ALJDEC decisions subject to certification as final

13A-1205053-NUR · State Board of Nursing · 2014-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2014; the record closed on January 27, 2014 APPEARANCES: Applicant Shaundra Yvette Ward appeared on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT 1. On June 14, 2013, the Arizona State Board of Nursing (the “Board”) issued a Notice of Public Hearing on Denial of Certification/Licensure setting the above-captioned matter for hearing on January 7, 2014, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Applicant Shaundra Ward appeared and testified on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Board. The Board presented the testimony of its senior investigator, Bonnie Richter. 3. On June 3, 2011, Ms. Ward applied for certification as a Nursing Assistant by Endorsement and submitted an Application for Certified Nursing Assistant Certification by Endorsement (“Application”) to the Board. See Exhibit 1. Based upon the information Ms. Ward provided to the Board during the investigative process, an investigation was initiated. 4. After conducting its investigation, on September 26, 2013, the Board voted unanimously to deny Ms. Ward’s Application for Certified Nursing Assistant Certification.[1] See Exhibit 9. On September 26, 2013, the Board issued an Order of Denial to Ms. Ward. See Exhibit 10. Thereafter, Ms. Ward requested a hearing and this matter was referred to the Office of Administrative Hearings, an independent State agency. See Exhibit 11. The Investigation 5. Ms. Richter testified that on February 13, 2013, she interviewed Ms. Ward at the Board’s office. Ms. Richter testified that Ms. Ward admitted that she had been arrested for welfare fraud in 1999 in Riverside County, California. During the interview, Ms. Ward admitted that she had been receiving aid from the county while working and failed to report that she had become employed. Ms. Ward was arrested on a felony charge of Fraud to Obtain Aid, but on September 9, 1999, in the Riverside County Municipal Criminal Court Case Number PEF003134, Ms. Ward pled guilty and was convicted of Fraudulently Obtain Aid, a misdemeanor. See Exhibit 2. The charge of Perjury, a felony, was dismissed. Id. Ms. Ward was sentenced to complete 36 months of probation. Id.

6. On February 13, 2013, during the same interview with Ms. Richter, Ms. Ward admitted that she had been arrested in Las Vegas, Nevada on or about April 15, 2007, and charged with felony Theft, for theft of merchandise from Mervyn’s valued at over $800.00. Ms. Ward admitted to stealing the items. In a written statement to the Board, Ms. Ward stated that “upon checking out at the cashier, cashier ring [sic] up some of my items not all to where I paid for some items, and the rest I did not pay for.” See Exhibit 4 at 8. 7. On October 25, 2007, in the Clark County District Court of Nevada, in Case Number C23564, Ms. Ward pled guilty and was convicted of an amended charge of Attempt Theft, a gross misdemeanor. See Exhibit 3 at 4. Ms. Ward was sentenced to six months in the Clark County Detention Center, payment of restitution in the amount of $1,160.65 to Mervyn’s, and completion of probation for a indeterminate period of time not to exceed two years, which included completion of 16 hours of community service and parenting classes. Id. at 5. On October 20, 2009, in the Eighth Judicial District Court of Nevada, Ms. Ward was “dishonorably discharged” from probation. Id. at 6. 8. On May 16, 2013, the Nevada State Board of Nursing (“Nevada Board”) denied Ms. Ward’s renewal of her CNA certification for violations of NRS 632.320(1)(g) unprofessional conduct, NAC 632.415 unprofessional conduct, and NAC 632.890(26) violation of state/federal nursing law/regulation. See Exhibit 5. Ms. Ward had been randomly selected by the Nevada Board for audit of her records and was asked for documentation of employment hours and evidence of continuing training. Id. at 3. On January 23, 2013, the Nevada Board received a telephone call from Ms. Ward, stating that she had documentation of employment hours, but was unable to obtain continuing training from her employers for the audit timeframe. Id. at 2. On February 4, 2013, Ms. Ward submitted to the Nevada Board documentation of hours of employment as a CNA under the direction of a licensed nurse in 2009. Id. However, Ms. Ward’s audit timeframe was September 4, 2010 to September 4, 2012. Id. The Nevada Board informed Ms. Ward that her hours of employment could not be accepted because they were outside of her audit timeframe. Id. Ms. Ward’s CNA certificate has not been reinstated in Nevada. 9. On the Application, Ms. Ward listed Creekside Hospice in Las Vegas, Nevada as her current employer from August 2009. See Exhibit 1 at 2. On February 25, 2013, Board staff received a letter dated February 20, 2013, from Creekside Hospice Human Resources Manager, Terri Cope, in response to a subpoena. The letter states in pertinent part that “Ms. Ward is and was not an employee of Creekside Hospice but was actually a family member of one of our patients.” See Exhibit 6. However, at hearing Ms. Ward submitted into evidence a letter dated October 2, 2013, on Creekside Hospice letterhead and signed by Terri Cope, Human Resources Manager, that states “[t]his letter is to verify that Shaundra Ward was an employee of Creekside Hospice as a Certified Nurses Assistant from 4/14/08 to 7/13/09.” See Exhibit A. The October 2, 2013 letter does not contain an explanation as to why its contents are in direct contrast to the February 20, 2013 letter. 10. On the Application, Ms. Ward stated that she had been employed at Hospice of Las Vegas from July 2009 until December 2009. See Exhibit 1 at 3. On Ms. Ward’s July 7, 2009 employment application with Hospice of Las Vegas, Ms. Ward answered “No” to the question, “Have you ever been convicted of a crime?” See Exhibit 7 at 4. Ms. Ward failed to disclose her September 9, 1999 conviction for Fraudulently Obtain Aid, a misdemeanor in Riverside County Court, and a conviction on October 25, 2007, for Attempt Theft, a gross misdemeanor in the Clark County District Court of Nevada. See Exhibits 2 and 3. 11. Ms. Ward acknowledged her convictions and explained that at the time of those convictions she “was not thinking as an adult.” Ms. Ward expressed remorse and testified that she “regrets the mistakes” she made and that she is not a “bad” person, she is “not a liar,” that she is a hard worker and loves her job. Ms. Ward testified that her desire is to own a “home health assisted living” facility. CONCLUSIONS OF LAW 1. The Board is the state agency authorized to regulate and control the licensing of nursing professionals in the State of Arizona. Arizona Revised Statutes (“A.R.S.”) § 32-1601 et seq. and Arizona Administrative Code (“A.A.C.”) R4-19-101 et seq. 2. Ms. Ward bears the burden of proof to establish that the Board improperly denied her Application. A.R.S. § 41-1092.07(G)(1). 3. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 4. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the 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 1182 (6th ed. 1990). 5. Pursuant to A.R.S. § 32-1663(A), “[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.” See also A.R.S. § 32-1646. “In its denial order, the board shall immediately invalidate any temporary license or certificate issued to the applicant.” A.R.S. § 32-1663(B). 6. The Board established, as set forth in the above delineated Findings of Fact, that Ms. Ward committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(b), (d), (f), (h), and (j) (effective September 30, 2009);[2] and A.C.C. R4-19-814(13) (effective January 31, 2009).[3] 7. The allegation of unprofessional conduct defined by A.R.S. § 32- 1601(18)(a) and A.A.C. R4-19-814(25)[4] was due to the information obtained by the Board establishing that Ms. Ward was not employed by Creekside Hospice as stated in Ms. Ward’s Application. However, during closing argument, the Board acknowledged that there was conflicting evidence regarding Ms. Ward’s employment at Creekside Hospice due to the October 2, 2013 letter that she obtained from Creekside Hospice’s Human Resources Manager. See Exhibit A. Based on the evidence presented, the Administrative Law Judge does not find that Ms. Ward committed unprofessional conduct defined by A.R.S. § 32- 1601(18)(a) and A.C.C. R4-19-814(25). 8. At hearing, the Board withdrew its alleged violation by Ms. Ward of A.A.C. R4-19-814(6). 9. Because Ms. Ward has committed acts of unprofessional conduct, the Board has authority to deny her application. A.R.S. § 32- 1663. 10. An applicant whose request for a license is denied may reapply five years after the date of the Order of Denial. A.A.C. R4-19- 815. 11. Ms. Ward has not met the burden of persuasion to show that the Board improperly denied her application or that the Board erred when it determined that she could not reapply for five years. 12. Ms. Ward’s appeal should be dismissed. ORDER IT IS ORDERED that Ms. Ward’s appeal is dismissed.

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, February 5, 2014.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] One Board member was absent. [2] A.R.S. § 32-1601(18)(b), (d), (f), (h), and (j) (2009) define “unprofessional conduct” to include, respectively,

(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. . . . . (f) Having a license, certificate, permit or registration to practice a health care profession denied, suspended, conditioned, limited or revoked in another jurisdiction and not reinstated by that jurisdiction. . . . .

(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.

[3] A.A.C. R4-19-814(13) further defines “unprofessional conduct” to include:

13. Removing, 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.

[4] A.R.S. § 32-1601(18)(a) (2009) defines “unprofessional conduct” to include: (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter.

A.A.C. R4-19-814(25) further defines “unprofessional conduct” to include: 25. Making a written false or inaccurate statement to the Board or the Board’s designee during the course of an investigation.

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