ALJDEC decisions subject to certification as final

19A-1806063-NUR · State Board of Nursing · 2019-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2019 APPEARANCES: Appellant Kelly Marie Munger appeared on behalf of herself. Assistant Attorney General Sunita Krishna appeared on behalf of the Arizona State Board of Nursing. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ 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 sua sub stance 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 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 o 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. 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. RECOMMENDED ORDER IT IS ORDERED that the Board’s February 12, 2019 Order of Denial No. 1806063 be affirmed. 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, May 7, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

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