FINACT18A-1701084-NUR.pdf

18A-1701084-NUR · State Board of Nursing · 2019-03-28

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 26, 2019

RE: Cherno Bah Docket No. 18A-1701084-NUR ______________________________________________________________________________

On March 22, 2019, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board grant Applicant’s licensure and propose that Applicant sign a Consent Agreement for Monitoring.

The Board modified the Findings of Fact, Conclusions of Law and Recommended Order as follows:

I. Requested Changes in the Findings of Fact.

In Finding of Fact No. 11, the Board added the following based upon Applicant’s written statements (Board Exhibit 3) for the following justification: to more fully explain the conduct at issue in the case.

11. Applicant self-reported three incidents of concern on his application – a 2004 rape allegation that did not result in criminal charges, a 2005 assault incident that did not result in criminal charges, and a 2012 domestic violence incident involving Applicant’s significant other that resulted in a charge that was later dismissed. 1 With regard to the 2005 incident, Applicant wrote that after being kicked by his roommate, Applicant hit the roommate back. 2 With regard to the 2012 incident, Applicant wrote that after his girlfriend hit him with a pan, he grabbed her arms. 3 Applicant’s girlfriend had bruises on her arms. 4

See Board Exhibit 3. Board Exhibit 3 at 25. Id. Id. In Finding of Fact No. 17, the Board made the following change for the following justification: the amended language more accurately reflects the Board process:

17. Because Applicant did not timely obtain the Board’s mandated evaluation, the Board moved to deny his application on May 04, 2018. Applicant did not complete the evaluation in the time allowed by the Board, and the Order of Denial was issued on May 4, 2018. 5

II. Requested Changes in the Conclusions of Law. The Board deleted Conclusions of Law 6 through 20 and replaced them with the following Conclusions of Law based upon Finding of Fact No. 11 (as amended above) and Finding of Fact No. 21 for the following justifications: the ALJ’s proposed Conclusions of Law 6-9 are consolidated into the revised Conclusions of Law 6-7 as proposed by the State. The ALJ’s proposed Conclusion of Law 10 is modified and incorporated into paragraph 9 as proposed by the State, and the ALJ’s proposed Conclusion of Law 11 is modified and incorporated into paragraph 8 as proposed by the State. Proposed Conclusion of Law 12 was deleted by the Board as requested by the State as it is in part repetitive of Conclusion of Law 1 and the remainder of Conclusion of Law 12 contains information not necessary to the Board’s decision in this matter. As requested by the State, the Board deleted the ALJ’s proposed Conclusions of Law 13-18 and 20. The basis for this decision was the psychological assessment completed by the Applicant in connection with the application process. As noted in Finding of Fact 24, the evaluator made recommendations for treatment and monitoring. The Board deleted Conclusion of Law 19 because the information is duplicative of information in Finding of Fact 21, and the State’s proposed Conclusion of Law 7 and 9 as proposed by the State and adopted by the Board.

6. Applicant hit his roommate in 2005 and caused bruising to his girlfriend’s arms in 2012. Applicant’s conduct constituted unprofessional conduct as defined by A.R.S. § 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), (g)(willfully or repeatedly violation a Board statute or rule), (h)(committing an act that deceives, defrauds or harms the public), and (j)(violating a Board statute or rule).

7. Applicant failed to update his address with the Board after he moved to New York. Applicant’s conduct constituted unprofessional conduct as defined by A.R.S. § 32- 1601(26)(g)(willfully or repeatedly violation a Board statute or rule), and (j)(violating a Board statute or rule)

8. Applicant’s actions towards his roommate in 2005 and girlfriend in 2012 constituted unprofessional conduct as further defined by A.A.C. R4-19-403(2)(intentionally or negligently causing physical or emotional injury).

9. Applicant’s failure to update his address with the Board constituted a violation of A.A.C. R4-19-308(B)(a licensee or applicant shall notify the Board in writing or electronically through the Board website of any change in mailing address within 30 days).

