ALJDEC decisions subject to certification as final

06A-1934-PAB · Arizona Medical Board · 2007-02-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2007 APPEARANCES: State: Emma Lehner Mamaluy, Assistant Attorney General, represented the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS. Testifying was Vicki Bouton, Senior Medical Advisor. Respondent: Kenneth L. Underwood, P.A. failed to appear either in person or through authorized representative. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ JURISDICTION This is a proceeding commenced by the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS (the “BOARD”), as authorized by Arizona Revised Statutes (“A.R.S.”) Title 32, Chapter 25, Article 4 and Title 41, Chapter 6, Article 10, to receive evidence concerning the Board’s intent to exercise discipline of the license of Kenneth Underwood, P.A. (hereinafter also “the Physician Assistant” or “the licensee”) in the practice of health care tasks under a physician-dependent relationship. Having heard the testimony of the BOARD’S witness and having read and considered the entire record,[1] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this RECOMMENDED DECISION AND ORDER to the Executive Director of the BOARD. FINDINGS OF FACT PROCEDURAL BACKGROUND 1. The ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS has been delegated by the legislature the regulatory oversight and control of those licensed to perform health care tasks under a physician-dependent relationship in the State of Arizona. 2. Kenneth L. Underwood, P.A. has been issued License No. 1934 by the BOARD. 3. The present matter arises out of a confidential information that was offered to the BOARD suggestive that P.A. Underwood was incapable of continuing to carry out health care tasks.[2] 4. The BOARD, by its Senior Medical Investigator Erica Bouton, informed Mr. Underwood of the information in a writing (the “Notice Letter”) dated June 27, 2006.[3] The allegations of wrongdoing were encapsulated as follows:

• Habitual intemperance; • failure to respond to BOARD staff phone inquires on June 21, 2006 and June 21, 2006 and failure to timely inform the BOARD and its agents and employees as directed; and • knowingly making a false or misleading statement on his 2006 annual renewal application.

Mr. Underwood was afforded time to respond to the allegations not later than July 10, 2006. He was further advised that failure to respond in a timely manner would be construed an act of unprofessional conduct under A.R.S. § 32-2501(21)(d), (z), and (bb). . . . 5. P.A. Underwood responded to the Notice Letter in a writing dated July 10, 2006,[4] therein admitting the following:

• I have a problem with alcohol and continue to need help • I did not answer my phone for two days (my son had my cell phone) • I did not mark the appropriate box on the renewal form (in fear of losing my license)

6. Thereafter, on August 14, 2006, Senior Investigator Bouton on behalf of the BOARD issued a “Statutory Notice” letter[5] again informing P. A. Underwood of the allegations and setting forth the statutory charges of violation based on the alleged acts and omissions:

❖ A.R.S. § 32-2501(21)(d) – Habitual intemperance in the use of alcohol or habitual substance abuse. ❖ A.R.S. § 32-2501(21)(z) – Failing to furnish legally requested information to the board or its investigator in a timely manner. ❖ A.R.S. § 32-2501(21)(bb) – Knowingly making a false or misleading statement on a form required by the board or in written correspondence or attachments furnished to the board.

P.A. Underwood was afforded further opportunity to file a written response to the allegations by the BOARD’S informing him that he could file such response on or before September 4, 2006. 7. Underwood filed a five page handwritten response[6] on September 4, 2006 wherein he asserted and admitted, inter alia:

• My alcohol abuse led to some consequences[7] • I now believe I have the disease of alcoholism[8] • I was unreachable [on June 20 and 21, 2006][9] • I was in fear that if I marked the box yes on the recertification paperwork over potential alcohol abuse, that I would lose my license. . . . I . . . admit that it was dishonest[10]

8. Having reviewed the investigative findings and Mr. Underwood’s responses, the BOARD’S “Staff Investigational Review Committee” (“SIRC”) issued a Recommendation on September 20, 2006 wherein was provided:

Recommendation: Letter of Reprimand followed by 5 years Probation with MAP terms consistent with the treatment recommendations provided he has successfully completed treatment. If he has not successfully completed the treatment he is presently enrolled in, refer for revocation.

9. On December 22, 2006, the BOARD issued a COMPLAINT AND NOTICE OF HEARING and the February 13, 2007 Hearing was conducted pursuant thereto. Although the NOTICE OF HEARING was certified to P.A. Underwood’s address of record in Bullhead City, Arizona, he did not attend the Hearing.[11]

FINDINGS OF FACT THE BOARD’S CASE THE TESTIMONY OF THE BOARD’S WITNESS 10. Erica Bouton, Senior BOARD Investigator, testified concerning her investigative findings. She related that the investigation had been initiated by a confidential informant who, on June 16, 2006, expressed concern because P.A. Underwood had been terminated from his employment on April 18, 2006, the termination allegedly related to alcohol abuse.[12] . . . 11. Immediately, Investigator Bouton referred the Complaint and information to BOARD “Physician Health Program” (“PHP”) staff who, in turn, contacted BOARD addiction consultant Michael Sucher, M.D.[13] 12. After several failed attempts to contact P.A. Underwood, Dr. Sucher was able to make a connection on June 19, 2006.[14] During the telephonic discussion, which had been initiated by the Physician Assistant, P.A. Underwood admitted that he had a drinking problem and promised, inter alia, to enter an inpatient treatment center.[15] Thereafter, Underwood left Dr. Sucher a voicemail message on June 22, 2006 promising to enter Chandler Valley Hope on that day.[16] 13. P.A. Underwood had been informed by PHP staff on June 19, 2006 that he was being required by the BOARD to enter a treatment facility not later than June 20, 2006.[17] 14. On June 22, 2006, Underwood went to BOARD offices and executed an “Interim Consent Agreement for Practice Restriction”[18] whereby he acknowledged that his continued untreated performance of heath care tasks would pose a danger to public health and safety.[19] 15. P.A. Underwood entered into treatment at Chandler Valley Hope on June 22, 2006. However, he left treatment against clinical advice on July 4, 2006 without successfully completing the treatment course.[20] . . . 16. The Chandler Valley Hope discharge summary included the following: “[P.A. Underwood’s] prognosis and final diagnosis impression is guarded. His discharge diagnostic impression is 303.90 Alcohol Dependence.”[21] Chandler Valley Hope recommended that Underwood “be admitted to a long term, highly structured, professionals program e.g. Betty Ford or Hazelden.”[22] 17. On July 10, 2006, Underwood contacted BOARD staff to explain that he had left the Chandler Valley Hope program for financial reasons. He indicated that he intended to seek readmission to the facility.[23] 18. Instead, Underwood was admitted to the Hazelden Springbrook Intensive Residential Treatment Program in Newberg, Oregon on August 19, 2006, whereat he remained until he was discharged from Extended Care Treatment on September 24, 2006. He was discharged “Against Staff Advice” with diagnoses of “303.90 Alcohol Dependence”[24] and “311 Depressive Disorder NOS.”[25] 19. Previous to these occurrences, on May 22, 2006, P.A. Underwood had filed to the BOARD his “Annual License Renewal Application.”[26] On the application, Underwood answered two relevant questions in the following manner:

5. Do you have any medical condition which in any way impairs or limits your ability to safely perform any type of health care task within the scope of practice for physician assistants? If yes, explain.

( N0

9. Have you been treated for use or misuse of any chemical substance? If yes, explain.

( N0

20. In fact, as he has admitted,[27] Underwood’s responses to the “Annual License Renewal Application” questions were not truthful. He had been treated at Spencer Recovery in San Diego during March 2006, whereat he had been treated for eleven (11) days before leaving against medical advice.[28] The treatment for alcohol abuse at Spencer Recovery predated his application for license renewal.

THE RESPONDENT’S CASE 21. Although provided notice of the date, time, and location of the evidentiary Hearing,[29] P.A. Underwood failed to attend and contest the allegations against him.

FACTUAL CONCLUSIONS 22. It is uncontested that P.A. Kenneth L. Underwood has manifested habitual intemperance in the use of alcohol; failed timely to furnish legally requested information to the BOARD and its Investigator regarding his correct address and current whereabouts; and, knowingly made false or misleading statements on his “Annual License Renewal Application.” It is further uncontested that P. A. Underwood has not successfully completed his treatment program, a condition of the “Interim Consent Agreement.” . . . . . . . . . . . . THE BURDEN OF PERSUASION AND THE STANDARD OF PROOF 23. The burden of persuasion generally at an administrative Hearing falls to the party asserting a claim, right or entitlement, or seeking to impose a penalty.[30] Further, the standard of proof is that of the “preponderance of the evidence”.[31] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[32] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion is more probably correct on the issue(s) in dispute.

CONCLUSIONS OF LAW 1. The BOARD has been delegated authority by the Legislature to discipline a license that it has heretofore issued for the practice of health care tasks under a physician-dependent relationship in Arizona.[33] 2. Specifically, the BOARD is authorized to discipline a Physician Assistant for acts and omissions constituting unprofessional conduct. Within the statutory delineation of bases for discipline are included: A.R.S. § 32-2501(21)(d) – Habitual intemperance in the use of alcohol or habitual substance abuse; A.R.S. § 32-2501(21)(z) – Failing to furnish legally requested information to the BOARD or its investigator in a timely manner; and, A.R.S. § 32-2501(21)(bb) – Knowingly making a false or misleading statement on a form required by the BOARD or in written correspondence or attachments furnished to the BOARD. 3. The BOARD has been authorized by the Legislature at A.R.S. § 32- 2551(C)[34] to enter into a “Consent Agreement” with practice restrictions when a threat to public health is identified. 4. While the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS has been authorized to protect the public health and welfare by regulating those who perform health care tasks that have been delegated by a supervising physician, the practice of the profession by those previously determined qualified is their right, not just a privilege. As such, before the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS may curtail that right, it must afford due process of law to the affected licensee.[35] The Arizona Court of Appeals has determined that a board satisfies the mandate of A.R.S. § 41-1092.11 that a post-suspension Hearing be promptly held, and due process duly accorded, by immediately advancing the issues to a formal Hearing.[36] Here, the BOARD issued its “Interim Consent Agreement”[37] on June 22, 2006 with necessity for further action contingent on the licensee’s compliance with the terms thereof. After notice was provided to the BOARD of the licensee’s noncompliance on October 2, 2006,[38] it issued its NOTICE OF HEARING on December 22, 2006. The NOTICE OF HEARING scheduled a Hearing for February 13, 2007. This timeline would seem to comport with the suggestions given by the Court of Appeals in Dahnad v. Buttrick and under the requirement that a Hearing be conducted at a significant time and in a significant manner.[39] 5. The enabling statute further prescribes the nature of the penalty that may be assessed when proscribed conduct is identified.[40] 6. The issue presented concerns whether Mr. Underwood has violated the standards established by the Legislature whereby conduct is circumscribed as either professionally acceptable or professionally unacceptable. Has the BOARD persuaded that Mr. Underwood has committed an act or omission that warrants sanction? If so, what should be the nature and extent of the penalty? 7. A Complainant may have his identity protected in anonymity should he or she desire.[41] Apparently, the informant in this matter has indicated a desire to remain anonymous.[42] 8. In this proceeding, the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS bears the burden of establishing that Mr. Underwood has committed an act or omission making him susceptible to BOARD discipline.[43] 9. The legislatively delegated purpose of an ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS oversight commission is to protect the public interest.[44] 10. The Arizona Legislature further has directed that statutes be liberally construed in an effort to effect their objects and to promote justice.[45] Technical words and phrases are to be construed according to their peculiar and appropriate meaning.[46] The language of the governing statutes addressed herein have been construed and applied to protect public health and safety. 11. It is uncontested, and the State has provided competent and reliable proof thereof, that Mr. Underwood violated provisions of A.R.S. § 32-2501. 12. The BOARD’S COMPLAINT AND NOTICE OF HEARING issued on December 22, 2006 reasonably and justifiably cited A.R.S. §§ 32-2501(21)(d),(z), and (bb) as the bases upon which it seeks to revoke Lic. No. 1934. 13. A careful review of the totality and preponderance of the evidence presented at the Hearing of this Complaint supports discipline of License No. 1934. 14. No factor in mitigation is noted. 15. A factor in aggravation is Mr. Underwood’s failure to attend the Hearing and give answer to the charges against him. 16. It is within the BOARD’S discretion to assess an appropriate penalty.[47] The BOARD is required to act reasonably after consideration of all of the facts and circumstances.[48] In addition to other penalties, the BOARD may charge Mr. Underwood the costs associated with the necessity to convene a formal Hearing.[49] Having considered all of the facts and circumstances presented by this record, it is recommended that the BOARD revoke Lic. No. 1934 and assess Mr. Underwood the reasonable costs associated with these proceedings.

RECOMMENDED ORDER IT IS RECOMMENDED that the ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS revoke Lic. No. 1934 for violation of A.R.S. §§ 32- 2501(21)(d),(z), and (bb). IT IS FURTHER RECEMMENDED that Franklin A. Underwood, P.A. be assessed costs incurred by the BOARD relative these proceedings.

Done this 20th day of February 2007.

________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 21st day of February 2007, to:

ARIZONA MEDICAL BOARD Timothy C. Miller ATT’N: Legal Coordinator 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________ ----------------------- [1] The official record consists of that record having been memorialized and certified by the court reporter, the testimony offered by the BOARD’S witness and the Assistant Attorney General’s argument, along with the exhibits that were entered into the record at the Hearing and documentation in the BOARD’S case file. The BOARD offered fifteen (15) exhibits, identified S-1 through S-15. Each of the exhibits was admitted.

[2] The BOARD may act on such information and maintain the confidentiality of the reporter under A.R.S. § 32-2551(A).

[3] Exhibit S-8.

