FINACT13A-1208041-NURAND13A-1309027-NUR.pdf

13A-1309027-NUR · State Board of Nursing · 2019-09-18

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 Phone (602) 771-7800 Fax (602) 771-7888 Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: September 18, 2019

RE: Lorraine Claire Schenkel Docket No. 13A-1208041-NUR and 13A-1309027-NUR (Consolidated) ______________________________________________________________________________

On September 17, 2019, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke Registered Nurse License No. RN122042 and Advanced Practice Certificate No. AP2214 issued to Lorraine Claire Schenkel.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety with minor clerical modifications as follows:

1. In Finding of Fact No. 15, Valerie Smith’s credentials should be corrected to read “R.N., M.S., F.R.E.” 1

2. In Finding of Fact No. 37, the location of the 2016 DUI arrest should be corrected to read “Tucson,” not “Phoenix.” 2

3. In Finding of Fact No. 38, the last sentence of that paragraph should be amended as follows: “Ms. Smith testified persons who are prescribed Trazadone, Dilaudid, and Lorazepam are cautioned not to use alcohol. Using alcohol while taking prescription pain medications is high risk behavior.” 3

4. In Finding of Fact No. 42, page 11, line 6, “Respondent’s pain medical” should be corrected to read “Respondent’s pain medication.”

The requested correction is based upon Ms. Smith’s hearing testimony. (Hearing Transcript at 15.) The requested correction is based upon the Arizona Department of Public Safety documentation for the 2016 DUI stop. (State’s Hearing Exhibit 7.) The requested amendment is based upon Ms. Smith’s testimony (Hearing Transcript at 40, Confidential Hearing Transcript at 51) and the April 2014 Psychological Evaluation (State’s Hearing Exhibit 6 at 63- 64). ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN122042 AND FINDINGS OF FACT, ADVANCED PRACTICE CERTIFICATE NO. CONCLUSIONS OF LAW AP2214 AND ORDER ISSUED TO: NOS. 13A-1208041-NUR AND 13A-1309027-NUR LORRAINE CLAIRE SCHENKEL, (Consolidated) RESPONDENT

A hearing was held before Diane Mihalsky, Administrative Law Judge (“ALJ”), at 1740 West Adams Street, Lower Level, Phoenix Arizona, on July 19, 2019. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Lorraine Claire Schenkel (“Respondent”) was

represented by Christian J. Kimminau, Esq., Kimminau Law Firm, P.C.

On August 19, 2019, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations. On September 17, 2019, the Arizona State Board of Nursing met to consider the ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this

matter, the Board makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. The Board has the authority to regulate and control the practice of nursing in the State of Arizona pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664. The Board also has the authority to

impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice

Act, A.R.S. §§ 32-1601 through 32-1667.

2. Respondent holds Board-issued Registered Nurse License No. RN122042 and Advanced Practice Certificate No. AP2214 in the State of Arizona. Respondent’s Advanced Practice Certificate allows her to practice autonomously as a family nurse practitioner.

3. The Board opened two investigations after it received a complaint that she appeared to

be impaired at work from one of Respondent’s co-workers in August 2012, and after she reported having been charged with Driving Under the Influence (“DUI”) in March 2013. During the Board’s investigations, it issued an interim order that required Respondent to undergo a psychological

evaluation in April 2014.

4. The Board eventually referred the results of its investigations to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing to determine whether disciplinary action should be taken against Respondent’s registered nurse license and advanced practice certificate.

5. On December 14, 2018, the Board issued a Complaint and Notice of Hearing, alleging

certain facts and charging cause to discipline Respondent’s registered nurse license and advanced practice certificate under former A.R.S. §§ 32-1601(18)(d) and 32-1601(18)(j), former A.R.S. §§ 32- 1601(22)(d) and 32-1601(22)(j), current A.R.S. §§ 32-1601(26)(d) and 32-1601(26)(j), and A.A.C. R4-

19-403(17), R4-19-403(28), and R4-19-403(31). The December 14, 2018 Complaint and Notice of

Hearing set a hearing on January 24, 2019. 6. On January 6, 2019, Respondent’s attorney moved for a 90-day continuance of the hearing because Respondent was scheduled to undergo back surgery that week. The Board did not

oppose the motion to continue the hearing. On January 16, 2019, the Administrative Law Judge

(“ALJ”) assigned to the case issued an order continuing the hearing to May 1, 2019.

7. On April 26, 2019, Respondent’s attorney filed a second motion to continue the hearing because she had undergone a spinal surgery/fusion on January 7, 2019, which took 15 hours and was fraught with complications, her recovery had been slow and difficult, she was not expected to return to

80% health for six months to a year, and she did not expect to be physically able to attend a hearing for

a year. On April 26, 2019, the Board filed an opposition to Respondent’s second request for continuance. On April 26, 2019, the ALJ denied the second motion to continue the hearing. 8. On April 29, 2019, Respondent’s attorney filed a third motion to continue the hearing

because Respondent expected to undergo surgery within the next few days on her ankle to remove

hardware from a recent surgery that was causing serious infection. Respondent’s attorney submitted a photograph of her ankle and a note from her surgeon restricting her ability to travel. Respondent’s attorney stated that Respondent had made numerous attempts to have a hearing set since March 2013, because it was restricting her employment opportunities. Respondent’s attorney also stated that

Respondent had been unemployed since September 23, 2015.

9. On April 29, 2019, the ALJ issued an order allowing the Board to file a response on or before April 30, 2019. On April 29, 2019, the Board filed a response to Respondent’s third motion for a continuance, stating that the Board did not oppose the motion. On May 3, 2019, the ALJ issued an

order continuing the hearing to June 18, 2019.

10. On May 3, 2019, the Board filed a 1st Amended Complainant and Notice of Hearing, setting a hearing on June 18, 2019, and adding the following to the other facts alleged: Since at least November 2017, Respondent has been consistently prescribed significant amounts of controlled substances and, as of April 2019, she is being prescribed controlled substances in amounts and combinations which are likely to negatively impact Respondent’s ability to safely practice [as] a registered nurse and nurse practitioner.

11 .On May 13, 2019, the Board’s attorney filed a motion to continue the hearing due to the unavailability of its witness. On May 15, 2019, the ALJ issued an order continuing the hearing to July 18, 2019.

12. On July 16, 2019, Respondent’s attorney filed a fourth motion to continue the hearing

because Respondent had been admitted to a skilled nursing facility due to a fracture of the lower end of her right radius, was receiving intensive in-patient physical and occupational therapy services, and would be unable to attend the hearing.

13. On July 16, 2019, the Board’s attorney filed an objection to Respondent’s request to

again continue the hearing because the hearing had already been twice continued at Respondent’s request and the current continued hearing date was more than six months after the original hearing date. The Board’s attorney stated that it had an interest in resolving the complaints. 14. On July 16, 2019, the ALJ denied Respondent’s fourth motion to continue the hearing,

but allowed her to appear telephonically.

15. A hearing was held on July 18, 2019. The Board submitted nine exhibits and presented the testimony of Valerie Smith, R.N., M.S.N., F.R.E., the former Associate Director for the Board’s Hearing Department. 1

16. Respondent did not attend or testify telephonically at the continued hearing. Her

attorney stated that she wanted to attend the hearing but that she was had been taken to long-term inpatient care for rehabilitation of her broken arm and a broken ankle. Respondent’s attorney showed and later submitted a recent photograph of her and stated that she was taking prescribed medications for

various conditions that would prevent her from testifying or participating in her defense.

By the time of the hearing, Ms. Smith had retired.

17. Respondent’s attorney stated that she had not been employed as a nurse for four or five years, but that she was optimistic that her condition would improve. Although Respondent did not plan to return to providing patient care as a nurse, she hoped to be able to teach.

ADDITIONAL HEARING EVIDENCE

18. Ms. Smith has completed a four-year fellowship with an emphasis on core competencies for investigators to become a Fellow of Regulatory Excellence (F.R.E.). Ms. Smith has substantial experience and expertise in mental health and substance abuse. She was instrumental in setting up the

Board’s Chemically Addicted Nurse Diversion Option (“CANDO”) as an alternative to discipline for

nurses who have substance abuse issues. 19. On or about August 3, 2012, the Board received a complaint from Robert Allison, an adult nurse practitioner who was Respondent’s co-worker at North Phoenix Pain Relief Center (“North Phoenix Pain”), alleging that Respondent demonstrated poor practice as a nurse practitioner and had

difficulty staying awake at work. Mr. Allison stated that medical assistants had to wake Respondent up

to see patients and that she claimed that she had insomnia, which prevented her from sleeping at night and caused her to sleep during the day. 2 Ms. Smith testified that somnolence can be a symptom of impairment.

20. Respondent’s attorney suggested that Mr. Allison may have filed the complaint because

he became jealous of Respondent after his patients requested to be seen by her. 3 21. After Mr. Allison filed the complaint, Nurse Practice Consultant Kristy Hunter interviewed Respondent’s patients and co-workers at North Phoenix Pain. Ms. Smith testified that Ms.

Hunter interviewed AnnMarie Ybarra, a medical assistant, who stated that she did have to occasionally

wake up Respondent from dozing at her desk or in the exam room. Patient RB stated that he thought

See Exhibit 1. In April 2014, Respondent told Board-approved psychologist the same thing. See Exhibit 6 at 58.

Respondent might have been under the influence, but that he never smelled alcohol. Patient MK described Respondent as bizarre with slow slurred speech and poor balance. Other patients refused to talk to Ms. Hunter or had no complaints. 4

22. The Board submitted the Controlled Substances Prescription Monitoring Report

(“CSPMP”) for Respondent. 5 Ms. Smith noted that in August 2012, when Mr. Allison made the complaint to the Board about Respondent’s practice at North Phoenix Pain, according to the CSPMP, Respondent had been prescribed Butrans, which is an extended release patch containing Oxycontin,

Oxycodone, and Soma, a muscle relaxant that has a synergistic effect with narcotics, as well as

Clonazepam, which is a benzodiazepine prescribed for anxiety which can exacerbate the sedative effects of opioids. 6 Ms. Smith testified that Respondent’s prescribed medications could have caused the behavior that Mr. Allison described in his complaint. 23. The Board obtained a North Phoenix Pain’s Employee Incident Report dated September

24, 2012, after a patient complained that she felt Respondent was acting oddly during her treatment,

stumbling around, and that the patient was concerned that Respondent might be under the influence of a substance. 7 Ms. Smith testified that the clinic director spoke to Respondent, who denied being under the influence, and informed her that he would take action if he received another complaint.

24. Ms. Smith testified that in September 2012, Respondent filled the same prescriptions

that she was taking in August 2012, with the exception of Carisoprodol, which she refilled in November 2012. Ms. Smith opined that Respondent’s prescribed medications could have caused the odd behavior that Respondent’s patient at North Phoenix Pain had complained about.

Although Ms. Smith referred to Ms. Hunter’s investigative report, it was not submitted into evidence. See Exhibit 9. See the Board’s Exhibit 9 at 102-103. See Exhibit 3.

25. Ms. Smith testified that if the Board receives a report of a nurse possibly being impaired at work, it will subpoena police and court records. The Board learned that while Respondent was driving a car in Phoenix on January 8, 1993, she ran a red light and struck another car, causing it to spin

around and hit a third vehicle, seriously injuring herself and the driver of the car she hit. 8

26. After Respondent was taken to the hospital, an officer from the Phoenix Police Department (“PPD”) interviewed Respondent because, although she was injured, she was able to communicate. Respondent stated that she had taken 300 mgs. Tegertol, 1 mg. Klonopin, and 40 mgs.

Prozac, which she had been taking every morning for the past three years to help with her mental and

physical problems. 9 Ms. Smith testified that Tegretol was prescribed for seizures, but was used off- label for depression and that Klonopin was a benzodiazepine that slowed reflexes and diminished alertness. Respondent’s blood test was positive for Butalbital, a barbiturate, and the benzodiazepines Oxazepam and Temazepam. 10

27. PPD Drug Recognition Expert (“D.R.E.”) Billy Sampson rendered the following

opinion: It is the opinion of this D.R.E. that the signs, symptoms, psychophysical, clinical observations that this suspect could be feeling the effects of the listed drugs. The effects of Prozac is the effect of what I saw. This subject showed a slowed lethargic response, with heavy eyelids and sleepiness effect. The heavy eyelids and nystagmus were probable signs of the medications Klonopin, which produces

[a] C.N.S. depressant effect in users. I feel that this

subject’s ability to safely operate a motor vehicle may have been impaired by the usage of the Prozac and the Klonopin

See Exhibit 2 at 13-14. See Exhibit 2 at 17-18. See Exhibit 2 at 21.

medications, which the suspect admittedly took. 11 Based on Officer Sampson’s opinion, PPD submitted its report to the county attorney for a possible aggravated assault charge. 28. Respondent’s attorney pointed out that Respondent was not licensed as a nurse in January 1993. Ms. Smith acknowledged that the Board had not received any documents that indicated

that Respondent had been formally charged with or convicted of any crime based on the 1993 accident. 29. In March 2013, Respondent reported to the Board that she had been charged with DUI in March 2013. 30. On March 14, 2013, at approximately 2128 hours, Respondent’s vehicle was stopped by

an officer from the Arizona Department of Public Safety (“DPS”) in Phoenix, Arizona. The officers

pulled Respondent over after she was observed driving at a high rate of speed and weaving. Officers reported observing signs and symptoms of impairment, including Respondent’s strong odor of alcohol and watery eyes, and found an open bottle of wine in her vehicle. Respondent admitted to having taken

Prednisone, but refused to take a breath test and was taken to the station. At the police station, some

three hours later, Respondent’s blood alcohol concentration was measured at 0.136 at 2242 hours and 0.130 at 2249 hours. 12 31. Ms. Smith testified that because alcohol metabolizes at a rate of .015 per hour,

Respondent’s blood alcohol level would have been more than 0.15 when she was stopped. In addition,

the medications that Respondent was taking could have exacerbated the effects of alcohol. 32. Ms. Smith noted that according to the CSPMP, Respondent had filled prescriptions for Butrans, Oxycodone, Clonazepam, and Carisoprodol in March 2013. 13 Ms. Smith testified that Carisoprodol, which was a muscle relaxant, was marketed under the brand name Soma.

Exhibit 2 at 27. See Exhibit 4 at 43-48.

33. Respondent was charged with DUI. Respondent reported the charge to the Board. On October 4, 2013, Respondent was convicted of Reckless Driving pursuant to her guilty plea. 14 34. The Board issued an Interim Order that required Respondent to undergo a psychological

evaluation. On April 11, 2014, Respondent underwent a psychological evaluation by Phillip D. Lett,

Ph.D. 15 35. Ms. Smith noted that Dr. Lett obtained pharmacy records and stated in his report that between 2009 and 2012, Respondent had filled numerous prescriptions for Oxycodone, Oxycontin,

Soma, Butrans, and Clonazepam, among others. 16 Dr. Lett reported Respondent disclosed that she had

been taking medication to manage chronic pain for fourteen years. 17 Respondent also disclosed to Dr. Lett that she had been arrested for DUI on March 14, 2013, after she drank a glass of wine, and later pled guilty to reckless driving. 18 Dr. Lett described Respondent’s substance abuse history in relevant part as follows:

She reports she took her first drink of alcohol about six

years ago. Her last drink of alcohol was approximately 4

nights prior to this evaluation. She shares on this occasion she had a glass of wine. When she drinks alcohol she prefers drinking wine, either red or white, and usually red. She typically will consume one or two glasses of wine per occasion. He describes these glasses as 9 ounces versus 5 ounces. She drinks wine once a week or less. She states she feels the effects of alcohol after consuming one glass of wine, 9 ounces. . . . In the last year she reports she has

See Exhibit 9 at 101. See Exhibit 5. See Exhibit 6. See Exhibit 6 at 56. See Exhibit 6 at 58. See Exhibit 6 at 59.

been intoxicated three or four times. 19

36. Dr. Lett’s conclusions and recommendations stated in relevant part as follows:

Based on this evaluation, [Respondent] does not present with a chemical dependency profile. It is possible she has physical dependency given the number of years she has taken opiate pain medication. However, the profile does not indicate a DSM-IV-TR diagnosis of substance dependency.

Her decision to use alcohol while taking prescription [medications] is high risk behavior. Moreover, to drive after drinking alcohol while using pain medication warrants an episode of alcohol abuse. Based on this evaluation, she meets the DSM-IV-TR diagnosis for Alcohol Abuse in Sustained Full Remission and Depression NOS by history. [Respondent] presents with a long history of depression and chronic pain. Her depression presents as relatively stable and she reports chronic episodes of insomnia. It is important to note that she reports her pain has intensified due to her 90 percent knee replacement surgery and consequent allergic reaction to the material placed in her knee.

Consequently, she experiences sleep difficulties. She plans

on undergoing further medical treatment to address this condition. Given [Respondent’s] elevated risk profile for behavioral health and substance use concerns, she may profit from 10 sessions of individual counseling with a qualified provider with expertise in treating behavioral health, chronic pain and substance use disorders focusing on acquiring alternative coping skills and substance abuse education/prevention. Exhibit 6 at 60.

It is within a reasonable degree of psychological certainty that [Respondent] has the ability to function safely as a nurse practitioner provided she engages in and completes recommended treatment. . . . 20

The record does not reveal whether Respondent acted on Dr. Lett’s recommendation by undergoing counseling to help her acquire alternative coping skills or substance abuse education/prevention. 37. On July 27, 2016, DPS officers arrested Respondent in Tucson for DUI after they

observed her driving erratically and nearly causing a collision. The officers observed signs of

impairment and Respondent’s blood alcohol level was tested at 0.129 and 0.128. Respondent stated that she was taking multiple medications, including benzodiazepines and pain medications. 21 38. Ms. Smith noted that the results of the blood draw after the July 27, 2016 arrest included many controlled substances that Respondent admitted having taken after the March 3, 2013

arrest, including Trazadone, an antidepressant. 22 The CSPMP showed that Respondent had filled

prescriptions for Lorazepam, Oxycodone, Hydromorphone, Lorazepam, and Tramadol in the month before the stop. 23 Ms. Smith testified persons who are prescribed Trazadone, Dilaudid, and Lorazepam are cautioned not to use alcohol. Using alcohol while taking prescription pain medications is high risk

behavior.

39. On August 9, 2016, Respondent was charged with DUI. Respondent did not report the DUI charge to the Board within ten days. Respondent’s attorney pointed out that she was not practicing nursing at this time.

Exhibit 6 at 63-64. See Exhibit 7 at 66-69. See Exhibit 7 at 71. See Exhibit 9 at 95-96.

40. On or about December 14, 2016, Respondent pled guilty and was convicted of DUI in Pima County Justice Court. 24 Respondent was sentenced to serve 180 days in Pima County Jail, but the sentence provided that 179 days would be suspended if she successfully completed alcohol/drug

screening/evaluation. 25

41. On July 27, 2017, Respondent completed an intensive outpatient treatment program in Tucson, Arizona. 42. Ms. Smith testified that the CSPMP spans the time between June 2011, and April 2019.

What is noticeable is a trend of significant increases in the number of prescriptions filled and the

dosages of the prescribed amounts of opioids and other controlled substances. Respondent’s most recent dose of controlled substances had a Morphine Milligram Equivalent (“MME”) of 720 and her 30-day average had a MME of 414. 26 Ms. Smith testified that 720 MME is a significant amount of opioids. Experts caution that anything above 50 MME should be carefully monitored due to the risk of

accident, injury, or addiction. Ms. Smith testified that from November 2017, Respondent’s pain

medication has been increasing and that the CSPMP did not just show an isolated spike in Respondent’s use of pain medications in April 2019. The MME does not take into account other controlled substances, just opioids. Ms. Smith testified that Respondent has also increased her use of

other substances that could cause cognitive impairment.

43. Ms. Smith testified that she would expect that Respondent suffered adverse effects such as sedation, slurred speech, cognitive impairment, and difficulty processing information, from the increases in the number of prescriptions and prescribed amounts over time. A nurse has to be fully

present, both physically and cognitively. An impaired nurse can have a significant adverse effect on the

recipients of her care and behavior, including both patients and the public. Ms. Smith testified that it See Exhibit 8 at 77-83. See Exhibit 8 at 79. See Exhibit 6 at 90.

would not change her evaluation if Respondent was not working as a nurse because, as long as she is licensed, she can always go back to practicing nursing. The issue is not whether Respondent’s prescribed medications are medically necessary, but how the medications would impact her practice.

CONCLUSIONS OF LAW

1. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 2. The Board bears the burden of proof to establish cause to discipline Respondent’s registered nurse’s license and advance practice certificate by a preponderance of the evidence. 27

Respondent bears the burden to establish affirmative defenses and factors in mitigation of any

discipline against her licenses by the same evidentiary standard. 28 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 29 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.” 30

4. Respondent does not dispute that she did not report the August 9, 2016 DUI charge to the Board within ten days. The Board therefore established that Respondent committed unprofessional conduct under A.R.S. § 32-3208(A) and (D). 31 Because Respondent’s license and certificate were

See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). 29 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1120 (8th ed. 2004). 31 A.R.S. § 32-3208 provides in relevant part as follows: A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. .... D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of

active, she was still required to comply with the statute, even if she was not practicing nursing. The fact that Respondent was not practicing nursing at the time is a factor that the Board may consider in mitigation of the penalty for Respondent’s failure to report the charge.

5. The Board has established that since 2011, Respondent has been taking prescribed

opioids and other controlled substances for her chronic pain, depression, anxiety, and other physical issues. These medications may have affected Respondent’s practice at North Phoenix Pain. The Board established that even after Respondent suffered serious injuries and caused another person to suffer

serious injuries in the January 8, 1993 accident, she continued to take opioids and other controlled

substances and to drink wine, which resulted in the March 14, 2013 arrest and subsequent plea to reckless driving. After Dr. Lett identified Respondent’s elevated risk profile for behavioral health issues and substance use based on his April 11, 2014 evaluation, Respondent was arrested on July 27, 2016, after having drank wine and taken opioids and benzodiazepines and subsequently plead guilty to

DUI. The Board established that, before November 2017, Respondent’s taking of prescribed opioids

and other controlled substances, in combination with drinking wine and driving, were having a negative effect on both her ability to function and the public safety. 6. Ms. Smith credibly testified that since November 2017, Respondent has been taking

increasing prescribed dosages and amounts of opioids and controlled substances that can exacerbate the

effect of the medications and that Respondent’s usual dosages as of April 2019, more likely than not will adversely affect her nursing practice. Respondent’s use of the medications has been ongoing and chronic for quite some time; it is not the result of her recent acute conditions.

not more than one thousand dollars in addition to other disciplinary action it takes.

7. The Board’s statutory responsibility is “to more effectively protect the public health safety and welfare.” 32 The Board established that between March 14, 2013, and April 2019, Respondent committed unprofessional conduct as defined by former A.R.S. §§ 32-1601(18)(d) and 32-

1601(18)(j), current A.R.S. §§ 32-1601(26)(d) and 32-1601(26)(j), 33 and A.A.C. R4-19-403(17),

A.A.C. R4-19-403(28), and A.A.C. R4-19-403(31). 34 The Board also established that Respondent’s conduct is ongoing and unlikely the change. 8. The fact that Respondent’s use of her various prescribed medications is legal does not

mitigate its likely effect on her practice. The fact that Respondent is not currently practicing does not

adequately protect the public because, as long as she is licensed, she may return to practice. The fact that Respondent has not harmed a patient is not dispositive. What matters is that Respondent could harm a patient if she returned to practice because, for some time, she has not been and is not currently

Laws 1982, Ch. 190, § 1. A.R.S. § 32-1601(18) was effective September 30, 2009. The legislature has amended the definitions set forth in A.R.S. § 32-1601 twice since then, which has affected the number of the section for “unprofessional conduct” as being re-designated as A.R.S. § 32-1601(22) and A.R.S. § 32-1601(26), but not the definitions set forth therein. The most recent amendment was effective on August 9, 2017, and resulted in the definition of “unprofessional conduct” being defined at A.R.S. § 32-1601(26), in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: .... (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. .... (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter. A.A.C. R4-19-403 further defines unprofessional conduct under former A.R.S. § 32-1601(18)(d), former A.R.S. § 32-1601(22)(d), and current A.R.S. § 32-1601(26)(d) to include the following: 17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location; .... 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. . . ; .... 31. Practicing in any other manner that gives the Board reasonable cause to believe the health of a patient or the public may be harmed.

capable of safely practicing nursing. If in the future, if Respondent’s condition improves to the point that she is able to demonstrate that she is able to safely practice nursing, she may apply to the Board for the reissuance of her registered nurse license and advanced practice certificate.

9. Respondent’s unprofessional conduct furnishes cause for the Board to discipline her

licenses under A.R.S. §§ 32-1663(D) 35 and 32-1664(N). 36 ORDER In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order:

Pursuant to A.R.S. § 32-1664(O), the Board REVOKES Registered Nurse License Number

RN122042 and Advanced Practice Certificate Number AP2214 issued to LORRAINE CLAIRE SCHENKEL. RIGHT TO PETITION FOR REHEARING OR REVIEW Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing

or review within 30 days after service of this decision with the Arizona State Board of Nursing.

Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C). The motion for rehearing or review shall be made to the attention of Hearing Department, Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, and

must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608.

For answers to questions regarding a rehearing, contact the Hearing Department at (602) 771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing

35 A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” A.R.S. § 32-1664(N) provides that “[i]f the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

or review within 30 days after service of this decision, Respondent shall be prohibited from seeking judicial review of this decision. This decision is effective upon expiration of the time for filing a request for rehearing or

review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609.

Respondent may apply for reinstatement of the said license pursuant to A.A.C. R4-19-404 after a period of five years. DATED this 17th day of September, 2019.

ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 18th day of September, 2019, by First Class Mail and Certified Mail No.[account number redacted] 6238 to:

Chris J. Kimminau, Esq. 4337 West Plantation Street Tucson, AZ 85741 [email redacted] Attorney for Respondent

COPY mailed this 18th day of September, 2019, by First Class Mail to: Lorraine Claire Schenkel 875 East Bellanoche Road Tucson, AZ 85706 Respondent COPIES of the foregoing mailed this 18th day of September, 2019, to:

Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007

Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith