FINACT18A-1410114-NUR.pdf

18A-1410114-NUR · State Board of Nursing · 2018-05-22

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 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: May 21, 2018

RE: Ulysses Mathis Wilson Docket No. 18A-1410114--NUR ______________________________________________________________________________

On May 18, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoked Nursing Assistant No. CNA999997306, issued to Ulysses Mathis Wilson.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF THE NURSING ASSISTANT CERTIFICATE NO. FINDINGS OF FACT, CNA999997306 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 18A-1410114--NUR ULYSSES MATHIS WILSON, RESPONDENT A hearing was held before Jenna Clark, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on April 12, 2018. Elizabeth Campbell, Assistant

Attorney General, appeared on behalf of the State. Ulysses Mathis Wilson (“Respondent”) was not

present and was not represented by counsel. On April 19, 2018, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On May 18, 2018, 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

1. On March 30, 2018, the Arizona State Board of Nursing (“the Board”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 1:00 PM on April 13, 2018. The NOTICE OF HEARING provides that the issue for hearing is, “to determine whether grounds exist to

take disciplinary action, including suspension or revocation against Ulysses Mathis Wilson who holds

nursing assistant certificate no. CNA999997306 to perform as a nursing assistant in the State of Arizona.” 1

See Hearing File, page 1.

2. The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. See ARIZ. REV. STAT. §§ 32-1601-1667. The Board also has the authority to impose disciplinary sanctions

against the holders of nursing licenses for violations of the Nurse Practice Act. ARIZ. REV. STAT. §

41-1092.11(B); ARIZ. ADMIN. CODE R-19-101 et al. 3. At the hearing the Board presented the testimony of Pete Wittenberg – Board Investigator, and submitted exhibits 1 through 6. The Respondent failed to appear. Based on the

testimony and evidence the Tribunal finds the following facts.

4. Ulysses Mathis Wilson (“Respondent”) was first certified as a Nursing Assistant by the Board in 2003. 2 However, Respondent allowed his certificate to lapse from April 01, 2005, through October 6, 2005; again from April 01, 2007, through October 18, 2007; and again from April 01, 2009, through April 06, 2009. His certificate expired on March 31, 2018. 3

5. On or about October 02, 2017, the Board received a complaint from Respondent’s ex-

wife C.W., who has two daughters – G.K. and V.K. 4 She alleged that Respondent had inappropriately touched G.K., and had exposed himself to both of them. The complainant further alleged that Respondent had been terminated from employment at Touch Heals Physical Therapy due to his

inappropriate conduct. C.W. also alleged that Respondent lost custody of his child in Texas due to

inappropriate behaviors on his part.

Respondent’s certificate was issued prior to the statutory change in ARIZ. REV. STAT. § 32-1646, effective

July 01, 2016, and is therefore equivalent to the current Licensed Nursing Assistant for purposes of determining whether he engaged in unprofessional conduct under ARIZ.REV. STAT. § 32-1601(26) and ARIZ. ADMIN. CODE R4-19-814. Pursuant to ARIZ. REV. STAT. § 32-1664(C) the Board retains jurisdiction to proceed with an investigation

or disciplinary proceeding against a regulated party whose license or certificate expired not more than five years before the Board initiates the investigation. Because the complainant asked the Board keep her contact information confidential, the Tribunal will only refer to her by her initials to further respect that request. Additionally, because the victims were minors at the time of the incident, their names have been abbreviated to protect their identities as well. Respondent is not a biological parent to either child.

6. Based on the received complaint the Board conducted an investigation. 5 Mr. Wittenberg was assigned as the investigator in this matter. G.K. ALLEGATION

7. On October 04, 2017, Mr. Wittenberg interviewed C.W.’s oldest daughter G.K., who

shared that sometime in 2013 when she was twelve or thirteen years old Respondent massaged his hands up her leg and digitally penetrated her vagina, asking, “Doesn’t this feel nice?” At that time, Respondent also told G.K. that he wanted to use adult sex toys on her.

TOUCH HEALS PHYSICAL THERAPY ALLEGATIONS

8. On February 26, 2018, Mr. Wittenberg interviewed Tracey Kara, the owner of Touch Heals Physical Therapy. Ms. Kara stated that she employed Respondent for approximately two years, and terminated him after she received several complaints regarding his inappropriate behavior. The first complaint was received on April 18, 2012, regarding improper conduct and inappropriate comments

toward a patient. 6 The second complaint was received on July 27, 2012, regarding improper conduct

and inappropriate comments toward another patient. 7 The third complaint was received on August 21, 2012, regarding Respondent’s use of inappropriate language with patients and staff. 8 The fourth complaint was received on August 29, 2012 regarding inappropriate comments he made to a referred

C.W. also accused Respondent of previously being investigated for homicide, but because the Board did

not investigate that allegation it will not be addressed here. Patient, J.P., complained that Respondent improperly draped her for a massage, by pulling her draping

sheet down past her knees leaving a buttock exposed. J.P. further alleged that Respondent referred to the encounter as a “Special Massage. Patient, E.H., complained that Respondent improperly draped her for a massage, tucking the draping sheet between her buttocks, resulting in an exposed buttock. E.H. further alleged that Respondent asked her out to dinner during the massage Staff complained that Respondent employed inappropriate pet names for them, and complimented them

excessively. Staff and patients also complained that Respondent would discuss specific plans to patronize strip clubs, making them feel uncomfortable.

client. 9 Respondent was issued five warnings due to the aforementioned incidents. 10 He was terminated as a result on August 30, 2012. 11 TEXAS CHILD ABUSE ALLEGATION

9. On March 21, 2005, Respondent was arrested for administering a spanking to his

fourteen year old son J.R. 12 Respondent plead guilty and was convicted of Felony Reckless Injury to a Child with Bodily Injury on October 09, 2007. 13 He was sentenced to four years of probation which was terminated early on October 15, 2009. 14

RESPONDENT DISHONESTY ALLEGATIONS

10. On October 19, 2007, ten days after Respondent’s felony conviction for Reckless Injury to a Child in the District Court of Lubbock County Texas, Case No. 2006-412685, Respondent completed, signed and submitted an application for renewal of his nursing assistant certification. 15 A question on page three of the application asks, “Since your certification was granted or your last

renewal, whichever is later, have you been convicted, entered a plea of guilty, nolo contendre or no

contest or have you been sentenced, served time in jail or prison, or had prosecution deferred or sentence deferred or probation deferred in any felony or undesignated offense?” Respondent answered, “No.” See Board Exhibit 4, page 28; ARIZ. REV. STAT. §§ 32-1601(16)(b), 32-1601(16)(l), 32-1663,

and 32-1664.

11. On November 6, 2014, the Board mailed Respondent an Investigative Questionnaire related to allegations that he (a) inappropriately handled patients at Touch Heals Physical Therapy, and A referring physician complained that Respondent had an inappropriate exchange with a patient, M.H., whereby Respondent repeatedly told her during the massage that he would leave his wife for her. M.H. felt extremely uncomfortable. See Board Exhibit #2, pages 8-16. Id. at pages 6-7 Because the victim was a minor at the time of the incident his name has been abbreviated to protect his

identity. See Board Exhibit #3, pages 20-23. Id. at page 24. See Board Exhibit #3, pages 26-28.

(b) inappropriately touched two young children. The mailing also contained an Arrest/Citation/Charge Questionnaire with instructions on how to complete it, including providing a written statement and police and court records regarding each arrest, citation, and charge, by December 06, 2014. 16

Respondent returned a partially completed document on December 08, 2014, but his statement did not

address the allegation that he inappropriately touched two young children. Also, Respondent misidentified the felony conviction in Lubbock, Texas as “Child Endangerment.” Respondent failed to provide a written explanation for the conviction and the supporting court documentation as instructed. 17

CONCLUSIONS OF LAW

1. The COMPLAINT AND NOTICE OF HEARING that the Board mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See ARIZ. REV. STAT. §§ 41-1092.04 and 41-1061(A). 2. This matter lies within the Board’s jurisdiction under ARIZ. REV. STAT. § 32-

1606(B)(10).

3. The Board bears the burden of proof to establish cause to penalize Respondent’s nursing assistant certificate. ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

4. The Board’s burden is a preponderance of the evidence. ARIZ. ADMIN. CODE R2-19-

119. 5. A preponderance of the evidence is: The 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

See Board Exhibit #5, pages 30-35. Notably, because local law enforcement officials were also investigating these same allegations against

Respondent, the Board was prohibited from requesting further compliance from Respondent as of March 06, 2018.

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.

BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

6. The Administrative Law Judge finds the Board’s evidence regarding the allegations of inappropriate conduct against Respondent to be credible. Respondent failed to appear and provide exonerating or mitigating evidence to refute the Board’s claims. Moreover, there is no evidence in the

record to reasonably suggest that Respondent ever fully admitted any wrongdoing to the Board or

attempted to enter into a Consent Order for the underlying events, demonstrating that he is not able to be regulated at this time. 7. Because Respondent has committed unprofessional conduct, the Board has authority to revoke his nursing assistant certificate. ARIZ. REV. STAT. § 32-1663(D); and § 32-1664(O).

8. In light of the risk of potential harm to patients as a result of Respondent’s actions and

violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s certification under ARIZ. REV. STAT. §§ 32-1663(D) 18 and 32-1664(N). 19 9. Considering the facts and circumstances of this matter, it is recommended that nursing

assistant certificate number CNA999997306 be revoked.

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 nursing assistant certificate no.

CNA999997306 issued to Ulysses Mathis Wilson.

ARIZ. REV. STAT. § 32-1663(D) provides that if the Board determines a licensee has committed an act of

unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. ARIZ. REV. STAT. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

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. Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C).

The motion for rehearing or review shall be made to the attention of Hearing Department,

Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, and must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608. 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/nursing assistant license pursuant to A.A.C. R4-19-815 after a period of five years. DATED this 18th day of May, 2018. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 21st day of May, 2018, by First Class Mail and Certified Mail No. [account number redacted] 5692 and First Class Mail to:

Ulysses Mathis Wilson 1645 E. Nielson Ave. Mesa, AZ 85204

COPIES of the foregoing mailed this 21st day of May, 2018, to:

Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith