IN THE MATTER OF THE APPLICATION OF FREDERIC FEIT, M.D., LICENSE NO. 25MA05617400 FOR REINSTATEMENT OF LICENSURE TO PRACTICE MEDICINE IN THE STATE OF NEW JERSEY (BOARD OF MEDICAL EXAMINERS) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2475-15T2
IN THE MATTER OF THE APPLICATION OF
FREDERIC FEIT, M.D.
LICENSE NO. 25MA05617400
FOR REINSTATEMENT OF LICENSURE TO
PRACTICE MEDICINE IN THE STATE OF
NEW JERSEY
______________________________________
Argued December 6, 2017 – Decided August 2, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from the New Jersey State Board of
Medical Examiners.
Michael Chazen argued the cause for appellant
Frederic Feit, M.D.
Joshua M. Bengal, Deputy Attorney General,
argued the cause for respondent Board of
Medical Examiners (Christopher S. Porrino,
Attorney General, attorney, Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Megan K. Cordoma, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Frederic Feit is a physician. On September 26,
2006, he was indicted by a State Grand Jury on charges involving
fraudulent billing practices from January 15, 1998 to March 5,
2004. Specifically, Indictment No. 06-09-0108 charged Dr. Feit
with two counts of second degree health care claims fraud, N.J.S.A.
2C:21-4.3(a), and one count of second degree theft by deception,
N.J.S.A. 2C:20-4(a).
On December 24, 2008, Dr. Feit, represented by private
counsel, negotiated an agreement with the State through which he
pled guilty to third degree theft by deception, N.J.S.A. 2C:20-
4(a). In providing a factual basis for this crime, Dr. Feit
admitted that he engaged in fraudulent billing practices and
received improper payments from insurance companies in an amount
between $500 and $75,000. On April 2, 2009, the Criminal Part
sentenced Dr. Feit to a five-year term of probation, conditioned
on paying $578,978.12 in restitution1, a $15,000 fine, and other
mandatory fees and penalties.
Dr. Feit filed a direct appeal to this court challenging his
conviction based on: (1) an alleged inadequate factual basis; (2)
his attorney's failure to apprise him of the collateral
disciplinary ramifications his criminal conviction would have on
his license to practice medicine; (3) his obligation to pay
1
The court initially ordered Dr. Feit to pay restitution at the
rate of $100,000 per year. However, with the consent of the
Attorney General, the court subsequently reduced the amount of the
payments to $250 per month.
2 A-2475-15T2
restitution; and (4) the excessiveness of the fine imposed by the
court. We rejected these arguments and affirmed his conviction
and sentence in an unpublished opinion. State v. Frederic Feit,
No. A-4940-08 (App. Div. May 19, 2010) (slip op. at 1).
On February 25, 2009, the Attorney General filed an
Administrative Complaint with the State Board of Medical Examiners
(Board), seeking disciplinary sanctions against Dr. Feit based on
conduct that constituted "dishonesty, fraud, deception,
misrepresentation, false promise, and/or false pretense[,] in
violation of N.J.S.A. 45:1-21(b) . . . ." The disciplinary action
was also predicated on Dr. Feit's conviction of a crime that
involved "moral turpitude" or related adversely "to activity
regulated by the Board pursuant to N.J.S.A. 45:1-21(f)." The
Complaint also alleged that Dr. Feit engaged in "professional
misconduct" in violation of N.J.S.A. 45:1-21(e). The Attorney
General urged the Board to suspend or revoke Dr. Feit's medical
license, assess civil penalties and costs, including reimbursing
the State for the cost of these proceedings, and impose any other
relief the Board may deem just and equitable.
Represented by private counsel, Dr. Feit filed an answer in
which he admitted to pleading guilty to committing a criminal
offense, but refuted the specific disciplinary charges. Shortly
thereafter, the Attorney General filed a motion for Summary
3 A-2475-15T2
Decision urging the Board to decide this disciplinary action as a
matter of law pursuant to N.J.A.C. 1:1-12.5(b). After reviewing
the evidence presented by the parties and considering the oral
arguments from counsel, the Board granted the Attorney General's
motion. The Board found "undisputed" that Dr. Feit "knowingly
entered into a guilty plea and made sworn admissions that he was
guilty of theft by deception for a period in excess of six years."
The Board relied on Dr. Feit's "sworn admissions and [his]
conviction [to find that] that the conduct he pled guilty to
involved a crime of moral turpitude in violation of [N.J.S.A.]
45:1-21(f)."
In a Final Order Granting Summary Decision dated August 6,
2009, the Board suspended Dr. Feit's license to practice medicine
in this State for five years. The Board ordered that the first
two years were to be "an active suspension and the remaining three
. . . years to be stayed and served as a period of probation."
The Board conditioned the restoration of his medical license upon
Dr. Feit complying with seven clearly worded conditions. Of
particular relevance here, condition number four stated:
Any resumption of respondent's active practice
of medicine in New Jersey shall include
limitations on practice setting or billing
including at a minimum that respondent shall
either work in a setting where he has no
responsibility for billing or the imposition
of a Board approved billing monitor at
4 A-2475-15T2
respondent's expense. The parameters of any
limitations shall be determined by the Board
in its discretion at the time of resumption
of practice and may include any other
limitations deemed appropriate at the time of
reinstatement.
[(Emphasis added).]
On August 1, 2012, Dr. Feit made his first application for
the restoration of his medical license. He appeared before the
Board pro se. The Board referred the matter to the Preliminary
Evaluation Committee (Evaluation Committee). After considering
Dr. Feit's testimony and reviewing the records that formed the
basis for the suspension, the Evaluation Committee recommended
that the Board deny his reinstatement and expressed particular
concern about Dr. Feit's "lack of insight, remorse and
accountability regarding [his] criminal conviction . . . ." The
Evaluation Committee found his unwillingness to accept
responsibility for his criminal conduct indicated Dr. Feit was a
risk for recidivism.
The Evaluation Committee found particularly troubling the
following statements Dr. Feit made in an essay he wrote "for the
PRIME2 course dated August 30, 2011 . . . ." In this essay, Dr.
2
"PRIM-E" is an acronym for "Professional Renewal in Medicine
(through) Ethics." This course was "an educational intervention
for health care professionals who are having conflicts with their
licensing boards and are required to take refresher education in
5 A-2475-15T2
Feit stated: "[I]nsurance companies use their influence with the
medical [B]oard and the [A]ttorney [G]eneral to destroy physicians
treating intractable pain syndromes, rather than paying for
services[.]" The Evaluation Committee highlighted Dr. Feit's
testimony that he "could think of no ethical violation on [his]
part which would have led the Board to require [him] to take the
PRIME course."
In a letter dated September 23, 2011, addressed to William
V. Roerder, Esq., the Board's Executive Director, Dr. Russell L.
McIntyre, the Professor and Course Director, wrote:
Dr. Feit stated that in December, 2008, he
pled guilty to "theft by deception" . . . [and]
because of this, he understood why the medical
board had no choice but to rule accordingly
on the evidence of this plea. . . . And,
despite the fact that his attorney was "well
aware" that he never committed this billing
infraction, the attorney put him in a "state
of panic" by repeatedly telling him[,] "I
guarantee you will go to prison for seven
years if you don't take the deal."3
professional ethics and boundaries." PRIM-E was jointly offered
by the Center for Continuing and Outreach Education at Rutgers
University Biomedical and Health Sciences and Bio Ethics
Consulting, LLC. PRIM-E is no longer offered. PRIME-E:
Professional Renewal in Medicine [Through] Ethics, Rutgers Robert
Wood Johnson Medical School, http://prime.rwjms.rutgers.edu
(last visited July 23, 2018).
3
The Criminal Part denied Dr. Feit's petition seeking post-
conviction relief (PCR) based on ineffective assistance of trial
counsel. This court affirmed the Criminal Part's decision and
noted:
6 A-2475-15T2
Finally, the Evaluation Committee found that "the quality of
the medical records" Dr. Feit provided from his New York practice
showed he was "deficient in that examinations were not performed
prior to prescribing medication." In a letter dated April 15,
2013, the Board informed Dr. Feit that it had voted to accept the
Evaluation Committee's findings and recommendations to deny his
application for reinstatement. In reaching this decision, the
Board noted that it "could not fashion any plan for reinstatement
with limitations which would address [Dr. Feit's] lack of insight,
[The PCR judge] found defendant's claim of
innocence "not viable" because defendant's
admissions at the time of his guilty plea
constituted an acknowledgment that he sent in
the wrong code for his billings and "clearly
satisfied each element of theft by deception."
[The PCR judge] found the expert opinion
regarding the [billing] code to be irrelevant:
[A]ll that was required for the
defendant's conviction of theft by
deception was that the defendant
purposely deceived insurance
carriers by billing for services
that he fraudulently claimed he
performed on his patients. Simply
put, the defendant defrauded
insurance carriers by billing them
for procedures he claimed he
performed, but did not, in fact,
perform.
[State v. Frederic Feit, No. A-3120-14 (App.
Div. June 14, 2016) (slip op. at 4-5)
(emphasis added).]
7 A-2475-15T2
remorse, and accountability." The Board also adopted the
Evaluation Committee's decision to "not entertain another
application for reinstatement prior to one . . . year from the
date of this letter."
In a letter dated July 30, 2014 written by an attorney, Dr.
Feit again petitioned the Board to reinstate his medical license.
On October 22, 2014, Dr. Feit and his attorney appeared before the
Board's North Jersey Preliminary Evaluation Committee (North
Jersey Committee) "to discuss his petition for reinstatement."
The record shows that Dr. Feit continued to impugn the validity
of his criminal conviction. As an indication of the level of his
obduracy, we note that at the time Dr. Feit appeared before the
North Jersey Committee, this court had issued its opinion upholding
his criminal conviction and sentence. Despite this, Dr. Feit
claimed before the North Jersey Committee that he was the victim
of ineffective assistance of trial counsel:
Essentially, I was led by my prior attorney
to plead guilty to billing for
fluoroscopically guided injections. Upon that
poor advice of [c]ounsel that I followed that
I did plead guilty, and I recognized that the
Board took appropriate actions to discipline
a physician that violated billing regulations.
I take the responsibility for that. I am
remorseful for causing the Board this
necessity.
8 A-2475-15T2
At the end of the hearing before the North Jersey Committee,
Dr. Feit's counsel asked him the following questions:
Q. There [was] some concern previously when
you sought reinstatement of your license about
certain comments that you made regarding your
guilt and what was stated before the Judge and
the veracity of those statements. Do you
understand that in light of what happened in
your criminal case, that the Board indeed took
the proper action against you?
A. Yes. And I do not feel that the Medical
Board is in any way influenced by insurance
companies or other agencies.
Q. Those comments that you may have made at
your previous hearing, do you believe they
were the product of frustration over your
situation?
A. They were the product of frustration, yes.4
After evaluating the history of the case and the evidence of
compliance with the conditions of his probation, the North Jersey
Committee recommended that the Board offer Dr. Feit a "Consent
Order of Reinstatement" conditioned on being monitored by "a Board
approved practice monitor" who would review ten patient charts a
4
Despite these reaffirmations of criminal culpability, appellate
counsel included in the appendix the report of a physician retained
by Dr. Feit in support of his PCR petition before the Criminal
Part. This physician reviewed materials provided by counsel and
opined, "Dr. Feit's so-called guilty plea did not acknowledge any
guilty conduct. . . . He should not have pled guilty in the first
place." The PCR Judge found this physician's opinion "irrelevant."
State v. Frederic Feit, No. A-3120-14 (June 14, 2016) (slip op.
at 4).
9 A-2475-15T2
month, meet personally with Dr. Feit on a monthly basis, and
"submit quarterly reports to the Board."
In addition to reviewing Dr. Feit's billing procedures, the
practice monitor would also personally observe Dr. Feit perform
"any invasive procedure (including spinal blocks) . . . for a
minimum of 12 cases with a final report to the medical director
of the Board." These probationary conditions "would be in place
for a minimum of two years . . . until further order of the Board."
Dr. Feit would be permitted to perform invasive procedures without
supervision only after the medical director reviewed the reports
and issued written authorization.
The Board tabled the North Jersey Committee's recommendations
"due to serious concerns regarding [Dr. Feit's] quality of care
in performing invasive procedures and his absence [from the]
practice [of medicine] for the last five years." The Board
recommended that "Dr. Feit undergo a general assessment of his
competency to return to the practice of medicine inasmuch as [he]
has been out for five years . . . ." The Board made clear that
Dr. Feit "will not be able to perform interventional (invasive)
pain management."
In an order entered on January 13, 2016, the Board reinstated
Dr. Feit's license to practice medicine subject to "full
compliance" with a comprehensive plan that requires Dr. Feit to
10 A-2475-15T2
be under the complete supervision of a physician selected by the
Board's Medical Director, for a minimum of three months. The
scope of the Board's supervisory conditions covers every aspect
of Dr. Feit's practice, from billing records to diagnosing a
patient's medical condition and subsequent treatment plan. To
implement this monitoring plan, the Board gave the supervising
physician unfettered access to every aspect of Dr. Feit's medical
practice; the supervising physician is required to personally
observe the administration of all treatment plans, especially
those cases that would require invasive procedures. The
supervising physician also has the responsibility to report any
impropriety and offer an opinion concerning when Dr. Feit would
be ready to resume practicing medicine without supervision.
Finally, the Board ordered Dr. Feit to be solely responsible
"for any costs or expenses" associated with the supervising
physician. However, Dr. Feit cannot structure his billing
procedures to pass the cost associated with this supervisory
program to his patients in the form of medical fees. Finally, Dr.
Feit may petition the Board for leave to be released from this
supervisory program after he has treated a minimum of thirty
patients who received "interventional pain management."
Against this record, Dr. Feit now appeals arguing the Board
abused its discretion when it arbitrarily and capriciously imposed
11 A-2475-15T2
this overly broad supervisory program as a condition of his
reinstatement to practice medicine. Dr. Feit argues that the
absence from the practice of medicine for five years alone, without
any evidence to question his medical judgment, is facially
insufficient to support these unwarranted, highly intrusive
restrictions on his ability to practice medicine. He also argues
that there is no legal authority in either the Uniform Enforcement
Act, N.J.S.A. 45:1-1 to -55, or the Medical Practice Act, N.J.S.A.
45:9-1 to -27.9, to support the Board's decision to impose these
restrictions on his license to practice medicine. Finally, without
citing to evidence in the record for support, appellate counsel
claims: "One can only imagine that most every physician, barring
the possibility of a family member in the practice, will be
reluctant, if not outright against, participating in such
supervision."5
The Attorney General argues that a license to practice
medicine is "always subject to reasonable regulation[s] . . . ."
5
Dr. Feit points out that the Board did not condition the
restoration of his medical license upon retaining a billing
monitor. According to Dr. Feit, this indicates the arbitrary
nature of the Board's decision. The Attorney General attributes
this omission in the Board's January 13, 2016 Order as "a
ministerial error." Despite this acknowledgement, the Attorney
General did not file a motion to supplement the appellate record
to include a revised Final Order from the Board correcting this
alleged ministerial error.
12 A-2475-15T2
Hirsch v. N.J. State Bd. of Med. Exam'rs, 252 N.J. Super. 596, 604
(App. Div. 1991) (quoting In re Polk License Revocation, 90 N.J.
550, 570 (1982)). In the course of exercising its discretionary
authority, the Board's decisions carry a presumption of validity
and reasonableness which appellant has the burden to overcome.
Bergen Pines Cnty. Hosp. v. Dep't of Human Servs., 96 N.J. 456,
477 (1984). Here, the Board's decision to restrict Dr. Feit's
medical license in this fashion was based on Dr. Feit's more than
five-year absence from the practice of pain management, his chosen
area of expertise.
Our standard of review of a State's administrative agency is
well-settled:
An administrative agency's final quasi-
judicial decision will be sustained unless
there is a clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks
fair support in the record. On appellate
review, the court examines:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law;
(2) whether the record contains substantial
evidence to support the findings on which the
agency based its action; and
(3) whether in applying the legislative
policies to the facts, the agency clearly
erred in reaching a conclusion that could not
reasonably have been made on a showing of the
relevant factors.
13 A-2475-15T2
[Allstars Auto Grp., Inc. v. N.J. Motor
Vehicle Comm'n, ____N.J. ____, ____ (2018)
(slip op. at 15-16) (citations omitted).]
With these standards in mind, we conclude the record supports
the restrictions imposed by the Board on Dr. Feit's practice of
medicine dedicated to pain management. The record shows the Deputy
Attorney General who appeared before the North Jersey Committee
of the Board asked Dr. Feit a series of questions designed to
create a record of information relevant to his ability to resume
his specialized pain management practice:
Q. Have you given any thought to what, if any,
reeducation you might need before entering a
solo practice?
A. Well, as a pain specialist, I have spent a
huge amount of time studying pain management
and staying as abreast as I can without being
able to clinically see patients. But I spend
quite a bit of time on the computer. If I
recall, the Pri-Med course, I think I've taken
virtually every CME and article they have
dealing with chronic and intractable pain.
. . . .
Q. Other than prescriptions for painkillers,
for want of a better word, what other types
of therapy or modalities would you use?
A. Well, of course, there was the paraspinal
nerve blocks, physical therapy modalities,
such as electric stim, galvanic stimulation,
or interferential, ultrasound, hydrocolator
packs, TENS sometimes. Some people respond
very well to TENS, some don't respond at all.
Fluidotherapy, paraffin bath, I can mention
many different physical therapies. They're
14 A-2475-15T2
started on an active assisted range of motion
exercises. They're taught head and neck
exercises, William flexion exercises. Many
different protocols, depending on the injuries
they have, to start on a self-program of
strengthening and reconditioning.
I tell them if they're going to need a knee
replacement or hip replacement they should do
their rehab before they have the surgery so
they're in the best shape to recover.
At this point, the following exchange took place between Dr. Feit
and a physician-member of the North Jersey Committee of the Board:
Q. You can appreciate medicine is . . . a
component of a psychomotor modality, and you
haven't practiced in five years. I'm well
aware and I have no doubt you've taken all the
academic courses and CME credits, but when you
start seeing a patient again and you start
doing the blocks, do you feel comfortable
after five years just --
A. 100 percent, sir. I've never had a
complication or an issue with an injection
I've given in my life.
Q. But you haven't been out in five years and
then start[ing] . . . up again.
A. That's correct. But comparing it to how
when I first started my practice, I have
infinite more knowledge than when I first
started practice.
Q. Okay.
We consider this colloquy as an indication of the Board's
deep concern for Dr. Feit's ability to resume the practice of this
specialized area of medicine after more than a five-year absence
15 A-2475-15T2
from day-to-day clinical contact with patients. Dr. Feit's
optimistic assessment of his ability to resume his medical practice
without missing a beat was obviously not shared by the medical
professional members of the Board.
In In re Fanelli, our Supreme Court found guidance in dealing
with this difficult question in Haley v. Medical Disciplinary
Board, in which the Supreme Court of Washington stated:
The daily practice of medicine concerns life
and death consequences to members of the
public. They have an understandable interest
in the maintenance of sound standards of
conduct by medical practitioners. The public
has a right to expect the highest degree of
trustworthiness of the members of the medical
profession.
[In re Fanelli, 174 N.J. 165, 178-79 (2002)
(quoting Haley v. Medical Disciplinary Bd.,
818 P.2d 1062, 1068 (Wash. 1991)).]
The Board's decision to require Dr. Feit to retain, at his
expense, a supervising physician who will personally observe and
monitor how he clinically interacts with his patients and performs
highly intrusive and potentially dangerous medical procedures, is
rationally based on his more than five-year hiatus from the
practice of medicine and direct clinical contact with patients.
The conditions imposed by the Board in its January 13, 2016 Order
of Reinstatement are reasonable and consistent with the Board's
regulatory powers and responsibilities to the public.
16 A-2475-15T2
Affirmed.
17 A-2475-15T2