JON M. STRAUSS, M.D. APPELLANT
KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE
FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 10-CI-007765
FOR APPELLANT: J. Fox DeMoisey Louisville, Kentucky.
FOR APPELLEE: Leanne K. Diakov General Counsel Kentucky Board
of Medical Licensure Louisville, Kentucky.
BEFORE: COMBS, MAZE AND STUMBO, JUDGES.
Strauss, M.D., appeals from an order of the Jefferson Circuit
Court which affirmed an order of the Kentucky Board of
Medical Licensure (hereinafter referred to as "the
Board"). The Board's order adopted in
toto a recommended order, which set forth findings
of fact and conclusions of law, from a hearing officer. The
Board's order also placed Dr. Strauss on probation for
five years and subjected his medical license to various terms
and conditions. Dr. Strauss argues that the Board's order
should be reversed because the Board and hearing officer
violated certain sections of the Kentucky Revised Statutes.
We agree and reverse and remand.
2007 and 2009, the Board issued four complaints against Dr.
Strauss alleging various infractions. Investigations ensued,
ultimately leading to administrative hearings being held by a
hearing officer during this period. The hearings concluded on
May 27, 2010. In August of 2010, the hearing officer entered
a recommended order which set forth his findings of fact and
conclusions of law. The hearing officer found Dr. Strauss had
violated three statutes in relation to his medical practice.
The officer did not suggest an appropriate remedy, but stated
that the Board should "take any appropriate action
against his license for those violations."
Strauss and counsel for the Board timely filed exceptions to
the hearing officer's recommendations. The Board then
reviewed the fourth complaint, the hearing officer's
recommended order, and the exceptions. The Board also heard
arguments from counsel. On September 29, 2010, the Board
adopted the hearing officer's findings of fact,
conclusions of law, and recommended order, without revision,
and ordered a five-year probationary period for Dr. Strauss.
November 3, 2010, Dr. Strauss filed a petition for judicial
review with the Jefferson Circuit Court. Dr. Strauss argued
that the order of probation was void because the hearing
officer and the Board did not follow certain statutory
requirements. Multiple motions, responses, and arguments were
heard by the circuit court. The court eventually held a
hearing on July 25, 2014. On April 2, 2015, the court entered
an order which affirmed the Board's order of probation.
The court's order held that the Board's order was
based on substantial evidence and that neither the Board nor
the hearing officer violated sections of the Kentucky Revised
Statutes. This appeal followed.
appeal concerns an administrative agency that is tasked with
protecting "the health and safety of the public"
and can "regulate, control and otherwise discipline the
licensees who practice medicine and osteopathy within the
Commonwealth of Kentucky." Kentucky Revised Statute
(KRS) 311.555. KRS 311.591 allows the Board to, among other
things, investigate grievances, issue complaints, assign
matters to hearing panels or hearing officers, and to impose
discipline upon licensed medical professionals. When the
Board believes a medical licensee has violated the law and
assigns the matter to a hearing panel or officer, the
provisions of KRS Chapter 13B come into play.
The provisions of this chapter shall apply to all
administrative hearings conducted by an agency, with the
exception of those specifically exempted under this section.
The provisions of this chapter shall supersede any other
provisions of the Kentucky Revised Statutes and
administrative regulations, unless exempted under this
section, to the extent these other provisions are duplicative
or in conflict. This chapter creates only procedural rights
and shall not be construed to confer upon any person a right
to hearing not expressly provided by law.
Board is not exempt from the provisions of Chapter 13B.
Strauss' primary argument on appeal is that the Board and
the hearing officer violated certain statutory requirements.
Specifically, his argument is based on KRS ...