FINACT18A-1802029-NUR.pdf

18A-1802029-NUR · State Board of Nursing · 2018-05-22

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: May 21, 2018

RE: Robert L. Livingston Docket No. 18A-1802029-NUR ______________________________________________________________________________

On May 18, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke CNA483378983 issued to Robert L. Livingston.

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 THE NURSING ASSISTANT CERTIFICATE NO. FINDINGS OF FACT, CNA483378983 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 18A-1802029-NUR ROBERT L. LIVINGSTON, RESPONDENT. A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on April 13, 2018. Elizabeth Campbell, Assistant

Attorney General, appeared on behalf of the State. Robert L. Livingston (“Respondent”) was not

present and was not represented by counsel. On April 26, 2018, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On May 18, 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 BACKGROUND AND PROCEDURE

1. The Arizona State Board of Nursing (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. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601-1667.

2. Robert L. Livingston (Respondent) holds Board-issued Nursing Assistant Certificate No.

CNA483378983 in the State of Arizona.

3. On or about March 29, 2018, the Board issued a Complaint and Notice of Hearing and Summary Suspension Expedited Hearing (Notice of Hearing), alleging that cause existed to discipline Respondent’s nursing assistant license under A.R.S. § 32-1601(26)(d), (g), (h), and (j) (2017); 1 A.A.C.

R4-19-403(11), (25)(a), and (31); 2 and A.A.C. R4-19-814(2) and (9). 3

4. The Notice of Hearing was sent via certified mail to Respondent at his address of record. 5. The Board referred the matter to the Office of Administrative Hearings (OAH), an independent agency, for an evidentiary hearing. A hearing was held on April 13, 2018.

6. The Board submitted three exhibits and presented the testimony of Aklesso Tato and

Peter Wittenberg.

1

A.R.S. § 32-1601(26)(d), (g), (h), and (j) (2017) define “unprofessional conduct” to include, respectively: (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. .... (g) Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. (h) Committing an act that deceives, defrauds or harms the public. (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. 2 A.A.C. R4-19-403(11), (25)(a), and (31) define “unprofessional conduct” to include, respectively:

11. Failing to report to the Board a licensed nurse whose work history includes conduct, or a pattern of conduct, that leads to or may lead to an adverse patient outcome; .... 25. Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or .... 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed. A.A.C. R4-19-814(2) and (9) provides as follows:

For purposes of A.R.S. § 32-1601(24)(d), a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes a basis for disciplinary action on a LNA license and a CMA certificate includes the following: .... 2. Engaging in sexual conduct with a patient, resident, or any member of the patient’s or resident’s family who does not have a pre-existing relationship with the licensee or any conduct while on duty or in the presence of a patient or resident that a reasonable person would interpret as sexual; .... 9. Violating the rights or dignity of a patient or resident;

7. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued prior to the hearing convening. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, he did not appear,

personally or through an attorney, and did not contact the OAH to request that the start of the hearing

be further delayed prior to the hearing convening. Consequently, Respondent did not present any evidence to defend his Nursing Assistant Certificate. HEARING EVIDENCE

8. On or about February 8, 2018, the Board received a complaint from the Director of

Nursing from Santa Rosa Care Center (Santa Rosa) regarding Respondent. The complaint provided that Aklesso Tato, a certified nursing assistant, was working at Santa Rosa on January 29, 2018, when he observed Respondent inappropriately touch Patient N.G., a 68 year old aphasic patient with diminished capacity who was oriented only to self.

9. Mr. Tato testified at hearing as to his observations of the incident and his testimony was

consistent with the documents received with the complaint. 10. Mr. Tato reported that when he went to Patient N.G.’s room to do a 15 minute check, he observed Patient N.G. on the floor without any clothing on. Respondent appeared to be helping Patient

N.G. up from the floor with his left hand and was rubbing her breast with his right hand. After placing

Patient N.G. on the bed, Respondent placed his ungloved hand inside the front of Patient N.G.’s brief and “rubbed back and forth.” When Respondent noticed Mr. Tato standing in the doorway, he quickly removed his hand and left the room.

11. Respondent was suspended pending the investigation and failed to appear for an

interview with Santa Rosa regarding the incident. Respondent was terminated.

12. On or about February 14, 2018, Board Staff mailed Respondent an Investigative Questionnaire regarding the complaint with instructions to complete the questionnaire and return it by February 27, 2018.

13. Respondent did not return the Investigative Questionnaire.

CONCLUSIONS OF LAW

1. The 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 A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). 2. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

3. The Board bears the burden of proof and must establish cause to penalize Respondent’s

nursing assistant certificate by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

4. “A preponderance of the evidence is such proof as convinces the trier of fact that the

contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1120 (8th ed. 2004).

5. The Board established by a preponderance of the evidence that Respondent engaged in

conduct that constituted unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (g), (h), and (j) (2017); A.A.C. R4-19-403(11) and (31); and A.A.C. R4-19-814(2) and (9).

6. The Board established by a preponderance of the evidence that Respondent failed to comply with the Board during an investigation by not completing and returning the Investigative Questionnaire in violation of A.A.C. R4-19-403(25)(a)

7. Given Respondent’s egregious conduct, failure to complete the Investigative

Questionnaire, and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time. 8. In light of the risk of potential harm to which patients were exposed 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 license under A.R.S. § 32-1663(D) 4 and A.R.S. § 32- 1664(N). 5

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 nursing assistant certificate number

CNA483378983 issued to Robert L. Livingston.

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. Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C).

The motion for rehearing or review shall be made to the attention of Hearing Department,

A.R.S. § 32-1663(D) provides that if the Board determines a licensee has committed

an act of unprofessional conduct, the Board may revoke or suspend the license, impose a civil penalty, censure the license, place the licensee on probation, or accept the voluntary surrender of the license. A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed and act of unprofessional conduct, the Board may revoke or suspend the license.

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 certificate pursuant to A.A.C. R4-19-815 after a period of five years DATED this 18th day of May, 2018. ARIZONA STATE BOARD OF NURSING SEAL

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

COPIES mailed this 21st day of May, by First Class Mail and Certified Mail No. [account number redacted] 6316 to:

Robert L. Livingston 1553 East Wedwick Street Tucson, AZ 85706

COPIES of the foregoing mailed this this 21st day of May 2018, to: Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith