Oltman v. Board of Physicians

• Decision Date: 02 June 2005
• Docket Number: No. 97,97
• Parties: Carl F. OLTMAN, Sr. v. MARYLAND STATE BOARD OF PHYSICIANS.
• Court: Court of Special Appeals of Maryland

875 A.2d 200

162 Md. App. 457

Carl F. OLTMAN, Sr. v. MARYLAND STATE BOARD OF PHYSICIANS.

No. 97, September Term, 2004.

Court of Special Appeals of Maryland.

June 2, 2005.

William M. Ferris, Annapolis, for Appellant.

Thomas W. Keech (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, HOLLANDER and DEBORAH S. EYLER, JJ.

HOLLANDER, Judge.

Carl F. Oltman, Sr., appellant, challenges a determination by the Board of Physicians (the "Board"), appellee, revoking Oltman's physician assistant certificate.¹ The revocation followed appellant's plea of guilty in federal court to "forging or altering a prescription." Appellant's conduct enabled him to obtain prescriptions of Ritalin for his son, knowing that his son was no longer covered under appellant's medical insurance. Oltman sought review of the Board's decision in the Circuit Court for Anne Arundel County, which affirmed.

On appeal, Oltman presents three questions for our review, which require us to consider the Maryland Medical Practice Act, Title 14 of the Health Occupations Article of the Maryland Code, and the Maryland Physician Assistants Act, found in Title 15 of the Health Occupations Article. He asks:

I. On the evidence adduced before the agency in this case, was Appellant convicted of a crime involving moral turpitude within the meaning of that term in §§ 14-404(b) and 15-314 of the Health Occupations Article of the Annotated Code of Maryland?

II. Did the Appellee Maryland State Board of Physicians and the Administrative Law Judge in this matter combine to deprive Appellant of reasonable and fair consideration whether his conviction in the United States District Court for the District of Maryland warranted a sanction less than revocation of his Certificate as a Physician Assistant?

III. Was the denial of a Case Resolution Conference to Appellant by the Maryland State Board of Physicians in this matter an abuse of discretion by the Board?

For the reasons set forth below, we shall affirm.

THE STATUTORY SCHEME

Before reviewing the facts, it is important to understand the relevant statutory and regulatory provisions. In Maryland, physicians are governed by Title 14 of the Health Occupations Article ("H.O.") of the Maryland Code (2000 Repl. Vol.), while physician assistants are governed by Title 15 of the Health Occupations Article. In addition, applicable regulations are found in the Code of Maryland Regulations ("COMAR"). The State Government Article ("S.G.") of the Maryland Code (1984, 1999 Repl. Vol., 2003 Supp.) is also pertinent.

H.O. § 15-314 provides:

§ 15-314. Grounds for reprimands, suspension or revocation of certificate.

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 reprimand any certificate holder or suspend or revoke a certificate if the certificate holder:

* * *

(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

H.O. § 15-315(a) is also relevant. It provides, in part:

§ 15-315. Same — Hearings.

(a) Opportunity for hearing. — (1) 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.

* * *

(b) Appeals. — (1) 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.... [²]

S.G. § 10-226(c) provides:

§ 10-226. Licenses — Special provisions.

* * *

(c) Revocation o[r] suspension. — (1) Except as provided in paragraph (2) of this subsection, a unit may not revoke or suspend a license unless the unit first gives the licensee:

(i) written notice of the facts that warrant suspension or revocation; and

(ii) an opportunity to be heard.

As we have seen, H.O. § 15-314 expressly refers to H.O. § 14-404. Title 14 of the Health Occupations Article is captioned "Physicians." H.O. § 14-404(b) provides:

§ 14-404. Denials, reprimands, probations, suspensions, and revocations — Grounds.

* * *

(b) Crimes involving moral turpitude. — (1) On the filing of certified docket entries with the Board by the Office of the Attorney General, the Board shall order the suspension of a license if the licensee is convicted of or pleads guilty or nolo contendere with respect to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside.

(2) After completion of the appellate process if the conviction has not been reversed or the plea has not been set aside with respect to a crime involving moral turpitude, the Board shall order the revocation of a license on the certification by the Office of the Attorney General.

"Moral turpitude" is defined in COMAR 10.32.02.02(B)(19) as "conduct evidencing moral baseness of the respondent as determined on a case-by-case basis under common law." COMAR 10.32.01.01, which pertains to physicians, states: "These regulations govern how an individual becomes licensed in Maryland to practice medicine." Moreover, COMAR 10.32.02.01 states: "These regulations govern procedures for disciplinary and licensing matters before the Board of Physicians." Chapter 01 is titled "General Licensure Regulations," while Chapter 02 is titled "Hearings Before the Board of Physicians."

FACTUAL SUMMARY

Appellant enlisted in the United States Navy in November of 1969, from which he retired on March 1, 1995. In 1976, appellant became a physician assistant; he has been certified to practice in Maryland since 1991. From 1996 through 1998, Oltman worked under contract as a civilian physician assistant at the Naval Academy in Annapolis and at the National Naval Medical Center in Bethesda.

As a Navy retiree, appellant received free medical care and prescriptions for himself, his wife, and his children, until the children reached the age of twenty-one, or twenty-three if enrolled in college. Appellant's son, Carl Oltman, Jr. ("Junior"), turned twenty-one years of age on May 3, 1996, and did not attend college. Therefore, as of May 3, 1996, Junior became ineligible for health benefits under appellant's Navy medical coverage.

Junior has Attention Deficient Hyperactive Disorder ("ADHD"), for which he was prescribed Ritalin, a controlled substance, or its generic equivalent. After Junior reached the age of twenty-one, appellant continued to obtain Ritalin for his son through the Navy, even though Junior was no longer eligible for prescription benefits through appellant's medical coverage. Appellant's conduct in obtaining medication for his son, knowing his son was ineligible for such medical benefits, led to appellant's prosecution in federal court.

In June 1999, the United States Attorney for the District of Maryland filed an Information against appellant, alleging that, "by fraud, deceit, misrepresentation, and subterfuge," appellant "knowingly and intentionally" "forged and altered prescriptions and written orders for prescriptions for Methylphenadite; and concealed facts in order to obtain prescriptions for Methylphenadite," in violation of Md. Ann. Code (1996 Repl. Vol.), Art. 27, § 300,³ and the Assimilated Crimes Statute, 18 U.S.C. § 13 (2000).

The Information was filed pursuant to a plea agreement between appellant and the United States, detailed in a letter dated April 26, 1999, written by Bonnie S. Greenberg, Assistant United States Attorney, and signed by appellant and his lawyer on May 28, 1999. The letter set forth the following statement of facts:

On or about September 27, 1998, the National Naval Medical Center received a prescription for Methylphenidate (a generic equivalent of Ritalin) over the Composite Health Care System (CHCS) allegedly written by a physician for Mr. Oltman. However, the physician did not write the prescription for Mr. Oltman. Rather, Mr. Oltman accessed the CHCS terminal in the National Naval Medical Center in Bethesda, Maryland, and generated a prescription for Methylphenidate on September 27, 1998 in Bethesda, Maryland. Mr. Oltman also generated prescriptions for Methylphenidate by accessing the CHSC [sic] terminal on July 18, 1996, October 17, 1996, November 6, 1996 at the Naval Medical Center in the U.S. Naval Academy, Annapolis, Maryland.

Further, Mr. Oltman deceived others and concealed material facts in requesting that others authorized to issue prescriptions at the Naval Medical Clinic in the U.S. Naval Academy, Annapolis, Maryland issue him prescriptions for Methylphenidate on October 17, 1998, August 18, 1998, August 16, 1998, May 8, 1998, July 22, 1998, March 19, 1998, December 9, 1998, October 20, 1997, and July 22, 1997.

At all times herein, between April 15, 1996 and October 1, 1998, Methylphenidate was a prescription drug and a controlled substance under 21 C.F.R. §§ 1300.01 and 1308.12. Mr. Oltman received this prescription drug, Methylphenidate, numerous times between April 15, 1996 and October 1, 1998 by forging or altering a prescription or written order; by fraud, deceit, misrepresentation, and subterfuge; and concealed material facts in order to obtain and attempt to obtain the prescription drug.

The defendant's son, Carl Oltman, Jr., uses Methylphenidate and became ineligible to receive medical benefits in May 1996, as he turned 21.

On July 15, 1999, appellant formally tendered a guilty plea in federal court to the charge of violating Title 18, §...