FINACT18A-1609095-NUR.pdf

18A-1609095- NUR · State Board of Nursing · 2018-03-27

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: March 27, 2018

RE: Priscilla Hernandez Docket No. 18A-1609095-NUR ______________________________________________________________________________

On March 23, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoked CNA1000028291 issued to Priscilla Hernandez and to substantiate the complaint on the CNA Registry.

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 CNA1000028291 (expired 09/21/2016) AND FINDINGS OF FACT, REGISTRY CERTIFIED NURSING CONCLUSIONS OF LAW ASSISTANT (RCNA) ISSUED ON 09/21/2016 AND (expiration date 09/30/2018) TO: ORDER NO. 18A-1609095-NUR PRISCILLA HERNANDEZ, RESPONDENT. A hearing was held before Thomas Shedden, Administrative Law Judge (“ALJ”), at 1400 West

Washington Suite 101, Phoenix Arizona, on January 10, 2018. Sunita A. Krishna, Assistant Attorney General, appeared on behalf of the State. Priscilla Hernandez (“Respondent”) was not present and was not represented by counsel. On January 31, 2018, the ALJ issued Findings of Fact, Conclusions of Law and

Recommendations. On March 23, 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. The Arizona State Board of Nursing ("Board") is the authority for licensing and

regulating the practice of nursing in the State of Arizona. 2. Respondent Priscilla Hernandez held certified nursing assistant certificate number CNA [number redacted] that expired on September 21, 2016. On September 21, 2016, Ms. Hernandez obtained a

Registry CNA. The Board summarily suspended Ms. Hernandez's CNA certificate on November 16,

2017.

3. On December 5, 2017, the Board issued a Complaint and Notice of Hearing setting the matter for hearing at 9:00 a.m. January 10, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.

4. Ms. Hernandez did not appear at the scheduled hearing time and the matter was

convened in her absence at about 9:20 a.m. 5. The Board presented the testimony of Detective Lindsey Smith of the Phoenix Police Department and Stephanie Cruz, a senior investigator employed by the Board.

6. At close to midnight on August 15, 2016, the Phoenix Police Department received a call

from the Phoenix Children's Hospital (PCH) alleging that a nurse had been assaulted. Det. Smith responded to that call. 7. Det. Smith provided credible testimony that after she arrived, she saw Ms. Hernandez push a security officer, that Ms. Hernandez was yelling and would not calm down, and when the

Detective and a security officer tried to restrain Ms. Hernandez, she kicked the Detective. After Ms.

Hernandez was restrained and placed in handcuffs, she continued to yell and scream. In sum, Ms. Hernandez was physically and verbally abusive to Det. Smith and the hospital's security staff. 8. Ms. Hernandez was not working at PCH, but rather was there because her daughter was

being treated.

9. Ms. Hernandez was arrested, and on November 7, 2016 she was indicted for aggravated assault, resisting arrest, disorderly conduct, and assault. 10. Through an Order dated November 15, 2016, the Maricopa County Superior Court

transferred Ms. Hernandez's case to the Rule 11 Commissioner's Court for proceedings to determine

Ms. Hernandez's competency.

11. Ms. Hernandez was found to be criminally incompetent because she was unable to understand the nature of the proceedings and/or unable to aid in her own defense. Through an Order dated April 27, 2017, the Court ordered Ms. Hernandez to participate in treatment to restore her to

competency. In August 2017, the Court found that Ms. Hernandez had not been restored to competency

and ordered that she undergo further treatment. 12. In an Order dated October 5, 2017, the Court determined that Ms. Hernandez had been restored to competency.

13. Ms. Cruz testified to the effect that people in nursing and healthcare must be competent

and that issues of safety for patients and the public were raised by the fact that Ms. Hernandez had been found to be incompetent for six months and had only relatively recently been found to be competent. 14. On October 3, 2017, Ms. Cruz and a second Board investigator interviewed Ms. Hernandez. During that interview, she could not stay focused, she was mumbling random things, she

alleged that people were trying to poison her children, and she acknowledged that she had tried self-

harm in the past. Ms. Hernandez informed Ms. Cruz that she had mental health issues including anxiety, PTSD, and that she had been prescribed antianxiety medications. 15. During the October 3rd interview, Ms. Hernandez disclosed previous use of

methamphetamine, marijuana and cocaine, and alcohol. She also acknowledged anger issues, including

initiation of physical disputes with her daughter's father. Ms. Hernandez informed the investigators that she did not know what was happening to her, so she could not explain it to the Board. 16. Ms. Hernandez also informed the Board's investigators that during the incident in which

she was arrested at PCH she was very angry because she did not want her daughter in the hospital. She

also told the investigators that as of the time of the interview, she was not trustworthy, and that she would not change the way she behaved at PCH if she was given the chance to do so.

17. Ms. Cruz's opinion is that Ms. Hernandez's mental health and anger management issues raised patient-safety concerns. Ms. Cruz was also of the opinion that Ms. Hernandez lacked insight into

her behavior on the day she was arrested.

18. The Board sent to Ms. Hernandez a questionnaire regarding her arrest which she returned, but did not sign and date. The Board considers the unsigned and undated response to be incomplete.

19. Ms. Cruz's opinion is that Ms. Hernandez has not demonstrated that she is safe to

practice, that she creates a risk to the public, and that her lapsed CNA certificate should be revoked. 20. Ms. Cruz's opinion was that Ms. Hernandez had exhibited abusive behavior to Det. Smith and that a substantiated complaint of abuse related to her registry CNA should be added to the online registry.

21. The Board requested that Ms. Hernandez's lapsed CNA be revoked and that a

substantiated incident of abuse be added to the registry. CONCLUSIONS OF LAW 1. The Board bears the burden of persuasion. ARIZ. REV. STAT.§ 41-1092.07(G)(2).

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 Board alleges that because Ms. Hernandez was arrested and charged for her actions at PCH, she has violated ARIZ. REV. STAT. section 32-1601 (26)(b)("Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case,

conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the

commission."). 1 Because the Board has not presented any evidence showing that Ms. Hernandez has been convicted on the charges for which she was indicted, the Board has not shown by a preponderance of the evidence that Ms. Hernandez violated subsection 32-1601 (26)(b ).

5. The preponderance of the evidence shows that Ms. Hernandez's actions at PCH is

conduct that is, or might be, harmful or dangerous to the public, which constitutes unprofessional conduct under ARIZ. REV. STAT. section 32-1601 (26)(d), is an act that harmed the public, which constitutes unprofessional conduct under subsection 32-1601 (26)(h), and is in violation of ARIZ. ADMIN. CODE section R4-19-814(23).

6. The preponderance of the evidence shows that Ms. Hernandez suffers from mental

health and anger management issues such that she was 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, which is unprofessional conduct under ARIZ. REV. STAT. section 32-1601(26)(e).

7. The preponderance of the evidence shows that Ms. Hernandez engaged in repeated use,

or being under the influence, of alcohol or drugs to the extent that judgment may be impaired and nursing practice detrimentally affected, which is a violation of ARIZ. ADMIN. CODE section R4-19- 814(16) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601 (26)(d) and (j).

8. The preponderance of the evidence shows that Ms. Hernandez failed to complete the

Board's questionnaire, which is a violation of ARIZ. ADMIN. CODE section 4-19-814(25) and unprofessional conduct under ARIZ. REV. STAT. sections 32-1601 (26)(d) and (j). The current versions of the applicable statutes and rules are cited.

9. The Board alleges that because Ms. Hernandez was arrested and charged for her actions at PCH, she has violated ARIZ. ADMIN. CODE section 4-19-814(33)("Violation of any other state or federal laws, rules or regulations."). Because the Board has not presented any evidence showing that

Ms. Hernandez has been convicted on the charges for which she was indicted, the Board has not shown

by a preponderance of the evidence that Ms. Hernandez violated subsection R4-19-814(33). 10. Because Ms. Hernandez has committed unprofessional conduct, the Board has authority to revoke her CNA certificate. ARIZ. REV. STAT.§§ 32-1663 and 32-1664.

11. Considering the facts and circumstances of this matter, it is recommended that Ms.

Hernandez's certified nursing assistant no. CNA [number redacted] be revoked. 12. The preponderance of the evidence shows that Ms. Hernandez's actions at PCH constituted an act of abuse. Consequently, it is recommended that the Board indicate on her registration that there has been a substantiated complaint against her. ARIZ. REV. STAT. § 32-1646.

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 CNA1000028291 issued to Priscilla Hernandez.

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, 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 license/certificate pursuant to A.A.C. R4-19- 815 after a period of five years. DATED this 23rd day of March, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 26th day of March, 2018, by First Class Mail and Certified Mail No. [account number redacted] 5616 to:

Priscilla Hernandez 1929 West Osborn Phoenix, AZ 85015

COPIES of the foregoing mailed this 26th day of March, 2018, to:

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

Sunita A. Krishna Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith