ALJDEC decisions subject to certification as final

07F-023-CEA · Board of Chiropractic Examiners · 2006-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2006 APPEARANCES: Adrian Marnell, D.C. appeared on his own behalf. Assistant Attorney General Erin Cohen represented the Arizona State Board of Chiropractic Examiners. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The Arizona State Board of Chiropractic Examiners seeks to revoke Respondent Adrian Marnell, D.C.’s chiropractic license. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: FINDINGS OF FACT Respondent Adrian Marnell, D.C. is the holder of License No. 2064 for the practice of chiropractic in the State of Arizona. The Arizona State Board of Chiropractic Examiners (the “Board”) is the duly constituted authority for licensing and regulating the practice of chiropractic in the State of Arizona. On March 17, 2003, following a hearing in Case No. 02F-070-CEA, the Board entered an Order pursuant to which it suspended Dr. Marnell’s chiropractic license for a period of six months based on violations of the Chiropractic Practice Act relating to improper billing. See Exhibit 2. The Board then stayed that suspension and placed Dr. Marnell on probation for a period of 3½ years. See id.

The terms of Dr. Marnell’s probation were as follows: a) The stay of suspension of Dr. Marnell’s license may be lifted or other enforcement action taken by the Board in the event Dr. Marnell violates the effective Order in this matter or violates the Chiropractic Act during the term of his probation.

b) Dr. Marnell shall pay a civil penalty of One Thousand Five Hundred Dollars ($1,500) to the Board due and payable on or before six (6) months of the effective date of the entered Order in this matter.

c) Within one year of the effective date of this Order, and as directed by the Board, Dr. Marnell shall take and pass the SPEC examination with a score of 75% or higher.

d) Within six (6) months of the effective date of this Order, Dr. Marnell shall take and pass the Board’s jurisprudence examination.

e) Within 60 days of the effective date of this Order, Dr. Marnell shall hire an independent billing service. The selected billing service shall not be owned by, nor employ, Dr. Marnell’s office manager, Sarah McCollum. This restriction shall also apply if Ms. McCollum should leave Dr. Marnell’s employ during the period of probation. Dr. Marnell shall retain the independent billing service throughout the period of probation.

f) Within 60 days of the effective date of this Order, Dr. Marnell shall hire an independent auditing firm approved by the Board. At a minimum, the independent auditing firm shall file quarterly reports with the Board. The independent auditing firm shall conduct random audits of a minimum of 10 patient files per audit. The independent auditing firm has the discretion to increase the amount of patient files audited if it discovers any irregularities in Dr. Marnell’s practice. Dr. Marnell shall retain the independent auditing firm throughout the period of probation.

g) The independent auditing firm shall reconcile the two sets of health insurance claim forms submitted to S.C.’s carrier and provide a written report to the Board.

h) Within 90 days of completion of the reconciliation required by paragraph (g), Dr. Marnell shall make restitution to the third party payor for payments received by his clinic for double billings and for services provided by the massage therapists that were outside the scope of the prescriptions issued to S.C. by her physicians.

i) At the conclusion of two years from the effective date of this Order[,] Dr. Marnell may request that the Board terminate the probation. The Board’s decision to terminate the probation will be based on Dr. Marnell establishing that he has successfully completed the terms of the probation and that he has made significant changes in his practice that address the violations address[ed] by this Order.

See Exhibit 2.

Dr. Marnell did not appeal the Board’s March 17, 2003 Order. By Order dated February 23, 2004, the Board determined that Dr. Marnell had violated the terms of his probation in the following particulars: At the Board’s February 12, 2004 meeting, [Dr. Marnell] acknowledge[d] that he failed to write necessary patient information in patients’ chiropractic records. Furthermore, [Dr. Marnell] acknowledged that these oversights could harm patients’ health and safety. [Dr. Marnell’s] failure to maintain adequate chiropractic records on patients is a violation of the Chiropractic Act, which is a violation of paragraph “a” of the [March 17, 2003] Order.

At the Board’s February 12, 2004 meeting, [Dr. Marnell] acknowledged that he had not applied to take the SPEC examination. [Dr. Marnell’s] next opportunity to take the SPEC examination is April 15, 2004, which date is past the Order’s deadline for [Dr. Marnell] to take the examination by March 17, 2004. [Dr. Marnell’s] failure to take the examination is a violation of paragraph c of the [March 17, 2003] Order.

See Exhibit 3, at 2.

In consequence of the foregoing violations, the Board suspended Dr. Marnell’s chiropractic license for a period of six months. See Exhibit 3. The Board’s February 23, 2004 Order provided that upon the expiration of the six month suspension period, Dr. Marnell’s license would be placed back on probation pursuant to the terms of the March 17, 2003 Order.

Dr. Marnell did not appeal the Board’s February 23, 2004 Order.[1] By letter dated September 17, 2004, the Board advised Dr. Marnell that the suspension of his license would be lifted effective September 18, 2004, at which time the terms and conditions of the March 17, 2003 Order of Probation would be reinstated. See Exhibit 5. According to Dr. Marnell, the terms of the Board’s March 17, 2003 Order were sufficiently onerous that he elected to cease practicing chiropractic during the term of the Order. The evidence was undisputed that Dr. Marnell never notified the Board that he had elected to cease practicing, nor did he petition the Board for a modification of the terms of his probation to reflect his changed circumstances. When Dr. Marnell ceased practicing chiropractic, he ceased using the billing service and auditing firm that were required under the terms of his probation. Further, the auditing firm ceased to file the quarterly reports that were required as a condition of Dr. Marnell’s probation. In late July or early August 2006, the Board’s Deputy Director/Investigator, Charles Brown, commenced a review of Dr. Marnell’s file in anticipation of the September 16, 2004 expiration of Dr. Marnell’s probation. During the course of that review, Mr. Brown discovered that the quarterly reports required under the terms of Dr. Marnell’s probation were not being submitted to the Board.[2] Mr. Brown referred the matter of Dr. Marnell’s probation violations to the Board for review, and advised Dr. Marnell that he could, if he wished, appear and be heard by the Board at its August 10, 2006 meeting. Dr. Marnell did not avail himself of that opportunity. On August 10, 2006, the Board considered Dr. Marnell’s case, and voted to refer the matter for formal hearing.

On October 5, 2006, the Board issued a Complaint and Notice of Hearing pursuant to which it alleged that Dr. Marnell had failed to comply with the Board’s March 17, 2003 Order in violation 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), (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), and (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). The Board’s Complaint also alleged the following:

On August 1, 2006, Mr. Brown advised [Dr. Marnell] . . . that an anonymous document was sent to the Board’s office which contained information pertaining to allegations of criminal charges against [Dr. Marnell] and requested [Dr. Marnell] to provide all information to the Board regarding the allegations. [Dr. Marnell] never provided the requested documentation to the Board.

See Complaint and Notice of Hearing, a copy of which is contained in the Administrative Record, at ¶ 7. The Board did not allege the foregoing allegations of criminal charges as forming the basis for a violation by Dr. Marnell of the Chiropractic Act; therefore, the Administrative Law Judge has not considered them further herein. The Board’s Complaint and Notice of Hearing instructed Dr. Marnell to file a written Answer within 20 days of the date of service of the Complaint and Notice of Hearing. Dr. Marnell did not do so. The hearing in this matter convened on November 28, 2006. Dr. Marnell appeared on his own behalf; Assistant Attorney General Erin Cohen represented the Board.

At hearing, Dr. Marnell did not contest that he had failed to comply with the terms of the Board’s March 17, 2003 Order following the reinstatement of his probation. He urged, however, that such failure was attributable solely to the fact that he had ceased practicing chiropractic. Dr. Marnell did not present any credible explanation at hearing as to why he failed to notify the Board that he had ceased practicing chiropractic, why he did not seek a modification of the terms of his probation, why he chose not to appear before the Board at its August 10, 2006 meeting, or why he failed to answer the Board’s Complaint and Notice of Hearing. CONCLUSIONS OF LAW In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Dr. Marnell violated A.R.S. § 32- 924(A), and that his license is therefore subject to discipline pursuant to A.R.S. § 32-924(I). See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A.R.S. § 32-924(A) sets forth 28 separate grounds upon which the Board may impose sanctions against a licensee. The Board alleged three of these grounds in the Complaint as follows: 5. Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.

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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.

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.

The Administrative Law Judge concludes that the Board met its burden of proof as to each of the foregoing violations. Dr. Marnell violated A.R.S. § 32-924(A)(5) when he failed to comply with the terms of his probation (or, alternatively, seek a modification of those terms). In so doing, Dr. Marnell demonstrated that he is either unable or unwilling to submit to regulation by the Board. Dr. Marnell violated A.R.S. § 32-924(A)(15) when he sought to avoid the terms of his probation, and thus the oversight requirements that the Board had imposed in 2003 as a direct result of its findings that Dr. Marnell had violated the Chiropractic Act. Dr. Marnell violated A.R.S. § 32-924(A)(16) when he violated the Board’s March 17, 2003 Order. Based on the foregoing violations, grounds exist to impose discipline against Dr. Marnell’s license. A.R.S. § 32-924(I) provides:

Any licensee who, after a hearing, is found to be in violation of this chapter or board rules or is found to be mentally or physically unable to safely engage in the practice of chiropractic is subject to any combination of those disciplinary actions identified in subsection F or suspension or revocation of the license. In addition, the board may order the licensee to pay restitution or all costs incurred in the course of the investigation and formal hearing in the matter, or both.

The weight of the evidence in this case supports the revocation of Dr. Marnell’s license. In reaching this conclusion, the Administrative Law Judge considered the following factors: (i) Dr. Marnell’s license was originally disciplined in 2003 for violations of the Chiropractic Practice Act; (ii) Dr. Marnell violated the terms of his probation, which violation gave rise to the suspension of Dr. Marnell’s license; (iii) after his license suspension was lifted, Dr. Marnell again violated the terms of his probation; and (iv) Dr. Marnell failed to communicate with the Board in multiple respects, including his failure to advise the Board that he had ceased practicing chiropractic, his failure to

have sought modification of the terms of his probation, his failure to have attended the Board’s August 10, 2006 meeting, and his failure to answer the Board’s Complaint and Notice of Hearing. Such failures, when viewed in conjunction with Dr. Marnell’s violations of the Chiropractic Practice Act and the terms of his probation, compel that conclusion that Dr. Marnell cannot be regulated and thus that his license should be revoked. ORDER On the effective date of the Order entered in this matter, Dr. Adrian Marnell’s license for the practice of chiropractic in the State of Arizona (No. 2064) shall be revoked.

Done this day, December 15, 2006.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of December, 2006, to:

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

By ___________________________ ----------------------- [1] At hearing, Dr. Marnell sought to offer evidence regarding the circumstances that gave rise to the suspension of his license. The Administrative Law Judge ruled that the Board’s February 23, 2004 Order had become final, and that the terms of that Order were not, therefore, subject to further review. [2] The evidence of record is unclear as to the number of reports that Dr. Marnell had failed to submit, or how it was that such failure had previously escaped the Board’s attention.

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