ALJDEC decisions subject to certification as final

12A-1112111-NUR · State Board of Nursing · 2012-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2012, at 8:00 a.m. APPEARANCES: Applicant Lisa LaNette Nelson appeared on her own behalf; the Arizona State Board of Nursing was represented by Elizabeth A. 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, 32-1663, and 32-1664. On or about November 25, 2011, Lisa LaNette Nelson (“Applicant”) submitted to the Board an Application for Certified Nursing Assistant (“CNA”) Certification by Endorsement (“the Application”). Applicant answered “No” to the following series of questions on the Application: i. Have you ever:

A. Been convicted, entered a plea of guilty, nolo contendere or no contest, been sentenced or served time in jail for any felony or undesignated offense?

B. Had prosecution deferred or probation deferred in any felony or undesignated offense?

C. Had a felony or undesignated offense pardoned, expunged, dismissed, deferred, reclassified or redesignated?

Applicant signed the Application to verify that she “[had] read and [understood] that failure to disclose the requested information or disclosure of false information or disclosure of misleading information may constitute fraud and may result in denial of licensure/certification . . . .” The Board assigned its Senior Investigator, Bonnie Richter, to investigate Applicant’s Application. Ms. Richter used Applicant’s fingerprints to obtain documents relating to her criminal history. Ms. Richter also obtained documents relating to Applicant’s employment history and interviewed Applicant. Ms. Richter prepared an Application Investigation Report to the Board that summarized the results of her investigation for the Board’s consideration. On or about September 19, 2012, the Board issued an Order of Denial based on the following: (1) Applicant’s conviction for Aid by Misrepresentation – Over $400, a felony, on or about July 6, 2006, in the Superior Court of California, County of Orange; (2) Applicant’s failure to submit to the Board a police report or investigative report for the felony offense or court documents that showed that the offense had been reduced to a misdemeanor; (3) Applicant’s failure to disclose her felony conviction to her former employer, Children’s Hospital of Los Angeles, and that employer’s termination of her employment for Applicant’s “disrespectful behavior toward staff and management”; and (4) Applicant’s failure to disclose her felony conviction or Children’s Hospital of Los Angeles’s termination to her former employer, Associated Health Professionals in Apple Valley, California. As a result of these events, the Board concluded that it had cause to deny Applicant’s Application under A.R.S. § 32- 1601(18)(a), (b), (d), (h), and (j) (effective September 30, 2009) and A.A.C. R4-19-814(6), (13), (23), (24), (26), and (29) (effective January 31, 2009). After Applicant requested a hearing, the Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on whether Applicant is qualified to be certified as a CNA. A hearing was held on December 7, 2012. The Board presented Ms. Richter’s testimony and submitted ten exhibits. Applicant testified on her own behalf. Hearing Evidence The July 2006 Felony Conviction for Aid by Misrepresentation – Over $400 On or about July 25, 2005, a Felony Complaint Warrant was issued against Applicant in the Superior Court of California, County of Orange Case No. 05NF3120 that described the charge against her as follows: On or about and between July 01, 2002 and January 30, 2003, in violation of Section 10980(c)(2) of the Welfare and Institutions Code (AID BY MISREPRESENTATION – OVER $400), a FELONY, LISA LANETTE NELSON, with the intent to deceive, by a material fact, impersonation, and other fraudulent device, did willfully, knowingly, and unlawfully obtain and retain aid under the provisions of Division 9 of the Welfare and Institutions Code in an amount exceeding four hundred dollars ($400) for the defendant and the children of the defendant, who were not in fact entitled to that aid.[1]

On or about July 6, 2006, Applicant pled guilty to the felony charge of Aid by Misrepresentation – Over $400.00 in Case No. 05NF3120. As a result, Applicant was sentenced to pay $3,036.00 in restitution and a $200.00 fine, to complete 30 days’ community service, and to be placed on probation for a term of three years. Applicant initialed to signify her agreement with the following recitation of the underlying facts for her guilty plea: In Orange County, California, on and between 7/1/02 and 1/30/03 I willfully, knowingly, unlawfully, with the intent to deceive, made false representations and withheld material facts (income that I received), relied upon by OC SSA, and thereby obtained aid ($3036.--) to which I was not entitled.[2]

The guilty plea provided that “[i]f [Applicant] completes 30 days comm. serv. & pays restitution [on] or before 7/12/07 that on 7/12/07 ct. 1 reduced per PC 17(b) and probation reverts to informal . . . .”[3] On or about March 25, 2008, a Modification Petition was filed in Case No. 05NF3120 by Applicant’s probation officer because Applicant had paid all the restitution that she had been ordered to pay, had made a good adjustment while on probation, and no longer required formal supervision.[4] Case No. 05NF3120 was closed on July 5, 2009.[5] The court file that the Board obtained pursuant to subpoena on or about June 28, 2012, did not contain an Order designating Applicant’s felony conviction in Case No. 05NF3120 as a misdemeanor, even though that appeared to have been the intent of the sentencing court. Ms. Richter testified that she called the Orange County Court to confirm that the felony had not been designated as a misdemeanor. Applicant testified credibly that until the Board denied her Application because she had been convicted of a felony, she did not know that the Orange County Court had not designated the offense as a misdemeanor pursuant to her plea agreement in Case No. 05NF3120. After the Board denied Applicant’s Application, she petitioned the Orange County Court to designate the crime in Case No. 05NF3120 as a misdemeanor. On or about August 8, 2012, the Orange County Court designated the crime in Case No. 05NF3120 as a misdemeanor pursuant to California Penal Code § 1203.4.[6] Applicant’s Responses to the Board’s Investigation On or about January 5, 2012, the Board sent a letter to Applicant informing her that it had obtained a criminal history based on her fingerprints and requesting that she complete an Arrest/Citation/Charge Questionnaire and provide copies of police or court documents and certificates or completion of court-ordered requirements.[7] On or about January 12, 2012, Applicant provided the following account of the crime that she had been convicted of in Case No. 05NF3120 on the Arrest/Citation/ Charge Questionnaire: I was working in 2002 and receiving welfare. I mailed in copies of my pay stubs every month except one time. The one time I did not because I became very ill and had to be hospitalized from 3-4 weeks. When I was released from [the hospital] I did mail pay stub even though it was late. The social worker never mailed me anything stating she was missing information. In 2006 on January 31 I was in the car as a passenger and we were pulled over and I was informed there was a warrant out for arrest for me Lisa LaNette Nelson. . . .[8]

Applicant also submitted a copy of a County of Orange Probation Department Billing Statement dated January 10, 2008, that showed the status of her restitution payments.[9] Complainant did not provide copies of any police reports or other court documents. On or about February 29, 2012, Ms. Richter on behalf of the Board sent a second letter to Applicant requesting police and/or court documents, certificates or completion of court-ordered requirements.[10] Applicant did not respond to the Board’s February 29, 2012 letter. On or about June 18, 2012, Ms. Richter on behalf of the Board sent a third letter to Applicant informing her that she had not responded to the Board’s February 29, 2012 letter and requesting police and/or court documents, certificates or completion of court-ordered requirements.[11] Ms. Richter testified that Applicant contacted her on June 25, 2012, wanting to know the status of her Application. Ms. Richter testified that Applicant stated that she had not received the February 29, 2012 letter or the June 18, 2012 letter. Ms. Richter testified that she told Applicant that the Board needed the documents from the court and the police regarding the investigation and prosecution of the felony in Case No. 05NF3120. Ms. Richter testified that on June 25, 2012, Applicant stated that the conviction was not for a felony. Ms. Richter testified that on July 5, 2012, Applicant stated in a telephone conversation that she had filed a motion in Case No. 05NF3120 to designate the offense as a misdemeanor. On or about August 8, 2012, Applicant faxed to the Board copies of the following documents: (1) Applicant’s letter to Michael Redwood, the Supervising Probation Officer of the Orange County Probation Department, requesting copies of her pay stubs and “[p]roof AFDC contacted the financial department before sending to probation department”; (2) Mr. Redwood’s letter dated July 25, 2012, informing Applicant that the Probation Department did not have the records she had requested and suggesting that she contact the Orange County Social Services Department; and (3) A letter from the Orange County Public Defender informing Applicant that her motions to reduce the felony charge to a misdemeanor had been filed and were scheduled for hearing on August 8, 2012.[12] Applicant testified credibly that she had made the following efforts to obtain the documents that the Board requested: (1) She had called the police department in Orange County and was informed that to get information from its records she would have to personally appear at the police station and be fingerprinted; and (2) She had spoken to Kelly Martinez in Special Cases at the Orange County Welfare Department on November 28, 2012, and Ms. Martinez stated that there was no record of Applicant’s offense because the Department had closed the case after seven years. Applicant testified that Ms. Martinez promised to write a letter confirming the telephone conversation but had not yet sent anything to Applicant. Applicant credibly testified that she did not know that if she had been convicted of a felony that was later designated as a misdemeanor, she still was required to report it. / / / / / / / / Applicant’s Employment History The Board obtained pursuant to its subpoenas records from Applicant’s former employers, Children’s Hospital of Los Angeles and Associated Health Professionals of Apple Valley, California. The employment application for the Children’s Hospital of Los Angeles was dated February 4, 2008.[13] Applicant answered “No” to the question on the application, “Have you ever been convicted of a crime? (other than minor traffic violations).”[14] Applicant signed the application to certify “that the answers given by me to the foregoing questions and statements are true, correct, and without omissions.”[15] Ms. Richter testified that Applicant’s statement on the employment application for Children’s Hospital of Los Angeles was not true because she had been convicted of the felony of Aid by Misrepresentation – Over $400.00 on July 6, 2006 in Case No. 05NF3120. On or about February 8, 2009, Applicant received a written disciplinary warning from Children’s Hospital of Los Angeles for “disrespectful behavior toward staff and management, which is causing disharmony on and off the unit . . . .”[16] According to the employment record, the warning was based on four incidents: (1) Applicant had refused to work on Easter, even though she had not submitted a vacation request and Applicant’s supervisor had assigned Applicant to work based on seniority; (2) Applicant was not receptive to feedback from a registered nurse who advised Applicant that she should have personally notified the RN of a patient’s fever so that the patient could be immediately medicated, rather than simply noting the fever on the patient’s chart; (3) Applicant took excessive breaks, did not take a patient’s vital signs at the end of shift as needed, was caught napping in public areas with a blanket over her head, and was disrespectful to the charge nurse when she tried to point out these issues; and (4) When Applicant had been working for a couple of days in a row, she did not want to get a report from the off-going CNA because she could look over the chart; however, staff reported that Applicant gave very thorough reports to them.[17] According to the documentation obtained from Children’s Hospital of Los Angeles, on or about April 24, 2009, Children’s Hospital of Los Angeles terminated Applicant’s employment because she failed to adequately address the issues identified in the written warning and additional issues had come up.[18] On or about October 6, 2009, Applicant submitted an application for employment to Associated Health Professionals Inc. of Apple Valley. On the application, Applicant checked the responses, “No,” to the following questions: Have you ever: . . . .

* Been convicted of a misdeamenor [sic] or felony, including traffic violations? . . . . . . .

* Have you ever been released or discharged from employment or resigned to avoid such release or discharge?[19]

Ms. Richter testified that Applicant’s responses to these questions on the application were not true because Application had been convicted of a felony in Case No. 05NF3120 and had been terminated from her employment by Children’s Hospital of Los Angeles. Applicant identified Children’s Hospital of Los Angeles as a former employer on the application for employment at Associated Health Professionals Inc. of Apple Valley and authorized it to perform a confidential reference inquiry. Children’s Hospital of Los Angeles confirmed Applicant’s employment but declined to provide an evaluation of her skills due to “policy.”[20] An evaluation of Applicant at Associated Health Professionals Inc. of Apple Valley rated her as exceeding expectations in the following two areas: 5. Provides thorough patient care (bath, oral care, linen change, etc) as appropriate. . . . .

7. Demonstrates positive attitude and good communication skills with patient and staff.[21]

Applicant met expectations in all other areas noted. Applicant testified that the conviction in Case No. 05NF3120 for welfare fraud had nothing to do with her performance of her professional responsibilities during her employment as a CNA and that she is an excellent nurse who enjoys working with people. Applicant testified that at least on one floor at Children’s Hospital of Los Angeles, her job went very well. Applicant testified that the California board did not discipline her California CNA license after the conviction in Case No. 05NF3120, even though the California board required her to undergo fingerprinting in 2006 and 2008. Applicant testified that if the Arizona Board does not grant her Application for a CNA certificate, she will have to return to California. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(B)(5). Applicant bears the burden of proof to establish that she is qualified to be certified as a CNA by a preponderance of the evidence.[22] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[23] 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.”[24] The Board may deny Applicant’s Application for CNA certification if she has committed an act of unprofessional conduct.[25] Applicant acknowledged that she pled guilty to Aid by Misrepresentation – Over $400.00, a felony, in Case No. 05NF3120 on July 6, 2006. Applicant’s crime was still designated as a felony when she submitted the Application and even if it had been designated as a misdemeanor, because welfare fraud is a crime involving moral turpitude,[26] it constitutes unprofessional conduct as defined by A.R.S. § 32-1601(18)(b).[27] . Although the fact of expungement or later misdemeanor designation does not excuse a person from disclosing the fact of a felony conviction,[28] the effect of a person’s failure to disclose the conviction may depend on whether the nondisclosure “amounted to actual or legal fraud.”[29] Applicant credibly testified that she did not know that the offense had not been designated as a misdemeanor when she successfully completed her sentence, as the court promised in the plea agreement in Case No. 05NF3120, or that she still was required to disclose the conviction. Although Applicant’s failure to disclose the felony does not constitute fraud or misrepresentation, she still knew that she had a conviction that had been a felony when she entered the plea agreement and believed that the offense had been designated as a misdemeanor. When Applicant answered “No” to the question on the Application about a felony that had been expunged or reclassified, she committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(a)[30] and A.R.S. § 32-1601(18)(d),[31] as further defined by A.A.C. R4-19-814(24),[32] and A.R.S. § 32-1601(18)(j).[33] The Children’s Hospital of Los Angeles employment application and the Associated Health Professionals Inc. of Apple Valley employment application asked whether Applicant had been convicted of any crime. Even though Applicant thought the felony had been designated as a misdemeanor, she knew that she had been convicted of a crime. Therefore, when Applicant answered “No” to these questions, she committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(d) and (j), as further defined by A.A.C. R4-19- 814(26).[34] Applicant did not receive the Board’s February 29, 2012 letter and she established that the police records and additional court documents that the Board requested in its investigation are not available. Applicant’s account of her crime on the January 12, 2012 Arrest/Citation/ Charge Questionnaire makes the crime sound like an unfortunate mistake for which she does not bear any personal responsibility. In contrast to the misconduct that Applicant admitted in the July 6, 2006 plea agreement in Case No. 05NF3120, Applicant’s account on the January 12, 2012 Arrest/Citation/Charge does not acknowledge that she intentionally kept welfare benefits to which she knew she was not entitled. Although Applicant’s failure to disclose to the Board the full extent of her crime calls into question the extent of her rehabilitation, because the Notice of Denial did not charge her failure to make full disclosure as additional unprofessional conduct as defined by A.R.S. § 32-1601(18)(d) and (j), as further defined by A.A.C. R4-19-814(23),[35] her failure cannot be considered as additional grounds to deny her Application.[36] The statements about Applicant’s performance of her CNA duties in the employment records from Children’s Hospital of Los Angeles and Associated Health Professionals Inc. of Apple Valley were inconsistent. Moreover, these statements are hearsay.[37] Although hearsay may be admitted in an administrative hearing,[38] it should not be relied upon if it is not the kind of evidence upon which reasonable persons would rely in serious matters.[39] Because reasonable persons would not rely upon the statements in the Children’s Hospital of Los Angeles employment records to determine whether Applicant is a caring, competent, and professional CNA who should receive nursing assistant certification, the record does not show that Applicant committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(d) and (j), as further defined by A.A.C. R4-19-814(6)[40] and (29).[41] No evidence shows that Applicant ever committed an act that deceived, defrauded, or harmed the public or took money or property from an individual. Therefore, Applicant did not commit unprofessional conduct as defined by A.R.S. § 32-1601(18)(h)[42] or A.R.S. § 32-1601(18)(d) and (j), as further defined by A.A.C. R4-19-814(13).[43] Applicant did not overcome the Board’s evidence that she committed unprofessional conduct by committing a misdemeanor involving moral turpitude and by failing to disclose her criminal conviction on her Application for Nursing Assistant Certification and on her employment applications to Children’s Hospital of Los Angeles and to Associated Health Professionals Inc. of Apple Valley. Because Appellant did not establish that she is rehabilitated, she has not established that she is eligible for Nursing Assistant Certification in Arizona under A.R.S. § 32- 1663(A)[44] at this time. RECOMMENDED ORDER In light of the Board’s evidence of Applicant Lisa LaNette Nelson’s acts of unprofessional conduct and lack of rehabilitation, it is recommended that the Board affirm its decision to deny her Application for Nursing Assistant Certification and dismiss her appeal. 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, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The Board’s Exhibit 2 at 2. [2] Id. at 8. [3] Id. at 10. [4] See id. at 5. [5] See id. at 18. [6] See the Board’s Exhibit 7 at 2. [7] See the Board’s Exhibit 3 at 2. [8] The Board’s Exhibit 3 at 5. [9] See id. at 6. [10] See the Board’s Exhibit 4. [11] See the Board’s Exhibit 5. [12] See the Board’s Exhibit 6. [13] See the Board’s Exhibit 8 at 1. [14] Id. at 7. [15] Id. at 7-8. [16] The Board’s Exhibit 8 at 25. [17] See id. at 25. [18] See id. at 22. [19] The Board’s Exhibit 9 at 5. [20] See the Board’s Exhibit 9 at 7. [21] The Board’s Exhibit 9 at 8. [22] 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). [23] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [24] Black’s Law Dictionary at 1220 (8th ed. 1999). [25] See A.R.S. § 32-1646(A)(4). [26] See, e.g., Mendoza v. Immigration & Naturalization Service, 16 F.3d 335, 336 (9th Cir. 1994). [27] A.R.S. § 32-1601(18)(b) (effective September 30, 2009) defines “unprofessional conduct” as follows: 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. [28] See Russell v. Royal Maccabees Life Insurance Co., 193 Ariz. 464 ¶ 27, 470, 974 P.2d 443, 450 (App. 1998). [29] Id., 193 Ariz. at 472 ¶ 32, 974 P.2d at 451. [30] A.R.S. § 32-1601(18)(a) (effective September 30, 2009) defines “unprofessional conduct” to include “[c]ommitting fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter.” [31] A.R.S. § 32-1601(18)(d) (effective September 30, 2009) defines “unprofessional conduct” to include “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” [32] A.A.C. R4-19-814(24) (effective January 31, 2009) provides standards of conduct for nursing assistants and further defines “[a]ny 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(18)(d) to include “[e]ngaging in fraud or deceit regarding the certification exam or an initial or renewal application for certification.” [33] A.R.S. § 32-1601(18)(j) (effective September 30, 2009) defines “unprofessional conduct” to include “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [34] A.A.C. R4-19-814(26) (effective January 31, 2009) further defines “[a]ny 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(18)(d) to include “[m]aking a false or misleading statement on a nursing assistant or health care related employment or credential application concerning previous employment, employment experience, education, or credentials.” [35] A.A.C. R4-19-814(23) (effective January 31, 2009) further defines “[a]ny 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(18)(d) as “[f]ailing to cooperate with the Board during an investigation . . . of a matter reported under A.R.S. § 32-1664.” A.R.S. § 32-1664 concerns the Board’s power to conduct investigations. [36] A.R.S. § 41-1092.05(D)(4) requires agencies to include in their Notices of Hearing or charging documents “[a] short and plain statement of the matters asserted.” “Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.” Webb v. Arizona Board of Medical Examiners, 202 Ariz. 555, 558, ¶ 9, 48 P.3d 505, 508 (App. 2002) (citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999)). [37] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [38] See A.R.S. § 41-1092.07(F)(1). [39] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [40] A.A.C. R4-19-814(23) (effective January 31, 2009) further defines “[a]ny 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(18)(d) as “[f]ailing to follow an employer’s policies and procedures, designed to safeguard the patient or resident.” [41] A.A.C. R4-19-814(29) (effective January 31, 2009) further defines “[a]ny 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(18)(d) as “[p]racticing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed.” [42] A.R.S. § 32-1601(18)(h) (effective September 30, 2009) defines “unprofessional conduct” to include “[c]ommitting an act that deceives, defrauds or harms the public.” [43] A.A.C. R4-19-814(13) (effective January 31, 2009) further defines “[a]ny 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(18)(d) as “[r]emoving, without authorization, any money, property, or personal possessions, or requesting payment for services not performed from a patient, resident, employer, co-worker, or member of the public.” [44] A.R.S. § 32-1663(A) provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.”

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