ALJDEC decisions subject to certification as final

21A-1703117-NUR · State Board of Nursing · 2022-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF (LNA-EQUIVALENT) UNDECLARED CNA CERTIFICATE NO. UCNA1000040366, and

REGISTRY CNA CERTIFICATE NO. CNA1000040366,

ISSUED TO:

CHINYERE NORA EKE,

aka CHINYERE UDEGBE,

RESPONDENT.

No. 21A-1703117-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 6, 2021

APPEARANCES: Elizabeth Christy, Esq., represented Chinyere Nora Eke. Assistant Attorney General Elizabeth A. Campbell represented the Arizona State Board of Nursing.

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. The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 to -1669 and A.A.C. R4-19-101 to -815.

Pursuant to A.R.S. § 32-1664(C), the Board retains jurisdiction to proceed with an investigation or disciplinary proceeding against a regulated party whose license or certificate expired not more than five years before the Board initiates the investigation.

Chinyere Nora Eke (“Respondent”) held Board-issued nursing assistant certification number UCNA1000040366, issued on October 23, 2013 which expired in June 2017.

If the Board determines that a licensee or the holder of a CNA certificate issued before July 1, 2016 (i.e., the LNA equivalent) has committed unprofessional conduct, the Board has the authority, pursuant to A.R.S. § 32-1663 and A.R.S. § 32-1664, to impose disciplinary sanctions for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1669, and A.A.C. R4-19-101 to R-19-815.

On June 23, 2017, Respondent obtained a Registry CNA Certificate No. CNA1000040366, which expired in June 2019.

After July 1, 2016, in regulating certified nursing assistants, the Board may investigate allegations of abuse, neglect, or misappropriation of property and refer criminal violations to the appropriate law enforcement agency. See A.R.S. § 32-1646(C)(1).

In the regulation of registered certified nursing assistants the Board may, pursuant to the Omnibus Budget Reconciliation Act of 1987(P.L.100-203;101 Stat. 1330), as amended by the Medicare 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. See A.R.S. § 32-1646(C)(3).

From September 2015 to March 2017, Respondent was employed as a nursing assistant at Haven Health (“Haven”) in Flagstaff, Arizona.

On March 31, 2017, the Board received an online complaint, with attachments, from the Director of Nursing (“DON”), Lindsey Wenger, at Haven. See Exhibit A, bates 2 through 9. The complaint contained allegations regarding Respondent as to two residents: SW and PB.

Regarding SW, DON’s online complaint indicated that, on March 26, 2017, another CNA witnessed Respondent “roughly” picking up SW’s leg and throwing the leg back onto SW’s [wheelchair] footrest.

March 26, 2017 was a Sunday. Respondent had begun working weekend day shifts in January of 2017. At hearing, Respondent testified that first day shift, which she worked, was from 6:00 a.m. to 2:00 p.m.

The reporting CNA, Donata Reynolds, completed a Witness Statement Form on March 26, 2017; the form indicates the time of the incident to be 9:10 a.m. CNA Reynolds indicated that, while standing against the [open door] of one resident, whom she was waiting to finish self-toileting, she could see into the room across the hall and observed Respondent taking vitals of a resident in Bed 1. CNA Reynolds noted that she could see the front half of Bed 2 resident’s wheelchair. CNA Reynolds indicated that, as Respondent came by the wheelchair, Respondent picked up SW’s leg “roughly and threw [it] with a force back on SW’s footrest.” CNA Reynolds noted that SW “screamed a little when her leg hit the footrest.”

CNA Reynolds further wrote that she called out to Respondent “[b]e gentle with her leg” and that, when Respondent was pushing the vital cart out of the room, Respondent told her “not intentionally.” CNA Reynolds proceeded to report her observations to “Amber RN.”

LPN Amber Matheson completed a Witness Statement Form on March 26, 2017 at 9:30 a.m. regarding CNA Reynold’s report to her. LPN Matheson reported the allegations to the charge nurse, and noted that Respondent was escorted out of Haven.

