ALJDEC decisions subject to certification as final

20A-59584-MDX · Arizona Medical Board · 2020-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Abdelbaset A. Youssef, M.D.

Applicant for Licensure for the Practice of Allopathic Medicine in the State of Arizona

Applicant

No. 20A-59584-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2020, with the record held open until August 31, 2020

APPEARANCES: Applicant Abdelbaset A. Youssef, M.D., appeared on his own behalf. The Arizona Board of Medical Examiners was represented by Assistant Attorney General Carrie Smith.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Background and Procedure

The Arizona Medical Board (Board) is the authority for licensing and regulating the practice of allopathic medicine in Arizona.

Abdelbaset A. Youssef, M.D., was previously licensed in the State of Michigan in 2002.

On or about September 25, 2019, the Board received an application for licensure in Arizona from Dr. Youssef. Dr. Youssef responded “yes” to the following question on the application:

6. Have you ever had a medical license disciplined resulting in a revocation, suspension, limitation, restriction, probation, voluntary surrender, cancellation during an investigation, or entered into a consent agreement or stipulation?

Dr. Youssef provided a written explanation for his affirmative response and attached documents to his application. Dr. Youssef disclosed that his Michigan medical license was suspended on November 30, 2015, and his applications for licensure reinstatement had been denied in December 2016 and January 2019.

Dr. Youssef indicated that the State of Michigan Department of Licensing and Regulatory Affairs Bureau of Health Care Services Board of Medicine (Michigan Board) opened an investigation after receipt of a complaint regarding inappropriate prescribing to a patient. Dr. Youssef explained that allegations made against him by the Michigan Board included negligence, failure to consider the use of other treatment modalities or non-narcotic treatment of pain, his failure to consistently monitor for abuse and diversion by utilizing urine drug testing and checking patients’ prescription records with MAPS, and prescribing an inappropriate combination of medications resulting in the suspension of his Michigan license. Dr. Youssef disputed the allegations against him and stated that he had remedied the deficiencies outlined by the Michigan Board, but they had not reinstated his license. Dr. Youssef also purported that there had been a miscarriage of justice with the handling of his case in Michigan due to conflicts of interest and perjury.

Based on Dr. Youssef’s affirmative response on the application, the Board opened this case and assigned Board Investigator Trevor McCliment to perform an investigation.

Mr. McCliment reviewed the documents and narrative that Dr. Youssef had submitted with the license application and documentation from the Michigan Board. On or about February 24, 2020, Mr. McCliment prepared an investigative report for the Board.

On or about March 12, 2020, the Board’s Staff Investigational Review Committee considered the matter and recommended that the Board deny Dr. Youssef’s application for licensure.

At the Board’s meeting on May 7, 2020, the Board voted to direct Board staff to modify the SIRC Report to include certain statutory citations and to forward Dr. Youssef’s case to the next Board meeting.

On or about May 13, 2020, Mr. McCliment prepared an Amended Investigative Report.

At the Board’s meeting on June 3, 2020, the Board voted to offer Dr. Youssef an opportunity to withdraw the application and, if he did not withdraw the application within 30 days, to deny licensure.

By letter dated June 3, 2020, the Board issued a notice to Dr. Youssef indicating that he failed to meet the requirements in A.R.S. § 32-1422(A)(4) that he have “a professional record that indicates that you have not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter” and in A.R.S. § 32-1422(A)(6) to “not be currently under investigation, suspension or restriction by a medical regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.” Dr. Youssef was advised that he had until July 10, 2020, to withdraw his application or the application would be denied and the denial would be reported to the National Practitioners Data Bank.

Dr. Youssef did not withdraw the license application. Rather, Dr. Youssef appealed the license denial on June 16, 2020. Accordingly, the Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on August 12, 2020. The Board submitted 8 exhibits and presented the testimony of Mr. McCliment. Dr. Youssef submitted 10 exhibits and testified on his own behalf.

Hearing Evidence

In 2015, after an investigation, the Michigan Board suspended Dr. Youssef’s medical license.

In 2016, Dr. Youssef applied for reinstatement of his license. The Michigan Board denied the reinstatement.

In 2019, Dr. Youssef applied for reinstatement of his license. The Michigan Board denied the reinstatement.

At the time of the hearing, Dr. Youssef’s Michigan license was suspended and Dr. Youssef had not practiced medicine for five years.

Dr. Youssef’s testimony focused on the issues with the Michigan Board’s actions and decisions regarding his license. Dr. Youssef asserted that he was qualified for reinstatement and the Michigan Board misapplied the law.

The Board argued that Dr. Youssef had processes available to him to appeal the Michigan Board’s denial. The Board also indicated that because Dr. Youssef’s Michigan license was suspended, the Board did not have any terms from a Michigan Board probation or monitoring program that it could mirror in Arizona to ensure the safety of Arizona residents.

CONCLUSIONS OF LAW

The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. The Board has jurisdiction to determine whether Dr. Youssef is qualified to be issued a license to practice allopathic medicine in Arizona.

Dr. Youssef bears the burden of proof to establish that he meets statutory qualifications for a license to practice allopathic medicine by a preponderance of the evidence. The Board bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

The members of the Board may rely on their own expertise to evaluate the Administrative Law Judge’s recommended decision and to determine whether Dr. Youssef has established by a preponderance of the evidence that he is qualified to practice allopathic medicine in Arizona.

A.R.S. § 32-1422(A)(4) requires a license applicant to meet certain requirements to be licensed as an allopathic physician in Arizona, including that he “[h]ave a professional record that indicates that the applicant has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter.”

A.R.S. § 32-1422(A)(6) requires a license applicant to meet certain requirements to be licensed as an allopathic physician in Arizona, including that the applicant

[n]ot be currently under investigation, suspension or restriction by a medical regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter. If the applicant is under investigation by a medical regulatory board in another jurisdiction, the board shall suspend the application process and may not issue or deny a license to the applicant until the investigation is resolved.

The Board established by a preponderance of the evidence that Dr. Youssef’s Michigan license was suspended in 2015 due to unprofessional conduct as found by the Michigan Board and was suspended as of the date of the hearing.

While Dr. Youssef attempted to collaterally attack the validity of the Michigan Board’s suspension of his Michigan license, this tribunal lacks the authority to overturn the findings of the Michigan Board as it relates to Dr. Youssef.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Board deny Dr. Youssef’s appeal of its denial of his application for licensure and affirm its decision to deny his application to practice allopathic medicine in Arizona because he does not have a professional record that indicates that he has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under A.R.S. § 32-1422(A)(4) and that his Michigan license was under suspension pursuant to A.R.S. § 32-1422(A)(6).

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.

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-137160-45720000Done this day, September 21, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director

Arizona Medical Board

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