ALJDEC - Licensing

23A-8510-PAB · Arizona Medical Board · 2023-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Wagner Gervais, PA

Holder of License No. 8510

For the Performance of Health Care Tasks

In the State of Arizona

No. 23A-8510-PAB

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 11, 2023 at 9:00 a.m.

APPEARANCES: Wagner Gervias, PA was represented by Michael Goldberg, Esq. Assistant Attorney General Elizabeth Campbell, Esq., appeared on behalf of the Arizona Regulatory Board of Physician Assistants (“Board”) with Marlene Young as a witness. Cheryl Bachman served as the official court reporter.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

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

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.

Respondent was a physician’s assistant who holds Board-issued License No. 8510 for the performance of health care tasks in the State of Arizona.

On April 26, 2021, Respondent submitted his application for licensure in Arizona through Universal Recognition under A.R.S. § 32-4302(A). Respondent reported his address as 8328 W, Devonshire Ave, in Phoenix and attested to the same. Respondent also submitted a copy of a one-year lease agreement for that address and the appropriate application fee.

On June 15, 2021, Respondent was issued a license by the Board.

After an investigation, the Board alleged that Respondent engaged in unprofessional conduct as he did not reside at the Devonshire address.

On February 24, 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. §§ 32-2501(18)(n) and 32-2501(18)(y), Respondent was advised that a formal hearing on the aforementioned charged would take place at the Office of Administrative Hearings on April 20, 2023, 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.

After several continuances, hearing was held on August 11, 2023.

Hearing Evidence

The Board submitted seven exhibits and called Wagner Gervais and Marlene Young as a witness. Respondent submitted six exhibits into evidence.

Mr. Gervais’ testimony

Mr. Gervais testified that he was born in Haiti and moved to New York in 1967. He testified that he graduated from medical school in Mexico in 1997, and had his own practice in Mexico for 28 years. Mr. Gervais testified that he obtained his Physician’s Assistant license in Puerto Rico in 2019. He testified also that flew in for today’s proceedings from McAllen, Texas.

Mr. Gervais testified that he applied for licensure in Arizona because he was attempting to obtain employment from the U.S. Immigration and Customs Enforcement Agency (ICE) to help migrants during the COVID-19 pandemic. Although he was ultimately not employed by ICE, Mr. Gervais testified that he would like to obtain employment in Arizona, to relocate his family to Arizona.

Mr. Gervais testified that he and Albert Buissereth each rented a room from Leslie Brown per the rental agreement dated April 1, 2021. The rent was $600.00 per month.

Further, Mr. Gervais testified that he paid rent of $250.00 per month, however, he did not have a key to the residence nor did he sleep at the residence. Mr. Gervais explained that while he was Arizona, he would stay in hotels for privacy reasons and wanted to wait to move into the house until he had employment.

As to the Application, Mr. Gervais testified that he was in Arizona when he completed the Application and acknowledged that he “checked” number 9 on the same, acknowledging that he had established residency in Arizona.

Mr. Gervais testified that or about April 27, 2022, he updated his address to 3588 W. 13th St. in Yuma, Arizona, and provided a copy of a lease dated January 2, 2023 between himself and Harold Pierre-Louis and the landlord Bilkis Jolaosho. Mr. Gervais also testified that he obtained an Arizona Driver’s License on April 26, 2023, and registered to vote in Yuma, Arizona on or about April 27, 2023.

Also, Mr. Gervais testified that he did not know the difference between a “home address” and a “residence”.

Finally, Mr. Gervais testified that he was working at “Accident Clinic” in Yuma, Arizona, and believed that once his contract was completed, he would stay in Yuma to look for work on his own.

Ms. Young’s testimony

Ms. Young was the Licensing Investigations Manager for the Board. She testified that she investigated Respondent as there were subsequent applications submitted which contained the same Devonshire address.

Further, Ms. Young testified that in order to qualify for licensure under the Universal Recognition, the statute required an Applicant to have residency in Arizona. However, on cross-examination she admitted that there was no definition of residency contained in the Application packet.

CONCLUSIONS OF LAW

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. The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Board bears the burden of proof to establish cause to sanction Respondent’s physician’s assistant license by a preponderance evidence. Respondent bears the burden to establish factors in mitigation of the penalty and 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.”

Ariz. Rev. Stat. § 32-4302(A) provides in pertinent part:

Notwithstanding any other law, an occupational or professional license or certificate shall be issued, in the discipline applied for and at the same practice level as determined by the regulating entity, pursuant to this title to a person who establishes residence in this state or without an examination to a person who is married to an active duty member of the armed forces of the United States and who is accompanying the member to an official permanent change of station to a military installation located in this state if all of the following apply:. . .

A.R.S. § 32-2501(18)(n) defines “unprofessional conduct” as procuring or attempting to procure a physician assistant license by fraud, misrepresentation or knowingly taking advantage of the mistake of another.

A.R.S. § 32-2501(18)(y) defines “unprofessional conduct” as violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate a provision of this chapter.

At the outset, tribunal reads A.R.S. § 32-4302(A) not requiring an applicant to have established residency prior to applying. “Establishes” clearly indicates a present or future action. It is difficult to imagine a situation where a licensee would move to Arizona without employment just to qualify for an Arizona license.

That being said however, “establishes” must have a specific end as well. The tribunal finds that not obtaining a driver’s licenses and a voter registration card until approximately two years after the application, does not fit within the definition of “establishes”.

Likewise, the tribunal was not persuaded that Mr. Gervais did not know the difference between a home address and a residence. While Mr. Gervais was born in Haiti, he had resided in the United States since 1967 (but for the time spent in Mexico), and obtained a medical degree. Thus, Mr. Gervais was a smart man and should have known the difference between a home address and residence.

Even if the tribunal was convinced that Mr. Gervais did not know the difference between a home address and residence, the evidence established that Devonshire address was neither. By his own testimony, Mr. Gervais stated he never slept at, nor did he have a key to the Devonshire address. Further, Mr. Gervais testified that while he was waiting to see if he would obtain employment, he would stay at hotels, which was not persuasive when he was paying $250.00 per month for a room in which he could have stayed in while he was in town.

The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct as he attempted to obtain a license by fraud, or misrepresentation in violation of A.R.S. §§ 32-2501(18)(n) and 32-2501(18)(y).

Based upon Respondent’s failure to provide that he was establishing residency timely, and then failing to timely update his address, 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. 8510 for the performance of health care tasks in the State of Arizona be revoked.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, October 6, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Patricia E. McSorley, Executive Director

Arizona Medical Board

Michael Goldberg

GOLDBERG LAW GROUP, LLC

16247 N. Scottsdale Rd., Suite 200

Scottsdale, AZ 85254

[email redacted]

Elizabeth A. Campbell, Esq.

Office of the Attorney General

Licensing & Enforcement Section

2005 N. Central Avenue

Phoenix, AZ 85004

[email redacted]

By: OAH Staff