FINACT17A-1512022-NUR.pdf

17A-1512022-NUR · State Board of Nursing · 2016-12-06

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 4747 North 7th Street, Suite 200 Phoenix. AZ 85014-3655 Phone (602) 771-7800 Fax (602) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: November 21, 2016

RE: Bambi C. Padilla Docket No. 17A-1512022-NUR ______________________________________________________________________________

On November 18, 2016, the Board considered the Administrative Law Judge

Decision (“ALJ Decision”), which recommended that the Board Revoke Certified Nursing

Assistant Certificate No. CNA1000033056, issued to Bambi C. Padilla.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended

Order in its entirety. ARIZONA STATE BOARD OF NURSING 4747 North 7th Street Ste 200 Phoenix AZ 85014-3655 602-771-7800

IN THE MATTER OF CERTIFIED FINDINGS OF FACT, NURSING ASSISTANT CERTIFICATE NO. CNA1000033056 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 17A-1512022-NUR BAMBI C. PADILLA, RESPONDENT A hearing was held before Diane Mihalsky, Administrative Law Judge (“ALJ”), at 1400 West Washington Suite 101, Phoenix Arizona, on September 30, 2016 at 1:00 p.m. Sunita A. Krishna,

Assistant Attorney General, appeared on behalf of the State. Bambi C. Padilla (“Respondent”) appeared in person on her own behalf. On October 12, 2016, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On November 18, 2016, the Arizona State Board of Nursing met to consider the

ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this

matter, the Board makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT BACKGROUND AND PROCEDURE

1. The Board has the authority to regulate and control the practice of nursing in the State of

Arizona, pursuant to A.RS. §§ 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.

2. Respondent holds Board-issued certified nursing assistant ("CNA'') certificate number CNA1000033056. In October 2014, Respondent was employed by Brightstar Care as a caregiver for Patient A, a 92-year-old woman, in her home.

3. The Board subsequently received a report from Lisa Stone, the President/Owner of

Brightstar Care, that Respondent had used Patient A's credit card to make unauthorized purchases and that, as a result, Respondent had been criminally charged with obtaining a credit card by fraudulent means, a class 5 felony.

4. The Board assigned Senior Investigator Max Barker to investigate Ms. Stone's

complaint. Mr. Barker used Board-issued subpoenas to obtain documents about the incident from Brightstar Care, the City of Surprise Police Department ("SPD"), and the Maricopa County Superior Court. Mr. Barker prepared an investigative report that summarized the evidence that he obtained in his investigation. 1

5. The Board considered Mr. Barker's investigative report and determined that the evidence

summarized in the report indicated that Respondent had committed unprofessional conduct as defined in various sections of A.R.S. § 32-1601(22). 2 The Board also determined that the public health, safety, and welfare required that Respondent's CNA certificate be summarily suspended. The Board referred

the matter to the Office of Administrative Hearings, an independent state agency, for an expedited

evidentiary hearing. 6. On or about August 26, 2016, the Board issued a Complaint and Notice of Hearing that set forth certain factual allegations. Based on those allegations, the Board's Complaint and Notice of

Hearing charged Respondent with having committed unprofessional conduct as defined by A.R.S. §§

32-1601(22)(d), 32-1601(22)(e), 32-1601(22)(g), 32-1601(22)(h), and 32-1601(22)(j), as more

See the Board's Exhibit 9. Effective August 2, 2012.

specifically defined at A.AC. R4-19-814(1), R4-19-814(9), R4-19-814(11), R4-19-814(13), R4-19- 814(15), R4-19-814(23), R4-19-814(29), and R4-19-814(32) and A.R.S. § 32'."3208(A). 7. A hearing was held on September 30, 2016. The Board submitted ten exhibits and

presented the testimony of four witnesses: (1) SPD Detective Michael Baldwin, who investigated

Respondent's use of Patient A's credit card; (2) Mr. Barker; (3) Ms. Stone; and (4) Cynthia Rogers, Patient A's daughter. Respondent testified on her own behalf and presented the testimony of Randy J. Elmore and Tamela June Elmore, her parents.

HEARING EVIDENCE

8. Mrs. Rogers testified that her 92-year-old mother, Patient A, lived with her and that before October 2014, Respondent worked as Patient A's in-home caregiver, helping Patient A with bathing, dressing, meals, exercising, and walking. Mrs. Rogers testified that Respondent had full access to the house and that Mrs. Rogers was not always home with Patient A and Respondent. Mrs.

Rogers explained that since Patient A had a caregiver, Mrs. Rogers was able to leave the home to go

shopping or to run errands. 9. Mrs. Rogers testified that she has a Discover credit card that was jointly issued to Patient A and herself. Mrs. Rogers kept the Discover credit card in her purse and, when she was home, usually

draped her purse over the chair in the dining room in the house she shared with Patient A.

10. Mrs. Rogers testified that on October 1, 2014, she attempted to use the Discover credit card to pay for medications when she realized that it was not in her purse. Mrs. Rogers testified that the last time she used the credit card was on September 22, 2016.

11. Mrs. Rogers obtained a credit card statement from Discover, which showed that on September 29, 2014, the card had been used in Surprise, Arizona at Fry's Market Place for a $178.04 charge and Fry's Fuel for a $49.73 charge. 3

12. Mrs. Rogers testified that she does not live in or near Surprise, Arizona. Respondent had

told her earlier that she lives in Surprise with her parents. 13. Mrs. Rogers testified that Respondent did not work at her home on September 29, 2014. Mrs. Rogers testified that neither she nor her mother had made or authorized the charges.

14. Respondent's activities logs for Patient A between September 23, 2014, and September

30, 2014, did not show anything about going to the grocery store or getting gasoline. 4 15. Mrs. Rogers called Discover to put a hold on the account and then called SPD to report the theft. 16. SPD assigned Detective Baldwin to the case. Mrs. Rogers informed Detective Baldwin

that she suspected Respondent of having taken the Discover credit card. Detective Baldwin obtained

Respondent's description from Mrs. Rogers and public records. Detective Baldwin then obtained surveillance videos from Fry's Market Place and Fry's Fuel. 17. Detective Baldwin testified that Fry's Market Place was able to match the Discover

credit card number to the charge at the self-service kiosk. The Board submitted the surveillance video

at the self-service kiosk. Respondent can be seen purchasing items on the video. 5 18. Mrs. Rogers identified Respondent in the video. Respondent's father and mother, Mr. and Mrs. Elmore, also identified her on the video.

See the Board's Exhibit 1. See the Board's Exhibit 2. See the Board's Exhibit 10. The SPD police report, which includes a chain-of-custody form for the video, was submitted as the Board's Exhibit 3.

19. Detective Baldwin interviewed Mrs. Rogers and Patient A. He testified that both denied authorizing Respondent to use their Discover credit card. 20. When Detective Baldwin interviewed Respondent, she denied having taken the Discover

credit card because she is paid for her work and does not need money.

21. According to the SPD police report, on November 18, 2014, a criminal complaint was issued in Maricopa County Superior Court Case No. 2015-102371, charging Respondent with Theft of a Credit Card or Obtaining a Credit Card by Fraudulent Means. 6 On January 15, 2015, Respondent

was charged with the same crime by direct complaint and on July 9, 2015, Respondent was charged for

the same crime by information. 7 22. Respondent did not report the charges to the Board. 23. Respondent suffered a stroke approximately 12 years ago that left her with cognitive deficits and significant speech impairments. According to her parents, she took five years to complete

her CNA training. On the date of the hearing, the charge against Respondent in Maricopa County

Superior Court Case No. CR2015-102371 was still pending due to Rule 11 proceedings concerning her competency to stand trial on the criminal charge. 8 24. Ms. Stone testified that Mrs. Rogers contacted Brightstar Care about Respondent's

apparent theft of Mrs. Rogers and Patient A's credit card. Brightstar Care prepared a report of the

incident and on October 22, 2014, terminated Respondent's employment. 9 Ms. Stone testified that Respondent denied having taken the credit card. 25. The Board submitted Brightstar Care's policy prohibiting financial abuse, which

provides that "[a]ny theft or misuse of an eider's money or property, by a person in a position of trust

See the Board's Exhibit 3 at 21. See the Board's Exhibit 4 at 42 See the Board's Exhibit 4 at 48-51. See Respondent's Exhibit 6.

with an elder, constitutes financial abuse." 10 Ms. Stone testified that Brightstar Care's employees are not allowed to accept cash, checks, or credit cards from persons in their care and that the prohibition is taught in new employee orientation.

26. Ms. Stone testified that Respondent never contacted her about being asked to use or

using Ms. Rogers and Patient A's Discover credit card. Ms. Stone testified that if a caregiver ever contacted her about being asked to use a client's credit card, she would speak to the client and explain Brightstar Care's policy.

27. After the Board received Ms. Stone's complaint, it requested that Respondent complete

an Investigative Questionnaire. On or about January 18, 2016, Respondent submitted an account of the incident to the Board, in which she stated in relevant part: While working as a care provider for an older client along with several others all of us working same shifts and others working different shifts. Once of the client's credit cards became missing the client told investigators she used the card that was missing to allow her care providers to shop for her. Then she claimed I was the last person to use the card so she stated I must be the guilty person. No proof has ever been shown of me using the [client's] card but the Phoenix D.A.'s office is charging me anyway. I'm more than positive this matter will reach the same conclusion I already know. That I'm not guilty of anything other than caring for a little old lady and giving the best care my heart is possible of giving. 11

28. On or about April 7, 2016, Mr. Baldwin interviewed Respondent. Mr. Baldwin reported Respondent's statements in the interview as follows:

She stated that (she] does not remember PATIENT A (.] Respondent told me that on October 14, 2014 . . ., at the end of her shift, a patient gave her a credit card and asked Respondent to purchase groceries. The patient also told Respondent to use the credit card to buy herself a tank of gasoline for performing the errand. Respondent told me running errands and purchasing grocery items (and such) are part of her job, that her

The Board's Exhibit 5 at 56. The Board's Exhibit 8 at 88.

employer authorized her to perform these functions and that she obtained prior authorization from her employer before making the purchase (she does not know who she obtained the permission from).

Respondent admitted she used a patient's credit card to purchase gasoline for herself and stated she used the card to purchase groceries for a patient at a Fry's grocery store in Surprise, Arizona (the patient in question lives in Phoenix, Arizona). After making the purchase, she states she returned to the patient's home the following work day, where she returned the groceries. Respondent states she returned the credit card back to the patient with the receipts for the items she purchased. Later, she says she wrote these transactions down on a patient care form she sent by electronic mail to her employer. The patient care form is signed by her and the patient. Respondent told me she documents all of her activities on a patient care form, and if she does not submit the form, she does not get paid. Respondent denies doing anything criminal in nature, or in violation of her employer's policy regarding the care of patients. Respondent told me she has shopped on behalf of a patient lots of times, and that it is part of her duties authorized by her employer. 12

29. Mr. Barker interviewed Mrs. Rogers and Patient A. Both told him that they had not

authorized Respondent to use the credit card. Mr. Barker interviewed Ms. Stone. She told him that

using a client's credit card was against Brightstar Care's policy. 30. The Board submitted the Personal Care Visit Notes that Respondent had completed for her care of Patient A between September 20, 2014, and October 3, 2014. 13 The Personal Care Visit Notes do not show that Respondent performed any shopping on Patient A's behalf or that Patient A or

Ms. Rogers authorized Respondent to use the Discover credit card.

31. Respondent testified that she did not remember the incident, but that she wanted to keep her CNA certificate. Respondent is willing to go to work and have people check up on her all the time. Respondent would do anything to keep her certificate.

The Board's Exhibit 9 at 97-98. See the Board's Exhibit 7.

32. Respondent's father, Mr. Elmore, testified that Respondent is a good child. If she has a routine, she can perform repetitive tasks. Respondent is a hard worker for whom no task is too big or too small. Mr. Elmore testified that he believes that Respondent could work as a CNA in a hospital

where she had less variation in routine and more supervision.

33. Mr. Elmore testified that Respondent has exceptional honesty and integrity. The incident with the charge card floored him and Mrs. Elmore. Everyone makes mistakes, and sometimes a mistake is a doozy. It is up to others to decide what price Respondent must pay for being human.

34. Mr. Elmore testified that Respondent lives at home because she must undergo

hemodialysis three times a week and has cancer, not because she is unable to care for herself. 35. Respondent's mother, Mrs. Elmore, testified that other employers who had employed Respondent as a CNA jobs had allowed her to take clients to the store and use their credit cards to make purchases for them. Mrs. Elmore testified that Respondent gets confused easily. No one has ever

reported that Respondent rendered negligent care to a client.

36. Mrs. Elmore testified that if she had known that Respondent was required to report to the Board that she had been charged with a crime, Mrs. Elmore would have made sure that the report had been made.

CONCLUSIONS OF LAW

1. This matter lies within the Board's jurisdiction under A.R.S. § 32-1606(B)(10).

2. The Board bears the burden of proof to establish by a preponderance of the evidence

cause to discipline Respondent's CNA certificate. 14 Respondent bears the burden of proof to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. 15

See A.R.S. § 41-1092.07(G)(2); A.AC. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court,

74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2).

3. "A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." 16 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." 17 4. The Board established and Respondent did not dispute that she took Patient A and Mrs.

Rogers' Discover credit card to make purchases at Fry's Market Place and at Fry's Fuel. The Board

established that the purchases were not authorized by Patient A, Mrs. Rogers, or Brightstar Care and that the purchases violated Brightstar Care's policy. The Board also established that Respondent's unauthorized use of the credit card constituted a criminal act. The Board also established that Respondent's physical and/or mental conditions prevent her from being fully accountable for her

actions.

5. Therefore, the Board established that Respondent committed unprofessional conduct as defined by A.RS. §§ 32-1601(22)(d), 32-1601(22)(e), 32-1601(22)(g), 32-1601(22)(h), and 32- 1601(22)(j), 18 as more specifically defined at A.A C. R4-19-814(1), R4-19-814(9), R4-19-814(11), R4-

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 17 BLACK'S LAW DICTIONARY at page 1220 (8th ed. 1999). 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. (e) Being 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.

(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(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.

19-814(13), R4-19-814(15), R4-19-814(23), R4-19-814(29), and R4-19-814(32). 19 Respondent's unprofessional conduct furnishes cause for the Board to discipline her CNA certificate under A.RS. § 32-1663(D). 20

6. It was not clear at the hearing whether Respondent intended to defraud Patient A and

Mrs. Rogers or whether she honestly but mistakenly believed that they had authorized her use of the Discover credit card. It was not clear whether Respondent remembered the circumstances of her use of

19 A.AC. R4-19-814 provides additional standards for CNAs, in relevant part as follows:

For purposes of A.R.S. § 32-1601(22)(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: 1. Failing to maintain professional boundaries or engaging in a dual relationship with a patient, resident, or any member of the patient's or resident's family;

9. Violating the rights or dignity of a patient or resident;

11. Neglecting or abusing a patient or resident physically, verbally, emotionally, or financially;

13. Soliciting, or borrowing, property or money from a patient or resident, or any member of the patient's or resident's family, or the patient's or resident's guardian; 15. 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. 23. Threatening, harassing, or exploiting an individual; 29. If an applicant or certificate holder is charged with a felony or a misdemeanor, involving conduct that may affect patient safety, failing to notify the Board, in writing, within 10 working days of being charged under A.R.S. § 32-3208. The applicant or certificate holder shall include the following in the notification: a. Name, current address, telephone number, Social Security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense; 32. 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.

A.R.S. § 32-3208(A) provides as follows: A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. A.R.S. §32-1663(0) 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."

the credit card. Her statements to Detective Baldwin, Mr. Barker, Brightstar Care, and at the hearing were inconsistent and contradictory. It was clear that Respondent is committed to being a nurse and that, most of the time, she is a compassionate and professional CNA who is committed to her patients'

well-being.

7. The Board's statutory responsibility is to "to more effectively protect the public health safety and welfare" by regulating the practice of nursing in Arizona. 21 A CNA 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. The nature of a CNA's practice prevents the Board from imposing

conditions that would protect the public from any future lapse in judgment or other inexplicable act involving a patient in her care by Respondent. The Board therefore established cause under 32- 1663(A) and (B) 22 to revoke Respondent's CNA certificate. ORDER

In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order:

Pursuant to A.R.S. § 32-1664(N), the Board REVOKES certified nursing assistant certificate number CNA1000033056 issued to Bambi C. Padilla. RIGHT TO PETITION FOR REHEARING OR REVIEW

Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing

or review within 30 days after service of this decision with the Arizona State Board of Nursing. The motion for rehearing or review shall be made to the attention of Hearing Department, Arizona State Board of Nursing, 4747 North 7th Street Ste 200, Phoenix AZ 85014-3655, and must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608.

Laws 1982, Ch. 190, § 1. 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.

For answers to questions regarding a rehearing, contact the Hearing Department at (602) 771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing or review within 30 days after service of this decision, Respondent shall be prohibited from

seeking judicial review of this decision.

This decision is effective upon expiration of the time for filing a request for rehearing or review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609. Respondent may apply for reinstatement of said certificate pursuant to A.A.C. R4-19-815 after a

period of five years.

DATED this 18th day of November, 2016. ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 21st day of November, 2016, by Certified Mail No. [account number redacted] 7824 and First Class Mail to:

Bambi C. Padilla 15470 N 177th Drive Surprise, AZ 85388 COPIES of the foregoing mailed this 21st day of November, 2016, to: Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007 Sunita A. Krishna Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 85007

By: T. Smith