ALJDEC decisions subject to certification as final

21A-20200416-NUR · State Board of Nursing · 2021-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REGISTERED

NURSE LICENSE NO. RN206381 AND (LNA EQUIVALENT) UNDECLARED CERTIFIED NURSING ASSISTANT CERTIFICATE NO. UCNA1000032277,

ISSUED TO:

FRANCISCO MEDINA,

RESPONDENT

No. 21A-20200416-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 9, 2020; the record closed on December 28, 2020

APPEARANCES: Assistant Attorney General Sunita Krishna represented the Arizona State Board of Nursing. Respondent Fransico Medina failed to appear.

Witnesses: Senior Investigator David Ellson; M.A.; Jessica Leclerc, Psy.D.

Observer: David Friedman, Esq.

Court Reporter: Mary Davis

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

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 A.R.S. §§ 32-1606, 1663, and 1664. The Board also has the authority to determine whether licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667.

Respondent Francisco Medina (“Respondent”) holds Board-issued Registered Nurse (“RN”) license number RN206381 and undeclared Certified Nursing Assistant (“CAN”) Certificate number UCNA1000032277.

On January 28, 2012, Respondent entered into a Consent Agreement and Order Number 1004062 for a Decree of Censure on his CNA Certificate for Domestic Violence Assault charges in Tucson Municipal Court. See Exhibit 1.

On or about April 8, 2020, the Board received a Complaint from M.A., Respondent’s adoptive daughter, in which M.A. notified the Board that Respondent had a pending criminal case with the Pinal County Attorney’s Office. See Exhibit 2. M.A. is the victim in that case. Id.

The Board obtained Tucson Police Department Report (“Report”) in Case Number [number redacted]. See Exhibit 3. That Report indicated that on November 9, 2018, M.A. reported that she was sexually abused by Respondent multiple times between the ages of 11 and 18, between 2001 and 2008, in Pima County, Arizona. Id. at 20. The Report further provided that on September 12, 2019, M.A. and police detectives made a recorded confrontation call to Respondent regarding the sexual abuse complaint. Id. at 27-29. The Report summarized the call and provided specific details about that call. Id.

On February 25, 2020, in Pima County Superior Court Case Number CR20201022, Respondent was indicted on 18 counts of sexual conduct with a minor, constituting 18 class two felonies. See Exhibit 4.

On March 3, 2020, Respondent was arrested.

Respondent never reported the felony charges to the Board, notwithstanding the statutory and regulatory requirement to do so within ten (10) days of being charged.

M.A. testified at hearing consistently with the information she provided to police and that is contained in the Report. M.A. testified that she was adopted by Respondent and his wife when she was approximately two years old. M.A. testified that Respondent began to sexually abuse her when she was 11 years old while in a swimming pool with Respondent. M.A. testified that the incidents of sexual abuse occurred two to three times per week for seven years wherein Respondent would rape her. When M.A. turned 18, she moved in with a friend, and then moved in with her aunt and uncle.

M.A. testified at length about the confrontation call made to Respondent on September 12, 2019, and that is documented in the Report.

M.A. testified regarding the lasting and devastating impact the sexual abuse has had on her and how it continues to affect her life. M.A. explained that she came forward when she did because she wants to protect other people and that it is “upsetting that he is a nurse because he couldn’t even take care of his own kids,” and she believes Respondent is not safe to care for others.

David Ellson, a senior investigator for the Board and former police officer, testified that he investigated this Complaint. Investigator Ellson testified that Respondent did not notify the Board of the charges against him, but rather M.A. did. Investigator Ellson further testified regarding the confrontation call documented in the Report, that Respondent was “apologetic and all but admitted” to the accusations. Investigator Ellson opined that “if it didn’t happen, [Respondent] would have denied and been angry.” Investigator Ellson testified that M.A. was consistent and credible.

Investigator Ellson testified that Respondent never notified the Board regarding the February 25, 2020 Summons and Direct Indictment issued to Respondent as required by statute and rule, and that such failure demonstrates Respondent’s lack of candor and that Respondent is not able to be regulated. See Exhibit 4.

The Board opened an investigation into the filed Complaint against Respondent and on July 30, 2020, issued an Interim Order to Respondent to complete a psychosexual evaluation to be conducted by a Board approved licensed psychologist, and to include any additional testing deemed necessary by the evaluator, to be completed within 30 days. See Exhibit 5.

Respondent failed to comply with the Interim Order within 30 days.

On September 23, 2020, the Board issued a Notice of Charges to Respondent which included factual allegations and alleged violations for failure to comply with the Board’s Interim Order. Id.

On or about October 1, 2020, Respondent submitted to a psychological evaluation with Board-approved evaluator, Jessica Leclerc, Psy.D. See Exhibit 6. Dr. Leclerc testified regarding the evaluation and her conclusions. Respondent was less than truthful during the evaluation having told Dr. Leclerc that he was never arrested, when in fact he was arrested on March 3, 2020. Respondent also told Dr. Leclerc that his domestic violence charge was dismissed because the victim recanted, when in fact, the charges were dismissed after a Diversion program was completed. Dr. Leclerc testified that Respondent fostered 48 children in nine years which is a “very high number.” Regarding the results of the evaluation, Respondent “endorsed deviant sexual arousal to multiple items that depicted voyeurism and one items [sic] related to frottage.” Id. at 82. Dr. Leclerc expressed that engaging in both voyeurism and frottage would be easy to do in a hospital setting and a patient would be unaware of such behavior.

Dr. Leclerc considered the results of Respondent’s polygraph examination. Respondent was asked the following two questions to which he responded, “No:”

As an adult, did you have hands on sexual contact with anyone age 17 or younger?

Did you have hands on sexual contact with anyone age 17 or younger as an adult?

Id. at 86.

The polygraph examiner rendered the result of the polygraph examination, “Significant Reactions” and concluded that Respondent failed the examination. Id. at 87-88.

Dr. Leclerc diagnosed Respondent with a DSM-5 diagnosis of V65.49 Sex Counseling and concluded the following:

With the current information available, it appears that [Respondent] is not safe to practice nursing at this time. While current objective test results indicate he does not hold deviant sexual interests. His self-reported interest in deviant sexual behaviors, including voyeurism and frottage is concerning. Additionally, there is concern regarding the current sexual abuse allegations, as well as reported history of sexual affairs that have negatively impacted his relationships. Of most concern is the presence of significant responses on the current polygraph; however it is positive his current risk for offense falls in the Blow Average Risk range. His history of corrective action and demotion in his current employment is also an area of concern as it reflects some problems associated with unprofessionalism and lack of appropriate boundaries.

Id. at 90.

On November 3, 2020, the Board issued a Notice of Board Consideration of Proposed Findings of Public Emergency and Order of Summary Suspension to be considered at the Board’s November 12, 2020 meeting. Id. at 68. At the meeting, the Board considered Investigator Ellson’s Update Investigative Report that included the evaluation findings that Respondent is not safe to practice. See Exhibit 6. Investigator Ellson’s Update Investigative Report included the Psychosexual Evaluation Report. Id. at 73-91.

On or about November 24, 2020, the Board issued a Complaint and Notice of Hearing, Summary Suspension Expedited Hearing, that alleged violations of A.R.S. § 32-1601(26)(d), (h), (i), and (j), A.A.C. R4-19-403(2) and (28), A.A.C. R4-19-814(23), (29), and (33), and A.R.S. § 32-3208(A), (B), and (D).

The Notice of Hearing was sent via certified mail to Respondent at his address of record. On November 25, 2020, the Office of Administrative Hearings sent an Order to the parties advising that the hearing would be conducted by video or telephone and provided the Google Meet link for the hearing. That Order was sent to Respondent at his address of record as well as electronically.

Respondent did not request that the hearing be continued prior to the hearing convening. Although the start of the hearing was delayed approximately 15 minutes to allow Respondent additional time, he did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed prior to the hearing convening. Consequently, Respondent did not present any evidence to defend his Registered Nurse license or CNA certificate.

CONCLUSIONS OF LAW

The Notice of Hearing that the Board mailed to Respondent at his 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 registered nurse license and CNA certificate 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 unprofessional conduct and conduct that is or might be harmful to the health of a patient or the public as alleged in the Complaint and Notice of Hearing. As such, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1663 and A.R.S. § 32-1664.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Francisco Medina’s Registered Nurse License number RN206381 and undeclared Certified Nursing Assistant Certificate number UCNA1000032277.

It is further recommended that the Board revoke Respondent Francisco Medina’s Registered Nurse License number RN206381 and undeclared Certified Nursing Assistant Certificate number UCNA1000032277.

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, January 7, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

-54864001

001

-137160-45720000