ALJDEC decisions subject to certification as final

16A-1212101-NUR-RES · State Board of Nursing · 2016-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2016 APPEARANCES: Karen Lee Hayes, Respondent; Elizabeth Campbell, Attorney for the Arizona Board of Nursing; Jennifer Ingram, witness; Cindy Bachman, reporter ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. The hearing in this matter convened to determine whether grounds exist to take disciplinary action, including suspension or revocation against Karen Lee Hayes (“Respondent”) who holds a Certified Nursing Assistant certificate with the Arizona Board of Nursing (“Board”). On December 27, 2012, Respondent reported that she had been arrested on November 29, 2012. The Board sent Respondent a questionnaire, which she filled out and submitted to the Board on or about August 26, 2013.[1] In it, Respondent reported an arrest in 1989 for cocaine possession. The information provided by Respondent disclosed that she pled guilty and that the conviction was set aside on October 30, 2000. Respondent’s November 9, 2005 Application for Certified Nursing Assistant by Examination[2] contained a “no” answer to the question of whether Respondent had ever been convicted of a felony. 2. An investigator for the Board obtained documentation reflecting that during the November 29, 2012 arrest, Respondent was found to have Blood Alcohol Content (“BAC”) of .089 and .088 during two tests.[3] Respondent was charged with DUI, “Impaired to the Slightest Degree” and DUI, “.080+ BAC within 2 hours” and was convicted on both counts by a jury.[4] 3. The investigator also found that Respondent was arrested on December 20, 2014 with a BAC of .198.[5] 4. The minutes of the Board’s July 2015 meeting reflected a vote that and interim order for psychiatric testing with a substance use evaluation would be issued.[6] That order was issued on July 23, 2015.[7] According to the testimony of the investigator, no evaluation was submitted to the Board in response to the interim order. 5. Respondent appeared at the hearing and testified that she had not been guilty in 1989 but had been intimidated into taking a guilty plea. She also stated that she did not know that it had been a felony conviction. However, she said, she had revealed the facts of that conviction in her application. Respondent admitted to having been convicted of a DUI in 2012 and a DUI in 2015 and she explained the circumstances involved. She also admitted that she had not obtained a psychiatric evaluation because she couldn’t afford it. She stated that she is unemployed and homeless right now, which makes her circumstances even more difficult. However, she argued that the events leading to her convictions had nothing to do with the performance of her job and had happened on her own time. CONCLUSIONS OF LAW 1. 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, 32-1664, and 41- 1092.11(B). The Board also has the authority, pursuant to A.R.S. § 32-1663 and A.R.S. § 32-1664, to impose disciplinary sanctions against the holders of nursing licenses/certified nursing assistants for unprofessional conduct. The Board has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.R.S. 41-1092.07(G). 2. Arizona law defines unprofessional conduct in the nursing profession at A.R.S. § 32-1601(24),[8] which provides, in relevant part, as follows:

"Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. (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. * * * * (h) Committing an act that deceives, defrauds or harms the public. (i) Failing to comply with a stipulated agreement, consent agreement or board order.

3. A.A.C. R4-19-814(16) further describes unprofessional conduct as follows: Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting

4. Respondent’s above-noted conduct constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(24)(d) and (i) as it concerns her DUIs. The evidence supported a finding of unprofessional conduct pursuant A.R.S. § 32-1601(24)(d) because Respondent’s repeated DUI violations were strong evidence that she was being a danger to the public when driving under the influence of alcohol. While it is true that Respondent was not on duty when she was arrested (and therefore A.A.C. R4-19-814(16) does not apply because her “practice” would not have been detrimentally affected), the act of driving under the influence of alcohol is a public danger. 5. The evidence supported a finding of unprofessional conduct pursuant to A.R.S. § 32-1601(24)(i) because Respondent failed to comply with the Board’s order. It should be noted that the order required Respondent to pay for her own evaluation; therefore, her inability to pay is a valid defense. The evidence did not establish a violation of A.R.S. § 32-1601(24)(h) because insufficient evidence was offered to establish that Respondent deceived, defrauded, or harmed the public, even though her actions did establish the risk of that result. 6. Respondent’s above-noted conduct does not constitute unprofessional conduct pursuant to A.R.S. § 32-1601(24)(b) as it concerns the 1989 cocaine conviction because Respondent was not certified at the time of the conviction. It would not be appropriate to find that the requirements of professional conduct apply to someone who was not a professional, as it is understood by the statute, at the time of the action that gave rise to the conviction. It is not appropriate to find that the rules pertaining to licensed and certified individuals govern the actions of anyone who is not yet licensed or certified unless those rules specify it, such as providing that an applicant shall not have a history of a conviction. In this case, the statute finds that it is unprofessional conduct to commit the felony. Therefore, it does not apply to Respondent’s behavior in 1989. The same reasoning applies to A.A.C. R4-19-814(19),[9] which specifies that violation of federal or state laws regarding illegal drugs violates the standards of conduct for licensees and certificate holders. 7. It was established that Respondent failed to mark that she had a felony conviction on her application, which may implicate unprofessional conduct pursuant to A.R.S. § 32-1601(24)(a). It was undisputed that Respondent disclosed the facts of the conviction in her application. This indicates that she did not intend to commit fraud or deceit in order to obtain her certification. Therefore, the greater weight of the evidence did not establish unprofessional conduct as it is described in A.R.S. § 32-1601(24)(a). 8. Commensurate with the Board’s authority to take disciplinary action, the Administrative Law Judge recommends that Respondent’s certification be suspended until Respondent can offer the Board convincing new evidence of any kind that she is able and prepared to practice competently. In order to avoid over-taxation of the Board’s resources, Respondent’s access to the Board for the presentation of new evidence should be limited to once every 6 months or more during a regularly scheduled Board meeting for an oral presentation not to exceed 10 minutes and documentation not to exceed 20 or fewer pages of evidence. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Certified Nursing Assistant Certificate No. CNA [number redacted] issued to Karen Lee Hayes be suspended until Karen Lee Hayes presents to the Board new evidence, of her own choosing, that convinces the Board that she is able and prepared to practice competently, the time and evidence of such presentation to be limited in accordance with the sound discretion of the Board. Done this day, September 2, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] Exhibit 2. [2] Exhibit 3. [3] Exhibit 4. [4] Exhibit 5. [5] Exhibit 6. Respondent’s conviction for two counts of DUI was upheld on appeal on July 5, 2016. See Exhibit 7. [6] Exhibit 8. [7] Exhibit 9. [8] Prior to August 2, 2012, A.R.S. § 32-1601(18)(effective September 30, 2009) applies. After August 2, 2012, A.R.S. § 32-1601(22) applies. It appears from the evidence and the posting of the statute on the Arizona Secretary of State’s website that all three versions contain identical wording.

[9] Formerly, A.A.C. R4-19-814(14).

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