L. J. Mazin, D.D. S. v. BPOA, et al. (Complete Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Laurence J. Mazin, D.D.S., Petitioner : : : v. : : Bureau of Professional and : Occupational Affairs; Basil L. Merenda, : in his official capacity as Commissioner : of the Bureau of Professional and : Occupational Affairs and Member of : the State Board of Dentistry; State : Board of Dentistry; Lisa M. Burns, in : her capacity as Administrator of the : State Board of Dentistry; Susan E. : Calderbank, D.M.D. (Chairperson), : Mariellen Brickley-Raab, R.D.H. : (Secretary), Howard Tolchinsky, : D.M.D., Sara Rajca, Esq., Thomas W. : Braun, D.M.D., Ph.D., Richard H. : Cutler, D.M.D., Douglas P. Marinak, : D.D.S., John V. Reitz, D.M.D., : Allan M. Horwitz, Esq., Gwendolyn M. : White, in their official capacities as : Members of the State Board of : Dentistry; and Veasey B. Cullen, Jr., : D.M.D., in his capacity as former : Chairperson of the State Board of : Dentistry, : Respondents : BEFORE: No. 321 M.D. 2007 Submitted: November 21, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: February 20, 2008 Lawrence J. Mazin, D.D.S. (Dr. Mazin) petitions for review from an order of the State Board of Denistry (Board) which rejected the proposed adjudication and order of the Hearing Examiner and imposed a civil penalty in the amount of $900.00 because of Dr. Mazin s failure to complete 30 credit hours of continuing education (CE) during the April 1, 2003, to March 31, 2005, biennial period.1 On August 29, 2005, the Pennsylvania Department of State (Department) issued an order to show cause why the Board should not suspend, revoke or otherwise restrict Respondent s [Dr. Mazin s] license, or impose a civil penalty : Count One .... 6. On or about March 2005, Respondent [Dr. Mazin] submitted online his renewal application for licensure for the biennial renewal period of April 1, 2005 through March 31, 2007. 7. On the renewal Respondent [Dr. Mazin] responded yes to the continuing education question: Have you met your current CE requirements? 8. On March 29, 2005, Respondent [Dr. Mazin] requested a two-month extension of the deadline for compliance with his continuing education requirements for the 2003 to 2005 biennium. 1 On July 5, 2007, Dr. Mazin also filed a petition for review against the Board and the Bureau of Professional and Occupational Affairs (Bureau) in this Court s original jurisdiction. On August 23, 2007, Dr. Mazin filed an amended petition for review. The Board and the Bureau filed preliminary objections to the amended petition. On November 7, 2007, this Court stayed the proceedings in our original jurisdiction pending the resolution of the present matter in this Court s appellate jurisdiction. 2 9. Respondent [Dr. Mazin] did not provide the required verification of his medical condition that necessitated his request in paragraph 8 until June 2005; and therefore, his request was denied. (emphasis added). .... 11. Respondent [Dr. Mazin] has not submitted verification of completion of any approved continuing education credits obtained during the reporting period of April 1, 2003 to March 31, 2005 . . . . (emphasis added). 12. Based upon the forgoing Factual Allegations, the Board is authorized to suspend, revoke or otherwise restrict Respondent s [Dr. Mazin s] license or impose a civil penalty . . . in that Respondent [Dr. Mazin] failed to submit proof of completion of at least 30 credit hours of continuing education in acceptable courses of which no more than 50% of the required courses were obtained through individual study during the 2003 to 2005 biennial period. (emphasis added). .... Order to Show Cause, August 29, 2005, Paragraphs 6-9 and 11-12 at 2-3; Reproduced Record (R.R.) at 00006. Dr. Mazin responded to the order to show cause and asserted new matter: 6. Denied. By way of further answer, Dr. Mazin states that the . . . Board extended the expiration of his and all dental board licenses until June 30, 2005, and that on May 28, 2005 or May 29, 2005, he submitted online his renewal application for licensure for the biennial renewal period of July 1, 2005 through March 31, 2007. 7. Admitted. . . . Dr. Mazin responds that before answering the continuing education question in the online renewal form, he read the section of the online renewal form headed Please Note: CONTINUING EDUCATION and believed that the instructions in that 3 section of the renewal form required him to answer yes to the continuing education question . . . . .... 9. Denied. . . . the Board received verification of Dr. Mazin s medical condition on May 31, 2005 . . . at no time was Dr. Mazin informed that there was a deadline for the Board s receipt of verification of Dr. Mazin s medical condition; and Dr. Mazin s office repeatedly phoned the Board in May 2005 to find out whether the Board had received verification of Dr. Mazin s medical condition from Dr. Mazin s surgeon but was never able to reach a human being . . . . (emphasis added). .... 11. Denied. . . . Dr. Mazin states that on May 28, 2005 or May 29, 2005, he submitted an online license renewal application and truthfully responded yes to the question Have you met your current CE requirements? . . . . New Matter .... 22. On February 24, 2005, Dr. Mazin suffered a retinal detachment and had emergency surgery . . . . 23. Approximately three weeks after the initial retinal surgery, Dr. Mazin s treating surgeon discovered that Dr. Mazin had suffered a retinal tear in another portion of his eye. Further surgery was scheduled for March 24, 2005, and in the meantime Dr. Mazin was required to remain face down at all times, apply frequent eye medications, and not read. .... 27. On March 29, 2005 . . . Dr. Mazin wrote to the Board explaining that he had completed fifteen hours of continuing education, had purchased individual-study courses to complete the remaining required hours, and was unable to complete those courses by March 31 because of illness and hardship. He asked for an additional two months to complete the remaining fifteen hours, to June 1, 2005, almost a full month before the expiration of his license on June 30, 2005. (emphasis added). .... 4 44. Dr. Mazin complied with the Board s instructions and with the laws and regulations of the Commonwealth of Pennsylvania pertaining to renewal of dental licenses. Despite such compliance, the Board has initiated unfounded disciplinary proceedings against Dr. Mazin. At no time before commencing these proceedings did the Board inform Dr. Mazin that his license would be in jeopardy or he would be subject to disciplinary proceedings if he did not (a) submit verification of his medical condition by a specific date or (b) submit documentation supporting completion of the required continuing education courses. (emphasis added). Answer To Order To Show Cause, September 27, 2005, Paragraphs 6-7, 9, 11, 2223, 27, and 44 at 1-6 and 12; R.R. at 00017-00021 and 00028. On October 11, 2005, the Department issued an amended order to show cause: Count One 9. Respondent [Dr. Mazin] did not provide the required verification of his medical condition that necessitated his request in paragraph 8 [for a two month extension] until May 31, 2005, 10:53 a.m. (emphasis added). .... Count Two .... 14. As of March 31, 2005 Respondent [Dr. Mazin] had not completed thirty (30) credit hours of approved continuing dental education. (emphasis added). 15. Based upon the foregoing Factual Allegations, the Board is authorized to suspend, revoke or otherwise restrict Respondent s [Dr. Mazin s] license, or impose a civil penalty under 63 P.S. Section 123.1(a)(3), in that Respondent submitted a false or deceptive biennial renewal to the Board. Count Three 5 .... 17. Based upon the foregoing Factual Allegations . . . Respondent [Dr. Mazin] failed to complete thirty (30) hours of continuing dental education during April 1, 2003 to March 31, 2005 biennium. (emphasis added). Amended Order To Show Cause, October 11, 2005, Paragraphs 9, 14-15, and 17 at 2-3; R.R. at 00078-00079. Dr. Mazin again responded: 9. Denied as stated. By way of further answer, Dr. Mazin states that no later than at 10:54 a.m. on May 31, 2005, thirty days before the expiration of Dr. Mazin s dental license, the . . . Board received, by facsimile transmission, a letter dated May 26, 2005 from Dr. Leonid Lerner verifying the medical condition that necessitated Dr. Mazin s request for a two-month extension of the deadline for compliance with his continuing education requirements for the 2003 to 2005 biennium . . . . (emphasis added). .... 14. . . . Respondent [Dr. Mazin] admits that he had not completed thirty (30) credit hours of approved continuing dental education as of March 31, 2005 but states that he was unable to complete the 12 hours he lacked because of medical condition, emergency and hardship, and further states that on March 29, 2006, and in accordance with applicable law and regulations, he submitted a request to the Board for an extension of the deadline for completion of the required credit hours of continuing dental education due to medical circumstances. (emphasis added). Answer To Amended Order To Show Cause, November 9, 2005, Paragraphs 9 and 14 at 2-3; R.R. at 00085-00086. At a hearing, Dr. Mazin was the only witness to testify. He stated that he was aware of the Board s continuing education requirements and acknowledged 6 that he was required to complete thirty hours of CE by March 31, 2005. Hearing Transcript (H.T.), April 5, 2006, at 18 and 19; R.R. at 00133 and 000134. Finally, Dr. Mazin admitted that he was short three credits that I needed to comply with part of the regulations that say you have to take live continuing education course. I was short all the 15 credits that I needed to comply with the other 15 which you can do through the mail, through internet. H.T. at 22; R.R. at 00137. However, Dr. Mazin stated that he was unable to comply with the CE requirements because of his two surgeries for a detached retina and the deaths of his cousin and wife. H.T. at 19, 21, and 27; R.R. at 00134, 00136, and 00137. Dr. Mazin stated that my wife . . . wrote a letter which I signed asking the Board for an extension, explaining the situation and asking for an extension for me to complete the courses. H.T. at 24; R.R. at 00139. Dr. Mazin stated that the Board never notified him when his physician s letter was due. H.T. at 29; R.R. at 00144. Dr. Mazin stated that any inquiries by his office manager were met with an answering machine . . . [and that] she couldn t leave a message, couldn t say what it was about. H.T. at 30; R.R. at 00145. Later, Dr. Mazin was notified by the Board that his extension request was denied. After closing arguments, the Hearing Examiner concluded that Dr. Mazin s good faith effort to honor the strict requirements of the regulation, combined with the request for additional time and his herculean efforts to realize the task under most tragic and infirmed conditions warrants no sanction. 7 Proposed Adjudication and Order, August 24, 2006, at 13; R.R. at 00295. The Hearing Examiner dismissed Count One and Count Two.2 On August 28, 2006, the Board issued a notice of intent to review pursuant to 1 Pa. Code §35.226(a)(2).3 On June 5, 2007, the Board issued a final adjudication and order and concluded: .... 3. The evidence is insufficient to establish that Respondent [Dr. Mazin] is subject to disciplinary action under Count I . . . because the evidence does not establish that the Board had requested Respondent [Mazin] submit acceptable documentation of his continuing education credit hours at any time. (Findings of Fact No. 5-40) (emphasis added) 4. The evidence is insufficient to establish that Respondent [Dr. Mazin] is subject to disciplinary action under Count II . . . in that the Board finds that the Respondent did not purposefully or knowingly submit a 2 In his proposed adjudication and order, the Hearing Examiner failed to address the merits of Count Three set out in the Department s amended order to show cause. 3 1 Pa. Code § 35.266 (Final Orders) provides: (a) Adjudications of an agency head shall be final orders, subject only to application for rehearing, if any, provided for by statute under which the proceeding is initiated and conducted, except proposed regulations that may be issued in rulemaking. Final orders shall include: .... (2) Adjudications by the agency head upon appeal of proposed reports by participants, by filing exceptions in the manner and time provided by §35.211 (relating to procedure to except to proposed report), or upon review initiated by the agency head within ten days next following the expiration of the time for filing exceptions under the section, or another time as the agency head may fix in specific cases. (emphasis added). 8 false or deceptive biennial renewal application to the Board. (Findings of Fact No. 30-35) (emphasis added). 5. Respondent [Dr. Mazin] is subject to disciplinary action under Count III . . . because Respondent [Dr. Mazin] did not complete 30 hours of continuing education credit hours during the biennial period of April 1, 2003, to March 31, 2005, and was not granted an exemption by the Board. (Findings of Fact No. 9, 10, 30, 35, 37, 40) (emphasis added). Final Adjudication and Order, June 5, 2007, Conclusions of Law Nos. 3-5 at 9: R.R. at 00359. The Board imposed a civil penalty in the amount of $900 (computed as $75 for each of the 12 credits Respondent [Dr. Mazin] failed to complete by March 31, 2005). Final Adjudication and Order at 16; R.R. at 00366. I. Whether The Board Erred When It Determined That Dr. Mazin Failed To Complete His Thirty Hours Of CE? Dr. Mazin contends4 that because the Hearing Examiner and the Board found that Dr. Mazin completed eighteen hours of live CE before March 31, 2005, and that [b]y March 30, 2005, . . . Respondent [Dr. Mazin] had gone through four (4) of the courses, representing twelve (12) hours of continuing education credits, although he had not completed the on-line answers for these twelve credit hours, Dr. Mazin satisfied the requirement. See Findings of Fact Nos. 10 and 18 of the Proposed and Final Adjudication and Order. 49 Pa. Code § 33.401 (Credit-hour requirements) provides: 4 This Court s review is limited to a determination of whether constitutional rights were violated, and whether the Board s decision is in accordance with law and supported by substantial evidence. Mostatab v. State Board of Dentistry, 881 A.2d 1271 (Pa. Cmwlth. 2005). 9 (a) An applicant shall complete the following continuing education credit hours during the preceding biennial period: (1) Dentists-30 hours. .... (b) The required hours shall be taken in the subject areas listed in § 33.402 (relating to continuing education subject areas) from a program sponsor listed in § 33.403 (relating to program sponsors). (c) At least 50% of the required credit hours shall be taken in lecture or clinical presentations. (d) A maximum of 50% of the required credit hours, listed in § 33.402, may be taken through individual study. ... ..... (g) Exceptions are as follows: (1) An applicant is exempt from the continuing education requirement in subsection (a) for only the biennial period during which the applicant passed the licensure or certification examination. (2) An applicant who cannot meet the continuing education requirement due to an illness, emergency or hardship may apply to the Board in writing for a waiver. The request shall explain why compliance is impossible. Waiver requests will be evaluated by the Board on a case-by-case basis. Here, Dr. Mazin admitted in his pleadings and testimony before the Hearing Examiner that he had not completed his 30 credits of CE by the March 31, 2005, deadline.5 5 In his answer to the Department s amended rule to show cause, Dr. Mazin stated that Respondent admits that he had not completed thirty (30) credit hours of approved continuing dental education as of March 31, 2005 . . . . (emphasis added). See Answer to Amended Order (Footnote continued on next page ¦) 10 Before this Court, Dr. Mazin now asserts that he met the CE requirements because he went through the four correspondence materials by March 31, 2005. There is no dispute that Dr. Mazin did not complete and submit his answers by that date. Dr. Mazin argues that the Board was required to specifically state that in order to satisfy the CE requirements, the applicant was required to complete the answers and submit them to the program sponsor by March 31, 2005. This argument fails. 49 Pa. Code § 33.403 (Program sponsors) provide that Program sponsors shall . . . (b) [p]rovide participants with a continuing education certificate after assuring satisfactory completion and attendance of the program. (emphasis added). 49 Pa. Code § 33.404 (Reporting continuing education credit hours) provides: (a) The applicant shall provide the requested information concerning the required hours on an application for biennial renewal. (emphasis added). (continued ¦) to Show Cause, Paragraph 14 at 3; R.R. at 00086. In his new matter, Mazin averred that he was not able to complete the remainder of the individual study courses on March 31, 2005 or complete the online portion of the courses he had already completed. (emphasis added). Amended Order to Show Cause, New Matter, Paragraph 29 at 6; R.R. at 00089. At the hearing Mazin testified that [m]y understanding is that I m supposed to get 30 hours of continuing education by that particular date, March 31st, 2005. H.T. at 19; R.R. at 00134. Finally, in his closing argument, Mazin s counsel argued that [n]ow what we really get down to is what I ll freely admit is a technical violation of the 30-hour requirement by March 31st. (emphasis added). H.T. at 51; R.R. at 00166. 11 (b) The applicant shall provide a copy of the documentation supporting the completion of the required credit hours when requested to do so by the Board. (emphasis added). (c) Acceptable documentation consists of any of the following: (emphasis added). (1) A continuing education certificate or sponsorgenerated printouts. (emphasis added). (2) A certified transcript of courses taken for credit in an accredited university or college. For noncredit courses taken, a statement of hours of attendance, signed by the instructor. (emphasis added). .... (d) The responsibility for documenting the continuing education requirements rests with the applicant . . . . (emphasis added). In the present controversy, Dr. Mazin testified that he was familiar with the requirements to certify his CE credits concerning the correspondence courses: Q: What, if anything, did you plan to do with the mail course or the how do you describe the part of the required credits that are not a live-type seminar? A: They have various packets of various subject matter on dentistry. You read through the subject matter. At the end, they ask a series of questions and you submit the questions [sic] to them. And when they check out if you have I believe, 75 percent of them correct, they issue a certificate. (emphasis added). Q: You actually have to receive the course material in the mail through an approved provider? A: Yes. .... 12 Q: At the time that you submitted your application for renewal on-line, what was the status of your continuing education at that point? A: I finished them and I had the certificates. (emphasis added). Q: What had you done to finish your continuing education requirements by the time you submitted your renewal application on-line? A: I finished the last test which I read to myself by that time and went on the computer and filled out the answers to all of them, to all courses, and submitted them all at that time. (emphasis added). H.T. at 23-24 and 32; R.R. at 00138-00139 and 00147. Dr. Mazin testified that he completed his answers and submitted them during the third week of May 2005. This is obviously substantial evidence6 that supports the Board s finding that Dr. Mazin failed to fulfill his CE requirements for the biennial period ending March 31, 2005. II. Whether The Dental Law 7 And The Board s Regulations Are Unconstitutionally Vague? Specifically, Dr. Mazin next contends that The Dental Law and the Board s regulations are vague because they do not: 1) define when and how a licensee completes an individual study course; 2) adequately define or distinguish waiver , exemption , or extension in the context of CDE [CE] requirements; 3) adequately specify the procedure to follow or deadlines to meet when a 6 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith s Frozen Food Company v. Workmen s Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa. Cmwlth. 1988). 7 Act of May 1, 1933, P.L. 216, as amended, 63 P.S. §§ 120-130i. 13 licensee requests a waiver or extension from the CDE [CE] requirement based on medical circumstances; or 4) specify the criteria the Board uses in evaluating requests for extensions and waivers due to medical circumstances, including any deadlines that the Board imposes in that process. Brief for Petitioner, Argument at 32. In Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342 (Pa. Cmwlth. 2002), this Court stated: [T]he applicable standard for analysis is that a statute or regulation is unconstitutionally vague where it either traps the innocent by failing to give a person of ordinary intelligence reasonable opportunity to know what is prohibited so that he may act accordingly, or results in arbitrary and discriminatory enforcement in the absence of explicit guidelines for its application. (emphasis added). Id. at 349. A. Whether The Dental Law And The Board s Regulation Fail To Inform A Dentist When The CE Requirements Are Considered Completed ? Section 3(j.2)(2) and (i) of The Dental Law , 63 P.S. § 122 provide that [t]he following requirements shall be satisfactorily completed in accordance with Board regulations as a precedent to biennial renewal of a license . . . thirty credit hours for a person licensed to practice dentistry . . . one credit hour shall be defined as one clock hour of instruction. (emphasis added). As noted, 49 Pa. Code § 33.401, § 33.403 and § 33.404 provide in detail: 1) that the required credit hours shall consist of fifty percent lecture and fifty percent individual study ; 2) that acceptable documentation of the completed 14 credit hours shall be a a continuing education certificate or sponsor-generated printouts ; and 3) that the responsibility for documenting the continuing education requirements rests with the applicant. Finally, Dr. Mazin testified that he knew the procedure necessary for compliance with the CE requirements. This included the submission of answers to the test questions that were graded by the provider and the issuance of a certificate that seventy-five percent of the questions were answered correctly. See H.T. at 2324 and 32; R.R. at 00138-00139 and 00147. Essentially, Dr. Mazin s testimony established that the regulations clearly informed him of the CE requirements. B. Whether The Dental Law And The Board s Regulations Are Vague Because It Does Not Provide Adequate Notice Concerning The Procedure For Extensions And Waivers ? Dr. Mazin complains that The Dental Law and the Board s regulations are vague because his extension was not granted and that the Board failed to provide notice to him of the precise date by which the medical verification concerning his detached retina was due. Section 3 of The Dental Law , 63 P.S. § 122(j.2)(1), relevantly provides that [t]he board may waive all or part of the continuing education requirement to a licensee who shows to the satisfaction of the board that he or she was unable to complete the requirement due to illness, emergency or hardship. (emphasis added). 49 Pa Code § 33.401(g)(2) provides that [a]n applicant who cannot meet the continuing education requirement due to illness, emergency or hardship 15 may apply to the Board in writing for a waiver. The request shall explain why compliance is impossible. Waiver requests will be evaluated by the Board on a case-by case basis. (emphasis added). The facts are undisputed. On March 29, 2005, Dr. Mazin wrote to the Board and stated that [d]ue to medical circumstances, I am requesting a twomonth extension of the deadline for compliance with my continuing education requirements . . . until June 1, 2005 to complete the remaining 15 hours of continuing education. Letter from Laurence J. Mazin to State Board of Dentistry, March 29, 2005, at 1; R.R. at 00015. On March 31, 2005, the Board received Dr. Mazin s request for an extension. On April 5, 2005, the Board responded and informed Dr. Mazin that [i]n order for the Board to further consider your request, verification of your condition is required from your physician. Please remit the information from your physician along with a copy of this letter. Upon receipt of this information, your request will be given further consideration. (emphasis added). Letter from the Board to Laurence J. Mazin, April 5, 2005, at 1; R.R. at 00014. On May 26, 2005, Dr. Leonid E. Lerner, M.D., Dr. Mazin s physician, wrote the Board and described Dr. Mazin s medical condition and treatment. Letter from Dr. Leonid E. Lerner, M.D. to the Board, May 26, 2005, at 1; R.R. at 00012. On June 13, 2005, the Board notified Mazin that his request for an extension of the March 31, 2005, deadline until June 1, 2005, was denied because the Board received Dr. Lerner s letter on June 3, 2005, and that [a]lthough your request was submitted, the additional information required was not received for an additional two months. (emphasis added). Letter from the Board to Laurence J. Mazin, June 13, 2005, at 1; R.R. at 00011. 16 It is quite evident that Dr. Mazin understood the procedure required for an extension of the March 31, 2005, deadline, and in fact pursued it. Although, no precise date was mentioned in the correspondence, a person of ordinary intelligence would reasonably know that the necessary report must be timely submitted and to reasonably follow up. The Dental Law and the Board s regulation are not unconstitutionally vague. In any event, 1 Pa. Code § 35.20 (Appeals from actions of the staff) provides that [a]ctions taken by a subordinate officer under the authority delegated by the agency head may be appealed to the agency head by filing a petition within 10 days after service of notice of the action. (emphasis added). Dr. Mazin failed to file an appeal and, as a result, lost the opportunity to challenge the Board s denial of his request for an extension. III. Whether The Board Improperly Disciplined Dr. Mazin For Failure To Complete His CE Requirements? Dr. Mazin contends that there was no rational basis for the Board to impose a penalty because of his failure to complete his CE credits by March 31, 2005. Dr. Mazin asserts that the imposition of the penalty will injure his reputation in the dental community. Section 4.1(a) of The Dental Law , 63 P.S. § 123.1(a)8 provides that [t]he Board shall have the authority, by majority action, to refuse, revoke, or suspend the license of any dentist . . . . The Board also may administer a public 8 Section 4.1 was added by the Act of December 20, 1985, P.L. 513. 17 reprimand, See Section 4.1(b)(2) of the The Dental Law , 63 P.S. § 123.1(b)(2). Finally, the Board may impose a civil penalty in a monetary amount. See Section 10.1 of The Dental Law , 63 P.S. § 129.1.9 The Board has the responsibility to the public to insure that dentists are current with their CE requirements and to enforce The Dental Law and regulations when there is a violation. Here, the Board imposed a $900.00 fine after it determined that Dr. Mazin failed to complete his CE requirements by March 31, 2005. As the Board noted, a civil penalty is not reported to the National Practitioner Data Bank10 and Dr. Mazin s character remained unscathed. Also, the Board determined that a reprimand was not warranted based upon the facts of this case. The Board s imposition of the civil penalty was rationally related to the violation and there was no abuse of discretion by the Board. IV. Whether The Board Violated Dr. Mazin s Rights Under The Americans With Disabilities Act (ADA)? Section 12131 of the ADA, 42 U.S.C. § 12131 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity. Section 12102)2) of the ADA, 42 U.S.C. §12102(2) defines the term disability as a physical or mental impairment that substantially limits one or more of the major life activities of such individuals. 9 Section 10.1 was added by the Act of December 20, 1985, P.L. 513. The National Practitioner Data Bank collects adverse information on physicians and other healthcare practitioners. 10 18 Dr. Mazin s argument must be rejected. First, Dr. Mazin never raised the issue of the applicability of the ADA before the Board and therefore the issue was waived. Pa. R.A.P 1551(a) provides that [r]eview of quasijudicial orders shall be conducted by the court on the record made before the government unit . . . [n]o question shall be heard or considered by the court which was not raised before the government unit . . . . 11 (emphasis added). Second, even if this issue was preserved for review, Dr. Mazin failed to establish that his disability was anything more than short-lived. Dr. Mazin completed his CE requirements and is presently practicing dentistry without restrictions. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 11 Dr. Mazin raised this issue for the first time in his amended petition for review filed in this Court s original jurisdiction. 19 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Laurence J. Mazin, D.D.S., Petitioner : : : v. : : Bureau of Professional and : Occupational Affairs; Basil L. Merenda, : in his official capacity as Commissioner : of the Bureau of Professional and : Occupational Affairs and Member of : the State Board of Dentistry; State : Board of Dentistry; Lisa M. Burns, in : her capacity as Administrator of the : State Board of Dentistry; Susan E. : Calderbank, D.M.D. (Chairperson), : Mariellen Brickley-Raab, R.D.H. : (Secretary), Howard Tolchinsky, : D.M.D., Sara Rajca, Esq., Thomas W. : Braun, D.M.D., Ph.D., Richard H. : Cutler, D.M.D., Douglas P. Marinak, : D.D.S., John V. Reitz, D.M.D., : Allan M. Horwitz, Esq., Gwendolyn M. : White, in their official capacities as : Members of the State Board of : Dentistry; and Veasey B. Cullen, Jr., : D.M.D., in his capacity as former : Chairperson of the State Board of : Dentistry, : Respondents : No. 321 M.D. 2007 ORDER AND NOW, this 20th day of February, 2008, the order of State Board of Dentistry in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Laurence J. Mazin, D.D.S., Petitioner : : : v. : : Bureau of Professional and : Occupational Affairs; Basil L. : Merenda, in his official capacity as : Commissioner of the Bureau of : Professional and Occupational Affairs : and Member of the State Board of : Dentistry; State Board of Dentistry; : Lisa M. Burns, in her capacity as : Administrator of the State Board of : Dentistry; Susan E. Calderbank, D.M.D. : (Chairperson), Mariellen : Brickley-Raab, R.D.H. (Secretary), : Howard Tolchinsky, D.M.D., Sara : Rajca, Esq., Thomas W. : Braun, D.M.D., Ph.D., Richard H. : Cutler, D.M.D., Douglas P. : Marinak, D.D.S., John V. : Reitz, D.M.D., Allan M. Horwitz, Esq., : Gwendolyn M. White, in their official : capacities as Members of the State : Board of Dentistry; and Veasey B. : Cullen, Jr., D.M.D., in his capacity as : former Chairperson of the State Board : of Dentistry, : Respondents : BEFORE: No. 321 M.D. 2007 Submitted: November 21, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE FRIEDMAN FILED: February 20, 2008 I respectfully dissent. The majority concludes that the State Board of Dentistry (Board) properly imposed a $900.00 civil penalty upon Laurence J. Mazin, D.D.S., for failure to complete prior to March 31, 2005, the entire thirty credit hours of continuing education required by statute.1 Based on the Board s findings and the applicable regulations, I cannot agree.2 On February 24, 2005, Mazin underwent surgery to repair a detached retina. (Findings of Fact, No. 6.) As a result, Mazin was required to keep his head down and to refrain from reading for several weeks. (Findings of Fact, No. 7.) Mazin scheduled a follow-up visit with his doctor for mid-March, believing that his doctor would give him a clean bill of health and that there would be no reason why he could not complete his continuing education requirements by March 31, 2005.3 (Findings of Fact, Nos. 8, 11.) At his mid-March doctor visit, however, Mazin learned that he needed further eye surgery. (Findings of Fact, No. 12.) Mazin then realized that he might not be able to complete his continuing education requirements by the designated date. (Findings of Fact, No. 15.) 1 Mazin completed eighteen of the required thirty credit hours; the Board imposed a $75.00 civil penalty for each of the twelve hours it held that Mazin failed to complete ($75.00 x 12 = $900.00). 2 I note that, although the majority provides background information about this case from the record, the majority does not set forth the Board s findings of fact. 3 I note that, ordinarily, March 31, 2005, is the due date for license renewal applications. However, in 2005, the Board extended the expiration of dental licenses to June 30, 2005, making the March 31, 2005, date for completion of credit hours premature. RSF - 22 - At the time, Mazin mistakenly believed that he had completed only fifteen hours of live continuing education when, in fact, he had completed eighteen hours. (Findings of Fact, No. 10.) To complete the required thirty hours of continuing education, Mazin enlisted his daughter s help to complete fifteen hours of self-study. (Findings of Fact, No. 13.) Mazin s daughter read the selfstudy materials to him, went through the questions and marked down his answers. (Findings of Fact, No. 17.) By March 30, 2005, Mazin had gone through twelve hours of self-study. (Findings of Fact, No. 18.) Thus, the Board found that, [a]s of March 30, 2005, [Mazin] had not yet completed the last three (3) hours of selfstudy course materials he believed he needed. (Findings of Fact, No. 19.) The clear implication of Finding of Fact, No. 19 is that, once Mazin s daughter read the materials, asked the questions and recorded the answers for the last three hours of self-study, Mazin would have completed the last three hours of self-study he believed he needed. Of course, it was not necessary for Mazin to complete these last three hours because Mazin already had completed eighteen hours of live continuing education. Indeed, adding Mazin s twelve hours of selfstudy to the eighteen hours of live continuing education, we see that Mazin completed the required thirty hours of continuing education by March 31, 2005. Mazin believed otherwise. Thus, on March 29, 2005, he requested a two-month extension of the continuing education requirement. (Findings of Fact, No. 16.) He also planned to complete the last three hours of self-study he believed he needed by March 31, 2005, with the assistance of his daughter and then have either his daughter or his wife submit his answers on the self-study provider s RSF - 23 - Internet web site. (Findings of Fact, No. 20.) However, on the morning of March 31, 2005, Mazin received a telephone call from his mother advising him that his cousin and his cousin s wife had been found dead in their home from carbon monoxide poisoning. (Findings of Fact, No. 21.) Mazin promptly left for New York to attend the funeral on April 1, 2005. (Findings of Fact, No. 22.) Mazin subsequently received a letter from the Board, dated April 5, 2005, stating that the Board needed verification of Mazin s condition from his physician. (Findings of Fact, No. 23.) The letter did not set a deadline for the submission of the verification. (Findings of Fact, No. 24.) At Mazin s next doctor visit, about a week later, Mazin asked his doctor to submit verification to the Board. (Findings of Fact, No. 25.) Mazin, through his office, called the Board several times to determine whether the Board received the doctor verification, but Mazin s office was unable to reach a human being or leave a message on the Board s answering machine. (Findings of Fact, No. 26; R.R. at 145.) The Board received the verification from Mazin s doctor on May 31, 2005. (Findings of Fact, No. 27.) Mazin completed his remaining courses on May 23, 2005, and, on May 31, 2005, he used the Board s Internet web site to submit his license renewal application. (Findings of Fact, Nos. 28, 30.) The Board s on-line application asked whether Mazin completed thirty hours of continuing education by March 31, 2005; the instructions indicated that an applicant must answer in the affirmative if he is eligible for an exemption. (Findings of Fact, Nos. 31-32.) Mazin answered in the affirmative because he believed that he was eligible for an exemption and RSF - 24 - because he completed thirty hours of continuing education at the time he submitted the on-line application. (Findings of Fact, Nos. 34-35.) Subsequently, Mazin received a letter from the Board, dated June 13, 2005, denying his request for an extension. (Findings of Fact, No. 37.) The letter stated that Mazin needed to complete the required continuing education credits in order to renew his license; however, by that time, Mazin already had completed thirty hours of continuing education. (Findings of Fact, Nos. 39-40.) Mazin contacted the Board and was informed that he was okay and that there were no disciplinary actions against him. (R.R. at 27, 63.) Given that information, Mazin did not appeal the Board s denial of his request for an extension. However, Mazin subsequently received an order to show cause why he should not be disciplined, and the matter was adjudicated by the Board. During the proceedings, Mazin admitted that he failed to complete twelve hours of continuing education by March 31, 2005. The admission was based on Mazin s belief that he needed a certificate of completion to complete the twelve credit hours. Based on Mazin s admission, the Board concluded that Mazin violated the law by failing to complete thirty hours by March 31, 2005. Despite Mazin s efforts to meet the requirement, despite the deaths in his family, despite Mazin s efforts to get a two-month extension for medical reasons and despite Mazin s inability to contact a real person at the Board via the Board s ineffective answering system, the Board imposed a civil penalty because: (1) it was unreasonable for Mazin to request an extension on the last day for completing the requirement; (2) it was unreasonable for him to submit his doctor verification RSF - 25 - on the last day of the requested extension; and (3) Mazin did not obtain certificates of completion for the twelve hours of self-study until May 23, 2005. (Board s Adjudication at 15-16.) Before this court, Mazin argues that the Board abused its discretion in imposing a $900.00 civil penalty for failing to complete thirty hours of continuing education by March 31, 2005. I agree that there has been an abuse of discretion in this case. I. Civil Penalties Section 10.1 of The Dental Law (Law)4 provides: In addition to any other civil remedy or criminal penalty provided for in this act, the board ¦ may levy a civil penalty of up to one thousand dollars ($1,000) on any current licensee who violates any provision of this act ¦. 63 P.S. §129.1 (emphasis added). Section 3(j.2)(2)(i) of the Law requires that a person licensed to practice dentistry shall complete thirty credit hours as a precedent to biennial license renewal. 