ALJDEC decisions subject to certification as final

04F-021-CEA · Board of Chiropractic Examiners · 2005-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2005. APPEARANCES: The Arizona State Board of Chiropractic Examiners was represented by Assistant Attorney General Roberto Pulver. Respondent Roderick R. Russell, D.C., appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Arizona State Board of Chiropractic Examiners (“Board”) is the authority for licensing and regulating the practice of chiropractic in the State of Arizona. 2. Respondent Roderick R. Russell, D.C., is the holder of License No. 2073 to practice chiropractic in the State of Arizona. 3. Board Complaint Nos. 2004-021, 2004-062 and 2004-068 came on for a consolidated hearing before the Office of Administrative Hearings, an independent agency, pursuant to the Complaint and Notice of Hearing issued by the Board. The scope of the hearing is to determine whether grounds exist to revoke or take other action regarding License No. 2073 held by Respondent.

Complaint No. 2004-021

4. On October 23, 2003, the Board received a written complaint claiming that Respondent had provided documentation to the Navajo Nation Family Court concerning the following: that he was dependent on Oxycodone; that he was unable to safely practice chiropractic; and, that he was unable to make personal and financial decisions due to his dependence on Oxycodone. That information prompted the Board to open an investigation. 5. The Board’s investigation disclosed that on September 25, 2003, Respondent provided the Navajo Family Court with two UnionCentral Life Insurance forms: a Supplemental Statement of Claim for Disability Benefits (“Supplemental Statement”) and an Attending Physician’s Statement Life and Disability Insurance (“Attending Physician’s Statement”). 6. The Supplemental Statement stated that Respondent was “unable to work as a chiropractor” and “unable to make personal…financial decision[s].” Further, it stated that Respondent was “[d]ependent on…narcotic painkillers.” Respondent signed this form on August 26, 2003. 7. The Attending Physician’s Statement states that Respondent “cannot perform manipulations like lifting, bending, twisting as required by his profession.” Further, Respondent’s physician stated he is unable to predict when Respondent shall be able to return to his job duties. Respondent’s physician signed this form on September 9, 2003. 8. On December 11, 2003, at a public meeting, Respondent appeared before the Board to answer questions about his inability to work as a chiropractor and his alleged addiction to narcotic drugs. At that meeting Respondent admitted to the Board that he had falsified the insurance form for disability benefits[1]. Respondent further stated that he had never been disabled or dependent on pain killers. After additional questioning by the Board, the Board determined to further investigate this matter and ordered Respondent to undergo physical, psychological and addiction examination with Board-approved evaluators. 9. On January 8, 2004, Linda Alvarez-Thull, M.D., evaluated Respondent to determine whether he could safely practice chiropractic. Dr. Alvarez- Thull’s impressions to the Board were that Respondent could physically perform the duties of a chiropractor. 10. On January 8, 2004, H.J. Schulte, M.D., evaluated Respondent as to his psychological wellness. Dr. Schulte’s recommendations to the Board were that he was concerned about Respondent’s misrepresentations on the insurance disability form, Respondent’s minimizing of his inappropriate behavior, and Respondent’s denial of his behavior. Respondent’s actions caused Dr. Schulte to have worries that Respondent may have problems with integrity and veracity. Further, Dr. Schulte recommended that Respondent undergo additional psychological testing, and psychotherapy to help Respondent deal with interpersonal relationships, learning to resolve work conflicts, and to monitor for any substance abuse. 11. On January 25, 2004, Michel A. Sucher, M.D., evaluated Respondent as to whether he was addicted to any substances. Dr. Sucher’s recommendation to the Board was that he did not believe Respondent had a current substance abuse or dependency problem. 12. On March 11, 2004, at a public meeting, Respondent appeared before the Board. At the meeting, the Board ordered that Respondent submit to further psychological evaluations by a Board-approved psychologist. 13. On April 12, 2004, Phillip D. Lett, Ph.D., psychologically evaluated Respondent through an interview and a series of examinations. Dr. Lett’s impressions to the Board were the following:

a) Respondent has a high probability of substance dependency disorder, but it is not clear what Respondent’s choice of substance is. Respondent has a history of alcohol abuse and dependency on Oxycodone. b) Respondent has a personality disorder trait with predisposed risk factors for substance abuse and interpersonal problems. c) Respondent may have depression. d) Respondent should submit to structured intensive outpatient inpatient substance abuse treatment. e) Respondent should undergo psychotherapy for at least one year to address the depressive symptoms and personality disorder traits. f) Respondent should participate in an active monitoring program for five years.

