FINACT18A-1606089-NUR.pdf

18A-1606089-NUR · State Board of Nursing · 2018-07-02

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: June 27, 2018

RE: Shu’ Juan Tebec Jenkins Docket No. 18A-1606089-NUR ______________________________________________________________________________

On June 26, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Deny the Application for Reissuance of Nursing Assistant Licensure by Shu’ Juan Tebec Jenkins.

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

IN THE MATTER OF DENIAL OF APPLICATION FOR REISSUANCE OF NURSING ASSISTANT ORDER OF DENIAL CERTIFICATION/ LICENSURE AFTER HEARING NUMBER CNA1000011754, BY: ORDER NO. 1606089 SHU’JUAN TEBEC JENKINS APPLICANT. On January 25, 2018, the Arizona State Board of Nursing (“Board”) considered the application

for nursing assistant licensure of Shu’ Juan Tebec Jenkins (“Applicant”). The Board denied the

application and on February 7, 2018, the Board issued Order of Denial No. 1606089. On February 26, 2018, Applicant requested a hearing on the Order of Denial, which was held on April 27, 2018, before Administrative Law Judge (“ALJ”) Thomas Shedden at the Office of

Administrative Hearings, 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007. Elizabeth

Campbell, Assistant Attorney General, appeared on behalf of the State. Applicant, Shu’ Juan Tebec Jenkins appeared on her own behalf. On June 15, 2018, the ALJ issued Findings of Fact, Conclusions of Law and a Recommended

Decision and Order. On June 26, 2018, the Board met to consider the ALJ’s Recommended Decision and Order. Based on 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. The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.

2. On February 26, 2018, the Board issued a “Notice of Public Hearing on Denial of Licensure” setting the above-captioned matter for hearing on April 2, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.

3. The Notice of Public Hearing incorporated by reference the Board’s “Order of Denial

No. 1606089,” dated January 25, 2018, in which the Board denied Applicant Shu’Juan Tebec Jenkins’s June 23, 2016 application for reissuance of a nursing assistant license. The issue for hearing

is Ms. Jenkins’s appeal of that denial.

4. The Notice of Hearing shows that the Board denied Ms. Jenkins’s application because she had committed acts of unprofessional conduct and because she failed to establish that she meets the requirements for reissuance as required by ARIZ. ADMIN. CODE section R4-19-

815.

5. The matter was continued and the hearing was conducted on April 27, 2018. 6. Ms. Jenkins appeared and testified on her own behalf. The Board presented the testimony of its investigator Kirk Olson.

7. Ms. Jenkins held certified nursing certificate number CNA1000011754 issued by the

Board. Ms. Jenkins’s CNA certificate was revoked through an Order dated January 26, 2011 (the “Revocation Order”). 8. The Revocation Order shows that:

a. In September 2008, Ms. Jenkins entered a Consent Agreement showing that she committed patient abuse. b. On or about May 17, 2010, Ms. Jenkins pleaded guilty to, and was

convicted of, child abuse, a class six felony, and domestic violence.

c. Ms. Jenkins did not report to the Board this felony conviction

within ten days of the conviction.

9. On or about January 26, 2016, Ms. Jenkins submitted to Ventana Winds Retirement Home an employment application for a position as a caregiver in which she answered “no” to a question about whether she had ever pleaded guilty to, or been convicted of, a crime. Ms. Jenkins did not

disclose her felony conviction for child abuse.

10. Ms. Jenkins was hired by Ventana Winds, but was fired on May 24, 2016 after she had been found sleeping on duty on May 21, 2016. In an interview with Mr. Olson, Ms. Jenkins acknowledged that she had fallen asleep on the job at Ventana Winds.

11. On or about April 5, 2016, Ms. Jenkins was charged with shoplifting, misdemeanor. On May 9, 2016, Ms. Jenkins pleaded guilty to, and was convicted of, shoplifting. 12. On June 23, 2016, Ms. Jenkins submitted to the Board her application for

reissuance of a nursing assistant certificate. 1

13. With her application, Ms. Jenkins submitted documentation showing that her 2010 felony conviction had been designated as a misdemeanor on February 22, 2016, and certificates of achievement for completing the 48-hour Maricopa County Adult Probation Domestic Violence Peace

Program on November 24, 2010 and for completing New Direction L.L.C.’s Parenting Skills Program

on March 23, 2011. 14. On July 18, 2017, the Ms. Jenkins’s child abuse conviction was set aside. 15. Ms. Jenkins acknowledged pleading guilty to 2 the felony, but noted that she has done

what the courts asked of her (anger management and parenting classes) and that she was released from probation early.

Effective on July 1, 2016, the applicable statutes were amended to create two categories of nursing assistants: licensed nursing assistants (or LNAs), and registry CNAs. The Board considers Ms. Jenkins’s application to be one for certification as an LNA. The Board takes the position that if Ms. Jenkins’s application is denied, she can apply for certification as a registry CNA.

16. Ms. Jenkins acknowledged that she had pleaded guilty to shoplifting, but added that the case was closed once she paid her fines. Ms. Jenkins had entered into evidence an Order showing that the judgment of guilt in the shoplifting matter had been set aside on January 26, 2017.

17. Ms. Jenkins explained that she is a single mother who had recently returned to the

workforce and was working two shifts and juggling family responsibilities when she fell asleep at Ventana Winds. 18. Ms. Jenkins had admitted into evidence a letter from her sister, Jasmine Jenkins, who

is the mother of the child-abuse victim. Jasmine Jenkins’s letter shows her opinion that the child-abuse incident was an honest mistake, that Ms. Jenkins had learned from it, and that she considered Ms. Jenkins to be a loving and caring human being.

CONCLUSIONS OF LAW

1. Ms. Jenkins bears the burden of persuasion to show that she meets the requirements for her application to be granted. ARIZ. REV. STAT. § 41-1092.07(G)(1). 2. The standard of proof on all issues is that of a preponderance of the evidence. ARIZ.

ADMIN. CODE § R2-19-119.

3. 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).

4. The fact that a criminal conviction has been set aside does not render that conviction a nullity and the Board may consider Ms. Jenkins’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017).

5. ARIZ. REV. STAT. section 32-1663(A) provides that “[i]f 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.” 6. Ms. Jenkins pleaded guilty to, and was convicted of, shoplifting, which is unprofessional

conduct under ARIZ. REV. STAT. section 32-1601(26)(d)(any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public). See ARIZ. ADMIN. CODE § R4-19- 814(15).

7. In her application for employment at Ventana Winds, Ms. Jenkins falsely reported that

she had not been convicted of, or pleaded guilty to, a crime, which is unprofessional conduct under ARIZ. REV. STAT. section 32-1601(26)(d). See ARIZ. ADMIN.CODE § R4-19-814(28). 8. Ms. Jenkins was required to “submit documentation showing that the basis for denial,

revocation or voluntary surrender has been removed and that the issuance or re-issuance of licensure or

CMA certification will no longer constitute a threat to the public health or safety.” ARIZ. ADMIN. CODE § R4-19-815(1). Because Ms. Jenkins committed acts of unprofessional conduct in January 2016 (the false application) and April 2016 (shoplifting) she has not met this requirement.

9. The Board has authority to deny Ms. Jenkins’s application. ARIZ. REV. STAT.§ 32- 1663(A). 10. Considering the facts and circumstances of this matter, it is recommended that the

Board’s decision to deny Ms. Jenkins’s application be affirmed and her appeal dismissed.

ORDER NOW THEREFORE, IT IS ORDERED that the Board’s denial of Shu’ Juan Tebec Jenkins to practice as a rursing assistant in Arizona is affirmed and upheld.

RIGHT TO PETITION FOR REHEARING OR REVIEW Pursuant to A.R.S. § 41-1092.09, Applicant 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, 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 Applicant fails to file a motion for rehearing or review within 30 days after service of this decision, Applicant 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. DATED this 26th day of June, 2018. ARIZONA STATE BOARD OF NURSING

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

COPIES mailed this 27th day of June, 2018, by First Class Mail and Certified Mail No. [account number redacted] 9628 and First Class Mail to:

Shu’Juan Tebec Jenkins 8450 N 67th Ave Apt #1008 Glendale, AZ 85302 COPY mailed this 27th day of June, 2018, by First Class Mail to:

Elizabeth A. Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004 COPY sent electronic mail this 27th day of June, 2018, to:

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

By: T. Smith