Mahmoud Ghaderi, D.O. v. State Bd. of Osteopathic Med.
| Docket Number | 515 C.D. 2022 |
| Decision Date | 30 August 2023 |
| Parties | Mahmoud Ghaderi, D.O., Petitioner v. State Board of Osteopathic Medicine, Respondent |
| Court | Pennsylvania Commonwealth Court |
Mahmoud Ghaderi, D.O. (Ghaderi) petitions for review of the State Board of Osteopathic Medicine's (Board) May 5, 2022 final adjudication and order, which denied Ghaderi's petition to reinstate his license to practice osteopathic medicine from suspension. The Board denied Ghaderi's petition by retroactively applying the Act of July 1, 2020, P.L. 575, No 53 (Act 53). Upon review, we vacate and remand.
Ghaderi is an osteopathic physician and surgeon who first obtained a license to practice in Pennsylvania in 1994. Reproduced Record (R.R.) at 24a. On or about July 23, 2018, Ghaderi pled nolo contendere[1] to one count of misdemeanor indecent assault, 18 Pa.C.S. § 3126(a)(1), resulting from his sexual abuse of a patient. R.R. at 10a-11a, 25a. His sentence included 3 months of intermediate punishment, 2 years of probation, costs of $3,492.50, and 15 years of registration as a sexual offender. Id. at 25a. Ghaderi entered into a consent agreement and order (Order), which the Board approved and adopted on June 12, 2019. Under the Order, Ghaderi's license to practice was suspended indefinitely, but he could obtain reinstatement by demonstrating his ability to practice "safely and competently," among other things. Id. at 26a-30a.
Consistent with the Order's provisions, Pennsylvania law at the time the Board suspended Ghaderi's license did not prohibit him from seeking reinstatement. Section 15(a)(3) of the Osteopathic Medical Practice Act, Act of October 5, 1978, P.L. 1109, as amended, 63 P.S. § 271.15(a)(3), provided merely that the Board could refuse, revoke, or suspend a license due to "[c]onviction of a felony, a crime involving moral turpitude, or a crime related to the practice of osteopathic medicine."[2], [3] In any circumstance where the Board found a license could be refused, revoked, or suspended, it had the discretion to "[s]uspend enforcement of its finding thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance." Section 15(c)(5) of the Osteopathic Medical Practice Act, 63 P.S. § 271.15(c)(5). The Board could also "[r]estore or reissue a license to practice osteopathic medicine and surgery . . . and impose any disciplinary or corrective measure which it might originally have imposed." 63 P.S. § 271.15(c)(6).
About a year after Ghaderi entered into the Order, however, Pennsylvania's General Assembly passed Act 53 into law. Act 53 includes new provisions governing the licensing of individuals who commit sexual offenses. Under 63 Pa.C.S. § 3113(d), "[w]hen determining eligibility for licensure as a health care practitioner, a licensing board or licensing commission may not issue a license, registration, certificate or permit or otherwise allow an individual to practice as a health care practitioner if the individual has been convicted of a sexual offense."[4]Meanwhile, 63 Pa.C.S. § 3113(i) defines "sexual offense" to include "[a]ny of the offenses enumerated in 18 Pa.C.S. Ch. 31 ()." This, of course, includes an indecent assault conviction under 18 Pa.C.S. § 3126(a)(1). Section 5 of Act 53 provides that Section 3113, containing these more restrictive provisions, "shall apply to official acts and matters, including disciplinary matters, related to the issuance of licenses, certificates, registrations or permits by licensing boards or licensing commissions beginning on or after 180 days after the effective date of this section," or on December 28, 2020.
On October 28, 2020, Ghaderi filed a petition to "stay" the indefinite suspension of his license "in favor of a reasonable period of probation." R.R. at 45a. Ghaderi averred he completed the probation portion of his criminal sentence. Id. at 46a.
In addition, Ghaderi averred he completed sexual offender counseling. Id. He attached a discharge report from his counselor, Lauren Kossler, M.Ed., LPC (Kossler), who opined he was "at a low average risk for any future sexual recidivism." Id. at 76a. Kossler further opined, "with a reasonable degree of professionalism," that he was fit to resume practicing medicine. Id.
