ALJDEC decisions subject to certification as final
22-216-NMB · Naturopathic Physicians Medical Board · 2022-09-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of
Colleen Huber, N.M.D.
Holder of License No. 06-948 To Practice as a Naturopathic Physician in the State of Arizona,
RESPONDENT.
No. 22-216-NMB
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 25, 2022 with the record held open until September 6, 2022 for the sole purpose of receiving written closing statements.
APPEARANCES: Steven C. Mahaffy, Esq. appeared on behalf of Respondent Colleen Huber, N.M.D. Assistant Attorney General Justin Larson appeared on behalf of the Arizona Naturopathic Physicians Medical Board.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Colleen Huber, N.M.D. holds license number 06-948 issued by the Arizona Naturopathic Physicians Medical Board (the Board).
2. Dr. Huber is the owner and Medical Director of NatureWorksBest Medical Clinic (the clinic).
3. On May 25, 2022, the Board issued a Complaint and Notice of Hearing (Notice) to Dr. Huber.
4. The Notice provided that the issue set for determination was “whether grounds exist to revoke or take other action regarding your license number 06-948.” The matter was set for hearing on July 25, 2022.
5. A hearing was held on July 25, 2022. At hearing, the Board presented the testimony of Gail Anthony, the Board’s Executive Director and Jessica Mitchell, N.M.D.
Dr. Huber testified on behalf of herself.
6. Dr. Mitchell has been the Dean of the Southwest College of Naturopathic Medicine (Southwest) in Tempe, AZ since 2019. See Exhibit P. Prior to 2019, Dr. Mitchell held various leadership positions with the Southwest since 2015. Dr. Mitchell was professor at southwest from 2011 to 2013. See id.
7. Dr. Huber obtained her Doctor of Naturopathic Medicine degree from Southwest College of Naturopathic Medicine in 2006. See Exhibit 9.
8. At all times relevant to this matter, Patient A was Dr. Huber’s patient.
9. On August 3, 2020, Patient A first presented to Dr. Huber with a history of thyroid cancer.
10. Dr. Huber administered therapeutic intravenous treatments to Patient A several times from August 3, 2020 to August 22, 2020. See Exhibit A, NAT-007 to NAT-017.
11. On August 8, 2020, Patient A inquired with a doctor at the clinic for the amount of “bicarb and other nutrients.” See Exhibit D, NAT-055.
12. On August 10, 2020, Patient A requested that the quantities of nutrients administered to her in the IVs. See Exhibit D, NAT-055.
13. Subsequently, one of the clinic’s doctors provided Patient A with a handwritten note that included abbreviations of the nutrients in the IVs administered to Patient A. However, the note did not include the amounts of the nutrients. See Exhibit A, NAT-003 and 005.
14. On August 29, 2020, Patient A requested from the clinic the ingredients and amounts in her IVs. See Exhibit D, NAT-078-079. Patient A also requested that the clinic provide her with the ingredients and the amounts in her IVs. However, a clinic representative denied Patient A’s request because clinic considered the information to be proprietary. See id.
15. On August 29, 2020, Dr. Huber responded by e-mail to Patient A’s request for the amount of the nutrients in her IVs. See Exhibit D, NAT-077. Dr. Huber informed Patient A that she would not give her the amounts of the nutrients because the information was proprietary. Dr. Huber asserted that Patient A had never informed her that she required a list of all components and amounts in her IV. The e-mail provided, in relevant part, as follows:
We have met several times in person, including your first consult at the clinic. You never said to me at any of those times, or at any other time, either in writing or orally, that you require a list of all components and amounts in your IV, in order to be willing to receive them at our clinic. If you had said that, I would have told you emphatically that I do not agree to those terms, and what I have told others who ask the same:
That information is and has always been proprietary for the entire history of our clinic. We do not give “recipes” to other doctors. That has been defended successfully by our attorney every time that it has been demanded. If necessary it will again be so defended.
Furthermore, the IVs that you received from us are no longer necessarily applicable to your health condition, pending daily health updates at our consults. I ate at a Payson restaurant the other day. However, I did not demand of the proprietor the recipe for the delicious meal that I had. Nor would I.
Clearly, you will be receiving health care at a different clinic from now on, and not at our clinic. For your future doctor to not commit malpractice, that doctor must know how to use nutrients effectively for your particular health condition. This will likely change day to day, as it has during your time with us.
16. On or about September 8, 2020, Patient A filed a complaint with the Board alleging that Dr. Huber failed to disclose the amounts and the ingredients in her IVs.
17. The Board conducted an investigation into the allegation.
18. The Board subpoenaed Patient A’s medical records as a part of the investigation. The Board received copies of the original hand-written notes for Patient A that were illegible. As a result, the Board requested that Dr. Huber provide a typed version of the chart notes. The Board later received the typed version from Dr. Huber.
19. The Board met on January 14, 2021 and discussed the complaint. See Exhibit G. The Board decided to table the matter for 90 days. The Board requested that Dr. Huber provide additional patient charts and that she complete a continuing medical education (CME) in recordkeeping. See id.
