Oltman v. Maryland State Board of Physicians

ADKINS, J. In 2003, the Maryland State Board of Physicians (the “Board”), appellee, revoked the physician assistant (“PA”) certificate of Carl F. Oltman, Sr., appellant, for committing a crime of moral turpitude. Oltman was convicted of federal misdemeanor charges stemming from his forgery of Ritalin prescriptions and his fraudulent filling of those prescriptions for an adult son who was no longer a covered dependent under Oltman’s military medical plan. In Oltman v. Md. State Bd. of Physicians, 162 Md.App. 457, 487-88 , 875 A.2d 200 , cert. denied, 389 Md. 125 , 883 A.2d 915 (2005)(Oltman I), this Court held that Oltman’s convictions qualified as crimes of moral turpitude within the meaning of Md.Code (1981, 2005 RephVol., 2007 Cum.Supp.), sections 14-404(b) and 15-314 of the Health Occupations Article (HO), because fraud was an essential element of both crimes and Oltman signed a plea agreement explicitly acknowledging that he obtained the prescriptions “by fraud.” This appeal arises from Oltman’s petition for reinstatement two years after revocation. The Board denied reinstatement and ordered that Oltman may not re-apply for three years.

Oltman petitioned for judicial review of that decision, com ⁶⁸ plaining that his request was not considered by the full Board or an administrative law judge, and that it is premised upon a finding that Oltman lied to the Pennsylvania Board of Medicine, but he was never allowed a contested hearing on that allegation. 1 The Circuit Court for Anne Arundel County granted the Board’s motion to dismiss Oltman’s petition for judicial review, on the ground that the court does not have jurisdiction to review a reinstatement decision by the Board. Oltman noted this timely appeal, raising the following issues: I. Does a circuit court have statutory jurisdiction to entertain a petition for judicial review of a Board decision to deny reinstatement of a PA certificate?

II

Did the Board have standing to file a motion to dismiss Oltman’s petition for judicial review, [even though] the Board failed to file a response to the petition in accordance with Md. Rule 7-204? Answering “no” to the first question and “yes” to the second, we will affirm the judgment. FACTS AND LEGAL PROCEEDINGS Oltman, a retired naval officer, was employed as a PA under contract with the United States Navy. In that capacity, he used a Navy physician’s computer to forge prescriptions for his son’s medication, even though he knew that his son’s age made him ineligible for Navy physicians’ services.

Oltman then filled the forged prescriptions for free at a Navy pharmacy, even though he knew that his son also was not eligible for such prescription benefits. In addition, Oltman obtained prescriptions from Navy physicians on several occasions from 1997 through 1998, without a physical examination and without notifying the doctors of his son’s ineligibility. The Navy pursued misdemeanor criminal charges against Oltman. He pleaded guilty and was convicted in federal court ⁶⁹ of obtaining the prescriptions fraudulently.

The Navy terminated Oltman, revoked his military PA privileges, and reported the crimes to the Board. After a contested case hearing, the Board revoked Oltman’s PA certificate in 2003. This Court affirmed that decision in Oltman I, 162 Md.App. at 488 , 875 A.2d 200 . In May 2005, Oltman petitioned the Board for reinstatement.

Pursuant to its standard procedures for reinstatement petitions, the Board obtained Oltman’s written answers to its written questions, and a reinstatement panel of the Board subsequently met with Oltman and counsel. The panel considered the request in light of Oltman’s criminal and disciplinary history. In particular, the panel reviewed time sheets from the Prison Health Services showing that Oltman had continued his PA practice for 42 days after the August 11, 2003 revocation, despite the Board’s instruction to immediately cease practice and return his PA certificate. Furthermore, the reinstatement panel also considered the Pennsylvania Board of Medicine’s 2005 denial of Oltman’s application to practice as a PA in that State.

The Pennsylvania decision reflected that, in the administrative hearing on his Pennsylvania application, Oltman contradicted his prior admissions in the Maryland revocation hearing, by claiming that he “was not aware that his son was no longer eligible for dependent benefits” at the time he obtained the prescriptions. The reinstatement panel determined that Oltman did not establish grounds for reinstatement, because his conduct after the 2003 revocation demonstrated continuing lack of honesty, integrity, and remorse, as well as a failure to understand “the Board’s serious view of his crimes” or to accept “responsibility for his actions.” In a Final Order, the Board denied reinstatement and stated that it would not entertain another reinstatement application from Oltman for three years. Oltman petitioned for judicial review of the Board’s decision in the Circuit Court for Anne Arundel County, citing as jurisdictional grounds “Maryland Rule 7-202.” The Board moved to dismiss Oltman’s petition, arguing that Rule 7-202 ⁷⁰ does not confer jurisdiction to review an administrative agency’s decision, and that none of the regulatory statutes governing PAs authorizes judicial review of a decision denying reinstatement. After a hearing, the court agreed with the Board and dismissed Oltman’s petition.

Oltman noted this timely appeal. DISCUSSION I. No Statutory Jurisdiction Authorizing Judicial Review Of Reinstatement Decision Title 15 of the Health Occupations Article governs physician assistants. Section 15-314 authorizes revocation of a PA certificate, providing in pertinent part: 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 ... revoke a certificate if the certificate holder: (1) Fraudulently or deceptively obtains or attempts to obtain a certificate for the applicant or certificate holder or for another individual; (2) Fraudulently or deceptively uses a certificate; (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; (4) Performs delegated medical acts beyond the scope of the certificate not within a delegation agreement approved by the Board; (5) Performs delegated medical acts without the supervision of a physician----(Emphasis added.) We turn then to [¶] section 14-404, the provision in the Medical Practice Act (MPA) authorizing disciplinary action against physicians for enumerated reasons. As incorporated into [¶] section 15-314, subsection 14-404(b)(l) permits revo ⁷¹ cation on the basis of “certified docket entries” showing a conviction (whether after trial or a plea of guilty or nolo contendere) for “a crime involving moral turpitude!.]” As detailed in Oltman I, Oltman’s federal convictions qualified as crimes of moral turpitude, meriting revocation of his PA certificate.

See Oltman I, 162 Md.App. at 488 , 875 A.2d 200 . [¶] section 15-315 establishes procedural rights in PA disciplinary proceedings, including those resulting in revocation due to convictions for crimes of moral turpitude. 2 It provides for both a hearing and an appeal on the following terms: (a) (1) Opportunity for hearing. — 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. (3) The Board may administer oaths in connection with any proceeding under this section. (4) At least 14 days before the hearing, the hearing notice required under this subtitle shall be sent by certified mail to the last known address of the individual.

(b) (1) Appeals. — 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----(Emphasis added.) ⁷² In the 2003 revocation proceedings, Oltman was afforded the appropriate contested case hearing and judicial review. The question raised by Oltman in this appeal is whether he is likewise entitled to such a hearing and judicial review in connection with his 2005 petition for reinstatement. The circuit court agreed with the Board that it “does not have the jurisdiction to entertain a petition for judicial review from the denial of a ... petition for reinstatement” of a PA certificate.

The court reasoned: It is a completely different process when there is a revocation. In other words, when somebody has a certificate and there is a[n] action for revocation that encompasses a proprietary interest that the certificate holder has and deprivation of that certificate cannot be done without some measure of due process and that’s why the statutes allow for a judicial review from that. But, once somebody has, as a result of contested hearings, appeals and other activity, lost the certificate it has been revoked. He no longer has a proprietary interest.

He has nothing at this point other than what the Board grants him as a measure of grace. I think the fact that there are no standards set out in the statute also suggests that it’s purely a discretionary ... decision with the Board. There is nothing that a [c]ourt would have before it to determine whether or not the Board exercised discretion appropriately or not. There are no statutory standards.

There’s no guidelines that say ... so long as somebody meets certain standards they can come back and practice. So I think that is also indicative of the fact that it is purely a matter of grace on the part of the Board and it is not subject to judicial review____ [UJnless there is some statutory authority for judicial review[,] administrative agencies have a certain number of activities that they can engage in that are not subject to judicial review.... I don’t find that either Title 14 or Title 15 of the Health Occupations Article or any other law that I’ve been able to locate has created any such right ⁷³ to file for judicial review from a denial of a petition for reinstatement after a revocation. Oltman argues that the court erred in concluding that it lacked statutory jurisdiction to review denial of his petition for reinstatement.

We agree with the reasoning of the circuit court and are not persuaded otherwise by Oltman’s arguments that he is entitled to judicial review of the Board’s reinstatement decision. As a threshold matter, we observe that Md. Rule 7-202 does not authorize judicial review of administrative decisions. Title 7, Chapter 200 of the Maryland Rules of Procedure explicitly applies to “judicial review of ... an order or action of an administrative agency, where judicial review is authorized by statute[.]” Md. Rule 7-201(a)(emphasis added). This is consistent with the well-established principle that, “in order for an administrative agency’s action properly to be before ... any court[ ] for judicial review, there generally must be a legislative grant of the right to seek judicial review.” Harvey v. Marshall, 389 Md. 243, 273 , 884 A.2d 1171 (2005).

Thus, there is typically no right to judicial review of an administrative decision unless that right is established by statute. See, e.g., Urbana Civic Ass’n, Inc. v. Urbana Mobile Village, Inc., 260 Md. 458, 462-63 , 272 A.2d 628 (1971)(court had “no jurisdiction to entertain an appeal” from county commissioners’s decision because “a provision for such judicial review [was] conspicuously absent” from enabling statutes). We agree with the circuit court that none of the statutes applicable to Oltman’s reinstatement petition establishes a right to judicial review. The PA Act itself does not authorize such review.

Although [¶] section 15-315(b)(l) permits “[a]ny certificate holder who is aggrieved by a final decision of the Board under this subtitle” to “take a direct judicial appeal[,]” Oltman was no longer a “certificate holder” at the time the Board denied his petition for reinstatement. When the words of the statute are clear and unambiguous, we need not “engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Taylor v. ⁷⁴ NationsBank, 365 Md. 166, 181, 776 A.2d 645 (2001). Section 15-101 cross-defines “certificate” as “a certificate issued by the Board to a physician assistant under this title” and “physician assistant” as “an individual who is certified under this title[.]” [¶] § 15 — 101(d), -(m). As a result of the 2003 revocation proceedings, Oltman lost not only his “certificate,” but also his status as a “certificate holder” and “physician assistant,” and thus lost the right to judicial review afforded under section 15 — 315(b) to those who hold