Guidelines for criminal conduct

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ARIZONA STATE BOARD OF NURSING
GUIDELINES FOR CRIMINAL CONDUCT
ARS 41- 1091 ( B)
This substantive policy statement is advisory only. A substantive policy statement does not
include internal procedural documents that only affect the internal procedures of the agency and
does not impose additional requirements or penalties on regulated parties or include confidential
information or rules made in accordance with the Az. Administrative procedure act. If you
believe that this substantive policy statement does impose additional or penalties on regulated
parties you may petition the agency under Arizona Revised Statues section 41- 1033 for a review
of the statement.
I. INTRODUCTION AND BACKGROUND
The Board has seen an increase in the number of individuals with criminal backgrounds who are
applying for licensure and certification or who have been convicted of felonies and
misdemeanors while they hold an active license or certificate. In 1995, the Board received only
4 applications with disclosures of felony convictions. During 1996- 1997, the Board received 4- 5
applications per month, or approximately 60 applications per year, with disclosures of felony
convictions. These numbers reflect a 1400% increase in the number of applicants with
disclosures of felony convictions.
There is limited research in the health regulatory area of criminal conduct, length of time needed
to determine rehabilitation and the impact of prior criminal conduct on public safety. A 1982
study done on inmates in prisons in California, Michigan, and Texas identified that 50% of the
inmates had committed 15 crimes per year before being incarcerated ( Criminal Justice?, Edited
by R. J. Bidinotto, 1997). A 1983 Bureau of Justice survey showed that of 63% of 108,000
prisoners released early from prison in 11 states were arrested again within 3 years for new
felony or serious misdemeanor offenses ( Criminal Justice?, Edited by R. J. Bidinotto, 1997).
The Board of Nursing has a legislative duty to protect public health, safety, and welfare. The
Board also recognizes that licensed nurses and certified nursing assistants, the disciplines
included in its regulatory jurisdiction, are responsible for vulnerable individuals ranging from
premature infants to incapacitated elderly persons. With the changes in the delivery of
healthcare services over the past five years, the Board realizes that licensed nurses and certified
nursing assistants care for patients and families in a variety of settings, including a patient’s own
home, where there may be limited or no supervision.
In response to the increase in applicants with criminal histories and the Board’s mandate to
protect the public safety, the following guidelines have been developed.
II. OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM IN ARIZONA
The following information provides a brief overview of the criminal procedures that lead to a
conviction. Section A focuses on the criminal procedures that occur after a crime has been
reported to a law enforcement agency and the case has been referred to a prosecuting agency.
Arizona has three state and one federal prosecuting agencies. The United States Attorney’s
Office prosecutes all federal crimes. At the state level, city prosecutors prosecute misdemeanor
offenses in municipal court. County attorneys and the Arizona Attorney General’s Office
prosecute felonies in superior court.
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Section B highlights the process leading up to a criminal conviction. Approximately 90% of all
criminal convictions in Maricopa County are the result of a guilty plea. The other 10% are the
result of a guilty jury verdict. In both situations, a guilty plea and a guilty jury verdict, result in a
criminal conviction.
Section C is an overview of the sentencing phase following conviction. Prior to imposing the
sentence, the trial court is required to evaluate evidence from a variety of sources. The trial
court then imposes an individualized sentence based on the offender and the offense.
A. Charging a Criminal Case
A criminal case is charged by either the grand jury or a criminal complaint. If a case is charged
by the grand jury, the prosecutor presents evidence to the grand jurors. The grand jury issues a
“ true bill,” indicating that a crime has been committed and the defendant is the perpetrator. The
grand jury proceedings remain secret until the “ true bill”/ indictment is issued. The grand jury
indictment is then filed in superior court and is contained in the defendant’s court file.
The state may file a criminal complaint. The complaint is filed under oath by a peace officer
alleging the offense. Complaints are usually filed in city court.
After the offense is charged, the defendant is then serviced with a criminal summons to appear in
court. A summons is the preferred method as opposed to an arrest warrant. Rule 3.1( b), Ariz. R.
Crim. P. If the defendant fails to honor the summons, the trial court issues a warrant for the
defendant’s arrest.
