Opinion
No. 1 CA-CV 12-0880
01-28-2014
VALENTINE OKON, Plaintiff/Appellant, v. ARIZONA REGULATORY BOARD OF PHYSICIAN ASSISTANTS, Defendant/Appellee.
COUNSEL Law Office of Michael P. Denea, Phoenix By Michael P. Denea Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Anne Froedge Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. LC2011-000799-001
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL
Law Office of Michael P. Denea, Phoenix
By Michael P. Denea
Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By Anne Froedge
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Valentine Okon appeals from the superior court's judgment affirming a regulatory board order that revoked Okon's license to perform health care tasks as a physician assistant. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2008, Okon was a licensed physician assistant, and he owned and operated a family health care practice. On November 12, 2008, following an investigation into allegations that Okon was operating without appropriate physician supervision, the Arizona Regulatory Board of Physician Assistants ("Board") issued a Decree of Censure ("2008 Order") and placed Okon on ten years' probation. The 2008 Order imposed a requirement that he submit to quarterly Board reviews of his patient charts. The 2008 Order further specified that the Board could take additional disciplinary or remedial action "based upon the chart reviews."
¶3 During one of the chart reviews, the Board noted concerns regarding Okon's patient recordkeeping. The Board formally interviewed Okon on November 18, 2009 to address issues of illegible handwriting and inadequate documentation of impressions/diagnoses, patient histories, and plans of care. After conducting the chart reviews, Board members also noted significant concerns regarding Okon's medical knowledge and the quality of treatment he provided patients.
¶4 The Board made findings of unprofessional conduct under Arizona Revised Statutes ("A.R.S.") section 32-2501(18)(j) and (p) based on Okon engaging in "conduct or practice that is or might be harmful or dangerous to the health of a patient or the public" and "[f]ailing or refusing to maintain adequate records." The Board required that Okon undergo a Physician Assessment and Clinical Education Evaluation ("PACE Evaluation") and initiated further investigation into Okon's competency. The Board thereafter issued a letter of reprimand based on the findings of unprofessional conduct. See A.R.S. § 32-2551(H)(4).
Absent material revisions after the relevant date, we cite a statute's current version. Although the relevant subsections have been renumbered since the time of the Board's actions, we cite the current version of § 32-2501.
¶5 Okon completed the PACE Evaluation in April 2010, undergoing five days of comprehensive assessments, including: (1) a computer-based cognitive screening test, (2) participation in mock patient physical examinations, (3) an oral test of clinical knowledge, (4) multiple choice exams, (5) a random review of patient charts from his medical practice, and (6) participation as an observer in a variety of clinical settings.
¶6 Okon failed the PACE Evaluation because of broad-based deficiencies in a number of core competencies. The PACE assessment team expressly found that, "given [Okon's] current health, as well as his demonstrated fund of knowledge and clinical judgment, [he] presents an imminent threat to patient safety." To address these deficiencies, the assessment team recommended that Okon be evaluated by a primary care provider and an ophthalmologist, and that he receive a full neuropsychological evaluation. The team noted that once Okon had been fully screened and treated for all physical and neurological concerns, he could return to PACE for reassessment.
¶7 The Board and Okon thereafter entered into a consent agreement on June 29, 2010 ("Consent Agreement") whereby Okon agreed not to perform health care tasks, including prescribing any form of treatment, without applying to and receiving permission from the Board. The Consent Agreement further provided that the Board could require any combination of assessments, evaluations, treatments, examinations, or interviews it found necessary to assist in determining whether Okon was able to safely resume his practice.
¶8 By letter dated July 28, 2010, Board staff provided Okon's counsel a copy of an interim order ("2010 Order") that, consistent with the PACE Evaluation's recommendations, required Okon to "undergo and successfully complete a neuropsychological, ophthalmological, and primary care evaluation . . . within 60 days. . . . Upon completion of all evaluations and treatment, if treatment is recommended, [Okon] shall return to PACE for re-evaluation."
¶9 Okon did not undergo the evaluations required by the 2010 Order, and the Board subsequently asked Okon to address this violation. Okon's attorney informed the Board that Okon could not comply because he was in Antigua attending medical school.
¶10 On April 6, 2011, the Board initiated administrative proceedings to address allegations that Okon's inadequate patient recordkeeping, his failure to treat patients according to the appropriate standard of care, his PACE Evaluation results, and his violation of the 2010 Order constituted medical incompetence and/or mental or physical inability to safely carry out approved health care tasks. The Board found unprofessional conduct, which subjected Okon to a range of discipline, including revocation of his physician assistant license. The Board provided Okon a copy of the Complaint and Notice of Hearing informing him that a formal hearing would take place on June 13 and 14, 2011.
¶11 Based on an anonymous complaint received soon thereafter, the Board also investigated an allegation that Okon was performing health care tasks during the period he was restricted from doing so under the Consent Agreement. On May 13, 2011, the Board filed an Amended Complaint adding this violation of the Consent Agreement as an additional basis for a finding that Okon had engaged in unprofessional conduct.
¶12 Following a hearing, an administrative law judge ("ALJ") issued a decision on July 25, 2011, finding that Okon was "medically incompetent[] and/or mentally or physically unable to safely practice as a physician assistant." The ALJ also found that Okon engaged in unprofessional conduct pursuant to A.R.S. § 32-2501(18)(j) ("conduct or practice that is or might be harmful or dangerous to the health of a patient or the public"), (p) ("[f]ailing or refusing to maintain adequate records on a patient"), and (dd) ("[v]iolating a formal order, probation agreement or stipulation issued or entered into by the [B]oard").
¶13 On August 24, 2011 the Board unanimously adopted (with non-substantive amendments) the ALJ's recommended order and findings of fact and conclusions of law. Accordingly, the Board ordered that Okon's physician assistant license be revoked ("2011 Revocation Order"). The Board subsequently denied Okon's request for rehearing/review, and Okon sought judicial review in superior court. The court affirmed the Board's 2011 Revocation Order, and Okon timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-913 and 12-2101(A)(1).
DISCUSSION
¶14 In reviewing an administrative agency's decision, the superior court examines whether the agency's action was arbitrary, capricious, or an abuse of discretion. Webb v. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557, ¶ 7, 48 P.3d 505, 507 (App. 2002); see also A.R.S. § 12-910(E) (directing the superior court to affirm agency's action unless "the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion"). The court defers to the agency's factual findings and affirms them if supported by substantial evidence. DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 336, 686 P.2d 1301, 1306 (App. 1984). If an agency's decision is supported by the record, we will uphold the decision even if the record also supports a different conclusion. Id.
¶15 We engage in the same process as the superior court when we review its ruling affirming an administrative decision. Webb, 202 Ariz. at 557, ¶ 7, 48 P.3d at 507. Thus, we reach the underlying issue of whether the administrative action constituted reversible error. See Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App. 1990).
¶16 Okon argues that the Board's revocation of his license was contrary to law and arbitrary and capricious. First, he asserts the Board proceeded unlawfully in issuing the revocation order. Second, he contends he was denied due process in the hearing before the ALJ, and that the ALJ "employed the wrong standard of proof" in concluding that Okon was medically incompetent. Finally, Okon alleges the Board's disciplinary actions were arbitrary and capricious. We address these issues in turn.
I. Propriety of Board's PACE Evaluation Order.
¶17 Okon argues that the Board proceeded unlawfully and lacked jurisdiction to order his attendance at the PACE Evaluation. Specifically, Okon contends that, prior to submitting to the interview with the Board ("Formal Interview"), he had inadequate notice that a new investigation would be opened and a PACE Evaluation ordered. He further argues that, because he and the Board did not stipulate to his participation in an assessment program as contemplated by A.R.S. § 32-2551(H)(3), the Board could not order him to undergo a PACE Evaluation. Although § 32-2551(H)(3) permits such a stipulation, the Board lawfully may also commence an investigation into licensee conduct on its own motion. See A.R.S. § 32-2551(A).
The statute provides, in relevant part:
After the formal interview, the board may . . . [e]nter into a stipulation with the physician assistant to restrict or limit the physician assistant's practice or medical activities or to rehabilitate, retrain or assess the physician assistant, in order to protect the public and ensure the physician assistant's ability to safely perform health care tasks. The board may also require the physician assistant to successfully complete a board approved rehabilitative, retraining or assessment program at the physician assistant's own expense[.]A.R.S. § 32-2551(H)(3).
¶18 Here, Okon appeared at the Formal Interview, and he concedes he had proper notice his recordkeeping could subject him to disciplinary action. The Board issued a letter of reprimand as to that conduct. Over the course of the interview, Board members became concerned about Okon's competence to practice as a physician assistant. To investigate those concerns, the Board, pursuant to its authority under § 32-2551(A) and (B), ordered Okon to undergo a PACE Evaluation. As such, this order was not an adjudication of Okon's medical competence and did not implicate his due process rights. Moreover, Okon had notice that he was subject to "additional disciplinary or remedial action based upon the chart reviews" as specified in the 2008 Order. Accordingly, Okon was not entitled to additional notice that the Board would order the PACE Evaluation at the conclusion of the Formal Interview.
Contrary to Okon's assertion, § 32-2551(A) does not limit the Board's sua sponte investigatory powers to information that is provided to the Board by a third party.
The Board's reference in a 2009 order to subsections (E) and (H) of § 32-2551, instead of subsection (B), was a technical mistake that does not warrant reversal. See Ariz. Const. art. 6, § 27 ("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done."). This apparent
¶19 Okon argues that he is entitled to relief under Gaveck v. Arizona State Board of Podiatry Examiners, 222 Ariz. 433, 215 P.3d 1114 (App. 2009). But that case involved a licensee's due process right to sufficient notice at an administrative interview that resulted in an adjudication of unprofessional conduct and discipline. Id. at 435, 438-39, ¶¶ 5, 20-25, 215 P.3d at 1116, 1119-20. Here, the Formal Interview did not result in an adjudication of Okon's medical competence, it resulted in an investigation. Okon was not adjudicated medically incompetent until after he participated in a properly noticed hearing. Accordingly, the Board did not act contrary to law in ordering Okon to undergo a PACE Evaluation.
II. Propriety of ALJ Hearing and Recommended Decision.
¶20 Okon asserts that the ALJ did not have jurisdiction to address the allegations raised in the Amended Complaint regarding Okon's treatment of patients in violation of the Consent Agreement. Okon raises three specific points: (1) the Board was not authorized to add additional allegations of practicing on a restricted license that did not pertain to the conduct underlying the new allegations to a case previously transferred to an ALJ; (2) the additional allegations were improperly referred to the ALJ by the Board's investigative staff, which did not have the authority to do so; and (3) the "last minute change" prejudiced Okon's "ability to prepare for the hearing."
Okon's contention that the "Board was divested of jurisdiction over the complaint number that had already been transferred to [the ALJ]" is incorrect. The authority he relies on, Warren v. Warren, 92 Ariz. 390, 377 P.2d 321 (1963), pertains to cases over which jurisdiction is "transferred" from superior court upon appeal to the appellate tribunal. The administrative matter the Board referred to the ALJ in this case was not an appeal "to another tribunal" as Okon implies.
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¶21 Okon's jurisdictional arguments fail. First, the Board filed the Amended Complaint more than thirty days before the hearing, the timeframe required under A.R.S. § 41-1092.05(D). And the additional allegations regarding Okon's violation of the practice restriction in the Consent Agreement were not, as Okon contends, unrelated to the allegations in the original complaint that Okon violated the 2010 Order by clerical error did not prejudice Okon, and the record does not reflect that he challenged the Board's authority on this basis before participating in the PACE Evaluation. not submitting to further evaluations: both the initial and the subsequent allegations stem from the results of Okon's PACE Evaluation.
¶22 Second, the Board's executive director, not the investigative staff, referred the Amended Complaint to an ALJ for formal hearing. The staff's May 12, 2011 investigative report did not recommend that an additional allegation of unprofessional conduct be referred for a formal hearing. With respect to Okon's contention that he was not afforded proper due process before the new allegations were referred to the ALJ, a Board investigator notified Okon's counsel by letter dated April 15, 2011 of the new investigation regarding Okon's violation of the Consent Agreement by practicing on a restricted license. That letter requested a written response to the Board by April 29, 2011, but Okon did not submit such a response. Thus, to the extent the Board was required to afford Okon notice and the opportunity to respond to the new allegations before referring them for formal hearing, it did so.
¶23 Third, aside from generally asserting that he was "prejudiced . . . in his ability to prepare for the hearing and address the evidence that would be presented against him," Okon does not specify how he was harmed in preparing for the hearing on the allegations in the Amended Complaint. Even assuming the Amended Complaint did not comply with procedural requirements, we will not find reversible error based on mere speculative harm.
¶24 Furthermore, the additional allegations in the Amended Complaint were only one of the bases supporting the ALJ's (and the Board's) conclusion that Okon violated a formal Board order. The other basis, as contained in the original complaint, was Okon's failure to submit to neuropsychological, ophthalmological, and primary care evaluations pursuant to the 2010 Order. Thus, even if Okon's arguments challenging the propriety of the Amended Complaint had merit, he would not be entitled to relief.
¶25 Okon also argues that "the ALJ's obvious reliance on 'standard of care' and failure to consider the evidence in the proper statutory light of 'incompetence' demonstrates that he evaluated the evidence under the wrong standard and his decision must be reversed." Okon argues that there is no evidence of harm to a specific patient and that the only evidence supporting the ALJ's (and the Board's) conclusion regarding his medical incompetence was testimony that his use of certain drugs to treat specific ailments fell below the appropriate standard of care. But disciplinary action can be taken without evidence of specific harm to an individual patient. See A.R.S. § 32-2504(A)(1) ("The board shall: As its primary duty, protect the public from unlawful, incompetent, unqualified, impaired or unprofessional physician assistants.").
¶26 The Board presented substantial evidence of Okon's medical incompetence. Testimony regarding the PACE Evaluation results and other information contained in the PACE Evaluation, see supra ¶¶ 5-6, clearly support the ALJ's conclusion that Okon is medically incompetent.
III. Propriety of Board's Order.
¶27 Okon argues that the Board arbitrarily and capriciously (1) ordered him to undergo further health-related examinations after the PACE Evaluation; (2) imposed excessive monetary penalties and deadlines for his compliance with orders; and (3) revoked his physician assistant license.
¶28 Regarding the health examinations, Okon agreed in the Consent Agreement to undergo whatever evaluations the Board deemed necessary to determine his ability to safely practice medicine. See supra ¶ 7. And Okon's completion of neuropsychological, ophthalmological, and primary care evaluations could reasonably have been deemed necessary by the Board. The PACE Evaluation recommended such further evaluations based on the health concerns affecting Okon's clinical performance and well-being discovered during his cognitive screening as part of the PACE Evaluation. The Board did not act arbitrarily or capriciously by requiring Okon to complete the ordered health examinations. See Tucson Pub. Sch., Dist. No. 1 v. Green, 17 Ariz. App. 91, 94, 495 P.2d 861, 864 (1972) (noting that "where there is room for two opinions, the action is not arbitrary or capricious if exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached").
¶29 We also conclude that the Board did not abuse its discretion by imposing deadlines for Okon to comply with its orders. Okon does not specify how the ordered deadlines prejudiced him. He does not explain how his failure to meet those deadlines was reasonable, or explain why he should have been granted an extended timeframe for compliance.
¶30 Okon's challenge to the propriety of fees assessed by the Board is similarly deficient. On this record, we find no arbitrary or capricious Board action relating to compliance deadlines and fees imposed.
¶31 Finally, we conclude that revocation of Okon's physician assistant license was within the Board's discretion. Okon's reference to the Board's dismissal of an unrelated inadequate recordkeeping case against another physician assistant is unpersuasive. That case apparently did not involve a finding of medical incompetence. As noted, here the Board found that Okon's continued practice as a physician assistant would create a potential harm to the public. Revocation of his license on the basis of medical incompetence alone was within the Board's discretion and not arbitrary or capricious. See A.R.S. § 32-2551(J) (physician assistant found to be medically incompetent after a formal hearing is subject to license revocation).
CONCLUSION
¶32 The Board's order revoking Okon's physician assistant license was not contrary to law or arbitrary and capricious. Accordingly, we affirm the superior court's judgment affirming the Board's order.