Submitted: August 22, 2014
Upon Appellant's Appeal of The Board of Medical Licensure and Discipline of the State of Delaware's Decision.
Michele D. Allen, Esquire, Law Offices of Michele D. Allen, LLC, 724 Yorklyn Road, Suite 310, Hockessin, Delaware 19707; Attorney for Appellant.
Patricia Davis Oliva, Esquire, Delaware Department of Justice, 102 W. Water Street, Dover, Delaware 19904; Attorney for Appellee.
OPINION AND ORDER
Ferris W. Wharton, Judge
Dr. Albert El-Roeiy ("Appellant") filed a Notice of Appeal on February 5, 2014 requesting judicial review of a decision of the Board of Medical Licensing and Discipline ("Board") that became final on January 7, 2014. Appellant contends that the discipline imposed by the Board was in violation of his due process rights because he did not receive notice of the Rule to Show Cause hearing and, therefore, did not appear. Additionally, Appellant asserts that the evidence relied upon by the Board is insufficient to support its conclusion and that the Board erred as a matter of law in imposing disciplinary action.
In considering the appeal, the Court must determine whether the Board's decision to impose disciplinary action against Appellant is supported by substantial evidence and free of legal error. Upon consideration of the pleadings before the Court and the record below, the Court finds that there is substantial evidence to support the Board's ruling and the Board did not err in reaching its decision. Accordingly, the Board's decision is AFFIRMED.
II. FACTUAL AND PROCEDURAL CONTEXT
On June 30, 2010, the Delaware General Assembly passed 24 Del. C. § 1720(i) which required that medical doctors licensed prior to 2007 submit fingerprints to the Board for a criminal background check before January 1, 2012 ("Fingerprint Statute"). In a letter dated June 13, 2013 ("Letter") from the Division of Professional Regulation ("Division") to Appellant, which was sent via certified and first-class mail to the Appellant's address of record, the Division indicated that the Board's records showed that Appellant had not complied with the Fingerprint Statute by the statutory deadline.
The Letter also provided that "[a] Rule to Show Cause hearing to address this non-compliance has been scheduled in this matter on July 31, 2013 at 10:00 a.m. in the Division's offices in Conference Room C, 861 Silver Lake Blvd., Dover, DE" and that Appellant may explain his non-compliance, be represented by counsel, testify and call witnesses, introduce evidence and request that the Division issue subpoenas. The Letter explained that the presiding hearing officer may issue a recommendation for disciplinary action "up to and including revocation, against your license. If the Board agrees that discipline is in order, the Division will report such disciplinary action to the National Practitioner/Healthcare Integrity and Protection Data Bank." The Letter concluded with a provision that gave Appellant until July 1, 2013 to comply with the Fingerprint Statute or to relinquish his medical license by July 19, 2013 to conclude the matter without a hearing or further action. Appellant took no action with regard to the Letter.
A. The Hearing and Hearing Officer's Recommendations
The Rule to Show Cause hearing was held on July 31, 2013 before a hearing officer and Appellant did not appear at the hearing. A paralegal from the Division testified that she had sent the Letter containing notice of the Rule to Show Cause hearing on June 13, 2013 by certified and first-class mail. She testified that she sent the Letter to Appellant's address of record contained in the Division's database, that the addresses are self-reported by the doctors and, for that reason, the Division presumes the addresses provided are the best point of contact. The paralegal testified that the certified mail green card was returned with "addressee unknown" printed on it but that the first-class mail was not returned. After accepting testimony from one witness from the Division, the hearing officer concluded the hearing.
In a letter dated August 13, 2013 ("Recommendation Letter"), which was sent via first-class mail to Appellant's address of record, the hearing officer recommended that the Board take disciplinary action against Appellant for his non- compliance with the Fingerprint Statute. Specifically, in the Recommendation Letter, the hearing officer concluded that Appellant received proper notice of the hearing because the law presumes that mail properly addressed and stamped has been delivered to the intended recipient and the first-class mail was not returned to the Division. Additionally, the hearing officer found that Appellant engaged in "unprofessional conduct" pursuant to 24 Del. C. § 1731 (b)(11) and "general misconduct" under Board Regulation 17.5.1 because the regulation includes "acts prohibited by policies expressed in legislation."
The hearing officer considered the aggravating and mitigating factors pursuant to Board Regulations 17.14 and 17.15. The hearing officer considered as a mitigating factor that Appellant had no prior discipline against him and considered as aggravating factors that that the burden to comply with the Fingerprint Statute was minimal, that Appellant is charged with having knowledge of the law and regulations governing his medical license and that Appellant did not appear for the hearing or have any communication with the Division prior to the hearing.
In accordance with the guidelines set forth in Board Regulation 17.5.1 for the punishment for "General Misconduct, " the Hearing Officer recommended that the Board issue a letter of reprimand for failing to comply with the Fingerprint Statute; that the Board order Appellant to comply with the Fingerprint Statute within sixty (60) days of the Board's final Order; that a $1, 000 civil fine be imposed made payable within sixty (60) days of the Board's final order; that if Appellant fails to comply with the Board's Order his license should be suspended until he complies; and that the Order of the Board constitute formal disciplinary action reportable to practitioner databases. The Recommendation Letter directs that "[i]f you have any exceptions, comments or arguments regarding the enclosed recommendation, you must file them within twenty (20) days of the date of this letter pursuant to 29 Del. C. § 8735(v)(1)d." After receiving the Recommendation Letter, Appellant completed the fingerprint requirement to comply with the Fingerprint Statute.
B. The Board's Written Decision
In a letter dated November 12, 2013 ("Board's Order"), sent via certified and first-class mail to the Appellant's address of record, the Board's Order imposed disciplinary action against Appellant for his failure to timely comply with the Fingerprinting Statute. In rendering a decision, the Board adopted the hearing officer's findings of fact, conclusions and recommendations. The Board Ordered the following:
1. Dr. El-Roeiy is issued a letter of reprimand for failing to comply with the clear mandate of 24 Del. C. § 1720(i) of the Medical Practice Act; and
2. Dr. El-Roeiy must pay a $1000 fine within 30 days of the date of this Order …and
3.Dr. El-Roeiy must come into compliance with 24 Del. C. § 1720(i) within sixty days of ...