The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. If
the defendant fails to honor the summons, the trial court issues a warrant for the defendant’s
arrest.
The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. The
magistrate informs the defendant of the charges against him/ her, determines the defendant’s
release, and appoints counsel if the defendant is eligible. A defendant who is charged by
complaint is entitled to a preliminary hearing for a determination of probable cause. Rules 4.2
and 5.2, Ariz. R. Crim. P. The defendant charged by indictment is not entitled to a preliminary
hearing because the grand jurors made a finding of probable cause prior to their issuance of the
“ true bill.”
B. Trial/ Guilty Plea
A criminal case may be resolved either by a guilty verdict following trial or by the entry of a
guilty ( or no contest) plea. Both result in a criminal conviction.
A defendant who proceeds to trial is entitled to representation if he/ she is unable to afford an
attorney. As in civil cases, the defendant makes all the substantive decisions about the case after
receiving advice from defense counsel.
The criminal case then proceeds to discovery. The criminal discovery rules are very liberal.
There is no trial by ambush in Arizona; both parties have a duty to disclose prior to trial. The
trial court has broad discretion to sanction parties who fail to timely disclose witnesses or
required discoverable material. Following discovery, the state might offer the defendant a plea.
In the event of a plea offer, the negotiations can be extensive and time consuming.
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If the defendant proceeds to trial, the state is bound by strict time deadlines. The rules of
evidence apply in a criminal trial, unlike in an administrative hearing. The state has the burden
of proving each element of a criminal offense beyond a reasonable doubt. This is the highest
standard of proof ( much higher than the preponderance of the evidence standard applied in
administrative hearings). The defendant is not required to testify and the jurors are instructed
that they cannot consider the defendant’s silence in deciding the case. The defendant is entitled
to an 8- person jury when the possible sentence is under 30 years. The defendant is entitled to a
12- person jury for capital offenses and cases that carry a possible sentence of 30 years or more.
The jury verdict must be unanimous to either convict or acquit the defendant. If the jury is
“ hung”, the state can retry the defendant.
A defendant who enters a guilty or no contest plea is afforded significant constitutional
protections under the United States and Arizona Constitutions. These protections are codified in
the Arizona statutes and in the Rules of Criminal Procedure. The trial court is required to advise
a defendant of his or her rights and the consequences of pleading guilty or no contest. Rule 17.2.
Ariz. R. Crim. P. The trial court must determine whether the defendant knowingly, voluntarily
and intelligently entered the plea. The defendant is questioned in detail, on the record, in the
trial court regarding whether any force, threats, or promises were made to induce the plea. The
defendant must also provide the trial court with the “ factual basis” for the plea; meaning the
defendant must admit that he/ she committed the elements of the offense. The failure of the trial
court to follow the rules of criminal procedure may be grounds for setting aside the plea. The
Arizona Supreme Court has rejected a defendant’s later claim that he pled guilty, but did not
mean what he had avowed to the court, because accepting the claim would in effect mean that
the trial court condoned perjury.
C. Sentencing
The trial court is the decision- maker in determining the appropriate sentence. ( In some states the
jury imposes the sentence.) The options available to the trial court include imprisonment, or
various types of probation. The trial court is bound by the sentencing guidelines passed by the
state legislature. The legislature has determined that certain offenses warrant a more stringent
sentence. Some of those offenses include drug offenses, crimes committed with a deadly
weapon or a dangerous instrument, crimes against children, crimes committed while on release
( probation, out of custody, parole), and crimes committed by repeat offenders. For example, a
defendant found guilty of a dangerous crime against children in the first degree ( e. g. crimes of
violence, sexual conduct and sexual abuse, commercial sexual exploitation of a minor, and
kidnapping) “ shall be sentenced to a presumptive term of imprisonment for 20 years.” A. R. S. §
13- 604.01( A).
Also, a defendant who commits an offense while released on bail or on the defendant’s own
recognizance “ shall be sentenced to a term of imprisonment 2 years longer than would otherwise
be imposed.” A. R. S. § 13- 604( R).
The trial court has the discretion to sentence a defendant to a term of imprisonment within the
statutory guidelines. A. R. S. § 13- 702- 10. The sentence ranges includes a mitigated,
presumptive, and aggravated term of imprisonment. Felonies range from a class 2 felony to a
class 6 felony. A class 2 felony is the most serious offense other than first- degree murder. A
class 6 felony is the least serious felony. The sentencing range for felonies increases with the
seriousness of the offense.
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Prior to imposing sentence, the trial court must consider the aggravating circumstances presented
by the state and the mitigating circumstances presented by the defendant. The trial court also
considers the probation officer’s recommendation and the victim’s statement.
The trial court is not required to accept the aggravating and mitigating circumstances at face
value. Rather, the trial court has the discretion to evaluate the relevance and credibility of
evidence. For example, often times the defendant will express remorse of their offense. The
trial court determines whether a defendant’s expression of remorse is genuine. In some cases the
trial court finds that the defendant is only remorseful for getting caught and facing a prison term.
Additionally, in capital cases, the Arizona Supreme Court has consistently rejected a defendant’s
claim in mitigation that they were raised in an abusive childhood, finding that, “ The remedy for
one who has been molested is not to molest others and ask to be excused, but rather to submit to
therapy, which, as noted above, defendant has repeatedly refused to do.” State v. Atwood, 171
Ariz. 576, 655, 832 P. 2d 593, 679 ( 1992).
If the defendant is convicted of a probation eligible offense, the trial court may suspend the
imposition of a prison sentence and impose probation. There are many types of probation
including intensive probation ( A. R. S. § 13- 913), supervised probation, and unsupervised
probation. A. R. S. § 901. In all types of probation, the trial court has the discretion to sentence
the defendant to serve 1 year in jail. Intensive probation has very strict requirements, including
that the defendant must contact his/ her probation officer on a weekly basis, must be employed,
actively seeking employment, or in school. The length of probation ranges from 7 years for a
class 2 felony, to 3 years for a class 5 or 6 felony. A. R. S. § 13- 902( A). These periods of
probation may be shortened or lengthened by the trial court. Additionally, the trial court has the
discretion to impose lifetime probation for defendants who are convicted of sexual offenses,
sexual exploitation of children, and child or vulnerable adult abuse.
The trial court also has the option at sentencing to classify a class 6 felony as an “ open- ended
offense” or an “ undesignated offense.” Following the defendant’s successful completion of
probation, the trial court has the discretion to designate the offense as a misdemeanor. This
provides further incentive for the defendant to comply with probation. A class 6 undesignated
felony offense is considered a felony for all purposes until the trial court makes a final
designation.
Following a sentence of imprisonment, the defendant has 30 days to file a notice of appeal in the
Arizona Court of Appeals. The defendant is entitled to legal representation on appeal. If the
defendant is unsuccessful in his/ her direct appeal, he/ she can file a petition for review in the
Arizona Supreme Court. The Arizona Supreme Court has discretionary review of petitions for
review and accepts only 10% of the petitions filed.
III. BOARD OF NURSING INVESTIGATION TECHNIQUES
USED IN CASES INVOLVING CRIMINAL CONDUCT:
All self disclosures or complaints of criminal conduct resulting in arrests and convictions in a
court of law will be investigated by the Board utilizing the following investigation strategies.
A. Investigation Process
The following steps outline the standard process used during the investigation of a criminal
complaint ( Note: this process will be altered on the basis of the perceived impact of the offense
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on public safety. If there is a concern for imminent risk of the public safety, the case will be
considered for a possible summary suspension):
• Self disclosure or complaint is triaged and assigned to Board investigator.
• The applicant or licensee/ certificate holder ( L/ CH) and/ or the complainant will be
notified by mail of the pending investigation and the identity of the investigator.
• A questionnaire pertaining to arrests will be sent to the applicant or L/ CH to complete
and return to the assigned Board investigator.
• The Board investigator may contact the applicant L/ CH when the questionnaire is
returned or wait until subpoenaed documents are received.
• Subpoenas for arrest and conviction information are sent ( see section below on specific
information to be included in subpoenas).
• Subpoenas will also be sent for employment records and patient records, if applicable
• Probation or parole officer is interviewed ( often a phone interview).
• Additional interviews are conducted, if applicable, e. g. witnesses, employers.
• Follow up phone calls to courts or police departments must be done for records that have
not been received or could not be obtained, or on records which require further
clarification.
The applicant or L/ CH is interviewed and informed of the investigative process, possible
outcomes, time frame for investigation and the right to a hearing. The applicant or L/ CH is
interviewed to obtain information about the criminal conduct, the arrest( s), court sentencing and
completion of court mandated requirements. The applicant or L/ CH is also asked for any
documents, persons to interview, letters from sponsors or letters of recommendation the
applicant or L/ CH feels important to the investigation.
B. Subpoenas to Courts
Information that may be included in a subpoena to a court include:
1. Request for charging document, e. g., grand jury indictment or criminal complaint,
2. Request for the plea agreement,
3. Request any changes in the plea agreement, if applicable,
4. Request minute entry of judgment of conviction,
5. Request for pre- sentencing documents,
6. Request for minute entry for change of plea,
7. Request for the conditions of probation,
8. Request for the petition to revoke, if applicable,
9. Request for minute entry revoking probation, if applicable, and
10. Request for the minute entry of the sentence.
C. Investigative Analysis
In each case the investigator analyzes:
• Information provided by the applicant or L/ CH e. g., is information concerning the events
surrounding the arrest consistent with the information contained in police and court
documents, can the applicant or L/ CH explain any differences?
• Was new information received during the investigation, e. g., arrests or convictions that
were not disclosed on Board or employment applications?
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• Did the applicant disclose prior criminal history to employers?
• What was the nature of the criminal act? Did it involve a crime against a patient or
vulnerable person?
• Are there extenuating circumstances that lead to the criminal conduct?
• Is the arrest or conviction a one time act or part of a pattern of behavior?
• How long ago did the arrest or conviction occur?
• What was the age of the applicant or L/ CH when the event occurred?
• Is the applicant or L/ CH in the same living conditions as when the event occurred i. e.
living with the same partner or associating with the same friends?
• What type of rehabilitation activities has the applicant or L/ CH completed and what type
of rehabilitation activities is the applicant or L/ CH currently pursuing? Is there proof of
their involvement/ completion of these rehabilitative activities?
• How has the applicant or L/ CH performed in the work environment, particularly a health
care work environment?
• What has the applicant or L/ CH stated he or she learned from the situation? How would
he or she react if he or she encountered a similar situation again?
• Does the applicant or L/ CH express remorse about or accept responsibility for the
arrest/ conviction?
D. Investigative Referrals
Once the above factors have been considered, the Board investigator will review the content of
the investigation to determine if:
1. the case should proceed along the normal investigative process,
2. an evaluation is needed to determine the applicant or L/ CH’s risk to public safety,
3. the applicant or L/ CH is an imminent risk to public safety and a summary suspension
should be considered,
4. the circumstances of the offense are serious enough to warrant revocation,
5. there is a need for referral to a criminal investigative agency.
If, after review, the investigator feels an evaluation is necessary to determine whether the
applicant or L/ CH is safe to practice, the investigator will refer the applicant or L/ CH to a
professional with specific expertise in the area of concern. Once the applicant or L/ CH has
confirmed the scheduling of an appointment, the investigator will send a letter to the evaluator,
including pertinent documents, identifying the presenting problem, concerns of the Board,
questions the evaluator should address, need for and possibility of improvement of the behavior
of concern with treatment, and safety to practice with suggestions for work restrictions and
monitoring reports to the Board.
If, after review, the investigator feels that the applicant or L/ CH’s behavior is an imminent threat
to public health and safety, then the main objective is to remove the applicant or L/ CH from
practice as soon as possible. In this case, the investigator would meet with the Executive
Director and the Assistant Attorney General to discuss possible summary suspension. If a
summary suspension is not felt to be appropriate, the Executive Director, with the advice of the
Assistant Attorney General, may agree to offer a consent agreement for revocation.
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The investigator will also consider if a referral is needed to the appropriate law enforcement
entity regarding the complaint ( if a referral has not already been made). A referral to a law
enforcement entity may be delayed if, in the judgment of the investigator, such a referral would
jeopardize the Board’s investigation.
IV. DISCIPLINARY GUIDELINES
Proposed changes to the Nurse Practice Act restrict individuals with felony convictions whose
date of absolute discharge is less than five yeas from the date of application from being eligible
to apply to become a licensed nurse or certified nursing assistant. Further, if a licensed nurse or
certified nursing assistant commits a felony offense, he or she is no longer eligible to retain a
license or certificate and his or her license or certificate will be revoked.
Granting of licensure or certification for applicants, and continuance of licensure or certification
for licensed nurses and certified nursing assistants convicted of misdemeanor offenses or whose
felony convictions and completion of sentencing occurred more than 5 years prior to the date of
application, will be decided by the Board. The Board will exercise its discretion in evaluating
each application or complaint on a case by case basis.
The following disciplinary guidelines incorporate current provisions in the Nurse Practice Act,
proposed revisions to the Nurse Practice Act, the data presented earlier in this document, and
decisions made by the Board in 1997 concerning applicants, licensees, and certificate holders
with felony convictions. These guidelines provide background information for the Criminal
Conduct Discipline Model presented on page 14. The guidelines will be revised as additional
Board data and research are analyzed and the impact on public safety is evaluated.
DISCIPLINARY GUIDELINES
( Basis for the Criminal Conduct Disciplinary Model)
Criminal Conduct *
Options**
Applicants with 1- 2 felony convictions and
sentencing guidelines completed ( absolute
discharge) for more than 5 years from date of
application.
• Conviction( s) did NOT involve
• crimes against a patient or
children, includes abuse or
patient harm.
• sexual offenses and/ or other
offenses committed with a
dangerous instrument or deadly
weapon
• personal use or involvement with
illegal drugs
Applicants:
1. Grant licensure or certification, contingent
on passing applicable exams, with letter of
concern for criminal conduct.
2. Grant licensure, contingent on passing
applicable exams, with civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
3. Grant licensure contingent on passing
applicable exams and signing
Practice/ Monitoring probation.
4. Deny licensure or certification due to
criminal conduct.
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Criminal Conduct *
Options**
Applicants with 1 - 2 felony convictions and
sentencing requirements completed ( absolute
discharge) for more than 5 years from date of
application.
• Conviction( s) involve
• crimes against a patient or
children, includes abuse or
patient harm.
• sexual offenses and/ or other
offenses committed with a
dangerous instrument or deadly
weapon
• personal use or involvement with
illegal drugs
Applicants:
1. Deny licensure or certification due to
criminal conduct.
2. Grant licensure contingent on passing
exams and contingent upon signing a
consent agreement for CD probation.
3. Grant licensure contingent on passing
applicable exams and contingent upon
signing a Practice/ Monitoring probation.
4. Grant licensure contingent on passing
applicable exams and acceptance into
CANDO program.
5. Grant licensure or certification, contingent
on passing applicable exams, with a letter of
concern for the criminal conduct.
6. Grant licensure, contingent on passing
applicable exams, with a civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
Applicants with more than 2 felony convictions and
sentencing requirements completed ( absolute
discharge) for more than 5 years from date of
application.
Applicants:
1. Deny licensure or certification due to
criminal conduct.
2. Grant licensure contingent on passing
exams and contingent upon signing a
consent agreement for CD probation.
3. Grant licensure contingent on passing
applicable exams and contingent upon
signing a Practice/ Monitoring probation.
4. Grant licensure contingent on passing
applicable exams and acceptance into
CANDO program.
5. Grant licensure or certification contingent
on passing applicable exams with a letter of
concern for the criminal conduct.
6. Grant licensure contingent on passing
applicable exams with a civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application
Licensees or certificate holders with felony
conviction( s) since date licensed, certified or renewed.
Licensees/ certificate holders:
1. Revocation of license or certificate.
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Criminal Conduct *
Options**
2. Summary suspension for licensee/ certificate
holder if behavior is an imminent threat to
public safety.
3. Adopt court sentence if revocation ordered
by court and issue Notice of Revocation.
Applicants, licensees, or certificate holders with 1- 2
misdemeanor convictions and sentencing requirements
completed.
• Convictions do NOT involve
• crimes against a patient or
children, includes abuse or
patient harm.
• sexual offenses and/ or other
offenses committed with a
dangerous instrument or deadly
weapon
• personal use or involvement with
illegal drugs
Applicants:
1. Grant licensure or certification.
2. Grant licensure or certification, contingent
on passing applicable exams, with letter of
concern for criminal conduct.
3. Grant licensure, contingent on passing, with
civil penalty for failure to disclose criminal
conduct on, if applicable, Board’s
application.
Licensees/ certificate holders:
4. Dismiss the complaint.
5. Issue letter of concern for criminal conduct.
6. Decree of Censure for criminal conduct.
Applicants, licensees, or certificate holders with 1- 2
misdemeanor convictions and sentencing requirements
completed.
• Conviction( s) involve
• crimes against a patient or
children, includes abuse or
patient harm.
• sexual offenses and/ or other
offenses committed with a
dangerous instrument or deadly
weapon
• personal use or involvement with
illegal drugs
Licensees/ certificate holders:
1. Allow licensee to enter CANDO program.
2. Place licensee on CD probation.
3. Place licensee on Practice/ Monitoring
probation.
4. Suspend license pending applicable
treatment.
5. Deny licensure or certification due to
criminal conduct.
6. Issue licensee a Decree of Censure.
7. Issue interim order for evaluation by a
professional with expertise in the area of
concern.
8. Issue letter of concern for criminal conduct.
Applicants:
9. Grant licensure contingent on passing
applicable exams and contingent upon
signing a consent agreement for CD
probation.
10. Grant licensure contingent on passing
applicable exams and contingent upon
signing a Practice/ Monitoring probation.
11. Grant licensure contingent on passing
applicable exams and acceptance into
CANDO program.
12. Grant certification or licensure contingent
on passing applicable exams with letter of
concern for the criminal conduct.
13. Grant licensure contingent on passing
applicable exams with a civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
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Criminal Conduct *
Options**
Applicants, licensees, or certificate holders with 3 or
more misdemeanor convictions within the past 5 years.
Licensees/ certificate holders:
1. Revocation of license or certificate if
pattern of conduct presents imminent threat
to public safety.
2. Issue interim order for evaluation by a
professional with expertise in the area of
concern.
3. Suspend license pending applicable
treatment.
4. Place licensee on CD probation.
5. Place licensee on Practice/ Monitoring
probation.
6. Allow licensee to enter CANDO program.
7. Issue licensee a Decree of Censure.
8. Deny licensure or certification due to
criminal conduct.
Applicants:
9. Issue letter of concern for criminal conduct.
10. Grant licensure contingent on passing
applicable exams and contingent upon
signing a consent agreement for CD
probation.
11. Grant licensure contingent on passing
applicable exams and contingent upon
signing a Practice/ Monitoring probation.
12. Grant licensure contingent on passing
applicable exams and acceptance into
CANDO program.
13. Grant certification or licensure contingent
on passing applicable exams with letter of
concern for the criminal conduct.
14. Grant licensure contingent on passing
applicable exams with a civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
Applicants, licensees, or certificate holders with 3 or
more misdemeanor convictions all occurring more than
5 years from date of disclosure/ report.
Applicants:
1. Grant licensure or certification, contingent
on passing applicable exams, with letter of
concern for criminal conduct.
2. Grant licensure or certification, contingent
on passing applicable exams, with civil
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Criminal Conduct *
Options**
penalty for failure to disclose criminal
conduct, if applicable, on Board’s
application.
3. Grant licensure contingent on passing
applicable exams and acceptance into
CANDO program.
Licensee/ certificate holders:
4. Issue letter of concern for criminal conduct.
5. Issue interim order for evaluation by a
professional with expertise in the area of
concern.
6. Allow licensee to enter CANDO program.
7. Order 1- 3 years applicable probation for
licensee.
8. Deny licensure or certification due to
criminal conduct.
9. Revocation of license or certificate.
Applicants with misdemeanor conviction involving
moral turpitude and sentencing requirements complete
for more than 5 years from date of application.
Examples of moral turpitude:
1. Offenses involving dishonesty such
as:
forgery,
fraud,
theft,
misrepresentation,
perjury.
2. Crimes involving corrupt public
morals, such as:
prostitution,
indecent exposure,
sale of pornography to minors.
Applicants:
1. Grant licensure or certification, contingent
on passing applicable exams, with letter of
concern for criminal conduct.
2. Grant licensure, contingent on passing
applicable exams, with civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
3. Grant licensure contingent on passing exam
and contingent upon signing
Practice/ Monitoring probation.
4. Deny licensure or certification due to
criminal conduct.
Applicants, licensees, or certificate holders with
misdemeanor conviction involving moral turpitude
within 5 years of date of application.
Licensees/ certificate holders:
1. Revocation of license or certificate.
2. Summary suspension for licensee/ certificate
holder if conduct presents imminent threat
to public safety.
3. Suspend license pending applicable
treatment.
4. Order 1- 3 years applicable probation for
licensee.
5. Issue interim order for evaluation by a
professional with expertise in the area of
concern.
6. Issue licensee a Decree of Censure.
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Criminal Conduct *
Options**
7. Issue letter of concern for criminal conduct.
Applicants:
8. Deny licensure or certification due to
criminal conduct.
9. Grant licensure contingent on passing
applicable exams and contingent upon
signing a consent agreement for CD
probation.
10. Grant licensure contingent on passing
applicable exams and contingent upon
signing a Practice/ Monitoring probation.
11. Grant certification or licensure on passing
applicable exams with a letter of concern for
the criminal conduct.
12. Grant licensure contingent on passing
applicable exams with a civil penalty for
failure to disclose criminal conduct, if
applicable, on Board’s application.
* Undesignated offenses are considered felony
offenses until designated as misdemeanors by
the court.
** Options listed in order of decision most often
made.
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DISCIPLINARY MODEL
The Criminal Conduct Disciplinary Model below reflects historic issues of concern for the Board
as well as incorporating patterns of Board decisions from 1997. The model is intended to
provide an objective decision making process and allow decisions to be quantified. The model
will be piloted over the next year.
The following assumptions were used in creating the criminal conduct disciplinary model:
1. Key areas evaluated when making decisions can be divided into 3 main
sections.
2. Risk factors need to be further defined by severity factors
3. Board discretion is not quantified
4. The model should be accurate approximately 85% of the time
CRIMINAL CONDUCT DISCIPLINARY MODEL
MINIMAL Risk to Public Safety
0- 13 points
MODERATE Risk to Public Safety
14 - 30 points
Options:
1. Grant licensure or certification.
2. Grant licensure or certification, contingent on
passing applicable exams, with letter of concern for
criminal conduct.
3. Grant licensure, contingent on passing applicable
exams, with civil penalty for failure to disclose
criminal conduct, if applicable, on Board’s
application.
4. Dismiss the complaint.
5. Issue letter of concern for criminal conduct.
6. Issue Decree of Censure.
Options:
1. Grant licensure contingent on passing applicable
exams and acceptance into CANDO program.
2. Issue interim order for evaluation by a professional
with expertise in the area of concern.
3. Allow licensee to enter CANDO program.
4. Order 1- 3 years applicable probation for licensee.
5. Summary Suspension if behavior presents imminent
threat to public safety.
If point count is in the low range, consider:
1. Grant licensure or certificate, contingent on passing
applicable exams, with letter of concern for criminal
conduct.
2. Grant licensure contingent on passing applicable
exams and acceptance into CANDO program.
3. Issue letter of concern for criminal conduct.
4. Issue Decree of Censure.
HIGH Risk to Public Safety
31 - 46 points
SEVERE RISK to Public Safety
47 - 60 points
Options:
1. Deny licensure or certification due to criminal
conduct.
2. Revocation of license or certificate.
3. Summary suspension for licensee or certificate
holder if conduct presents imminent threat to public
safety.
4. Suspend license pending applicable treatment.
5. Order 1- 3 years applicable probation for licensee.
Options:
1. Summary suspension for licensee/ certificate holder
if conduct presents imminent threat to public safety.
2. Deny licensure or certification due to criminal
conduct.
