ALJDEC decisions subject to certification as final

20A-201811308-NUR · State Board of Nursing · 2020-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN117465

ISSUED TO:

MICHELLE LEIGH DILS,

RESPONDENT

No. 20A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 11, 2019 and March 11, 2020

APPEARANCES: Assistant Attorney General Elizabeth A. Campbell represented the Arizona State Board of Nursing. Respondent Michelle Leigh Dils. R.N., represented herself.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

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 (A.R.S.). 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 Arizona Administrative Code (A.A.C.) R4-19-101 through R4-19-815.

This case deals with a May 2018 Cohort at the Academic Training Az (School), a School at which Respondent was the Program Instructor and Program Coordinator. Based on the hearing records, for this particular Cohort, the School had enrolled two (2) caregiver students and eight (8) nursing assistant (CNA) students. According to Respondent, only one CNA student graduated from this Cohort, while both caregiver students graduated; all three passed their board exams.

Pursuant to A.A.C. R4-19-802(D), nursing assistant training programs are required to ensure that each graduate has completed a minimum number of classroom and clinical hours. A.A.C. R4-19-802(D)(1)(c) mandates that students complete 40 hours of instructor-supervised clinical experience. Pursuant to A.A.C. R4-19-802(D)(2), the training program is required to maintain accurate attendance records.

On June 18, 2018, the Board received a complaint from G.O. regarding School and Respondent being unorganized and indicating that students had been “left unattended practically the school course especially durning (sic) the clinicals.” See Exhibit 1. The complaint alleged “a cna student checking us off for skills we performed.” The complaint alleged that Respondent was unprofessional, that Respondent “just kept bringing personal drama to the class mates and talking bad about students making up lies.” The complaint alleged, among other stated events, that the school gave poor services/instruction, that she herself had been “kicked out” of the school for asking questions, and that she had been denied a refund and then being unable to take the Board exam. The complaint also stated that they had been taught by a “former nurse in [A]frica which was a student at the time teaching us, what I feel the instructor was supposed to do teacher us.” The complaint states that “”we took a cpr class and was not taught first aid at all and the instructor was not there to be present.” The complaint states that “we were left unattended so much can’t even ask for help when she is not there.” The complaint further stated that when that person had advised Respondent that “we the students have no idea about first aid” Respondent had indicated to watch YouTube.

On June 18, 2018, the Board received a complaint from C.S.N. regarding Respondent. See Exhibit 2. The complaint alleged that on June 16, 2018 during a clinical, she had told Respondent that the CPR class taught by Mr. Cardenas on May 26, 2018 had not included First Aid, and that Respondent had then requested that the class watch a YouTube video on First Aid. C.S.N. noted that she had also commented to Respondent that “this doesn’t not give a good review about the school.” C.S.N.’s complaint then states “[t]his I did not complain. I was always helping teach skills to my mates anytime she put me to teach my class.” The complaint states that, at the end of that day, Respondent pulled C.S.N. and another student out of the class and Respondent told C.S.N. that she had disrespected Respondent in the morning (by not pulling Respondent aside to tell her about the CPR class) and that she was being expelled from the school.

On June 25, 2018, the Board received a complaint from T.C. regarding Respondent. See Exhibit 3. The rambling complaint alleged multiple things, including that, on May 26, 2018, Respondent said she was going to a birthday party and that Mr. Cardenas was going to teach the CPR and First Aid class but they “never got a card for the cpr[.] [Mr. Cardenas] told us we will be getting the first aid and cpr card when we go to clinicals but we never got them.”

The T.C. complaint also states that on May 27, 2018, she arrived for class and “there was no teacher[.] we was there for 3 hr teaching ourselves when [Mr. Cardenas] came n (sic) and told us there wouldn’t b (sic) class today n (sic) the 3 hr we was there is no good[.] we have to make up that day[.] I told him I work m-f[.] I cant (sic) make up the class doing (sic) the week[.] it was a lot of days that we the class would b (sic) teaching ourselves in class ...”

The T.C. complaint further states that “a Cna from a past class [was] checking us off on skills one weekend[.] we had a new teacher that told the class we was doing everything wrong[.] when we got to clinicals we seen [Respondent] when we got there she told us to meet her back n (sic) the class at 2[.] when we got back n (sic) the class she was not there so we all started doing book work[.] like 2 hr go by she still have not came back n (sic) the class[.] i went to go n (sic) look for her n (sic) thats (sic) when she come n (sic) the class n (sic) told use (sic) to just keep doing what we was doing n (sic) walked out[.]

Regarding her last skill test, T.C. complained that when she took the test on June 23, 2018, Respondent would not answer her questions and would not look at her but that Respondent had been answering questions from another student about what the test was looking for. After T.C. got a text stating that she had not passed any of the skills, she said that she talked to Respondent who told her what had been done wrong and also told her to come back on the 24th to retake the test. The next day, when Respondent got there, T.C, said that she questioned Respondent on the outcome, telling Respondent that she had, in fact, done those skills, and then T.C. questioned why Respondent had not talked to her the day before when Respondent had talked to the other student, whereupon T.C. indicated that Respondent told T.C. that she “was getting loud when i was not” and that T.C. needed to leave and Respondent was calling the police because T.C. was trespassing but T.C. had questioned “why [calling the police]”stating “I didnt do anything...” .

On June 21, 2018, the Board received a complaint from J.P. regarding Respondent. See Exhibit 4. The complaint alleged that Respondent was not teaching the class but was spending her time with caregiver students. J.P alleged that student C.S.N. “[t]aught us everything we know.” J.P. stated that at the time of the clinicals, Respondent had come into the room for about 30 minutes “to tell us what she wanted to tell us” and then Respondent left and they had not seen her again until it was time to go home.

These four complaints were forwarded to Cindy George, R.N., the Board’s Education Program Administrator and a Board investigator.

At some point, Ms. George sent Respondent an Investigative Questionnaire. See Exhibit 5.

On December 18, 2018, the Board received Respondent’s written response to the Investigative Questionnaire. See Exhibit 5 at Bates 18-20. As to the May 2018 Cohort, Respondent noted various difficulties that had arisen during the Cohort:

Student T.C. was angry because she had been told by Mr. Cardenas that she would have advanced placement, but Respondent felt that she did not have that skill level and wanted her to take the whole course, with the result that the T.C. “came and went as she pleased in class and clinicals” with Mr. Cardenas’ approval; and when T.C. did not pass, she had a “violent outburst in the middle of [a] class” and the police had to be called to have her leave, at which time, T.C. hit Respondent on her shoulder.

Students C.S.N. and T.C. became friends and C.S.N. was disrespectful to Respondent by arguing with Respondent and correcting her while Respondent was teaching, and Respondent had to “constantly ask her not to instruct the other students.” Having been a nurse in Africa, C.S.N. believed she, like T.C., should have advanced placement and was “furious” with Respondent for not letting her. Finally, Respondent noted that C.S.N. had been asked to leave the clinicals because Respondent had “caught her giving a lecture to the entire class around a conference table” having “warned” her multiple times not to teach.

Students R.A., and D.A. had been enrolled by Mr. Cardenas without taking an admission test and Respondent felt that their language barrier was too great to take and pass the class. Respondent noted that she had complained to Mr. Cardenas about this and he had insisted that they stay in the program “until they made their last payment.” However, Respondent also noted that she did allow C.S.N. “to work with” them in the skills lab “to help them” further indicating that “[C.S.N.] was able to explain things in a way they could understand.”

Student I. was a friend of C.S.N. Respondent noted that when C.S.N. was asked to leave the clinicals, student I. became upset and was yelling and cursing at Respondent in the halls of the Sierra Winds facility, and Respondent had to ask her to leave.

As to Student J.P., Respondent felt that J.P. had a learning disability but Mr. Cardenas would not allow Respondent to give her an admissions test. Respondent noted that Mr. Cardenas had told J.P. that she would “for sure” pass the class, and when she did not pass her written final she wanted Respondent to change her score but Respondent would not do so.

As to management of School itself, Respondent asserted that Mr. Cardenas had undermined her instructional authority, had “[taken] students to clinicals without an instructor,” had enrolled students who were not qualified without admissions testing just to get money for the School, had lied to students and promised they would pass so that he could get their money, and had altered their attendance records. Respondent noted that she had so notified the Director of Nursing at Sierra Winds and had also notified the Board.

