Ronnie C. Parker, D.O. v. Kentucky Board of Medical Licensure ( 2022 )

RENDERED: MAY 6, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0671-MR
RONNIE C. PARKER, D.O. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 20-CI-002659
KENTUCKY BOARD OF MEDICAL
LICENSURE APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Ronnie C. Parker, D.O., appeals from the May 14, 2021, order
of the Jefferson Circuit Court affirming the administrative order probating his
medical license. Following a careful review of the record, briefs, and law, we
affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Ronnie C. Parker is a doctor of osteopathy licensed to practice in
Kentucky and Ohio. Faced with personal challenges, including a divorce and his
child’s diagnosis with a rare form of cancer, Dr. Parker drank excessively, which
led to two arrests for driving under the influence (DUI). Dr. Parker self-reported
these incidents to the Kentucky Physicians Health Foundation (the “Foundation”)
and entered its two-year abstinence program.
After the Ohio Medical Board (the “Ohio Board”) learned of Dr.
Parker’s DUIs, it required that he participate in its evaluation program. Dr. Parker
declined, however, because he was already participating in the Foundation’s
program. Nevertheless, the Ohio Board issued a “Non-Permanent revocation” of
his license for failure to participate in its program.
The discipline against Dr. Parker’s Ohio license triggered an
investigation by the Kentucky Board of Medical Licensure (KBML). In accord
with 201 KAR1 9:081, Section 9(4)(c)(1),2 which required action against a
Kentucky license when action against a license from another state was taken, the
KBML filed its own complaint against Dr. Parker. The KBML then moved for
1
Kentucky Administrative Regulations.
2
This section was amended and is now 201 KAR 9:081, Section 9(2)(c).
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“Summary Disposition” pursuant to 201 KAR 9:081, Section 9(6).3 After the
hearing officer entered his findings of facts, conclusions of law, and order, both Dr.
Parker and the KBML filed exceptions. Ultimately, the KBML entered an order
probating Dr. Parker’s license for five years.
Dr. Parker petitioned the Jefferson Circuit Court for review of the
KBML’s probation order. After the matter was fully briefed and submitted for
final adjudication, the Jefferson Circuit Court entered its order affirming the
KBML’s order of probation against Dr. Parker’s license. This appeal followed.
STANDARD OF REVIEW
Concerning a court’s review of the decision of an administrative
agency – here, the KBML – it is well-settled that:
[t]he basic scope of judicial review of an administrative
decision is limited to a determination of whether the
agency’s action was arbitrary. Bobinchuck v. Levitch,
[380 S.W.2d 233 (Ky. 1964).] If an administrative
agency’s findings of fact are supported by substantial
evidence of probative value, they must be accepted as
binding and it must then be determined whether or not
the agency has applied the correct rule of law to the
facts so found. [Kentucky Unemployment Ins. Comm’n
v. Landmark Cmty. Newspapers of Kentucky, Inc., 91
S.W.3d 575 (Ky. 2002).] The Court of Appeals is
authorized to review issues of law involving an
administrative agency decision on a de novo basis.
[Aubrey v. Office of the Att’y Gen., 994 S.W.2d 516 (Ky.
App. 1998).] In particular, an interpretation of a
3
This section was amended and is now 201 KAR 9:081, Section 9(2)(e).
-3-
statute is a question of law and a reviewing court is
not bound by the agency’s interpretation of that
statute. Halls Hardwood Floor Co. v. Stapleton, [16
S.W.3d 327 (Ky. App. 2000).]
Liquor Outlet, LLC v. Alcoholic Beverage Control Bd., 141 S.W.3d 378, 381 (Ky.
App. 2004) (emphases added).
ANALYSIS
On appeal, Dr. Parker argues the KBML failed to comply with KRS4
13B.090(7), which states, in pertinent part, “[t]he agency has the burden to show
the propriety of a penalty imposed[.]” Dr. Parker asserts that this requires the
KBML to first name the penalty that it seeks to impose; however, that exact line of
argument was dispelled in Kentucky Board of Medical Licensure v. Strauss, 558
S.W.3d 443 (Ky. 2018).
In Strauss, the hearing officer recommended that the KBML find Dr.
Strauss “guilty of the statutory violations set forth [] from the . . . Complaint and
take any appropriate action against his license.” Id. at 451. Similarly, herein, the
hearing officer recommended that the KBML “determine that the licensee, [Dr.
Parker], violated the provisions of KRS 311.595(17) . . . [and] take any appropriate
action against his license.”
In Strauss, the Supreme Court of Kentucky held:
4
Kentucky Revised Statutes.
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although minimal, this language does in fact
recommend a penalty, albeit of unspecified nature.
As noted, KRS 311.591 gives the Board, acting through
the hearing panel, three options when acting on a
complaint, two of which apply if violations are found.
The first of those two options, KRS 311.591(7)(b), is to
find a violation but “not impose discipline because the
panel does not believe discipline to be necessary under
the circumstances[.]” The hearing officer in Strauss’s
case clearly recommended that discipline be imposed
“against his license,” KRS 311.591(7)(c), leaving to
the hearing panel what was appropriate in the
circumstances. So, at some level, the hearing officer did
recommend a penalty (some action should be taken
against Strauss’s medical license) but he did not do what
Strauss insists he is required to do – recommend a
specific penalty.
....
KRS 13B.110(1) requires a hearing officer to include in
his or her recommended order “findings of fact,
conclusion[s] of law, and recommended disposition of
the hearing, including recommended penalties, if any.”
....
As noted, if the legislature wanted to make penalty
recommendations mandatory, it would simply have
omitted “if any.”
....
In sum, a hearing officer’s recommended order must
recommend a disposition of the administrative
matter, but it need not recommend a penalty. The
hearing officer in this case did not err in recommending
that the Board “take any appropriate action against
[Strauss’s] license for those violations” reflected in his
Recommended Order.
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558 S.W.3d at 451-53 (emphases added). Likewise, the hearing officer here did
not err in recommending a disposition without recommending a penalty.
Furthermore, as in Strauss, the hearing officer herein, “[a]fter detailing the
evidence supporting his factual findings . . . concluded that the [KBML] had met
its burden to prove violations of KRS Chapter 311 by a preponderance of the
evidence. KRS 13B.090(7).” 558 S.W.3d at 446.
Dr. Parker next contends 201 KAR 9:081, Section 9(4)(c), is
unconstitutional and illegal. The provisions of KRS 418.075 require the Attorney
General to be notified of any constitutional challenge to a statute. Dr. Parker fails
to specify how and when the Attorney General was notified of his constitutional
challenge. Moreover, in reviewing the record, we do not see that either the
complaint or the notice of appeal was served on the Attorney General. Compliance
with KRS 418.075 is mandatory; appellate courts demand strict compliance with
its provisions. A.H. v. Louisville Metro Gov’t, 612 S.W.3d 902 (Ky. 2020). Thus,
our review of the statute’s constitutionality is prohibited. Id.Nevertheless, we may still address whether 201 KAR 9:081, Section
9(4)(c), was otherwise illegal. Our court analyzed this section prior to its
amendment, holding:
Our review of the statutory and case law convinces us
that 201 KAR 9:081 § 9(4)(c) invalidly exceeds the
grant of authority set forth in KRS 311.595(17) in that
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the regulation requires KBML to mandatorily impose
the same substantive sanction imposed in another
state, while the statutory language is permissive and
therefore grants discretion to KBML. If such
sanctions are to be mandatorily applied, it is within the
province of the General Assembly to amend KRS
311.595(17) to make that the law in the Commonwealth.
But until then, the portion of the regulation requiring
KBML to impose the same sanction is invalid and
unenforceable. Based upon this holding, we need not
address the other issues Uradu raised in her brief,
although we note that generally we find no issue with the
summary disposition procedure if used in the appropriate
case.
Uradu v. Kentucky Bd. of Med. Licensure, No. 2018-CA-000097-MR, 2019 WL
847696, at *5 (Ky. App. Feb. 22, 2019) (emphases added).5
The hearing officer herein examined the effect of Uradu on the
KBML and determined that the KBML “must independently determine the
sanction that should be imposed for this violation” – which is exactly what
happened. Dr. Parker was allowed to file a written response to the KBML’s
petition and was further afforded a hearing at which he testified and was permitted
to proffer evidence. He was also later allowed the opportunity to – and did – file
exceptions. The KBML took these into consideration prior to entering its order
probating Dr. Parker’s license.
5
This unpublished opinion is cited pursuant to Kentucky Rule of Civil Procedure 76.28(4)(c) as
illustrative of the issue before us and not as binding authority. However, as it was considered by
the hearing officer in his order, it was binding on the KBML, as noted by the officer in his
findings of fact, conclusions of law, and recommended order.
-7-
The KBML’s order of probation, unlike the Ohio Board’s order which
revoked Dr. Parker’s license without indicating if or when it would be reinstated,
was for a period not to exceed five years. Thus, any illegality of former 201 KAR
9:081, Section 9(4)(c) – which required the KBML “at a minimum” to “impose the
same substantive sanctions” – did not taint the process or outcome of the KBML’s
investigation or action against Dr. Parker’s license. Accordingly, we must affirm.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Fox DeMoisey Leanne K. Diakov
Louisville, Kentucky Louisville, Kentucky
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