ALJDEC decisions subject to certification as final

19A-1603055-NUR · State Board of Nursing · 2019-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF DENIAL OF APPLICATION FOR LICENSE BY:

GEORGE MARLITA OBARA,

TO PRACTICE REGISTERED

NURSING IN THE STATE OF ARIZONA.

No. 19A-1603055-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING DATES: January 28, 2019, at 9:00 a.m.; September 27, 2019, at 9:00 a.m.; November 26, 2019, at 9:00 a.m.; the record was held open until December 11, 2019, to allow the Administrative Law Judge to have the benefit of the court reporter’s transcript in the decision.

APPEARANCES: George Marita Obara (“Applicant”) was represented by Teressa M. Sanzio, Esq.; the Arizona State Board of Nursing was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

Pursuant to A.R.S. § 41-1092.02, the Board referred Applicant’s appeal to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on January 28, 2019, September 27, 2019, and November 26, 2019, on Applicant’s appeal of the Board’s denial of his application for a registered nurse (“RN”) license by endorsement. Applicant submitted sixteen exhibits and presented the testimony of five witnesses: (1) Himself; (2) Nicolle Sounthala, the former Director of Nursing at Monarch Healthcare Management and Estates at Twin Rivers skilled nursing facility in Minnesota, Applicant’s former employers; (3) Elder George Moochi, the head elder of the Seventh Day Adventist church that Applicant attends in Minnesota; (4) Pastor Peter Kingoina of the Seventh Day Adventist Church that Applicant attends; and (5) Shawn Harrell, R.N., M.S., the former Board member who made the motion and voted to deny Applicant’s application. The Board submitted fourteen exhibits and presented the testimony of two witnesses: (1) Jennifer Ingram, the Board’s investigator, who conducted the investigation into this matter; and (2) Rene Cronquist, the Director of Practice and Policy for the Minnesota Board of Nursing.

On or about November 30, 2015, Applicant submitted an application for a RN license by endorsement to the Board. Applicant disclosed that he had an RN license in Minnesota that was in good standing. The application did not ask whether Applicant’s RN licenses had ever been disciplined in other states.

Applicant marked, “No” to the question on the application, “Have you ever been convicted, entered a plea of guilty, nolo contendere or no contest, or have you ever been sentenced, served time in jail or prison or had prosecution deferred or sentence deferred or probation deferred in any felony or undesignated offense?”

Although Applicant denied having ever been convicted of a felony, he provided police reports and court documents regarding the following charges and convictions:

4.1 A May 12, 2003 arrest for domestic assault on his ex-wife in Champlin, Minnesota, which resulted in a charge for disorderly conduct, a misdemeanor, which was dismissed with prejudice.

4.2 An October 9, 2006 arrest for domestic assault on his ex-wife in Champlin, Minnesota, which resulted in a charge of assault in the third degree and terroristic threats, a felony. Applicant was convicted of the crimes on June 6, 2007, and was sentenced to three years’ probation, whose terms included substance abuse counselling and abstinence from alcohol. On December 1, 2010, after Applicant had successfully completed his probation, the offense was designated as a misdemeanor.

4.3 A September 5, 2010 arrest for Driving Under the Influence in Washington County, Minnesota. On November 22, 2010, Applicant pled guilty to the crime of Careless Driving, a misdemeanor, and was sentenced to one year’s probation, fines, and chemical evaluation/treatment.

4.4 A March 24, 2012, arrest in Maplewood, Minnesota, for Disorderly Conduct and Obstruction, which resulted in a guilty plea on October 2, 2012, for Disorderly Conduct, a petty misdemeanor, and imposition of fines.

4.5 A July 3, 2014, accident in Champlin, Minnesota, in which Applicant’s vehicle had struck a construction sign, which resulted in a citation for hit and run and six months on unsupervised monitoring without conviction, but which did not result in a criminal conviction.

On or about April 12, 2016, the Board informed Applicant that it had opened an investigation into his application and requested that he fill out a criminal conviction questionnaire.

On or about June 7, 2016, Applicant provided additional documentation that the Board had requested and a completed criminal conviction questionnaire. In addition to the charges that Applicant disclosed on his application, he disclosed on the questionnaire that on April 22, 2001, six months after the birth of his first child, Applicant had engaged in a verbal altercation with his fiancée and had been arrested for fifth degree domestic assault. The charges were later amended to disorderly conduct and, after Applicant completed counselling, dismissed.

The Board continued its investigation. On April 6, 2017, the Board requested additional documentation about the April 22, 2001 disorderly conduct charge. On June 13, 2017, Applicant provided additional records and a completed arrest/charge/citation questionnaire for the event.

The Board subsequently learned that, on or about April 5, 2012, Applicant entered into a Stipulation and Consent Order with the Minnesota Board of Nursing, agreeing to pay a $1,500.00 civil penalty for providing a false answer on his December 20, 2011 renewal application when he failed to disclose his 2007 conviction of Assault and Terroristic Threats and failing to disclose that he had been excluded by the Minnesota Department of Health and Human Services from providing direct care to Medicare and Medicaid patients.

The Board also subsequently learned that, on or about September 27, 2017, the Texas Board of Nursing issued an Agreed Eligibility Order, granting Applicant’s application for a license by endorsement on the condition that Applicant complete certain course work, based on the 2007 conviction of assault and terroristic threats in Minnesota and the April 5, 2012 civil penalty in Minnesota. The Board also learned that Applicant had paid the civil penalty in full.

On May 3, 2017, the Board issued a notice of administrative completeness to Applicant.

On June 27, 2018, Applicant responded to the Board’s investigator’s request to schedule an interview by informing her that he wished to withdraw his application because he was no longer employed by the Minnesota employer who wanted him to be licensed in Arizona. Board staff informed Applicant that Board members needed to approve his request to withdraw the application.

Ms. Ingram prepared an 18-page, single-spaced Investigative Report on Applicant’s application. The report noted in passing at the thirteenth page of the text that, at the beginning of Ms. Ingram’s July 3, 2018 interview, Applicant expressed a desire to withdraw the application. The report summarized Applicant’s criminal history and concluded with the following Board Options for Consideration:

Continue the investigation to allow Applicant the opportunity to obtain a psychological evaluation to include an anger management and substance use evaluation, at no cost to the Board, to be completed by a Board approved licensed psychologist and to include any additional testing deemed necessary by the evaluator, to be scheduled and completed within 45 days and then return to the Board. If the evaluation is not completed, based upon the findings of fact and statute/rule violations identified in the investigative report, deny licensure.

Based on the findings of fact and statute/rule violations identified in the investigator report, upon meeting all licensure requirements and signing a Consent Agreement for a Decree of Censure, grant licensure. If not signed within 30 days, deny licensure.

Ms. Ingram acknowledged at the hearing that Applicant had provided all the information that the Board requested during its investigation.

At its July 26, 2018 meeting, the Board considered Applicant’s application. Applicant was not physically present and he did not know that he could attend telephonically. In the recorded deliberations, Ms. Harrell noted Applicant’s extensive criminal history and that he was in trouble with the nursing boards of multiple states. Ms. Harrell moved to and voted to deny licensure. The Board voted 4-3 to deny the license application.

On July 26, 2018, the Board issued an Order of Denial, finding cause to deny Applicant’s license application under A.R.S. §§ 32-1601(22), (24), and (26(b)), as well as A.A.C. R4-19-403(2), (9), (17), and (20).

Additional Hearing evidence

On the first hearing date, Applicant had just turned 46 years old. He was born in Kenya and immigrated to the United States in 1998, when he was 22 or 23 years old, and settled in Minnesota. In 1999, he became a nursing assistant. In 2006, he became an RN. He has a BS and MS in nursing and would like to obtain an advanced practice certificate in Minnesota. If the Board determines to deny his license application, however, Applicant’s nursing career will be over because he will have to report the denial to the 14 jurisdictions where he is licensed, which will trigger investigations in each of those jurisdictions.

Since he came to the United States, Applicant has always lived in Minnesota. Applicant explained that there is a different culture in Kenya and that, after he immigrated to the United States, he had to learn another language and start over.

Applicant initially testified from memory that he disclosed all of his convictions on his renewal applications in Minnesota. Applicant testified that he answered “no” to the question about felony convictions on the Arizona application because his attorney and the judge both told him that a “stay of imposition” meant that he had not been convicted of a felony.

Applicant testified that the Minnesota Department of Health and Human Services restricted his ability to provide one-on-one care to Medicare and Medicaid patients, but that he can provide such care if his employer is willing to provide supervision. Applicant testified that he made a mistake and answered “no” to a question to which he should have answered “yes” on an application to renew his license. He accepted responsibility for his mistake and his Minnesota license is current and in good standing.

Applicant testified that he completed all required course work for his Texas license and that license is current and in good standing.

Applicant testified that he divorced his first wife in 2012. He described the relationship as toxic but testified that, because he had two children with his ex-wife, he still has a relationship with her. He has learned to control his emotions and no longer acts on his anger.

Applicant testified that he has stopped drinking since he became a Seventh Day Adventist. He is active in the Mountain Experience Church and on several church committees.

Applicant testified that he worked for Optum, which is part of United Healthcare, for 3 1⁄2 years beginning in 2015, to provide healthcare advice to patients from all over the United States over the telephone. Optum required that he be licensed by other jurisdictions in addition to Minnesota, which led him to submit applications in Arizona and Texas, as well as 11 other states.

Applicant testified that he told Ms. Ingram that his employment with Optum was terminated because he could not meet the company’s metrics, which required him to counsel patients from Arizona, because he did not obtain an Arizona license. His supervisor contacted him weekly about the status of his Arizona license. In addition, he was required to call a certain number of patients, which was difficult because his shift was from 1:30 p.m. to 10 p.m., and people were mostly only available between 4 p.m. and 6 p.m., between work and dinner.

Applicant testified that his licenses in Minnesota, Texas, and the 12 other states in which he is licensed are in good standing and unencumbered. No one has ever made a complaint against him regarding his care of patients. He continues to take the continuing education that Minnesota requires for license renewal.

Ms. Sounthala testified that Applicant was one of the best night nurses during the year or more that she supervised him. He was calm and she never heard anything negative about him from patients or co-workers. Applicant went above and beyond to promote teamwork and render good customer service. He was also ethical, showing honesty and integrity. He received consistently good evaluations.

Applicant also submitted recent performance evaluations from Janelle Morse, RN, the Director of Nursing at his current employer, Communities of Care Home Care Agency. Ms. Morse described Applicant as dedicated, hard-working, rational, and competent, and praised him for making clients feel comfortable and maintaining a positive environment.

Elder Moochi testified that he has known Applicant for more than 6 years, since Applicant started attending the Seventh Day Adventist Church. Elder Moochi described Applicant as a responsible man who complies with the rules and regulations of the local congregation. The church has assigned Applicant to mentor young people to avoid drug abuse, to cope with media, and to become responsible adults. Applicant is also responsible for development and overseeing the church’s finances. Elder Moochi described Applicant’s demeanor as calm, responsible, and objective. In the past, Elder Moochi has seen Applicant angry, but he has improved. Applicant does not drink because the church does not allow it.

Applicant testified that, although anyone can attend the Mountain Experience Church, it takes three to six months of study to be baptized. He was required to disclose and to atone for his past, as well as to learn the 27 doctrines, before he was baptized. He no longer goes to bars or places where people are drinking. He has remarried and he and his new wife went through pre-marital counseling at the church.

Pastor Kingoina testified that he is from Kenya and that he met Applicant in 2015, when he instructed Applicant in catechism to prepare him for baptism. When Applicant wanted to get married, he counseled Applicant and his fiancée. Applicant has been elected to the Council of the Congregation, which is raising funds to construct a new church building. Pastor Kingoina sees Applicant every Saturday, as well as Applicant’s two children from his previous marriage, who are also church members. Pastor Kingoina described Applicant as forthright, honest, respectful, and gentle. He is a good man.

Ms. Cronquist testified to establish foundation for the affidavit of Sheryl Meyer, MA, the Director of Operations for the Minnesota Board of Nursing. According to Ms. Meyer’s affidavit, Applicant was first licensed in 2006 and, because there were no questions about criminal convictions or notices from the Minnesota Department of Health and Human Services on the 2008 and 2010 renewal applications, he could not have disclosed his convictions on those renewal applications. On the 2011 renewal application, which was the first application to include such questions, Applicant failed to disclose his criminal convictions or that the Minnesota Department of Health and Human Services had restricted his ability to provide care.

Ms. Harrell testified and stated in her declaration that, at the time of the July 2018 Board meeting, she believed that Applicant had misrepresented his criminal history in the application, but that she had not been informed that he had provided documentation and a personal statement with the application about most of his criminal history. If she had known that, she would not have voted to deny the license application. In addition, she did not know that Applicant had requested to withdraw the application because that option was not presented as a possible option at the July 2018 board meeting. She wanted to correct her error.

Applicant testified in detail about each of his criminal convictions. The Board in the denial order and though Ms. Ingram’s testimony called the Administrative Law Judge’s attention to statements in the police reports that appeared to contradict or to be inconsistent with Applicant’s testimony.

CONCLUSIONS OF LAW

The Board is the duly constituted authority for licensure and regulation of nurses in Arizona. This matter lies with its jurisdiction.

Applicant bears the burden of proof to establish by a preponderance of the evidence that he is qualified to granted an RN license in Arizona and that the Board therefore erred in denying him an Arizona RN license.

The Board’s responsibility is to “to more effectively protect the public health safety and welfare” by regulating the practice of nursing in Arizona. If a licensing decision does not affect the potential health and safety of the people of Arizona, however, the Board does not have a duty to the public in other states.

Applicant possesses licenses that are current and in good standing in Minnesota, Texas, and twelve other states. It appears that all of these jurisdictions are aware of Applicant’s criminal and disciplinary history. A.R.S. §§ 32-1663(A) and 32-1664(O) are both discretionary and do not require the Board to grant or deny every application. Because protection of the public in Arizona does not require the Board to deny Applicant’s application, it is appropriate for the Board to allow Applicant to withdraw his application and to leave to the other fourteen jurisdictions in which he is licensed the protection of the public in those states.

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED allowing George Marlita Obara to withdraw the application for licensure as a Registered Nurse by endorsement that he filed with the Board on or about November 30, 2015.

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, December 30, 2019.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing