ALJDEC decisions subject to certification as final

21A-201912557-NUR · State Board of Nursing · 2021-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF APPLICATION

FOR NURSING ASSISTANT LICENSURE BY:

ANGELINA CHAVARRIA

AKA: Angelina Chavez,

APPLICANT.

No. 21A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2021.

APPEARANCES: Angelina Chavarria appeared, representing herself. Assistant Attorney General Elizabeth Campbell represented the Arizona Board of Nursing (“Board”).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Angelina Chavarria holds certified nursing assistant (CNA) Certificate No. [number redacted], effective August 23, 2016. See Exhibit 7.

Because her employer was requiring CNAs to obtain licensed nursing assistant (“LNA”) status, on or about November 21, 2019, Angelina Chavarria (“Applicant”) submitted an online application (“Application”) for nursing assistant licensure by examination. A successful completion of the licensure and examination process would result in licensure by the Board as a LNA.

On the Application, Applicant responded “No, none of the above applies” to the following eligibility question:

For any criminal offense not previously reported to the board, including those pending appeal, have you: been cited or charged with any violation of the law? Pled nolo contendere, no contest or guilty? Been arrested or have any pending criminal charges? (You may only exclude minor traffic violations, but must report at DUI charges/convictions).

Based upon its investigation, the Board discovered three criminal charges that had not been disclosed on the Application:

On April 7, 2008 a conviction (pursuant to a guilty plea) of DUI after an October 5, 2007 traffic stop: Glendale City Court Case No. TR-[number redacted]. See Exhibits 5 and 6. See Exhibits 3 and 4.

On May 28, 2008, an arrest for Assault and Criminal Damage: Glendale Police Report No. I08059043. See Exhibit 3.

On August 9, 2009, a conviction (pursuant to a guilty plea) of a Class 1 Misdemeanor, Driving or being in actual physical control, with an alcohol blood concentration of .15 or more within 2 hours of drinking: Phoenix Municipal Court Complaint No. 13791870. See Exhibits 5 and 6.

On December 31, 2019, the Board sent an Arrest/Charge/Citation Questionnaire (“Questionnaire”) to Applicant. See Exhibit 2. The Questionnaire requires that, for each incident, regardless of the outcome, that an applicant provide police and court records (as indicated on the Questionnaire) are to be provided, as well as an explanatory statement.

Applicant failed to return the Questionnaire within 30 days.

The Board’s Investigator, Anna Anderson, spoke with Applicant in February 2020; Investigator Anderson indicated that Applicant had stated she was unable to provide the law enforcement records due to it being a felony to do so. Applicant expressed to the Board’s Investigator her displeasure at being investigated on old incidents and expressed that she had not harmed any patients.

On June 4, 2020, the Board received a Questionnaire from Applicant. See Exhibit 2. While Applicant summarily listed three dates of incidents, she did not include any of the documents required to be submitted. Therefore, as submitted, the Questionnaire was incomplete.

The Investigator Anderson contacted Applicant’s then-current employer, Hospice of the West (“HOW”), and spoke with Stacy Doud, a patient care coordinator. See Exhibit 7 at 4 (bates 83). Doud gave Applicant a good review, noting no excessive absences or tardiness, being level headed and getting her work (and more) done when needed. Doud confirmed that HOW was requiring all of its CNAs to obtain their LNAs by the time their current certificate expires.

The Investigator Anderson spoke with Applicant telephonically on July 29, 2020. See Exhibit 7. Applicant acknowledged that the three incidents had occurred, explaining the circumstances and also explaining that she no longer drinks heavily, that she has learned from those past experiences, that she has a family to think about now, and that she has learned/practices some calming techniques when she becomes angry or frustrated. Applicant noted that she had paid her fines, taken the classes, and performed the public service as she had been ordered to do at those times.

After consideration by the Board at its September 24, 2020 meeting, the Board voted to continue its investigation through an allowance for Applicant to undergo, within 45 days, a comprehensive psychological evaluation, including an anger management evaluation and a substance abuse disorder evaluation, and any other testing deemed appropriate by a Licensed Psychologist. See Exhibit 9.

In its letter dated September 25, 2020, the Board advised that a failure to complete the evaluation within 45 days would result in a denial of the Application.

Applicant failed to schedule and complete the evaluation.

On December 23, 2020, the Board issued its ORDER OF DENIAL which denied the Application and revoked “any temporary license issued to Applicant.” See Exhibit 10.

The matter was not resolved informally and was forwarded to the Tribunal for administrative hearing.

At hearing, Applicant argued that these prior circumstances, from 13 years in the past, no longer apply or impact her life as she had been gainfully employed in the healthcare field and was trying to continue to provide for her family. She described herself as being a different person, no longer so young and making such mistakes, but that she would understand if the Board took such an active concern if something like this had happened while she was working as a CNA. Applicant believed that she had owned up to her past mistakes and that she should be able to move forward with this licensure.

Applicant noted that the cost of the evaluation or representation had been an impediment in this process.

Applicant recalled discussing the question on the Application with her husband who believed that things more than 7 years old were not on her record anymore and with her mother who had said that she probably had to disclose the old incidents. Appellant essentially indicated that, given the past incidents and their outcomes or dismissals, she had not really understood the question; she further indicated that she subconsciously had recalled answering “Yes” on the Application, but agreed that the answer on the Application was “No.”

At hearing, the Board argued that, on consideration of the evidence and the records, the Tribunal should affirm the Boards denial of the Application.

CONCLUSIONS OF LAW

The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to Arizona Revised Statutes (“A.R.S.”) §§ 32-1606, 32-1663, 32-1664, 41-1092.11(B). 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 Arizona Administrative Code (“A.A.C.”) Rules 4-19-101 to -815. Therefore, this matter lies within the Board’s jurisdiction

The Board bears the burden of proof and must establish cause to deny licensure or invalidate any temporary licensure or certification 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).

The Board established by a preponderance of the evidence that Respondent engaged in the conduct that was alleged in the Complaint and Notice of Hearing. Respondent presented no credible evidence to dispute the conduct as charged.

In the Board’s ORDER OF DENIAL, Applicant was determined to have engaged in unprofessional conduct as defined by A.R.S. § 32-1601(26)(a), A.R.S. § 32-1601(26)(d), A.R.S. § 32-1601(26)(g), A.R.S. § 32-1601(26)(h), and A.R.S. § 32-1601(26)(j), all of which are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664.

In the Board’s ORDER OF DENIAL, Applicant was determined to have engaged in unprofessional conduct as defined by A.A.C. R4-19-814(16) and A.A.C. R4-19-814(26), each of which are grounds for disciplinary action pursuant to A.R.S. §§ 32-1663 and 32-1664.

Following confusion about the Application’s question and the need to, or ability to, disclose her past arrest and convictions, Applicant seemingly reluctantly acknowledged her history. It is understandable that Applicant believes she has turned her life around and that the past is the past; however, in the context of professional licensure, the Board has a duty to the public to regulate the licenses or certifications that it has granted or that it will grant. Unfortunately, Applicant appears to have been unaware of the Board’s authority and the Administrative Law Judge concludes that this affected her reactions to the inquiries and investigation following her Application. When looking to the more recent years (i.e., since the last incident in 2009), the Board did not discover any further criminal conduct by Applicant. Applicant’s past drinking-conduct has been attenuated by time and she indicates she no longer drinks. Applicant’s employer provided a good review of Applicant’s work performance and work conduct. Nevertheless, providing inaccurate or false information, or any refusal or reluctance to provide the information, when such is requested by the Board, the nursing licensing authority, raises significant concerns as to whether Applicant would be able to be regulated by the Board once licensed.

Applicant appeared sincere in her assertions that she has turned her life around. Applicant’s recent employer provided no indication of any issue with the work-practice of nursing care that Applicant is able to provide and had been providing. The Administrative Law Judge concludes that while the Board has demonstrated the past convictions were not disclosed, the hearing record has not demonstrated a present risk of potential harm to patients and the public as a result of Applicant’s 2007, 2008 and 2009 actions. The Board has the authority to impose limitations, requirements and conditions on licensure and the Board has discretion with regard to imposition of disciplinary sanctions regarding licensure under A.R.S. § 32-1663(A) and (D).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board reconsider its denial of application by examination and set conditions for LNA licensure for Applicant which, if met, would allow future Board consideration of licensure.

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, March 30, 2021

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing