ALJDEC decisions subject to certification as final
18A-1802029-NUR · State Board of Nursing · 2018-04-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF THE NURSING ASSISTANT CERTIFICATE NO. CNA483378983 ISSUED TO:
ROBERT L. LIVINGSTON,
RESPONDENT
No. 18A-1802029-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 13, 2018
APPEARANCES: Respondent Robert L. Livingston did not appear. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
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.
Robert L. Livingston (Respondent) holds Board-issued Nursing Assistant Certificate No. CNA483378983 in the State of Arizona.
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 registered nurse license under A.R.S. § 32-1601(26)(d), (g), (h), and (j) (2017); A.A.C. R4-19-403(11), (25)(a), and (31); and A.A.C. R4-19-814(2) and (9).
The Notice of Hearing was sent via certified mail to Respondent at his address of record.
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.
The Board submitted three exhibits and presented the testimony of Aklesso Tato and Peter Wittenberg.
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
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.
Mr. Tato testified at hearing as to his observations of the incident and his testimony was consistent with the documents received with the complaint.
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.
Respondent was suspended pending the investigation and failed to appear for an interview with Santa Rosa regarding the incident. Respondent was terminated.
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.
Respondent did not return the Investigative Questionnaire.
CONCLUSIONS OF LAW
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).
This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).
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).
“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 § 5 (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).
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).
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)
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.
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) and A.R.S. § 32-1664(N).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Respondent Robert L. Livingston’s Nursing Assistant Certificate No. CNA483378983.
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, April 26, 2018
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing