Maryland Board of Physician Quality Assurance v. Felsenberg

²⁹⁰ WILNER, Judge. The dispute before us is principally one of statutory construction: whether two provisions of the Maryland Medical Practice Act—Maryland Code, § 14-404(a) and (b). of the Health Occupations Article—are inconsistent to the point that § 14-404(b) cannot be given effect as written. The Circuit Court for Baltimore County said “yes.” We shall hold “no.” The Board of Physician Quality Assurance is currently the licensing and disciplinary agency for physicians in Maryland. Except as otherwise provided in the Medical Practice Act, a person is not allowed to practice medicine in this State without a license issued by the Board.

Section 14-404(a) authorizes, but does not require, the board to reprimand a licensed physician, place a licensee on probation, or suspend or revoke a license to practice medicine for any of 36 enumerated reasons. Among the listed grounds for discipline are that the licensee: “(3) Is guilty of immoral or unprofessional conduct in the practice of medicine; (11) Willfully makes or files a false report or record in the practice of medicine; (21) Is ... convicted ... by a court of any state or country ... for an act that would be grounds for disciplinary action under this section; [or] (23) Willfully submits false statements to collect fees for which services are not provided.” It is clear, and really undisputed, that, under paragraphs (21) and (23), the board is authorized to suspend or revoke the license of a physician who is convicted in a Federal court for a crime involving the willful submission of false statements to collect fees for which services were not provided. Section 14-404(b) provides: ²⁹¹ “(1) On the filing of certified docket entries with the Board by the Office of the Attorney General, the Board shall order the suspension of a license if the licensee is convicted of or pleads guilty or nolo contendere with respect to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside. (2) After completion of the appellate process if the conviction has not been reversed or the plea has not been set aside with respect to a crime involving moral turpitude, the Board shall order the revocation of a license on the certification by the Office of the Attorney General.” (Emphasis added.) Appellee, Stanley Felsenberg, is a physician who was licensed by the board to practice medicine.

On December 27, 1995, based on a guilty plea, Felsenberg was convicted in the United States District Court for the District of Maryland of one count of mail fraud—a violation of 18 U.S.C. § 1341 . 1 The scheme alleged in the indictment was that Felsenberg submitted to various insurers false claims for medical and physical therapy services that he did not, in fact, perform. The indictment contained ten counts, each based on a separate submission; Count One involved a claim to GEICO Insurance Company for $1,248. The Statement of Facts filed by the Government in response to the guilty plea stated, in relevant part: “The evidence would show that Dr. Felsenberg routinely had unlicensed secretarial and clerical employees perform physical therapy on his patients, and then billed the insurance companies as if he personally had performed the services. Moreover, on numerous occasions Dr. Felsenberg ²⁹² billed for services performed by him, when in fact he was on vacation and/or out of state at the date and time billed.” Although Count One involved only one claim for $1,248, the Statement of Facts alleged, and in his written plea agreement Felsenberg conceded, that he and his staff generated fraudulent claims of more than $200,000.

Felsenberg agreed that he was, in fact, guilty of the offense and would so advise the court. In conformance with the plea agreement, Felsenberg was convicted on Count One. Sentencing was deferred pending a pre-sentence investigation report. 2 The board has adopted regulations governing its procedure under both § 14-404(a) and § 14-404(b). Proceedings under subsection (a) cover a much greater variety of circumstances.

Some of the grounds listed involve the failure to meet appropriate standards of medical care; others do not. Ones that do involve a failure to meet standards of medical care must be sent to the Medical and Chirurgical Faculty of the State of Maryland—the State medical society (Med Chi)—for investigation and peer review evaluation; further action by the board awaits a report from Med Chi. See § 14-401(c)(2) and (e)(3). COMAR 10.32.02.03C(9) provides that, after the service of charges filed under subsection (a), the board shall offer the respondent a “case resolution conference,” which the regulation defines as “a voluntary, informal, and confidential proceeding to explore the possibility of a consent order or other resolution of the matter.” The regulation continues that, “[i]f there is no basis for an agreement between the respondent and the administrative prosecutor, the matter proceeds to a hearing.” The hearing is an evidentiary one conducted by an administrative law judge, who issues to the board written proposed findings of fact, proposed conclusions of law, and a proposed disposition.

If timely exceptions are filed to the ALJ’s proposals, the board conducts a hearing on those excep ²⁹³ tions; otherwise, the board issues its order based on the proposed findings and conclusions. COMAR 10.32.02.03F and G. The procedure is different with respect to a petition filed under § 14—404(b)(1). Essentially what occurs is as follows: (1) The Attorney General must provide the board with certified docket entries of the criminal court proceeding and “appropriate underlying documents of the certified court record relevant to the conviction, plea of guilty, or plea of nolo contendere.” Those documents must include at least one of the following: a stipulated statement of facts or statement of facts on the record; the plea agreement containing agreed facts; a transcript of the plea agreement proceeding; a trial transcript; or a written opinion of the trial judge. COMAR 10.32.02.04B.

(2) The board must then determine whether (i) the documents provided to it indicate that the doctor “comes within the language and intent” of § 14-404(b), and (ii) the board “has a basis for finding preliminarily that [that section] applies to the respondent.” If the board makes those preliminary determinations, it issues an order directing the doctor to show cause why the board should not take action under § 14-404(b). COMAR 10.32.02.04B(3). (3) The respondent is permitted to show cause in writing “on the following issues: (a) Lack of conviction or plea; (b) Whether the crime is one involving moral turpitude; (c) Misidentity of the respondent with the defendant in the criminal matter; and (d) Other relevant issues, if any, other than mitigation.” The respondent is also entitled to “request an opportunity to address the board by a limited evidentiary hearing on the same issues,” but the regulation makes clear that an evidentiary hearing is discretionary with the board “based on the existence of genuine issues of material fact or law.” COMAR 10.32.02.04D. (4) After consideration of the respondent’s answer, either in writing or at a hearing, the board “shall deliberate and determine whether the crime is a crime involving moral turpi ²⁹⁴ tude, and then shall issue an appropriate order.” COMAR 10.32.02.04G.

The procedure set forth in the regulation governing proceedings under § 14—404(b)(1) was followed in this case. On March 1, 1996, the Office of the Attorney General filed a petition with the board to suspend Felsenberg’s license to practice medicine, alleging the conviction and asserting that mail fraud was a crime of moral turpitude. Accompanying the petition was a copy of the indictment, a certified copy of the docket entries showing the plea of guilty and its acceptance by the court, and a copy of a “Criminal Memo,” stamped by the Clerk of the U.S. District Court, that confirmed the plea of guilty and its acceptance. In April, 1996, the Attorney General supplemented its submission by filing a copy of the plea agreement and a copy of the Government’s Statement of Facts in support of the guilty plea.

On March 5, 1996, the board issued an order directing Felsenberg, on or before April 5, to show cause why his license to practice medicine should not be suspended. On April 12, Felsenberg filed an answer, admitting all substantive allegations in the petition other than that mail fraud was a crime of moral turpitude, which he denied. He urged, however, that the petition should have been filed under § 14-404(a)(3), (11), (21) or (23), and that, if that had been done, he would have been entitled “to an informal pre-hearing conference to resolve the matter.” Such a conference, he argued, “would have been substantially less onerous, non-adversarial, in a less formal atmosphere, with informal discovery by both sides and the purpose thereof would have been for an amicable agreed resolution of the matters (in addition to the subsequent right to a hearing hereunder).” Contending that the failure to proceed under § 14-404(a) deprived him of equal protection of the law, Felsenberg asked that the petition be dismissed or that he be afforded the prehearing conference allowed under the regulation implementing § 14-404(a). He did not request an evidentiary hearing pursuant to COMAR 10.32.02.04D; nor did he present any evidence or argument in ²⁹⁵ support of his view that mail fraud was not a crime involving moral turpitude.

The Attorney General responded to the answer. With respect to whether mail fraud is a crime of moral turpitude, the Attorney General cited both prior decisions of the board and opinions of this Court involving attorney discipline, all to the effect that crimes involving fraud and deceit are crimes involving moral turpitude. The response also contested Felsenberg’s right to a case resolution conference, pointing out that, under § 14-404(b)(l), the board had no discretion other than to suspend the license; there was nothing to conciliate. Felsenberg replied, on May 17,1996, with further argument in support of his contention that the petition should have been filed under § 14-404(a), urging that, as a matter of both statutory construction and Constitutional imperative, § 14-404(b) applies only to crimes of moral turpitude that are not included under § 14-404(a) and that do not involve the practice of medicine.

In an accompanying motion, Felsenberg asked, for the first time, for a hearing under COMAR 10.32.02.04D. On June 24, 1996, the board, after a review of the documents and argument before it, denied Felsenberg’s belated request for an evidentiary hearing and voted to suspend his license to practice medicine. In its Final Order, the board addressed and rejected each of the arguments made in Felsenberg’s response and memorandum. It concluded that § 14-404(b) was the more specific, not the more general, provision, as it required a conviction of a crime of moral turpitude, and the board found no basis in the statutory language for the assertion that § 14-404(b) applied only to crimes not involving the practice of medicine.

Citing Attorney Grievance Comm’n v. Walman, 280 Md. 453 , 374 A.2d 354 (1977), for the proposition that moral turpitude involves intentional dishonesty for purposes of personal gain, the board held that (1) mail fraud is “a crime that involves fraud or a false statement or representation,” and (2) the indictment, to which Felsenberg pled guilty, evidenced “a continuing course of conduct where Respondent billed for medical services not actually provided.” ²⁹⁶ In denying the request for a hearing, the Board reasoned that “[b]ecause of the clear legislative intent to avoid providing a licensee with a forum to re-litigate the integrity of the underlying criminal judgment, as well as the lack of discretion in imposing a sanction, neither a settlement conference or an oral argument would influence the outcome of the disciplinary proceedings.” Felsenberg was directed to surrender his license. Felsenberg sought judicial review in the Circuit Court for Baltimore County, pressing the arguments made before the board and insisting that the Attorney General’s petition should have been brought under § 14-404(a). 3 The court agreed with him. In an Opinion and Order filed July 23, 1997, the court declared that the board had erred as a matter of law in suspending the license. It concluded that subsections (a) and (b) were in facial conflict, in that conduct falling within subsection (a)(21) and (23) also fell within subsection (b).

Because, in its announced view, subsection (a) was the more specific provision, it controlled over subsection (b). On that basis, the court held § 14-404(a)(21) and (23) “controlling in the case sub [judice] considering the nature of Petitioner’s criminal charges; billing for services which Petitioner did not provide.” The court reversed the board’s order and remanded for further proceedings. The board appealed, and, on our own initiative, we granted certiorari before argument in the Court of Special Appeals. We shall reverse the judgment of the circuit court.

DISCUSSION Contrary to the position he took before the board and in the circuit court, Felsenberg conceded in his brief filed in this Court that “the crime of mail fraud of which Dr. Felsenberg ²⁹⁷ was convicted” is a crime of moral turpitude. That leaves three issues: (1) whether there is a facial conflict between § 14-404(a) and § 14-404(b) that must, for some reason, be resolved in favor of subsection (a); (2) whether, to avoid that conflict, § 14-404(b) should be read, as a matter of statutory construction, to encompass only crimes of moral turpitude that do not involve the practice of medicine and that are not based on conduct falling within any of the enumerated categories in § 14-404(a); and (3) whether any other construction would deprive Felsenberg of his license to practice medicine without due process of law. Statutory Construction Issues The two statutory construction issues interrelate; both stem from the alleged ambiguity arising from the fact that the conduct underlying Felsenberg’s conviction might (or would) itself be grounds for discipline under one or more provisions in § 14-404(a). The question, precisely, is whether the Legislature intended for the conviction of a crime involving moral turpitude based on conduct subject to discipline under subsection (a) to be dealt with, exclusively, in accordance with subsection (a), rather than under subsection (b).

In this context, where the issue depends less on the meaning of particular words or phrases than on the interplay between separate provisions, legislative history is a particularly fertile source for determining the legislative intent. In 1888, to promote the public health and regulate the practice of medicine, the Legislature, apparently for the first time, required persons practicing medicine either to be a graduate of a “legally authorized medical college” or, if already practicing medicine, to complete such examination as the State Board of Health chose to give. If the person either had a proper diploma or passed the examination, the board issued a certificate, which entitled the person to practice medicine. Section 7 of the Act authorized the board to deny a certificate to “individuals guilty of unprofessional or dishonorable conduct or of criminal practice” and to “revoke certificates for like causes.” 1888 Md. Laws, ch. 429. ²⁹⁸ In 1892, the Board of Health was replaced as the licensing agency by two separate boards of medical examiners—one “representing” and appointed by Med Chi and one “representing” and appointed by the Maryland State Homeopathic Medical Society of the State of Maryland.

Either board could grant a license to practice medicine upon proof of graduation from a medical college and passage of an examination given by that board. Although the Act required that an applicant be of good moral character, it did not include the provision in the 1888 law permitting the board to deny or revoke a license upon proof of unprofessional or dishonorable conduct or criminal practice. 1892 Md. Laws, ch. 296. A provision of that kind was restored in 1902, when the Legislature authorized the two boards to revoke a license for fraud or deception in passing the examination, habitual drunkenness, criminal abortion, conviction of a crime involving moral turpitude, or unprofessional or dishonorable conduct. 1902 Md. Laws, ch. 612. It was thus the 1902 law that first articulated the authority to revoke a license to practice medicine upon conviction of a crime involving moral turpitude, as opposed to the more general ground of “criminal practice.” The law specified, however, that, before revoking a license, the board had to furnish the doctor with a copy of the charges and afford the doctor the opportunity for an evidentiary hearing.

A decision to revoke a license was subject to judicial review. That structure lasted until 1957, when the Legislature did away with the board representing the Homeopathic Medical Society and created one Board of Medical Examiners, all the members of which were selected by Med Chi, as the licensing agency. 1957 Md. Laws, ch. 29. The provisions regarding the revocation of licenses were left more or less intact, except that (1) insanity and addiction to narcotics were added as grounds for revocation, and (2) both the doctor and the board were authorized to appeal a decision of the circuit court, made on judicial review, to this Court. There was no provision, in either the 1902 law or the 1957 law, permitting the suspension of a license—only revocation following the opportunity for a hearing.

The authority to suspend a license and place a ²⁹⁹ physician on probation was added in 1966. 1966 Md. Laws, ch. 209. In 1968, the Legislature once again restructured the agency and, along with that restructuring, added several new grounds for suspending or revoking a license. 1968 Md. Laws, ch. 469. In place of the Med Chi-appointed Board of Medical Examiners,