ALJDEC decisions subject to certification as final

19A-5082-PAB · Arizona Medical Board · 2019-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2019 at 9:00 AM.[1] APPEARANCES: No appearance(s) on behalf of Sean W. Smith (“Respondent”). Assistant Attorney General Sabrina Khan, Esq., appeared on behalf of the Arizona Regulatory Board of Physician Assistants (“Board”) with Erinn Downey as a witness. Robin Jasper (Certificate No. 50286) served as the official court reporter. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Executive Director of the Board. FINDINGS OF FACT Background and Procedure 1. The Board is the authority for the regulation and control of the performance of health care tasks by physician assistants in the State of Arizona.[2] 2. Respondent is a physician’s assistant who holds Board-issued License No. 5082 for the performance of health care tasks in the State of Arizona. Administrative Notice is taken that Respondent was first issued his license to practice in the State of Arizona on September 14, 2012.[3] Respondent’s license is currently expired as of August 06, 2018.[4] 3. On February 19, 2019, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 4. On February 20, 2019, the Board issued a Complaint and Notice of Hearing which alleged certain facts against Respondent and charged Respondent with having committed unprofessional conduct as defined by Ariz. Rev. Stat. §§ 32-2551(J), 32-2501(18)(a), 32-3208(A), 32- 2501(18)(c), 32-2501(18)(i), 32-2501(18)(p), 32-1501(2), 32- 2501(18)(v), 32-2501(18)(aa), and 32-2501(18)(ee). Complainant was advised that a formal hearing on the aforementioned charged would take place at OAH on April 17, 2019, at 9:00 a.m. The Board mailed the Complaint and Notice of Hearing via United States Postal Service certified mail to Respondent’s address of record. Hearing Evidence 5. The Board submitted eighteen exhibits[5] and called Erinn Downey as a witness. Respondent did not appear, personally or through an attorney. Respondent did not request to appear telephonically at the hearing and did not request that the hearing again be continued. Respondent did not present any evidence to defend his license to be a physician assistant. Ms. Downey’s testimony 6. Ms. Downey testified that she is the Assistant Manager of the Board’s Investigations Department. 7. Per Ms. Downey, on March 17, 2017, the Board received a complaint from a pharmacy that Respondent had written multiple controlled substance prescriptions to a colleague, who was not under his care, over the course of six months.[6] 8. On March 22, 2017, the Board opened investigation PA-17-0030A and issued an advisory letter to Respondent.[7] Attached was a confidential Interim Order.[8] Respondent was alerted that he was required to submit to a physician health program (“PHP”) assessment and supply a written narrative response to the Board by April 04, 2017.[9] Respondent did not comply. 9. On May 05, 2017, the Board issued a non-disciplinary Interim Consent Agreement for Practice Limitation to Respondent and advised that it needed to be signed and returned by 3:00 p.m. on May 10, 2017.[10] Respondent did not comply. 10. Respondent was terminated from employment for diversion, issuing fraudulent prescriptions, and for committing several other employer policy violations.[11] 11. During the course of its investigation the Board pulled Respondent’s prescriber activity report[12], his colleague’s patient report[13] and medical records[14], and Respondent’s patient report[15]. The Board was able to determine that Respondent prescribed narcotics to his colleague that had not been approved by her treating physician, and that Respondent’s physician had not prescribed said narcotics to him either.[16] 12. Respondent’s conduct was reported to local law enforcement.[17] Respondent admitted his conduct and plead guilty to Solicitation to Commit Forgery, a class 1 misdemeanor and violation of Ariz. Rev. Stat. §§ 13-1003, 13-202, 13-2001, 13-1002, 12-116.09, 12-269, 13-805, 13-604, 13-707, and 13-802.[18] Respondent was sentenced on February 15, 2018, to eighteen months of supervised probation and assessed $90.00 in associated fees.[19] 13. On March 16, 2018, the Board notified Respondent that its investigation was almost finished.[20] Respondent was supplied a copy of the Board’s Investigation Report and supporting documentation.[21] Respondent was advised that if he wanted to address any or all of the information the Board had acquired he needed to do so no later than March 30, 2018.[22] Respondent failed to reply to the Board. 14. On April 05, 2018, the investigative summary of PA-17-0030A was presented to the Board.[23] After deliberation the Board determined that Respondent’s violations warranted revocation, but voted to allow Respondent to surrender his license in lieu of formal revocation.[24] Because Respondent declined to sign the Board’s Consent Agreement to Surrender his license, the matter was forwarded to OAH. CONCLUSIONS OF LAW 1. The Complaint and Notice of Hearing the Board mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter.[25] Because the Board mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Board as well. 2. The Board is the duly constituted authority for licensing and regulating the practice of physician assistants in the State of Arizona. This matter lies within its jurisdiction.[26] The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41- 1092 et seq. 3. The Board bears the burden of proof to establish cause to sanction Respondent’s physician’s assistant license by a preponderance evidence.[27] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[28] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[29] A preponderance of the evidence is “[t]he 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.”[30] 5. Ariz. Rev. Stat. § 32-1501(2) defines an “active license” to mean a current valid license to practice naturopathic medicine. 6. Ariz. Rev. Stat. § 32-2501(18)(a) defines “unprofessional conduct” to include the violation of any federal or state law or rule that applies to the performance of health care tasks as a physician assistant. Conviction in any court of competent jurisdiction is conclusive evidence of a violation. 7. Ariz. Rev. Stat. § 32-2501(18)(c) defines “unprofessional conduct” to include the performance of health care tasks that have not been delegated by a supervising physician. 8. Ariz. Rev. Stat. § 32-2501(18)(i) defines “unprofessional conduct” to include prescribing or dispensing controlled substances or prescription-only drugs for which the physician assistant is not approved or in excess of the amount authorized. 9. Ariz. Rev. Stat. § 32-2501(18)(p) defines “unprofessional conduct” to include failing or refusing to maintain adequate records on a patient. 10. Ariz. Rev. Stat. § 32-2501(18)(v) defines “unprofessional conduct” to include committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. 11. Ariz. Rev. Stat. § 32-3208(A) holds that a health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. 12. Ariz. Rev. Stat. § 32-2501(18)(aa) defines “unprofessional conduct” to include failing to furnish legally requested information to the board or its investigator in a timely manner. 13. Ariz. Rev. Stat. § 32-2501(18)(ee) defines “unprofessional conduct” to include violating a formal order, probation agreement or stipulation issued or entered into by the board or its executive director. 14. Ariz. Rev. Stat. § 32-2551(J) holds that a physician assistant who 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 post hearing, or any combination of thereof, 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. 15. The material facts in this matter are not in dispute. 16. The Board established by a preponderance of the evidence that Respondent, while acting in his capacity as a physician’s assistant, issued narcotic prescriptions without the express direction or permission of his supervising physician; did not properly note the prescriptions in the patients chart; diverted the narcotics for his own use without the consent of a prescribing physician; committed legal violations of which he failed to timely notify the Board; and failed to timely comply with multiple Board requests during the course of its investigation into Respondent’s conduct. 17. Because the Board has established by a preponderance evidence that Respondent engaged in unprofessional conduct, the Board has also established violations of Ariz. Rev. Stat. §§ 32- 2551(J), 32-2501(18)(a), 32-3208(A), 32-2501(18)(c), 32- 2501(18)(i), 32-2501(18)(p), 32-1501(2), 32-2501(18)(v), 32- 2501(18)(aa), and 32-2501(18)(ee) by a preponderance evidence. 18. Therefore, the only issue remaining is whether Respondent raised a sufficient justification or excuse for his conduct as established by the Board. This is an affirmative defense that Respondent bears the burden to establish. Because Respondent failed to appear and provide testimony, this burden has not been sustained. Respondent’s absence is a factor in aggravation. The record shows that Respondent acted outside the bounds of the law, the Board’s rules, and his employer’s policies, and had no affirmative defense(s) for doing so. 19. Respondent’s failures to adhere to related rules and regulations of his licensure, cooperate with the Board’s investigation, and to appear for his duly noticed hearing show that he cannot be regulated at this time. Therefore, the Board has established cause to revoke Respondent’s physician’s assistant license under Ariz. Rev. Stat. § 32- 2551(J). RECOMMENDED ORDER Based on the foregoing findings of fact and conclusions of law, it is ordered that Respondent’s License No. 5082 for the performance of health care tasks in the State of Arizona be revoked. 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, May 06, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director Arizona Medical Board ----------------------- [1] The record in this matter was help open until Friday, May 03, 2019, for the receipt of Ms. Jasper’s official hearing transcript. [2] See Arizona Revised Statutes (“Ariz. Rev. Stat.”) § 32-2501 et seq.; see also Arizona Administrative Code (“Ariz. Admin. Code”) Title 4, Chapter 17, Articles 1-3. [3] See http://www.gls.azpa.gov/glsuiteweb/clients/azbom/Public/Profile.aspx?entID=1 725810&licID=347128&licType=3. [4] Id. [5] Pursuant to an April 09, 2019, Order Board Exhibits 1-3, 5, 7-10, 13- 14, 16, and 18 are confidential exhibits, and Board Exhibits 4, 6, 11-12, 15, and 17 are public exhibits. [6] See Confidential Board Exhibits 1 and 14. [7] See Confidential Board Exhibit 2. [8] Id. [9] Id. [10] See Confidential Board Exhibit 3; see also Board Exhibit 4. [11] See Confidential Board Exhibits 1, 9, 13, and 14; see also Board Exhibits 11 and 12. [12] See Confidential Board Exhibit 7. [13] See Confidential Board Exhibit 8. [14] See Confidential Board Exhibit 10. [15] See Confidential Board Exhibit 5. [16] See Confidential Board Exhibit 16. [17] See Board Exhibit 6. [18] See Board Exhibit 15. [19] Id. [20] See Board Exhibit 17. [21] Id. [22] Id. [23] See Confidential Board Exhibit 18. [24] Id. [25] See Ariz. Rev. Stat. §§ 41-1092.04, 41-1092.05(D), and 41-1061(A). [26] See Ariz. Rev. Stat. § 32-2501 et seq. [27] See Ariz. Rev. Stat. §§ 41-1092.07(G)(2) and Ariz. Admin. Code R2-19- 119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [28] See Ariz. Admin. Code R2-19-119(B)(2). [29] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[30] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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