Gorayeb v. Me. Bd. of Licensure in Med.
| Docket Number | AP-19-32 |
| Decision Date | 25 January 2023 |
| Parties | MARC GORAYEB MD, Petitioner, v. MAINE BOARD OF LICENSURE IN MEDICINE et al., Respondent. |
| Court | Maine Superior Court |
DECISION AND ORDER (M.R. CIV. P. 80C)
Petitioner Marc Gorayeb is a New Hampshire attorney who also held a medical license in Maine. In 2019, Respondent Maine Board of Licensure in Medicine ("the Board") denied Petitioner's license renewal application after applying 02-373 C.M.R. ch. 1, § 9 ("the Competency Rule")-a then-new licensure rule governing physicians who had not recently engaged in the active practice of clinical medicine. In this rule 80C appeal, Petitioner challenges the facial validity of the Competency Rule as well as the Board's adjudicatory decision to deny the renewal of his medical license. Petitioner is representing himself pro se and the Board is represented by Attorney Jonathan R Bolton. The matter is now fully briefed and will be decided without oral argument pursuant to M.R. Civ. P. 7(b)(7) and 80C(1).
The Competency Rule.
The Competency Rule was added to the Board's rules in 2017 as part of a larger rulemaking process that repealed and replaced the entirety of Chapter 1 (the chapter governing physician licensure). A.R. 379-81 385, 424.
In its original version, the proposed Competency Rule would have required-as a condition of renewing a medical license-that a physician participate "in the active clinical practice of medicine for at least three (3) months of the twelve (12) months prior to filing the renewal application." A.R 406. After notice and comment, the rule was revised, partly in response to a comment submitted by the Maine Medical Association (MMA). A.R. 459-60, 479.
MMA expressed opposition to the requirement on the grounds that it was overly restrictive and did not account for circumstances in which a physician was unable to practice for several months due to illness or other reasons. A.R. 459-60. MMA recognized, however, "that physicians who have been out of practice for years should have to meet additional standards before getting back into practice" and suggested alternatives, such as increased monitoring and supervision. A.R. 460.
The Board accepted MMA's comment in part and articulated its reasons for imposing the requirement:
The Board included this requirement in the proposed rule to ensure that physician applicants who have not been actively practicing clinical medicine are identified and, when necessary, are required to obtain updated education and/or training. The Board understands that clinical skills rapidly decline following a break from clinical medicine, which poses a risk to the safety of the public should an applicant or a licensee seek to return to clinical practice after an extended period and/or without remedial education and training. The Board also understands that there are many physicians with "active" medical licenses who renew their licenses every two years and have not practiced clinical medicine for many years, which also poses a risk to the public.
While the Board continued to support the rule, it agreed that some revisions were warranted. It thus amended the proposed rule to allow for a evaluation of the competency of licensees -who have not engaged in clinical practice during the 24 months immediately preceding the filing of a license renewal application. A.R. 460-61.
Due to the substantive nature of the amendments, the Competency Rule underwent an additional round of public comment. A.R. 479. The Board published the revised rule on its website on August 29, 2017. A.R. 479. It sent notice through its mailing list to interested persons on August 30, 2017. A.R. 479. The Secretary of State published the rulemaking notice in its rulemaking bulletin and in five Maine newspapers on August 30, 2017. A.R. 418, 479. And Public comment was reopened until September 29, 2017. A.R. 479.
The Board received one public comment, which criticized the Competency Rule on the grounds that it was vague and gave the Board too much discretion to determine competency. A.R. 464. The Board rejected the comment and adopted the rule on October 10, 2017. A.R. 424-25. The rule went into effect on December 23, 2017. A.R. 424, 481.
In Chapter 1, Section 8(3) of the final rule, the Board sets forth criteria for renewing an active license, including a demonstration of "continuing clinical competency as required by this rule." 02-373 C.M.R. ch. 1, § 8(3)(A)(4). Section 9 then states as follows:
At the time of the Board proceedings, Petitioner was a patent attorney employed by a medical device company in New Hampshire. A.R. 3, 75. Petitioner, also a physician, was issued a Maine medical license in April 2010. A.R. 3. On April 12, 2018, Petitioner filed an application to renew his Maine medical license. A.R. 4. He indicated on his application that he had not practiced clinical medicine in the past 24 months. A.R. 75.
The Board concluded that Petitioner did not meet the requirements for an active license due to his lack of recent clinical practice. A.R. 76-79. In lieu of an active license, the Board offered Petitioner an administrative license or an emeritus license, both of which Petitioner declined. A.R. 85.
On May 29, 2018, the Board issued a formal "preliminary denial" of Petitioner's renewal application. A.R. 1 87-88. In the denial notice, the Board noted Petitioner's lack of recent practice experience and cited two statutory grounds for denying his renewal request. Specifically, the Board stated:
[1] Pursuant to 32 M.R.S. § 3282-A(2)(E), the Board may deny or refuse to renew a license, or impose other discipline for engaging in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to patient or the general public or that evidences a lack of knowledge or inability to apply principles or skills to carry out the practice for which the licensee is licensed. [2] Pursuant to 32 M.R.S. § 3282-A(2)(H), the Board may deny or refuse to renew a license, or impose other discipline for [a] violation of a Board rule. Board Rules Chapter I, § 8(3)(A)(4) requires an applicant seeking renewal of an active license [to] demonstrate continuing clinical competency as required by Chapter 1. You have not adequately demonstrated continued competency to practice medicine.
Petitioner filed a timely intra-agency appeal, A.R. 89-93, and the Board issued a notice outlining the issues to be considered at the upcoming adjudicatory hearing. A.R. 153-54. In a pre-hearing order, the Hearing Officer Rebekah Smith, Esq., determined that Petitioner's challenges to the validity of the Competency Rule were "outside the scope of the present hearing" and "a matter for court determination." A.R. 178. The Hearing Officer subsequently issued an Evidentiary Order, dated May 5, 2019, excluding certain witnesses and exhibits proposed by Petitioner on relevance and other grounds. A.R. 31416.
A hearing was held on May 14, 2019. For witnesses, Petitioner called the Board's investigative secretary, its licensure specialist, and its executive director. The State meanwhile called Petitioner as its sole witness. Following hearing, the Board issued findings of fact and conclusions of law.
Specifically, the Board found that: Beginning in 2008, Petitioner went to work as a patent attorney at a medical devices company in New Hampshire. A.R. 3. During his first few years of employment at the company, Petitioner engaged in part-time emergency room practice on weekends. Id. He eventually ceased part-time emergency room work, though he could not recall precisely when. A.R. 4. Moreover, at the time of the hearing, Petitioner did not hold staff privileges at any hospital or otherwise maintain any hospital affiliations. Id. Petitioner could not recall the last time he saw a patient in a clinical setting. Id.
The Board further found that Petitioner, by his own admission had not engaged in clinical medical practice in the previous 24 months and would not meet the requirements for reinstatement of his license. A.R. 5. Additionally, the...
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