Regarding PB, the online complainant indicated that, when PB was interviewed by the DON, PB had complained, generally, of Respondent’s rough handling during adult brief and clothing changes, forcible feedings despite refusals of need for assistance, and lowering the tray table in a “forceful” and intentional manner. Additionally, PB told DON that, at one point during the care, when she told Respondent that she was going to “tell”, Respondent had stated to PB “I don’t care” and had clipped PB’s call light out of her reach.

The complaint received by the Board included a complaint form dated March 26, 2017 that had been filled out by LPN Velde regarding complaints from PB. This complaint form stated that the complaints were from incidents on March 25, 2017 PM and March 26, 2017 AM. The complaints were: (a) Respondent brought PB the evening meal tray but had not brought drinks even though PB requested coffee and juice; (b) Respondent had moved the bedside table and “pinned” PB’s hands under the table against her lap; (c) during assisted dining, Respondent “pushes food into her mouth hard and too much; and, (d) when that happened, PB told Respondent that she was going to tell on her and Respondent had replied “I don’t care” and moved the call button clipping it to the wall.

Following notification about the allegations, DON interviewed various residents on March 26, 2017; at hearing she indicated that she interviewed residents for whom Respondent had provided care that day.

On March 29, 2017, when law enforcement came to Haven, DON informed the officer that when she had interviewed SW on March 26, 2017, and SW denied that it had happened. See Exhibit 3. DON informed the officer that neither PB nor SW or SW’s daughter wanted to press charges.

The Board completed its investigation at some point in 2020. See Exhibit D. At hearing, Bonnie Richter, Senior Investigator for the Board, testified that she did not interview SW, PB, or Respondent but recalled that she had interviewed DON and CNA Reynolds.

In June 2017, Ms. Richter did receive, from Respondent, Respondent’s response to the Investigative Questionnaire. See Exhibit C.

In her June 2017 response, Respondent noted that SW was always in pain and frequently cried out “ye, ye” while she is being helped in repositioning. As to the allegations, Respondent wrote that, “as gently and carefully as I could, I moved her leg back onto the footplate” but that, as she picked up the foot, SW had cried out briefly and then seemed to be fine. Respondent noted that CNA Reynolds would not have been able to see this action and that as Respondent left the room, she had asked CNA Reynolds not to yell at her because SW was fine.

In her June 2017 response, Respondent indicated that the PB allegations were not true. Respondent noted that the accusation about force-feeding had been on a day when her family had been present (and she would not have fed PB) and that the accusation about not bringing her liquids was false because the charting had showed that PB had coffee with that meal. Respondent denied ever having lowered the tray onto PB’s hands and ever taking the call light out of PB’s reach. Respondent further indicated that it would be required to make a report of such an action and she knew of no such report. Respondent did acknowledge that, in her early interactions with PB (in January of 2017), Respondent had been told to wake up PB and get her dressed for physical therapy and that PB had become very upset and was crying about being awakened because she wanted to stay in her room; Respondent indicated that she had received assistance from another aide to complete the task that day as PB would not let her help.

At the Board meeting in November of 2020, the Board determined to forward the matter for an administrative hearing regarding whether grounds exist to take disciplinary action against Respondent’s certifications.

The Board’s Complaint and Notice of Hearing dated August 2, 2021, contained three allegations that Respondent had violated standards of care.

a. Respondent violated the standard of care that nursing assistants must exercise care and obtain assistance if necessary when repositioning vulnerable patients in order to avoid causing pain or injury when, on March 26, 2017, Respondent caused pain to patient SW by roughly adjusting patient’s leg.

b. Respondent violated the standard of care, which requires that nursing assistants exercise care when handling vulnerable patients in order to avoid causing pain when, on March 26, 2017, when tasked with providing patient PB with meal assistance, Respondent positioned the tray on top of the patient’s hands, causing the patient pain.

c. Respondent violated the standard of care requiring that nursing assistants place call lights within a patient’s reach when, on March 26, 2017, Respondent positioned Patient PB’s call light out of Patient PB’s reach, which made it difficult for Patient PB, who could not call out for assistance, to alert facility staff when she needed help.

The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on December 6, 2021.

The Board submitted 4 exhibits [designated as Exhibits A through D] and presented the testimony of Donata Reynolds, a CNA at Haven; Lindsey Wenger, Director of Nursing at Haven; and Bonnie Richter, Senior Investigator at Board.

Respondent presented 4 exhibits [designated as Exhibits 1 through 4], testified on her own behalf, and presented the testimony of Michelle Leigh Hubbard, CNA (a former employee at Haven).

At hearing, Respondent testified that while she took the vitals on SW’s roommate, SW asked her to reposition her leg. Respondent testified that she approached SW and got down in front of SW and her wheelchair communicating to SW that she was going to reposition the leg and, when she did reposition the leg, that SW cried out “yea, yea.” Respondent argued that CNA Reynolds did not have a clear view of the assist. Respondent testified that, after the assist, Respondent had made sure that SW was comfortable and if she was okay; Respondent testified that SW had stated to her “yes” she was okay.

At hearing, Respondent testified that, on March 26, 2017, she was not assigned to care for resident PB nor was she assigned to pass the food trays. Additionally, Respondent stated that she had been escorted out of Haven prior to the lunch meal. Respondent testified that it was CNA Reynolds who was assigned to PB on March 26, 2017; based on CNA Reynolds’ Witness Statement, CNA Reynolds was providing care to PB on March 26, 2017.

Respondent further testified that she did not provide meal service to PB on March 25, 2017.

DON interviewed residents in the afternoon on March 26, 2017. DON testified that PB had been one of the residents for whom Respondent had provided care on March 26, 2017. DON testified that March 26, 2017 was the day of the tray being lowered onto PB’s hands and the removal of the call light from PB’s reach. DON herself observed the call light clipped to the curtain behind the side of PB’s bed, “completely out of [PB’s] reach.” DON testified that PB had clearly identified Respondent as the CNA to whom PB was referring.

DON reported the alleged abuse incident to law enforcement, to Adult Protective Services, and to the Arizona Department of Health Services.

Law Enforcement took no action because neither PB nor SW wanted to press charges. See Exhibit 3.

Adult Protective Services, regarding abuse allegations as to SW, did not substantiate abuse allegations against Respondent. See Exhibit 2.

DON testified that the force-feeding allegation was perhaps not on March 26, 2017 but was more likely to have been a feeding assist that took place in the Haven dining area.

Michelle Hubbard, a CNA who worked at Haven for about five years until May of 2017, provided an overview of the workplace culture at Haven as being mostly Native American and that relationships between workers at Haven tended to be according to their ethnic groups. Ms. Hubbard indicated that the more traditional, older, generation of Native Americans simply preferred to be taken care of by Native Americans and not by Anglos or African Americans. Ms. Hubbard described the tendencies of residents SW and PB.

Regarding PB, Ms. Hubbard indicated that PB preferred to be given care by Native Americans rather than Anglos or African Americans; she further indicated that part of the reason for that had to do communication in that PB did not understand Respondent due to her accent. PB was very particular about how things needed to be done for her and was vocal about things: who she wanted to do things for her; who she wanted to visit her; and what she wanted to eat.

Regarding SW, Ms. Hubbard indicated that SW was “always” in pain, was “always yelling and upset about something,” and that SW would yell out at all times of being cared for.

Regarding Respondent, Ms. Hubbard testified that Respondent was good with the residents and was patient and understanding with the residents even when they “snapped” at her. Ms. Hubbard further indicated that she had never seen Respondent “rough handling” a resident.

The Board argued that the hearing record demonstrated abuse by Respondent and the Board requested that the allegations be substantiated, with the result that Respondent’s Nursing Assistant Certification UCNA1000040366 (expired in June 2017) be revoked and that a substantiated complaint be found against Respondent’s Registry CNA Certificate No. CNA1000040366 (expired in June 2019).

Respondent argued that the Board has not met its burden in that the case is built on hearsay. Respondent argued that DON’s testimony is unreliable as she did not observe any of the actions that were alleged and has based the Haven complaint on hearsay and second-hand reports.

