ALJDEC decisions subject to certification as final
24A-2022090461-NUR · State Board of Nursing · 2024-03-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF PRACTICAL NURSE LICENSE NO. LP244497 ISSUED TO:
VICTOR AFIJU SULLEH,
APPLICANT,
- and-
In the matter of practical nurse license no. lp244497 issued to:
VICTOR AFIJU SULLEH,
RESPONDENT,
- and-
IN THE MATTER OF THE PRIVILEGE TO PRACTICE NURSING UNDER THE NURSE LICENSURE COMPACT IN THE STATE OF ARIZONA ISSUED TO:
VICTOR AFIJU SULLEH,
RESPONDENT.
(Florida) RN Multistate Privilege to Practice.
No. 24A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 08, 2024 at 9:00 AM.
APPEARANCES: Assistant Attorney General Deborah Abbey, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Anna Anderson as a witness. No appearance(s) by or on behalf of Victor Afiju Sulleh (“Applicant” and “Respondent”). Kristen Wunsch (CCR No. 50719) served as the Court Reporter for the proceedings.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Amended Complaint and Notice of Hearing (“Amended Complaint“) was admitted into the evidentiary record along with the March 04, 2024, Continued Hearing Order, Public Board Exhibits 1, 6, 11-12, 14, and 16-17, and Confidential Board Exhibits 2-5, 7-10, 13, 15, and 18-19.
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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 Applicant’s license history as reflected on the Board’s public website. Applicant was issued Practical Nurse (“PN”) License No. LP244497 under the Multistate Privilege to Practice in the State of Arizona on August 21, 2020. The license is inactive, as it was suspended by the Board on January 18, 2024. Administrative Notice is also taken that Applicant was issued Registered Nurse (“RN”) License No. RN9607341 by the Florida Board of Nursing (“FBN”) on August 17, 2022, which is currently active and unencumbered. The license has been renewed through July 31, 2024.
On January 18, 2024, the Board voted to determine that the public’s health, safety, and welfare required emergency action. Specifically, the Board issued an Order of Summary Suspension pursuant to Arizona Revised Statute (“Ariz. Rev. Stat.”) § 41-1092.11(B) that suspended Applicant’s PN License No. LP244497 and Multistate Privilege to Practice.
On January 31, 2024, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency for an evidentiary hearing on March 07, 2024. Per the February 20, 2024, Amended Complaint the issues to be determined are whether grounds exist for the Board to take disciplinary action, including suspension or revocation, against Applicant/Respondent, holder of PN License No. LP244497 and Multistate Privilege to Practice to perform as a Practical Nurse in the State of Arizona, as well as whether grounds exist for the Board to deny the application for RN licensure submitted by Applicant.
In the Amended Complaint the Board set forth specific factual allegations, and based on those allegations, the Board charged Applicant/Respondent with having committed unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(27)(a), 32-1601(27(d); as more specifically defined by Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(8), R4-19-403(20), R4-19-403(25), and R4-19-403(31), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27(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. The substantive evidence of record is as follows:
On January 11, 2021, the nursing education program offered by Idea Professional Institute, Inc. (“IPI”), that enrolled students before July 01, 2014, was terminated for failing to become accredited by the FBN by July 01, 2019.
On August 18, 2022, Applicant applied for an Arizona RN licensure by endorsement, after being licensed by exam by the FBN, where he had attested under penalty of perjury that he had received his associate’s degree in nursing from IPI with a graduation date of December 12, 2021; a graduation date of approximately eleven (11) months after IPI was terminated.
On September 20, 2022, the Board received an email from [email redacted], which purported to contain Applicant’s “official A transcript.”
On September 27, 2022, the Board received Applicant’s purported “official B transcript,” allegedly issued by IPI. The United States Postal Service marked the mailing envelope for the correspondence as being sent from Peoria, Arizona 85381. The city, state, and zip code are identical to Applicant’s address of record. IPI is physically located in Miami, Florida. The email address on the document is i@[email redacted], which is an invalid email address. Additionally, the document is allegedly signed by IPI’s Director on December 21, 2021, instead of on or about September 23, 2022, when the mailing envelope was postmarked. The document lacks a raised school seal. Moreover, the document notes Applicant completed 99 total credit hours, but the tallied number of hours listed per course totals 84.
On January 09, 2024, Board staff spoke with an IPI employee who provided December 14, 2020 as Applicant’s nursing program start date, and December 21, 2021, as Applicant’s nursing program graduation date. Applicant’s purported transcripts, however, listed his nursing program start date as September 14, 2020.
On March 06, 2023, the Board mailed Applicant a questionnaire with instructions to return it completed, along with a written explanation regarding his nursing education program, by March 20, 2023. Applicant did not reply.
In or around April 2023, in Applicant’s employment application to AB Staffing, Applicant listed that he had obtained an Associate’s Degree from Mercer County Community College (“MCCC”) in December 2022. Applicant’s MCCC records reflect that he withdrew from his studies on or about August 04, 2020, without obtaining a degree or reenrolling.
Per AB Staffing, Applicant is currently working as a RN on privilege to practice at Yuma County Jail in Yuma, Arizona.
On June 05, 2023, the Board mailed Applicant a second questionnaire with a due date of June 26, 2023. Applicant did not reply.
On November 13, 2023, the Board attempted to reach Applicant via email. Applicant did not reply.
On November 22, 2023, and December 18, 2023, the Board attempted to reach Applicant via telephone. Applicant did not reply.
Additional Evidence
Applicant submitted falsified transcripts to the Board.
The Board was able to verify that Applicant viewed all electronically transmitted correspondence through its portal via use of read receipts.
On March 03, 2023, Applicant informed Investigator Anderson that he had already relocated to Florida.
On December 18, 2023, Investigator Anderson’s telephone number was blocked from reaching Applicant. When Investigator Anderson used a different telephone number she was able to get through and leave Applicant a voicemail message.
In late-January 2024, days after the Board issued its Order of Summary Suspension, Applicant declined to participate in the Board’s investigation but did acknowledge receipt of the order.
Closing Argument
In closing, the Board opined that its burden of proof had been sustained, and argued that Applicant’s burden of persuasion had not been sustained. In sum, the Board asked that its Order of Summary Suspension and denial of Applicant’s application be affirmed.
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 Amended Complaint that the Board mailed to Applicant/Respondent at his address of record was reasonable, and Applicant/Respondent is deemed to have received notice of the hearing.
The Board bears the burden of proof to establish cause to penalize Applicant’s practical nursing license. Applicant bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. Applicant also bears the burden of persuasion to show that he meets the requirements for his application to be granted. The standard of proof on all issues is that of 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 “[t]he 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.”
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:
(a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter.
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(d) As any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.
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(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.
(h) Committing an act that deceives, defrauds or harms 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 R4-19-403 defines unprofessional conduct in the nursing profession, in pertinent part, as follows:
For purposes of A.R.S. § 32-1601(27)(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:
(8) Falsifying or making a materially incorrect, inconsistent, or unintelligible entry in any record: a. Regarding a school;
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(20) Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate;
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(25) Failing to (a) Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664.
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(31) Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient 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.
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(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 Board has discretion to grant or deny a license to an applicant under Ariz. Rev. Stat. §§ 32-1663(A) and 32-1601(26).
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.
In order to deliver effective healthcare to patients, nurses must communicate effectively, accurately, and professionally with patients, other healthcare providers, and the Board. Care is required to be documented, in large part, to assist providers who follow-up on that care. Thus, if care is not properly documented there is no way for follow-up care to be provided accurately.
The first issue in the case at bar, is whether Applicant violated one or more standards of practice, and if so, whether grounds exist for the Board to take disciplinary action against his license for engaging in unprofessional conduct. The second issue in this matter is whether grounds exist for the Board to deny Applicant’s application for Arizona RN licensure.
Here, the record overwhelmingly supports both of the Board’s agency actions. 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 Applicant to be credible. The Tribunal further finds that grounds exist for the Board to deny Applicant’s application for Arizona RN licensure.
The substantive evidence of record reflects that Applicant falsified his educational records and used those material misrepresentations to fraudulently obtain PN License No. LP244497 under the Multistate Privilege to Practice in the State of Arizona. The record also reflects that Applicant used his licensure to deceitfully obtain employment with a vulnerable population of the public for practice that he is unqualified to administer, therefore posing a legitimate risk to public health, welfare, and safety.
The record further reflects that Applicant provided the Board with counterfeit educational records, and falsified his licensure application to the Board and employment application AB Staffing. Applicant did not graduate from nursing programs from IPI or MCCC. He is unfit to practice nursing.
There is no mitigating evidence in the record to justify or otherwise excuse Applicant’s actions, or lack thereof. In fact, Applicant’s absence from these proceedings are factors in aggravation.
Applicant knew, or should have known, that his conduct was prohibited by a multitude of rules and regulations. Applicant’s repeated refusal to participate in the Board’s investigation(s), in the face of overwhelming evidence establishing his unprofessional conduct, confirms his inability to be regulated by the Board at this time.
In order to deliver effective healthcare to patients, nurses must meet certain educational requirements and communicate effectively, accurately, and professionally with patients, other healthcare providers, and the Board. It is clear from a review of the record in this matter that Applicant has never met these rudimentary standards to practice nursing.
Thus, the Board established by a preponderance of the evidence that Applicant committed unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1601(27)(a), 32-1601(27(d); as more specifically defined by Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(8), R4-19-403(20), R4-19-403(25), and R4-19-403(31), 32-1601(27)(g), 32-1601(27)(h), and 32-1601(27(j).
In light of the risk of potential harm to patients as a result of Applicant’s actions and violations of the Nurse Practice Act, the Board has established cause to impose disciplinary sanctions against PN License No. LP244497 under the Multistate Privilege to Practice in the State of Arizona 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 Practical Nurse License No. LP244497 under the Multistate Privilege to Practice in the State of Arizona, as issued to Applicant/Respondent Victor Afiju Sulleh.
IT IS FURTHER RECOMMENDED that the Board affirm its denial of Applicant’s application for Arizona RN licensure.
Done this day, March 19, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Joey Ridenour, RN, MN, Executive Director
ATTN: Trina Smith
State Board of Nursing
1740 W. Adams St., Ste. 2000
Phoenix, AZ 85007
[email redacted]
Victor Afiju Sulleh, Applicant/Respondent
8885 W. Thunderbird Rd., Apt. 2122
Peoria, AZ 85381
[email redacted]
Deborah Abbey, Esq., Assistant Attorney General
Office of the Attorney General
2005 N. Central Ave.
Phoenix AZ 85004-1592
[email redacted]
By: OAH Staff