ALJDEC decisions subject to certification as final

18A-1701084-NUR · State Board of Nursing · 2019-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 04, 2019 at 1:30 PM. Hearing record held open until February 22, 2019, to receive official hearing transcript from Ottomar & Associates, Inc.[1] APPEARANCES: Cherno Bah (“Applicant”) appeared on his own behalf. Assistant Attorney General Elizabeth Campbell, Esq., appeared on behalf of the Arizona State Board of Nursing (“Board”) with Janeen Dahn as a witness. Mary Davis (Arizona CCR No. 50271) served as the official Court Reporter for the proceedings. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board. 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 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 Associate Director 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] 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 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. Because Applicant did not timely obtain the Board’s mandated evaluation, the Board moved to deny his application on May 04, 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. 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. 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. Ariz. Rev. Stat. § 32-1601(26)(d) provides that unprofessional conduct includes “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. 7. Ariz. Rev. Stat. § 32-1601(26)(g) provides that unprofessional conduct includes “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.” 8. Ariz. Rev. Stat. § 32-1601(26)(h) provides that unprofessional conduct includes “[c]ommitting an act that deceives, defrauds or harms the public.” 9. Ariz. Rev. Stat. § 32-1601(26)(j) provides that unprofessional conduct includes “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” 10. Ariz. Admin. Code R4-19-308(B) provides that “[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.” 11. Ariz. Admin. Code R4-19-403(2) provides that “[i]ntentionally or negligently causing physical or emotional injury.” 12. A license to practice nursing is a privilege, not a right. The legislature has charged the Board with protecting the public and those who deal with licensed practitioners when it issues certificates and licenses.[19] The Board has discretion[20] to grant or deny a license to an applicant under Ariz. Rev. Stat. §§ 32-1663(A) and 32-1601(26).[21] An application with a criminal record must be given close scrutiny and careful consideration when one applies for a professional license. The conviction of a crime, however, is not a permanent bar to being licensed. 13. Applicant in the case at bar has never been convicted of a crime. Therefore, the issue in this case is, in light of Applicant’s self-reporting of incidents which alluded to the fact that Applicant may have an issue with anger and the steps he has taken since to address that concern, whether Applicant can be trusted at this time to be responsible in his conduct with patients and members of the public if the Board grants him a nursing license. 14. The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. Fifteen years have passed since Applicant’s 2004 rape allegation, fourteen years have passed since his assault incident, and seven years have passed since his domestic violence incident. Since that time Appellant has obtained certifications and/or licenses in Colorado, Idaho, Oregon, Kansas, Washington, and Wyoming, and has lived an irreproachable and upright personal and professional life. Applicant’s conduct since his most recent incident raises confidence in his ability to maintain appropriate and lawful conduct. 15. Applicant credibly testified, as was corroborated by undisputed evidence, that he has learned from his past mistakes and is highly unlikely to repeat them in the future. 16. The definition of what constitutes good character, or a lack thereof, is not codified by the legislature. Former United States Supreme Court Justice Frankfurter noted, “No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion.”[22] 17. Applicant did not dispute that he was involved in incidents in 2004, 2005, and 2012 which rightfully questioned his culpability and underlying conduct. Applicant’s explanations regarding his involvement were credible and reasonable. It is clear from the evidence that Applicant truthfully informed the Board of all three incidents in is initial application, and provided them with further written insight for each one. None of Applicant’s underlying conduct involved harm to a patient, dishonesty, or crimes of moral turpitude. 18. Applicant’s disclosure rightly gave the Board cause for concern, but said concern should not prevented the Board from issuing Applicant a registered nurse license with advanced practice certification by Endorsement upon finer review. The 2004 and 2005 incidents are too remote and should not have been given consideration, particularly since neither resulted in criminal charges or convictions. Although the 2012 disturbing the peace charge is concerning, the underlying conduct appears to be isolated and not an indication that Applicant has a problem with anger. 19. Applicant admitted his failure in providing the Board with his correct mailing address, and also provided a sound explanation for doing so. While his reasons do not justify his conduct, his explanation provides clarity and illustrates, at the very least, that the decision was deliberate as he was operating under a reasonable belief that he was acting in the best interest of his career. 20. After closely scrutinizing Appellant’s underlying conduct regarding his self-reported incidents, as well as his failure to provide the Board with his current mailing address and timely return their questionnaire, and after careful consideration of Appellant’s personal and professional behaviors over the course of the past fifteen years, this Tribunal holds that Appellant has established by a preponderance of the evidence that he is not a danger to the public. The record reflects that Appellant is an honest and truthful man of good character, and a pillar in his community and abroad. Having satisfied all other statutory requisites to licensure, Appellant shall be granted a registered nurse license with advanced practice certification by Endorsement. RECOMMENDED ORDER Based on the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED that the Executive Director of the Board reverse the Board’s May 04, 2018, Order of Denial regarding Applicant’s January 25, 2017, application for licensure as a registered nurse with advanced practice certification by Endorsement. IT IS FURTHER RECOMMENDED that the Board grant Applicant’s licensure request and propose that Applicant sign a Consent Agreement for monitoring. 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, March 08, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] 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. [2] 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). [3] 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. [5] See Board Exhibit 3. [6] See Board Exhibit 6. [7] Id. [8] See Board Exhibit 7. [9] See Board Exhibits 4-5. [10] See Board Exhibit 8. [11] See Board Exhibit 9. [12] See Board Exhibit 10. [13] See Board Exhibit 11. [14] 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.

[16] See Respondent Exhibits A-C. [17] See Ariz. Rev. Stat. § 41-1092.07(G)(1). [18] See Ariz. Admin. Code R2-19-119. [19] See Laws 1992, Ch. 14, § 3. [20] See Ariz. Rev. Stat. § 32-1663(A) (“The board may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [21] See, e.g., Matter of Rivkind, 164 Ariz. 154, 160-61, 791 P.2d 1037, 1043-44 (1990) (“[C]ourts are uniformly impressed by an attorney’s sincere efforts at rehabilitation and contrition, especially if such efforts demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct.”); Application of Spriggs, 90 Ariz. 387, 388-90, 368 P.2d 456 (1962) (where 4 years had passed since conviction for income tax evasion and evidence showed rehabilitation, applicant readmitted to bar without being required to pass bar exam again); Ulrich v. Board of Funeral Service, 289 Mont. 407, 961 P.2d 126 (1998) (“[A]n applicant whose license has been denied or revoked due to a criminal conviction . . . is entitled to apply for reinstatement and he is entitled to a full hearing . . . .”); cf. Matter of Wines, 135 Ariz. 203, 205-06, 660 P.2d 454, 456-57 (1983) (after considering circumstances of conviction as well as respondent’s poor prior record, Arizona Supreme Court did not disbar attorney but instead suspended him for a period of 5 years, with credit for 16 months interim suspension during pendency of proceedings). [22] Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 248, 77 S. Ct. 752, 761 (1957) (citation omitted; concurring opinion).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826