ngaging in fraud or deceit regarding the certification exam or an initial or renewal application. . . .” [11] This rule further defines conduct that is or might be harmful or dangerous to the health of a patient or the public to include “[f]ailing to cooperate with the Board during an investigation by . . . [n]ot furnishing in writing a complete explanation of a matter reported under A.R.S. § 32- 1664 . . . .” [12] These statutes provide that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke, suspend, or otherwise discipline the license.

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