ALJDEC decisions subject to certification as final

20A-1712020-NUR · State Board of Nursing · 2020-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTRY CERTIFIED NURSING ASSISTANT CERTIFICATE NO. CNA999990440

ISSUED TO:

DANIEL JASSO,

RESPONDENT

No. 20A-1712020-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 4, 2020

APPEARANCES: Daniel Jasso on his own behalf; Elizabeth Campbell, Esq. for the Board of Nursing

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona.

On June 30, 2020, the Board issued a “Complaint and Notice of Hearing” setting the above-captioned matter for hearing on August 4, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Daniel Jasso holds certified nursing assistant certificate number CNA999990440.

The Board alleges that Mr. Jasso abused a patient when he physically restrained the patient by grabbing the patient by the back of the neck and kneeing the patient in the back, and that Mr. Jasso verbally abused the patient by yelling at, and intimidating, the patient.

On December 12, 2017, the Board received a complaint from Tucson Medical Center through which TMC’s chief nursing officer informed the Board that on November 12, 2017, Mr. Jasso was observed placing his hands on the neck and shoulders of a patient and guiding the patient back to his room, and that while doing so, Mr. Jasso used vulgar language toward to patient; after the two entered the patient’s room, Mr. Jasso shut the door and the patient could be heard yelling obscenities at Mr. Jasso; and the patient’s RN, Ann Jensen then entered the room and asked Mr. Jasso to leave.

TMC’s complaint shows that it conducted a thorough investigation that corroborated that Mr. Jasso had violated TMC’s patient abuse policy and that he had resigned from his position on November 14, 2017.

On November 12, 2017, Mr. Jasso was working on the med/surg floor where the patient was recovering from a surgery. The patient had been admitted from Palo Verde Behavioral Health and was a danger to self, a danger to others, and persistently or acutely disabled.

The patient was known to be difficult and was known to wander. As such the patient was on a “1:1,” meaning one staff member was responsible for only that patient and charged with keeping the patient safe.

Mr. Jasso took over as the staff member assigned to the patient on the morning of November 12, 2017.

At the time of the incident, the patient was noted to be very anxious asking when he would be transferred back to Palo Verde. After a nurse told the patient that the discharge might not occur that day, the patient began cursing into another patient’s room and was knocking down signs. It was that this time that Mr. Jasso placed his hands on the patient and guided him back to his own room.

Mr. Jasso testified as to the patient becoming agitated during the day and to the effect that the patient became verbally aggressive toward Mr. Jasso and other staff. Mr. Jasso did not agree that he had grabbed the patient’s neck or shoulders, but he did acknowledge that he guided the patient back into his room and he acknowledged that he more than likely held the patient in an effort to get the patient to calm down.

Mr. Jasso testified to the effect that he had not been trained as a behavioral health tech and that he had asked for help during the time he was assigned to the patient.

On questioning however, Mr. Jasso explained that his request for help was limited to telling the charge nurse that the patient was irritated and that she might want to call security, to which the charge nurse asked “why?” and there was no further conversation between the two. This conversation occurred at about noon to the best of Mr. Jasso’s recollection.

Ms. Jensen testified that she was down the hall and around the corner from the patient’s room when she heard the patient scream words to the effect that you are not supposed to touch me and get your hands off me; she walked around the corner when she saw Mr. Jasso’s hand around the back of the patient’s neck, the patient was yelling and struggling, and Mr. Jasso’s knee went up into the patient’s back; and he shoved the patient into the patient’s room. Ms. Jensen noted that by that time she was in the room with the two men and Mr. Jasso was yelling at the patient and cussed at the patient one time. The patient broke the television and wanted Mr. Jasso to leave the room. The patient threatened Mr. Jasso, who then postured toward the patient.

Ms. Jensen’s opinion was that the patient was clearly agitated by Mr. Jasso’s actions. She noted that the patient had a history of abuse from males. Mr. Jasso testified that he had not been made aware of the patient’s history and questioned why he had been assigned to the patient if that was the case.

Ms. Jensen testified that a physical restraint is anything placed upon a patient that would hinder his ability to move or move about where he wants to.

The Board’s associate director, Janeen Dahn, Ph.D., RN, FNP-C, testified that by placing his hands on the patient and guiding the patient back to the room, Mr. Jasso had used a restraint. Because there was no order for restraint of the patient, it was inappropriate for Mr. Jasso to use a restraint.

Dr. Dahn also testified that Mr. Jasso’s yelling at the patient and use of a swear word did not comply with the standard of care.

CONCLUSIONS OF LAW

The Board bears the burden of proof to show that the alleged violations occurred. Ariz. Admin. Code § R2-19-119(B); see also Ariz. Rev. Stat. § 41-1092.07(G)(2). The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).

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).

Ariz. Rev. Stat. section 16-1646(C) provides that:

In the regulation of certified nursing assistants the board may:

1. Investigate allegations of abuse, neglect or misappropriation of property and refer criminal violations to the appropriate law enforcement agency.

2. File a letter of concern if the board believes there is insufficient evidence to support direct action against the certified nursing assistant's registration but sufficient evidence for the board to notify the nursing assistant of its concern.

3. Pursuant to the omnibus budget reconciliation act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the [M]edicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683), indicate on the registration the existence of any substantiated complaints against the certified nursing assistant in compliance with title 41, chapter 6, article 10.

As pertinent to this matter, Ariz. Admin. Code section R4-19-101. Definitions, provides:

“Abuse” means a misuse of power or betrayal of trust, respect, or intimacy by a nurse, nursing assistant, or applicant that causes or is likely to cause physical, mental, emotional, or financial harm to a client.

***

“Register” means a listing of Arizona certified nursing assistants maintained by the Board that includes the following about each nursing assistant: Identifying demographic information; Date placed on the register; Date of initial and most recent certification, if applicable; and Status of the nursing assistant certificate, including findings of abuse, neglect, or misappropriation of property made by the Arizona Department of Health Services, sanctions imposed by the United States Department of Health and Human Services, and disciplinary actions by the Board.

The preponderance of the evidence shows that Mr. Jasso committed an act of abuse by placing his hands on the patient and guiding him into his room, which also constitutes an improper restraint.

The preponderance of the evidence shows that Mr. Jasso use of a swear word and his yelling at the patient also constitute abuse.

The Board alleges that Mr. Jasso kneed the patient, but this has not been proven by a preponderance of the evidence. Although Ms. Jensen testified that Mr. Jasso did knee the patient, the complaint from TMC does not show that he did so and the Board presented no evidence to corroborate Ms. Jensen’s testimony. TMC’s complaint was prepared less than a month after the incident and after TMC had conducted a “thorough investigation” of the incident, which presumably would have included interviewing all witnesses to the incident, whereas Ms. Jensen’s testimony came almost three years later and involved events that happened “in a matter of moments” according to TCM’s complaint. In addition, the record does not include information as to how far from Mr. Jasso Ms. Jensen was when she observed the events, but TMC’s complaint shows that Mr. Jasso and the patient had entered the patient’s room, that Mr. Jasso shut the door, and other staff members heard yelling before Ms. Jensen arrived at the room, which is an indication that she was some distance from the two men when the event occurred.

Consequently, the Board has authority to indicate on the registration a substantiated complaint of abuse involving Mr. Jasso.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Board indicate on the register a substantiated complaint of abuse involving Daniel Jasso.

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.

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-137160-45720000Done this day, September 4, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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001

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