[4] Exhibit S-9.

[5] Exhibit S-10.

[6] Exhibit S-11.

[7] Exhibit S-11, p. 2.

[8] Id.

[9] Exhibit S-11, p. 3.

[10] See also Exhibit S-2, “Physician Health Program (PHP) Report.”

[11] Mr. Underwood was further given notice of the Hearing by appearing at a January 25, 2007 telephonic prehearing conference with the Assistant Attorney General and Judge Strickland. During the conference, the upcoming Hearing was discussed.

[12] Exhibit S-3.

[13] Exhibit S-2.

[14] Exhibit S-1.

[15] Id.

[16] Id.

[17] Exhibit S-2.

[18] Exhibit S-7.

[19] Id. at p. 3, ¶5.

[20] Exhibit S-14.

[21] See the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV- TR) (4th Ed. 2000), specifically, ( 303.90.

[22] Exhibit S-14.

[23] Exhibit S-3.

[24] See the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV- TR) (4th Ed. 2000), specifically, ( 303.90.

[25] Id. at ( 311..

[26] Exhibit S-6.

[27] See FINDINGS OF FACT ¶¶5 and 7, above.

[28] Exhibit S-15.

[29] See note 11, above.

[30] See A.R.S. § 41-1092.07(G)(2):

2. At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.

See also Ariz. Admin. Code R2-19-119(B).

[31] See Smith v. Arizona Dep't of Transp., 146 Ariz. 430, 432; 706 P.2d 756, 758 (App. 1985); see also Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); Ariz. Admin. Code R2-19-119(A).

[32] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also J. LIVERMORE, R. BARTELS, & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[33] A.R.S. § 32-2551 provides in part:

§ 32-2551. Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice; civil penalty

A. The board on its own motion may investigate any evidence that appears to show that a physician assistant is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to carry out approved health care tasks. Any physician, physician assistant or health care institution as defined in section 36-401 shall, and any other person may, report to the board any information the physician, physician assistant, health care institution or other person has that appears to show that a physician assistant is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to carry out approved health care tasks. The board or the executive director shall notify the physician assistant and the approved supervising physician of the content of the reported information in writing within one hundred twenty days of its receipt of the information. Any physician, physician assistant, health care institution or other person that reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting or providing information, and, if requested, the name of the reporter shall not be disclosed unless the information is essential to proceedings conducted pursuant to this section.

* * *

J. A physician assistant who after a formal hearing pursuant to Title 41, Chapter 6, Article 10 is found to be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely carry out the physician assistant's approved health care tasks, or any combination of these, is subject to censure, probation, suspension or revocation, or any combination of these, for a period of time or permanently and under conditions the board deems appropriate for the protection of the public health and safety.

* * *

[34] C. If the board finds, based on the information it receives under subsections A and B of this section, that the public safety imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board acts pursuant to this subsection, the physician assistant shall also be served with a written notice of complaint and formal hearing, setting forth the charges, and is entitled to a formal hearing before the board or an administrative law judge on the charges within sixty days pursuant to Title 41, Chapter 6, Article 10.

[35] See Dahnad v. Buttrick, 201 Ariz. 394, 398; 36 P.3d 742, 746 (App. 2001) (a case involving the Dental Board).

[36] Id. at 399 and 747.

[37] Id.

[38] Exhibit S-15.

[39] See Dahnad at 399, 747(citing State v. O'Connor, 171 Ariz. 19, 23, 827 P.2d 480, 484 (App. 1992)).

[40] A.R.S. § 32-2551(J)

[41] See A.R.S. § 32-2551:

F. The board shall not disclose the name of the person who provided the information regarding a licensee's drug or alcohol imP.A.irment or the name of the person who files a complaint if that person requests anonymity.

[42] See Exhibit S-12.

[43] See A.R.S. § 41-1092.07(G)(2).

[44] See A.R.S. § 32-2504:

§ 32-2504. Powers and duties; subcommittees

A. The board shall:

1. As its primary duty, protect the public from unlawful, incompetent, unqualified, imP.A.ired or unprofessional physician assistants.

[45] A.R.S. ( 1-211(B).

[46] A.R.S. ( 1-213.

[47] See MaricoP.A. County Sheriff’s Office v. MaricoP.A. County Employee Merit System Comm’n, 211 Ariz. 219, 222; 119, 1025 P.3d 1022 (2005) (“[D]iscipline, initially imposed within standards and policies set by the appointing authority, should not be disturbed merely because a reviewing body sees it as disproportionate.” ).

[48] Id. at 223, 1026.

[49] A.R.S. ( 32-2551:

M. The board may charge the costs of a formal hearing to the licensee if it finds the licensee in violation of this chapter.

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