ALJDEC decisions subject to certification as final
20A-1502034-NUR · State Board of Nursing · 2020-04-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF THE REGISTERED NURSE LICENSE NO. RN158557
ISSUED TO:
RUDI ALFRED SCHIMEK,
RESPONDENT.
No. 20A-1502034-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 25, 2020, at 9:00 a.m.
APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Sunita Krishna, Esq., Assistant Attorney General; Rudi Alfred Schimek (“Respondent”) failed to appear.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
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.
Respondent holds Board-issued Registered Nurse License No. RN158557 in the State of Arizona.
The Board summarily suspended Respondent’s license. The Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an expedited evidentiary hearing.
On February 20, 2020, the Board issued a Complaint and Notice of Hearing on the summary suspension, setting a hearing on March 25, 2020, at 9:00 a.m. The Complaint and Notice of Hearing alleged certain facts and, based on those facts, charged cause to discipline Respondent’s license under A.R.S. § 32-1601(26)(d), specifically A.A.C. R4-19-403(17), A.R.S. §§ 32-1601(22)(i), and 32-1601(22)(j).
The Board sent the Complaint and Notice of Hearing via certified and regular mail to Respondent at his address of record.
A hearing was held on March 25, 2020. The Board submitted eleven exhibits and presented the testimony of Kathleen Harrington, RN, MSN, the Board’s Program Administrator over monitoring of programs that are alternatives to discipline.
Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Respondent did not appear, personally or through an attorney, and did not contact OAH to request that the start of the hearing be delayed. Consequently, Respondent did not present any evidence to defend his license.
Hearing Evidence
On or about February 19, 2015, Respondent self-reported an arrest for DUI in Fountain Hills, Arizona, after a collision. Respondent also stated that he voluntarily admitted himself into a treatment facility for substance use. The Board opened a complaint investigation.
On or about September 22, 2015, Respondent and the Board executed as a an alternative to discipline a confidential stipulated agreement, in which Respondent admitted he had a substance use disorder (“the CANDO agreement”).
The September 22, 2015 CANDO agreement required Respondent, among other things, to abstain from using alcohol and other mind-altering, controlled, or potentially addictive substances, to undergo a minimum of two random drug tests per month, and to participate in AA or NA twice a week. The CANDO agreement also provided that, if Respondent failed to comply with the terms of the agreement, he would be discharged from the program, his past participation on the program would no longer be confidential, and the Board could initiate disciplinary proceedings against his license.
On or about July 9, 2018, Respondent had an unauthorized positive result on a random drug test. The test was positive for Methylenedioxyamphetamine (“MDMA”), which Ms. Harrington testified was a hallucinogenic stimulant known by the street name, “Ecstasy.” The positive result was a violation of the September 22, 2015 CANDO agreement.
On or about July 9, 2018, Respondent admitted to Board staff that he had relapsed.
On or about July 9, 2018, Respondent entered into a First Addendum to Stipulated Agreement for Treatment, Rehabilitation and Monitoring of Chemical Dependency (“the amended CANDO agreement”), which extended the term of the original CANDO agreement for a minimum of three additional years. In addition to the terms of the original CANDO agreement, Respondent agreed to submit to a minimum of one random drug test each week.
On or about August 19, 2019, Respondent had positive result for the marijuana metabolite THC in a random drug test, in violation of the CANDO agreement and amended CANDO agreement.
On or about August 29, 2019, and through the months of September, October, November, and December 2019, Respondent failed to submit to drug testing in violation of the CANDO agreement and amended CANDO agreement. Ms. Harrington explained that Respondent failed to check in to see if he had been selected for a random drug test on those days. Ms. Harrington stated that the Board had not received any third-party drug testing forms for Respondent since January 2020.
The CANDO agreement and amended CANDO agreement both required Respondent to submit attendance reports of AA and NA meetings signed by Respondent and his sponsor and initialed by the meeting facilitator. After June 2019, Respondent failed to submit any attendance reports for AA or NA meetings.
On September 23, 2019, Ms. Harrington on behalf of the Board attempted to contact Respondent at his address of record about his failure to comply with the CANDO agreement and amended CANDO agreement.
The CANDO agreement and amended CANDO agreement also required Respondent to keep a journal of his recovery on a Board-approved form and to submit the forms to the Board. After July 2019, Respondent failed to submit any completed journal entries to the Board.
On September 23, 2019, Ms. Harrington wrote a letter to Respondent, informing him that he was to refrain from practicing nursing until he had received written authorization from the Board. Ms. Harrington testified that she has not heard from Respondent.
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).
The Complaint and Notice of Hearing that the Board mailed via first class and certified mail to Respondent at his address of record was reasonable. Respondent is deemed to have received notice of the hearing.
The Board bears the burden of proof to establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The Board established that Respondent repeatedly violated the CANDO agreement and amended CANDO agreement. The Board also established that Respondent has not been in contact with the Board, despite repeated efforts by Board staff.
The Board thereby established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(d), (i), and (j), as more specifically defined at A.A.C. R4-19-403(17).
The Board has established cause to impose disciplinary sanctions against Respondent’s license under A.R.S. §§ 32-1663(D) and 32-1664(N). Respondent’s failure to appear for the duly noticed hearing or to submit any evidence to defend his license indicates that at this time, he cannot be regulated.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board affirm its order summarily suspending Respondent Rudi Alfred Schimek’s Registered Nurse License No. RN158557.
It is further recommended that the Board revoke Respondent Rudi Alfred Schimek’s Registered Nurse License No. RN158557.
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, April 7, 2020.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing