Regan v. Board of Chiropractic Examiners

EYLER, Judge. Appellant, Brian Regan, D.C. (Dr. Regan) was charged with violations of the Maryland Chiropractic Act, Md.Code Ann., Health Occ. (HO), §§ 3-101 to 3-602 (1994), by appellee, the Board of Chiropractic Examiners (the Board).

After an evi-dentiary hearing, the Board found violations and imposed sanctions. On judicial review, the Circuit Court for Baltimore City affirmed. Dr. Regan contends that (1) he was denied due process and (2) the Board acted beyond the scope of its powers. We find no error and affirm the judgment of the circuit court, except as to the sanctions imposed.

With respect to sanctions, we vacate that portion of the judgment and remand for further proceedings. Facts During the relevant time period, from 1989 until 1992, Dr. Regan was a licensed chiropractor and an owner of the Yalich Clinic located in Bel Air, Maryland. On July 7, 1994, the ⁴⁹⁹ Board charged Dr. Regan with the following violations of the Maryland Chiropractic Act: (1) soliciting or advertising in a false and misleading manner or in any other manner not approved by the Board (HO § 3-313(7)); (2) unethical conduct in the practice of chiropractic (HO § 3-313(8)); (3) wilfully making or filing a false report or record in the practice of chiropractic (HO § 3-313(12)); (4) practicing chiropractic with an unauthorized person or supervising or aiding an unauthorized person in the practice of chiropractic (HO § 3-313(18)); (5) violating any rule or regulation adopted by the Board (HO § 3-313(19)); (6) behaving immorally in the practice of chiropractic (HO § 3-313(20)); (7) committing an act of unprofessional conduct in the practice of chiropractic (HO § 3-313(21)); and (8) improper advertising of a trade name (HO § 3-407 1 and COMAR 10.43.03.05). The acts with which Dr. Regan was charged were summarized in the charging document as follows: ⁵⁰⁰ The Respondent committed the following acts, all in violation of the Maryland Chiropractic Act: hiring, supervising, and aiding unlicensed persons in the practice of chiropractic; making and submitting false reports; soliciting employees for the sole purpose of obtaining information to use against the Board; advising examination doctors to perform unnecessary treatments; and advertising in a manner that is misleading.

Because of the nature of the issues before us, we set forth verbatim certain paragraphs contained in the “allegations of fact.” The remaining paragraphs, D-H and M, allege that Dr. Regan permitted certain named and unlicensed individuals to engage in the practice of chiropractic. The relevant paragraphs are: A. At all times relevant to the charges herein, the Respondent was licensed to practice chiropractic, with the right to practice physical therapy. B. At all times relevant hereto prior to June 4, 1991, the Respondent and Dr. Lawrence Yalich owned and operated the Yalich Clinic located in Bel Air, Maryland (the “Bel Air Clinic”). Subsequent to June 4, 1991, the Respondent was the sole owner of the chiropractic portion of the Bel Air Clinic.

C. Between the period of 1989 and 1992, the Respondent hired and employed several individuals to perform chiropractic duties. I. In June 1992, Aileen Regan, the Respondent’s sister, a chiropractic school graduate not licensed in the State of Maryland, was hired by the Respondent to work in the Bel Air Clinic. The following facts are pertinent to Aileen Regan’s association with the Respondent at the Bel Air Clinic: (1) Aileen Regan worked in the Respondent’s clinic as an examination doctor until her departure in September 1992. ⁵⁰¹ (2) The Respondent knew or should have known that Aileen Regan was not licensed to practice chiropractic in the State of Maryland. (3) In the Spring of 1993 the Board commenced an investigation into the Respondent’s practice of chiropractic.

While under investigation, the Respondent requested that Aileen Regan go to the office of Board member, Dr. Howard Lewis, who practiced near the Respondent’s Bel Air office. (4) The Respondent asked Aileen Regan to entice Dr. Lewis into having a sexual liaison with her so that Respondent could have something to use against the Board. Ms. Regan declined the Respondent’s request. J. From April 1992 through March 10, 1994, Joan Gee was a regional manager for the Yalich Clinics.

In this capacity, she oversaw the administrative duties at various Yalich Clinics. The following facts are pertinent to Joan Gee’s association with the Respondent at the Bel Air Clinic: (1) The Respondent asked Joan Gee to approach Dr. Lewis in his office and try to entice him into having a sexual liaison with her. The Respondent told Ms. Gee that she would lose her job if she did not meet with Dr. Lewis at his office. (2) Ms. Gee made an appointment at Dr. Lewis’ clinic.

Ms. Gee went to Dr. Lewis’ clinic, but she did not try to sexually entice him. (3) The Respondent also asked Ms. Gee to sexually entice Dr. D. Brent Owens, a Board member, and Dr. Joseph Hughes, the President of the Maryland Chiropractic Association. Ms. Gee made appointments with each doctor at their respective offices, but she decided not to keep her appointments. K. In January 1989, the Respondent hired Deborah Tibbs as a chiropractic assistant.

The following facts are pertinent to Deborah Tibbs’ association with the Respondent at the Bel Air Clinic: (1) Ms. Tibbs performed the duties of a chiropractic assistant until the fall of 1991, when she began to perform ⁵⁰² patient examinations, consultations, and reports for worker’s compensation and personal injury patients. (2) Ms. Tibbs is not a graduate of chiropractic school and is not licensed to practice chiropractic in the State of Maryland. (3) Ms. Tibbs conducted approximately fifty consultations and approximately thirty-five to forty patient examinations per week until she quit in the Fall of 1992. After examining a patient, Ms. Tibbs discussed with the Respondent the results of her examination.

Ms. Tibbs provided the Respondent with the medical history and information that she gathered from the consultation with the patients. (4) The Respondent knew or should have known that Ms. Tibbs was not licensed to practice chiropractic in the State of Maryland. (5) Ms. Tibbs’ duties also required that she complete various patient reports following a patient examination. She made patient assessments without input from the Respondent.

In workers compensation and personal injury cases, the Respondent told Ms. Tibbs to indicate on the reports that the patient was not progressing satisfactorily so that patient treatment could be prolonged. The reports were then submitted to various insurance companies. (6) Ms. Tibbs was often present when a patient received therapy and knew what therapies had been given to the patient. Ms. Tibbs observed the Respondent review patient fee sheets of insured and [sic] patients and indicate that certain therapies had been provided to the patient, when such therapies had not been received by the patient.

If a patient had insurance, the Respondent often billed the insurance company for adjustments, ultrasound, electrical stimulation, and hot/cold therapy, even if the patient had not received each billed treatment. The Respondent forwarded the erroneous information to the insurance company for payment. L. In November 1990, Michelle McCarty, who is not licensed in Maryland as a chiropractor, began working as a ⁵⁰³ rehabilitation therapist for the Respondent and Dr. Yalich in the Bel Air clinic. She conducted testing and performed exercise instructions for which the professional skills and judgment of a licensed chiropractor are needed.

The following facts are pertinent to Michelle McCarty’[s] association with the Respondent at the Bel Air Clinic: (1) Ms. McCarty performed comprehensive muscle testing on the Dynatron 2000 machine. She also performed the surface electromyography test, the grip strength test, and the range of motion test. (2) Ms. McCarty received no formal training or supervision from the Respondent on how to conduct the tests. (3) The Respondent knew or should have known that Ms. McCarty was not licensed to practice chiropractic in the State of Maryland.

N. In August 1991, the Respondent hired Laura Orem to work in the Bel Air Clinic as a front desk receptionist, chiropractic assistant, and examination assistant at the Bel Air Clinic. In January 1992, Ms. Orem became a patient of the Respondent. During the course of her treatment, the Respondent billed Ms. Orem’s insurance for physical therapy she never received. O. In the Fall of 1991, the Respondent hired Karen Trotta to work as a chiropractic assistant at the Bel Air Clinic.

The following facts are pertinent to Ms. Trotta’s association with the Respondent at the Bel Air Clinic: (1) In the fall of 1992, Ms. Trotta took over the position vacated by Deborah Tibbs. Ms. Trotta’s duties included patient consultations, performing patient examinations, and reports. Ms. Trotta conducted three to eight examinations per week. (2) The Respondent trained Ms. Trotta for approximately two weeks.

Ms. Trotta usually was unsupervised when she conducted consultation and examinations. ⁵⁰⁴ (3) The Respondent knew or should have known that Ms. Trotta was not licensed to practice chiropractic in the State of Maryland. P. The Respondent was involved in bi-monthly meetings with those unlicensed persons listed herein who performed examinations. During these meeting these persons were told to keep patients in treatment even if patients were no longer in need of treatment. Q. The Respondent advertised in a manner that violated the Act and COMAR 10.43.03.

Specifically, on December 15, 1993, an advertisement for a “Free Pain Evaluation” to be given at the Bel Air Clinic, appeared in The Aegis, a Harford County newspaper. The advertisement was submitted by the Respondent’s Bel Air Clinic. The advertisement failed to list the Respondent’s name or the name of any licensed chiropractor associated with the Bel Air Clinic. R. In the Fall of 1993, an advertisement submitted by the Respondent, for “Free Pain Evaluation” to be given by the Bel Air Clinic appeared in The Harford Impulse, a publication distributed in Harford County.

The advertisement was submitted by the Bel Air Clinic. Although the advertisement listed the name of several medical doctors and doctors of podiatric medicine, it failed to list the Respondent’s name or the name of any licensed chiropractor associated with the Bel Air Clinic. An evidentiary hearing was scheduled before a quorum of the Board that included: Audie G. Klingler, D.C., president and presiding panel member; Howard Lewis, D.C., vice-president; Florence G. Blanck, D.C., secretary-treasurer; Paul Goszkowski, D.C.; and Ivy Logan Harris, consumer member. 2 On October 6, 1994, prior to the evidentiary hearing, Dr. Regan filed a pleading entitled “Motion for Recusal of Board ⁵⁰⁵ Members and Delegation of Hearing to Office of Administrative Hearings.” On the same date, Dr. Regan also requested that the Board issue subpoenas to Drs. Blanck, Klingler, and Lewis, to compel their appearance at the evidentiary hearing as witnesses.

In support of his motion for recusal, Dr. Regan made several arguments. First, he argued that Drs. Klingler and Lewis ought not to participate in the proceedings because: (1) Dr. Regan intended to call them as witnesses; (2) they were biased against Dr. Regan; (3) they were personally involved in matters as to which there were disputed evidentiary facts; and (4) at a minimum, their participation would create an appearance of impropriety. Second, Dr. Regan argued that Dr. Blanck should also be recused because, as the most senior member of the Board after Dr. Lewis, he intended to call her as a witness regarding: the Board’s response to the mandate of the 1993 Maryland General Assembly that, on or before October 15, 1993, it report to the House Environmental Matters Committee and the Senate Economic and Environmental Matters Committee on “(1) The qualifications necessary for persons who are chiropractic assistants; and (2) what standards are appropriate for the practice of chiropractic in Maryland.” See 1993 Md. Laws 87 (2).

In addition, Dr. Regan intended to call Dr. Blanck to testify with respect to the Board’s interpretation of its 1982 policy guidelines concerning the delegation of duties to chiropractic assistants. Third, Dr. Regan contended that dismissal of the entire board was necessary to avoid an appearance of impropriety. He repeated the arguments as to Drs. Klingler, Lewis, and Blanck and also argued that Drs.

Lewis and Goszkowski would benefit economically by an adverse decision to Dr. Regan because their chiropractic practices are within the same geographic area as Dr. Regan’s. Finally, Dr. Regan argued that his matter be delegated to the Office of Administrative Hearings (OAH) in order to avoid ⁵⁰⁶ an appearance of impropriety, and to avoid an appeal in the event of an unfavorable decision to him. In addition, Dr. Regan argued that delegation to the OAH was appropriate because if Drs. Klingler, Lewis, and- Blanck were dismissed, the Board would be unable to convene a quorum.

During oral argument, appellant’s counsel clarified that, on appeal, Dr. Regan challenges only the participation of Drs. Klingler and Lewis in the Board’s proceedings. Specifically, he contends that Dr. Lewis should have recused himself because the charge that he, Dr. Regan, behaved immorally in violation of HO § 3-313(20) was, according to the charging document, based on an allegation that Dr. Regan engineered a scheme to sexually compromise two members of the Board, one of whom was Dr. Lewis. As to Dr. Klingler, appellant contends that recusal was necessary because Dr. Klingler had been personally involved in the events resulting in the filing of advertising charges in violation of HO §§ 3-313(7), 3-407, and COMAR 10.43.03.05.

Dr. Regan had advertised the services of his Bel Air Clinic in a newspaper without including his own name. In a telephone conversation with Dr. Klingler, Dr. Regan was advised that the advertisements were required to bear his name. 3 By order dated October 18, 1994, the Board denied Dr. Regan’s motion for recusal and request for subpoenas. On November 2, 1994, Dr. Regan filed in the Circuit Court for Harford County a petition for judicial review of the denial of the motion and the request for subpoenas. The circuit court denied the request for relief.

