FINACT19A-1806063-NUR.pdf

19A-1806063-NUR · State Board of Nursing · 2019-05-22

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 17, 2019

RE: Kelly Marie Munger Docket No. 19A-1806063-NUR ______________________________________________________________________________

On May 17, 2019, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board affirm denial of Applicant Kelly Marie Munger’s application for Licensed Nursing Assistant.

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 APPLICATION FOR LICENSE BY: ORDER OF DENIAL AFTER HEARING KELLY MARIE MUNGER, A.K.A. KELLY MARIE RICHARDSON, KELLY ORDER NO. 19A-1806063-NUR MARIE JONES,

TO PRACTICE AS A LICENSED NURSING ASSISTANT IN THE STATE OF ARIZONA On November 15, 2018, the Arizona State Board of Nursing (“Board”) considered the

application for Licensed Nursing Assistant of Kelly Marie Munger (“Applicant”). The Board denied

the application and on February 12, 2019, the Board issued Order of Denial No.1806063. On March 11, 2019, Applicant requested a hearing on the Order of Denial, which was held on May 1, 2109, before Administrative Law Judge (“ALJ”) Velva Moses-Thompson at the Office of

Administrative Hearings, 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007. Sunita

Krishna, Assistant Attorney General, appeared on behalf of the State. Applicant Kelly Marie Munger appeared on her own behalf. On May 7, 2019, the ALJ issued Findings of Fact, Conclusions of Law and a Recommended

Decision and Order. On May 17, 2019, the Board met to consider the ALJ’s Recommended Decision

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

1. On July 17, 2015, Appellant Kelly Marie Munger was arrested and charged with Domestic Violence Disorderly Conduct and Criminal Damage in Goodyear, Arizona (“2015 arrest”),

because she hit a family member and broke a window. See Exhibit 1, Bates 011. Ms. Munger admitted to law enforcement that she had a substance use disorder with alcohol. See id at Bates 008. 2. On November 28, 2016, Ms. Munger was arrested and charged with Driving under the

Influence and Extreme DUI in Goodyear, Arizona, because she hit another vehicle at about 1233 hours

(“2016 arrest”). See Exhibit 1, Bates 032-034. The officers who responded to the altercation smelled a strong odor of intoxicating alcohol coming from Ms. Munger’s breath. Ms. Munger’s Breath Alcohol Content (“BAC”) was 0.193% at 1408 hours on November 28, 2016. At 1414 hours on November 28,

2016, Ms. Munger’s BAC was 0.195%. Ms. Munger admitted to law enforcement that she had been drinking prior to the incident. See id at Bates 035-039. 3. On May 11, 2018, Ms. Munger filed a Licensed Nursing Assistant (“LNA”) application

with the Arizona State Board of Nursing (“Board”). See Exhibit 4, Bates 108. The Board conducted an

investigation based on the information provided in the application. The Board mailed an investigative questionnaire to Ms. Munger with instructions to provide a written statement and police and court records of each arrest, citation, and charge.

4. In September of 2018, Ms. Munger returned the questionnaire to the Board. See Exhibit

3, Bates 038. However, Ms. Munger did not disclose the 2015 arrest on the questionnaire. See id. 5. Ms. Munger submitted court records regarding the 2016 arrest with the questionnaire, but she did not provide a written statement regarding the events that led up to the arrest.

See Exhibit 3. Ms. Munger signed her name under the statement, “I have disclosed each of my arrests, citations and charges, for felonies and misdemeanors, including incidents that did not ultimately result in convictions.” See id at Bates 081.

6. On October 17, 2018, the Board interviewed Ms. Munger regarding the 2015 arrest. Ms.

Munger told the Board that she appeared in court for the 2015 arrest and was required to take classes

and pay fines. Ms. Munger explained that the judge told her that the charges would be dropped after she paid the fines and completed the required classes. See Exhibit, 4, Bates 109. 7. During the interview with the Board on October 17, 2018, Ms. Munger discussed the

2016 arrest. Ms. Munger stated that she misjudged the roundabout and “tapped” another driver’s car.

Ms. Munger stated that her last drink was on February 14, 2018. Ms. Munger also reported to the Board that she went to Scottsdale Recovery Center for 28 days for alcohol use disorder. 8. On November 15, 2018, the Board voted to continue the investigation to allow Ms.

Munger the opportunity to obtain a substance abuse evaluation. 9. On November 20, 2018, the Board mailed a notice to Ms. Munger regarding its decision. See Exhibit 5. The notice provided, in relevant part, as follows: 1

After consideration of the facts as presented, the Board voted to continue the investigation to allow you time to obtain a psychological evaluation to include a substance abuse evaluation to be completed by a Board approved licensed psychologist and to include any additional testing deemed necessary by the evaluator, to be scheduled and complete within 45 days and then return to the Board. The Board’s decision included a provision that if the evaluation is not scheduled and competed within 45 days, you application for Licensed Nursing Assistant will be denied.

Enclosed is the contact information for the Board approved evaluators and an Authorization for Release of Information form that needs to be completed and returned to the Board with notification of your appointment for the evaluation. It is important to provide at least 15 business days’ notice to the Board prior to your evaluation. Failure to do so may result in your evaluation being rescheduled. Please note that the cost of this evaluation will be your responsibility.

10. Ms. Munger did not complete the psychological evaluation.

See id.

11. On February 12, 2019, the Board issued a Notice of Public Hearing on Denial of licensure setting the above captioned matter for hearing on May 1, 2019 (“Notice of Hearing”). The Notice of Hearing provided that the issue set for determination is whether Applicant “is qualified to

hold a license to perform as a Licensed Nursing Assistant in the State of Arizona.”

12. A hearing was held on May 1, 2019. 13. At hearing, Ms. Munger testified on behalf of herself. The Board presented the testimony of its Senior Investigator Stephanie Cruz, and submitted exhibits 1 through 5.

14. At hearing, Ms. Munger did not dispute the facts alleged by the Board in is Notice of Hearing. Ms. Munger explained that she did not complete the psychological evaluation due to financial reasons. Ms. Munger expressed that she would be a good LNA because she is empathetic and she treats

others how she wants to be treated. Ms. Munger acknowledged that she can relapse at any time, but

believed that she deserved a chance to practice as LNA. CONCLUSIONS OF LAW 1. Applicant bears the burden of persuasion. ARIZ. REV. STAT. § 41-1092.07(G)(2).

2. The standard of proof on all issues is that of a preponderance of the evidence. ARIZ.

ADMIN. CODE § R2-19-119. 3. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the 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 1182 (6th ed. 1990). 4. The preponderance of the evidence shows that Ms. Munger committed unprofessional

conduct as defined by ARIZ. REV. STAT. section 32-1601(26)(d),(g), and (j); A.A.C. R4-19-403(17).

5. Because Respondent has committed unprofessional conduct, the Board has authority to deny Ms. Munger’s application for licensure. ARIZ. REV. STAT. section 32-1663(A) and (B). 6. Considering the facts and circumstances of this matter, it is recommended that Ms.

Munger’s application for licensure be denied.

ORDER NOW THEREFORE, IT IS ORDERED that the Board’s denial of KELLY MARIE

MUNGER to practice as a Licensed Nursing Assistant 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 17th day of May, 2019. ARIZONA STATE BOARD OF NURSING SEAL Joey Ridenour, R.N., M.N., F.A.A.N. Executive Director

COPIES mailed this 17th day of May, 2019, by First Class Mail and Certified Mail No. [account number redacted] 9550 to:

Kelly Marie Munger 10202 S. 175th Drive Goodyear, AZ 85338 Applicant

COPY mailed this 17th day of May, 2019, by First Class Mail to: Sunita A. Krishna Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004 COPY sent electronic mail this 17th day of May, 2019, to: [email redacted] Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

By: T. Smith