Oltman v. Maryland State Board of Physicians

⁴⁶⁰ HOLLANDER, Judge. Carl F. Oltman, Sr., appellant, challenges a determination by the Board of Physicians (the “Board”), appellee, revoking Oltman’s physician assistant certificate. 1 The revocation followed appellant’s plea of guilty in federal court to “forging or altering a prescription.” Appellant’s conduct enabled him to obtain prescriptions of Ritalin for his son, knowing that his son was no longer covered under appellant’s medical insurance. Oltman sought review of the Board’s decision in the Circuit Court for Anne Arundel County, which affirmed. On appeal, Oltman presents three questions for our review, which require us to consider the Maryland Medical Practice Act, Title 14 of the Health Occupations Article of the Maryland Code, and the Maryland Physician Assistants Act, found in Title 15 of the Health Occupations Article.

He asks: I. On the evidence adduced before the agency in this case, was Appellant convicted of a crime involving moral turpitude within the meaning of that term in §§ 14-404(b) and 15-314 of the Health Occupations Article of the Annotated Code of Maryland?

II

Did the Appellee Maryland State Board of Physicians and the Administrative Law Judge in this matter combine to deprive Appellant of reasonable and fair consideration whether his conviction in the United States District Court for the District of Maryland warranted a sanction less than revocation of his Certificate as a Physician Assistant?

III

Was the denial of a Case Resolution Conference to Appellant by the Maryland State Board of Physicians in this matter an abuse of discretion by the Board? For the reasons set forth below, we shall affirm. ⁴⁶¹ THE STATUTORY SCHEME Before reviewing the facts, it is important to understand the relevant statutory and regulatory provisions. In Maryland, physicians are governed by Title 14 of the Health Occupations Article (“H.O.”) of the Maryland Code (2000 Repl. Vol.), while physician assistants are governed by Title 15 of the Health Occupations Article.

In addition, applicable regulations are found in the Code of Maryland Regulations (“COMAR”). The State Government Article (“S.G.”) of the Maryland Code (1984, 1999 Repl. Vol., 2003 Supp.) is also pertinent. H.O. § 15-314 provides: § 15-314.

Grounds for reprimands, suspension or revocation of certificate. Subject to the hearing provisions of § 15-315 of this subtitle, the Board, on the affirmative vote of a majority of its members then serving, may reprimand any certificate holder or suspend or revoke a certificate if the certificate holder: (3) Violates any provision of this title or any regulations adopted under this title or commits any act which could serve as the basis for disciplinary action against a physician under § 14-404 of this article H.O. § 15-315(a) is also relevant. It provides, in part: § 15-315. Same — Hearings.

(a) Opportunity for hearing. — (1) Except as otherwise provided under § 10-226 of the State Government Article, before the Board takes any action under § 15-314 of this subtitle, the Board shall give the individual against whom the action is contemplated an opportunity for a hearing before a hearing officer. (2) The hearing officer shall give notice and hold the hearing in accordance with Title 10, Subtitle 2 of the State Government Article. ⁴⁶² (b) Appeals. — (1) Any certificate holder who is aggrieved by a final decision of the Board under this subtitle may not appeal to the Board of Review but may take a direct judicial appeal. (2) The appeal shall be as provided for judicial review of the final decision in Title 10, Subtitle 2 of the State Government Article. . . . [ 2 ] S.G. § 10-226(c) provides: § 10-226. Licenses — Special provisions. ❖ * * (c) Revocation o[r] suspension. — (1) Except as provided in paragraph (2) of this subsection, a unit may not revoke or suspend a license unless the unit first gives the licensee: (1) written notice of the facts that warrant suspension or revocation; and (ii) an opportunity to be heard.

As we have seen, H.O. § 15-814 expressly refers to H.O. § 14-404. Title 14 of the Health Occupations Article is captioned “Physicians.” H.O. § 14-404(b) provides: § 14-404. Denials, reprimands, probations, suspensions, and revocations — Grounds. (b) Crimes involving moral turpitude. — (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 ⁴⁶³ 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. “Moral turpitude” is defined in COMAR 10.82.02.02(B)(19) as “conduct evidencing moral baseness of the respondent as determined on a case-by-case basis under common law.” CO-MAR 10.32.01.01, which pertains to physicians, states: “These regulations govern how an individual becomes licensed in Maryland to practice medicine.” Moreover, COMAR 10.32.02.01 states: “These regulations govern procedures for disciplinary and licensing matters before the Board of Physicians.” Chapter 01 is titled “General Licensure Regulations,” while Chapter 02 is titled “Hearings Before the Board of Physicians.” FACTUAL SUMMARY Appellant enlisted in the United States Navy in November of 1969, from which he retired on March 1, 1995. In 1976, appellant became a physician assistant; he has been certified to practice in Maryland since 1991. From 1996 through 1998, Oltman worked under contract as a civilian physician assistant at the Naval Academy in Annapolis and at the National Naval Medical Center in Bethesda. As a Navy retiree, appellant received free medical care and prescriptions for himself, his wife, and his children, until the children reached the age of twenty-one, or twenty-three if enrolled in college.

Appellant’s son, Carl Oltman, Jr. (“Junior”), turned twenty-one years of age on May 3, 1996, and did not attend college. Therefore, as of May 3, 1996, Junior became ineligible for health benefits under appellant’s Navy medical coverage. Junior has Attention Deficient Hyperactive Disorder (“ADHD”), for which he was prescribed Ritalin, a controlled substance, or its generic equivalent. After Junior reached the age of twenty-one, appellant continued to obtain Ritalin for his son through the Navy, even though Junior was no longer eligible for prescription benefits through appellant’s medical ⁴⁶⁴ coverage.

Appellant’s conduct in obtaining medication for his son, knowing his son was ineligible for such medical benefits, led to appellant’s prosecution in federal court. In June 1999, the United States Attorney for the District of Maryland filed an Information against appellant, alleging that, “by fraud, deceit, misrepresentation, and subterfuge,” appellant “knowingly and intentionally” “forged and altered prescriptions and written orders for prescriptions for Methylphe-nadite; and concealed facts in order to obtain prescriptions for Methylphenadite,” in violation of Md. Ann. Code (1996 Repl. Vol.), Art. 27, § 300, 3 and the Assimilated Crimes Statute, 18 U.S.C. § 13 (2000). The Information was filed pursuant to a plea agreement between appellant and the United States, detailed in a letter dated April 26, 1999, written by Bonnie S. Greenberg, Assistant United States Attorney, and signed by appellant and his lawyer on May 28, 1999.

The letter set forth the following statement of facts: On or about September 27, 1998, the National Naval Medical Center received a prescription for Methylphenidate (a generic equivalent of Ritalin) over the Composite Health Care System (CHCS) allegedly written by a physician for Mr. Oltman. However, the physician did not write the prescription for Mr. Oltman. Rather, Mr. Oltman accessed the CHCS terminal in the National Naval Medical Center in Bethesda, Maryland, and generated a prescription for Me-thylphenidate on September 27, 1998 in Bethesda, Maryland. Mr. Oltman also generated prescriptions for Methyl-phenidate by accessing the CHSC [sic] terminal on July 18, 1996, October 17, 1996, November 6, 1996 at the Naval Medical Center in the U.S. Naval Academy, Annapolis, Maryland.

Further, Mr. Oltman deceived others and concealed material facts in requesting that others authorized to issue ⁴⁶⁵ prescriptions at the Naval Medical Clinic in the U.S. Naval Academy, Annapolis, Maryland issue him prescriptions for Methylphenidate on October 17, 1998, August 18, 1998, August 16, 1998, May 8, 1998, July 22, 1998, March 19, 1998, December 9, 1998, October 20, 1997, and July 22, 1997. At all times herein, between April 15, 1996 and October 1, 1998, Methylphenidate was a prescription drug and a controlled substance under 21 C.F.R. §§ 1300.01 and 1308.12. Mr. Oltman received this prescription drug, Methylpheni-date, numerous times between April 15, 1996 and October 1, 1998 by forging or altering a prescription or written order; by fraud, deceit, misrepresentation, and subterfuge; and concealed material facts in order to obtain and attempt to obtain the prescription drug. The defendant’s son, Carl Oltman, Jr., uses Methylpheni-date and became ineligible to receive medical benefits in May 1996, as he turned 21.

On July 15, 1999, appellant formally tendered a guilty plea in federal court to the charge of violating Title 18, § 13 of the U.S.Code and Article 27, § 300 of the Maryland Annotated Code. On September 8, 1999, the federal court (Garbis, J.) sentenced appellant to two years of probation, a $1,000 fine, and $1,208.43 in restitution. As a result of appellant’s criminal conviction, on January 11, 2000, the Navy revoked appellant’s clinical privileges and terminated his staff appointment. The Navy also notified the Board of its action on December 12, 2000.

On August 20, 2001, the Department of Health and Mental Hygiene (the “State”), filed with the Board a “Petition to Revoke the Respondent’s Physician Assistant Certificate.” It relied on the Maryland Medical Practice Act, H.O. §§ 15-314(3) and 14-404(b). In particular, the State sought a mandatory revocation of appellant’s physician assistant certificate because of his “plea of guilty to obtaining Controlled Dangerous Substances by fraud, deceit, misrepresentation and subterfuge,” claiming it “constitutes a crime involving moral turpitude.” ⁴⁶⁶ The Board issued an order on August 22, 2001, requiring appellant to “show cause, if there be any, in writing ... why his certificate to practice as a physician assistant should not be revoked.” In his answer, appellant asked the Board to deny the petition, arguing that H.O. § 14-404(b) applies to physicians but not to physician assistants. He also claimed that, under H.O. § 15-315(a), he was entitled to an evidentiary hearing. In addition, appellant argued that his misdemeanor conviction did not constitute a crime of moral turpitude.

Moreover, he maintained that the Board was not required to suspend or revoke his certifícate, given various mitigating factors. In its response, the State argued that H.O. § 14-404(b)(2) is made applicable to physician assistants by H.O. § 15-314(3). Moreover, it contended that appellant was not entitled to an evidentiary hearing. And, the State asserted that the offense for which appellant was convicted constituted a crime of moral turpitude.

In a “Memorandum” of December 4, 2001, the Board referred the matter to the Office of Administrative Hearings (“OAH”) for a hearing by an Administrative Law Judge (“ALJ”), pursuant to the State Government Article. A flurry of pleadings preceded the administrative hearing. At the hearing held by the ALJ on March 20, 2002, the State argued that H.O. § 14-404(b), which subjects a physician to license revocation upon conviction of a crime of moral turpitude, also applies to physician assistants, because H.O. § 15-314(3) incorporates by reference H.O. § 14-404(b). Appellant countered that the mandatory license revocation provision applicable to physicians does not apply to physician assistants, and thus the Board could opt to reprimand or suspend a physician assistant, instead of imposing a revocation.

Further, appellant argued that the legislative history demonstrated that the General Assembly chose not to amend H.O. § 15-314 to include the mandatory license revocation required by H.O. § 14-404. ⁴⁶⁷ On April 17, 2002, the ALJ issued an “Order on Motions,” a twelve-page opinion addressing whether appellant, “a physician assistant, is subject to the mandatory license revocation law applicable to physicians” under H.O. § 14 — 404(b). Concluding that a plain reading of the Maryland Physician Assistants Act “incorporates the acts listed in § 14-404, but not the procedures,” the ALJ determined that appellant is not “subject to the mandatory license revocation provisions of § 14-404(b)(2).” Therefore, the ALJ remanded the matter to the Board for further proceedings, including a Case Resolution Conference (“CRC”). Then, on September 13, 2002, the Board issued a “Reversal of Dismissal and Interim Order of Remand,” in which it treated the AL J’s “remand” as an “order of dismissal, dismissing the case for lack of a prior Case Resolution Conference.” The Board was of the view that appellant could be charged with a violation of any of the grounds listed in H.O. § 14-404, but that the procedures set forth in that provision did not apply. Rather, the Board determined that the procedures of the Physician Assistants Act, found in Title 15 of the Health Occupations Article, applied to appellant.

