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Uradu v. Kentucky Board of Medical Licensure

Court of Appeals of Kentucky

February 22, 2019

ONYINYECHI R. URADU, MD APPELLANT
v.
KENTUCKY BOARD OF MEDICAL LICENSURE APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NO. 17-CI-004379

          BRIEFS FOR APPELLANT: J. Fox DeMoisey Louisville, Kentucky.

          BRIEF FOR APPELLEE: Sara Farmer Louisville, Kentucky.

          BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.

          OPINION

          LAMBERT, JUDGE.

         In this administrative appeal, Onyinyechi R. Uradu, MD, has sought review of the December 18, 2017, opinion and order of the Jefferson Circuit Court upholding the Kentucky Board of Medical Licensure's (KBML) decision to place her medical license on probation pursuant to Kentucky Revised Statutes (KRS) 311.595(17) after the State Medical Board of Ohio (the Ohio Board) suspended her license for violating statutes governing the practice of medicine in that state. Because we agree with Uradu that the portion of the administrative regulation at issue in this case is invalid, we reverse and remand.

         The underlying matter began with the filing of a complaint by KBML on March 8, 2017, against Dr. Uradu related to her license to practice medicine in Kentucky. Her specialty is Family Medicine. In 2016, the equivalent licensure board in Ohio entered an order related to her license in that state for her actions in 2014. The Ohio Board concluded that between September 23, 2014, and September 26, 2014, Dr. Uradu had "knowingly exceeded the 100-patient limit set by federal law in prescribing buprenorphine for the treatment of narcotic addiction." For this violation, the Ohio Board suspended her license for an indefinite period not less than 180 days and stayed all but five days of that suspension, subjected her to a one-year probation period upon the reinstatement of her license, and required her to submit documentation of her successful completion of a course related to prescribing controlled substances. KBML alleged in the complaint that through this conduct, Dr. Uradu had violated KRS 311.595(17) and that legal grounds existed for a disciplinary action in Kentucky. The matter was assigned to Hearing Officer Thomas J. Hellman.

         In her response to the complaint, Dr. Uradu admitted that the Ohio Board had entered an order on September 14, 2016, related to her license to practice medicine and that she had reported this order to KBML pursuant to the statutory and regulatory requirements. She admitted that she had exceeded the 100-patient limit, but she denied that the Ohio Board's order imposed any substantive restrictions on her ability to serve in her position as an Opioid Treatment Program Director, to prescribe medication, or limited her practice. She had also completed the required course in controlled substances prescriptions. As one of her defenses, Dr. Uradu stated that the "actions that precipitated the Ohio Board's Entry of Order were actions taken for the safety, health, welfare and best interests of her patients and lasted only a very short time until the patients could be transferred." She also stated that the Drug Enforcement Administration (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) had increased the patient limits from 100 to 275, removing the basis for the Ohio Board's disciplinary action and providing no basis for further action in Kentucky. Finally, Dr. Uradu stated that the KBML had discriminated against her by failing to take similar disciplinary action against other physicians. She sought dismissal of the complaint and a declaration that the statutes and regulations as applied to her were unconstitutional.

         KBML moved the hearing officer for summary disposition pursuant to 201 Kentucky Administrative Regulations (KAR) 9:081 § 9(6) and KRS 13B.090(2), arguing that no genuine issues of material fact were in dispute in that Dr. Uradu had admitted the allegations contained in paragraphs 1 through 5 of the complaint. KRS 311.595(17) permits the KBML to place a licensee on probation or to revoke or restrict a license based upon proof that the licensee had been subjected to a revoked, suspended, restricted, or limited license by the licensing authority in another state. Re-litigation of the disciplinary action is not required under this statute. In addition, 201 KAR 9:081 § 9(4)(c) requires the appropriate panel in Kentucky to impose the same substantive sanction as the discipline that was imposed in another state. By separate regulation (201 KAR 9:081 § 9(6)(a)), KBML is to expedite resolution of the complaint if it only charges a criminal conviction or disciplinary sanction that could be proven by accompanying official certification. And, like the statutory provision, 201 KAR 9:081 § 9(6)(c)(1) does not permit re-litigation of a criminal conviction or disciplinary sanction. KBML included certified copies of the Ohio Board's records related to its discipline of Dr. Uradu.

         In her response, Dr. Uradu objected to the motion for summary disposition, arguing that 201 KAR 9:081 § 9(4)(c) was "illegally contrived" because it exceeded its statutory authority, that KRS Chapter 13A forbade KBML from enlarging its delegated authorization in an administrative regulation, and that her due process rights were being denied because she was subjected to re-punishment in Kentucky. Dr. Uradu also sought a hearing on her complaint, stating that genuine issues of material fact existed and that the Ohio certified documents were incomplete because a written copy of the amended final report/recommendation/order had not been included. She also wanted to update KBML on what had transpired since the Ohio Board action and provide an impact statement, not re-litigate the Ohio disciplinary process.

         The hearing officer entered his findings of fact, conclusions of law, and recommended order on May 24, 2017, and in doing so found no disputed issues of material fact existed and granted KBML's motion for summary disposition. Based upon his findings, the hearing officer concluded that KBML had established by a preponderance of the evidence that Dr. Uradu had violated KRS 311.595(17) and was subject to sanction based upon the Ohio Board's order. The hearing officer rejected Dr. Uradu's arguments related to 201 KAR 9:081 § 9(4)(c), stating that the regulation was within KBML's discretion, and declined to address the constitutionality of KRS 311.595(17), although he did point out that KBML was not sanctioning her for a violation of an Ohio statute but for violating one in Kentucky. Furthermore, the amended report Dr. Uradu had attached to her filing was not certified or authenticated. Accordingly, the hearing officer recommended that KBML impose, at a minimum, the same sanctions against Dr. Uradu's medical license as the Ohio Board had imposed.

         Dr. Uradu filed exceptions to the hearing officer's recommendations, arguing that she was denied due process and that he had limited KBML's statutory duty to exercise its discretion in disciplining her. She attached a personal statement dated June 7, 2017, in which she sought mercy and requested that KBML not penalize her any further. She also attached a letter and decision from the West Virginia Board of Medicine declining to find probable cause existed to initiate a complaint against her. Both of these documents, she asserted, supported her argument that the use of summary disposition prejudiced her interests.

         On July 24, 2017, after considering the complaint, the hearing officer's recommendations, Dr. Uradu's exceptions, and a memorandum from KBML's counsel, KBML adopted the hearing officer's findings of fact and conclusions of law as well as his recommended order. It therefore placed Dr. Uradu's license to practice medicine in Kentucky on probation for one year; stayed the indefinite suspension of her license; and ordered her to submit proof that she had complied with the Ohio Board's requirement that she complete a course related to prescribing controlled substances, reimburse KBML for the cost of the proceedings, and not violate any provision of KRS 311.595 and/or KRS 311.597.

         Dr. Uradu timely sought judicial review of KBML's order of probation in the Jefferson Circuit Court pursuant to the proper statutes and provided notice to the Kentucky Attorney General pursuant to KRS 418.075 as she was contesting the constitutionality of 201 KAR 9:081 § 9(4)(c). She asserted that the regulation was illegal and unconstitutionally applied and that KBML violated its administrative regulation. Dr. Uradu demanded that the regulation in question be declared illegal and that the order of probation be vacated. KBML responded to Dr. Uradu's petition, arguing that it had acted both in compliance with the constitutional and statutory provisions and within its statutory authority, as well as with the support of substantial evidence. It had not acted arbitrarily or capriciously, and it had not abused its discretion in its order. Dr. Uradu also sought a stay of the period of probation, to which KBML objected. Dr. Uradu filed a motion for summary judgment and to vacate KBML's order ...


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