ALJDEC decisions subject to certification as final

19A-180604NA9208-NUR · State Board of Nursing · 2019-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 17, 2019, with the record held open until August 5, 2019 APPEARANCES: The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 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 approves nursing assistant training programs and can impose discipline against all regulated parties. A.R.S. § 32-1606(B)(1), (2), and (10). The Board has the authority to impose disciplinary sanctions against such programs for violations of the Nurse Practice Act, A.R.S. §§ 32-1601-1669 and A.A.C. R4-19-101 to -815. 2. Academic Training AZ Nursing Assistant Program (Respondent) held Board-issued Program Approval Number 9208 in the state of Arizona. Respondent’s approval expired on July 30, 2018.[1] 3. On or about September 19, 2018, Simon Cardenas, as the approved Respondent Representative, signed Consent Agreement and Order No. 180604NA9208 (2018 Consent Agreement) based on findings of deficiencies in its nursing assistant program. 4. The 2018 Consent Agreement required that Respondent provide the Board with quarterly reports. 5. Respondent did not provide any quarterly reports due under the 2018 Consent Agreement. 6. The 2018 Consent Agreement required that Respondent engage an outside consultant within 30 days (by October 19, 2018) to evaluate its nursing program curriculum and provide a report to the Board within 90 days (by December 19, 2018). 7. As of the date of the hearing, the Board had not received the required evaluation report. 8. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing to convene on July 17, 2019. The Complaint and Notice of Hearing was sent by first class and certified mail to Respondent, care of Michelle Dils, Program Administrator. At the time the Complaint and Notice of Hearing was issued, Ms. Dils was Respondent’s Program Administrator on record with the Board. 9. Ms. Dils appeared at the hearing in an effort to represent Respondent. During a discussion on the matter, Ms. Dils stated that, based on an agreement she had with Mr. Cardenas, she filed Articles of Amendment with the Arizona Corporation Commission removing him as a member and adding her as a member. Ms. Dils acknowledged that Mr. Cardenas was the owner of Respondent and did not authorize her to make the change with the Arizona Corporation Commission and that she was not the legal owner of Respondent. Because Ms. Dils was not an owner, Ms. Dils was not allowed to represent Respondent during the hearing. Ms. Dils was, however, the Program Administrator of record with the Board. As such, the Complaint and Notice of Hearing was sent to Respondent in care of her as the Program Administrator. 10. At the hearing, Cindy George, Education Program Administrator for the Board, testified as to the failure to Respondent to comply with the 2018 Consent Agreement. CONCLUSIONS OF LAW 1. The Complaint and Notice of Hearing that the Board mailed to Respondent at its 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 program approval 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 § 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). 5. If a regulated party is found to have committed an act of unprofessional conduct or to have violated a Board statute or rule, the Board may take disciplinary action. A.R.S. § 32- 1664(O). 6. The Board established by a preponderance of the evidence that Respondent failed to comply with the 2018 Consent Agreement as alleged in the Complaint and Notice of Hearing. Such a failure to comply constitutes unprofessional conduct in violation of A.R.S § 32-1601(26)(d), (h), (i), and (j)[2] and A.A.C. R4-19-805(B)(2) (8), and (12).[3] 7. In light of the risk of potential harm to patients 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 nursing program approval under A.R.S. § 32-1663(D)[4] and A.R.S. § 32- 1664(N).[5] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Program Approval Number 9208 previously issued to Academic Training AZ Nursing Assistant Program. 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, August 26, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] Respondent submitted a renewal application on July 26, 2018, that was deficient and had not submitted the required documents to correct the deficiencies, which were due March 19, 2019. The Board retains jurisdiction over the expired approval during the pendency of the investigation and disciplinary action, pursuant to A.R.S. § 32-1664(C), which provides that the Board retains jurisdiction over a regulated party whose license or certificate expired not more than five years before the Board initiates the investigation. [2] A.R.S. § 32-1601(26)(d), (h), (i), and (j) defined “unprofessional conduct” to include, respectively, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public,” “[c]ommitting an act that deceives, defrauds or harms the public,” “(f]ailing to comply with a stipulated agreement, consent agreement or board order,” and “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [3] A.A.C. R4-19-805(B)(2), (8), and (12) defined “unprofessional conduct” to include, respectively, “[a]ny violation of this Article,” “[f]ailing to comply with Board requirements within designated timeframes,” and “[e]ngaging in any other conduct that gives the Board reasonable cause to believe the program’s conduct may be a threat to the safety or welfare of students, faculty, patients or the public.” [4] 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. [5] A.R.S. § 32-1664(N) provides that if the Board finds that the licensee has committed an act of unprofessional conduct, the Board may revoke or suspend the license.

-----------------------

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