By letter dated November 10,1994, the Board dismissed the advertising charges in violation of HO §§ 3-313(19), 3-407, and COMAR 10.43.03.05 on the ground that some of the matters alleged had occurred before the effective date of HO § 3-407, and with respect to the remaining allegations, Dr. Regan had withdrawn the advertisements after his telephone conversations with Dr. Klingler. ⁵⁰⁷ The Board conducted an evidentiary hearing on November 14,15, and 17,1994, and on January 27, 29, February 7, and 9, 1995. At the beginning of the hearing, Dr. Regan renewed his motion for recusal, and it was denied by the Board. At the conclusion of evidence offered against Dr. Regan, the Board dismissed the charge of behaving immorally in violation of HO § 3-313(20). After all evidence had been received, on August 10, 1995, the Board issued its findings.

The Board, finding that Dr. Regan had violated HO §§ 3-313(8), (12), (18), and (21), suspended his license for two years, ordered three years probation, and imposed a fine in the amount of $5,000. The Board’s opinion is 92 pages in length and is broken down into the following sections: Synopsis of Case, Synopsis of Witness Testimony, List of Exhibits, Findings of Fact, Conclusions of Law, and Order. In summary, the Board found that ten of Dr. Regan’s employees had taken patient histories, consulted with patients, and had performed examinations using a form developed by Dr. Regan. The examinations included range of motion, orthopedics, neurological testing, abdominal palpations, and kidney tests.

The Board also found that Dr. Regan’s employees had taken x-rays, filled out patient assessment forms for insurance reimbursement, applied physical therapy modalities on patients, and conducted testing. The Board concluded that Dr. Regan had improperly delegated these functions to unlicensed individuals. The Board also found that Dr. Regan had instructed employees to falsify records in order to prolong treatments and that he had billed for treatments not actually performed. On August 17, 1995, Dr. Regan filed a petition for judicial review in the Circuit Court for Baltimore City, along with an emergency motion for a stay pending appeal.

On August 23, 1995, by consent order, the Honorable John N. Prevas stayed the Board’s order, nunc pro tunc, pending the appeal. On February 6, 1997, the Honorable Paul A. Smith affirmed the Board’s decision. This appeal followed. Questions Presented 1.

Did the Board violate Dr. Regan’s federal and state constitutional rights of due process when: ⁵⁰⁸ A. The Board denied Dr. Regan’s Motion for Recusal, even though the Board’s hearing panel included one member who was identified in the Charging Document as the target of an alleged “blackmail” scheme orchestrated by Dr. Regan and had personal knowledge of disputed evidentiary facts concerning that charge and another member who had personal knowledge of facts material to another charge; and, B. During the hearing, without prior notice to Dr. Re-gan, the Board conducted aggressive inquisition of witnesses on matters ranging well beyond the Allegations of Fact in the Charging Document and prosecuted Dr. Regan and found him guilty on the basis of the new “Facts” developed at the hearing. 2. Did the Board commit reversible error of law when, having failed to obey a statutory command to adopt regulations concerning chiropractic assistants, it held in an adjudicatory proceeding that Dr. Regan’s employees were engaged in the practice of chiropractic even though their duties did not come within the definition of the practice of chiropractic set forth in the Act because they did not diagnose, manipulate, treat, or use a system of health care based on the principle that interference with the transmission of nervous impulses may cause disease? STANDARD OF REVIEW Generally, judicial review of an administrative agency’s action “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Service, Inc. v. People’s Counsel For Baltimore County, 336 Md. 569, 577 , 650 A.2d 226 (1994). In determining whether the agency’s decision is supported by substantial evidence, a court must consider whether reasoning minds reasonably could have reached the agency’s factual conclusion. ⁵⁰⁹ Eberle v. Baltimore County, 103 Md.App. 160, 166 , 652 A.2d 1175 (1995).

To the extent that issues on appeal turn on an agency’s factual findings, a reviewing court may not substitute its judgment for that of the administrative agency. United Parcel, 336 Md. at 576-77 , 650 A.2d 226 . A court may not uphold an agency’s order, however, “ ‘ unless it is sustainable on the agency’s findings and for the reasons stated by the agency.’ ” United Parcel, 336 Md. at 577 , 650 A.2d 226 (quoting United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984)). In the instant case, we are not called upon to review the factual findings of the Board.

Instead, both issues on appeal require a legal analysis. Specifically, question one requires us to apply a due process analysis, and question two requires us to review the Board’s decision in light of the substantive law of Maryland. Due Process Both Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution guarantee that a person will not be deprived of life, liberty, or property without due process of law. The question of whether a party is deprived of the right to due process involves an issue of law and not of fact.

As such, the standard of review applied by an appellate court is de novo. Liberty Nursing Center v. Department of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993). Consequently, we may substitute our judgment for that of the agency. 4 Maryland State Department of Education v. Shoop, 119 Md. App. 181, 196 , 704 A.2d 499 (1998)(citing Department of Human Resources v. Thompson, 103 Md.App. 175, 190 , 652 A.2d 1183 (1995)). Although procedural due process arguments have rarely been addressed in the context of reviews within an ⁵¹⁰ administrative agency, this Court has held that for an “appellant to establish a violation of procedural due process, he must first show that state action has resulted in his being deprived of a property interest.” Bragunier Masonry Contractors, Inc. v. Maryland Commissioner of Labor and Industry, 111 Md. App. 698, 712 , 684 A.2d 6 (1996)(quoting Vavasori v. Commission on Human Relations, 65 Md.App. 237, 243 , 500 A.2d 307 (1985)).

A party has a valid property interest in an administrative appeal. Bragunier, 111 Md.App. at 712 , 684 A.2d 6 ; see generally Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-29 , 102 S.Ct. 1148,1153-54 , 71 L.Ed.2d 265 (1982). In the instant case, Dr. Regan has a legitimate property interest in the outcome of the Board’s proceedings regarding his license to practice chiropractic. When the deprivation of a property interest is at stake, the deprivation must “ ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Goss v. Lopez, 419 U.S. 565, 579 , 95 S.Ct. 729, 738 , 42 L.Ed.2d 725 (1975)(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 , 70 S.Ct. 652, 656-57 , 94 L.Ed. 865 (1950)).

Moreover, procedural due process requires a fair trial in a fair tribunal. In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955). Such principles apply to any tribunal, be it a judge, jury, or an administrative body. Peters v. Kiff, 407 U.S. 493, 501 , 92 S.Ct. 2163, 2168 , 33 L.Ed.2d 83 (1972); Gibson v. Berryhill, 411 U.S. 564, 579 , 93 S.Ct. 1689, 1698 , 36 L.Ed.2d 488 (1973).

In Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976), the Supreme Court identified the three factors to be considered when courts address procedural due process issues in administrative settings. Courts must consider: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including ⁵¹¹ the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The level of due process required must be decided based on the circumstances of each individual case. Bragunier, 111 Md.App. at 713 , 684 A.2d 6 ; Beeman v. Department of Health and Mental Hygiene, 107 Md.App. 122, 142 , 666 A.2d 1314 (1995).

Substantive Law A reviewing court will accord no deference to an agency’s decision on matters of law. Lee v. Maryland National Capital Park and Planning Commission, 107 Md.App. 486, 492 , 668 A.2d 980 (1995). Consequently, when an error of law is alleged, a reviewing court is at liberty to substitute its judgment for that of the agency. Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 651-52 , 701 A.2d 879 (1997).

DISCUSSION I. A. On appeal, Dr. Regan argues that the law applicable to court proceedings and to OAH hearings is applicable to the proceeding before the Board. In Maryland, there is a presumption that a judge is impartial. Boyd v. State, 321 Md. 69, 80 , 581 A.2d 1 (1990); Doering v. Fader, 316 Md. 351, 355-56 , 558 A.2d 733 (1989). Thus, when an allegation of actual bias or prejudice is made, the burden is on the individual making the allegation to show bias or prejudice from the record.

Boyd, 321 Md. at 80-81 , 581 A.2d 1 . In Boyd , the Court of Appeals held: The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. ⁵¹² Boyd, 321 Md. at 75 , 581 A.2d 1 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 , 86 S.Ct. 1698, 1710 , 16 L.Ed.2d 778 (1966)). In so holding, the Court noted that judges generally “enjoy a broad range of discretion in ruling on motions for recusal when there is no constitutional or statutory disqualification.” Boyd, 321 Md. at 74 , 581 A.2d 1 . The Court went on to state, however, that “[m]ore recently, the rules of disqualification have been established by statute or by rule of court.” Id. at 75 , 581 A.2d 1 .

In Maryland, rules of disqualification have been set forth in the Maryland Code of Judicial Conduct. Specifically, Canon 3 C of the Code provides, in pertinent part, that: (1) A judge should not participate in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding!)] Maryland Rule 16-813. In addition, Maryland Rule 5-605 provides that “[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.” These authorities are not expressly applicable to boards such as the one in this case.

With respect to the OAH, an administrative law judge (ALJ) must conduct a full, fair, and impartial hearing. CO-MAR 28.02.01.08(A)(1). An ALJ must withdraw from a proceeding when “personal bias or other reasons render the judge unable to provide an impartial hearing and decision, or when an appearance of impropriety may