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14F-201400061-DEN · Board of Dental Examiners · 2014-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of: No. 14F-[number redacted]-DEN Michael Wassef, D.D.S. Holder of License No. D5171 ADMINISTRATIVE LAW JUDGE For the Practice of Dentistry DECISION In the State of Arizona.

HEARING: May 9 and June 17, 2014, with the record held open until July 2,

2014

APPEARANCES: Michael Wassef, D.D.S. appeared on his own behalf; Mary

DeLaat Williams, Esq. for the Arizona State Board of Dental Examiners

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________ FINDINGS OF FACT 1. On April 16, 2014, the Arizona State Board of Dental Examiners (“Board”) issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. May 9, 2014, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Complaint and Notice of Hearing alleges that Respondent Michael Wassef, D.D.S. failed to comply with the Board’s “Interim Order for Substance Abuse Evaluation” (“Interim Order”) dated March 20, 2014. 3. The Complaint and Notice of Hearing shows that the issue for hearing is whether Dr. Wassef’s alleged non-compliance with the Interim Order, if proven, constitutes unprofessional conduct as defined in ARIZ. REV. STAT. sections 32- 1201(21)(n)(conduct or practice that constitutes a danger to the health, welfare, or safety of the patient or public) and (21)(v)(failing to comply with a final Board order).

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 4. At the hearing, the Board confirmed that the sole issue for hearing was Dr. Wassef’s alleged non-compliance with the Interim Order and whether such non- compliance would constitute a violation of ARIZ. REV. STAT. sections 32-1201(21)(n) and

(21)(v).

5. The hearing was convened on May 9, 2014, and evidence was taken.

During the course of the proceedings (but off the record) the parties reached a

proposed settlement and they agreed to suspend the hearing to allow the Board to

consider the proposed agreement.

6. The settlement was not completed and the matter was reconvened on

June 17, 2014.

7. Dr. Wassef appeared on his own behalf, but did not testify or present any

witnesses.

8. The Board presented the testimony of its Executive Director Elaine

Hugunin1 and Michael Sucher, M.D.

9. Dr. Sucher specializes and is Board Certified in addiction medicine, which

includes evaluating and monitoring people who are suspected, or have a history, of

substance abuse. Dr. Sucher is the medical director of the Board’s Monitored Aftercare Program and, through a series of contracts, has worked for the Board continuously since the fall of 1993. 10. Dr. Sucher has particular expertise with medical professionals and he provides advice to several other organizations that regulate such professionals. In a matter such as this one, Dr. Sucher testified that his concern is with the professional’s health, rather than with the statutes and rules related to unprofessional conduct. 11. In 2014, a Target pharmacy informed the Board that Dr. Wassef’s prescription writing had raised a concern. 12. Consistent with the Board’s procedures, after reviewing information regarding Dr. Wassef’s prescription drug use history and information related to

Although Ms. Hugunin is the Board’s Executive Director, she could not “speak for the Board.” Consequently, any opinions that Ms. Hugunin offered are solely her own and not those of the Board. prescriptions he had written, the Board requested that Dr. Wassef meet with Dr. Sucher for a screening assessment. 13. In a typical screening assessment, Dr. Sucher would spend about one to

two hours with the dentist and he would then made a recommendation to the Board

regarding what additional action, if any, was necessary.

14. Dr. Wassef was unwilling to meet with Dr. Sucher because he was of the

opinion that Dr. Sucher had a conflict of interest.

15. The Board agreed to allow either Steven Eickelberg, M.D. or Daniel Glick,

M.D. to conduct a screening assessment of Dr. Wassef, but Dr. Eickelberg was not

available on a timely basis and Dr. Glick was unwilling to see Dr. Wassef.

Consequently, Dr. Wassef did not undergo a screening assessment.

16. Because Dr. Wassef would not meet with him, Dr. Sucher’s opinion was

that the next step was for Dr. Wassef to undergo an inpatient substance abuse

evaluation.

17. Dr. Sucher testified however, that the term “inpatient” does not necessarily

mean that the patient stays at an evaluation facility, but rather it means only that the

evaluation is comprehensive. 18. Comprehensive inpatient evaluations take two to five days and are conducted by a team of professionals including an addiction physician, a psychiatrist, a licensed psychologist, and usually a clinical social worker. The evaluation would include a history and physical, laboratory testing, psychological testing, obtaining collateral information from parties such a family members, colleagues and other people who know the individual being evaluated, drug testing, and in some cases a medical polygraph. 19. Dr. Sucher testified that for the purposes of health care professionals generally and the specifics of this matter, the only difference between an inpatient evaluation and an outpatient evaluation would be where Dr. Wassef slept, with the actual elements of the evaluation being the same.

20. According to Dr. Sucher however, it is the physicians at the evaluation facility who would determine whether Dr. Wassef was required to stay at the facility or if he was safe to stay in a hotel.

21. Dr. Sucher testified that the inpatient evaluation of Dr. Wassef was

required for three reasons: (1) to determine his diagnoses (if any); (2) to recommend

treatment(s), if required; and (3) to provide recommendations about Dr. Wassef’s

fitness for duty and safety to practice.

22. According to Dr. Sucher, it is not uncommon that patients who undergo a

comprehensive inpatient evaluation are found to require no treatment. But patients who

have had substance abuse disorders are more likely to need additional treatment than

those who have not had such disorders.

23. The Board, after consulting with Dr. Sucher, identified three facilities at

which Dr. Wassef could receive the inpatient evaluation, all which were out of state.

24. Because Dr. Wassef was unwilling to voluntarily undergo the inpatient

evaluation, the Board issued the Interim Order. The Interim Order provides that it was

being issued pursuant to the Board’s authority under ARIZ. REV. STAT. section 32-

1207(B)(6). 25. The Interim Order provides that it is not an appealble agency action as defined in ARIZ. REV. STAT. section 41-1092(3). 26. Because the Board ordered Dr. Wassef to undergo the inpatient evaluation, the Board was going to pay for the evaluation and Dr. Wassef’s travel expenses. 27. The Interim Order was dated March 20, 2014, and provided that Dr. Wassef was required to complete the inpatient evaluation within fourteen days of his receipt of that Order. Dr. Wassef did not undergo such an inpatient evaluation. 28. At a Board meeting held on April 11, 2014, the Board considered Dr. Wassef’s matter, including his failure to comply with the Interim Order. 29. The Board’s April 11th Minutes show that:

a. Dr. Wassef’s attorney had been unaware that the Board would pay for the inpatient evaluation, but Ms. Hugunin stated that she had told the attorney that the Board would pay.

b. The Board’s attorney informed everyone that Dr. Wassef was in non-

compliance with the Interim Order and that the Board needed to

decide if it wanted to give Dr. Wassef more time to comply or to take

immediate action to summarily suspend him.

c. The Board discussed concerns about Dr. Wassef continuing to

practice.2

d. The Board went into Executive Session, after which the Board made

an offer to Dr. Wassef, but he rejected that offer.3

e. Dr. Wassef informed the Board that he was willing to be assessed by

a Board certified addictionologist locally.

f. The Board then approved a motion to summarily suspend Dr.

Wassef’s license based on his “non-compliance [with] an Interim

Board Order, constituting a threat to the public….”

30. Dr. Sucher first met Dr. Wassef in May or June of 2002. At that time Dr. Wassef was successfully treated for an opioid addiction. Dr. Wassef then successfully completed a five-year probationary period in the Board’s Monitored Aftercare Program in which he was monitored by Dr. Sucher. 31. Regarding the current matter, Dr. Sucher testified that he had reviewed information provided to him by the Board, including information showing that Dr. Wassef had been seeing a pain management specialist, that he was being prescribed Tramadol and Soma (carisoprodol), and that he had received a prescription for hydrocodone. 32. Dr. Sucher testified that Tramadol is not a controlled substance, but Soma is, and although neither are narcotics as that term is defined in law, Tramadol acts like a narcotic (opioid) from a physiological perspective. The Minutes do not provide details about that discussion. 3 The Minutes do not provide the details of that offer. 33. Dr. Sucher had concerns about Dr. Wassef’s prescription drug use because opioid dependence is a chronic illness, hydrocodone had been Dr. Wassef’s original “drug of choice,” and because the dosages of Tramadol and Soma in Dr.

Wassef’s prescriptions were increasing. Overall, this led Dr. Sucher to have a concern

that Dr. Wassef may have lapsed back into an active substance abuse disorder.

34. Dr. Sucher’s opinion was that at the time the Interim Order was issued, it

was indeterminate as to whether Dr. Wassef was safe to practice.

35. Dr. Wassef’s failure to comply with the Interim Order in the required time

led Dr. Sucher to conclude that Dr. Wassef was not safe to practice. Dr. Sucher’s

opinion was based on his view that someone in Dr. Wassef’s position would be

“interested in … finding out what’s wrong with [himself], if anything…. [and] When they

don’t do that, that’s not reasonable.”

36. Dr. Sucher was also of the opinion that practicing dentistry is a privilege,

not a right, and based on his testimony, it appears that this was also a factor in his

determination that Dr. Wassef’s failure to comply with the Interim Order was proof that

Dr. Wassef was unsafe to practice.4

37. Dr. Wassef had been evaluated at the Scottsdale Treatment Institute, but that facility does not conduct the type of evaluation required by licensing boards to determine whether a professional is safe to practice, which is the type of evaluation contemplated by Dr. Sucher and/or the Interim Order. 38. After the time for compliance with the Interim Order had elapsed, Dr. Wassef went to the Betty Ford Clinic with the intention of undergoing an evaluation. 39. Although there is some ambiguity in the record, the evidence demonstrates that Betty Ford Clinic contacted Ms. Hugunin regarding the Board’s Interim Order and Ms. Hugunin told the Clinic that an outpatient evaluation would not

Dr. Sucher also testified that there are other factors that support his opinion, including information he learned after the deadline for Dr. Wassef to comply with the Interim Order had passed. This testimony and these other bases for Dr. Sucher’s opinion are beyond the scope of the issues noticed for hearing in this matter and are therefore not addressed. be acceptable to the Board.5 Consequently, Betty Ford Clinic would not accept Dr. Wassef as a patient because he was requesting an outpatient status. 40. Dr. Sucher testified that had a clinic such as the Betty Ford Clinic found it

clinically appropriate for a full evaluation of Dr. Wassef to be undertaken on an

outpatient basis, that evaluation would have been acceptable to Dr. Sucher.6

41. Ms. Hugunin provided credible testimony that there have been no final

orders issued in this matter and that when the Board issues a final order, the licensee

has appeal rights.

CONCLUSIONS OF LAW

1. The Board bears the burden of persuasion. ARIZ. REV. STAT. § 41-

1092.07(G)(2).

2. The standard of proof on all issues in this matter is that of a

preponderance of the evidence. ARIZ. ADMIN. CODE § 2-19-119.

3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1301 (9th ed. 2009).

4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

Ms. Hugunin’s opinion was that “inpatient” means that the patient must stay at the facility and she was also of the opinion that this is what the Board meant by inpatient. Ms. Hugunin’s opinions can be given very little weight because the Board relies on Dr. Sucher for his medical expertise, both generally and in this specific case, and given that Dr. Sucher has been the Board’s medical advisor for twenty two years, the reasonable conclusion is that the Board understood what Dr. Sucher meant by “inpatient evaluation.” Dr. Sucher’s opinions in this regard were offered in response to hypothetical situations and as such must be limited to the facts presented in those hypotheticals. 5. “Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Curtis v. Richardson, 212 Ariz. 308, 312, 131 P.3d 480, 484 (App. 2006)(citing Comeau v. Ariz. State Bd. of Dental Exam'rs, 196

Ariz. 102, 993 P.2d 1066 (App. 1999)).

6. “Due process primarily requires that rights and property are not taken by

governmental authority without notice and an opportunity for hearing.” Elia v. Ariz. State

Bd. of Dental Exam’rs, 168 Ariz. 221, 228, 812 P.2d. 1039, 1046 (App. 1990)(citation

omitted).

7. Dr. Wassef “has a property interest in his dental license [and] he may not

be deprived of that interest without due process of law….” Comeau at 106, 993 P.2d at

1070.

8. Due process assures an individual notice of the charges prior to

commencement of a hearing so that the person charged has a meaningful opportunity

for explanation and defense. Elia at 226, 812 P.2d at 1046 (citations omitted).

9. In an Administrative Law Judge Decision, “[f]indings of fact shall be based

exclusively on the evidence and on matters officially noticed.” ARIZ. REV. STAT. § 41-

1092.07(F)(6). 10. The Board may order a dentist to undergo physical, psychological, psychiatric, and competency evaluations, if such evaluations are necessary. ARIZ. REV. STAT. § 32-1207(B)(6). 11. The Board may invoke disciplinary action against a dentist for any unprofessional conduct as defined in section 32-1201. ARIZ. REV. STAT. § 32-1263(A). 12. “Unprofessional conduct” includes: Any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public; and failing to comply with a final board order, including an order of censure or probation. ARIZ. REV. STAT. § 32-1201(21)(n) and (v). 13. The Board may summarily suspend a license if the Board finds that the public health, safety or welfare imperatively requires emergency action. ARIZ. REV. STAT. § 32-1263.02(C). Hearings on such summary suspensions shall be promptly instituted and determined. ARIZ. REV. STAT. § 41-1092.11(B). 14. "Contested case" means any proceeding in which the legal rights, duties or privileges of a party are required to be determined by an agency after an opportunity for an administrative hearing. ARIZ. REV. STAT. § 41-1001(4). Contested cases must be

set within sixty days of the agency’s request for a hearing. ARIZ. REV. STAT. § 41-

1092.05(A)(2).

