ALJDEC decisions subject to certification as final

21F-202100060-DEN · Board of Dental Examiners · 2021-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Roger L. Jackson, D.D.S..

Holder of License No. D004758

For the Practice of Dentistry

In the State of Arizona.

and

Rebekah A. Chandler, RDH

Holder of License No. H06607

For the Practice of Dental Hygiene

In the State of Arizona.

No. 21F-[number redacted]-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 28, 2021, with the record held open to receive the court reporter’s transcript

APPEARANCES: The Arizona Board of Dental Examiners was represented by Assistant Attorney General Seth T. Hargraves. Respondents Roger L. Jackson, D.D.S., and Rebekah A. Chandler, R.D.H., did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Board of Dental Examiners (Board) has authority to regulate and control the practice of dentistry and dental hygiene in the State of Arizona. The Board is charged with enforcing the provisions of the Dental Practice Act, A.R.S. § 32-1201 et seq.

Roger L Jackson, D.D.S., is the holder of License No. D004758 issued by the Board to practice as a Dentist in the State of Arizona, which was set to expire on June 30, 2021.

Rebekah A. Chandler, R.D.H., is the holder of License No. H06607 issued by the Board to practice as a dental hygienist in the State of Arizona, which was set to expire on June 30, 2021.

[number redacted]-MP

On or about July 31, 2019, the Board opened complaint number [number redacted]-MP against Dr. Jackson after receiving a Medical Malpractice Payment Report from the National Practitioner Data Bank regarding an incident which occurred during the course of dental treatment provided by Dr. Jackson.

Following the Board’s investigation, Dr. Jackson entered into a Disciplinary Consent Agreement with the Board on November 13, 2020, to resolve the matter.

Pursuant to the terms of the Consent Agreement, Dr. Jackson was required to take and complete twelve (12) hours of continuing education, consisting of six (6) hours of continuing education in the area of Implants; and six (6) hours of continuing education in the area of Diagnosis. The continuing education was required to be pre-approved by the Board’s Executive Director, and completed within six months of the effective date of the Consent Agreement. The agreement also provided that in the event Dr. Jackson failed to timely complete the continuing education, the Board could initiate disciplinary proceedings for non-compliance with a Board order.

On or about March 17, 2021, Dr. Jackson submitted a list of seven continuing education courses for pre-approval.

On or about March 18, 2021, Board staff notified Dr. Jackson that the courses had been pre-approved. In the notification, Dr. Jackson was reminded of his obligation to provide the Board with a certificate of completion within 5 to 10 days from the date of completion of the courses.

Dr. Jackson failed to provide proof that he completed the required continuing education courses.

[number redacted]

On or about March 11, 2021, the Board received an anonymous complaint alleging substance abuse by Dr. Jackson.

Consistent with the Board’s standard procedures, the Board staff reached out to Dr. Jackson on or about March 16, 2021, and asked him to voluntarily undergo a urinalysis test by 5:00 p.m. on March 18, 2021. Dr. Jackson was told that this would be confidential if he voluntarily tested. Dr. Jackson agreed to the test.

At approximately 5:50 p.m. on March 18, 2021, Ms. Chandler (who was also named in the complainant and was married to Dr. Jackson) sent an email reply to the Board for both of them. The email addressed concerns that had nothing to do with having a test and deflected to others.

On the morning of March 19, 2021, Board staff replied to the email informing Dr. Jackson and Ms. Chandler that their response did not absolve them of the need to get tested and that the Board needed the test results by 5:00 p.m. on March 19, 2021.

At approximately 4:52 p.m. on March 19, 2021, Ms. Chandler sent an email to Board staff stating that she and Dr. Jackson had called and scheduled a time to see one of the assessors.

Board staff responded to the email informing them that the request was to have the test completed by 5:00 p.m. on March 19, 2021, not to schedule an appointment by that time. Staff also requested that Ms. Chandler provide the assessor’s name and the date and time of the testing.

Ms. Chandler did not respond to the email.

On or about April 2, 2021, the Board voted to issue Dr. Jackson an Interim Order.

On or about April 6, 2021, the Board served an Interim Order for Drug Test Screening & Substance Use/Abuse Evaluation (Interim Order) to Dr. Jackson via regular and certified mail to his address of record, and via electronic mail to his email address. Dr. Jackson received the Interim Order at 1:23 p.m. on April 9, 2021.

The Interim Order required Dr. Jackson to provide a urine sample and a hair sample to a drug screening laboratory, no later than 5:00 p.m. on April 9, 2021, to test for legal and illegal substances, including alcohol and controlled substances, and to authorize and course to have the testing facility submit the test results directly to the Board.

The Interim Order also required Dr. Jackson to undergo a substance abuse/use evaluation with one of the evaluators on the list of Board Approved PHP Assessors, and provide the Board’s Executive Director with the name of the assessor and date of the evaluation within three days of the Interim Order.

Dr. Jackson failed to timely comply with the Interim Order

As of the date of the hearing, Dr. Jackson had not provided the Board with the results of any drug test screenings; notified the Board of the date and location of his substance abuse/us evaluation; or obtained the substance abuse/use evaluation.

[number redacted]

On or about March 11, 2021, the Board received an anonymous complaint alleging substance abuse by Ms. Chandler.

Consistent with the Board’s standard procedures, the Board staff reached out to Ms. Chandler on or about March 16, 2021, and asked him to voluntarily undergo a urinalysis test by 5:00 p.m. on March 18, 2021. Ms. Chandler was told that this would be confidential if se voluntarily tested. Ms. Chandler agreed to the test.

At approximately 5:50 p.m. on March 18, 2021, Ms. Chandler sent an email reply to the Board. The email addressed concerns that had nothing to do with having a test and deflected to others.

On the morning of March 19, 2021, Board staff replied to the email informing Ms. Chandler that her response did not absolve her of the need to get tested and that the Board needed the test results by 5:00 p.m. on March 19, 2021.

At approximately 4:52 p.m. on March 19, 2021, Ms. Chandler sent an email to Board staff stating that she had called and scheduled a time to see one of the assessors.

Board staff responded to the email informing Ms. Chandler that the request was to have the test completed by 5:00 p.m. on March 19, 2021, not to schedule an appointment by that time. Staff also requested that Ms. Chandler provide the assessor’s name and the date and time of the testing.

Ms. Chandler did not respond to the email.

On or about April 2, 2021, the Board voted to issue Ms. Chandler an Interim Order.

On or about April 6, 2021, the Board served an Interim Order for Drug Test Screening & Substance Use/Abuse Evaluation (Interim Order) to Ms. Chandler via regular and certified mail to her address of record, and via electronic mail to her email address. Ms. Chandler received the Interim Order at 1:23 p.m. on April 9, 2021.

The Interim Order required Ms. Chandler to provide a urine sample and a hair sample to a drug screening laboratory, no later than 5:00 p.m. on April 9, 2021, to test for legal and illegal substances, including alcohol and controlled substances, and to authorize and course to have the testing facility submit the test results directly to the Board.

The Interim Order also required Ms. Chandler to undergo a substance abuse/use evaluation with one of the evaluators on the list of Board Approved PHP Assessors, and provide the Board’s Executive Director with the name of the assessor and date of the evaluation within three days of the Interim Order.

Ms. Chandler failed to timely comply with the Interim Order

During the course of the Board’s investigation, Board staff discovered that Ms. Chandler had criminal charges pending in Maricopa County Superior Court Case No. CR2018-146397, after having been arrested by Scottsdale Police on January 16, 2017, on the charges of Possession or Use of Prescription-only Drugs and Possession or Use of Narcotic Drugs. According to Court records, there was an active arrest warrant for Ms. Chandler.

On or about June 16, 2021, the Board issued a Complaint and Notice of Hearing to Dr. Jackson alleging that he had engaged in unprofessional conduct in violation of A.R.S. § 32-1263(A)(1), specifically A.R.S. § 32-1201.01(22) and (26).

On or about June 16, 2021, the Board issued a Complaint and Notice of Hearing to Ms. Chandler alleging that she had engaged in unprofessional conduct in violation of A.R.S. § 32-1290 and A.R.S. § 32-1263(A)(1), specifically A.R.S. § 32-1201.01(22) and (26); and A.R.S. § 32-3208.

A virtual hearing in this matter was held via Google Meet by the Office of Administrative Hearings on July 28, 2021. Neither Dr. Jackson nor Ms. Chandler requested to appear in person at the duly noticed hearing. Although the start of the hearing was delayed 30 minutes to allow Dr. Jackson and Ms. Chandler additional time to connect to the hearing, they 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. Consequently, Dr. Jackson and Ms. Chandler did not present any evidence to defend their licenses.

CONCLUSIONS OF LAW

The Board has jurisdiction over Dr. Jackson and Ms. Chandler and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A).

“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).

Pursuant to A.R.S. § 32-3203, the certificate or license of a health professional who does not renew the certificate the certificate or license as prescribed by statute and who has been advised in writing that an investigation is pending at the time the certificate or license is due to expire or terminate does not expire or terminate until the investigation is resolved.

A.R.S. § 32-1263(A)(1) provides that the Board may impose disciplinary action against a person licensed under that chapter for any unprofessional conduct as defined in section 32-1201.01.

“Unprofessional conduct” includes, inter alia, failing to comply with a final board order, including an order of censure or probation, and refusing to submit to a body fluid examination pursuant to a board investigation into a licensee’s alleged substance abuse. A.R.S. § 32-1201.01(22) and (26).

A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional’s regulatory board in writing within ten working days after the charge is filed pursuant to A.R.S. § 32-3208(A).

“Contested case” means any proceeding in which the legal rights, duties or privileges of a party are required to be determined by an agency after an opportunity for an administrative hearing. A.R.S. § 41-1001(4). Contested cases must be set within sixty days of the agency’s request for a hearing. A.R.S. § 41-1092.05(A)(2).

“Appealable agency action” means an action that determines the legal rights, duties or privileges of a party and that is not a contested case. A.R.S. § 41-1902(3). Appealable agency actions must be set within sixty days of the licensee’s notice of appeal. A.R.S. § 41-1092.05(A)(1).

Both Dr. Jackson and Ms. Chandler were advised in writing of the pending investigation in this matter prior to the expiration of their licenses. As such, the licenses did not expire on June 30, 2021, as scheduled, pursuant to A.R.S. § 32-3202.

The uncontroverted evidence presented at hearing established that Dr. Jackson failed to comply with the terms of the November 13, 2020 Disciplinary Consent Agreement. Therefore, the Board established that Dr. Jackson committed unprofessional conduct as defined by A.R.S. § 32-1201.01(22).

The uncontroverted evidence at hearing established that neither Dr. Jackson nor Ms. Chandler complied with the Board’s Interim Orders requiring them to provide a urine sample and a hair sample to a drug screening laboratory and to undergo a substance abuse/use evaluation. Therefore, the Board established that Dr. Jackson and Ms. Chandler committed unprofessional conduct as defined by A.R.S. § 32-1201.01(22) and (26).

The uncontroverted evidence at hearing established that Ms. Chandler failed to disclose her criminal charges to the Board within ten working days. Therefore, the Board established that Ms. Chandler committed unprofessional conduct as defined by A.R.S. § 32-3208.

Such conduct is grounds for discipline under A.R.S. § 32-1263(A).

At hearing, the Board requested revocation of Dr. Jackson’s and Ms. Chandler’s licenses.

Dr. Jackson’s failure to comply with the November 13, 2020 Disciplinary Consent Agreement, failure to comply with the Board’s instructions and Interim Order, and failure to attend the hearing demonstrate that Dr. Jackson is not regulatable at this time.

Ms. Chandler’s failure to comply with the Board’s instructions and Interim Order, failure to report her criminal charges to the Board, and failure to attend the hearing demonstrate that Ms. Chandler is not regulatable at this time.

RECOMMENDED ORDER

Roger L. Jackson’s License No. D004758 shall be revoked on the effective date of the Order entered by the Board.

Rebekah A. Chandler’s License No. H06607 shall be revoked on the effective date of the Order entered by the Board.

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, August 31, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Ryan Edmonson,

Board of Dental Examiners-54864001

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-137160-45720000