ALJDEC decisions subject to certification as final

11A-0912103-NUR · State Board of Nursing · 2011-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2011, at 8:00 a.m. APPEARANCES: Applicant Harold Thomas St. Clair, Jr. appeared on his own behalf; the Arizona State Board of Nursing appeared through Elizabeth Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 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 determine whether applicants qualify for certification or licensure under the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667. On December 10, 2009, Harold Thomas St. Clair, Jr. (“Applicant”) submitted an Application for Re-issuance of his certification as a Certified Nursing Assistant (“CNA”) to the Board. Applicant disclosed his previous employment as a security guard at Universal Protective Services in Phoenix, Arizona. The Application for Re-issuance form required the following additional documents, in relevant part as follows: If the reason for revocation/voluntary surrender was based on physical abuse or verbal abuse, submit: • Psychological evaluations with psychometric testing. • Records of mental health counseling. • Evidence of completed course work or counseling on issues that would impact abusive behavior. • Letters of recommendation from current employers. (Emphasis in original.) Applicant did not submit any of these documents with his Application for Re-issuance. The Board assigned its investigator, Tim Chafey, to investigate Applicant’s Application for Re-issuance. Mr. Chafey obtained Applicant’s employment records from Applicant’s former employer and interviewed Applicant. The Board considered Mr. Chafey’s investigative report at its meeting on November 29, 2010, and voted unanimously to deny Applicant’s Application for Re-issuance. On November 29, 2010, the Board issued an Order of Denial, denying Applicant’s Application for Re-issuance under A.R.S. §§ 32-1646(A) and 32- 1663(A) and A.A.C. R4-19-815(1). Applicant requested a hearing on the Board’s denial of his Application for Re-issuance. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on April 26, 2011. Applicant testified on his own behalf. The Board presented the testimony of its nurse practice consultant, Susan Barber, and submitted six exhibits. Hearing Evidence The Consent Decree In August 2002, Applicant entered into a consent decree with the Board to resolve Case No. 0007028 (“the Consent Decree”). In the Consent Decree, Applicant voluntarily surrendered his CNA Certificate No. CNA465380933 and admitted to having committed numerous acts of unprofessional conduct as defined by applicable statutes and regulations during the course of his employment as a CNA by seven different employers between November 1996, and July 2000. The acts of unprofessional conduct that Respondent admitted are summarized below. Between approximately November 21, 1996, and June 6, 1997, Chula Vista Skilled Nursing and Rehabilitation in Mesa, Arizona (“Chula Vista”) employed Applicant. On or about May 28, 1997, Chula Vista gave Applicant a written warning after two patients complained that he was too rough with them. On June 6, 1997, Applicant’s no call/no show caused Chula Vista to terminate his employment and to declare him ineligible for rehire. Between approximately June 9, 1997, and March 16, 1998, Mi Casa Nursing Center in Mesa (“Mi Casa”) employed Applicant. Mi Casa gave Applicant two written warnings: (1) On or about January 28, 1998, Applicant left a resident in a brief full of feces and did not make the rounds on other residents; and (2) On or about February 20, 1998, Applicant refused to answer a resident’s call light and did not deliver residents’ food trays on time. On or about March 11, 1998, Mi Casa gave Applicant a corrective action with a recommendation for discharge after he partially turned his back on a resident who had limited vision while he was feeding her. On or about March 16, 1998, Mi Casa terminated Applicant’s employment for lack of effort and unsatisfactory performance. Between approximately July 1998, and February 15, 2002,[1] Dependable Nursing (“Dependable”), a registry, employed Applicant. Three clients to whom Dependable assigned Applicant rated him as unsatisfactory or asked Dependable not to assign him again: (1) On or about July 22, 1998, at St. Luke’s Medical Center, Applicant did not chart vital signs, spent a lot of time watching television, and needed direction and constant reminders to perform vital signs; (2) On or about September 14, 1998, at Kivel Care Center (“Kivel”), Applicant did not take direction well and left residents soiled and not turned; and (3) On or about April 23, 2000, Hearthstone of Mesa twice found Applicant sleeping while on duty. On or about October 19, 1998, Assisted Health Care (“Assisted”), another registry, employed Applicant. Two clients to whom Assisted assigned Applicant rated him as unsatisfactory or asked Assisted not to assign him again: (1) On or about November 14, 1998, at Kivel, Applicant did not use a gait belt when toileting residents, had a poor attitude, would not respond to nurses’ requests to serve those residents who needed to be fed last, did not knock on residents’ doors, and did not comply with repeated requests to put a diaper on a resident; and (2) On or about November 26, 1998, Capri Care Center cancelled Applicant’s shift after he arrived at the facility, yelled at staff, and had a “major attitude.” Between approximately August 16, 1999, and December 10, 1999, Good Shepherd Villa in Mesa (“Good Shepherd”) employed Applicant. Good Shepherd gave Applicant two written warnings: (1) On or about October 6, 1999, Applicant did not show for an assigned shift or call to say he would be absent (“no call/no show”); and (2) On or about December 10, 1999, Applicant sat in the dining room waiting for break, instead of working, and rendered improper perineum care. Between approximately May 16, 2000, and July 8, 2000, Springdale West Center (“Springdale West”) employed Applicant. Applicant admitted the following facts about his last day of employment at Springdale West when he signed the consent agreement: On or about July 8, 2000, [Applicant] was asked to leave the facility and was terminated after using abusive language with residents and staff. [Applicant] was heard referring to the requests of a supervising nurse as, “I’m getting tired of this girl. I’m gonna go home. I’m sick of this bullshit. I will go home.” [Applicant] became hostile when asked by his supervising nurse to give a resident a shower and stood within inches of the nurse pointing his finger in anger at the nurse. [Applicant] also told a resident, L.S., to shut up and “put her tongue back in her mouth.” When asked by the unit coordinator nurse to go home for being verbally abusive to residents, [Applicant] became verbally aggressive telling the nurse that they [sic] did not know who [sic] they were messing with. Facility staff telephoned the Mesa police who arrived and escorted [Applicant] out of the building.

Applicant attempted to offer “logical explanations” at hearing about the events described in the consent agreement. Because Applicant admitted that the events occurred when he signed the consent agreement, the Administrative Law Judge did not allow him to provide additional explanations. Applicant’s Work History after the Consent Agreement Between approximately June 27, 2006, and September 4, 2006, Anderson Security Agency (“Anderson”) employed Applicant as a security guard. The Board obtained Anderson’s employment records for Applicant through subpoena. According to Anderson’s records, on July 5, 2006, Anderson issued an Official Reprimand after Applicant was a no call/no show for his first assignment as a security officer on June 30, 2006, and later informed his supervisor that “he did not show up to work . . . because his mother did not give him money for gas,” and that he did not call off work because he “though[t] it was best to let it ‘Slid[e] and Ride.’” Applicant denied at the hearing that he was a no call/no show on this first assignment at Anderson. Instead, he testified that he informed Anderson that he was unable to take the first assignment. According to Anderson’s records, on September 4, 2006, it terminated Applicant for job abandonment after he quit without notice. Applicant testified that after this event, Anderson assigned him as a security guard at Trilogy, a partially completed residential gated community, where he worked for five weeks. Applicant testified that he was getting to know the residents, including a reverend who introduced himself to Applicant. Applicant testified that one morning he followed the framers into work and a gentleman in his late 50’s or early 60’s in a Ford F-150 truck with big all-terrain tires followed him, yelling about why the gate had been opened at such an early hour when the gentleman had been up all night. Applicant testified that Anderson found out about the incident and “pulled him out of Trilogy” because it could not have confrontations between employees and residents. Applicant also denied that Anderson terminated his employment. Instead, he testified that he stopped calling in for assignments and that if he did not call in, he did not have to show up for the assignment. Applicant testified that towards the end of his employment at Anderson, he just said, “Forget it.” Between approximately October 22, 2007, and November 24, 2008, Universal Security Solutions (“Universal”) employed Applicant as a security guard. Universal did not respond to the Board’s subpoena. Mr. Chafey’s Investigative Report to the Board of his interview summarized Applicant’s account of his termination from Universal as follows: He cited being fired from a security guard position because he’d been assigned to patrol a golf course that housed “high intensity” electrical lines, and he was fearful of being under the lines when a storm blew in. He stated “I just went home and when my boss called to tell me I was fired for leaving the job, I said [‘]ok, another St. Clair thing, ok, ok.[’]”

Applicant denied at the hearing that he told Mr. Chaffey that Universal terminated his employment because he left his post during an electrical storm. Applicant testified that during a big electrical storm, the lights went out and one employee stayed in the dark, but he left to look at the electrical panel. Applicant testified that after the electrical storm, Universal assigned him to work in a public storage call center. Applicant testified that the client accused him of stealing, but he told his supervisor that there was nothing to steal at the public storage call center. Applicant testified that the client also asked that he not return to the public storage call center, and Universal terminated the assignment “per client request.” Applicant testified that after Universal terminated the assignment at the public storage call center, his supervisor said that another assignment was opening up, but later said that the assigned security guard decided to stay. Other Evidence Applicant did not submit any of the documents that the Application for Re- issuance required, described at Finding of Fact No. 3, supra. Mr. Chafey did not testify at the hearing because the Board at that time no longer employed him. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). Applicant cannot collaterally attack in his appeal of the Board’s denial of his Application for Re-issuance the unprofessional conduct that he admitted in the consent agreement.[2] Applicant bears the burden of proof to establish by a preponderance of the evidence that he is qualified to be re-issued a CNA certificate in Arizona and that, therefore, the Board erred in denying his application.[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] A.A.C. R-19-815(1) requires that after a CNA has voluntarily surrendered his CNA certificate, the Board issue or reinstate a CNA certificate only if the applicant has submitted documentation showing that the bases for the voluntary surrender have been removed and that “the issuance or reinstatement of nursing assistant certification will no longer constitute a threat to the public health or safety.” Applicant did not establish at the hearing that the personality traits that caused him to commit the repeated acts of patient and staff abuse that he admitted in the Consent Agreement have been removed. Applicant did not establish that the poor work ethic that caused the repeated no call/no show incidents that he admitted in the Consent Agreement has been removed. Applicant finally did not establish that the re-issuance of his CNA will not constitute a threat to the public health or safety. Therefore, the Board did not err in denying his Application for Re-issuance under A.R.S. §§ 32-1646(A)(4) and 32-1663(A).[6] RECOMMENDED ORDER In light of Applicant Harold Thomas St. Clair, Jr.’s failure to establish by a preponderance of the evidence that the bases for the voluntary surrender of his CNA certificate in 2002 have been removed, it is recommended that the Board dismiss the appeal in Case No. 11A-0912103-NUR and affirm its denial of Applicant’s application for re-issuance of his CNA certificate. 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 16, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director Arizona State Board of Nursing ----------------------- [1] The employment dates in the consent agreement overlapped. The record in this matter does not reveal the volume or frequency of Applicant’s registry assignments. [2] See State of Arizona ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 337, 651 P.2d 862, 865 (App. 1982). [3] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; 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] A.R.S. §§ 32-1646(A)(4) and 32-1663(A) authorize the Board to deny recertification if an applicant for recertification has committed unprofessional conduct.

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