20. Dr. Huber utilized a standard Subjective, Objective, Assessment and Plan (SOAP) format in her chart notes.
21. Dr. Mitchell explained that the Subjective section usually contains the information that the patient tells the provider, the Observation section includes information such as a physical exam, the Assessment section includes a diagnosis code, and the Plan section details the actions that the provider takes at the time of the visit.
22. Dr. Huber failed to provide information such as current medication, allergies, and supplements in several of the chart notes.
23. Dr. Huber failed to include Patient A’s medications, allergies, and supplements in Patient A’s August 6, 2020 and August 30, 2020 chart notes. See Exhibit D, NAT-041-043 and NAT-047. Dr. Huber included a diagnosis in the August 30, 2020 chart notes. See Exhibit D, NAT-041-042. However, Dr. Huber combined the Diagnosis and Plan sections in the August 30, 2020 chart notes. See id.
24. Dr. Huber administered an IV to Patient A on August 6, 2020. See Exhibit D, NAT-047. However, Dr. Huber failed to document Patient A’s vitals in the chart notes. Dr. Huber failed to include dosage information in the August 6, 2020 chart notes. The chart notes also include a “post-it” note. The August 6, 2020 chart note did not include the type of nutrients that would be administered in the IV to allow for continuity of care. See id and Dr. Mitchell’s testimony on the Hearing Audio Record (HAU) (1047 2022-07-25).AAC at 22:39 – 24:50 minutes.
25. Dr. Huber failed to include the dosage or strength amounts for the IVs administered to Patient A in the August 3, 2020 Working Protocol sheet. See Exhibit D, NAT-045-046.
26. Dr. Huber failed to include the medication, allergies, and supplements for Patient 1 in Patient 1’s February 4, 2021, February 13, 2021, February 20, 2021, March 1, 2021, and March 11, 2021 chart notes. See Exhibit I, NAT-115, 117, 120, 123, and 127.
27. Dr. Huber failed to include the dosage or strength amounts for the IVs administered to Patient 1 in the February 4, 2020 Working Protocol sheet. See Exhibit I, NAT-127-129.
28. On January 17, 2021, Dr. Huber completed a continuing medical education course in medical recordkeeping. See Exhibit H.
29. Dr. Huber failed to include the ingredients in the IVs administered to Patient 1 in the February 13, 2021 and February 20, 2021 chart notes. See Exhibit I, NAT-123 and 120.
30. Dr. Huber combined the Assessment and Plan sections in the February 13, 2021 and February 20, 2021 chart notes for Patient 1. See Exhibit I, NAT-120 and 123.
31. Dr. Huber failed to include the ingredients in Patient 1’s IVs in the February 13, 2021 and February 20, 2021 chart notes. See Exhibit I, NAT-120 and 123.
32. Although Dr. Huber administered an IV to Patient 1 on February 13, 2021, February 20, 2021, and March 1, 2021, Dr. Huber did not document in the chart notes that she took vitals for Patient 1. See Exhibit I, NAT-117, 120, and 123.
33. Dr. Huber did not include a diagnosis in the February 20, 2021, March 1, 2021, March 6, 2021, and March 8, 2021 chart notes for Patient 1. See Exhibit I, NAT-115-117 and 120.
34. On February 20, 2021, Dr. Huber reduced the amount of nutrients that she administered in the IV to Patient 1. See Exhibit I, NAT-120-122. However, Dr. Huber did not include the reason for the reduction in the chart note. See id at NAT-120.
35. On March 6, 2021, Dr. Huber included in Patient 1’s chart note, “Consider Tramadol vs. Tylenol on Monday.” See Exhibit I, NAT-116. However, there is no reason provided for the suggestion for Tramadol.
36. On March 8, 2021, Dr. Huber listed in the diagnosis section of the chart note for Patient 1 the sole expression, “Yay!!! Progress”. See Exhibit I, NAT-115.
37. On March 20, 2021, Dr. Huber listed in the diagnosis section of the chart note for Patient 1 the sole expression, “Yay!!!” See Exhibit I, NAT-120.
38. Dr. Huber listed in the March 11, 2021 chart note that plan section that the IV amount would be doubled, however, there is no indication of the actual ingredient that would be doubled. See Exhibit I, NAT-115. In addition, the March 11, 2021 chart, note did not include an ICD-10 diagnosis code.
39. In the February 9, 2021, February 18, 2021, and February 22, 2021 chart notes, Dr. Huber failed to include the following information for Patient 3:
Current medication, allergies and supplements
Vitals
Diagnosis
40. Dr. Huber failed to include the amounts of the nutrients in the IV for Patient 4 in the December 21, 2021 chart note. See Exhibit L, NAT-201.
41. Dr. Huber failed to include a complete history for Patient L in the January 19, 2021 chart note. See Exhibit L, NAT-196. The assessment section consists of the word, “Yay”. An IV is included in the plan section but the nutrients are not listed. The chart note explains that the visit is “procedural only”, however, doctors are required to provide a complete chart note. See Dr. Mitchell’s testimony on the HAU (1047 2022-07-25).AAC at 55:15 to 55:36 minutes.
42. On or about June 25, 2021, Dr. Huber sent a memo to the Board in response to the Board’s notification that a complaint had been filed. The memo provided, in relevant part, as follows:
In short, all that you and other Board members need to know on that topic is this: The Board and Board members have and will always have ZERO editorial authority over my chart notes. I alone decide what I write every day in patient consult, primarily because of the First and Fifth Amendments to the US Constitution, but also for the following reasons: 1) because the chart notes are written to serve the patients, not to serve you, and 2) the chart notes are legally the patients’ property, not yours, and 3) because the chart notes are written up to the standards of my clinic, not lowered to the demands of the Board, and 4) because of two people actually present in the consult, I am the one who takes notes documenting the events of the visit.
43. Dr. Huber further alleged in the memo that the following statements were made in a conversation between Dr. Huber and a patient on June 21, 2021:
[Patient]:“I am still NOT okay with that! Those are MY medical records, and they are being used for wrong purposes. As my son says, ‘that is NOT working for me.”
[Dr. Huber]:“You know, I agree with you, and these Board members are violating the Fourth Amendment to the US Constitution, which prohibits unreasonable search and seizure.”
44. At hearing, Dr. Huber argued that the amounts and nutrients included in her IVs consisted of protected trade secrets under A.R.S. § 44-401(4). Therefore, Dr. Huber contended that she was not required to disclose the nutrients and the amounts to her patients. Dr. Huber testified that another physician could use the nutrients provided in the IVs and an osmolality chart to determine the amounts that should be given to a patient.
45. Dr. Huber testified to the effect that not all patients require that there blood pressure be taken before an IV is administered. Dr. Huber stated that she used the phrase, “Yay” in the chart notes to reflect the patient’s positive progress. Dr. Huber also stated that the patient’s history including medications, allergies, and supplements is always kept in the patient file even if the information is not provided in the chart.
46. Dr. Mitchell explained that a doctor would not be able to adequately assume care for a patient based on Dr. Huber’s chart notes. Dr. Mitchell explained that a patient must know the ingredients and amounts provided in an IV to provide informed consent for care. Dr. Mitchell explained that the amount of the nutrients provided can affect patients differently. Dr. Mitchell explained that a post-it note is inappropriate for medical record keeping because it can be easily lost. Dr. Mitchell explained that an ICD-10 is a classification system used amongst doctors and with insurance companies to identify medical conditions.
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction.
The Board bears the burden of proof and must establish cause to discipline
Dr. Huber’s license by a preponderance of the evidence. “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.”
Arizona Revised Statutes (A.R.S.) § 44-401(4) provides:
Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process, that both:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The Arizona Uniform Trade Secrets Act “displaces conflicting tort, restitutionary and other laws of this state providing civil remedies for misappropriation of a trade secret.” See A.R.S. § 44-407.
The labels of dietary supplements offered for sale shall include the serving size. See 21 Code of Federal Regulations 101.36.
Arizona Administrative Code R4-18-802 applies to conduct with regard to experimental medicine and “research subjects.”
A.R.S. § 32-1501(3) provides:
"Adequate medical records" means legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, describe the treatment, accurately document the results, indicate advice and cautionary warning provided to the patient and provide sufficient information for a similarly qualified practitioner to assume continuity of the patient's care at any point in the course of treatment.
9. The Administrative Law Judge has considered the entire hearing record
including the testimony and the admitted exhibits.
10. The preponderance of the evidence does not show that the nutrients and the amounts included in the IVs administered to Patient A, Patient 1, Patient 3, and Patient 4 were trade secrets under A.R.S. § 44-401(4).
11. The Board has established by a preponderance of the evidence that
Dr. Huber committed unprofessional conduct as defined by A.R.S. § 32-1501(31)(l) A.R.S. § 32-1501(31)(r), and A.R.S. § 32-1501(31)(b)).
12. The Board has therefore established cause under A.R.S. § 32-1551(H) to discipline Ms. Huber’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Arizona State Naturopathic Physicians Board of Medical Examiners revoke License No. 06-948 to Practice Naturopathic Medicine in the State of Arizona previously issued to Colleen Huber.
Done this day, September 26, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Gail Anthony, Executive Director
Naturopathic Physicians Medical Board
1740 W. Adams St., Ste. 3002
Phoenix, AZ 85007
Justin Larson, Esq.
Marc H. Harris, Esq.
Office of the Attorney General
Licensing & Enforcement Section
2005 N. Central Avenue
Phoenix, AZ 85004
Colleen Huber, N.M.D.
1250 E. Baseline Rd., Ste. 205
Tempe, AZ 85283
Steve Mahaffy
3111 N. Central Ave., Ste. A222
Phoenix, AZ 85012
By Miranda Alvarez
Legal Secretary