At some point, Ms. George interviewed the four persons who filed the complaints. At hearing, Ms. George testified that each of the four had “confirmed” to her the information contained in their complaints. Ms. George testified that the students “felt that they did not have her undivided attention.”

Ms. George interviewed only one other person regarding this matter. Ms. George interviewed Geraldine Seleno, who was the weekend RN supervisor at Sierra Winds. Ms. George indicated that Ms. Seleno stated that the students were in the conference room the majority of the time and Respondent was in the conference room with them, that the Students did not perform the expected tasks of feeding, showering, etc., and, that some of the students were on the patio on their cell phones.

Ms. George had made at least one appointment with the Nursing Director at the Sierra Winds facility where clinicals were being conducted; however, that appointment did not take place.

In its September 30, 2019, Complaint and Notice of Hearing, the Board alleged as follows:

Respondent failed to provide a planned and supervised clinical learning experience for students at Sierra Winds, including leaving students to sit for extended periods of time in a breakroom and failing to supervise or provide adequate clinical experience for students. The lack of required instruction limited student ability to gain required skills for safe patient care.

During the classroom instruction period for the May 2018 cohort, Respondent frequently left the nursing assistant students in the classroom without a qualified instructor present.

Respondent inappropriately discussed her personal relationship issues with nursing assistant students in the May 2018 cohort.

The Complaint and Notice of Hearing alleged the following statutory and regulatory violations as to Respondent’s alleged conduct:

Unprofessional conduct in any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public, under A.R.S. § 32-1601(26)(d).

Unprofessional conduct in violating a Board statute or rule, under A.R.S. § 32-1601(26)(j).

A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice, under A.A.C. R4-19-403(1).

A failure to maintain professional boundaries, under A.A.C. R4-19-403(3).

As a training program instructor, a failure to plan each learning experience, under A.A.C. R4-19-801(C)(8)(a).

As a qualified RN instructor, a failure to be present at all times and during all scheduled classroom, skills laboratory and clinical sessions, under A.A.C. R4-19-801(C)(9).

As a qualified RN instructor, the violation of allowing a nursing assistant or other unqualified persons to provide any instruction, reinforcement, evaluation or independent activities in the classroom or skill laboratory, under A.A.C.R4-19-801(C)(9).

As a qualified RN instructor, a failure to supervise any student who provides care to patients or residents by remaining in the clinical facility and focusing her attention on student learning needed during all student clinical experiences, under A.A.C. R4-19-801(C)(10)(a).

The hearing record does not contain a copy of Respondent’s Answer to the Board’s Complaint.

The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing.

At hearing, the Board presented C.S.N as a witness.

C.S.N. testified that Respondent had not asked her to be an instructor in her place and had not asked her to instruct, but had asked her to assist with “the practical” part. C.S.N. testified that Respondent was not out of the classroom for extended period of time. C.S.N. testified that they would have a 10-hour day, broken into classwork for five or six hours and then, after a break, have the practical work.

Regarding the clinical work at Sierra Winds, C.S.N. testified that Respondent would give a “lesson” regarding being with the Sierra Winds staff. C.S.N. testified that Respondent asked her to be the “lead” of the class, which C.S.N. testified entailed picking up the assignment sheets from the Sierra Winds staff and distributing it among the class so that the class would complete it.

As to time in a conference room, C.S.N. testified:

The conference room we will spend like an hour there, not straight an hour. Maybe we could do 30 minutes and then we go to the floor. Then we come back for meeting if [Respondent] has anything to tell us. That’s where we would always meet.

C.S.N. clarified that, during the clinicals, the amount of time spent in the conference room depended on the day, but was in the morning “for an hour” apparently waiting for the assignment sheets to come.

As to supervision by Respondent during the clinical sessions, C.S.N. testified that Respondent would meet with them in the morning in the conference room and tell them each day about what they were supposed to learn but that Respondent would then go and work with the two caregiver students.

Patricia Chambless, the Director of Nursing at Sierra Winds for 18 years, testified that she had not had any concern about Respondent’s behavior or professionalism during the clinicals at Sierra Winds and that she was not aware of any student or staff complaints about the clinical sessions. Ms. Chambless did not recall whether Investigator George had come to the facility.

