ALJDEC decisions subject to certification as final

13A-1212057-NUR · State Board of Nursing · 2014-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2013, at 8:00 a.m. APPEARANCES: Applicant Melissa Richmond appeared on her own behalf; the Arizona State Board of Nursing was represented by 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, 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.

On or about November 13, 2012, Melissa Frederickson Richmond submitted an application for certification as a Certified Nursing Assistant (“CNA”) to the Board.[1] With her application, Ms. Richmond submitted her fingerprints. The Board assigned Senior Investigator Ron Lester to investigate Ms. Richmond’s application. Using Ms. Richmond’s fingerprints, Mr. Lester obtained documents relating to Ms. Richmond‘s criminal history. On or about February 13, 2013, Mr. Lester sent a letter to Ms. Richmond requesting that she complete an Investigative Questionnaire regarding each incident in her criminal history within four weeks, or by March 14, 2013.[2] After Mr. Lester left the Board’s employment, the investigation was reassigned to Senior Investigator Maxie Barker. Mr. Barker prepared an Investigative Report of the investigation into Ms. Richmond’s qualifications to be certified as a CNA for the Board’s consideration.[3] The Board considered Ms. Richmond’s application and Mr. Barker’s investigative report at its meeting in September 2013, and unanimously voted to deny Ms. Richmond’s application for certification.[4] On or about September 27, 2013, the Board issued an Order of Denial, denying Ms. Richmond’s application under A.R.S. §§ 32-1646 and 32-1663(A) and (B) because it found that she had committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(d), (e), (g), (h), and (j) and A.A.C. R4-19- 814(23)(c).[5] Ms. Richmond requested a hearing on the Board’s denial of her application for certification and informed the Board that she had an appointment with Dr. Sidhu on December 12, 2013, for a psychiatric evaluation.[6] The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on December 19, 2013. Ms. Richmond testified on her own behalf and submitted two exhibits. The Board presented Mr. Barker’s testimony and submitted ten exhibits. Hearing Evidence Ms. Richmond’s Criminal History The October 1973 Incident On or about October 1, 1973, at approximately 11:30 p.m. in Glendale, Colorado, police stopped Ms. Richmond after she failed to turn on her vehicle’s headlights and failed to stop at a stop sign.[7] The investigating officer reported that Ms. Richmond’s speech was slurred, Ms. Richmond’s breath smelled of alcohol, and Ms. Richmond was unsteady and nearly fell to the ground after he asked her to step out of her vehicle. After the October 1, 1973 traffic stop, police arrested Ms. Richmond and booked her into jail. The toxicology report revealed Ms. Richmond’s blood alcohol content (“BAC”) to be .23, nearly three times the current legal limit in Arizona. Ms. Richmond explained that she had gone to a party with a friend and had drunk punch that, unbeknownst to her, was spiked with Everclear liquor. Although she usually limited herself to three drinks to avoid becoming intoxicated, she unwittingly became impaired because she could not taste the alcohol, even though the punch had high alcohol content. Ms. Richmond testified that although she knew she was impaired, she chose to drive home because it was getting late, she could not find her friend, and men at the party were trying to throw her into the pool. On or about October 15, 1973, Ms. Richmond was charged with driving while impaired and improper lane usage in Arapahoe County Court Case Number A58025. Ms. Richmond was subsequently convicted of driving with ability impaired, a misdemeanor. Ms. Richmond disclosed the October 1, 1973 incident on the completed Investigative Questionnaire that she submitted to the Board on April 15, 2013.[8] Ms. Richmond credibly testified that except for the October 1, 1973 incident, she has never been arrested for, charged with, or convicted of driving while impaired. The October 2, 2003 Incident On or about October 2, 2003, Ms. Richmond was arrested in Socorro County, New Mexico after a truck driver informed police that Ms. Richmond had stopped her vehicle and that she appeared to be intoxicated. The investigating police officer reported that Ms. Richmond’s vehicle was swerving and crossing the white line onto the shoulder and that after he activated his lights and siren, Ms. Richmond’s vehicle continued to swerve and did not stop until it had almost hit several oncoming vehicles, including one containing children.[9] The officer reported that he did not detect any odor of intoxicants coming from Ms. Richmond, that she agreed to perform field sobriety tests, and that she did very well on one test and passed a second test. When asked why she had failed to yield, the officer reported the following explanations: She looked very confused. She stated she saw me and thought I was going to the hospital. . . . I attempted to question her as to why she failed to pull over. She stated she did and that she was on her way from Missouri [en route] to Phoenix AZ. She was asked if she used any form of narcotics. She stated she did not know. She stated she ate a hot dog in Texas and that they might have laced it with something. . . .[10]

Ms. Richmond was subsequently charged in Socorro County Magistrate Court Case No. M-52 FR 2003-1092 with willfully and carelessly driving her vehicle, failing to yield to an emergency vehicle, and operating a motor vehicle in a careless manner. Ms. Richmond acknowledged having been convicted of reckless driving, a misdemeanor, as a result of the October 2003 incident. Ms. Richmond did not submit a timely completed Investigative Questionnaire for the October 2003 incident in Socorro County, New Mexico. On or about July 29, 2013, Mr. Barker interviewed Ms. Richmond as part of the Board’s investigation. At that time, she disclosed the incident. On or about August 1, 2013, Ms. Richmond submitted a completed Investigative Questionnaire and the documents that she possessed that related to the October 2003 incident.[11] The documents did not include a record of any conviction. Ms. Richmond explained that the more serious charges were dropped and that the misdemeanor conviction was expunged. Ms. Richmond testified that because the conviction was expunged, she did not believe that she was required to report it to the Board. Ms. Richmond’s Behavioral Health History Mr. Barker testified that at some point during the Board’s investigation, Ms. Richmond’s mental health became a concern. Ms. Richmond received behavioral health services from Horizon Human Services in Globe, Arizona (“Horizon”) since December 19, 2008. Ms. Richmond authorized Horizon to release her medical records to the Board.[12] Horizon’s records note that Ms. Richmond has had mental health issues since 1982, and that she had periods of being “psychotic and disorganized” that resulted in inpatient psychiatric hospitalizations in 1982, 1983, and 2008. Ms. Richmond got married in 1976, had three children, and in 1982, during her first psychiatric hospitalization, her husband took the children and disappeared. Since 2008, Ms. Richmond has received Social Security disability payments.[13] On January 6, 2009, Ms. Richmond’s former treating psychiatrist, Ed Gogek, M.D., stated that Ms. Richmond had recently been hospitalized in Missouri and prescribed Tegretol, which helped her symptoms. Dr. Gogek described Ms. Richmond’s symptoms as feeling that unknown persons were persecuting her and as hearing voices frequently.[14] On March 4, 2010, Dr. Gogek had described Ms. Richmond as “a 57 year old female with paranoid schizophrenia who is helped a lot by low dose psychotic medicine.” Dr. Gogek reported that Ms. Richmond stated that she had enough food, that she did not know if she heard voices, and that she was looking for work.[15] On May 12, 2011, Dr. Gogek had noted that “[t]his is a 58 year old female with paranoid schizophrenia who is helped a lot by low dose antipsychotic medicine,” who had been prescribed Geodon and Tegretol, and who reported “[t]he voices aren’t so bad.”[16] Ms. Richmond’s current Axis I diagnosis is Paranoid Schizophrenia. On May 17, 2012, Ms. Richmond’s current treating psychiatrist, Sardev Sidhu, M.D., noted as follows: [Ms. Richmond] is not fully compliant with her medication she was prescribed. She is feeling same with or without medications. Stays home as she believes people are not . . . nice. Helps some people. Is a regular at her church. Feels good in her mood and she has broad affect. Hears voices once in a while, she prays, and those go away. Is fearful of other[s]. Denies anger, acting out behavior, impulsivity, hyperactivity, dangerousness . . . .

Was alert, oriented, has a clear sensorium. Memory and recall are okay. Was able to concentrate and focus. Plans to get a part time job.[17]

