FINACT19A-1805084-NUR.pdf

19A-1805084-NUR · State Board of Nursing · 2019-07-30

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 Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: July 26, 2019

RE: Johnelle Lynn Hoskie Docket No. 19A-1806063-NUR ______________________________________________________________________________

On July 26, 2019, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board affirm denial of Applicant Johnelle Lynn Hoskie’s application for Registered Nurse Licensure.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. THE ARIZONA STATE BOARD OF NURSING 1740 West Adams Street Ste. 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF DENIAL OF APPLICATION FOR LICENSE BY: ORDER OF DENIAL AFTER HEARING JOHNELLE LYNN HOSKIE, ORDER NO. 19A-1805084 -NUR TO PRACTICE REGISTERED NURSING IN THE STATE OF ARIZONA On March 21, 2019, the Arizona State Board of Nursing (“Board”) considered the application

for registered licensure of Johnelle Lynn Hoskie (“Applicant”). The Board denied the application and

on April 2, 2019, the Board issued Order of Denial No. 1805084. On April 22, 2019, Applicant requested a hearing on the Order of Denial, which was held on June 18, 2019 at 1:00 p.m. 1 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 appeared on her own behalf. Assistant Attorney General Elizabeth Campbell, Esq., appeared on behalf of the Arizona State Board of Nursing (“Board”) with Bonnie Richter and Janeen Dahn as witnesses. Brian Tso, John

Capone, and Irene Bargas observed. Kristi Spires (Certificate No. 50135) served as the official court reporter. 2 On July 15, 2019, the ALJ issued Findings of Fact, Conclusions of Law and a Recommended

Decision and Order. On July 26, 2019, the Board met to consider the ALJ’s Recommended Decision

The record was held open until July 05, 2019, to allow the Office of Administrative Hearings to receive the court

reporter’s official hearing transcripts for this matter. Ms. Spires’ REPORTER’S TRANSCRIPT OF PROCEEDINGS is the official record for 19A-1805084-NUR.

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 or about May 15, 2018, Applicant submitted an application for licensure as a

registered nurse licensure by examination to the Board. By this date, however, Applicant had not successfully passed the NCLEX-RN 3 examination required for licensure. 3. On April 02, 2019, the Board issued an ORDER OF DENIAL. 4

4. On April 22, 2019, Applicant submitted an appeal and requested a hearing on the

denial. 5 5. On April 22, 2019, 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 April 23, 2019, the Board issued a NOTICE OF PUBLIC HEARING ON DENIAL OF LICENSURE, informing Applicant that, pursuant to her request, a hearing would be held at OAH on June 18, 2019, at 1:00 p.m. 6

National Council Licensure Examination is a nationwide examination for the licensing of nurses in the

United States since 1982. The purpose of the NCLEX is to assess a candidate's ability to provide safe, effective nursing care upon entry into practice in the United States and its territories. There are two types of examinations: one for registered nurses and another for practical nurses. See Board Exhibit 11.

5 See Board Exhibit 12. See NOTICE OF HEARING.

7. The underlying April 02, 2019, ORDER OF DENIAL outlines that the Board denied Applicant’s application because (1) on October 28, 2009, the Board denied Applicant’s nursing assistant certification application due to alleged violations of the Nurse Practice Act, including a

January 18, 2008, conviction for Intoxication (one count), misdemeanor Possession of Alcohol by a

Minor (two counts), and Disorderly Conduct (one count); (2) on December 10, 2009, Applicant plead guilty to the charge of Criminal Damage/DV, which was dismissed on June 10, 2010, due to Applicant’s completion of a diversion program; (3) on December 08, 2014, Applicant was convicted of

DUI, slightest degree, a misdemeanor; (4) on August 25, 2016, Applicant was convicted of Extreme DUI above 0.15%, a misdemeanor; (5) on March 13, 2018, Applicant was convicted of Disorderly Conduct, a misdemeanor; and (6) based on certain recommendations and findings regarding Applicant

as outlined in a March 17, 2019, psychological examination. 7

HEARING EVIDENCE 8. The Board called Bonnie Richter – Senior Investigator, and Janeen Dahn, PhD – Associate Director of Licensing, Hearings & Compliance, as witnesses and submitted eleven public

exhibits and one confidential exhibit. Applicant testified on her own behalf. The NOTICE OF

HEARING was also admitted into the evidentiary record. Richter’s testimony 9. Investigator Richter testified that she was assigned to Case No 1805084.