Board Exhibit 10. III. The Board Rejected the ALJ’s Recommended Order. The ALJ recommended that the Board grant the application for registered nurse licensure and advanced practice certification subject to a consent agreement for monitoring. Applicant did not sign a consent agreement. While the Board may deny an application (see A.R.S. § 32-1663), absent a consent agreement, the Board does not have authority to grant a license subject to conditions. The Board considered whether to propose a consent agreement for monitoring, but ultimately voted to deny the license based on the number of issues presented in the case and the potential hazard for patients and the public.

THE ARIZONA STATE BOARD OF NURSING 1740 West Adams Street Ste. 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF APPLICATION FOR LICENSURE AND FINDINGS OF FACT, CERTIFICATION BY: CONCLUSIONS OF LAW AND ORDER CHERNO BAH, NO. 18A-1701084-NUR TO PRACTICE REGISTERED NURSING WITH ADVANCED PRACTICE CERTIFICATION IN THE STATE OF ARIZONA

On January 25, 2018, the Arizona State Board of Nursing (“Board”) considered the application for registered nurse licensure with advanced practice certification of Cherno Bah (“Applicant”). The Board denied the application and on May 4, 2018, the Board issued Order of Denial No. 1701084.

On May 29, 2018, Applicant requested a hearing on the Order of Denial, which was held on February 4, 2019, before Administrative Law Judge (“ALJ”) Jenna Clark 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 Cherno Bah

appeared on his own behalf. Hearing record held open until February 22, 2019, to receive official hearing transcript from Ottmar & Associates, Inc. 1 On March 8, 2019, the ALJ issued Findings of Fact, Conclusions of Law and a Recommended

Decision and Order. On March 22, 2019, 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 BACKGROUND AND PROCEDURE 1. The Board is the authority for licensing and regulating the practice of nursing in the State

of Arizona.

2. On January 25, 2017, Applicant submitted an application for licensure as a registered nurse with advanced practice certification by Endorsement to the Board. 3. The Board denied the application.

4. Applicant appealed and requested a hearing on the denial. 5. Pursuant to ARIZ. REV. STAT. § 41-1092.02, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

6. On May 04, 2018, the Board issued a NOTICE OF PUBLIC HEARING ON DENIAL

OF LICENSURE, informing Applicant that, pursuant to his request, a hearing would be held at OAH on August 22, 2018, at 1:00 p.m. The matter was set for Status and later set for Further Hearing, whereby the parties agreed to have the matter heard on February 04, 2019, at 1:30 p.m.

7. The underlying May 04, 2018, ORDER OF DENIAL outlines that the Board denied

Applicant’s application because (1) on November 30, 2005, Applicant was charged with misdemeanor assault which was later dismissed, (2) on March 14, 2012, Applicant was charged with misdemeanor disturbing the peace which was later dismissed, (3) the Board issued questionnaires to Applicant on

March 01, 2017, and April 04, 2017, which were both returned undeliverable by the United States Postal Service as “moved left no forwarding address” because Applicant failed to update his mailing

Both parties agreed at the onset of the hearing that Ms. Davis’ Court Report Transcript would serve as the

official record for 18A-1701084-NUR. The transcripts were timely received by the Office of Administrative Hearings on February 19, 2019.

address with the Board, and (4) because although the Board ordered Applicant to undergo a psychological evaluation he failed to do so. 2 HEARING EVIDENCE

8. The Board called Janeen Dahn as its witness and submitted eleven public exhibits and

one confidential exhibit. Applicant testified on his own behalf and submitted three exhibits. Ms. Dahn’s testimony 9. Ms. Dahn testified that she is employed by the Board as their AssociateDirector for

Compliance, Investigations, and Monitoring. During all times relevant in the underlying investigation, Ms. Dahn was the supervisor of the investigator assigned to Applicant’s case, Frank Curatola. 3 10. Per Ms. Dahn, Applicant submitted an application for licensure as a Registered Nurse,

with an Advanced Practice Certificate, on or about January 25, 2017, pursuant to a foreign graduate

exemption outlined in the Nurse Practice Act’s endorsement requirement section. 4 Per Applicant’s application, he was initially educated outside of the country but earned three graduate degrees stateside. Applicant also worked 960 hours in the five years prior to his application for Arizona licensure.

11. Applicant self-reported three incidents of concern on his application – a 2004 rape

allegation that did not result in criminal charges, a 2005 assault incident that did not result in criminal charges, and a 2012 domestic violence incident involving Applicant’s significant other that resulted in a charge that was later dismissed. 5 With regard to the 2005 incident, Applicant wrote that after being

kicked by his roommate, Applicant hit the roommate back. With regard to the 2012 incident, Applicant

See Board Exhibit 10. Alleged violations of ARIZ. REV. STAT. §§ 32-1663(A), 32-1601(26)(d), 32- 1601(26)(g), 32-1601(26)(h), 32-1601(26)(j), and ARIZ. ADMIN. CODE R4-19-403(2) and R4-19-308(B). At the time of the hearing Investigator Curatola was no longer employed by the Board or available for testimony. 4 See Board Exhibits 1-2. See Board Exhibit 3.

wrote that after his girlfriend hit him with a pan, he grabbed her arms. Applicant’s girlfriend had bruises on her arms. 12. On March 01, 2017, the Board issued a letter to Applicant to inform him that because his

fingerprint results indicated a possible criminal history, the Board was opening an investigation prior to

making a determination regarding his application. 6 The letter included an attached questionnaire, which Applicant was required to return at his convenience. 7 However, the correspondence was returned by the Post Office as undeliverable.

13. The Board issued a follow-up letter to Applicant on April 04, 2017, requesting that Applicant fill out and returned the enclosed questionnaire. 8 Since the letter was mailed to the same address, however, it was also returned by the Post Office as undeliverable.

14. On May 02, 2017, the Board received two completed questionnaires from Applicant. 9

15. In January 2018 Investigator Curatola submitted his completed investigation report to the Board, whereby he suggested the Board take one of two options regarding Applicant’s application: (1) grant Applicant’s licensure request with advanced practice certification upon meeting all

requirements, and issue a corresponding Letter of Concern, or (2) upon meeting all requirements

propose Applicant sign a Consent Agreement for a Decree of Censure, and then grant licensure and advance practice certification. 10 16. During the Board’s January 2018 meeting, Applicant’s case was reviewed. It was

determined that Investigator Curatola’s would continue his investigation to allow Applicant the opportunity to obtain a psychological evaluation to include anger management by a Board approved

See Board Exhibit 6. Id. See Board Exhibit 7.

9 See Board Exhibits 4-5. 10See Board Exhibit 8.

evaluator with a PhD, and to include any additional testing deemed necessary by said evaluator, to be scheduled and completed within 45 days and then returned to the Board. 11 17. Applicant did not complete the evaluation in the time allowed by the Board, and the

Order of Denial was issued on May 4, 2018. 12

18. On May 25, 2018, Applicant submitted an appeal letter to the Board whereby he requested a State Fair Hearing to contest the Board’s ORDER. 13 Applicant’s testimony

19. Applicant testified that while working as a nurse in Kansas he applied for jobs in New York and Arizona. Because Applicant received an offer of employment from New York before hearing back from his would-be Arizona employer, he moved to New York and abandoned his licensure

application in Arizona.

20. Per Applicant, he preferred the Arizona job over the New York job, as the New York licensure application took seven months to obtain due to his status as a foreign graduate, so when he was offered the job in Arizona approximately seven months after he moved to New York he resumed

his efforts to obtain licensure in Arizona.

21. Applicant admitted that he had failed to update his address with the Board after he moved to New York because he had abandoned the idea of working in Arizona. Although Applicant did have issues receiving mail at his New York address, because he traveled to Gambia twice he was unable

to remedy the issue with the United States Postal Service.

See Board Exhibit 9.

12 See Board Exhibit 10. See Board Exhibit 11.

22. At some point Applicant learned that his job in Arizona was federally regulated because it was on an Indian reservation. Thus, Applicant could use either his Kansas, Virginia, or New York licenses.

23. When asked about the three incidents that he self-reported on his Arizona licensure

application, Applicant denied any wrongdoing. Applicant further denied having an anger-management issue, and also denied failing to assimilate to American culture in the fifteen years that he has resided in the United States. Applicant conceded that he did have difficulties when he initially moved to the

country in 2004, as evidenced by his incidents that same year and in 2005, but that he had since acclimated to American social norms and customs. 24. On October 03, 2018, Applicant submitted to a psychological evaluation by a Board

approved evaluator. 14 The evaluator issued a formal report to the Board on October 18, 2018. 15

25. Applicant vehemently argued that his is a safe provider and has never had as much as a complaint, let alone any formal discipline, on any of his licenses. 16 Applicant iterated that he understands patient vulnerability and the importance of competent and empathetic interactions. As an

example, Appellant offered that he established a foundation for compassionate care and scholarships in

Gambia. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under ARIZ. REV. STAT. §§ 32-

1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the licensure and practice of nursing in the State of Arizona. Pursuant to ARIZ. REV. STAT. §§ 32-1601 to 1669 and ARIZ.

See Confidential Board Exhibit 12.

15 Id. Two recommendations were made: (1) individualized therapy for acculturation issues to include

frustration tolerance, conflict resolution skills, and interpersonal/intimate relationship skills, and (2) monitoring. See Respondent Exhibits A-C.

ADMIN. CODE R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. 2. Applicant bears the burden of persuasion to show that he meets the requirements for his

application to be granted. 17

3. The standard of proof on all issues is that of a preponderance of the evidence. 18 4. 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). 5. ARIZ. REV. STAT. § 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. Applicant hit his roommate in 2005 and caused bruising to his girlfriend’s arms in 2012.

Applicant’s conduct constituted unprofessional conduct as defined by A.R.S. § 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), (g)(willfully or repeatedly violation a Board statute or rule), (h)(committing an act that deceives, defrauds or harms the public), and (j)(violating a Board statute or rule).

17 See ARIZ. REV. STAT. § 41-1092.07(G)(1). See ARIZ. ADMIN. CODE R2-19-119.

7. Applicant failed to update his address with the Board after he moved to New York. Applicant’s conduct constituted unprofessional conduct as defined by A.R.S. § 32-1601(26)(g)(willfully or repeatedly violation a Board statute or rule), and (j)(violating a Board statute or rule).

8. Applicant’s actions towards his roommate in 2005 and girlfriend in 2012 constituted

unprofessional conduct as further defined by A.A.C. R4-19-403(2)(intentionally or negligently causing physical or emotional injury). 9. Applicant’s failure to update his address with the Board constituted a violation of A.A.C.

R4-19-308(B)(a licensee or applicant shall notify the Board in writing or electronically through the Board website of any change in mailing address within 30 days).

ORDER

NOW THEREFORE, IT IS ORDERED that the Board’s Order of Denial regarding Applicant’s January 25, 2017 application for licensure as a registered nurse with advance practice certification is Affirmed.

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 Ste 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 22nd day of March, 2019. ARIZONA STATE BOARD OF NURSING

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

COPIES e-mailed and mailed this 26th day of March, 2019, by First Class Mail and Certified Mail No. [account number redacted] 9192 to:

Cherno Bah PO Box 485 Fort Defiance, AZ 86504 [email redacted] Applicant COPY mailed this 26th day of March, 2019, to: Elizabeth A. Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004 COPY sent electronic mail this 26th day of March, 2019, to:

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

By: T. Smith