ALJDEC decisions subject to certification as final
18A-1410114-NUR · State Board of Nursing · 2018-04-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF NURSING ASSISTANT CERTIFICATE NO. CNA999997306 ISSUED TO:
ULYSSES MATHIS WILSON,
RESPONDENT
No. 18A-1410114-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 12, 2018 at 1:00 PM.
APPEARANCES: The Arizona State Board of Nursing was represented by Elizabeth Campbell – Assistant Attorney General, who appeared with Pete Wittenberg as her witness. Loral Anne Pultz was present as a witness. Deborah Mitchell serves as the Court Reporter. No appearance on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
FINDINGS OF FACT
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 assistance certificate no. CNA999997306 to perform as a nursing assistant in the State of Arizona.”
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.
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.
Ulysses Mathis Wilson (“Respondent”) was first certified as a Nursing Assistant by the Board in 2003. 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.
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. 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 Heels 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.
Based on the received complaint the Board conducted an investigation. Mr. Wittenberg was assigned as the investigator in this matter.
G.K. Allegation
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
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. The second complaint was received on July 27, 2012, regarding improper conduct and inappropriate comments toward another patient. The third complaint was received on August 21, 2012, regarding Respondent’s use of inappropriate language with patients and staff. The fourth complaint was received on August 29, 2012 regarding inappropriate comments he made to a referred client. Respondent was issued five warnings due to the aforementioned incidents. He was terminated as a result on August 30, 2012.
Texas Child Abuse Allegation
On March 21, 2005, Respondent was arrested for administering a spanking to his fourteen year old son J.R. Respondent plead guilty and was convicted of Felony Reckless Injury to a Child with Bodily Injury on October 09, 2007. He was sentenced to four years of probation which was terminated early on October 15, 2009.
Respondent Dishonesty Allegations
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. 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.
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 (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. 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.
CONCLUSION OF LAW
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).
This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-1606(B)(10).
The Board bears the burden of proof to establish cause to penalize Respondent’s nursing assistance 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).
The Board’s burden is a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
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 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).
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.
Because Respondent has committed unprofessional conduct, the Board has authority to revoke his nursing assistance certificate. Ariz. Rev. Stat. § 32-1663(D); and § 32-1664(O).
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) and 32-1664(N).
Considering the facts and circumstances of this matter, it is recommended that nursing assistance certificate number CNA999997306 be revoked.
RECOMMENDED ORDER
Based on the foregoing, the undersigned Administrative Law Judge recommends that the Board revoke Ulysses Mathis Wilson’s nursing assistance certificate number CNA999997306.
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, April 19, 2018
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing