ALJDEC decisions subject to certification as final
23A-2021060439-NUR · State Board of Nursing · 2022-12-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF NURSING ASSISTANT LICENSE NO. LNA521146641 ISSUED TO:
CHRISTIAN J. TELFORD,
RESPONDENT.
No. 23A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 09, 2022 at 1:00 PM.
APPEARANCES: Assistant Attorney General Sunita Krishna, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Anna Anderson as a witness. Christian Telford (“Respondent”) appeared on their own behalf and chose not to participate. Robin Jasper (CCR No. 50286) served as the official court reporter for the proceedings.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.
FINDINGS OF FACT
Background and Procedure
In accordance with Ariz. Rev. Stat. Title 41, Chapter 6, Articles 10 and 4, Administrative Notice is taken that the Board issued Licensed Nurse Assistant No. LNA521146641 to Respondent on April 08, 1991. The license expired on September 22, 2022.
On September 14, 2022, the Board issued Notice of Board Consideration of Proposed Findings of Public Emergency and Order of Summary Suspension in Case No. [number redacted].
On September 23, 2022, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting the above-captioned matter for hearing at 1:00 p.m. on October 19, 2022. The Complaint identified the issue for hearing as follows:
[T]o determine whether grounds exist to take disciplinary action, including suspension or revocation against Christian J. Telford (Respondent) who holds Nursing Assistant License No. LNA521146641 to perform as a licensed nursing assistant in the State of Arizona.
The Board set forth specific factual allegations in the Complaint, and based on those allegations the Board charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-1601(27)(d), as more specifically defined by Ariz. Admin. Code R4-19-814(16); 32-1601(27)(e), 32-1601(27)(g), and 32-1601(27)(j). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.
On September 22, 2022, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing on the allegations outlined in the Board’s Complaint.
Hearing Evidence
The Board presented the testimony of Anna Anderson and submitted Exhibits 1-6 into the record. The Complaint and November 01, 2022, Order were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:
On June 23, 2021, the Board received a complaint from Respondent’s employer, Yuma Regional Medical Center (“YRMC”), regarding an incident that took place on June 05, 2021. Allegedly, Respondent had called into the hospital with self-harm concerns over the course of three hours, and later that evening reported in person for care. Respondent was transferred to a local behavioral health treatment facility.
On May 05, 2022, the Board subpoenaed Respondent’s medical records.
The records established a lengthy history of childhood trauma including assault, sexual abuse, neglect, and the onset of disassociate identity disorder in Respondent. The records also reflect Respondent’s history of narcotic use, self-harm, and auditory hallucinations.
Respondent has been diagnosed with Dissociative Identity Disorder (F44.81), Insomnia (G47.00), Post-Traumatic Stress Disorder (F43.10), and Methamphetamine Dependence (F15.20).
Respondent self-reported multiple relapses during recovery meetings.
On May 05, 2022, the Board subpoenaed Respondent’s employment records from YRMC.
On June 30, 2022, Respondent was terminated from employment. Respondent is not eligible for rehire.
On August 18, 2022, Respondent informed Board investigator Anna Anderson (“Investigator Anderson”) that “I surrender my license.” That same date Investigator Anderson electronically transmitted a Consent Agreement for Voluntary Surrender to Respondent, which Respondent refused to sign, as he believed his prior declaration had been sufficient. Respondent offered that, “As a courtesy I will sign a document stating nothing more than that I surrender my license and will not pursue restoring it.” Respondent continued:
I hereby declare that the LNA license Associated with the name and Person Christian Telforn IS NULL AND VOID. I Christian Telforn do not recognize or accept or acknowledge anything associated to said license or the institution that issues it. I declare as a citizen of the United States of America that I have the right to end any agreement or contract with the Arizona Nursing Board and that to be denied this would be a violation of my basic civil rights and furthermore that I paid for said license and the institution payed nothing and has no right of claim on my name or person. I will not be involved with anything said license grants. I terminate any contract or obligation with the Arizona Nursing Board, I do not give or grant the Arizona Nursing Board the right to use my name or to contact me in any way I deem unacceptable. If they do so I have the right to take them to a REAL court of law and hold them accountable for any abuse, forced or coerced participation, or any damage caused to my person or reputation, Exception being they can report in their own publications as they see fit provided it is true provable and beholds only to their licensure. (All errors in original.)
On August 19, 2022, Emma Leher Mamaluy, Chief Counsel for the Board, replied to Respondent’s correspondence, in pertinent parts, as follows:
We cannot accept your email as a surrender because it isn’t legally sufficient. In other words, we either need the signed voluntary surrender agreement or we have to proceed with other legal processes – and that would likely be to seek a revocation of license through our administrative process. You have the right to a hearing (like a trial) if you would like. That is what due process requires.
We do have a legal responsibility over your license. Because you applied for the license, and the Board has jurisdiction over all nursing and nursing assistant licenses, we must make sure that the practitioners are safe to practice. Right now, we have concerns about your safety to practice. So, we have no other option than to either come to an agreement with you for a surrender, or proceed towards a hearing (trial).
On August 19, 2022, Ms. Mamaluy issued a redraft of the Consent Agreement for Voluntary Surrender to Respondent, asking “Does this version work for you? I took out as much as I can, and tried to include your voice in the last paragraph of the facts.” Respondent replied, in short, “[N]o it does not. I will be sending an email tomorrow with an attachment of a legal signed and notarized document surrendering the license and will send the original through certified mail.”
On August 25, 2022, Ms. Mamaluy replied, “For clarification – We can only accept exactly what I sent you, signed by you, for a 3 year voluntary surrender. If there are any new changes, or a different document, we will not be able to accept that.”
On August 29, 2022, Respondent replied, in pertinent part, “I don’t care whether you accept it or not. It is my right as a citizen to terminate my association with [the Board] and the license and have any suspected abuse of power regarding this issue investigated.”
On September 02, 2022, Respondent submitted a notarized Notice of Termination of Contract and Surrender of License to the Board. In pertinent parts, Respondent noted that he was “nullifying the Licensed Nursing Assistant License No. LNA5211466,” and opined that “the contract between the two parties is now terminated, therefore the Arizona State Board of Nursing has no further authority over me.” Respondent affirmed that he would “sign no other documentation with regard to this matter.”
On September 21, 2022, Respondent replied, in pertinent part, that “There was no need to demand your findings be added to the surrender of the license except that you chose to.”
In closing, the Board opined that the record establishes Respondent’s recent myriad of mental health issues, exacerbated by drug-related relapses, rendered him unsafe to practice. The Board also argued that Respondent’s responses to the Board, in its attempts to assist Respondent in relinquishing his licenses appropriately, evinced Respondent’s inability to submit to regulation by the agency. Ultimately, the Board asked that the Tribunal affirm the September 22, 2022, summary suspension of LNA521146641, and further requested that the license be revoked.
CONCLUSION OF LAW
This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in the State of Arizona. Pursuant to Ariz. Rev. Stat. §§ 32-1601 through 1669 and Ariz. Admin. Code R4-19-101 through 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act.
The Board bears the burden of proof to establish cause to penalize Respondent’s registered nursing license. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.
The Board’s burden is a preponderance of the evidence.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Ariz. Rev. Stat. § 32-1601(26) defines unprofessional conduct in the nursing profession, in pertinent part, as follows:
“Unprofessional conduct” includes the following, whether occurring in this state or elsewhere:
(d) As any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.
(e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public.
* * *
(g) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public.
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(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.
Ariz. Admin. Code R4-19-814 defines unprofessional conduct in the nursing profession, in pertinent part, as follows:
For purposes of A.R.S. § 32-1601(26)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following:
(16) Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting;
* * *
(19) Obtaining, possessing, using, or selling any narcotic, controlled substance, or illegal drug in violation of any employer policy or any federal or state law;
Ariz. Rev. Stat. § 32-1663 outlines the Board’s disciplinary authority and process, in pertinent part, as follows:
(D) If the board finds, after affording an opportunity to request an administrative hearing pursuant to Title 41, Chapter 6, Article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.
* * *
(F) If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to subsection D or E of this section, the board may serve on the licensee or certificate holder a written notice that states:
(1) That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter.
(2) The nature of the allegations asserted and that cites the specific statutes or rules violated.
Ariz. Rev. Stat. § 32-1664(O) further outlines the Board’s disciplinary authority and process regarding unprofessional conduct, stating that, “If the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”
“In applying a statute . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Each word, phrase, clause, and sentence must be given meaning so that no part of the legislation will be void, inert, or trivial. Legislation must also be given a sensible construction that avoids absurd results. If the words do not disclose the legislative intent, the court will scrutinize the statute as a whole and give it a fair and sensible meaning.
A license to practice nursing is a privilege, not a right. The Legislature has charged the Board with protecting the public and those who deal with licensed practitioners when it issues certificates and licenses.
The mission of the Board is to protect and promote the welfare of the public by ensuring that each person holding a nursing license or certificate is competent to practice safely. This mission is fulfilled through the regulation of the practice of nursing and the approval of nursing education programs, and supersedes the interest(s) of any individual or group.
The issue in the case at bar, in light of Respondent’s conduct, is whether grounds exist for the Board to take disciplinary action against his license.
Here, the Board has sustained its burden of proof.
In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients, other healthcare providers, and the Board. It is clear from a review of Respondent’s correspondence with Ms. Mamaluy and Investigator Anderson that he has not met these rudimentary standards to practice nursing. The record is also devoid of any mitigating evidence that would excuse, justify, or afford him any sort of leniency less than revocation in this matter.
Respondent’s multiple diagnoses, and other issues that affected his practice of nursing, do not excuse his behavior or absolve him from responsibility from consequences stemming therefrom. Nor do they trump the Board’s legitimate interest in protecting the public.
After closely scrutinizing the record and giving all relevant facts careful consideration, the undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of unprofessional conduct against Respondent to be credible. The record clearly establishes that while the parties agreed Respondent needed to surrender his license due to the behavior(s) at issue in this matter, the only disagreement was the means by which Respondent was to remit the license back to the Board. None of Respondent’s arguments, though passionately argued, were rooted in the law.
Thus, based on the record, the undersigned concludes that the Board has established by a preponderance of the evidence that Respondent committed unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1601(27)(d), as more specifically defined by Ariz. Admin. Code R4-19-814(16); 32-1601(27)(e), 32-1601(27)(g), and 32-1601(27)(j).
In light of the risk of potential harm to patients and the public at large as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose disciplinary sanctions against Respondent’s license under Ariz. Rev. Stat. §§ 32-1663(D-F) and 32-1664(O).
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Board revoke Respondent Christian Telford’s nursing license, LNA521146641.
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 Final Order will be five days from the date of that certification.
Done this day, December 05, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
c/o Trina Smith
Arizona State Board of Nursing
1740 W. Adams St., Ste. 2000
Phoenix, AZ 85007
[email redacted]
Sunita Krishna, Esq., Assistant Attorney General
Office of the Attorney General
CIV/LES
2005 N. Central Ave.
Phoenix, AZ 85004-1592
[email redacted]
Christian J. Telford, Respondent
12510 S. Cortez Ave.
Yuma, AZ 85365
[email redacted]
By Miranda Alvarez
Legal Secretary