3. Revocation of license or certificate.
N:\ AZBN POLICIES- PROCEDURES\ SUBSTANTIVE POLICIES & POSITION PAPERS\ Guidelines for Ciminal Conduct\ Guidelines for C1rim4inal Conduct. doc
METHODOLOGY
Risk factors ( add the values of time and number indices) + Investigative Analysis + Employment Factors = Board Options
SCORING GRID TO USE IN EVALUATING CASES WITH CRIMINAL CONDUCT
Points are accumulated due to affirmative responses
Risk Factors *
( 4- 60 pts)
Investigative Analysis
( 0- 15 pts)
Employment Factors
( 0- 10 pts)
• Crimes against a patient or children, including abuse or patient harm. ( 6)
• Crimes involving sexual offenses and/ or other offenses committed with a
dangerous instrument or deadly weapon. ( 6)
• Involves personal use of illegal drugs ( 3)
• Crime involves illegal drugs ( 3)
• Other type of conviction ( 2)
* Choose one risk factor, then apply the severity indices listed below
• Applicant/ respondent provides false
information to Board ( 5)
• Applicant/ respondent provides false
information to employer( s) ( 4)
• Applicant/ respondent presently
participates in prior behavior( s) or with
prior contacts ( 2)
• Applicant/ respondent has NOT
participated in rehab activities ( 2)
• Applicant/ respondent has no remorse
or accepts no accountability for
behavior ( 1)
• Applicant/ respondent has a high
probability of repeating behaviors. ( 1)
• Applicant/ respondent has poor work
performance ( 3)
• Applicant/ respondent has practice
issues ( 3)
• Applicant/ respondent has positive
pre- employment and or other drug
screens ( 2)
• Applicant/ respondent has not been
employed for greater than 1 year ( 1)
• Applicant/ respondent has had more
than two employers in the past 5
years ( 1)
SEVERITY INDICES*
Index A1 = Length of time
( misdemeanor) Length of time since
most recent misdemeanor conviction.
Multiply the risk factor score by:
OR
Index A2 = Length of time ( felony)
Length of time since most recent
felony conviction.
Multiply the risk factor score by:
5 - if the misdemeanor occurred
within the past year
4 - if the misdemeanor occurred
within the past 1- 2 years
3 - if the misdemeanor occurred
within the past 3- 4 years
2 - if the misdemeanor occurred
within the past 5 years
1 - if the misdemeanor occurred
more than 5 years ago
5 - if felony occurred 5 years ago
3 - if felony occurred within past 6- 10
years
1 - if felony occurred more than 10
years ago.
Index B = Number of convictions. Multiply the risk factor score by:
5 - if person has 3 or more convictions.
3 - if person has 2 convictions
1 - if person has 1 conviction
N:\ AZBN POLICIES- PROCEDURES\ SUBSTANTIVE POLICIES & POSITION PAPERS\ Gu1ide5lines for Ciminal Conduct\ Guidelines for Criminal Conduct. doc
EXAMPLE 1
CNA Applicant with 1997 sexual abuse conviction, falsified information to Board and employer
and had employment issues.
SCORING:
Risk factors:
Crime against patient ( 6) x 5 ( time index) = 30
Crime against patient ( 6) x 1 ( number index = 6
Subtotal 36
Investigative Analysis
Non- disclosure to Board and employer 9
Employment factors
Poor work performance and practice issues 6
Total 51
51 points on the model is in the Severe Risk to Public Safety section, with Board options of
Summary Suspension, Revocation, or Denial.
The Board denied certification to this CNA applicant.
N:\ AZBN POLICIES- PROCEDURES\ SUBSTANTIVE POLICIES & POSITION PAPERS\ Gu1ide6lines for Ciminal Conduct\ Guidelines for Criminal Conduct. doc
EXAMPLE 2
LPN Applicant with 1985 felony weapon conviction, 1986 felony fraud conviction, no disclosure
or employment issues.
SCORING:
Risk factors:
Other conviction ( 2) x 1 ( time index) = 2
Other conviction ( 2) x 3 ( number index) = 6
Subtotal 8
Investigative Analysis 0
Employment factors 0
Total 8
8 points on the model is in the Minimal Risk to the public section, with Board options to grant
licensure/ certification, issue letter of concern, or civil penalty.
The Board granted this LPN a license.
NR: trb, 2/ 98