Respondent argued that, as to the SW allegations, Adult Protective Services, an agency charged with investigating adult abuse allegations, found the complaint to be unsubstantiated after its investigation and that SW herself denied the incident happened and declined to press charges. Respondent argued that Ms. Reynolds’ view of the front of the wheelchair was obstructed and she could not have seen how Respondent handled SW’s leg because Respondent had crouched down in the front of the wheelchair to reposition the leg. Finally, Respondent argued that everyone agreed that SW was known to be in chronic pain at all times and would call out in pain as to daily care acts.

As to the PB allegations regarding a meal tray and the call light/button, Respondent argued that these are false allegations because Respondent was not assigned to assist PB on March 26, 2017, did not bring her a meal tray on March 25, 2017 or on March 26, 2017, and had been escorted out of the facility on March 26, 2017 in the morning shortly after 9:30 a.m. Respondent argued that any number of people could have come into PB’s room on March 26, 2017 and that DON had not come into PB’s room until sometime in the afternoon when she observed the call light/button clipped to the curtain.

Respondent argued that the Certification UCNA1000040366 should not be revoked. Respondent argued that the evidence does not support the allegations and the allegations should not be substantiated against Registry Certification CNA1000040366.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction under A.R.S. §§ 32-1606, 32-1663, and 32-1664.

The Board bears the burden of proof and must establish cause to discipline Respondent’s certifications 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 Vazzano 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).

The Board argues that Respondent’s alleged actions constitute unprofessional conduct pursuant to A.R.S. § 32-1601(26)(d), (h), and (j) and A.A.C. R4-19-814(9), (11), and (32), and that cause exists to revoke Respondent’s Nursing Assistant Certification UCNA1000040366 (expired in June 2017).

The Board argues that, pursuant to A.R.S. § 32-1664(C)(1) and (3), it has demonstrated that a substantiated complaint of abuse should be found against Respondent’s Registry CNA Certificate No. CNA1000040366 (expired in June 2019).

Based on the hearing record, the Administrative Law Judge concludes that the Board has failed to establish that Respondent “roughly” adjusted resident SW’s leg. The evidence is conflicting regarding how the act of repositioning SW’s leg was done and whether it was done forcefully; CNA Reynolds states that she saw the repositioning and Respondent states that her view of the front of the wheelchair was blocked because Respondent was knelt down in front of the wheelchair to do the repositioning. However, the evidence is consistent that SW was in chronic pain and would yell out at all times when being cared for.

Based on the hearing record, the Administrative Law Judge concludes that the Board has failed to establish that Respondent provided any meal service on March 26, 2017 to resident PB and, thus, has failed to demonstrate that Respondent positioned a meal tray on top of PB’s hand or moved the call light/button. While the record provides little information regarding March 25, 2017, Respondent denies being assigned to PB on March 26, 2017 and denies providing any meal service to PB on either March 25, 2017 or March 26, 2017. Therefore, based on the hearing record, one must reasonably conclude that CNA Reynolds was caring for PB on March 26, 2017 as CNA Reynolds was toileting PB and gave no indication at hearing that PB was not her care-responsibility that day.

Accordingly, the Board failed to established by the preponderance of the evidence that Respondent engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(d), (f), (g), and (j); and A.A.C. R4-19-403(1), (7), (9), (12), and (31) and the Administrative Law Judge concludes that Respondent’s Nursing Assistant Certification UCNA1000040366 (expired in June 2017) should NOT be revoked.

Additionally, the Board failed to establish that the allegation of abuse by Respondent should be substantiated and, therefore, the Administrative Law Judge concludes that a substantiated complaint of abuse should NOT be found against Respondent’s Registry CNA Certificate No. CNA1000040366 (expired in June 2019).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that Respondent’s appeal be granted and that no discipline be issued as to either Respondent’s Nursing Assistant Certification UCNA1000040366 (expired in June 2017) or Registry CNA Certificate No. CNA1000040366 (expired in June 2019).

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.

-54864001

001

-137160-45720000Done this day, January 19, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing