ALJDEC decisions subject to certification as final

13A-1208099-NUR · State Board of Nursing · 2013-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2013, at 8:00 a.m. APPEARANCES: Erika Lynnette Crooms (hereinafter “Applicant”) appeared on her own behalf. The Arizona State Board of Nursing (hereinafter the “Board”) was represented by Assistant Attorney General, Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. On July 16, 2013, the Board issued a Notice of Public Hearing on Denial of Certification/Licensure setting the above-captioned matter for hearing on August 29, 2013, at 8:00 a.m., at the Office of Administrative Hearings in Phoenix, Arizona. 2. Applicant appeared and testified on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Board. The Board presented the testimony of its investigator, Ruth Kish and Dr. Andrea S. Waddell-Pratt, Ph.D. Applicant testified on her own behalf. 3. On or about August 1, 2012, Applicant submitted an Application for Registered Nurse/Practical Nurse Licensure by Endorsement (“Application”) to the Board for licensure as a practical nurse.[1] 4. After conducting an investigation, on May 21, 2012, the Board voted to deny Applicant’s Application for licensure as a practical nurse.[2] Thereafter, Applicant requested a hearing and this matter was referred to the Office of Administrative Hearings, an independent State agency. 5. Applicant answered “no” to Investigative Questionnaire Question No. 10, “Do you have any previous disciplinary history by a board of nursing?” Applicant failed to disclose that her nursing license had been disciplined in the State of Kansas and in the State of North Carolina. 6. Applicant answered “no” to Questionnaire Question 19, “Are you currently under investigation or is a disciplinary action pending against your nursing license, CNA certificate or any other license or certificate you hold in any state or territory of the United States?” Applicant failed to disclose that in 2008 the North Carolina Board of Nursing (hereinafter “North Carolina Board”) voided Applicant’s nursing license and restricted her multistate compact privilege to practice nursing due to Applicant’s failure to comply with Applicant’s probation, as ordered in the North Carolina Published Consent Order Case No. 412923. 7. Applicant failed to disclose on her Application and the Investigative Questionnaire that she did not report her March 19, 2010 DUI conviction to the Kansas Nurse Assistance Program (“KNAP”) in violation of her Consent Agreement with the Kansas State Board of Nursing (hereinafter “Kansas Board”). Testimony of Ruth Kish, R.N., M.N. 8. Ruth Kish (hereinafter “Ms. Kish”) testified that she is a Nurse Practice Consultant for the Board. Ms. Kish stated that she had been a Nurse Practice Consultant for approximately one year. Ms. Kish testified that after receiving Applicant’s License Application, she obtained police, court, employment, and mental health records relating to Applicant. 9. Ms. Kish testified that Applicant had been licensed in North Carolina and Kansas. Ms. Kish stated that Applicant’s nursing license had been disciplined in both states. Ms. Kish testified that Applicant entered into a Consent Agreement and Final Order (“Consent Agreement”) with the Kansas Board on November 6, 2008.[3] 10. Ms. Kish testified that the Consent Agreement reinstated Applicant’s practical nursing license that had been revoked by the Kansas Board on or about May 27, 2008.[4] Ms. Kish stated that the Consent Agreement required Applicant to participate in and to complete the KNAP Program. Ms. Kish testified that Applicant was required to submit to random drug testing and to notify KNAP of any use of alcohol or mood altering drugs. Ms. Kish stated that Applicant was also required to notify the Kansas Board of any criminal violations of the law. 11. Ms. Kish testified that Applicant failed to report alcohol use to KNAP during the term of the Consent Agreement with the Kansas Board as required by the Consent Agreement. Ms. Kish stated that Applicant was charged with and convicted of a DUI in Topeka Municipal Court in 2010.[5] Ms. Kish testified that the DUI occurred during the term of Applicant’s Consent Agreement with the Kansas Board. Ms. Kish stated that Applicant did not notify the Kansas Board of her criminal conviction as required by the terms of the Consent Agreement. 12. Ms. Kish testified that she discussed the 2010 DUI conviction with the Kansas Board. Ms. Kish stated that the Kansas Board was unaware of Applicant’s 2010 DUI conviction. Ms. Kish testified that Applicant was required to report the DUI conviction to the Kansas Board under applicable Kansas statute.[6] Ms. Kish stated that Applicant failed to disclose the DUI conviction to the Kansas Board on two separate license renewal occasions. 13. Ms. Kish testified that Applicant’s nursing license had been placed on probation by the North Carolina Board on or about May 10, 2007.[7] Applicant signed a Published Consent Order with the North Carolina Board agreeing to successfully complete a Board-approved Professional Accountability course within 45 days and to comply with the terms of the probation provided in the Published Consent Order. The terms of probation included, but were not limited to, the following: “[Applicant] must notify the [North Carolina Board], in writing within five (5) days of any DUI, misdemeanor and or felony charges. Following final disposition of the charges, notify the [North Carolina Board], in writing, within three (3) days of the outcome.”[8] 14. Ms. Kish testified that she received a letter from the North Carolina Board stating that Applicant failed to complete the probationary conditions of the Published Consent Order.[9] Ms. Kish stated that the North Carolina Board informed her that Applicant’s nursing license in North Carolina had been voided. 15. Ms. Kish testified that Applicant completed an Investigative Questionnaire as part of her license application with the Board.[10] Ms. Kish stated that Applicant failed to disclose that her nursing license had been disciplined by the Kansas Board and the North Carolina Board. Ms. Kish testified that Applicant acknowledged that she had failed to report the disciplinary actions during Applicant’s narrative interview with Ms. Kish. 16. Ms. Kish testified that Applicant was allowed to insert disclosures regarding prior disciplinary actions against her nursing license into her Application during her narrative interview. Ms. Kish stated that Applicant still did not disclose her 2010 DUI conviction. 17. Ms. Kish testified that on or about August 15, 2009, Applicant was arrested for DUI in Topeka Kansas. Ms. Kish stated that Applicant pled no contest and was convicted in the Topeka Municipal Court of misdemeanor DUI in 2010. 18. Ms. Kish testified that Applicant’s Application Questions were not answered truthfully. Ms. Kish stated that Applicant failed to disclose prior disciplinary actions against her nursing license in Kansas and North Carolina, failed to fully disclose her criminal convictions, and failed to disclose that Applicant had not complied with the probationary terms imposed in the Published Consent Order by the North Carolina Board. Ms. Kish testified that she prepared an investigative report that she submitted to the Board.[11] 19. Ms. Kish testified that the investigative report was complete and accurate. Ms. Kish stated that the Board reviewed her investigative report before making a determination to deny Applicant’s nursing license application. Ms. Kish testified that after the Board determined to deny Applicant’s license application, the Board issued a Denial Order.[12] 20. Ms. Kish testified that she had received three letters of recommendation for Applicant. Ms. Kish stated that that the three letters were incorporated into her investigative report. Ms. Kish acknowledged that she used subpoenas to obtain Applicant’s records from Applicant’s various employers. Ms. Kish testified that Applicant’s employment records were incorporated into her investigative report. Testimony of Dr. Andrea S. Waddell-Pratt, Ph.D. 21. Dr. Andrea S. Wadell-Pratt, Ph.D. (hereinafter “Dr. Wadell- Pratt”) testified that she is a clinical psychologist. Dr. Wadell-Pratt stated that she had performed an independent psychological evaluation of Applicant on May 3, 2013, for the Board to assess Applicant’s chemical dependency after it was determined that Applicant had failed to fully disclose Applicant’s history of substance abuse and the civil and regulatory consequences.[13] Dr. Wadell-Pratt testified that Applicant presented a significant degree of disconnect between the severity of Applicant’s substance abuse issues and the impact of her substance abuse and its consequences. Dr. Wadell- Pratt stated that the amount of the disconnect between the severity of Applicant’s substance abuse issues and the consequences of Applicant’s substance abuse issues was concerning. 22. Dr. Wadell-Pratt testified that Applicant was defensive and minimized her substance abuse problems. Dr. Wadell-Pratt stated that Applicant had a history of substance abuse problems and a history of repeatedly returning to the same substance abuse behaviors. Dr. Wadell-Pratt testified that Applicant’s recovery from substance abuse was only partial. 23. Dr. Wadell-Pratt testified that Applicant’s primary drug of use was marijuana. Dr. Wadell-Pratt stated that Applicant indicated that her last use of marijuana was in 2009. Dr. Wadell-Pratt acknowledged that she had reviewed Ms. Kish’s investigative report. Testimony of Erika Lynnette Crooms 24. Applicant testified that she had been in the nursing field for nearly twenty years. Applicant stated that nursing is her passion. Applicant testified that she has always been a good nurse and that she had never failed in her duties as a nurse. 25. Applicant acknowledged that her application was not completely accurate. Applicant stated that she should have gone to the Board and asked questions about the application before turning it in. Applicant testified that the she was not intentionally untruthful in her application. 26. Applicant testified that the problems that she had experienced had been personal problems that she had resolved. Applicant stated that from her personal experiences, she had learned lessons in honesty, humility, and self-control and had made positive changes in her life. Applicant testified that she is a single mother and currently has to work two jobs to support her family. 27. Applicant testified that she is a capable nurse and loves being a nurse. Applicant stated that she should be able to work in her field. Applicant stated that she did not understand the ramifications of her Consent Agreement with the North Carolina Board. Applicant testified that she had recently reapplied to the Kansas Board to have her nursing license renewed and that she had disclosed everything to the Kansas Board. Applicant stated that she would comply with any conditions imposed by the Board. 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. A.R.S. § 32-1601 et seq. and Arizona Administrative Code (“A.A.C.”) R4-19-101 et seq. 2. Applicant bears the burden of proof to establish that the Board improperly denied her Application. A.R.S. § 41- 1092.07(G)(1).[14] 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.” 6. “Unprofessional conduct” is defined in A.R.S. § 32-1601(18) (effective September 30, 2009) and includes the following whether occurring in this state or elsewhere:[15] (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

7. A.A.C. R4-19-403 further defines Unprofessional Conduct for purposes of A.R.S. § 32-1601(18)(d) as any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public and includes one or more of the following:

17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location; …. 20. Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate; …. 26. Making a written false or inaccurate statement to the Board or the Board's designee in the course of an investigation; …. 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

8. Applicant committed unprofessional conduct as defined in A.R.S. § 32-1601(18)(a) when she was deceitful in attempting to obtain licensure in the following respects: 1) when she failed to disclose to the Board that her nursing license had been disciplined in the State of Kansas and the State of North Carolina; 2) when she failed to disclose at the Board interview her 2010 DUI conviction, despite having been specifically asked if there were any other arrests or offenses on her record; and 3) when she failed to disclose that her nursing license had been voided by the State of North Carolina. 9. Applicant committed unprofessional conduct as defined by A.R.S. § 32-1601(16)(d) and A.R.S. § 32-1601(18)(j) (effective September 30, 2009) when she was deceitful during her Board interview by failing to disclose past disciplinary actions against her nursing license and by failing to disclose all of her criminal convictions. 10. Applicant committed unprofessional conduct as defined in A.A.C. R4- 19-403(20), (26), and (31) when she failed to disclose that her nursing license had been disciplined in the State of Kansas and the State of North Carolina and that her nursing license had been voided in the State of North Carolina. 11. Applicant committed unprofessional conduct as defined in A.A.C. R4- 19-403(20), (26), and (31) when she failed to disclose at the Board interview her 2010 DUI conviction, despite having been specifically asked if there were any other arrests or offenses on her record. 12. Because Applicant has committed acts of unprofessional conduct, the Board has authority to deny her application. See A.R.S. § 32-1663. 13. An applicant whose request for a license is denied may reapply five years after the date of the Order of Denial. See A.A.C. R4-19- 404(B).[16] 14. Applicant has not met the burden of persuasion to show that her application should be granted or that the Board erred when it determined that she could not reapply for five years. 15. Applicant’s appeal should be dismissed. RECOMMENDed order In view of the foregoing, it is recommended that Order of Denial No. 1208099 be affirmed and that Applicant’s appeal shall be dismissed, In the event of certification of this 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 the certification

Done this day, September 12, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

----------------------- [1] See Exhibit No. 1 (8/1/12 Application). [2] See Exhibit No. 10 (Denial Order). [3] See Exhibit No. 2 (11/6/08 Consent Agreement and Final Order). [4] See Exhibit No. 4 (Kansas Proposed Default Order to Revoke License). [5] See Exhibit No. 5 (Copy of Citation RO11942 and attachments). [6] See KS 60-3-113. [7] See Exhibit No. 3 (North Carolina Published Consent Order). [8] See Exhibit No. 3 (North Carolina Published Consent Order, page 8). [9] See Exhibit No. 3 (North Carolina Published Consent Order, page 9). [10] See Exhibit No. 6 (RN/LPN Investigative Questionaire). [11] See Exhibit No. 7 (Investigative Report). [12] See Exhibit No. 10 (Denial Order). [13] See Exhibit No. 9 (Dr. Wadell-Pratt’s CV and psychological evaluation of Applicant). [14] A.R.S. § 41-102(7)(G)(1) provides as follows:

G. Except as otherwise provided by law: 1. At a hearing on an agency's denial of a license or permit or a denial of an application or request for modification of a license or permit, the applicant has the burden of persuasion.

[15] Before September 30, 2009, the same statutory language was codified at A.R.S. § 32-1601(16)(d). The former statute applies to unprofessional conduct that was committed prior to September 30, 2009. [16] A.A.C. R4-19-404(B) provides as follows:

A person whose nursing license is denied, revoked, or voluntarily surrendered under A.R.S. § 32-1663 may apply to the Board to issue or re-issue the license: 1. Five years from the date of denial or revocation, or 2. In accordance with the terms of a voluntary surrender agreement.

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