14. Dr. Lett further opined that if Respondent did the above mentioned items then he could practice chiropractic safely. 15. On July 15, 2004, at a public meeting, the Board reviewed the additional information provided by Dr. Lett. Respondent was present at the meeting. The Board decided to send this complaint to an administrative hearing. 16. The Board requested that Respondent provide documentation that he has completed his statutorily required 12 hours of chiropractic continuing education for 2002 and 2003. At the hearing Respondent presented the Board’s counsel and Executive Director with adequate evidence that his fulfilled his educational requirements for 2002. However, he has still failed to produce any documentation for his 2003 required hours.

Complaint No. 2004-062

17. On March 15, 2004, the Board received a complaint from S.R., a former patient of Respondent. Patient S.R. complained that she made two written requests, on January 29, 2004 and February 17, 2004, to Respondent for her chiropractic records so she could pursue a disability claim. Respondent failed to provide Patient S.R. with her chiropractic records. This prompted the Board to open an investigation. 18. The Board notified Respondent of the complaint. Respondent informed the Board that the Navajo Nation Kayenta Township took his chiropractic records, which prevented him from responding to Patient S.R.’s requests. 19. The Board’s investigation disclosed that the Kayenta Township returned all of Respondent’s chiropractic records before Patient S.R.’s requests. Respondent did have the opportunity to provide Patient S.R. her chiropractic records. 20. On August 19, 2004, at a public hearing, Respondent appeared before the Board to answer questions about this complaint. At the meeting, Respondent admitted that he probably received Patient S.R.’s requests for her chiropractic records, but stated her records were in a storage shed and that an assistant had misfiled the records. After additional questions from the Board, the Board decided to send this matter to an administrative hearing.

Complaint No. 2004-068

21. On April 5, 2004, the Board received a complaint from Walter Robertson, D.C., against Respondent. Dr. Robertson complains that his office requested the chiropractic records for patients J.A., N.H., D.E., and W.H. from Respondent on March 5, 2004. Respondent has not provided these patients’ chiropractic records to Dr. Robertson so that he can continue providing chiropractic treatment to these patients. Dr. Robertson made a second request to Respondent for these patients’ records, but did not receive a response from Respondent. This prompted the Board to open an investigation. 22. The Board notified Respondent of Dr. Robertson’s complaint. Respondent informed the Board that the Navajo Nation Kayenta Township took his chiropractic records, which prevented him from responding to Dr. Robertson’s requests for patient records. 23. The Board’s investigation disclosed that the Kayenta Township returned all of Respondent’s chiropractic records before Dr. Robertson’s requests. Respondent did have the opportunity to provide Dr. Robertson with the patients’ chiropractic records. 24. The Board’s investigation further disclosed that Respondent refused to accept Dr. Robertson’s certified mail request for those patients’ chiropractic records. 25. At the Board’s August 19, 2004 public meeting, Respondent admitted that he probably received Dr. Robertson’s request for the patients’ records, but stated these records were in a storage shed and that an assistant had misfiled the records. After additional questions from the Board, the Board decided to send this complaint to an administrative hearing.

Additional Findings

26. Respondent failed to file an Answer to the Complaint. 27. The issue of the poor quality of S.R.’s lumbar x-ray was not alleged in the Complaint; therefore, it is found to be outside the scope of this hearing. 28. Respondent fell below the standard of care in maintaining his chiropractic records. 29. Respondent fell below the standard of care by not forwarding the above referenced patients records which were necessary for continuity of their chiropractic care. 30. Respondent has a pattern of dishonesty. He was dishonest on his disability claim form. He was dishonest on numerous occasions to both the Board and the Board’s staff. 31. Respondent has not practiced chiropractic for some time. His practice went bankrupt. 32. In April 2004, Respondent had surgery to remove a benign meningioma from his left frontal lobe. Respondent failed to present any credible medical, psychiatric or psychological evidence that the meningioma caused physical or psychological behaviors negatively affecting his past conduct as a chiropractor. 33. Respondent is found to be unregulatable. Presently, Respondent is a threat to the public health, safety and welfare as a chiropractic physician.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is a preponderance of the evidence. 3. Respondent’s failure to file an Answer to the Complaint is a violation of A.R.S. § 32-924(H) [If the licensee wishes to be present at the formal hearing in person or by representative, or both, the licensee shall file with the board an answer to the charges in the complaint. The answer shall be in writing, verified under oath and filed within twenty days after the complaint.]. 4. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.R.S. § 32-924(A)(5) [Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession], which includes, but is not limited to, Respondent’s misrepresentations on his disability application, his failure to document his required continuing education hours and his conduct involving the Board’s investigation of the three complaints. 5. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.A.C. R4-7-902(2) [Knowingly making a false or misleading statement to the Board, its investigators or representatives, a patient, or a third party payor]. 6. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.A.C. R4-7-902(3) [Failing to create and maintain a patient record that includes the patient’s health history, examination findings, diagnostic results, x-ray films if taken, x-ray reports, treatment plans, and notes for each patient visit. The notes for each patient visit shall include the patient’s name, the date of service, the chiropractic physician’s findings, all services rendered, and the name or initials of the chiropractic physicians who provided services to the patient.]. This conclusion relates to Respondent’s failure to maintain the chiropractic records for the above referenced patients. Respondent’s submission of chiropractic records for Patient S.R. to the Board did not comply with this regulation. 7. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.A.C. R4-7-902(4) [Failing to maintain a patient’s records, including x-rays, for at least five years after the last treatment date, or failing to provide written notice to the Board, about how to access the patient records of a chiropractic practice that is closed, for at least five years after each patient’s last treatment date. The patient records of minors shall be maintained for five years beyond the minor’s 18th birthday.]. Although Respondent claims to have approximately 2,000 patient records at multiple locations, he did not timely comply with the requests for patient records for the above referenced patients. 8. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.A.C. R4-7-902(5) [Failing to release a copy of a patient’s records, diagnostic quality radiographic copy x-rays, or both to another licensed physician, the patient, or the authorized agent of the patient, within 10 business days of receiving written request to do so, or failing to return original x- rays to a licensed physician within 10 business days of a written request to do so.]. 9. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.R.S. § 32-924(A)(15) [Any conduct or practice contrary to recognized standards in chiropractic or any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that impairs the ability of the licensee to safely and skillfully practice chiropractic.] 10. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.R.S. § 32-924(A)(16) [Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order.]. 11. The conduct and circumstances described in the above Findings of Fact constitute violations by Respondent of A.A.C. R4-7-802(A) [A licensee shall retain documents to verify compliance with the continuing education requirements for at least five years from the date the continuing education credit is used to qualify the licensee for renewal.] While Respondent produced evidence of his 2002 compliance, he did not for 2003. 12. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-924(A)(1) [Employment of fraud or deception in securing a license.] as alleged in the Complaint. Respondent was charged with failing to provide the Board with evidence of his continuing education requirements for 2002 and 2003. Admitted into evidence were Respondent’s renewal applications for 2002 and 2003, which asked if the licensee complied with the continuing education requirements for the prior year. Since Respondent produced evidence of compliance for 2002, he correctly answered the renewal application for 2003. There is no allegation in the Complaint that Respondent’s 2004 application, where he would have been asked about his 2003, was false nor is there any evidence pertaining to his 2004 renewal application. 13. The evidence of record is sufficient to warrant the revocation of Respondent’s chiropractic license, pursuant to A.R.S. § 32-924(F) and (I), to protect the public health, safety and welfare. 14. The evidence of record supports assessing Respondent all costs incurred in the course of the Board’s investigation and the formal hearing in these matters, as permitted by A.R.S. § 32-924(I).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s License No. 2073 be revoked on the effective date of the entered Order in these consolidated matters. It is further recommended that Respondent be assessed the costs of the Board’s investigation and the formal hearing. Those costs shall be paid by Respondent to the Board within 60 days from the date of invoice sent to him by the Board, unless that deadline date is extended by the Board.

Done this day, August 2, 2005.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Patrice Pritzl, Executive Director Board of Chiropractic Examiners 5060 North 19th Avenue, Suite 416 Phoenix, AZ 85015

By ___________________________ ----------------------- [1] At the hearing Respondent testified that he never received any disability benefits.

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