VIRGINIA M. HEMINGWAY v. DEPARTMENT OF HEALTH AND SENIOR SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4747-04T24747-04T2

VIRGINIA M. HEMINGWAY,

Petitioner-Appellant,

v.

DEPARTMENT OF HEALTH AND

SENIOR SERVICES,

Respondent-Respondent.

_____________________________________________________________

 

Submitted January 19, 2006 - Decided February 8, 2006

Before Judges Wecker and Graves.

On appeal from a Final Decision of the

Department of Health and Senior Services,

OAL Docket No. HLT 1838-04N.

Virginia M. Hemingway, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Rachana R. Munshi,

Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Virginia M. Hemingway appeals from a final decision of the Department of Health and Senior Services (the Department) dated February 14, 2005, affirming the initial decision by Administrative Law Judge Maria Mancini La Fiandra on January 20, 2005. In her decision, Judge La Fiandra found that the following facts were "essentially undisputed":

1) Petitioner submitted an application for a criminal background investigation (CBI) as part of her application for certification as a nurse aide in New Jersey.

2) On that application there is a series of questions to each of which Petitioner answered "No."

3) The application also contains a statement that the Petitioner understands a false answer on the application form results in an immediate and permanent disqualification from certification as a nurse aide in New Jersey.

4) As a result of the criminal background check, it was found that Petitioner had been convicted of shoplifting on or about March 7, 1996 in the City of Kearny.

The judge concluded from the evidence that petitioner had been convicted of shoplifting even though she "answered in her sworn [criminal background investigation] application that she had not been." Under these circumstances, Judge La Fiandra determined that she had no alternative but to affirm the determination of the Department that disqualified petitioner from certification as a nurse aide in the State of New Jersey.

In order to become a certified nurse aide in New Jersey, each applicant must complete a sworn criminal background investigation. N.J.S.A. 26:2H-84(d), N.J.A.C. 8:43I-2.1(a). If the results of the criminal background check indicate that the applicant has been convicted of any crime or disorderly persons offense involving theft, then that applicant must be disqualified. N.J.S.A. 26:2H-83(a)(1)(c); N.J.A.C. 8:43I-2.3. Furthermore, "[a] person who submits a false sworn statement shall be disqualified from certification as a nurse aide . . . ." N.J.S.A. 26:2H-84(d); accord N.J.A.C. 8:43I-2.8(a).

On appeal, Hemingway acknowledges that she made a mistake many years ago that she has "paid for in life and in money," and she asks that she be given another chance to be certified as a nurse aide in New Jersey. Thus, it is important to note that because Hemingway's notice of disqualification is dated October 30, 2003, the Board acknowledges that she became eligible to re-apply for certification as a nurse aide on October 30, 2005. The Board has stated its position as follows:

In the present case, Ms. Hemingway asks that she be given another chance for certification as a nurse aide in New Jersey. . . . [It is] clear that Ms. Hemingway is given that chance by N.J.A.C. 8:43I-2.8(b). Under N.J.A.C. 8:43I-2.8(b), any applicant disqualified for filing a false sworn statement is eligible to re-apply for certification "two years from the date of the disqualification notice." N.J.A.C. 8:43I-2.8(b). The Department disqualified Ms. Hemingway from certification as a nurse aide in a notice dated October 30, 2003. Thus, she [was] eligible to re-apply for certification on October 30, 2005. . . . Indeed, as of October 30, 2005, Ms. Hemingway is free to re-apply for certification at any time, which the Department can accept if Ms. Hemingway has paid "any outstanding fine balance," and completes "a new and truthful sworn statement and fingerprint impressions . . . ." N.J.A.C. 8:43I-2.8(b).

 
It is clear from the evidence that Hemingway was convicted of shoplifting in the Municipal Court of Kearny on March 7, 1996. And on her notarized criminal background investigation application dated September 15, 2003, she swore that she had never been convicted of any disqualifying offenses or crimes, including shoplifting. In addition, Judge La Fiandra noted in her decision that Hemingway confirmed that after she was charged, she went to court and paid the fine. Accordingly, the record supports the determination that petitioner was disqualified from certification as a nurse aide in the State of New Jersey, because of her conviction for shoplifting and because she filed a false criminal background investigation application.

Affirmed.

(continued)

(continued)

4

A-4747-04T2

February 8, 2006