Although she could not recall the date or whether it was for this Cohort, Ms. Chambless did recall one time coming in on a weekend to assure that the students, when in training or on their phones, were not doing such “in a place where our residents and their families [would be] thinking that Sierra Winds’ staff was on their phones and not doing their work.” Ms. Chambless testified that she had come in and found that the students “were working on the floor.” In reference to the possible perceived issue, Ms. Chambless indicated that she had talked to their instructor and asked that when the students were doing whatever they were doing on their phones, to be sure that they were not doing so in a common area.

Trent Flowers, a graduate of the CNA and caregiver training programs, testified that during the times he was present at the May 2018 Cohort, he had never heard Respondent ask C.S.N. to be an assistant or to assist her with teaching. Mr. Flowers recalled student T.C. being resistant to being taught because “I know how to do it all.” Mr. Flowers recalled that Respondent would constantly be trying to keep C.S.N. and T.C. on track and working. Mr. Flowers recalled that, when the students were doing things wrong, Respondent would keep trying to show them “the right way.”

Mr. Flowers was not a student in the May 2018 Cohort, he was dropping by “every now and then” to update or refresh his skills in preparation to pass his exam.

Mr. Flowers indicated that he had dropped in “three or four times” and that, at each of those times, Respondent was always in the classroom with the students “unless she had to go make a copy or do some paperwork.” Further, Mr. Flowers indicated that, at the time when he was present when the class was doing the skills laboratory work, Respondent was “always in the skills lab.”

Melissa Weeks, a CNA on staff with Sierra Winds at the time of the May 2018 Cohort, testified that she and two other CNAs were primarily the ones working with the students for the clinical sessions. Ms. Weeks prepared the staff CNA assignments to patients and then Respondent would make student assignments among the staff CNAs. Ms. Weeks testified that Respondent was always at the facility, roaming about to check-in with Ms. Weeks and with the other CNAs and the students. Ms. Weeks opined that the students in the May 2018 Cohort were not “at all” interested in learning what she and the other staff CNAs had to teach them, and she indicated that a few of them would not listen either to her or the other staff CNAs and would disappear not wanting to do any of the hands-on tasks.

Respondent presented various disciplinary and incident reports that she had created regarding some students in the May 2018 Cohort; these reports were not reports required to be created by School policy. Those reports were created at or near the time of the incidents. Respondent’s incident reports for C.S.N. and T.C. differ from the versions provided by C.S.N. and T.C. in their complaints.

Respondent testified that she was always in the classroom, and at the clinical site, and working with one or another of the students acknowledging that no one could work with each student one-on-one at all times. At the clinicals at Sierra Winds, the students were paired up with a Sierra Winds staff member and work with that staff member, during which time Respondent is wandering and checking to see if people were staying on task. After the clinical sessions, Respondent met with each student and, together, they completed the Clinical Documentation Form.

With regard to skills testing of the students, the Skills Check Off Sheet contains initials of both Respondent and “R.A.”

At hearing, Respondent indicated that one of the caregiver students had informed Respondent that C.S.N. had “pulled all my entire class off the floor” and was lecturing them in the conference room. Based on the hearing record, Trent Flowers was the caregiver student who so notified Respondent, at a time when the students were supposed to be on the floor with the staff-CNAs, and witnessed the subsequent heated exchange between C.S.N. and Respondent.

Respondent argued that the students had an application on their cell phones to do practice Board examinations and that they could have been doing such on their breaks. Respondent argued that clinicals, on the floor, are slow and that not every single minute during a clinical is patient care. Additionally, Respondent argued that when students are working on a skill, they should be able to do so alone or in pairs while she helps other students or does paperwork. Respondent argued that, during clinical assignments, she is not the person who is working individually with the student because the student is paired with a staff CNA, and Respondent’s role is to oversee the clinical program. Finally, Respondent argued that a letter of concern or a decree of censure is not appropriate even if what is really being talked about is whether or not she is a bad teacher, which, if true, she argued simply is not harmful or dangerous to the health of a patient or the public.

Respondent argued that Ms. George had made an appointment with Ms. Chambless to come to Sierra Winds and observe the clinicals, due to the complaints received, but had not shown up. Respondent further noted that Ms. George had not interviewed her as to these complaints; Respondent believed that, had Ms. George discussed these complaint with her, the matter would have been cleared up. Respondent argued that the Board proceeded in this matter with partial information. Respondent argued that nothing in the rules prevents a student from assisting other students and she reiterated that she had never asked C.S.N. to teach anybody.

The Board argued that Respondent had allowed C.S.N. to assist with the practical part of the classroom instruction (acknowledging it was due to the language barrier for the African students), had left students unattended for extended periods of time leaving C.S.N. in charge at clinicals, had failed to provide a planned and supervised classroom and clinical learning experience for the May 2018 Cohort, and brought personal drama to the Cohort. The Board requested that the Administrative Law Judge recommend a decree of censure for Respondent pursuant to the disciplinary provisions in A.R.S. § 32-1601(12).

CONCLUSIONS OF LAW

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).

This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

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).

“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).

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).

Problematically, the hearing record does not demonstrate an investigation that brought forth substantiation of the allegations. Based on the hearing record, when Ms. George testified that each of the students had “confirmed” the allegations, the only conclusion that could be drawn is that each of the four students told her the same thing in their interviews that they wrote in their complaints. No other Cohort student was interviewed, and other possible witnesses to the specifics were not interviewed.

The Board failed to establish by a preponderance of the evidence that Respondent brought any personal drama to the Cohort. The allegation of such by one person is simply an allegation.

While Respondent acknowledges that she allowed C.S.N. to assist due to the language barrier, Respondent adamantly denies the allegation that she asked C.S.N. to teach any class or lead the clinicals. Substantiation of that is found when, at hearing, C.S.N. testified that Respondent had not asked her to be an instructor in her place and had not asked her to instruct, but had asked her to assist with “the practical” part, which was never explained on the record. Additionally, when Mr. Flowers called to the attention of Respondent that C.S.N. was “lecturing” the students one day, and Respondent took immediate action to stop such activity and remove C.S.N. from the program; this is a further substantiation that Respondent had not asked or requested C.S.N. to be an instructor. The Administrative Law Judge concludes that assistance with language barrier issues does not rise to the level of allowing another person to provide instruction, reinforcement, evaluation, or independent activity for the other students.

There is no evidence in the hearing record that Respondent had failed “to plan” each learning experience as required under A.A.C. R4-19-801(C)(8)(a). Further, if that were the case, the Administrative Law Judge concludes that the Board would have been concerned that the requirements set forth in A.A.C. R4-19-801(C)(8)(c) and (d) were also not met.

There is simply no support for the allegations that Respondent was not present in the classroom or at the School, or at Sierra Winds for clinicals, for the scheduled program sessions. Therefore, there is also no evidence that supports the allegation of a failure by Respondent to supervise students by failing to remain in the clinical facility and focus attention on the students’ learning needs. If the investigation had hoped to substantiate an allegation that Respondent focused solely on the caregivers at that time, the investigation failed to bring forward any evidence from the caregiver students about their activities at Sierra Winds during the clinicals. Ms. Weeks, the only witness with direct interaction with Respondent during the clinical sessions at Sierra Winds, indicated that Respondent was always there, roaming the facility and checking in with the staff-CNAs and students as they did the clinical tasks.

Based on the foregoing, the Administrative Law Judge concludes that the Board has not demonstrated that Respondent’s acts were a conduct or practice that is or might be harmful or dangerous to the health of a patient or the public, under A.R.S. § 32-1601(26)(d), or that Respondent violated Board rules A.A.C. R4-19-403(1), R4-19-403(3), A.A.C. R4-19-801(C)(8)(a), A.A.C. R4-19-801(C)(9), or A.A.C. R4-19-801(C)(10)(a).

While the Board concentrated on whether or not C.S.N. had provided “instruction” as to an alleged violation under A.A.C. R4-19-801(C)(9), the Administrative Law Judge noted that the students’ Skills Check Off Sheets contain initials of both Respondent and “R.A.” Neither party provided any further explanation in this regard. The Complaint and Notice of Hearing did not set forth a Factual Allegation in this regard. Therefore, the Administrative Law Judge concludes that such evidence shall not be determined in this matter to demonstrate a violation by Respondent for which the Board should take action.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board take no disciplinary action against Respondent in the above captioned matter.

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, June 12, 2020.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing