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Clemetson v. State Board of Licensure In Medicine

Superior Court of Maine, Cumberland

November 7, 2017

HARLES D. CLEMETSON, M.D., Petitioner,
v.
STATE OF MAINE BOARD OF LICENSURE IN MEDICINE and STATE OF MAINE, Respondents.

          ORDER ON PETITIONER'S RULE 80C APPEAL

          Lance H. Walker, Justice.

         Before the Court is Petitioner's Rule 8OC appeal of the decision of the State of Maine Board of Licensure in Medicine ("the Board") that places certain restrictions on Petitioner's license to practice medicine for a probationary period of five years pursuant to 32 M.R.S. § 3282-A(2)(P) and 10 M.R.S. § 8003(5)(A-1). For the reasons discussed below, the Court denies the petition.

         I. Background

         The genesis of this case is a decision and order of the Board issued on July 11, 2013, in which the Board imposed conditions on Petitioner's license after finding Petitioner had engaged in unprofessional conduct. (Pet'r's Compl. Ex. A 14; Resp't's Br. 2.) On March 9, 2016, the Board issued another decision and order in which it found Petitioner had violated the conditions contained in the 2013 order. (Pet'r's Compl. Ex. A 5.) As a sanction for those violations, the Board imposed a censure and a five-year probationary period during which Petitioner was prohibited from maintaining his own private practice and was ordered to close his practice within 90 days of the effective date of the order. (Id.) Further, Petitioner was limited to practicing in a setting with other psychiatrists and was required to engage a Board-approved practice monitor. (Id.) After the hearing leading to this order, Petitioner requested a stay of the Board's decision, but he withdrew his request prior to the Board's deliberation. (Id. at 4-5.) In March 2016, Petitioner secured employment with Protea Integrated Health and Wellness, and he informed the Board he had engaged a practice monitor. (Id. at 5-6.) However, the Board was never able to confirm the practice monitor's willingness to serve, and Protea closed for business before Petitioner was to begin his employment there. (Id. at 6, 12.)

         On April 20, 2016, Petitioner asked the Board to stay the March 9 decision, and he filed an appeal of the Board's decision in the Superior Court on the same day. (Id. at 6.) The Board informed Petitioner that it did not have jurisdiction to act on his request for a stay while his appeal was pending. (Id. at 6-7.) On July 6, 2016, Petitioner's appeal was dismissed for failure to comply with the briefing schedule. (Id. at 7.) He filed a motion for relief from judgment on July 15, 2016, but he withdrew his motion on August 15, 2016, thus ending his appeal of the March 9 decision and order. (Id. at 7, 11; Resp't's Br. 5.)

         Although he was reminded by the Board that he was required to close his practice by June 7, 2016, Prescription Monitoring Program Reports indicated he was issuing prescriptions through July 16, 2016. (Pet'r's Compl. Ex. A 7-8.) When the Board requested he confirm his compliance with the terms of his probation on July 1, 2016, Petitioner replied that he planned to '"comply with most components'" of the order, but he did not immediately confirm his compliance at that time. (Id.) On July 25, 2016, Petitioner supplemented his response to state that he had closed his practice and given notice to his patients. (Id. at 8.) On August 12 and August 17, 2016, Petitioner requested from the Board permission to continue writing prescriptions for his patients. (Id. at 10-11.) His request was repeatedly denied. (Id.)

         The Board ultimately held another hearing to determine if Petitioner had violated the terms of the March 9, 2016 order by continuing to practice after June 7, 2016. In his defense, Petitioner argued that he believed his appeal in the Superior Court stayed the effective date of the Board's order. (Id. at 11.) The Board found this argument incredible, as Petitioner was clearly aware of the need to secure a stay because he had requested one prior to the Board's deliberations; further, he had not actually requested a stay in his appeal to the Superior Court. (Id. at 11-12.) At his hearing, Petitioner also testified that he believed the effective date of the order was 90 days after the 30-day expiration date for appeal, which would have been July 9, 2016. (Id. at 12.) The Board countered that multiple communications to Petitioner stated he was required to close his practice by June 7, 2016. (Id.) Petitioner testified that he last saw patients in his private practice on July 25, 2016, and that he did not write any prescriptions after that date. (Id. at 9.)

         The Board issued the decision and order currently under review on February 15, 2017. In its decision, the Board noted that Petitioner has been disciplined multiple times in the past, including a finding of unprofessional conduct in 2001, which led to a probationary period that Petitioner violated in 2002, as well as the disciplinary action in 2013, the violation of which eventually led to the current appeal. (Id. at 13-14.) The Board found that by continuing his practice after June 7, 2016, Petitioner had not complied with the March 9 order and conditions of probation. (Id. at 15.) The sanctions imposed by the decision are as follows:

a. A warning;
b. Partial payment of the actual expenses of hearing, in the amount of $1, 000 in hourly costs of hearing officer services, due within 90 days of the first date of his employment; and
c. Conditions of probation, which shall be in effect for five years from the effective date of the Decision and Order, as follows:
i. The Licensee is prohibited from opening, operating or maintaining his own private medical practice;
ii. The Licensee is limited to practicing medicine in a setting pre-approved by the Board with at least one other psychiatrist who is licensed to practice medicine in Maine, and who must also be pre-approved by the Board;
iii. Before commencing the practice of medicine in a setting with another psychiatrist, the Licensee must identify a practice monitor and receive the Board's approval for such monitor. The Licensee must ensure that the practice monitor, once approved by the Board, provides reports to the Board every three months from the date upon which the Licensee begins practicing in a setting with another psychiatrist. The reports must include information requested from the monitor by the Board ...

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