Onyinyechi R. Uradu, Md v. Kentucky Board of Medical Licensure ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1084-MR
ONYINYECHI R. URADU, MD APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 19-CI-008051
KENTUCKY BOARD OF MEDICAL APPELLEE
LICENSURE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
KRAMER, JUDGE: Onyinyechi Uradu, MD, appeals from an order of the
Jefferson Circuit Court that affirmed in part and modified in part a final order of
the Kentucky Board of Medical Licensure (“KBML”) imposing disciplinary
sanctions upon Dr. Uradu. We affirm.
This matter has a long and complicated factual and procedural history,
previously summarized, in part, by this Court:
The underlying matter began with the filing of a
complaint by KBML on March 8, 2017, against Dr.
Uradu related to her license to practice medicine in
Kentucky. Her specialty is Family Medicine. In 2016,
the equivalent licensure board in Ohio entered an order
related to her license in that state for her actions in 2014.
The Ohio Board concluded that between September 23,
2014, and September 26, 2014, Dr. Uradu had
“knowingly exceeded the 100-patient limit set by federal
law in prescribing buprenorphine for the treatment of
narcotic addiction.” For this violation, the Ohio Board
suspended her license for an indefinite period not less
than 180 days and stayed all but five days of that
suspension, subjected her to a one-year probation period
upon the reinstatement of her license, and required her to
submit documentation of her successful completion of a
course related to prescribing controlled substances.
KBML alleged in the complaint that through this
conduct, Dr. Uradu had violated KRS[1] 311.595(17) and
that legal grounds existed for a disciplinary action in
Kentucky. The matter was assigned to Hearing Officer
Thomas J. Hellman.
In her response to the complaint, Dr. Uradu admitted that
the Ohio Board had entered an order on September 14,
2016, related to her license to practice medicine and that
she had reported this order to KBML pursuant to the
statutory and regulatory requirements. She admitted that
she had exceeded the 100-patient limit, but she denied
that the Ohio Board’s order imposed any substantive
restrictions on her ability to serve in her position as an
Opioid Treatment Program Director, to prescribe
medication, or limited her practice. She had also
completed the required course in controlled substances
prescriptions. As one of her defenses, Dr. Uradu stated
that the “actions that precipitated the Ohio Board’s Entry
of Order were actions taken for the safety, health, welfare
and best interests of her patients and lasted only a very
1
Kentucky Revised Statute.
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short time until the patients could be transferred.” She
also stated that the Drug Enforcement Administration
(DEA) and the Substance Abuse and Mental Health
Services Administration (SAMHSA) had increased the
patient limits from 100 to 275, removing the basis for the
Ohio Board’s disciplinary action and providing no basis
for further action in Kentucky. Finally, Dr. Uradu stated
that the KBML had discriminated against her by failing
to take similar disciplinary action against other
physicians. She sought dismissal of the complaint and a
declaration that the statutes and regulations as applied to
her were unconstitutional.
KBML moved the hearing officer for summary
disposition pursuant to 201 Kentucky Administrative
Regulations (KAR) 9:081 § 9(6) and KRS 13B.090(2),
arguing that no genuine issues of material fact were in
dispute in that Dr. Uradu had admitted the allegations
contained in paragraphs 1 through 5 of the complaint.
KRS 311.595(17) permits the KBML to place a licensee
on probation or to revoke or restrict a license based upon
proof that the licensee had been subjected to a revoked,
suspended, restricted, or limited license by the licensing
authority in another state. Re-litigation of the
disciplinary action is not required under this statute. In
addition, 201 KAR 9:081 § 9(4)(c) requires the
appropriate panel in Kentucky to impose the same
substantive sanction as the discipline that was imposed in
another state. By separate regulation (201 KAR 9:081 §
9(6)(a)), KBML is to expedite resolution of the complaint
if it only charges a criminal conviction or disciplinary
sanction that could be proven by accompanying official
certification. And, like the statutory provision, 201 KAR
9:081 § 9(6)(c)(1) does not permit re-litigation of a
criminal conviction or disciplinary sanction. KBML
included certified copies of the Ohio Board’s records
related to its discipline of Dr. Uradu.
In her response, Dr. Uradu objected to the motion for
summary disposition, arguing that 201 KAR 9:081 §
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9(4)(c) was “illegally contrived” because it exceeded its
statutory authority, that KRS Chapter 13A forbade
KBML from enlarging its delegated authorization in an
administrative regulation, and that her due process rights
were being denied because she was subjected to re-
punishment in Kentucky. Dr. Uradu also sought a
hearing on her complaint, stating that genuine issues of
material fact existed and that the Ohio certified
documents were incomplete because a written copy of
the amended final report/recommendation/order had not
been included. She also wanted to update KBML on
what had transpired since the Ohio Board action and
provide an impact statement, not re-litigate the Ohio
disciplinary process.
The hearing officer entered his findings of fact,
conclusions of law, and recommended order on May 24,
2017, and in doing so found no disputed issues of
material fact existed and granted KBML’s motion for
summary disposition. Based upon his findings, the
hearing officer concluded that KBML had established by
a preponderance of the evidence that Dr. Uradu had
violated KRS 311.595(17) and was subject to sanction
based upon the Ohio Board’s order. The hearing officer
rejected Dr. Uradu’s arguments related to 201 KAR
9:081 § 9(4)(c), stating that the regulation was within
KBML’s discretion, and declined to address the
constitutionality of KRS 311.595(17), although he did
point out that KBML was not sanctioning her for a
violation of an Ohio statute but for violating one in
Kentucky. Furthermore, the amended report Dr. Uradu
had attached to her filing was not certified or
authenticated. Accordingly, the hearing officer
recommended that KBML impose, at a minimum, the
same sanctions against Dr. Uradu’s medical license as the
Ohio Board had imposed.
Dr. Uradu filed exceptions to the hearing officer’s
recommendations, arguing that she was denied due
process and that he had limited KBML’s statutory duty to
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exercise its discretion in disciplining her. She attached a
personal statement dated June 7, 2017, in which she
sought mercy and requested that KBML not penalize her
any further. She also attached a letter and decision from
the West Virginia Board of Medicine declining to find
probable cause existed to initiate a complaint against her.
Both of these documents, she asserted, supported her
argument that the use of summary disposition prejudiced
her interests.
On July 24, 2017, after considering the complaint, the
hearing officer’s recommendations, Dr. Uradu’s
exceptions, and a memorandum from KBML’s counsel,
KBML adopted the hearing officer’s findings of fact and
conclusions of law as well as his recommended order. It
therefore placed Dr. Uradu’s license to practice medicine
in Kentucky on probation for one year; stayed the
indefinite suspension of her license; and ordered her to
submit proof that she had complied with the Ohio
Board’s requirement that she complete a course related to
prescribing controlled substances, reimburse KBML for
the cost of the proceedings, and not violate any provision
of KRS 311.595 and/or KRS 311.597.
Uradu v. Kentucky Board of Medical Licensure, No. 2018-CA-0097-MR, 2019
WL 847696, at *1-2 (Ky. App. Feb. 22, 2019), discretionary review denied (Aug.
21, 2019).
After issuance of the July 24, 2017 order by KBML, Dr. Uradu
petitioned the Jefferson Circuit Court for judicial review, and the circuit court
affirmed KBML’s order. Dr. Uradu appealed to this Court, which ultimately held
that KBML’s reliance on 201 KAR 9:081 § 9(4)(c) was improper because the
regulation “invalidly exceed[ed] the grant of authority set forth in KRS
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311.595(17) in that 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.” Uradu, 2019 WL 847696 at
*5. The order of the Jefferson Circuit Court was reversed, and the matter was
remanded for further proceedings, including vacating the order of probation
entered by KBML.
On remand, Hearing Panel B of KBML met in executive session and
issued a new final order regarding disciplinary action against Dr. Uradu’s medical
license on November 22, 2019. Per instructions from this Court, the final order
omitted language regarding 201 KAR 9:081 § 9(4)(c), but imposed the following
terms and conditions: (1) Dr. Uradu’s license to practice medicine was placed on
probation for a period of one year; (2) Dr. Uradu must provide proof she completed
the course(s) dealing with prescribing of controlled substances as required by the
State of Ohio’s Medical Board; (3) reimbursement of costs of the proceedings to
KBML; (4) no violations of KRS 311.595 and/or KRS 311.597.
Dr. Uradu again petitioned the Jefferson Circuit Court for judicial
review of KBML’s final order. The parties submitted briefs, oral arguments were
held, and the circuit court entered an order affirming KBML’s final order in part
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but modified it to remove the additional one-year term of probation imposed on Dr.
Uradu.2 This appeal followed.
The portion of KBML’s final order imposing an additional one-year
term of probation was removed by the circuit court, leaving only the requirements
that Dr. Uradu show proof of completion of the course(s) mandated by Ohio’s
Medical Licensure Board; reimburse costs of the proceedings to KBML; and have
no violations of KRS 311.595 and/or KRS 311.597. Indeed, Dr. Uradu
acknowledges that the circuit court’s “sense of justice was ‘spot on.’”3 She
acknowledges she had already provided proof of completion of the mandatory
course(s) prior to the issuance of the final order, and this is not disputed by KBML.
Dr. Uradu makes no discernable argument regarding reimbursement of costs to
KBML as she mentions it only in passing in her brief with no citations to the
record or any authority.4
2
Dr. Uradu had already been subject to at least one year of probation from the original order
entered on July 24, 2017. KBML did not appeal the circuit court’s ruling.
3
See page 19 of Appellant’s brief.
4
On page 14 of Dr. Uradu’s brief to this Court, she states only that “[i]t should be noted that
nowhere in the administrative record—either the current one or the prior one—is there any
evidence in the ‘record’ to support the demanded requirement to pay the KBML’s ‘costs.’
Moreover, the first Order of Probation from which that number derives was ‘vacated’ by the
Court of Appeals and has no effect. By foolishly adopting the Hearing Officer’s original
recommendation—which relied upon an invalid regulation—there is still no mention of the
calculation or the imposition of these ‘costs.’” (Emphasis in original.)
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Dr. Uradu’s primary argument is that she was denied due process
because she believes she was entitled to an administrative hearing before Hearing
Panel B on remand. Yet, this argument is without basis in the law. KRS
311.565(1)(g) and KRS 311.591(5) authorize the hearing panel to appoint a
hearing officer, which was done in Dr. Uradu’s case. KRS 13B.080 details how an
administrative hearing is to be conducted by a hearing officer. Summary
disposition was utilized by the hearing officer upon motion of KBML pursuant to
KRS 13B.090(2), which allows for submission of evidence in writing and states –
in relevant part – that the hearing officer “may make a recommended order in an
administrative hearing submitted in written form if the hearing officer determines
there are no genuine issues of material fact in dispute and judgment is appropriate
as a matter of law.” Further, KRS 311.595(17) provides appropriate disciplinary
measures to be taken against any medical licensee who has “[h]ad his license to
practice medicine or osteopathy in any other state, territory, or foreign nation
revoked, suspended, restricted, or limited or has been subjected to other
disciplinary action by the licensing authority thereof.” The statute further provides
that re-litigation of the disciplinary action taken in another state is not required by
KBML. Accordingly, the hearing officer entered a recommended order in Dr.
Uradu’s case without taking oral testimony and based upon the written evidence
submitted, including Dr. Uradu’s admission that the Ohio Board concluded she had
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“violated Ohio statute by exceeding the 100-patient limit set by Federal law for
prescribing Buprenorphine.” Dr. Uradu filed exceptions to the hearing officer’s
recommended order. In fact, Dr. Uradu concedes that she “was able to submit
evidence to show ‘her side’ of the case which also included the adjudication by the
West Virginia Board of Medicine on the same circumstance which took no action
against Dr. Uradu’s licensure.”5
Pursuant to statute, after an administrative hearing has occurred, the
matter proceeds to the hearing panel for issuance of a final order. In doing so,
KRS 13B.120(1) requires the hearing panel to consider only “the record including
the recommended order and any exceptions duly filed to a recommended order.”
The Kentucky Supreme Court has ruled that “requiring the Board conduct a new,
independent review of the entire record would render parts of the statutory scheme
‘practically superfluous’ and the matter ‘impractically expensive.’” Kentucky
Board of Medical Licensure v. Strauss, 558 S.W.3d 443, 447 (Ky. 2018). Other
than broad and conclusory statements, Dr. Uradu is unable to cite to any authority
to support her argument that she was entitled to be heard by Hearing Panel B
outside of the record established before the hearing officer.
5
See page 10 of Appellant’s brief.
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We agree with the circuit court’s reasoning in finding that KBML did
not err in not allowing Dr. Uradu or her counsel to address the hearing panel before
issuance of the final order and incorporate it herein:6
Admittedly, KRS 13B.080(5) allows a party to
participate in administrative hearings in person or by
counsel, and KRS 13B.010(2) defines an administrative
hearing as “any type of formal adjudicatory proceeding
conducted by an agency as required or permitted by
statute or regulation to adjudicate the legal rights, duties,
privileges, or immunities of a named person.” Thus, at
first blush it would appear that Dr. Uradu should have
been allowed to participate in the [hearing] [p]anel’s
determination as to the sanction to be imposed and
issuance of a final order.
However, KRS 13B.080 provides that administrative
hearings must be conducted by hearing officers,
suggesting that subsequent proceedings by the agency
itself in considering a hearing officer’s recommended
order are not an administrative hearing. Perhaps more
significantly, KRS 13B.120 provides that in making a
final order, an agency “shall consider the record
including the recommended order and any exceptions
duly filed to a recommended order.” KRS 13B.120(1).
Notably, the statute does not provide that the agency is
also to consider additional evidence or argument in
reaching a decision as to the issuance of a final order.
Accordingly, in construing the relevant statutes as a
whole, the Court does not find that [KBML’s] making of
a Final Order was an administrative hearing in which Dr.
Uradu was entitled to participate either personally or by
counsel. While the Court is sympathetic to Dr. Uradu’s
basic complaint that she did not have an opportunity to
6
Although we agree generally with the circuit court’s reasoning, we do not agree with the circuit
court’s characterization of its decision on the matter as “a close call” and “by the thinnest of
margins.” Dr. Uradu’s arguments are completely without support in the law.
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appear and address the [hearing] [p]anel, the applicable
statutes simply do not require the [hearing panel] to allow
such participation at that stage of the proceedings[.]
Dr. Uradu’s attempts to characterize the proceedings on remand as an
“administrative hearing” in order to argue KRS 13B.090(7)7 is “the focal point of
the KBML’s systemic misconduct” has no basis in law or the facts of this case.8
Additionally, this Court did not instruct KBML to conduct an administrative
hearing on remand. The case was remanded only due to KBML’s improper
reliance on 201 KAR 9:081 § 9(4)(c) to mandatorily impose the same sanctions as
the Ohio Board, rather than use its discretion as provided in KRS 311.595(17).
We decline to address Dr. Uradu’s other arguments. Although she
received the relief requested from the circuit court, she continues to argue to this
7
KRS 13B.090(7) states
[i]n all administrative hearings, unless otherwise provided by
statute or federal law, the party proposing the agency take action or
grant a benefit has the burden to show the propriety of the agency
action or entitlement to the benefit sought. The agency has the
burden to show the propriety of a penalty imposed or the removal
of a benefit previously granted. The party asserting an affirmative
defense has the burden to establish that defense. The party with
the burden of proof on any issue has the burden of going forward
and the ultimate burden of persuasion as to that issue. The
ultimate burden of persuasion in all administrative hearings is met
by a preponderance of evidence in the record, except when a
higher standard of proof is required by law. Failure to meet the
burden of proof is grounds for a recommended order from the
hearing officer.
8
We note that Dr. Uradu characterizes the proceedings before Hearing Panel B on remand as an
administrative hearing on page 9 of her brief, but then argues that there was no administrative
hearing on page 12.
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Court that the imposition of probation on remand was improper. She also goes into
a lengthy discussion accusing KBML of “misuse of KRS 13B.090(7)” which is
wholly inapplicable to the proceedings that occurred on remand from this Court.
There being no merit to Dr. Uradu’s arguments, the actual purpose of
this appeal appears to be set forth in her reply brief wherein she states that she
“undertook this appeal in order to force the KBML to provide appropriate due
process to her and to physicians similarly situated.”9 Dr. Uradu asks us to
generally and broadly “make clear to the KBML” that they must abide by all
statutory directives. This Court does not render advisory opinions. See, e.g.,
Kentucky High School Athletic Ass’n v. Davis, 77 S.W.3d 596 (Ky. App. 2002);
Newkirk v. Commonwealth, 505 S.W.3d 770 (Ky. 2016).
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Fox DeMoisey Sara Farmer
Louisville, Kentucky Louisville, Kentucky
9
See page 4 of Appellant’s reply brief. (Emphasis added.)
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