ALJDEC

98A-9708119-NUR · State Board of Nursing · 1999-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 1998

APPEARANCES: Applicant appeared on her own behalf; Assistant Attorney General Mona Peugh-Baskin appeared on behalf of the State of Arizona, Arizona State Board of Nursing.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Jackie Lyons (Applicant) appeals from the denial of her application for certification as a certified nursing assistant (CNA) by the Arizona State Board of Nursing (Board). The Board denied the application based on felony convictions, lack of full disclosure on her application, and other concerns. The parties presented evidence and testimony at the hearing and, based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order upholding the Board’s denial of certification. FINDINGS OF FACT 1. In May 1996, Applicant filed a Nursing Assistant Examination Application with the Board. (Exhibit 1 at 01-02.) On the second page of the application, the following instructions and question appeared: Please answer the following question. If you answer “yes” to the question, please write an explanation that includes the date and circumstances. Also, include any relevant court documents.

( Have you ever been arrested, pled guilty to or been convicted of any criminal offense other than a minor traffic violation?

If yes, explanation:

(Id. at 02.) There was an area for written explanation. In that area, Applicant wrote, “In 1977“ and then went on to explain that she has had her civil rights restored, she is ashamed of her past, and that she felt that convictions over ten years old should not have to be disclosed, with a few exceptions. (Id.) The Board staff began an investigation into Applicant’s background. The investigation was laborious and lengthy because CNA applicants are not required to submit fingerprints and the Board is not authorized to receive FBI criminal histories for these applicants. 2. The Board erroneously certified Applicant in June 1996. In June 1997 the Board discovered its error and refused to renew the certificate. Meanwhile, the staff continued to investigate the application. This caused some confusion to Applicant at the time, August 1997. It also confused this Administrative Law Judge at the hearing because the State did not disclose the erroneous certification until its rebuttal. However, that information, while helpful to complete the story, is not material to the legal issues in this case. 3. The Board staff’s investigation into Applicant’s background revealed several felony convictions. In September 1972, Applicant was convicted after a bench trial in Maricopa County Superior Court (CR-70970) of felony Possession of Dangerous Drugs (amphetamine), and was placed on probation for three years. (Exhibit 1 at 22-23.) The pre-sentence report in that case notes that Applicant had tried many different illegal drugs and that she had been addicted to heroin. (Id. at 18.) The writer of the report did not believe that she had kicked the habit. (Id.) In September 1975, Applicant was discharged from probation for that offense. (Id. at 24.) In December 1995, Applicant had the judgment of guilt vacated and her civil rights restored. (Id. at 25.) 4. In November 1973, Applicant pled guilty and was convicted in Maricopa County Superior Court (CR-77411) of felony credit card forgery, and was placed on probation for 2 years. (Id. at 30-31.) In October 1975, Applicant was discharged from probation for that offense. (Id. at 32.) In December 1995, Applicant had the judgment of guilt vacated and her civil rights restored. (Id. at 33.) 5. In November 1977, Applicant pled no contest and was convicted in Maricopa County Superior Court (CR-97448) of felony Sale of a Narcotic Drug (heroin). (Id. at 34-42.) Applicant was sentenced in absentia and was given five years' incarceration in the Arizona State Prison. (Id. at 41- 42.) Applicant served her sentence. In December 1995, Applicant had the judgment of guilt vacated and her civil rights restored. (Exhibit A.) 6. In July 1981, Applicant pled guilty and was convicted in Maricopa County Superior Court (CR-118957) of two counts of felony aggravated assault based on an altercation between Applicant and two prison guards. Applicant was sentenced to 2¼ years in the Arizona Department of Corrections. She served her sentence, and in February 1996 Applicant had the judgment of guilt vacated and her civil rights restored. (Id. at 52.) 7. In October 1998, the Board denied Applicant’s application for a CNA certificate. (Id. at 03-07.) Applicant promptly requested a hearing. 8. At the hearing in this matter, the State presented the documentary evidence of Applicant’s convictions as stated above. The State also submitted evidence from a 1994 Mesa Police Department investigation. (Id. at 53-67.) During an investigation of a theft/forgery complaint from which Applicant was later exonerated by fingerprint evidence, Applicant discussed her drug abuse history with the investigating detective. The detective noted that Applicant stated that she was a heroin addict, had been since she was 17 years old, and had gone “on and off the wagon” several times. (Id. at 62.) This hearsay statement is found to be reliable because it generally conforms with the other evidence in this record and with Applicant’s testimony. The detective also noted that Applicant had “fresh track marks” on her wrist. Applicant denied the marks at the hearing. The detective’s observation is given some weight, but not a great deal of weight because there is no evidence regarding the detective's skill in this area. 9. The State also put forth expert testimony from Jane Werth and Val Smith, both Masters level nurses, about chemical dependency and the nature of addiction. Based on their reviews of the Exhibits in this matter (Ms. Werth has also had a meeting with Applicant), they both opined that Applicant’s behavior fit the profile of an addict. Applicant has shown compulsive and impulsive behaviors, is not involved in ongoing treatment, is not active in recovery, has not been involved in any 12 step programs and is critical of them, and is, therefore, at a high risk to return to abuse. Furthermore, Applicant claims to have gotten off heroin through methadone treatment, but there is no documentation showing that she successfully completed the treatment. Applicant appears to be in denial about her addiction. Both expert witnesses were concerned about this since CNAs are authorized to work in an environment where drugs are prevalent. They felt that Applicant would be at a high risk for relapse. 10. Applicant also testified at the hearing. She stated that she has been clean and sober in the 1990’s and has had her civil rights restored. She claimed that she was not trying to be deceitful on the application, but thought that she had disclosed enough and that the Board would get back to her if it wanted more information. She admitted that her past is very poor, but stated that she has changed her ways. CONCLUSIONS OF LAW 1. The Board has discretion to deny an application if an applicant has committed unprofessional conduct as defined by statute. Arizona Revised Statutes (A.R.S.) § 32-1663(A)(1995-96 Supp.).( Unprofessional conduct is defined in A.R.S. § 32-1601(10), subsections (a) through (m). 2. Applicant has committed unprofessional conduct under subsection (a), committing fraud or deceit in obtaining or attempting to obtain a license, by failing to disclose all her felony convictions on the application. Although the convictions were in the distant past (most were years old), Applicant had a duty to accurately disclose each conviction to the Board. 3. Taken together, subsection (b), commission of a felony, and subsection (d), conduct that might be harmful or dangerous to a patient or the public, provide grounds for denial because the evidence shows that Applicant has failed to make a serious effort at recovery. Pursuant to A.R.S. § 13-904(E), restoration of civil rights does not preclude the Board from considering Applicant’s convictions. But by themselves, her felony convictions are so old (1972, 1973, 1977, and 1981) as to not carry much weight. However, the record clearly shows that Applicant has a significant history of drug experimentation and addiction. Applicant has not shown that she is recovered. There is no evidence of a serious and successful attempt at recovery on her part. Based on the expert testimony, Applicant appears to still be in denial and still be at risk for relapse. Thus, the Board’s concerns about allowing her CNA-level access to an environment filled with drugs is a reasonable basis for denial at this time. Applicant may have taken a few steps toward recovery, but the Board has the duty and responsibility to require her to show that she is indeed in recovery and is not at high risk for relapse. 4. The record is insufficient to support a conclusion that Applicant has committed unprofessional conduct under subsection (j)[currently subsection (h)], committing an act that deceives, defrauds or harms the public. Although Applicant failed to disclose requested information to the Board, she has not thereby deceived, defrauded or harmed the public. For example, there is no evidence that Applicant held herself out to the public as being a CNA when she was, in fact, not certified as such. 5. The Board had grounds to deny Applicant’s application for a CNA certificate. RECOMMENDED ORDER Based on the findings and conclusions above, IT IS RECOMMENDED that the Arizona State Board of Nursing uphold its denial of Jackie L. Lyons’ May 1996 application for certification as a nursing assistant.

Done this 15th day of January 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of January 1999, to:

Joey Ridenour, Executive Director ATTN: Jane Werth Arizona State Board of Nursing 1651 West Morten, #150 Phoenix, AZ 85020

By _______________________________

( The statues cited in the Conclusions of Law are those that were in effect in May 1996, when Appellant filed her application. The current statutes have been modified. The 1995-96 version is the applicable version of the statutes. The Board’s citations in the application denial and the Notice of Hearing are to the current version. However, as the applicable statutes have not been greatly modified, this does not constitute a lack of adequate notice from the Board.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826