On August 13, 2013, Horizon’s records noted that Ms. Richmond had stopped taking her psychotropic medications “months ago,” but that she was “[f]eeling stable in her mental health, physical health. Behavior is acceptable. . . . Had a job interview next week.”[18] Horizon also noted that Ms. Richmond “[h]ears some voices intermittently.”[19] Ms. Richmond acknowledged that approximately eighteen months earlier, she stopped taking the psychotropic medications that had been prescribed to her. She testified that she gave the medications a “fair trial” for one and a half or two years by taking them exactly as prescribed, but could not see that the medications made any difference in her symptoms or were doing her any good. Ms. Richmond testified that she feels happy and is doing okay. Ms. Richmond testified that she receives disability payments and food stamps and is stable. Ms. Richmond acknowledged that “once in a while,” she still hears voices saying words, but that it is not constant. Ms. Richmond also acknowledged that her thought content is still occasionally fearful, but testified that overall she has become less paranoid. Other Evidence Mr. Barker testified that between January 2006 and July 2007, Ms. Richmond was employed at Apache Gold Casino. Mr. Barker testified that multiple incidents of Ms. Richmond’s odd behavior were documented in her employment file. The incidents included that Ms. Richmond’s co-workers and supervisor had witnessed her digging through the trash can and removing fat from a large piece of meat, explaining that she was looking for silverware. Mr. Barker reported that when he asked Ms. Richmond about the incidents at his July 29, 2013 interview, she responded as follows: I asked [Ms. Richmond] about the time where she was observed digging through trash cans. [She] stated, “I was disturbed with other people.” [Ms. Richmond] stated that someone was eating menudo, and it should not have been in the trash. When I asked her about the incident where she was accused of putting Comet in her hair, she replied, “I didn’t think I put Comet in my hair.” Regarding the issue where it was reported that [Ms. Richmond] said someone [was] spraying something on her, [she] told me that “Someone was spraying vapors on me, and I told my supervisor. The spray smelled like dog dirt.” She also thought that Los Angeles gang members were going to get her.[20]

Mr. Barker testified that Ms. Richmond was disheveled at the July 29, 2013 interview and that she had body odor. Ms. Richmond testified that she had to drive from her home in Globe to attend the interview and that it was hot that day. Ms. Richmond was well-groomed and appropriately dressed at the hearing. She submitted a letter from her instructor in the CNA program, Mary Anne Moreno, that stated in relevant part as follows: I am a Clinical instructor in the Nursing Assistant Program at EAC/Gila Community College/Gila Pueblo Campus and [Ms. Richmond] was one of my students.

Her affect is somewhat deceiving in that she appears slow, but I found her to be a dedicated student, very well organized and quietly kindly efficient. She related extremely well with residents in several different areas of the Clinical Site at Copper Mountain Inn.

The staff with whom she interacted were impressed with her attention to detail and her interactions with the residents and made it a point to let me know that. . . . .

I feel [Ms. Richmond] would be a safe and caring caregiver either in a Long Term Care Facility or a Home Care situation.[21]

Ms. Richmond also submitted a notice from Horizon that her appointment with Dr. Sidhu on December 12, 2013, had been rescheduled to an appointment with Gene Hutsell on December 23, 2013.[22] CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). Ms. Richmond 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.[23] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[24] 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.”[25] The October 1973 incident occurred nearly forty years before Ms. Richmond submitted her application to the Board to be certified as a CNA. Ms. Richmond credibly testified as to the circumstances of the arrest and conviction and established that it was an isolated occurrence. The October 1973 incident, without more, does not evidence that Ms. Richmond committed unprofessional conduct that would support denial of her application. No question on the application required Ms. Richmond to disclose the October 1973 arrest or conviction. Although Mr. Lester’s February 13, 2013 letter required Ms. Richmond to complete an Investigative Questionnaire for the incident by March 14, 2013, she did not provide the completed questionnaire for the incident until April 15, 2013. Although Ms. Richmond’s failure to timely provide the completed Investigative Questionnaire to the Board technically may constitute unprofessional conduct as defined by A.R.S. §§ 32-1601(22)(j) and 32-1601(22)(d),[26] as further defined by A.A.C. R4-19-814(23)(c),[27] Ms. Richmond eventually provided a completed questionnaire, substantially mitigating her initial failure. Ms. Richmond credibly testified that she did not think that she needed to complete an Investigative Questionnaire for the October 2, 2003 incident because the more serious charges were dropped and the misdemeanor conviction was expunged. Under Arizona law, however, the Board may require Ms. Richmond to disclose a prior conviction that has been set aside, expunged, or vacated.[28] Because the criminal acts forming the basis of a judgment that has been set aside or expunged still occurred, even if certain legal consequences of the judgment have been obviated, the fact of the conviction is a fair area of inquiry for the licensing agency. No question on the application required Ms. Richmond to disclose the October 2, 2003 incident and her expunged conviction for reckless driving does not relate to the practice of nursing. Although Ms. Richmond’s failure to timely provide the completed Investigative Questionnaire regarding the October 2003 incident to the Board technically may constitute unprofessional conduct as defined by A.R.S. §§ 32-1601(22)(j), 32- 1601(22)(d), as further defined by A.A.C. R4-19-814(23)(c), and A.R.S. § 32- 1601(22)(g),[29] Ms. Richmond’s failure was not willful and she also eventually provided a completed questionnaire about the incident, substantially mitigating her initial failure. The October 2003 incident is significant because it alerted the Board to Ms. Richmond’s behavioral health history. It appears that Ms. Richmond’s psychiatric condition has substantially improved since 2009, despite her acknowledged refusal to take prescribed psychotropic medication. Ms. Moreno’s letter of reference, in light of Ms. Richmond’s demeanor and testimony at the hearing, indicates that her condition has improved to the point that she might become a compassionate and effective caregiver. Despite Ms. Richmond’s progress, however, she candidly acknowledged that she still hears voices occasionally and that she sometimes feels paranoid. The Board’s statutory responsibility is to “to more effectively protect the public health safety and welfare.”[30] Because Ms. Richmond still actively suffers symptoms from her diagnosed Paranoid Schizophrenia, even though her condition is not due to any conscious choice, it constitutes unprofessional conduct as defined by A.R.S. § 32-1601(22)(e).[31] At this time, therefore, the Board did not err under A.R.S. §§ 32-1646[32] and 32-1663(A) and (B)[33] by denying Ms. Richmond’s application to be a CNA. RECOMMENDED ORDER In light of Applicant Melissa Richmond’s failure to establish by a preponderance of the evidence that she is qualified to receive CNA certification at this time, it is recommended that the Board affirm its denial of Ms. Richmond’s application for a CNA certificate in Case No. 13A- 1212057-NUR and. 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, January 8, 2014. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: Joey Ridenour, RN, MN, Executive Director Arizona State Board of Nursing ----------------------- [1] See the Board’s Exhibit 1. [2] See the Board’s Exhibit 2. [3] See the Board’s Exhibit 7. [4] See the Board’s Exhibit 8. [5] See the Board’s Exhibit 9. [6] See the Board’s Exhibit 10. [7] See the Board’s Exhibit 4 (Glendale, Colorado Police Department report number 1973-5289). [8] See the Board’s Exhibit 3. [9] See the Board’s Exhibit 5 at 5. [10] Id. at 5-6. [11] See the Board’s Exhibit 5. [12] See the Board’s Exhibit 6. [13] See id. at 5. [14] Id. at 18. [15] Id. at 14. [16] Id. at 10. [17] Id. [18] Id. at 23. [19] Id. at 24. [20] The Board’s Exhibit 7 at 4. [21] Ms. Richmond’s Exhibit B. [22] See Ms. Richmond’s Exhibit A. [23] 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). [24] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [25] Black’s Law Dictionary at page 1220 (8th ed. 1999). [26] The Arizona legislature had amended A.R.S. § 32-1601 to amend the numbering of the subsection that defines unprofessional conduct at the times Ms. Richmond submitted her application and the Board denied her application. See Laws 2012, Chap. 152, § 1. The definitions in current A.R.S. § 32-1601(22) are identical to the definitions that were set forth in former section A.R.S. § 32-1601(18). A.R.S. § 32-1601(22) defines “unprofessional conduct” to include the following: (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. [27] A.A.C. R4-19-814(23)(c) further defines a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public for a CNA as follows: Failing to cooperate with the Board during an investigation by: . . . . c. Not completing and returning a Board-issued questionnaire within days . . . . [28] See Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 471, 974 P.2d 443, 450 (App. 1998); see also A.R.S. §§ 13-904(E) (A person who has successfully completed his sentence and had his civil rights restored may not be categorically disqualified from employment by the state or any state agency, but the person may be denied employment or a license to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the . . . [license] is sought”) and 13- 907(A) (providing that a conviction that has been set aside may be admissible in a subsequent prosecution or considered by the department of transportation in issuing, suspending, or revoking commercial drivers’ licenses). [29] A.R.S. § 32-1601(22)(g) includes among the definitions of unprofessional conduct “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.” [30] Laws 1982, Ch. 190, § 1. [31] A.R.S. § 32-1601(22)(e) includes among the definitions of unprofessional conduct “[b]eing mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public.” [32] A.R.S. § 32-1646(A)(4) allows the Board to regulate CNAs by “[d]eny[ing] certification . . . if a nursing assistant commits an act of unprofessional conduct. . . .” [33] A.R.S. § 32-1663 concerns disciplinary action and provides as follows: A. If 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. B. In its denial order, the board shall immediately invalidate any temporary license or certificate issued to the applicant.

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