ALJDEC decisions subject to certification as final

20F-201900135-DEN · Board of Dental Examiners · 2020-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Nicholas P. Heiner, DDS

Holder of License No. D008230

For the Practice of Dentistry

In the State of Arizona.

Respondent.

No. 20F-[number redacted]-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 03, 2020 at 1:00 PM.

APPEARANCES: Assistant Attorney General Seth Hargraves, Esq. appeared on behalf of the Arizona State Board of Dental Examiners with Kristina Gomez as a witness. No appearance(s) by or on behalf of Dr. Nicholas P. Heiner, DDS (“Respondent”). Robin Jasper (CCR No. 50286) served as the official court reporter for the proceeding. Lisa Schmelling, Selena Acuna, and Sherrie Biggs observed.

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 Acting Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

The Board has the authority to regulate and control the practice of general dentistry in the State of Arizona.

Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken that Respondent was first issued License No. D008230, issued on June 09, 2011, for the practice of dentistry in the State of Arizona. The license is currently active and renewed through December 31, 2020.

On September 29, 2020, the Board issued a Complaint and Notice of Hearing (“Complaint”) for Case Nos. [number redacted] and [number redacted] alleging that Respondent had engaged in unprofessional conduct pursuant Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1264(A)(1), specifically 32-1201.01(14) (“Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.”) and 32-1201.01(22) (“Failing to comply with a board order, including an order of censure or probation.”). Respondent was further advised that the aforementioned alleged conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license, pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

Respondent’s Answer to the Complaint was timely received by the Board.

Because Respondent contested the charges in the Complaint, the Board forwarded the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for hearing on November 03, 2020, to determine whether Respondent violated Ariz. Rev. Stat. §§ 32-1201.01(14), 32-1201.01(22), and 32-1264(A)(1) as charged by the Board.

Hearing Evidence

At the hearing, the Board presented witness testimony from Kristina Gomez and admitted 18 exhibits into the record. The substantive evidence of record is as follows:

On or about June 05, 2018, the parties entered into a Non-Disciplinary Consent Agreement and Order (“Consent Agreement”) for Case No. [number redacted]. Per the Consent Agreement, Respondent was required to take 6hrs of continuing education in the area of diagnostic and treatment planning, and 3hrs of continuing education in the area of record keeping. The terms of the Consent Agreement provided that in the event Respondent failed to timely complete the required continuing education, the Board could take disciplinary action against Respondent’s license for noncompliance with a Board order. Compliance with the Consent Agreement’s requirements were due by December 05, 2018, 6 months from the effective date of the Consent Agreement.

Respondent failed to comply.

On July 05, 2019, the Board issued a Notice of Complaint (“Complaint“) to Respondent for noncompliance with the Consent Agreement. A written response was due by July 19, 2019.

On July 29, 2019, the Board received Respondent’s reply whereby Respondent admitted that he had taken a number of courses without preapproval, and asked for his compliance deadline to be extended 6 months.

On September 10, 2019, Respondent was informally notified that the Board would review his alleged violation of the Consent Agreement at its next scheduled meeting.

On September 12, 2019, Respondent sought the Board’s approval for 3hrs of continuing education in the area of diagnostic and treatment planning, and 1hr of continuing education in the area of record keeping.

On September 12, 2019, the Board advised Respondent that would review Case No. [number redacted] at a meeting scheduled on October 04, 2019.

On October 04, 2019, the Board reviewed Case No. [number redacted]. Respondent did not attend. The Board voted to offer Respondent a Disciplinary Consent Agreement and Order (“Disciplinary Order”) that ordered compliance with the June 05, 2018, Consent Agreement, also required an additional 3hrs continuing education in ethics, and impose a $2,000.00 administrative penalty. The Board maintained that all courses should be preapproved and demanded completion within 6 months of issuance.

On October 07, 2019, Respondent emailed the Board to inquire about the status of his case.

On October 09, 2019, the Board replied and provided Respondent with the pertinent part of its determination regarding Case No. [number redacted]. Respondent replied that the Board’s decision was “[N]ot what I expected,” and noted that his personal life had been “difficult.” Respondent also offered that he planned to relocate out of state, and inquired how the Board’s decision might affect his move because he wanted to “leave in good standing” with the Board. The Board responded and informed Respondent that it expected compliance with its order for Respondent to retain his Arizona licensure. Respondent acknowledged the Board’s requirements stating, “I will comply as I do want to maintain licensure in AZ.”

On October 22, 2019, the Board issued its formal Disciplinary Order to Respondent. Respondent’s signature was requested returned by November 05, 2019.

On November 20, 2019, the Board emailed Respondent because it had not received Respondent’s signature on the Disciplinary Order. Respondent’s compliance deadline was extended to November 25, 2019, and he was provided an additional copy of the Disciplinary Order by the Board. The Board warned that failure to timely comply could result in disciplinary action against Respondent’s license. Respondent replied that he had moved and had not received any correspondence from the Board, but that he would review the Disciplinary Order and timely respond.

On November 26, 2019, Respondent emailed the Board an apology, stating “This weekend I was out of town I expectingly and didnt get sending an emailed response yesterday however I am finishing it up this morning and will be sending it over.” [sic]

Respondent never signed the Disciplinary Order.

On December 11, 2019, Respondent emailed the Board to request that the Board quash the Disciplinary Order and reinstate the Consent Agreement. Respondent pled for leniency based on personal tribulations he suffered in the recent past. Minutes later Respondent sent a second email the Board in which he attempted to justify his move as well as apologize for not “getting the Actions completed.” [sic] Moments later Respondent sent a third email the Board whereby he asked the Board to rescind its administrative penalty because was “very strapped for funds.” The Board informed Respondent that it would consider his prayers for relief at its January 31, 2020, meeting.

On January 30, 2020, Respondent provided his updated mailing address to the Board.

On January 31, 2020, the Board reviewed Case No. [number redacted]. Respondent did not attend. The Board voted to re-offer the Disciplinary Order to Respondent.

On February 05, 2020, the Board provided written notice of its decision to Respondent. Respondent was required to sign the Disciplinary Order and return it to the Board by February 19, 2020.

On February 07, 2020, Respondent again iterated that he could not afford to pay the Board’s administrative penalty, and asked why it had not been set significantly lower.

On May 20, 2020, the Board issued notice to Respondent that it would review Case No. [number redacted] at a meeting on June 05, 2020.

On June 05, 2020, the Board reviewed Case No. [number redacted] whereby the Board voted to file a Complaint to revoke Respondent’s license due to his failure to comply and respond to the Board.

In closing, the Board argued that due to Respondent’s alleged statutory violations, and because Respondent would not submit to regulation by the Board, the Board was therefore left with no choice but to revoke Respondent’s license to practice dentistry.

CONCLUSIONS OF LAW

The Board has jurisdiction over Respondent and the subject matter in this case. The matter was properly brought before OAH pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq.

All licensees must apprise themselves of, and be held responsible to, the State’s Dental Practice Act.

The Complaint 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.

The Board bears the burden of proof to establish that Respondent committed unprofessional conduct that furnishes cause to discipline his license to practice dentistry in the State of Arizona by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty 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 “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Pursuant to Ariz. Rev. Stat. § 32-1201(13) “disciplinary action” means regulatory sanctions that are imposed by the board in combination with, or as an alternative to, revocation or suspension of a license and that may include:

(a) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(b) Imposition of restrictions on the scope of practice.

(c) Imposition of peer review and professional education requirements.

(d) Imposition of censure or probation requirements best adapted to protect the public welfare, which may include a requirement for restitution to the patient resulting from violations of this chapter or rules adopted under this chapter.

Ariz. Rev. Stat. § 32-1263.01(A) provides that the Board may take any one or a combination of the following disciplinary actions against any person licensed under the chapter:

(1) Revocation of license to practice.

(2) Suspension of license to practice.

(3) Entering a decree of censure, which may require that restitution be made to an aggrieved party.

(4) Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

(5) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(6) Imposition of a requirement for restitution of fees to the aggrieved party.

(7) Imposition of restrictions on the scope of practice.

(8) Imposition of peer review and professional education requirements.

(9) Imposition of community service.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(1) the Board may impose disciplinary action against a dentist for any unprofessional conduct as defined in section 32-1201.01.

Pursuant to Ariz. Rev. Stat. § 32-1201.01(14) “unprofessional conduct” includes committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public

Pursuant to Ariz. Rev. Stat. § 32-1201.01(22) “unprofessional conduct” includes failing to comply with a board order, including an order of censure or probation.

The record establishes by a preponderance of the evidence that parties signed a Consent Agreement on or about June 05, 2018, Respondent failed to comply with the terms of said agreement, and Respondent failed to sign the subsequently issued Disciplinary Order by November 25, 2019. The record also reflects that Respondent did not timely update his mailing address with the Board after he moved out of State.

Therefore, the only remaining issue to address is whether Respondent raised a sufficient justification or excuse for failing to timely comply with the Board’s Consent Agreement and/or sign the Board’s Disciplinary Order. These are affirmative defenses that Respondent bears the burden to establish Because Complainant failed to participate in the duly notice hearing, Complainant has also failed to establish an affirmative defense by a preponderance of the evidence.

Here, the Board has established that Respondent committed action of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1264(A)(1), specifically 32-1201.01(14) and 32-1201.01(22). As such, grounds exist for the Board to take disciplinary action, including suspension or revocation, of Respondent’s dental license pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

Weighing the gravity of Respondent’s above-captioned conduct against the Board’s interest in protecting the public, and taking into account Respondent’s seeming unwillingness to timely respond to the Board and/or submit to its regulation, the undersigned Administrative Law Judge hereby holds that Respondent’s license shall be revoked.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in these matters, Respondent Nicholas P. Heiner’s license, License No. D008230, to practice dentistry in the State of Arizona shall 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, December 04, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Ryan Edmonson, Executive Director

Board of Dental Examiners