10. Initially, Investigator Richter reviewed Applicant’s prior history with the Board. On May 06, 2008, Applicant applied for certification as a Nursing Assistant. 8 Because Applicant acknowledged

See Board Exhibit 11; see also Board Exhibits 3-5, 7, and Confidential Board Exhibit 8. Alleged violations of ARIZ. REV. STAT. §§ 32-1663(A), 32-1663(B), 32-1601(26)(d), 32-1601(26)(e), 32- 1601(26)(g), 32-1601(26)(h), 32-1601(26)(j), and ARIZ. ADMIN. CODE R4-19-403(17). See Board Exhibits 1 and 9.

criminal convictions on her application the Board conducted an investigation. 9 Based on their findings, the Board issued an ORDER which directed Applicant to schedule a psychological evaluation within five days. 10 Applicant’s application was denied on October 28, 2009, after she failed to timely complete

the evaluation. 11

11. On September 10, 2018, Applicant was mailed an Investigative Questionnaire with instructions that she complete and return it with police records for each of her disclosed offenses, and also include a personal statement for each offense.

12. On October 09, 2018, Applicant returned the requested information to the Board. 12 13. Investigator Richter made the following factual determinations. On December 10, 2009, Applicant plead guilty to Criminal Damage/DV, a class two misdemeanor. The charge was dismissed

on June 10, 2010 because Applicant successfully completed a diversion program. Applicant admitted to

the Board that her alcohol consumption and anger with her husband resulted in the conduct for which she was arrested. On December 08, 2014, Applicant plead guilty to DUI, slightest degree, a class one misdemeanor, due to arrest where her blood alcohol content was 0.19%. Applicant contended to the

Board that she had completed all court-ordered treatments and paid all related fines. On August 25,

2016, Applicant plead guilty to Extreme DUI BAC .15-.19%, a class one misdemeanor. Applicant admitted to the Board that she used alcohol to manage stresses regarding finances, her marriage, and nursing school, and as a result of her arrest she was jailed for nine days and had to complete treatment

programs and pay additional fines. On March 13, 2018, Applicant plead guilty to Disorderly Conduct, a class one misdemeanor. Applicant admitted to the Board that on her graduation day she drank alcohol

See Board Exhibits 1, 3, and 9 See Board Exhibits 1 and 9.

11 Id. See Board Exhibits 4-7.

and ended up involved in a familial altercation that resulted in her arrest and participation in a sixty-one day treatment program. 13 14. On February 04, 2019, the Board asked Applicant to submit to a psychological

evaluation.

15. On February 15, 2019, Applicant was evaluated by a Board-approved psychologist. 14 The resulting report was delivered to the Board on or about March 08, 2019. 15 16. On or about March 21, 2019, the Board unanimously voted to deny Applicant’s

application for licensure. 16 17. An ORDER OF DENIAL was issued to Applicant on April 02, 2019. 17 18. Applicant submitted her request for a State Fair Hearing on April 22, 2019. 18

Dahn’s testimony

19. Dr. Dahn testified that Applicant’s hospital records directly controvert her assertion that she had “not been drinking heavily” on February 11, 2019; specifically, that Applicant’s plasma ethanol levels were “critical” and potentially fatal.

20. Applicant’s evaluating psychologist noted issues with Applicant’s veracity regarding the

frequency and volume of Applicant’s alcohol consumption. 21. Dr. Dahn opined, based on her review of Applicant’s psychological evaluation, that it was clear Applicant had neither obtained nor sustained meaningful sobriety let alone admitted the

extent of her alcohol dependency. ....

See Board Exhibit 9. See Confidential Board Exhibit 8. Id.

16 See Board Exhibit 10. See Board Exhibit 11.

Applicant’s testimony 22. Applicant testified that she made some “poor decisions” in her youth and did not know how to address or correct them, including the August 04, 2009, ORDER OF DENIAL issued by the

Board.

23. Regarding her referenced “poor decisions,” Applicant did not confirm or deny her addiction or abuse of alcohol. Applicant maintained that she did not “strike” anyone contrary to the police report underlying her December 16, 2016, arrest. Applicant did, however, admit that she was still

on probation from her February 16,2016, DUI arrest whereby she was prohibited from drinking alcohol. 24. Applicant testified that she tendered her criminal guilty pleas, in large part, because she was afraid of being sentenced to the maximum penalty if she were to be found guilty at trial.

25. Regarding her requisites for licensure as a registered nurse, Applicant admitted that she

failed the NCLEX-RN examination. 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 she meets the requirements for her application to be granted. 19 3. The standard of proof on all issues is that of a preponderance of the evidence. 20

18 See Board Exhibit 12. See ARIZ. REV. STAT. § 41-1092.07(G)(1).

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. § 32-1663(B) provides that “[i]n its denial order, theboard shall immediately invalidate any temporary license or certificate issued to the applicant.” 7. 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. 8. ARIZ. REV. STAT. § 32-1601(26)(d) provides that unprofessional conduct includes “[b]eing mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous

to the health of a patient or the public.” 9. 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.”

See ARIZ. ADMIN. CODE R2-19-119.

10. ARIZ. REV. STAT. § 32-1601(26)(h) provides that unprofessional conduct includes “[c]ommitting an act that deceives, defrauds or harms the public.” 11. 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.”

12. ARIZ. ADMIN. CODE R4-19-403(17) provides, in pertinent part, that unprofessional conduct is defined as “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes a pattern of using or being under the influence of alcohol … to the

extent that judgment may be impaired and nursing practice detrimentally affected.” 13. 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. 21 The Board has discretion 22 to grant or deny a license to an applicant under

ARIZ. REV. STAT. §§ 32-1663(A) and 32-1601(26). 23 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.

14. The issue in this case is, in light of Applicant’s multiple convictions and intervening

conduct since her most recent conviction, whether Applicant can be trusted at this time to be

See Laws 1992, Ch. 14, § 3. See ARIZ. REV. STAT. § 32-1663(A) (“The board may . . . deny the issuance of a license” under certain circumstances (emphasis added)). 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).

responsible in her conduct with patients and members of the public if the Board grants her a nursing license. 15. The time period required for a license applicant to establish rehabilitation is

commensurate with the period of misconduct and the severity of the offenses.

16. Applicant did not offer any credible testimony or evidence that she has learned from her past mistakes and/or is highly unlikely to repeat them in the future. Applicant did not admit that she has difficulties with alcohol, or offer evidence that she has obtained sobriety and is able to sustain it for any

period of time. 17. Here, Applicant’s disclosures regarding her arrests and convictions rightfully called into question her culpability regarding her underlying criminal conduct. Applicant’s explanations did not

evince her understanding of the grievous nature of her actions, or acceptance of responsibility for the

harm she caused to herself, others involved, and greater public. 18. The mission of the Board is to protect and promote the welfare of the public by ensuring that each person holding a nursing license or certificate is competent to practice safely. 24 This mission

is fulfilled through the regulation of the practice of nursing and the approval of nursing education

programs, and supersedes the interest(s) of any individual or group. 25 19. After closely scrutinizing Applicant’s arrests, convictions, and related underlying conduct, and after careful consideration of Applicant’s intervening personal and professional behaviors,

this Tribunal holds that Applicant has not established by a preponderance of the evidence that she is not a danger to patients or the public. The evidence of record establishes that Applicant’s struggles with alcohol impedes her ability to be regulated by the Board at this time.

24 See https://www.azbn.gov/board/about-the-organization/. Id.

20. Notably, Applicant’s failure to successfully pass her NCLEX-RN exam prohibits the Board from lawfully issuing Applicant a license for her May 15, 2018, application. ORDER

NOW THEREFORE, IT IS ORDERED that the Board’s denial of JOHNELLE LYNN

HOSKIE to practice as a registered nurse in Arizona is affirmed and upheld. 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 26th day of July, 2019.

ARIZONA STATE BOARD OF NURSING

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

COPIES mailed this 26th day of July, 2019, by First Class Mail and Certified Mail No. [account number redacted] 5040 to:

Johnelle Lynn Hoskie 3200 W Third St, Lot #18 Winslow, AZ 86047 Applicant

COPY mailed this 26th day of July, 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 July, 2019, to: [email redacted] Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

By: T. Smith