JAMES L. SCHALLER, M.D. Appellant,
THE BOARD OF MEDICAL LICENSURE AND DISCIPLINE OF THE STATE OF DELAWARE Appellee.
Submitted: March 16, 2015
On Appeal from a Decision of the Delaware Board of Medical Licensure and Discipline.
James L. Schaller, M.D., pro se, Appellant.
Patricia Davis-Oliva, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the Delaware Board of Medical Licensure and Discipline, Appellee.
COOCH, R. J.
This appeal stems from a decision of January 7, 2014 by Appellee, the Board of Medical Licensure and Discipline of Delaware, to discipline James L. Schaller, M.D., a Board-licensed physician, for unprofessional conduct. Appellant has filed the instant appeal and requests the disciplinary ruling be vacated. Appellant has failed to show that the regulation was improperly adopted or otherwise unlawful. Appellant's additional claims are similarly without merit. Accordingly, the decision of the Board is hereby AFFIRMED.
II. FACTUAL AND PROCEDURAL HISTORY
Appellant, previously a Delaware licensed physician, entered a plea of nolo contendere and was subsequently convicted of Aggravated Assault with a Deadly Weapon Without an Intent to Kill in the State of Florida. Based on that conviction, the Delaware Department of Justice filed a disciplinary complaint with the Delaware Board of Medical Licensure and Discipline ("the Board") in September 2012, alleging that Appellant had engaged in "unprofessional conduct" pursuant to 24 Del. C. § 1731(b)(2). Section 1731(b)(2) states that unprofessional conduct includes "conduct that would constitute a crime substantially related to the practice of medicine." Crimes substantially related to the practice of medicine are enumerated in 24 Del. Admin. C. § 1700-15, or "Regulation 15."
An evidentiary hearing was held on May 10, 2013 pursuant to 29 Del. C. § 8735(v)(1)(d), and following the hearing, the hearing officer submitted his written recommendation to the Board of Medical Licensure and Discipline. The hearing officer rejected the State's argument that Appellant only had thirty days to challenge the regulation under 29 Del C. § 10141 and found that because the instant matter was a "case decision" under the APA, "a challenge to the adoption of a regulation which now provides the vehicle whereby the State may seek to discipline an individual medical license is timely if brought within the context of such proceedings." The officer declined to find Regulation 15 null and void, submitting that Appellant failed provide a "compelling reason" for him to do so.Moreover, the hearing officer noted that the authority to consider challenges was vested in this Court, and to assume that authority himself would likely run contrary to the intent of the General Assembly.
The hearing officer further found that when Appellant was convicted in Florida for aggravated assault with a deadly weapon without the intent to kill, "he stood convicted of a crime substantially related to the practice of medicine as the Delaware Board has defined the term." The hearing officer recommended that Appellant's medical license be placed on probation for eighteen months, that Appellant provide to the Board copies of the mental evaluations he was required to submit to the state of Florida, that Appellant complete six continuing education credits, three in the area of ethics and three in the area of anger management, and finally that Appellant pay a $2, 500 fine to the State.
The parties were given twenty days from the date of the hearing officer's proposed order to submit written exceptions, comments or arguments, but exceptions were not submitted by Appellant until approximately two months after the submission deadline had passed. Appellant's exceptions were accepted by the Board, despite the fact that they were submitted out of time. The Board considered the findings of fact and recommendations of the Hearing Officer and the exceptions submitted by Appellant and issued a Public Order on January 7, 2014.
The Board found that Regulation 15 was enacted properly and that there had been no violation of the Delaware Administrative Procedures Act. Further, the Board found that, pursuant to 24 Del. C. § 1731(b)(2) Appellant's conviction on the stated charge was "sufficient substantial evidence to find that Dr. Schaller engaged in conduct that constitutes a crime substantially related to the practice of medicine in Delaware." The Board adopted all but one of the Hearing Officer's recommendations. Rather than have Appellant provide records of the Florida mental evaluations, the Board determined that "a formal assessment of professional competency [was] warranted to protect the health and safety of present or prospective patients." Appellant filed the instant appeal on January 14, 2014.
On December 23, 2014, after briefing was complete and oral argument had been held, Counsel for Appellant moved to withdraw, citing irreconcilable differences between counsel and client. The Court granted the Motion as unopposed on February 16, 2015 and gave Appellant an extension of time to file any supplemental brief. Appellant filed his supplemental brief on March 16, 2015.
III. THE PARTIES' CONTENTIONS
A. Appellant's Contentions
i. The procedural restrictions of 29 Del. C. § 10141 do not bar Appellant's challenge of the validity of Regulation 15
Appellant argues that 29 Del C. § 10141(d) does not bar consideration of the validity of Regulation 15 because the instant action is an enforcement action under section 10141(c). 29 Del C. § 10141(c) provides that "when any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action." Appellant further submits that when read together, sections 10141(c) and (e) "authorize this Court to consider Appellant's defense" and "either enforce it or declare it unlawful." Section 10141(e) provides in pertinent part:
Upon review of regulatory action, the agency action shall be presumed to be valid and the complaining party shall have the burden of proving . . . that the regulation, where required, was adopted without a reasonable basis on the record or is otherwise unlawful. The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purses of the basic law under which the agency acted.
Appellant contends that Regulation 15 was adopted without the reasonable basis on the record that is required by 29 Del. C. § 10141(e).  Appellant further submits that lack of a reasonable basis on the record is "just one category of unlawfulness" under 10141(c).
ii. The Board failed to adhere to the requirements of the Delaware Administrative Procedures Act when enacting Regulation 15
Appellant argues that the Board failed to follow the requirements of the Delaware APA when promulgating Regulation 15. Appellant contends that Regulation 15 was adopted without the reasonable basis on the record that is required by 29 Del. C. § 10141(e).  Appellant argues that the Board held a discretionary public hearing but failed to ...