Tran v. Board of Chiropractic Examiners

300 P.3d 169, 254 Or. App. 593, 2013 WL 174407, 2013 Ore. App. LEXIS 18
CourtCourt of Appeals of Oregon
DecidedJanuary 16, 2013
Docket20072006, 20063006, 20071012; A147147
StatusPublished

This text of 300 P.3d 169 (Tran v. Board of Chiropractic Examiners) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tran v. Board of Chiropractic Examiners, 300 P.3d 169, 254 Or. App. 593, 2013 WL 174407, 2013 Ore. App. LEXIS 18 (Or. Ct. App. 2013).

Opinion

DUNCAN, P. J.

The State Board of Chiropractic Examiners (board) found that petitioner had committed more than 800 violations of the provisions of ORS chapter 684, which governs the practice of chiropractic, and imposed a civil penalty of $201,250. Petitioner seeks judicial review of the board’s order, arguing that the board lacks the power to discipline him because he never applied for or received a license to practice chiropractic in Oregon. Petitioner also argues that the board may not impose a civil penalty of more than $10,000 in a single disciplinary proceeding regardless of the number of violations committed. We conclude that the board has the power to discipline petitioner and to impose a fine of up to $10,000 per violation of the provisions of ORS chapter 684. Accordingly, we affirm.

We begin with the facts found by the board, which petitioner does not dispute. From 2003 to 2008, petitioner, who was never licensed by the board and never applied for a license, owned two “wellness” clinics and employed a licensed chiropractor, Warner, who believed that petitioner was a licensed naturopathic physician.1 Petitioner examined and treated numerous patients, forged Warner’s name on patients’ charts, insurance forms, and other medical forms, and ordered x-rays in Warner’s name.

In 2008, the board proposed a civil penalty of $226,500 against petitioner for that conduct. Petitioner requested a hearing. Before his hearing, petitioner moved for summary determination on the basis that the board lacked authority to levy a civil penalty against him. An administrative law judge (ALJ) denied that motion. After a hearing before the ALJ, a limited rehearing, and review by the board, the board issued a final order imposing a civil penalty of $201,250 against petitioner.2 The board explained the types of violations that petitioner had committed and the number of each type, as reflected in the following table:

[595]*595Violation Number of Penalty per Total Violations Violation Penalty

Unlicensed practice on patients 560 $250 $140,000

Forged signatures on charts 138 $250 $34,500

Forged Medicare and Medicaid Forms 83 $250 $20,750

Fraudulent referrals 19 $250 $4,750

Forged signatures — insurance 4 $250 $1,000

Completing a work release form 1 $250 $250

Petitioner seeks judicial review of the board’s order, arguing that the relevant statutes demonstrate that the board may discipline only a licensee or an applicant for a license to practice chiropractic. He asserts that, because he was an unlicensed practitioner who never applied for a license, the board lacks authority to discipline him and the ALJ should have granted his motion for summary determination.

The board’s authority derives from ORS chapter 684, in which the legislature has set out a comprehensive regulatory scheme for the practice of chiropractic. The board is charged with enforcement of the regulatory scheme and supervision of chiropractic practice. The most basic requirement of chapter 684 is that a practitioner of chiropractic be licensed: “Without first complying with the provisions of this chapter, no person shall * * * [p]ractice or attempt to practice chiropractic.” ORS 684.015(l)(a); see also ORS 684.040 - 684.112 (governing licensing); ORS 684.020 (providing that, with exceptions not relevant here, “it is unlawful for any person to practice chiropractic in this state unless the person first obtains and maintains an active license, as provided in this chapter”).

The legislature granted the board rulemaking authority that reflects its supervisory role over the practice of chiropractic. The board may adopt rules “[establishing standards and tests to determine the moral, intellectual, educational, scientific, technical and professional qualifications of applicants for licenses to practice in this state” and “[t]o enforce the provisions of [ORS chapter 684] and to exercise general supervision over the practice of [596]*596chiropractic within this state.” ORS 684.155(l)(a), (b). The board’s supervisory role also includes enforcement of the statutory scheme and the board’s rules through several types of disciplinary action. The text of ORS 684.100(1) demonstrates the breadth of that authority. That section provides, in part, as follows:

“(1) The State Board of Chiropractic Examiners may refuse to grant a license to any applicant or may discipline a person upon any of the following grounds:
“(a) Fraud or misrepresentation.
“(b) The practice of chiropractic under a false or assumed name.
“(c) The impersonation of another practitioner of like or different name.
^
“(p) Violation of any provision of this chapter or any rule adopted thereunder.”

ORS 684.100(9) lists seven types of discipline that the board may impose:

“In disciplining a person as authorized by subsection (1) of this section, the board may use any or all of the following methods:
“(a) Suspend judgment.
“(b) Place the person on probation.
“(c) Suspend the license of the person to practice chiropractic in this state.
“(d) Revoke the license of the person to practice chiropractic in this state.
“(e) Place limitations on the license of the person to practice chiropractic in this state.
“(f) Impose a civil penalty not to exceed $10,000.
“(g) Take other disciplinary action as the board in its discretion finds proper, including assessment of the costs of the disciplinary proceedings.”

Petitioner argues that, despite the text of ORS 684.100(1), which provides that the board may discipline “a person” [597]*597for “ [violation of any provision” of chapter 684, the board does not have authority over those persons who violate the provision prohibiting unlicensed practice.

Petitioner’s argument regarding the scope of the board’s disciplinary authority under ORS 684.100 presents a question of statutory interpretation. In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020(l)(a); State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009); PGE v.

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Cite This Page — Counsel Stack

Bluebook (online)
300 P.3d 169, 254 Or. App. 593, 2013 WL 174407, 2013 Ore. App. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tran-v-board-of-chiropractic-examiners-orctapp-2013.