ALJDEC decisions subject to certification as final

12-022-NMB · Naturopathic Physicians Medical Board · 2014-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2014 APPEARANCES: Respondent Yvonne Skinner, N.D. was represented by Robert Wolkins. The Arizona Naturopathic Physicians Medical Board was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ The Arizona Naturopathic Physicians Medical Board (“the Board”) presented evidence to establish Yvonne Skinner’s violations of applicable statute and cause to revoke her License to Practice Naturopathic Medicine in the State of Arizona. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Board. FINDINGS OF FACT 1. In November 1998, the Board issued License No. 98-548 to Practice Naturopathic Medicine in the State of Arizona to Yvonne Skinner. 2. When Dr. Skinner was licensed, Arizona law authorized naturopathic physicians to dispense controlled substances for a therapeutic purpose. 3. Effective August 22, 2002, the Arizona legislature revised the law to prohibit naturopathic physicians from dispensing controlled substances listed in Schedule I or II, except morphine. 4. On or about July 28, 2010, Dr. Skinner signed a Voluntary Surrender of Controlled Substances Privileges in which she agreed that she voluntarily surrendered her Drug Enforcement Administration Certificate of Registration, unused order forms, and all her controlled substances listed in Schedule II as evidence of her agreement to relinquish her privilege to handle controlled substances listed in Schedule II. Exhibit 1. 5. On or about February 3, 2011, Dr. Skinner prescribed 150 Morphine Sulfate ER 100 mg tablets to Patient TM, a 30 day supply. Exhibits 2 and 9. Morphine Sulfate is a Schedule II drug. A.R.S. § 36-2513(A)(1)(a)(xiii). 6. Dr. Skinner acknowledged she wrote the prescription to Patient TM for Morphine Sulfate. Dr. Skinner indicated she had known Patient TM for many years and knew she was in intractable pain. Dr. Skinner stated she had confirmed with a pharmacist that she was able to write a prescription for Morphine Sulfate. Dr. Skinner admitted she did not make any inquiries to the Drug Enforcement Agency, the Board, or an attorney to determine if she had the ability to prescribe the Schedule II drug. 7. On or about September 19, 2011, Dr. Skinner and the Board entered into a Consent Agreement for Letter of Reprimand and Probation in which Dr. Skinner’s license was placed on probation for one year. The terms of the probation required, among other things, that “[d]uring the term of her probation, [Dr. Skinner] shall obey all federal and state laws and rules governing the practice of naturopathic physicians.” Exhibit 10. Patient JR 8. On or about March 2, 2012, Dr. Skinner prescribed 56 Clonazepam 0.5 mg tablets to Patient JR, her child, a 14 day supply. Exhibits 4 and 9. Clonazepam is a Schedule IV controlled substance. A.R.S. § 36-2515(A)(2)(i). 9. Dr. Skinner’s medical records for Patient JR do not include any reference to an office visit or exam on March 2, 2012. Exhibit 3. 10. On or about March 26, 2012, Dr. Skinner prescribed 6 Clonazepam 0.5 mg tablets with one refill to Patient JR, a two day supply. Exhibits 4 and 9. 11. With respect to the March 26, 2012 prescription, Dr. Skinner’s medical records for Patient JR referenced a March 27, 2012 phone call in which Patient JR stated he was unable to get in contact with his regular physician regarding his medication. Exhibit 3. 12. On or about April 5, 2012, Dr. Skinner prescribed 10 Clonazepam 0.5 mg tablets with one refill to Patient JR, a three day supply. Exhibits 4 and 9. 13. With respect to the April 5, 2012 prescription, Dr. Skinner’s medical records for Patient JR referenced an April 6, 2012 note in which Patient JR again stated he was unable to get in contact with his regular physician regarding his medication. Exhibit 3. 14. On or about April 17, 2012, Dr. Skinner prescribed 10 Clonazepam 0.5 mg tablets with one refill to Patient JR, a three day supply. Exhibits 4 and 9. 15. With respect to the April 17, 2012 prescription, Dr. Skinner’s medical records for Patient JR indicated that Patient JR had lost or stolen his prescription at work and that Dr. Skinner advised Patient JR to “get the dosages straight, with his doctor, and keep track of things.” Exhibit 3. 16. On or about September 14, 2012, Dr. Skinner prescribed 12 Clonazepam 1 mg tablets to Patient JR, a four day supply. Exhibits 4 and 9. 17. With respect to the September 14, 2012 prescription, Dr. Skinner’s medical records for Patient JR indicated that when Patient JR had pneumonia, he took the Clonazepam instead of his prescribed Methadone to ensure the Methadone lasted until his next visit with his regular physician. Exhibit 3. 18. On or about September 17, 2012, Dr. Skinner prescribed 8 Clonazepam 2 mg tablets to Patient JR, a four day supply. Exhibits 4 and 9. 19. With respect to the September 17, 2012 prescription, Dr. Skinner’s medical records for Patient JR indicated that Patient JR again stated he was unable to get in contact with his regular physician regarding his medication. Exhibit 3. 20. On or about September 21, 2012, Dr. Skinner prescribed 8 Clonazepam 2 mg tablets to Patient JR, a four day supply. Exhibits 4 and 9. 21. With respect to the September 21, 2012 prescription, Dr. Skinner’s medical records for Patient JR indicated that Patient JR had decided to move to New York City, New York, and required additional medication so he did not run out while he was moving. 22. On or about October 8, 2012, Dr. Skinner prescribed 60 Clonazepam 0.5 mg tablets to Patient JR, a 30 day supply. Exhibits 4 and 9. 23. With respect to the October 8, 2012 prescription, Dr. Skinner’s medical records for Patient JR indicated that Patient JR had moved to New York City, New York, and that he was unable to get more medication there. Dr. Skinner issued the new prescription “to hold him till he [was] able to find another doctor.” Exhibit 3. 24. Dr. Skinner testified Patient JR was in crisis when she issued the prescriptions. According to Dr. Skinner, Patient JR was going through withdrawal and his physician was attempting to get the dosage of Clonazepam correct to treat Patient JR’s anxiety. Patient JR related to Dr. Skinner on numerous occasions that he had attempted to contact his physician, but the office was not returning his calls. 25. Dr. Skinner acknowledged that Patient JR’s anxiety issues had existed for at least two years prior the March 2, 2012 prescription she had written for Patient JR. 26. Dr. Skinner testified that she believed each prescription she wrote for Patient JR was in response to an emergency situation. Patient AR 27. On or about February 7, 2012, Dr. Skinner prescribed 30 Zolpidem Tartrate 10 mg tablets with two refills to Patient AR, her son, a 30 day supply. Exhibits 7 and 9. Zolpidem Tartrate is a Schedule IV controlled substance. A.R.S. § 36- 2515(A)(2)(xx). 28. With respect to the February 7, 2012 prescription, Dr. Skinner’s typed medical records for Patient AR referenced a February 7, 2013 examination in which Patient AR had started vomiting again. The hand written medical records for Patient AR also referenced a February 7, 2013 date of examination, that the patient had a birthday in June 1979, and that the patient was 34 years of age at the time of the examination. Exhibit 6. 29. The CSPMP indicates Dr. Skinner wrote additional prescriptions for Patient AR for Zolpidem Tartrate 10 mg tablets as follows: March 13, 2012 10 tablets 4 refills March 15, 2012 10 tablets 1 refill March 20, 2012 30 tablets March 29, 2012 10 tablets April 12, 2012 30 tablets

Exhibit 9.

30. Dr. Skinner’s medical records do not include any references for medical examinations or progress notes with respect to the additional prescriptions. Exhibit 6. 31. Dr. Skinner testified she did not write any additional prescriptions after the February 7, 2012 prescription. Dr. Skinner denied including two refills for the prescription at that time. 32. Dr. Skinner asserted that Patient AR was in a federal half- way house at the time of the February 7, 2012 prescription. Because of his living conditions and financial situation, Patient AR was unable to seek medical treatment from a general practitioner to address his intractable vomiting, a condition he had suffered from for years. Dr. Skinner indicated that if Patient AR received treatment from a different physician, she would be forced to pay for it and she could not afford to do so. 33. Dr. Skinner was inconsistent in her testimony especially with respect to the dates of the medical records for Patient AR. Dr. Skinner testified both that the records included in Exhibit 6 were the original documents she completed around the time of the examination and that they had been typed to ensure they were readable by the Board. Dr. Skinner offered no explanation why the age of Patient AR was listed as 34 when he would have been 32 at the time of an office visit in February 2012. Dr. Skinner was also unclear as to why the hand written notes were dated February 2013 instead of February 2012. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.[1] 2. The Board bears the burden of proof and must establish cause to penalize Dr. Skinner’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[4] 3. The Board may discipline a physician who has engaged in unprofessional conduct. A.R.S. § 32-1551. 4. Because Dr. Skinner had voluntarily surrendered her privileges to prescribe Schedule II controlled substances, Dr. Skinner did not have authorization to write a prescription for Morphine Sulfate, a Schedule II drug. Therefore, the Board established by a preponderance of the evidence that Dr. Skinner engaged in unprofessional conduct as defined by A.R.S. § 32-1501(31)(s),[5] in that Respondent’s February 3, 2011 prescription for Morphine Sulfate was a violation of 21 U.S.C. § 841(a)(1).[6] 5. While Dr. Skinner characterized the treatments of Patient JR and Patient AR as being emergency situations, the ongoing nature of Patient JR’s treatment and the financial basis of Patient AR’s need do not qualify as emergency situations. Therefore, the Board established by a preponderance of the evidence that Dr. Skinner engaged in unprofessional conduct as defined by A.R.S. § 32-1501(31)(vv).[7] 6. The above violations reflect unfavorably on the profession. Therefore, the Board established by a preponderance of the evidence that Dr. Skinner engaged in unprofessional conduct as defined by A.R.S. § 32-1501(31)(b).[8] 7. Because Dr. Skinner was on probation when she engaged in the treatment of Patient JR and Patient AR, the treatment of immediate family members in the absence of an emergency or urgent care situation was a violation of the terms of that probation. Therefore, the Board established that Dr. Skinner engaged in unprofessional conduct as defined by A.R.S. § 32- 1501(31)(nn).[9] 8. The Board has therefore established cause under A.R.S. § 32- 1551(H)[10] to revoke Dr. Skinner’s license. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Arizona Naturopathic Physicians Medical Board revoke License No. 98-548 to Practice Naturopathic Medicine in the State of Arizona previously issued to Yvonne Skinner. 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 29, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Gail Anthony, Executive Director Naturopathic Physicians Medical Board ----------------------- [1] See A.R.S. § 32-1501 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at 1182 (6th ed. 1990). [5] A.R.S. § 32-1501(31)(s) defines unprofessional conduct as the “[f]ailure to observe any federal, state, county or municipal law relating to public health as a physician in this state.” [6] 21 U.S.C. § 841(a)(1) makes it illegal to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance without authorization. [7] A.R.S. § 32-1501(31)(vv) defines unprofessional conduct as, “[e]xcept in an emergency or urgent care situation, prescribing or dispensing a controlled substance to a member of the naturopathic physician's immediate family.” [8] A.R.S. § 32-1501(31)(b) defines unprofessional conduct as, “[a]ny dishonorable conduct reflecting unfavorably on the profession. [9] A.R.S. § 32-1501(31)(nn) defines unprofessional conduct as “[v]iolating any formal order, probation, consent agreement or stipulation issued or entered into by the board pursuant to this chapter.” [10] A.R.S. § 32-1551(H) provides as follows: Any doctor of naturopathic medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable to safely engage in the practice of naturopathic medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension or revocation of a license or any combination of these under any conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826