ALJDEC decisions subject to certification as final

16A-1311120-NUR · State Board of Nursing · 2019-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2019, at 1:00 p.m.; the record was held open until February 6, 2019, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript when she issued her decision to the Arizona State Board of Nursing (“the Board”). APPEARANCES: The Board was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General; Barbara J. Davidson (“Respondent”) appeared telephonically on her own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 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 licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. Respondent held Board-issued nursing assistant number UCNA999989157 in the State of Arizona, which expired on July 26, 2016.[1] On July 26, 2016, Respondent obtained a Registry CNA, which does not expire until July 31, 2020.[2] On December 6, 2018, the Board issued a Complaint and Notice of Hearing, setting forth certain factual allegations and, based on those alleged facts, charging that Respondent had committed unprofessional conduct as defined by A.R.S. §§ 32-1601(26)(d), 32-1601(h), and 32-1601(26)(j),[3] and as further defined by A.A.C. R4-19-814(13),[4] A.A.C. R4-19-814(21),[5] A.A.C. R4-19-814(26),[6] and A.A.C. R4-19-814(29).[7] The Board charged that Respondent’s acts of unprofessional conduct furnished cause to discipline her expired CNA certificate under A.R.S. §§ 32-1663 and 32-1664. An evidentiary hearing was held on January 23, 2019, before the Office of Administrative Hearings, an independent state agency. The Board submitted four exhibits and presented the testimony of Valerie Smith, R.N., M.S., F.R.E., its Associate Director. Respondent testified on her own behalf. Hearing Evidence On November 21, 2013, the Board received a complaint from Jeannette Mahvi, the Director of Nursing at Foothills Rehab Center (“Foothills”) in Tucson, stating that Respondent had failed to comply with nursing standards at her job at Foothills in a secure unit caring for patients with behavioral health issues. Specifically, Ms. Mahvi stated that Respondent had taken a resident’s clothing home, bullied another resident by calling him a “snitch” when he witnessed Respondent taking the clothing, and threatened to take cigarettes and soda from another resident who was unable to communicate with others due to significant cognitive loss.[8] Ms. Mahvi attached to her complaint the Reportable Event Record/Report that Foothills filed with the Arizona Department of Health Services (“ADHS”) about its investigation into the November 6, 2013 event, that summarized the following evidence obtained in Foothills’ interviews: 7.1 Resident J.T. was described as alert and oriented, having been admitted to the behavioral health unit due to multiple significant suicide attempts, with the last one resulting in severe frost bite and the amputation of multiple toes and fingers. J.T. told Ms. Mahvi that Respondent had been attempting to intimidate and threaten him because he told her to stop taking residents’ food, soda, and clothing. J.T. stated that Respondent ate food off residents’ trays and, when he tried to stop her, stated that she had hypoglycemia and needed to eat to keep her sugar up. J. T. stated that Respondent’s behavior had been going on “awhile.”[9] J.T. stated that Respondent had stolen two 6-packs of soda that he had been given and that when he tried to talk to her about it, she responded with “remarks about him telling everyone lies and making trouble for her.”[10] 7.2 Resident B.S. denied that Respondent had retaliated against him for reporting that Respondent stole his clothing, but insisted that Respondent had stolen his clothes, a belt, and some shoes.[11] 7.3 On November 6, 2013, Respondent admitted to taking home a T-shirt that another resident on the unit was “giving away” but stated she had returned the T-shirt after the Respondent told staff Respondent “had stolen it.” Respondent denied taking any soda, stating that she did not even drink soda. Respondent stated “all those guys lie about me and try to get me in trouble.” Respondent stated she had threatened one resident that she would “take his soda away” if he did not stop repeating himself and admitted “teasing” residents, but denied any intent to harm them. Respondent admitted to eating on the unit when her blood sugar was low, but stated that she brought her own food.[12] 7.4 On November 6, 2013, Foothills gave Respondent a written Notice of Investigatory Suspension pending its investigation. As a result of the investigation, Foothills terminated Respondent’s employment on November 8, 2013.[13] On November 8, 2013, Foothills gave Respondent a written Notice of Termination of Employment.[14] On or about November 13, 2013, Respondent filed an Application for Employment with the Arizona Department of Veterans’ Services. On the application, she stated that her reason for leaving Foothills was “Better working environment.”[15] The Board opened an investigation into Ms. Mahvi’s complaint. On or about February 14, 2014, Respondent returned an investigative questionnaire regarding the November 6, 2013 incident. Complainant provided the following description of the November 6, 2013 incident: Jenny Mahvi stopped me, before I reported to my unit, with accusation from one the resident[s], at 500 behavior unit, stated I took residents sodas. I told Jenny Mahvi that wasn’t the truth. I told her I bring my own food, I don’t drink sodas, but one of my co-workers brought in some sodas, and gave me two cans and gave one resident named [J.T.] the rest of them. I assume he wanted all of the sodas. . . . [Co-worker] work with me on 500 behavioral unit. [Ms. Mahvi] stated she will interview the co-worker, but she didn’t interview none of my co- worker. She call me back in the office November 8 and discharge me. She made up some other accusations, Jenny Mahvi said two resident told her I intimidated them, and misappropriation of resident’s belonging. (Donated belonging.) . . . .

Jenny Mahvi stated to me that I was unsympathetic because I referred to these residents as criminal, and they would say and do anything for attention. They are compulsive liars and try to get staff in trouble just like they did in jail. This is a secured unit with 15 male residents that have severe mental illness with bad behavioral problems. They come from various jails in Arizona and other parts of the United States. I told her one of them tried to stab me with a fork and that each resident has a chart with diagnosis of reason why they are there on 500 Lockdown unit. Jenny Mahvi stated to me she didn’t know all that. . . . .

I have never had a write up in my 3 year not even in my 20 years of working. No complaints until now. In her 7 month of working she has discharged 20 of my co-workers, African American and African, also some other nationality. I don’t know any resident that I can intimidate. Myself and 3 other female workers, we are threatened with bodily harm and called bitch, whore, nigger. They even thro urine or feces on us if they can. I am 5’2”, 170 pounds. These men try to start fights, we need to be able to reason with them to stop their behavior, I am just doing my job, so I can go home uninjured. When resident state you better watch your back that a frightening feeling. Jenny Mahvi didn’t like me calling them criminal. D.M. one of residents that tried to stab me with a fork. I am trained to be on that unit.[16]

Respondent stated on the Investigative Questionnaire that her reason for leaving Foothills was an “unlawful discharge.”[17] Respondent attached to her questionnaire the Decision of the Appeal Tribunal in her favor in her claim against Foothills for unemployment compensation. Only Respondent and an unidentified witness from Foothills testified at the appeal hearing before an administrative law judge employed by the Arizona Department of Economic Security (“ADES”). The judge did not summarize the Foothills’ witness’s testimony. The judge stated that Respondent credibly testified that she had “accepted the donated shirt from the patient and offered it to another patient who needed clothing” and that withholding candy or cigarettes was “a common method of behavior control on her unit.” The judge found that she did not commit misconduct as defined by A.A.C. R6-3-5105(A)(1) of ADES’ regulations, upholding her claim for unemployment compensation.[18] Ms. Smith has been a registered nurse for 40 years, has obtained a Masters of Science degree in nursing, and has completed training to become a Fellow of Regulatory Excellence. She has extensive experience in caring for patients with behavioral health issues. Ms. Smith stated that long-term care facilities are required to report to ADHS incidents of possible abuse, neglect, misappropriation, or exploitation. Ms. Smith testified that the standard of training of nurses who care for patients with behavioral health issues is to learn methods to deescalate and prevent crises because such patients can be unpredictable and easily agitated. Ms. Smith testified that behavioral health staff are not allowed to take any of a patient’s belongings, even if the patient says he is giving the item away, because behavioral health patients may be impulsive. Ms. Smith pointed out that Respondent had admitted in Ms. Mahvi’s interview that she ate in front of residents, took a resident’s T-shirt home, but then brought it back after the resident accused her of stealing the T-shirt, and that she teased a resident by threatening to take his sodas away if he kept repeating himself. Ms. Smith testified that taking a patient’s food away is not a sanctioned intervention in caring for patients with behavioral health issues. Patients in inpatient rehabilitation for behavioral health issues may be confused, delusional, and impulsive. The patients have been locked up for their own and others’ protection because they cannot take care of themselves. Ms. Smith pointed out that Respondent had been informed in writing of her discharge from Foothills for cause and that she stated in her investigative questionnaire that she was unlawfully discharged from Foothills. Ms. Smith stated that Respondent’s statement on her employment application to the