63 P.S. §122(j.2)(2)(i). For the purposes of this subsection, one credit hour shall be defined as one clock hour of instruction. Section 3(j.2)(3) of the Law, 63 P.S. §122(j.2)(3) (emphasis added). Here, the Board found that Mazin completed eighteen credit hours of live continuing education by March 31, 2005. The Board also found that Mazin 4 Act of May 1, 1933, P.L. 216, as amended, added by section 10 of the Act of December 20, 1985, as amended, 63 P.S. §129.1. RSF - 26 - had gone through twelve hours of self-study. Because a credit hour is defined as a clock hour of instruction, and completing a clock hour of instruction has nothing to do with a certificate of completion, Mazin completed twelve credit hours of self-study by March 31, 2005.5 Altogether, then, Mazin completed thirty credit hours by March 31, 2005. Because Mazin met the statutory requirement, the Board abused its discretion by finding otherwise and by imposing a civil penalty for that failure. II. Mazin s Admission The Board and the majority state that Mazin admitted that he did not complete the twelve hours of self-study by March 31, 2005. However, whether Mazin completed those twelve hours by March 31, 2005, is a question of law. As indicated above, the Board needed to determine whether Mazin s twelve hours of self-study fell within the statutory definition of credit hour. A question of law is not a question of fact that can be admitted. Bensing v. Workers Compensation Appeal Board (James D. Morrissey, Inc.), 830 A.2d 1075 (Pa. Cmwlth. 2003). III. Board s Justification A. Request for Extension The Board justified imposing a civil penalty, at least in part, based on its conclusion that it was unreasonable for Mazin to request an extension on the last day for completing the continuing education requirement. I disagree. 5 It is apparent that a credit hour under the Law is similar to a credit hour of continuing legal education for attorneys, who complete the clock hour and are not required to be evaluated by means of a test in order to obtain credit. RSF - 27 - First, I note that the regulation at 49 Pa. Code §33.401(a)(1) gives a dentist the entire biennial period to complete thirty hours of continuing education. A dentist who completes the requirements on the last day of the biennial period is acting lawfully, not unreasonably. Therefore, a dentist cannot be faulted simply because he or she chose to complete the continuing education requirements on the last day. Second, the Board s regulation governing extension requests, or waivers, provides: An applicant who cannot meet the continuing education requirement due to illness, emergency or hardship may apply to the Board in writing for a waiver. The request shall explain why compliance is impossible. Waiver requests will be evaluated by the Board on a case-by-case basis. 49 Pa. Code §33.401(g)(2) (emphasis added). On its face, the Board s regulation relates to problems that occur without warning. People do not anticipate illnesses or emergencies. Thus, the Board cannot justify imposing a civil penalty merely because an applicant submitted a request for an extension on the last day. Indeed, there is nothing in the regulation prohibiting the submission of a request on the last day. Moreover, in its adjudication, the Board indicated it considered the request and sought doctor verification. (See Board s Adjudication at 15.) Third, the Board found that Mazin had a plan for completion of the continuing education requirements by March 31, 2005, and that the plan was not in jeopardy until mid-March, when his doctor informed him that additional surgery was necessary. Only then did Mazin realize that he might need to request an RSF - 28 - extension. Based on the Board s own findings, it was not unreasonable for Mazin to submit his request after mid-March. Finally, the date Mazin submitted his extension request is irrelevant to whether the Board should impose a civil penalty for failing to complete thirty credit hours by March 31, 2005. The implication is that the Board would not have imposed the civil penalty if Mazin had filed his extension request at an earlier time. However, as indicated above, the regulation does not prohibit the filing of a request on the last day, and the Board does not reveal when Mazin should have filed his request to avoid a civil penalty. B. Doctor Verification The Board justified imposing a civil penalty, at least in part, based on its conclusion that it was unreasonable for Mazin to submit the doctor verification on the last day of the requested extension. However, because the Board s regulation does not require doctor verification, the Board s reliance on the verification in any manner for the purpose of imposing a civil penalty was clearly erroneous. See 49 Pa. Code §33.401(g)(2) (requiring only an explanation as to why compliance is impossible). C. Certificates of Completion The Board justified imposing a civil penalty, at least in part, because, although Mazin had gone through twelve hours of self-study by March 31, 2005, he did not obtain the certificates of completion until May 23, 2005. However, because the Board s regulation does not require that a person obtain a certificate of completion by March 31, 2005, the Board s reliance on the certificates in any manner for the purpose of imposing a civil penalty was clearly erroneous. See 49 RSF - 29 - Pa. Code §33.404(b) (requiring certificates of completion only when requested to provide them by the Board). Accordingly, unlike the majority, I would reverse. _____________________________ ROCHELLE S. FRIEDMAN, Judge RSF - 30 -

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