ALJDEC decisions subject to certification as final

24A-2023020008-NUR · State Board of Nursing · 2024-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE DENIAL OF

APPLICATION FOR REGISTERED NURSE LICENSURE BY:

DAVID R. WALLACE III,

APPLICANT.

No. 24A-[number redacted]-NUR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 06, 2024 at 9:00 AM.

APPEARANCES: Assistant Attorney General Charles Hover, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Stephanie Cruz as a witness. Colin Bell, Esq. appeared on behalf of David R. Wallace (“Applicant”) with Applicant as a witness. Jovanna Roman (CCR No. 50725) served as the court reporter for proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: Public Board Exhibits 1-4, and 7-14, Confidential Board Exhibits 5-6, Public Applicant Exhibits 1-8, and Public Minute Entries – Granting Continuance dated February 10, 2024, April 30, 2024, June 26, 2024, and August 05, 2024, were admitted into the evidentiary record.

_____________________________________________________________________

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 this Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Applicant was first issued Registered Nurse (“RN”) License No. RN145925 by the State of Arizona on June 06, 2007, which was scheduled to expire on February 03, 2011.

On February 03, 2011, however, the Board revoked RN145925 for violations of the Arizona Nurse Practice Act. Specifically, Applicant was deemed to have engaged unprofessional conduct including, but not limited to, inappropriate sexual language and behaviors; having a sexual relationship with a clinic patient; providing a patient with prescription Viagra from the clinic; failure to follow employer policies and procedures regarding patient care and documentation; failing to follow doctor’s orders; touching female staff; and for failing to disclose a previous employment termination on an application with a new employer in violation of Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1601(14)(d); Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-403(1), R4-19-405(5), R4-19-403(6), R4-19-403(25), 32-1061(14)(h), 32-1601(14)(j), and 32-1401(16)(d); Ariz. Admin. Code R4-19-403(B)(4), 32-1601(18)(d); Ariz. Admin. Code R4-19-403(14), and R4-19-403(27).

On September 15, 2011, the State of Florida Board of Nursing (“FL BON”) issued a Final Order for the revocation of Applicant’s Florida RN License No. RN3203592, based on the Board’s revocation of RN145925. The FL BON license has not been reinstated.

On September 12, 2017, Applicant surrendered his New York RN License No. RN475163 to the State of New York’s Board of Nursing (“NY BON”). In doing so, Applicant did not contest pending allegations regarding his exhibition of conduct that evidenced moral unfitness to practice nursing. The NY BON license has not been reinstated.

On February 23, 2018, Applicant applied for reissuance of RN145925 with the Board. The following information was obtained over the course of a subsequent investigation regarding his application:

On November 18, 2015, after a psychosexual evaluation of Applicant, Dr. Michael J. Herkov, PhD ABPP ABN recommended that Applicant participate in an intensive sexual boundary issue program.

Applicant never enrolled or participated in the program.

In a 2016 letter, from Ashley Beech-Mavrantaz, MA MSW LCSW of Beech Counseling Services, LLC, Ms. Beech-Mavrantaz stated that she had provided therapy services to Applicant for one (1) year, and had worked with Applicant on having a clear understanding of boundaries in relationships; especially in the workplace, and sexual harassment laws and policies. Per Ms. Beech-Mavrantaz, Applicant made significant behavioral changes pertaining to his mental health conditions, and opined that Applicant had taken great steps to reactivate his nursing license.

During a psychosexual evaluation on September 23, 2019, by Dr. Larry Neidigh, PhD of Community Behavioral Services, Applicant told the evaluator that his counseling with Beech Counseling Services, LLC, was his sole mental healthcare provider. Dr. Neidigh concluded that the counseling Applicant received did not reflect the specialized training and treatment specified by Dr. Herkov, and that Applicant had not sufficiently undergone rehabilitation. Dr. Herkov opined that there would be a risk in reinstating Applicant’s nursing license prior to Applicant accepting responsibility for his past behaviors and demonstrating meaningful rehabilitative change in his attitudes and behaviors.

On December 02, 2019, Applicant withdrew his application for reissuance of RN145925.

On January 10, 2023, Applicant reapplied for reissuance of his RN license with the Board. Attached were six (6) letters of recommendation, and a letter dated March 08, 2017, from Ashley Beech-Mavrantaz, MA MSW LCSW of Beech Counseling Services.

On November 16, 2023, the Board considered Applicant’s reissuance reapplication, and reviewed the following findings from investigator Stephanie Cruz’s (“Investigator Cruz”) Investigative Report and Applicant’s Reinstatement Questionnaire:

Prior to his Arizona licensure revocation, Applicant was having an extramarital affair. Applicant’s affair partner gave him an ultimatum to leave his spouse. Per Applicant, the affair partner threatened to “ruin” him by submitting an anonymous complaint to the Board if he failed to choose her, which she later did. However, because Applicant had stopped nursing and obtained employment in another state as an over-the-road truck driver, he missed a number of correspondences from the Board regarding the complaint. Applicant received a notice of a hearing the day prior to the scheduled proceeding and was unable to attend. His license was revoked shortly thereafter. Applicant stated that he had been in therapy for a year since that time, and learned to understand boundaries.

Regarding the surrender of his New York nursing license, Applicant stated that an investigator called and asked him if he would like to surrender the license. Applicant alleged that he did not get notice of the hearing until the day of, and did not have an opportunity to defend himself. Because the investigator explained that there was a chance Applicant could be denied, he withdrew his application.

Regarding Findings of Fact 5 and 7 from Applicant’s February 03, 20211, Order of Revocation, Applicant shared that he told a coworker not to refer to him as “Richard,” and made a joke about being called “Big Dick” and “Little Dick,” which was overheard by another coworker who did not find his comment(s) funny. Applicant also admitted to touching another coworker’s hair, which bothered her.

Regarding Findings of Fact 6 from Applicant’s February 03, 20211, Order of Revocation, Applicant shared that he rubbed someone’s shoulders while chatting, and did not mean it in a sexual way. Since that time Applicant learned not to touch anyone without consent because it is inappropriate.

Regarding Findings of Fact 8 from Applicant’s February 03, 20211, Order of Revocation, Applicant denied engaging in a sexual relationship with a patient. Per Applicant, the complaint was submitted by a scorned lover. Applicant also denied following an employee home. Applicant did admit to sporadically squirting coworkers with syringes filled with liquid.

Regarding Findings of Fact 10 and 11 from Applicant’s February 03, 20211, Order of Revocation, Applicant admitted to telling a 15-year old patient and her mother, “Let’s get naked,” but denied having done so in a sexual manner. Applicant later realized his comment was very inappropriate.

Regarding Findings of Fact 21 from Applicant’s February 03, 20211, Order of Revocation, Applicant shared that he was dating a tech at work who submitted a report against him because she was upset with him, whereby she alleged that the two had engaged in sexual activity on work premises. Applicant denied the allegation(s).

Ultimately, on November 30, 2023, the Board voted and determined that Applicant, “[F]ailed to submit substantial evidence that the basis for the previous revocation has been removed and that the reissuance of Applicant’s license will not be a threat to public health or safety.” The Board further determined that based upon the findings of fact and statute/rule violations identified in the related Investigative Report, including information presented at the Board meeting, denial of Applicant’s license reissuance reapplication was warranted pursuant to “Ariz. Rev. Stat. §§ 32-1663(A-B); specifically, 32-1601(27)(d), 32-1601(j), Ariz. Admin. Code R4-19-403(1), R4-19-403(9), and R4-19-403(31); R4-19-404(B).

Applicant timely appealed.

On January 03, 2024, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing February 28, 2024. Per the January 17, 2024, Notice of Public Hearing on Denial of Licensure (“Notice of Hearing”) the issue to be determined was whether the Board has cause to deny Applicant’s reapplication for RN licensure based on alleged acts of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1646(A)(3) and 32-1663(A).

Hearing Evidence

The Board called Investigator Cruz as a witness. Applicant testified on his own behalf. The substantive evidence of record is as follows:

On October 01, 2019, Applicant’s employment as a Patient Care Tech with American Renal Associates (“ARA”) in Jacksonville, Florida was terminated for failure to comply with policies and procedures. Per ARA, on March 14, 2019, Applicant left the clinic for over thirty (30) minutes without clocking-out; on March 12, 2019, and March 14, 2019, Applicant failed to clean blood from a treatment chair and failed to take out biohazardous trash; on August 01, 2019, Applicant use his cellular telephone on the treatment floor; on August 13, 2019, Applicant had a drink and cigar on the treatment floor; on August 20, 2019, Applicant was slouched back in a chair with his legs sprawled out in front of him, hands behind his head, and eyes closed while surveyors were in the clinic. Applicant is not eligible for rehire.

On June 08, 2022, while employed as a Certified Clinical Hemodialysis Technician (“CCHT”) for Dialysis Clinic, Inc. (“DCI”) in Gainesville, Florida, Applicant admitted to facility staff that he had pushed intravenous heparin bolus to a patient knowing that such conduct was outside his scope of practice. DCI policy states “Heparin will be drawn up and administered by licensed Hemodialysis personnel, per Florida Nurse Practice Act.”

Per Applicant, he has not engaged in any other rehabilitation outside the year of counseling with Ms. Beech-Mavrantaz in 2016.

Additional Evidence

Applicant testified that he never consumed or possessed alcoholic beverages on a work premises.

Applicant testified that he never napped or slept during a nursing shift.

Applicant testified that he was unaware his 2019 polygraph examination detected deception until the subsequent report was received.

Applicant testified that he never had sex at any of his past work locations.

Applicant testified that he engaged in work outside of his practice due to “muscle memory.”

Applicant testified that he has been humbled by losing RN145925. Since that time, he learned to mind his own business and not to touch others.

Closing Arguments

In closing, the Board argued that Applicant failed to sustain his burden of proof. Specifically, the Board argued that the record was devoid of sufficient evidence to find that Applicant had addressed or overcame/removed all outstanding issues that led to the revocation of his nursing license in the first place, and establish that he will not be a threat to public safety. To that end, the Board further argued that Applicant also failed to established what processes or safeguards would be implemented upon his return to the practice of nursing to ensure he would engage in appropriate workplace conduct and adhere to his employer’s policies and procedures.

In closing, Applicant argued that he had sustained his burden of proof, as evidenced by the fact that he voluntarily sought and submitted to a psychosexual evaluation in 2015, and voluntarily participated in counseling all of 2016. Applicant argued that the 2019 evaluation was unreliable, as it failed to support the allegation that he acted deceptively during his polygraph examination. Applicant opined that the lack of notable behavioral incidents since 2010 evinces the success of therapeutic services he retained. Per Applicant, the Board’s denial was inappropriate when weighed against his efforts and growth.

CONCLUSION OF LAW

This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. §§ 32-1606, 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the practice of nursing in the State of Arizona. The matter was properly brought before OAH for adjudication.

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). As such, the mission of the Board is to 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 supersedes the interest(s) of any individual or group.

Applicant bears the burden of persuasion to show that he meets the requirements for his reapplication to be granted. The standard of proof on all issues is that of a preponderance of the evidence. The Board bears the burden to establish aggravating factors, if any, 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. § 32-1663(A) provides that, “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.”

Ariz. Rev. Stat. § 32-1601(27)(d) provides that unprofessional conduct includes, “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

Ariz. Rev. Stat. § 32-1601(27)(j) provides that unprofessional conduct includes, “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.”

Ariz. Admin. Code R4-19-403(1) provides that unprofessional conduct is defined as, “Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes, “A pattern of failure to maintain minimum standards of acceptable and prevailing nursing practice.”

Ariz. Admin. Code R4-19-403(9) provides that unprofessional conduct is defined as, “Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes, “Failing to take appropriate action to safeguard a patient’s welfare or follow policies and procedures of the nurse’s employer designed to safeguard the patient.”

Ariz. Admin. Code R4-19-403(31) provides that unprofessional conduct is defined as, “Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes, “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. Admin. Code R4-19-404(B)(1) provides a person who applies for reissuance of a license “may do so five (5) years from the date of denial or revocation.”

“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.

The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offense(s).

The issue in the case at bar is, in light of Applicant’s prior conduct that resulted in the revocation of his nursing license, whether grounds exist for the Board grant Applicant’s reapplication for reissuance of License No. RN145925 because Applicant has satisfactory established that he can be trusted at this time to be responsible in his conduct with patients, colleagues, employers, and members of the public in his practice of nursing. The Tribunal finds that Applicant has not sustained his burden of proof.

Applicant did not explain why he did not follow Dr. Herkov’s recommendation for participation in an intensive sexual boundary issue program, or offer any evidence to show that he engaged in significantly similar services. Applicant testified that his year of therapy resulted in revelations regarding respect for others’ space and boundaries, but he never addressed the genesis of his sexualized conduct or issues regarding his lack of adherence to employer policies and procedures, or how he would prevent similar conduct. Applicant did not articulate a plan for any processes or safeguards he has or plans to implement to ensure that his workplace conduct is appropriate if reissued his nursing license.

Applicant downplayed or outright denied multiple allegations regarding inappropriate sexual conduct. In doing so, he also refused to accept responsibility for harm he caused to himself and others.

After closely scrutinizing Applicant’s records, this Tribunal concludes that Applicant has not established by a preponderance of the evidence that he is sufficiently rehabilitated or otherwise safe to practice nursing in the State of Arizona.

In light of the risk of potential harm to patients and the public as a result of Applicant’s prior actions and uncured violations of the Nurse Practice Act, grounds exist for the Board to refuse to reinstate RN License No. RN145925 under Ariz. Rev. Stat. § 32-1663(A). Applicant committed unprofessional conduct and failed to correct the underlying cause(s) of the behaviors that lead to his formal discipline by the Board.

The substantive and credible evidence of record establishes that Applicant cannot be regulated by the Board at this time.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Board dismiss Applicant’s appeal.

IT IS FURTHER RECOMMENDED that the Executive Director of the Board uphold the Board’s November 30, 2023, Order of Denial regarding Applicant’s January 10, 2023, reapplication for licensure as a registered nurse.

NOTICE

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, December 11, 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

State Board of Nursing, Respondent

ATTN: Trina Smith, Stephanie Cruz

1740 W. Adams St., Ste. 2000

Phoenix, AZ 85007

[email redacted]

[email redacted]

Charles Hover, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for Respondent

2005 N. Central Ave. SGD/LES

Phoenix, AZ 85004

[email redacted]

[email redacted]

Colin Bell, Esq.

Stewart Law Group, Counsel for Applicant

202 E. Earll Dr., Ste. 160

Phoenix, AZ 85012

[email redacted]

[email redacted]

By: OAH Staff