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Wassef v. Arizona State Board of Dental Examiners

Court of Appeals of Arizona, First Division

March 28, 2017

MICHAEL WASSEF, Plaintiff/Appellant,
v.
ARIZONA STATE BOARD OF DENTAL EXAMINERS, through its Executive Director ELAINE HUGUNIN, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. LC2014-000547-001 DT The Honorable Crane McClennen, Judge Retired

          Chester & Shein PC, Scottsdale By Mark D. Chester Counsel for Plaintiff/Appellant

          Arizona Attorney General's Office, Phoenix By Michael Raine Counsel for Defendant/Appellee

          Presiding Judge Kent E. Cattani delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Rick A. Williams [1] joined.

          OPINION

          CATTANI, Judge

         ¶1 Michael Wassef, a licensed dentist, appeals the superior court's ruling affirming the Arizona State Board of Dental Examiners (the "Board")'s order suspending his license to practice dentistry in Arizona. Wassef asserts that he was denied due process because he was not given a hearing before being ordered to undergo an inpatient substance abuse evaluation, and that his failure to comply with that order did not establish a basis for suspending his license. For reasons that follow, we affirm.

         FACTS AND PROCEDURAL BACKGROUND[2]

         ¶2 Wassef has a history of opioid addiction, and he participated in a monitored treatment program from 2002 through 2007.

         ¶3 In March 2014, a pharmacist contacted the Board with concerns about Wassef s prescription-writing practices. In response to the pharmacist's report, the Board reviewed Wassef's pharmacy management profile and subpoenaed records from his employer. The Board learned that from 2008 to 2014, Wassef had received prescriptions for controlled substances in increasing amounts. The prescriptions included hydrocodone, a controlled substance that Wassef had abused in the past. The Board also learned that Wassef had prescribed large amounts of the muscle relaxant Soma for his wife, his assistant, and his assistant's daughter, even though they were not patients of record and even though Soma is not typically prescribed for dental patients. Over a two-year period, Wassef wrote these individuals, collectively, forty-four Soma prescriptions.

         ¶4 The Board asked Wassef to undergo a urinalysis and meet with Dr. Michael Sucher, the medical director of the Board's monitored aftercare treatment program, for a preliminary substance abuse screening assessment, to be followed by further evaluation if deemed necessary based on the assessment. Wassef submitted to the urinalysis and tested positive for Soma and Tramadol, medications for which he had prescriptions. He refused, however, to meet with Dr. Sucher.[3]

         ¶5 On March 19, 2014, the Board determined that there was a "real and significant" risk that Wassef had relapsed in his addiction, and, pursuant to its authority under A.R.S. § 32-1207(B)(6), issued an order ("the Interim Order") directing Wassef to obtain an inpatient substance abuse evaluation within fourteen days at one of three approved facilities that have significant experience and expertise in evaluating and treating professionals with substance abuse/addiction issues.[4] Wassef did not comply with the Interim Order, declining to be admitted for inpatient assessment and asserting that an outpatient evaluation at an addiction treatment facility should be acceptable. The Board thus determined that emergency action was required based on public health, safety, and welfare concerns and suspended Wassef's license, stating it would lift the suspension if Wassef complied with the Interim Order.

         ¶6 The Board then filed a Complaint and Notice of Hearing alleging that Wassef's refusal to comply with the Interim Order constituted unprofessional conduct that jeopardized the health and safety of the public in violation of A.R.S. § 32-1201.01(14), [5] and that Wassef s license should be suspended.[6] After an evidentiary hearing, an administrative law judge ("ALJ") ruled that the Board had failed to prove by a preponderance of the evidence that Wassef was unsafe to practice and recommended that the Board reinstate his license.

         ¶7 The Board rejected or modified several portions of the ALJ's recommendation and ordered that Wassef s license remain suspended until he complied with the Interim Order. See A.R.S. § 41-1092.08(B) (authorizing the agency head, executive director, commission, or board to "review the [ALJ's] decision and accept, reject or modify it"). The Board subsequently denied Wassef s request for a rehearing, and he filed a complaint for judicial review in the superior court. See A.R.S. § 12-904(A). The superior court affirmed the Board's decision, and Wassef timely appealed.

         ¶8 This court stayed the Board's suspension order pending disposition of this appeal. We have jurisdiction under A.R.S. § 12-913. See Svendsen v. Ariz. Dep't ...


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