Murphy-Dubay v. Dep't of Licensing, Docket Nos. 321380

• Decision Date: 18 August 2015
• Docket Number: Docket Nos. 321380,321749.
• Citation: 311 Mich.App. 539,876 N.W.2d 598
• Parties: MURPHY–DUBAY v. DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS.
• Court: Court of Appeal of Michigan — District of US

311 Mich.App. 539

876 N.W.2d 598

MURPHY–DUBAY

v.DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS.

Docket Nos. 321380

321749.

Court of Appeals of Michigan.

Submitted Aug. 5, 2015, at Lansing.

Decided Aug. 18, 2015, at 9:00 a.m.

Mark D. DuBay, Paw Paw, for plaintiff.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Bridget K. Smith, Assistant Attorney General, for defendants.

Before: SAWYER, P.J., and M.J. KELLY and SHAPIRO, JJ.

PER CURIAM.

In Docket No. 321380, plaintiff appeals as of right an opinion and order of the Court of Claims granting defendants' motion for summary disposition on plaintiff's complaint for a writ of mandamus and declaratory judgment; plaintiff had sought to compel the Department of Licensing and Regulatory Affairs to take action on his purported application for a limited license to practice medicine. In Docket No. 321749, plaintiff appeals as of right a final order of the circuit court affirming the decision of the Department of Licensing and Regulatory Affairs, Bureau of Health Care Services, Professional Licensing Section, which had rejected the application. We affirm.

I. FACTS

Plaintiff attended Saba University School of Medicine, located on the island of Saba in the Netherland Antilles. He completed two years of coursework, followed by two years of clinical rotations through Dalhousie University in Nova Scotia, Canada. After his clinical rotations, plaintiff returned to Michigan and began seeking entrance into postgraduate clinical training programs (commonly known as "residencies"), but was unable to secure a position.¹

On June 18, 2013, plaintiff submitted an application on a form he created himself, seeking a "limited license" to practice medicine within the state of Michigan pursuant to MCL 333.16182(1)

. On July 29, 2013, plaintiff sent defendants a follow-up letter, asking for a favorable response or, in the event of a denial, an opportunity to be heard pursuant to MCL 333.16232

. On September 23, 2013, plaintiff filed a complaint for a writ of mandamus and declaratory judgment in the Ingham Circuit Court seeking an order directing defendants to take action on his June 18, 2013 application and entry of a judgment declaring the rights of the parties regarding medical licensure under applicable constitutional, statutory, and administrative law.

On September 30, 2013, the manager of the Bureau of Health Care Services, Professional Licensing Section, sent plaintiff a letter explaining that the Michigan Board of Medicine does not issue limited licenses to individuals upon request and that limited licenses are "typically issued for a group of licensees who either have restrictions to the location in which they may physically practice such as with an educational limited license or for disciplinary purposes for someone who has previously held a full license." In addition, the manager explained that MCL 333.16232

does not authorize a hearing for someone whose education or training does not meet the requirements for licensure as a physician, but applies to initial licensure applicants who meet the educational and training requirements, but are denied licensure for reasons related to past criminal convictions, previous disciplinary actions, or other issues that might affect or relate to their overall good moral character and ability to practice safely and legally in the state of Michigan, giving those individuals the opportunity for a hearing to demonstrate that, despite their history, they currently possess good moral character and can practice their profession safely. On October 18, 2013, plaintiff filed an appeal in the Ingham Circuit Court seeking judicial review of defendants' September 30, 2013 letter rejecting his application for a limited license and request for a hearing.²

On October 28, 2013, defendants filed a motion for summary disposition of plaintiff's complaint for a writ of mandamus and declaratory judgment pursuant to MCR 2.116(C)(8) and (10)

. On November 1, 2013, plaintiff filed a response. On January 23, 2014, following statutory changes, plaintiff's writ of mandamus and request for declaratory judgment claims were transferred to the Court of Claims pursuant to MCL 600.6404(3), while the appeal of the agency decision remained in circuit court.

On April 1, 2014, the Court of Claims issued an opinion and order granting defendants' motion for summary disposition on plaintiff's complaint for a writ of mandamus and declaratory judgment pursuant to MCR 2.116(C)(8)

. On April 28, 2014, the Ingham Circuit Court issued a final order affirming the September 30, 2013 agency decision.

II. INTERPRETATION OF MCL 333.16182

Plaintiff first asserts that defendants misinterpreted and misapplied the Public Health Code, MCL 333.1101 et seq.

, when they failed to issue him a "limited license" to practice medicine, which he contended was permitted by MCL 333.16182(1)

. We disagree.³

MCL 333.16182

states as follows:

(1) A board may grant a limited license to an individual if the board determines that the limitation is consistent with the ability of the individual to practice the health profession in a safe and competent manner, is necessary to protect the health and safety of patients or clients, or is appropriate to promote the efficient and effective delivery of health care services.

(2) In addition to the licenses issued under subsection (1), a board may grant the following types of limited licenses upon application by an individual or upon its own determination:

(a) Educational, to an individual engaged in postgraduate education.

(b) Nonclinical, to an individual who functions only in a nonclinical academic, research, or administrative setting and who does not hold himself or herself out to the public as being actively engaged in the practice of the health profession, or otherwise directly solicit patients or clients.

(c) Clinical academic, to an individual who practices the health profession only as part of an academic institution and only in connection with his or her employment or other contractual relationship with that academic institution. For an individual applying for a limited license under this subdivision to engage in the practice of medicine under part 170 [MCL 333.17001

to MCL 333.17084 ], "academic institution" means that term as defined [MCL 333.17001 ].

Specifically, plaintiff asserts that the first part of Subsection (1), which authorizes a limited license when "consistent with the ability of the individual to practice the health profession in a competent manner," is applicable here and that "[i]t is this provision that authorizes the Agency to issue Plaintiff a limited license which it refuses to do."

Subsection (1) permits a limited license to be issued if any of its three criteria are met, including the condition of being "consistent with the ability," the criterion on which plaintiff relies. However, the Legislature, through the Public Health Code, invested in the various licensing boards broad discretion with respect to the licensing of applicants to practice health professions. It did not, as plaintiff asserts, unambiguously provide in Subsection (1) that the board of medicine must grant a limited license to practice medicine to someone in plaintiff's particular situation.

For example, MCL 333.16174(1)

permits a board to enact rules that promote safe and competent practice and informed consumer choice:

An individual who is licensed or registered under this article [MCL 333.16101

to MCL 333.18838 ] shall meet all of the following requirements:

* * *

(c) Have a specific education or experience in the health profession or in a health profession subfield or health profession specialty field of the health profession, or training equivalent, or both, as prescribed by this article or rules of a board necessary to promote safe and competent practice and informed consumer choice.

MCL 333.16141(3)

makes it clear that it is the boards that set the standards: "The department may promulgate rules to promote the effective and consistent administration of this article. However, the department shall not promulgate rules that constitute the licensure, registration, or examination of health professionals." Likewise, MCL 333.16148(1)

provides that

the department, in consultation with a board, may promulgate rules to establish standards for the education and training of individuals to be licensed or registered, or whose licenses or registrations are to be renewed, for the purposes of determining whether graduates of a training program have the knowledge and skills requisite for practice of a health profession or use of a title.

MCL 333.16146(2)(b)

permits a board to "[r]eclassify licenses on the basis of a determination that the addition or removal of conditions or restrictions is appropriate." And MCL 333.16145(3) states that "[o]nly a board or task force shall promulgate rules to specify requirements for licenses, registrations, renewals, examinations, and required passing scores."

In MCL 333.16175

, the Legislature directed a board or its task forces to "consider" various factors in developing the standards:

In developing minimum standards of educational prerequisites for licensure or registration, a board and its task forces shall consider equivalency and proficiency testing and other mechanisms, and where appropriate grant credit for past training, education, or experience in health and related fields. Standards may include those for formal education, practice proficiency, and other training, education, or experience which may provide equivalence to completion of formal educational requirements.

This statute does not restrict a board in its decisions that follow these considerations. Rather, it reflects a grant of power and discretion.

Finally, it is evident from viewing the entire regulatory scheme (rather than only looking at MCL 333.16182

in isolation), that Subsection (1) was provided so that a board or task force may, in its discretion , issue limited licenses in disciplinary...