15. “Appealable agency action" means an action that determines the legal

rights, duties or privileges of a party and that is not a contested case. ARIZ. REV. STAT.

§ 41-1902(3). Appealable agency actions must be set within sixty days of the licensee’s

notice of appeal. ARIZ. REV. STAT. § 41-1092.05(A)(1).

ARIZ. REV. STAT. § 32-1201(21)(v)

16. The Board has not shown by a preponderance of the evidence that Dr.

Wassef violated ARIZ. REV. STAT. section 32-1201(21)(v), because the Interim Order is

not a final order.

ARIZ. REV. STAT. § 32-1201(21)(n)

17. The Board has not met its burden of persuasion to show that Dr. Wassef’s

failure to comply with the Interim Order constitutes a violation of ARIZ. REV. STAT. § 32-

1201(21)(n). 18. The Board has not shown by a preponderance of the evidence that Dr. Wassef’s failure to comply with the Interim Order constitutes a danger to the health, welfare, or safety of the patient or the public. Dr. Wassef was ordered to undergo the inpatient evaluation to determine if he was safe to practice. Consequently, his failure to undergo that evaluation cannot be the sole reason to now say that he is not safe to practice (or that he is a danger to the public). 19. The Interim Order was issued pursuant to the Board’s authority under ARIZ. REV. STAT. section 32-1207(B)(6). The Board explicitly determined that the Interim Order was not an appealable agency action. Consequently, in order for the Interim Order to become enforceable, the Board was required to demonstrate through a contested case hearing that the Interim Order was appropriately issued. Because no contested case hearing has been held, the Interim Order is not enforceable against Dr. Wassef. 20. By seeking to discipline Dr. Wassef before holding a contested case hearing, the Board is acting unfairly and interpreting the Uniform Administrative Hearing Procedures’ statutes (ARIZ. REV. STAT. Title 41, Chapter 6, Article 10) in a

manner that is inappropriate because it puts licensees such as Dr. Wassef in the

position where they must comply with Orders that are not yet enforceable or be

disciplined for failing to comply.7 Cf. Comeau at 108, 993 P.2d at 1072 (refusal to

cooperate in investigation cannot be penalized where there is an explicit right to a

hearing).8

21. The Board’s action also deprived Dr. Wassef of due process because he

has not had any opportunity, let alone one in a meaningful and timely manner, to be

heard on the merits of the Interim Order and the Board’s determination that the

substance abuse evaluation was necessary.

The Summary Suspension

22. The Board has not shown that the public health, safety or welfare

imperatively required emergency action to summarily suspend Dr. Wassef’s license.9

23. The only basis provided for the Board’s finding that there was an

emergency was that Dr. Wassef failed to comply with the Interim Order’s requirement that Dr. Wassef undergo an inpatient substance evaluation. But Dr. Wassef had not undergone such an evaluation at the time the Interim Order was issued and so his failure to comply with the Interim Order did not change the status quo and cannot be considered substantial evidence showing that there was an emergency. ORDER Because Michael Wassef, D.D.S. has not violated ARIZ. REV. STAT. section 32- 1201(21)(n) or section (21)(v),

The facts of this matter demonstrate the danger of the Board’s approach in that its Executive Director and its medical advisor Dr. Sucher had conflicting views about what Dr. Wassef was actually required to do to comply with the Interim Order. Had Dr. Wassef been given a hearing on the underlying merits of the Interim Order, this discrepancy could have been explored and resolved. Comeau involved a statute that is no longer effective. 9 Relying on Dahnad v. Buttrick, ex rel Ariz. State Bd. of Dental Exam’rs, 201 Ariz. 394, 36 P.3d 742 (App. 2001), the Board appears to take the position that to challenge the emergency finding, Dr. Wassef was required to file a Special Action. Although, Dahnad shows that Dr. IT IS ORDERED that the suspension of Michael Wassef, D.D.S.’s License

D5171 is rescinded.

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 is five days after the date of that certification.

Done this day, July 16, 2014. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Elaine Hugunin, Executive Director Board of Dental Examiners

Wassef could have filed a Special Action, in light of the procedures set out in Title 41, Chapter 6, Article 10, Dahnad cannot be read to show that he was required to do so.