ALJDEC decisions subject to certification as final

23A-2022040478-NUR · State Board of Nursing · 2023-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE (LNA EQUIVALENT) UNDECLARED CERTIFIED NURSING ASSISTANT CERTIFICATE NO. UCNA403313899, AND REGISTRY CNA CERTIFICATE NO. CNA403313899 ISSUED TO:

RAYMOND P. SURRELL,

aka RAYMOND PAIGE SURRELL, JR.

RESPONDENT.

No. 23A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 07, 2023 at 9:00 AM.

APPEARANCES: Assistant Attorney General Charles Hover, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Anna Anderson as a witness. Raymond P. Surrell, Jr. (“Respondent”) appeared on his own behalf. Jovanna Roman (CCR No. 50725) served as the 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

Administrative Notice is taken of Respondent’s license history as reflected on the Board’s public website. Respondent was first issued Undeclared Certified Nursing Assistant (“UCNA”) Certificate No. UCNA403313899 on April 08, 1991. The certification is inactive, as it expired on November 01, 2017.

Administrative Notice is also taken that Respondent was first issued Certified Nursing Assistant (“CNA”) Certificate No. CNA403313899 on November 01, 2017, which is currently active and renewed through December 31, 2023.

On April 20, 2022, the Board received a complaint submission from the Arizona Department of Health Services (“Department”) that alleged on February 09, 2022, a report had been received from its licensee, a skilled nursing facility in Scottsdale, Arizona, Haven of Scottsdale (“Haven”), regarding a patient (“M.M.”) which alleged that M.M. had participated in a sexual relationship with Respondent while he was employed at Haven as a CNA. In the report, M.M. stated her relationship with Respondent began with inappropriate touching during perineal care and escalated to sexual intercourse. After an investigation, the Department substantiated M.M.’s allegations against Respondent and determined that Respondent had committed sexual exploitation of the patient.

As a result, the Board commenced an investigation of its own into the confirmable facts surrounding the allegation(s).

In September 2022, during a scheduled meeting of the Board, the Board was presented with an Investigative Report by Anna Anderson (“Investigator Anderson”). In total, the Board was able to identify five (5) separate and distinct incident whereby Respondent was alleged to have inappropriately engaged with nursing patients at various facilities. Only the incident involving M.M., however, was substantiated. Respondent’s May 16, 2022, Investigative Questionnaire was also reviewed by the Board. Respondent did not, however, address any allegation directly. Ultimately, the Board determined that Certificate No. UCNA403313899 potentially violated Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-101 and R4-19-814(1-2, 6, 9, 11, 23-24, and 32), and that Certificate No. CNA403313899 was subject to discipline in accordance with Ariz. Rev. Stat. § 32-1646(C), warranting an issuance of a Notice of Charges against both certificates.

On February 02, 2023, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency for an evidentiary hearing on April 07, 2023. Per the February 28, 2023, Complaint and Notice of Hearing (“Complaint“) the issues to be determined are whether grounds exist for the Board to take disciplinary action against Respondent’s nursing certifications, including suspension or revocation, to perform as a nursing assistant in the State of Arizona.

In the Complaint the Board set forth specific factual allegations, and based on those allegations, the Board charged Respondent with having committed unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(26)(d); as more specifically defined by Ariz. Admin. Code R4-19-814(1), R4-19-814(2), R4-19-814(6), R4-19-814(9), R4-19-814(11), R4-19-814(23), R4-19-814(24), and R4-19-814(32), 32-1601(27)(d), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27)(j), 32-1601(26)(g), 32-1601(26)(h), and 32-1601(26)(j). Violations of the foregoing constitute grounds for discipline under Ariz. Rev. Stat. §§ 32-1663 and 32-1664.

Hearing Evidence

The Board presented the testimony of Investigator Anderson and submitted Exhibits1-7 into the record. Respondent testified on his own behalf. The substantive evidence of record is as follows:

On May 20, 2021, Respondent was hired at Haven as a CNA.

On May 27, 2021, M.M. was admitted to Haven with diagnoses that included acute pancreatitis, chronic obstructive pulmonary disease, dependence on supplemental oxygen, chronic pain syndrome, and opioid dependence.

On December 13, 2021, Respondent was terminated from employment by Haven.

On or about February 08, 2022, M.M. received a letter, purportedly from Respondent, that ended Respondent’s relationship with her. M.M.’s depression and anxiety were exacerbated as a result.

On February 08, 2022, M.M. informed Haven that she had been in a sexual relationship with Respondent that made her feel “abused.” A tearful M.M. shared that her “guys have been kicked in” and the letter “ripped her heart out” after receiving Respondent’s letter. During an interview with M.M. by Haven administrative staff, M.M. stated that Respondent had been touching her and having intercourse throughout the course of her admission.

On February 10, 2022, an officer with the Scottsdale Police Department (“SPD”) was dispatched to Haven to interview M.M. At that time M.M. told the responding officer that Respondent had sexually abused her for the duration of her 5-month stay at Haven, and that the abuse started a few days after her arrival when Respondent was “a little touchy feely” while cleaning her up. M.M. shared that Respondent inserted his fingers into her vagina 2-3 times per day during his shifts, and that on 5-6 occasions they had vaginal sex in her bed. Per M.M., Respondent would often come into her room when he wasn’t assigned to her unit. She opined that he preyed on her due to his position and her loneliness.

On March 09, 2022, a detective from SPD’s Special Victims Unit interviewed M.M. and her former roommate (“B”). B shared that she could hear “laughing and talking” on the other side of the curtain where M.M. was with Respondent, and then it would go completely silent, followed by “sex sounds.” Per B, one time she yanked back the curtain that separated her and M.M.’s room and observed Respondent’s pants down by his mid-thighs, genitals exposed, and M.M. hanging over the side of her bed in what appeared to be an attempt to give Respondent fellatio. Respondent, in a panicked manner, asked B why she did that as he pulled his pants up.

Detectives were also provided with M.M.’s diary, which contained the following entries:

I have something happen to me with one of the CNA’s here I’m feeling real weird about this CNA I found out that his name is Raymond or Ray I don’t know but when he changed me he got really touchy feely down there I think it was really strange but hopefully he wont do it again but you know he is very nice to and he’s funny he jokes around he’s kind of cute too. He pays a lot of attention to me witch is nice hopefully he can keep his hands where they should be. (12/02/2021)

These people fired Ray bunch of sorry assed mother fuckers I loved him!! (Date unknown.)

(All errors in original.)

From about February 16, 2022, through March 15, 2022, the Department conducted an investigation which resulted in the issuance of a Citation against Haven for violations of 42 C.F.R. § 483.12 and Ariz. Admin. Code R9-10-414(B). The Citation was based on the following, in part:

On February 16, 2022, during an interview with the Department, M.M. detailed that she and Respondent had a friendship that gradually developed into a sexual relationship whereby Respondent would excessively touch her genitals during incontinence cleanings. In the beginning, Respondent reassured M.M. when she indicated she was a little uncomfortable. M.M. did not ask Respondent to stop. In time, the touching escalated to sexual intercourse, which increased to daily escapades over time. Respondent would either use his gloveless hands or condomless penis to penetrate M.M.’s vagina during their affair. Respondent would ejaculate inside of M.M. On occasion, Respondent would bring M.M. homemade baked goods and other treats. Respondent told M.M. he loved her and would kiss her goodbye before he left his shifts. M.M. shared that she was “embarrassed” by the situation and had trusted Respondent.

On February 16, 2022, during an interview with the Department, another CNA confessed to drafting and delivering the letter in question to M.M. “out of spite” because she did not like the patient and wanted to hurt her. The CNA further admitted that M.M.’s relationship with Respondent made her jealous, as she believed she and Respondent had been dating.

Closing Arguments

In closing, Respondent denied ever having a sexual relationship with M.M. and accused the Board of “targeting” him due to prior unsubstantiated reports levied against him.

In closing, the Board argued that Respondent breached his ethical duty by engaging in a physical and emotional relationship with a patient in his care, which is prohibited behavior per Board rules. The Board argued that M.M.’s statements were credible, as they were consistent and she had no cognitive or memory issues, and that they were bolstered by her diary entries, the letter fabricate by another CNA who perceived M.M. and Respondent to be in an intimate relationship, and roommate’s corroborating statements to police. As such, the Board asked that Respondent’s CNA certification be disciplined by notating the substantiated complainant against him, and also called for the revocation of Respondent’s UCNA certificate.

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 matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

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(27) 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.

* * *

(g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(h) Committing an act that deceives, defrauds or harms the public.

* * *

(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

Ariz. Admin. Code R4-19-814 defines standards of conduct for Licensed Nursing Assistants and Certified Medication Assistants, in pertinent part, as follows:

For purposes of A.R.S. § 32-1601(27)(d), a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes a basis for disciplinary action on a LNA license and a CMA certificate includes the following:

(1) Failing to maintain professional boundaries or engaging in a dual relationship with a patient, resident, or any member of the patient’s or resident’s family;

(2) Engaging in sexual conduct with a patient, resident, or any member of the patient’s or resident’s family who does not have a pre-existing relationship with the licensee or any conduct while on duty or in the presence of a patient or resident that a reasonable person would interpret as sexual;

* * *

(6) Failing to follow an employer’s policies and procedures, designed to safeguard the patient or resident;

* * *

(9) Violating the rights or dignity of a patient or resident;

* * *

(11) Neglecting or abusing a patient or resident physically, verbally, emotionally, or financially;

* * *

(23) Threatening, harassing, or exploiting an individual;

(24) Using violent or abusive behavior in any work setting;

* * *

(32) Practicing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed.

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. § 32-1646(C)(1-2) provides that in regulation of certified nursing assistants the Board may investigate allegations of abuse, neglect or misappropriation of property and refer criminal violations to the appropriate law enforcement agency. Additionally, pursuant to the Omnibus Budget Reconciliation Act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the Medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683), the Board may also indicate on the certification the existence of any substantiated complaint(s) against a CNA in compliance with Title 41 of the Ariz. Rev. Stat., Chapter 6, Article 10.

Section (IV)(A) of the Board’s Policy and Procedure – Nursing Assistant Regulation, “Undeclared CNAs” provides that standards of conduct that were applicable to the pre-July 2016, CNA certificates are equivalent to the current LNAs, when the Board receives a complaint or allegation of unprofessional conduct by an Undeclared CNA. The policy further provides that the pre-July 2016, CNA laws or current LNA laws in effect at the time of the incident/alleged unprofessional conduct shall apply.

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.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “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.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

Here, the Board has sustained its burden of proof.

The undersigned Administrative Law Judge finds the Board’s evidence regarding the allegations of unprofessional conduct against Respondent to be credible. The substantive evidence of record reflects that Respondent initiated a sexual relationship with a vulnerable patient that included digital, oral, and vaginal penetration over the course of several months. The record further reflects that Respondent knew, or should have known, that his conduct was prohibited by multiple regulations. Respondent’s vehement denials of wrongdoing, in the face of overwhelming evidence to the contrary, calls into question his ability to be regulated by the Board at this time.

In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients and other healthcare providers. It is clear from a review of the records in this matter that Respondent has not consistently met these rudimentary standards to practice nursing.

Thus, the Board established that Respondent committed unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(27)(d); as more specifically defined by Ariz. Admin. Code R4-19-814(1), R4-19-814(2), R4-19-814(6), R4-19-814(9), R4-19-814(11), R4-19-814(23), R4-19-814(24), and R4-19-814(32), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27)(j), 32-1601(26)(g), 32-1601(26)(h), and 32-1601(26)(j).

In light of the risk of potential harm to patients 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 certifications under Ariz. Rev. Stat. §§ 32-1663(D), 32-1663(F), and 32-1664(O).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board revoke UCNA Certificate No. UCNA403313899 as issued to Raymond P. Surrell, aka Raymond Paige Surrell, Jr., based on multiple acts of unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(27)(d); as more specifically defined by Ariz. Admin. Code R4-19-814(1), R4-19-814(2), R4-19-814(6), R4-19-814(9), R4-19-814(11), R4-19-814(23), R4-19-814(24), and R4-19-814(32), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27)(j), 32-1601(26)(g), 32-1601(26)(h), and 32-1601(26)(j).

IT IS FURTHER RECOMMENDED that the Board substantiate the factual allegations enumerated in the Complaint against Respondent Raymond P. Surrell, aka Raymond Paige Surrell, Jr.

IT IS FURTHER RECOMMENDED that the Board discipline CNA Certificate No. CNA403313899, as issued to Raymond P. Surrell, aka Raymond Paige Surrell, Jr., by notating the substantiated Complainant findings on his CNA registration.

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, April 28, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

ATTN: Trina Smith

1740 W. Adams St., Ste. 2000

Phoenix, AZ 85007

[email redacted]

Raymond P. Surrell, Respondent

4413 N. Parkway Ave. #316

Scottsdale, AZ 85251

[email redacted]

Charles S. Hover, III., Esq., Assistant Attorney General

Office of the Attorney General

CIV/LES

2005 N. Central Ave.,

Phoenix, AZ 85004-1592

[email redacted]

By: OAH Staff