Arizona Department of Veterans Services that she left Foothills for a better working environment was not true. Ms. Smith pointed out that Respondent also referred to residents of Foothills as “criminals” in the investigative questionnaire that she returned to the Board. Ms. Smith testified that it is never appropriate for nurses to refer to their patients who have been diagnosed with serious mental illness as criminals and liars and to say that they all came from jails. Ms. Smith testified that Ms. Mahvi as the Director of Nursing at Foothills was attempting to bring Foothills’ employees’ behavior up to the accepted standard of practice in the nursing profession for caring for patients with behavioral health issues. The standard of care requires nurses to have empathy and respect for they patients; the patient’s possible criminal history is irrelevant how the nurse should care for the patient. Ms. Smith testified that the issues that the judge in the ADES hearing was called to decide were different than the issues in this matter. Ms. Smith testified that in a patient care situation, the standard of care for nurses is that it is never appropriate to accept a behavioral health patient’s belongings or to withhold food or drink as a way of controlling the patient. Such conduct may escalate the patient’s behavioral health issues and shows disrespect and lack of empathy and compassion. Respondent testified that there were 15 gentlemen on the 500 unit at Foothills, all with criminal backgrounds. Respondent testified that Ms. Mahvi was only at Foothills six months and had an inappropriate relationship with patient J.T., giving him cigarettes, soda, and special favors. Respondent testified that J.T. took all the stuff that Respondent was accused of taking and lied during the investigation. Respondent testified that the nurses who were there before Ms. Mahvi told staff how to treat patients if they were misbehaving by withholding food and privileges. Respondent repeated several times that the patients at Foothills were criminals. Respondent acknowledged that she should not have said that at Foothills, but that she thought she was having a private conversation. Respondent testified that the judge in the DES unemployment hearing believed her and she did not understand why the Board could not see the merits of her position. / / / / CONCLUSIONS OF LAW Pursuant to A.R.S. § 32-1664(C), the Board retains jurisdiction to investigate Respondent’s expired nursing assistant license and, if it finds that Respondent committed unprofessional conduct within the previous five years, to discipline the license.[19] This matter is within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). The Board bears the burden of proof to establish cause by a preponderance of the evidence cause to discipline Respondent’s expired CNA certificate.[20] Respondent bears the burden of proof to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[21] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[22] 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.”[23] The Board was not a party to the hearing before the ADES judge on the issue of whether Respondent should receive unemployment compensation and cannot be bound by the outcome of that hearing. More importantly, the issue in the unemployment hearing was whether Respondent had committed misconduct as defined by ADES’ regulations, not whether she had violated the Nurse Practice Act or the standard of care for nurses. A.R.S. § 32-1601(26) (formerly A.R.S. § 32-1601(22)) provides in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: . . . .

(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 board pursuant to this chapter.

Former A.A.C. R4-19-814 (effective January 31, 2009) provided in relevant part as follows: For purposes of A.R.S. § 32-1601(24)(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 LNA license and a CMA certificate includes the following: . . . .

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. . . . .

21. Threatening, harassing, or exploiting an individual; . . . .

26. Making a false or misleading statement on a nursing assistant, medication assistant or health care related employment or credential application; . . . .

29. Practicing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed.

Ms. Smith is a well-qualified expert in nursing practice who has worked for much of her career with patients with behavioral health diagnoses. Ms. Smith credibly and consistently testified to establish the standard of care that nurses who care for behavioral health patients are required to maintain, including not taking patients’ belongings, not withholding food, drink, or cigarettes to control or punish the patients, and not referring to the patients as “criminals.” Ms. Smith credibly testified that such treatment may harm behavioral health patients. Respondent has consistently admitted to taking a patient’s T-shirt, although she later returned it, withholding soda and cigarettes as a way of controlling behavioral health patients, and referring to the behavioral health patients at Foothills as criminals, including several times during the hearing. Respondent did not respond to Ms. Smith’s testimony that these acts violated the standard of care for nurses. Instead, she continued to blame J.T. and other Foothills’ residents, Ms. Mahvi, and her co-workers for her difficulties at Foothills. Respondent’s failure to comply with nursing standards, disrespect, and lack of empathy compromised the care she rendered to her patients at Foothills and caused J.T. and B.S. to suffer distress. In a nursing case, unlike an unemployment compensation case, the fact that other CNAs at Foothills may have engaged in the same unprofessional conduct does not excuse Respondent’s failure to comply with the standard of care for licensed nurses. Respondent did not contest her misrepresentation of her reason for leaving Foothills on the Arizona Department of Veterans’ Services application for employment. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.R.S. §§ 32-1601(26)(d), 32-1601(h), and 32- 1601(26)(j), and as further defined by A.A.C. R4-19-814(13), A.A.C. R4-19- 814(21), A.A.C. R4-19-814(26), and A.A.C. R4-19-814(29). Respondent’s unprofessional conduct furnishes cause for the Board to discipline her expired CNA certificate under A.R.S. § 32-1663(D).[24] The Board’s responsibility is to “to more effectively protect the public health safety and welfare” by regulating the practice of nursing in Arizona.[25] A CNA (now LNA) cares for the most vulnerable patients and practices without constant supervision, whether she is employed as a caregiver in a private home or a hospital. Respondent’s expired license status, with repeated her refusal to take responsibility for her practice or her patients, indicate that at this time she cannot be regulated. RECOMMENDED ORDER In light of Respondent Barbara J. Davidson’s acts of unprofessional conduct and expired Undeclared Certified Nursing Assistant Certificate No. UCNA999989157, it is ordered that on the effective date of the final order in this matter, Respondent Barbara J. Davidson’s expired Undeclared Certified Nursing Assistant Certificate No. UCNA999989157shall be revoked. 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 6, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] Respondent’s nursing assistant certification was first issued before the statutory change in A.R.S. § 32-1646 effective July 1, 2016, and is equivalent to the current Licensed Nursing Assistant for purposes of determining whether Respondent has engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26) and A.A.C. R4-19-814. [2] On July 1, 2016, A.R.S. § 32-1646(C) went into effect. The statute contains substantial new changes to the laws governing the regulation of “Registry” CNA’s going forward. [3] A.R.S. § 32-1601(22) was effective August 2, 2012. Since 2012, the legislature has amended the section numbering without material change to the statute. This section is currently cited as A.R.S. § 32-1601(26) (effective August 9, 2017). [4] A.A.C. R4-19-814(13) was effective January 31, 2009. This section is currently cited as A.A.C. R4-19-814(15) (effective September 8, 2014). [5] A.A.C. R4-19-814(21) was effective January 31, 2009. This section is currently cited as A.A.C. R4-19-814(23) (effective September 8, 2014). [6] A.A.C. R4-19-814(26) was effective January 31, 2009. This section, without change material to this case, is currently cited as A.A.C. R4-19- 814(28) (effective September 8, 2014). [7] A.A.C. R4-19-814(29) was effective January 31, 2009. This section is currently cited as A.A.C. R4-19-814(32) (effective September 8, 2014). [8] See Exhibit 1. [9] See Exhibit 1 at 5. [10] Id. at 8. [11] See id. [12] See id. [13] See id. [14] See Exhibit 2 at 13 and 14. [15] The Department’s Exhibit 3 at 19. [16] Exhibit 4 at 30, 32, 33. The Administrative Law Judge made spelling and grammatical corrections to make Respondent’s narrative more readable. [17] Exhibit 4 at 2. [18] See Exhibit 4 at 36-41. [19] A.R.S. § 32-1664(C) provides that “[t]he board retains jurisdiction to proceed with an investigation or a disciplinary proceeding against a regulated party whose license or certificate expired not more than five years before the board initiates the investigation.” [20] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [21] See A.A.C. R2-19-119(B)(2). [22] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [23] Black’s Law Dictionary at page 1220 (8th ed. 1999). [24] A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” [25] Laws 1982, Ch. 190, § 1.

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