In particular, H.O. § 15-315 entitled appellant to a hearing in accordance with the provisions of the State Government Article. The Board also concluded that Mr. Oltman was not subject to the mandatory revocation provisions of H.O. § 14-404(b)(2). However, it ruled that the “statutory requirement” for a CRC applies to physicians, not physician assistants. Accordingly, the Board remanded the matter to OAH for a contested case hearing “on the merits,” and for the “issuance of proposed findings of fact, conclusions of law and, if justified by the conclusions of law, a proposed sanction.” The ALJ conducted an evidentiary hearing in November of 2002, pursuant to the contested case provisions of the Administrative Procedure Act, S.G. § 10-201 et. ser/., and COMAR.

The parties stipulated that appellant’s son turned twenty-one in May of 1996, and that L. Dean Hoover, M.D., a licensed Maryland psychiatrist, prescribed Ritalin for Junior for ⁴⁶⁸ ADHD from 1994 to 1996, and beginning in 2000, but not in 1997, 1998, or 1999. Richard Walton, a compliance analyst for the Board, was the sole witness for the State. The State entered into evidence certified copies of appellant’s federal conviction in U.S. v. Oltman, Case No. MJG-990238; the docket sheets; the Information; the signed plea agreement; and the complaint from the Navy to the Board. Among other things, the documents showed that, on September 8, 1999, appellant was found guilty of one count of “obtaining a prescription drug by fraud, deceit, misrepresentation or subterfuge,” in violation of Md.Code, Art. 27, § 300 and 18 U.S.C. § 13 , and that the offense occurred on October 1, 1998.

The parties also stipulated that appellant’s son “requires Ritalin” for his ADHD. Appellant, who was then fifty-four years old, testified in his own defense. The following testimony is pertinent: [APPELLANT’S COUNSEL]:_Where were you working on September 27,1999? [APPELLANT]: At what’s called the MACC, the Medical Acute Care Clinic, National Naval Medical Center. [APPELLANT’S COUNSEL]: And can you tell the Administrative Law Judge what happened on that day? [APPELLANT]: Yes, sir. On that day, I walked into another doctor’s office, I put a prescription on his computer.

It’s the worst mistake I ever made in my life. I’m sorry for that. And I’ve learned from that mistake never to do it again. That’s for sure.

But the pharmacy called this doctor and said, “Is this your patient?” And the doctor said “No.” So he came to me and he said, “Did you put this prescription in there?” And I said, “Yes, I did. It’s a mistake. Cancel it.” It was never picked up. The prescription was never picked up and used. [APPELLANT’S COUNSEL]: In the name of whom did you write that prescription? [APPELLANT]: I wrote that prescription in the name of my son, Carl Frederick Oltman, Junior. ⁴⁶⁹ [APPELLANT’S COUNSEL]: And what was the prescription for? [APPELLANT]: Ritalin or Methylphenidate.

Appellant acknowledged that he also asked doctors to write prescriptions for his son, that the doctors did not ask appellant whether his son was “eligible for care,” and that appellant “never said anything” to the doctors about his son’s ineligibility. He maintained, however, that the stipulation of facts contained in his plea agreement included instances of misconduct that did not actually occur. Nevertheless, appellant acknowledged that, when he obtained the Ritalin prescriptions for his son, he was aware that he would not be billed for them because of his eligibility for medical benefits as a Navy retiree. Moreover, appellant conceded that his actions constituted “theft.” Mary Oltman, appellant’s wife, described her son’s difficulty maintaining a job without Ritalin.

Junior testified that he received Ritalin from his father between 1997 and 1998. On cross-examination, he acknowledged that he did not visit a doctor to obtain the medication. 4 At the conclusion of the evidence, the State argued that, because fraud is an element of the crime for which appellant was convicted, he committed a crime of moral turpitude. Appellant countered that he was convicted of a misdemeanor, not a felony, and the offense was not a crime of moral turpitude. Further, he argued that he was convicted of a crime under Art. 27, § 300, and fraud is not the only action proscribed by that section.

Rather, Art. 27, § 300(g-l)(2)(i) includes deceit, misrepresentation, and subterfuge, (ii) includes forgery, (iii) includes concealing a material fact, and (v) ⁴⁷⁰ includes uttering a false prescription. In appellant’s view, misrepresentation and subterfuge are not the same as fraud, and thus forging a prescription, concealing a material fact, or uttering a false prescription do not necessarily constitute fraud. On January 31, 2003, the ALJ submitted a “Proposed Decision,” concluding that appellant committed a crime of moral turpitude, in violation of H.O. §§ 14-404 and 15-314(3). The ALJ said: “Deceitfully obtaining prescription drugs over such a long period of time shows a serious lack of integrity for which revocation is an appropriate sanction.” The ALJ found, in part: 5.

On July 18,1996, October 17,1996, November 6,1996, and September 27, 1998, [appellant] used a physician’s computer to write prescriptions for his son for Ritalin. The [appellant’s] son was not eligible for medical coverage through the Department of the Navy at the time [he] wrote the prescriptions. The prescriptions were filled at Naval pharmacies at either the Naval Medical Clinic, Annapolis, Maryland, or at the National Naval Medical Center, Bethesda, Maryland. The prescriptions were paid by the [appellant’s] Naval medical benefits. 6.

On July 22, 1997, October 20, 1997, March 19, 1998, May 8, 1998, July 22, 1998, August 16, 1998, August 18, 1998, October 17, 1998, and December 9, 1998, the [appellant] requested that Navy physicians write prescriptions for Ritalin for his son. 7. Navy physicians did write those prescriptions but did not examine [appellant’s] son prior to writing the prescriptions. The [appellant’s] son was not eligible for coverage through the Department of the Navy at the time [he] requested the prescriptions. Prescriptions written by Naval physicians could not be filled and paid for at civilian pharmacies.

The prescriptions were filled at Naval pharmacies at either the Naval Medical Clinic, Annapolis, Maryland, or at the National Naval Medical Center, Bethesda, Maryland. The prescriptions were paid by the Respondent’s Naval medical benefits. ⁴⁷¹ 8. On September 8, 1999, the Respondent pled guilty to one count of obtaining a prescription drug by fraud, deceit, misrepresentation, or subterfuge. He was given probation for two years and ordered to pay restitution in the amount of $1,208.43.

In determining that appellant’s conduct constituted a crime of moral turpitude, the AL J reasoned: The term “moral turpitude” connotes a fraudulent or dishonest intent. Attorney Grievance Commission v. Klauber, 289 Md. 446, 457 , 423 A.2d 578 (1981), citing Attorney Grievance Commission v. Walman, 280 Md. 453 , 374 A.2d 354 (1977). While not every misdemeanor conviction is a crime of moral turpitude, a “crime in which an intent to defraud is an essential element is a crime involving moral turpitude.” Id. at 459 , 423 A.2d 578 , citing, In re Hallinan, 43 Cal.2d 243 , 272 P.2d 768, 771 (1954), appeal after remand, 48 Cal.2d 52 , 307 P.2d 1 (1957). Further, crimes “involving intentional dishonesty for purposes of personal gain are crimes involving moral turpitude.... ” Id. at 459-460, 423 A.2d 578 .

(Emphasis in original) The Respondent specifically pled guilty to obtaining a prescription drug by fraud, deceit, misrepresentation, or subterfuge. (Bd. # 3). He cannot now successfully argue that he pled guilty to concealing a material fact. Further, the Respondent was intentionally dishonest.

He admitted that he wrote at least one prescription himself using a physician’s computer and, numerous times, he had physicians write prescriptions for his son when the physicians had not examined his son. The Respondent wrote or obtained the prescriptions with full knowledge that his son was no longer covered by the Respondent’s medical benefits, that the prescriptions would have to be filled at a Naval pharmacy, and that the Navy would pay for the prescriptions when filled at the Naval pharmacy. Finally, the Respondent not only falsely obtained prescriptions using a physician’s computer, he also drew other physicians into his actions. While it was the physicians’ decision to issue the prescriptions without examining the ⁴⁷² Respondent’s son, the Respondent asked them to participate in a fraud because he knew that his son was not covered by his benefits and that the Navy would pay for the prescriptions.

The Respondent’s crime, although a misdemeanor, was willfully dishonest, and characterized by fraud and deceit. Thus, it was a crime of moral turpitude. The ALJ also determined that “the Board is within its statutory right to revoke the [appellant’s] physician assistant certificate, notwithstanding the [appellant’s] testimony that he was just assisting his son.” In regard to the appropriate sanction, the ALJ did not find that appellant’s conduct resulted from “compelling extenuating circumstances.” The ALJ stated: It is unreasonable to believe that the Respondent’s son could not take off work at sometime during those years to see a physician. The period of time over which the Respondent wrote or obtained the prescriptions leads to the reasonable inference that the Respondent obtained the prescriptions fraudulently because his son was no longer covered by the Respondent’s medical benefits and the Respondent and/or his son could not or would not pay for the medication.

Accordingly, the ALJ concluded that the Board “properly revoked” appellant’s Physician Assistant Certificate because of his conviction. The ALJ said: “I PROPOSE that the Board of Physician Quality Assurance’s revocation of the [Appellant’s] Physician Assistant Certificate be UPHELD.” On February 7, 2003, the State submitted a letter to the Board, captioned “Proposed Correction of ALJ’s Proposed Decision, Findings of Fact and Conclusions of Law ....”, seeking to correct a “minor error.” It conceded that the “Proposed Order” should have read: “I PROPOSE that the Board of Physician Quality Assurance revoke the [Appellant’s] Physician Assistant Certificate.” Appellant filed “Exceptions to Proposed Decision of Administrative Law Judge.” He argued that the ALJ “erroneously inferred that the [Board] had decided to revoke [Appellant’s] ⁴⁷³ Certificate, when, in fact, there had been no such decision, and, therefore, the ALJ applied the wrong standard insofar as proposing a sanction.” Appellant also contended that the ALJ erroneously concluded that appellant pled guilty to a crime of moral turpitude. At the exceptions hearing on April 28, 2003, appellant again argued that his underlying criminal conviction did not constitute a crime of moral turpitude. He asserted, as “the starting point,” that COMAR 10.32.02.02.19 provides “that the determination of whether or not a crime is a crime involving moral turpitude is ‘determined on a case by case basis under common law.’ ” Appellant’s counsel said: The term moral turpitude, while imprecise, denotes conduct which is “base or vile and contrary to the accepted and customary conduct between men.” Those are the same.

Moral turpitude suggests, therefore, “such disregard for social values on the part of the perpetrator that one could reasonably infer that such a person’s testimony is suspect.” But the regulation that applies in this case talks about the common law and about analyzing these cases on a case by case basis. Appellant also contended that, even if the crime was one of moral turpitude, the ALJ “lost her perspective,” because she did not “realize” or “understand” that “the full penapoly [sic] of potential sanctions were available,” and the Board was not required to impose a revocation. His lawyer argued: [0]ur position is that Mr. Oltman pled guilty to a misdemeanor and that the Administrative Law Judge erroneously concluded that that misdemeanor constituted a crime involving mortal turpitude. We believe that if we apply the standard of the regulations, it simply is not that kind of crime and does not, therefore, justify any sanction.

But, again, we stand here ready to accept any sanction that allows him to continue to practice. The State acknowledged that the ALJ was confused in proposing to uphold the Board’s revocation, given that the ⁴⁷⁴ Board had not yet decided to revoke appellant’s Certificate. Nevertheless, it claimed that the ALJ’s factual findings supported her conclusion that appellant was convicted of a crime of moral turpitude. The State asserted: We met our burden of proof with clear and convincing or — actually, I believe in this case we only need a preponderance of the evidence.

But we met it by clear and convincing that he was convicted of State and Federal crimes. Those crimes consisted of crimes of moral turpitude with long precedent in this State. * * * Insurance fraud is a crime of moral turpitude. We found it at this Board by the State many times in the past. It’s a crime of moral turpitude for any health care professional.

And the fact that it is a misdemeanor allegedly in the State has no bearing on this. Further, the Department argued: Calling this behavior honorable is condoning theft. And that’s basically what it is. It’s insurance fraud.

Theft of maybe a small amount of money, relatively, but theft. Whether it’s theft from the tax payers of $1,500 or $15,000, basically is [sic] theft. And the only reason that the behavior stopped in '98 was he got caught. * * * And whether or not he was convicted of a felony or a misdemeanor is of no consequence in this state. * * * I hate to beat the facts to death, but I’m going to have to here. When Mr. Oltman was employed with the Navy for a two-year period, he fraudulently obtained and wrote prescriptions for methylphenidate, Ritalin, for his son.

His son had health insurance elsewhere. His son didn’t choose to use that health insurance elsewhere. That is fully testified to in the record, admitted to by Carl Oltman, Jr. ⁴⁷⁵ These prescriptions, his son did not see a physician from 1996 to 1998. His father, a physician’s assistant, was prescribing Ritalin for him.

Now, he was not charged with practicing medicine without a license, but something there quite isn’t right. So, he fraudulently wrote prescriptions. He fraudulently induced other Naval guys, Naval men and women physicians, to provide prescriptions and then went and filled them at the Naval pharmacy when the child didn’t have the — young adult did not have benefits. That is theft.

He signed the plea. And the plea is final. And with regard to the procedure in this case, no matter what went on with the V-2s and the 14-404s and the 15-314s, he’s had a full evidentiary hearing. The whole process that any other health care professional gets in this type of thing.

He was found guilty for obtaining prescription drug by fraud, deceit, misrepresentation or subterfuge in violation of the Annotated Code. * * * Deceitfully obtaining prescription drugs over a long period of time shows a serious lack of integrity in which revocation is the appropriate sanction. And the State submits that sanction is absolutely appropriate under the circumstance. The Board issued a “Final Decision and Order” on August 11, 2003. It concluded that, pursuant to H.O. § 15-314, “given the nature and long-term pattern of Mr. Oltman’s willful and fraudulent criminal acts, revocation of his physician assistant certificate is warranted.” In its opinion, the Board adopted the ALJ’s proposed factual findings and her analysis.

However, acknowledging that the ALJ’s “Proposed Order” was improperly worded, the Board “amendfed] the ALJ’s Proposed Order ... to state: T propose that the [Board] revoke the [appellant’s] Physician Assistant Certificate,’ and adopts that Proposed Order as amended.” The Board explained: The Board ... had not revoked Mr. Oltman’s physician assistant certificate prior to the administrative hearing. ⁴⁷⁶ Pursuant to its authority under Md.Code Ann., State Gov’t § 10-216(b), in this Final Decision and Order, the Board will therefore modify the AL J’s Proposed Decision to reflect that no disciplinary action had been taken by the Board against Mr. Oltman at the time of the hearing. The ALJ apparently misunderstood her role to some extent. The ALJ was not hearing an appeal of an action of the Board already taken, but was delegated the role of making proposed findings of fact and conclusions of law to the Board. In its ruling, the Board recognized that “fraud was an essential element of Mr. Oltman’s crimes.” Therefore, it was of the view that appellant pled guilty to a crime of moral turpitude.

Moreover, it determined that appellant “violated HO §§ 16-314(3) and 14^404(b) of the Maryland Medical Practice Act because of his conviction for obtaining a prescription by fraud, deceit, misrepresentation, or subterfuge, in violation of 18 U.S.C. § 13 and Md.Code Ann., Art. 27, § 300.” The Board reasoned: In 1996 and 1998, Mr. Oltman deliberately used a physician’s computer to write Ritalin prescriptions for his adult son whom he knew was then ineligible for medical insurance under Mr. Oltman’s navy medical benefits plan. On numerous other occasions from 1997 through 1998, Mr. Oltman also persuaded Navy physicians to write Ritalin prescriptions without examining his son, concealing the fact that his son was no longer eligible for their free services. Mr. Oltman then fraudulently filled these prescriptions at naval pharmacies at no cost to himself or his son. Mr. Oltman continued his established pattern of defrauding the navy medical benefits plan by obtaining Ritalin prescriptions from naval pharmacies throughout 1998.

Mr. Oltman and his son both profited financially by obtaining these prescriptions illegally. Fraudulent use of the navy benefits plan was a convenient way to avoid payment to a civilian physician for an examination or to a pharmacy for medication. Mr. Oltman’s readiness to exploit his ex-employer’s health benefit system for free goods and services to which he was not entitled, as well as the long ⁴⁷⁷ standing and repetitive nature of this conduct, undermine public confidence in the integrity of the physician assistant profession. Similarly, Mr. Oltman’s lack of honesty and perpetration of this fraud over a long period of time disparages professional principles and dishonors the reputation of the great majority of physician assistants who practice with honesty.

There is no dispute that fraud was an essential element of Mr. Oltman’s crimes. In light of Mr. Oltman’s deliberate forgery of prescriptions and continuous receipt of fraudulently-obtained prescription medication from 1996 through 1998, the Board finds that the crimes to which he pled guilty were crimes of moral turpitude. The character evidence presented by Mr. Oltman does not lessen his culpability. The circumstances of his case do not diminish the seriousness of his criminal violations or his violation of the Medical Practice Act.

As to the sanction, the Board said: [W]ith respect to all other health professionals that it regulates, the legislature has mandated that, for crimes of moral turpitude, the sanction be revocation of the certification or license. See HO §§ 14 — 404(b)(2) (physicians), 14-5A-18(c)(2) (respiratory care practitioners), and 14-5B-14(c)(2) (medical radiation technologists). (2002 Supp.) The Board recognizes that it Mis statutory authority to deviate from this sanction in the case of physician assistants, but the Board, declines to do so in this case. (Emphasis added).

Appellant subsequently sought judicial review in the circuit court. In his memorandum, appellant contended, inter alia, that he was not convicted of a crime of moral turpitude. Appellant also argued that both the ALJ and the Board failed to give “fair consideration to whether revocation was an appropriate sanction.... ” And, appellant asserted that the Board acted arbitrarily in denying him a CRC. In its opposing memorandum, appellee contended that the Board’s findings were “supported by substantial evidence in ⁴⁷⁸ the record.... ” It argued that, “[ujnder Maryland case law, conviction of a crime in which fraud is an essential element, is a crime of moral turpitude.” In the alternative, appellee claimed that, even if fraud is not an essential element of appellant’s crime, the facts and circumstances surrounding his conduct nonetheless warranted a finding of moral turpitude.

Moreover, appellee asserted that the Board’s sanction was within its discretion, and “a reasoning mind could have reasonably concluded” that revocation of appellant’s certificate was appropriate. It also argued that the circuit court lacked jurisdiction “to reverse or modify the sanction imposed by the Board.” Finally, appellee stated that the Board correctly determined that appellant was not entitled to a CRC, because such a procedure is only available to “licensees charged with conduct violating HO § 14-404(a),” and appellant was charged under subsection (b) of that statute. The circuit court (Davis-Loomis, J.) held a hearing on February 2, 2004, at which appellant reiterated many of the