The Board scheduled a hearing before a hearing examiner, which occurred via videoconference on December 9, 2020. At the start of the hearing, Counsel for the Commonwealth requested a continuance, explaining Act 53's provisions would not take effect until later that month. R.R. at 135a-36a. He argued a continuance would allow him to file a motion requesting summary denial of Ghaderi's petition under Section 3113(d), which would avoid the "serious risk of some or all of these proceedings effectively being made moot by the change of law." Id. at 136a-37a. Counsel for Ghaderi argued Act 53 would not apply to the proceedings, even after taking effect. Id. at 138a. He cited "some grave constitutional issues in connection with the statute." Id. The hearing examiner denied the request for a continuance, explaining it was his understanding Act 53 would apply regardless of whether he continued the matter, but he was "not prepared to say that Act 53, on its face, precludes [] Ghaderi from seeking reinstatement." Id. at 141a-42a.
Ghaderi then presented his case-in-chief, in which he attempted to establish he could "safely and competently practice medicine at this time." R.R. at 142a-43a. Ghaderi testified on his own behalf. He also presented testimony from Frank Shannon, his probation officer; Kossler, who the hearing examiner accepted as an expert in evaluating the likelihood of sexual offender recidivism; and various character witnesses. Notably, Ghaderi described the circumstances leading to his nolo contendere plea as a mere "misunderstanding" and denied he ever "did anything improper." Id. at 165a, 371a-80a, 390a-91a, 424a. Counsel for the Commonwealth did not present any testimony of his own and indicated he was not taking a position on the proceedings "at this time."[5] Id. at 145a. Counsel explained he intended to "create as thorough a record as possible" for the benefit of the Board. Id.
The hearing examiner issued a proposed adjudication and order on May 18, 2021, recommending reinstatement of Ghaderi's license. The hearing examiner expressed concern regarding Ghaderi's "longstanding denial that there was any sexual component to his criminal offense." R.R. at 477a. Nonetheless, the hearing examiner explained he would defer to Kossler's opinion that Ghaderi was unlikely to reoffend, since she "regularly works upon referral from the criminal justice system." Id.
Turning to Act 53, the hearing examiner reasoned Ghaderi had a "vested property right" in his suspended osteopathic medical license and could not be deprived of that right by a retroactive application of the law without clear intent by the General Assembly. R.R. at 482a. There was no indication in Act 53, the hearing examiner explained, that the General Assembly intended its prohibition on licensing sexual offenders to apply to someone with an existing, suspended license. Id. at 483a. Thus, the hearing examiner concluded Act 53 could not prohibit Ghaderi from seeking reinstatement. Id. 482a-83a.
The Board issued a notice of intent to review the hearing examiner's proposed adjudication and order. On May 5, 2022, the Board issued a final adjudication and order, rejecting the hearing examiner's recommendation and denying Ghaderi's petition. The Board concluded the hearing examiner's retroactivity analysis was not one it was "authorized to adopt" and applied Act 53's prohibition on licensing sexual offenders to Ghaderi. R.R. at 490a-92a. The Board cited the general presumption that laws are constitutional. Id. at 492a (). It also rejected the hearing examiner's explanation that the General Assembly did not clearly intend Act 53's prohibition to apply. Id. According to the Board, "[t]he guidelines for the application of [63 Pa.C.S. § 3113(d)] are explicit: The Board cannot allow [Ghaderi], or any other individual, to practice as a health care practitioner when that individual has been convicted of a sex offense." Id. .
Ghaderi filed a petition for review in this Court. He argues Act 53's prohibition on licensing sexual offenders cannot apply to him because (1) the plain language of Act 53 applies to applicants for licenses but not current licensees like himself, (2) applying Act 53 to prohibit his reinstatement would constitute an impermissible retroactive application of the law, (3) Act 53, as applied to him, violates his procedural and substantive due process rights, and (4) application of Act 53 to prohibit his reinstatement would violate constitutional protections against ex post facto laws.
Ghaderi's arguments require this Court to engage in statutory interpretation, which is a question of law. See In re Est. of Potocar, 283 A.3d 936, 941 (Pa. Cmwlth. 2022) (citing Meyer v. Cmty. Coll. of Beaver Cnty., 93 A.3d 806, 813 (Pa. 2014)). When interpreting a statute, ...
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