ALJDEC decisions subject to certification as final

13A-1206105-NUR · State Board of Nursing · 2013-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 2013, with the record held open until September 6, 2013. APPEARANCES: Applicant Veronica Ann Fierroz appeared on her own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ 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, 32-1663, and 32-1664. 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 32-1667. 2. On or about June 28, 2011, the Board voted to deny Veronica Ann Fierroz’s (Applicant) application for Certified Nursing Assistant (CNA). On or about November 14, 2001, that decision became final after a due process hearing on the matter. 3. On or about February 27, 2012, Applicant submitted an application to the Board for certification as a CNA. With respect to criminal charges, the application provided as follows: Before answering the next question read the following: The fact that a conviction has been pardoned, expunged, dismissed, deferred, or that your civil rights have been restored does not mean that you answer this question “no”; you would have to answer “yes” and give details on each conviction.

2. 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 deferred prosecution or deferred sentence in any felony or undesignated offense? . . . . If yes, provide a written explanation of the details of each conviction and sentence. Return the written explanation, a copy of the police report and court documents for each conviction, indicating type of conviction, conviction date and sentence including the date of absolute discharge of the sentence for each felony conviction with your application.

Applicant answered “Yes” to the question. Exhibit 1. 4. Applicant disclosed that on or about October 4, 2000, she was convicted of an undesignated offense and placed on probation. On or about January 13, 2003, Applicant filed to vacate/dismiss the charges of conviction. Applicant provided court documents pertaining to the case. 5. The Board assigned Senior Investigator Doug Parlin to investigate Applicant’s application. Michelle Morton, Senior Investigator, eventually took over the case. Hearing Evidence Applicant’s Criminal History Criminal Simulation (October 4, 2000) 6. On or about August 31, 2000, in case number CR2000-094540 in Maricopa County Superior Court, Applicant was initially charged with forgery, a class 4 felony, for knowingly possessing a forged instrument, being U.S. currency, with the intent to defraud. 7. On or about September 15, 2000, Applicant was interviewed for the purposes of a pre-sentence report for her pending criminal charge by the Maricopa County probation department. During that interview, Applicant admitted she had exchanged two counterfeit U.S. $50.00 bills for legal tender while employed as a cashier at a Fry’s Electronic Store in Tempe, Arizona. Applicant stated that she knew the money she accepted was counterfeit. 8. On or about October 4, 2000, pursuant to a guilty plea, Applicant was convicted of criminal simulation, a class 6 undesignated offense, in Maricopa County Superior Court. Applicant was sentenced to one year summary probation, restitution, and community service. 9. Applicant successfully completed the requirements of probation. 10. On or about February 14, 2003, the court’s judgment of guilt was vacated and the charges were dismissed. Criminal Damage and Reckless Endangerment (April 21, 2004) 11. On or about January 4, 2004, the Phoenix Police Department responded to a call at Respondent’s brother’s house. According to witnesses, Applicant became upset when she realized her estranged husband was in the house and she tried to force her way into a bedroom to confront him. In the process, Applicant’s seven month old son became sandwiched between Applicant and the door. Applicant kicked the door causing it to break. 12. Applicant was arrested and charged with reckless endangerment, a class misdemeanor, and criminal damage, a class 2 misdemeanor. 13. On or about April 21, 2004, pursuant to a guilty plea, Applicant was convicted of criminal damage and reckless endangerment in Phoenix Municipal Court. Applicant was sentenced to 30 days in jail suspended with successful completion of counseling and “SASS,” restitution, and two years of probation. 14. Applicant successfully completed the requirements of probation. 15. On or about September 14, 2011, the court’s judgment of guilt was set aside. The Board’s Investigation 16. On or about August 16, 2012, Mr. Parlin, on behalf of the Board, mailed Applicant a questionnaire with instructions to provide a written explanation and specific court and police records regarding each of her arrests, citations, or charges on or before September 18, 2012. The letter also notified Applicant that an applicant for reissuance was required to submit documentation showing that the basis for denial, revocation, or voluntary surrender had been removed and that the issuance or reinstatement of certification would no longer constitute a threat to the public health or safety. 17. On or about September 18, 2012, Applicant submitted Board questionnaires with court documentation and written statements for the convictions noted above.[1] 18. On or about April 5, 2013, Applicant attended an interview with Board staff. Applicant stated that she was trying to raise her children and wanted to help people. Applicant indicated she had not had any issues since the initial Board denial in 2001 and had successfully held jobs since that time. Applicant stated that because any charges after 2001 had been dismissed or set aside, they should not affect her application. 19. On or about May 20, 2013, the Board met to consider Applicant’s application. Based upon the findings of fact and statute/rule violations identified in the investigative report, the Board voted unanimously to deny the application, with six members voting in favor of the denial and four members absent. 20. On May 20, 2013, the Board issued an Order of Denial, denying Applicant’s application under A.R.S. §§ 32-1646 and 32-1663 because she had committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(d), (h), and (j) (2009), specifically A.A.C. R4-19-814(21), and A.R.S. § 32-1601(18)(d) and (j) (2012), specifically A.A.C. R4-19- 815(1). 21. Applicant requested a hearing on the Board’s denial of her application for CNA certification. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 22. A hearing was held on August 19, 2013. Applicant testified on her own behalf. The Board presented the testimony of Ms. Morton and submitted eight exhibits. Other Evidence 23. Applicant stated she had done everything required by the court for both convictions and had successfully completed probation each time. Applicant believed she was required to pay a fine and complete approximately 200 hours of community service in connection with the 2001 conviction. Applicant believed she was required to attend parenting and anger management classes in connection with the 2004 conviction. 24. Applicant admitted she did not attend any counseling or participate in any programs beyond those required by her probation.

CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B). Applicant bears the burden of proof to establish by a preponderance of the evidence that she is qualified to be a CNA in Arizona and that, therefore, the Board erred in denying her application. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A.R.S. § 32-1601(18) (2009) and A.R.S. § 32-1601(18) (2012) define “unprofessional conduct,” in relevant part, as follows: (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. . . . . (j) Violating this chapter or a rule that is adopted by the [B]oard pursuant to this chapter.

A.A.C. R4-19-814 provides in relevant part as follows: For purposes of A.R.S. § 32-1601(18)(d), a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes a basis for disciplinary action on a certificate includes the following: . . . . 21. Threatening, harassing, or exploiting an individual;

A.A.C. R4-9-815 provides in relevant part as follows: An applicant whose application is denied or a nursing assistant whose certificate is revoked in accordance with A.R.S. § 32-1663, may reapply to the Board after a period of five years from the date the certificate or application is revoked or denied. . . . The Board shall issue or reinstate a nursing assistant certificate under the following terms and conditions:

1. An applicant shall submit documentation showing that the basis for denial, revocation or voluntary surrender has been removed and that the issuance or reinstatement of nursing assistant certification will no longer constitute a threat to the public health or safety. The Board may require an applicant to be tested for competency, or retake and successfully complete a Board approved training program and pass the required examination.

A.R.S. § 32-1663(A) provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the [B]oard may deny the application.” A guilty plea to a crime establishes that the person committed the acts that constituted the crime. Applicant acknowledged that she pled guilty to criminal simulation. Committing an act that deceives, defrauds, or harms the public is unprofessional conduct. Further, fraud may be harmful or dangerous to the public. Therefore, the Board could properly deny Applicant’s application based on the 2001 conviction for criminal simulation. Applicant also acknowledged that she pled guilty to the criminal damage and reckless endangerment. The circumstances surrounding the charges establish Applicant was threatening her estranged husband. As such, Applicant’s 2004 conviction evidenced unprofessional conduct as defined by A.A.C. R4-19- 814(21), and such behavior may also be harmful or dangerous to the public. Therefore, the Board could properly deny Applicant’s application based on the 2004 convictions for criminal damage and reckless endangerment. While Applicant established that she had successfully completed the required elements of probation, Applicant did not provide any evidence as to what type of counseling she received during that process or if she had adequately addressed the issues that initially gave rise to the convictions. The Board’s primary purpose is to protect the public health and safety by regulating the practice of nursing in Arizona. See Laws 1982, Ch. 190, §§ and 18; Laws 1992, Ch. 308, § 16. Applicant’s statements do not overcome the evidence of her past acts of unprofessional conduct and do not establish that the issuance or reinstatement of certification would no longer constitute a threat to the public health or safety. Therefore, Applicant did not establish that the Board erred in denying her application for CNA certification under A.R.S. § 32-1663(A) at this time.

RECOMMENDED ORDER In light of Applicant Veronica Ann Fierroz’s failure to establish by a preponderance of the evidence that she is qualified for CNA certification at this time, it is recommended that the Board dismiss the appeal in Case No. 13A-1206105-NUR and affirm its denial of Applicant’s application for a 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, September 26, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The exhibits include references to a July 2009 charge for shoplifting that was dismissed when the witness provided information that the female who stole the merchandise was much shorter than Applicant. This charge was not addressed at the hearing, and the Board did not indicate the charge was a basis for the denial.

-----------------------

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