ALJDEC decisions subject to certification as final

22A-202001558-NUR · State Board of Nursing · 2022-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF LICENSED NURSING ASSISTANT LICENSE NO. LNA999987133 ISSUED TO:

CHRISTINA JEAN MILNER,

RESPONDENT.

No. 22A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 29, 2022; the record closed on April 12, 2022

APPEARANCES: Assistant Attorney General Sunita Krishna represented the Arizona State Board of Nursing. Stephanie Cruz appeared as a witness for the Arizona State Board of Nursing. Respondent Christina Jean Milner did not appear. Court Reporter Robin Jasper was present.

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 impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.R.S. §§ 32-1601 through 1667 and the Arizona Administrative Code Rules 4-19-101 to 4-19-815.

Christina Jean Milner (“Respondent”) holds Board-issued nursing assistant license number LNA999987133.

On or about January 23, 2020, the Board received a complaint from Mayo Clinic in Phoenix, Arizona, stating that Respondent did not report to work on October 24, 2019, that she requested medical leave from October 29, 2019, through December 11, 2019, and then it came to their attention that Respondent had been arrested for aggravated assault. Respondent extended her leave until February 3, 2020, however, resigned on January 21, 2020. Based on the information contained in the complaint, the Board opened an investigation.

Senior Investigator for the Board, Stephanie Cruz, testified that she reviewed the complaint, subpoenaed law enforcement, court, and employment records pertaining to Respondent, conducted interviews, and authored an investigative report. The results of the investigation revealed the following pertinent information:

On October 23, 2019, according to the Avondale Police Department Report Number 1950384, officers were dispatched to a call regarding a firearm. Officers made contact with K.P., Respondent’s spouse, who told officers Respondent had a firearm and had been drinking. Respondent stepped out of the residence unarmed and stated that the firearm was in the house. Respondent stated she had started drinking alcohol for the first time in ten years, which upset her spouse. Respondent had been having a difficult time at work as well and was “done with it” and “ready to end it” and stated that she brought the firearm into the residence to use it on herself. Respondent admitted to “waving the gun in the air.” Respondent advised police she had been an alcoholic, but had been sober for ten years. Respondent’s spouse reported that Respondent had pointed the gun at her and then Respondent put the gun in her mouth. Officers arrested Respondent for aggravated assault, domestic violence and disorderly conduct, domestic violence, reckless display of a firearm.

Respondent’s Release Questionnaire indicates that Respondent is an alcoholic and is mentally disturbed.

On November 7, 2019, in Maricopa County Superior Court, Case Number CR2019-149655, Respondent was indicted on two counts of Disorderly Conduct, class 6 felonies. Respondent failed to report the charges to the Board within ten (10) days as required.

On March 2, 2020, Respondent pled guilty to Disorderly Conduct, a class 6 undesignated felony.

On August 25, 2020, Respondent was convicted of the amended charge of Disorderly Conduct – Weapon/Instrument, a misdemeanor, and Domestic Violence Offense. Respondent was placed on supervised probation for eighteen (18) months.

On February 28, 2020, Board staff sent to Respondent’s address of record, an Investigative Questionnaire with instructions for completion and to include a written explanation in response to the complaint. Respondent was instructed to complete and return the Investigative Questionnaire, no later than March 27, 2020. Respondent failed to return the Completed Questionnaire or written statement by March 27, 2020, as requested.

On September 29, 2020, and February 12, 2021, Board staff sent second and third requests for the completion of the Investigative Questionnaire through the nurse portal, and Board staff also called and spoke to Respondent who stated she would fill out the Questionnaire and provide a written statement and return it back to Board staff by February 15, 2021. Respondent told Board staff she had received “the documents last year, but was working on her mental health during this time.” Respondent failed to return the Questionnaire by February 15, 2021.

On or about February 12, 2021, during a telephonic interview with Board staff, Respondent admitted that during the incident leading to her arrest on October 23, 2019, she had been drinking alcohol, had a gun, and talked about shooting herself. Respondent also stated she was under a lot of stress when she worked as a nursing assistant and had thoughts of self-harm. Respondent’s statements to Board staff regarding her current mental status call into question her ability to practice safely as a nursing assistant.

On June 11, 2021, Board staff sent a fourth request to Respondent for the Investigative Questionnaire to be completed and returned back to the Board by June 20, 2021. Board staff ascertained through the nurse portal that Respondent viewed the message on June 15, 2021. Respondent has not submitted a response.

Ms. Cruz testified that because Respondent has failed to complete and submit the Investigative Questionnaire, the Board cannot determine the current status of Respondent’s mental health and substance abuse, or whether Respondent is participating in therapy, and therefore, the Board cannot determine whether Respondent is safe to practice.

On or about February 23, 2022, the Board issued a Complaint and Notice of Hearing that alleged violations of A.R.S. § 32-1601(27)(d), (e), (j); A.A.C. R4-19-814(25)(a) and (c), (29) and (33); and A.R.S. § 32-3208(A) and (D).

The Notice of Hearing was sent via certified mail to Respondent at her address of record, as well as to Respondent’s email address of record.

The Administrative Law Judge delayed the start of the hearing for Respondent’s appearance. However, Respondent did not appear at the hearing either 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 her nursing assistant license.

CONCLUSIONS OF LAW

The Notice of Hearing that the Board mailed and emailed to Respondent at her addresses of record was reasonable, and Respondent is deemed to have received notice of the hearing. 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 assistant license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct, in that: i) Respondent’s conduct is or might be harmful to the health of a patient or the public; ii) Respondent’s conduct demonstrated that she is mentally incompetent or physically unsafe to practice to a degree that is or might be harmful or dangerous to the health of a patient or the public; iii) Respondent violated a Board rule when she failed to cooperate with the Board investigation by not providing a complete written explanation of the matter and not completing and returning the Board Investigative Questionnaire within thirty (30) days, and when she failed to notify the Board within ten (10) days after the charges were filed; and iv) by Respondent’s violation of any state or federal laws, rules or regulations.

Given Respondent’s failure to properly report her criminal charges to the Board, Respondent’s failure to comply with the Board’s request to complete and submit the Investigative Questionnaire, notwithstanding repeated opportunities to do so, and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time.

In light of the risk of potential harm to which patients could be exposed as a result of Respondent’s actions and violations of the Nursing statutes, rules and regulations, the Board established cause to impose a disciplinary sanction against Respondent’s nursing assistant license under A.R.S. § 32-1606(B)(10) and A.R.S. § 32-1663(D).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Respondent Christina Jean Milner’s nursing assistant license number LNA999987133.

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 (5) days from the date of that certification.

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-137160-45720000Done this day, April 20, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

By: Miranda Alvarez

Legal Secretary

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