COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
THE STATE BOARD OF CHIROPRACTIC
COMMONWEALTH OF PENNSYLVANIA,
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
DEAN K.ZIEGLER, DC, Respondent
FILE NO. 11-43-09747
DOCKET NO. 0537-43-12
FINAL ADJUDICATION AND ORDER
KATHY J. BARLEY,
ACTING COMMISSIONER BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
KATHLEEN G. MCCONNELL, DC,
CHAIRPERSON STATE BOARD OF CHIROPRACTIC
2601 North Third Street
P.O. Box 2649
Harrisburg, PA 17105-2649 KEM
This matter comes before the State Board of Chiropractic (Board) on an Order to Show Cause (OSC) filed on March 19, 2012, as to why the Board should not suspend revoke, or otherwise restrict Respondent’s license under the authority of 63 P.S. §§ 625.506(a)(6), 703,
2205(b)(4), 2205(b)(5) or 18 Pa.C.S. § 9124(c)(l).
Respondent replied to the OSC by filing an Answer and With Affirmative Defenses. Within this Answer Respondent admitted several facts alleged in the OSC. A hearing was scheduled for July 26,2012, and was later rescheduled for September 27,2012.
On September 27, 2012, a hearing was held before the Board. Board members Kathleen G. McConnell, D.C, Jessie Smith, Christopher Decker, Miriam Meny Woods, Jonathan McCullough, D.C., Joseph Grice, D.C., and Kathy Barley, Deputy Commissioner were present for the hearing. 1 David M. Green, prosecuting attorney, appeared on behalf of the Commonwealth. Respondent was represented by counsel, but was not present at the hearing.
All Board members who deliberated on this case reviewed the entire record of the case prior to deliberation.
FINDINGS OF FACT
1. Respondent held a license to practice as a chiropractor in the Commonwealth of Pennsylvania: license no.: DC006399L. (Exhibit A atI; Board records)
2. Respondent’s license was originally issued on May 14, 1997, and may be renewed, reactivated or reinstated thereafter upon the filing of the appropriate documentation and payment of the necessary fees. (Exhibit A at2)
3. At all times relevant to the factual allegations, Respondent held a license to practice as chiropractor in the Commonwealth of Pennsylvania. (Exhibit A at3)
4. Respondent’s last known address on file with the Board is: 101 South 14th Street, Allentown, PA 18102. (Exhibit A at4)
5. On December 9, 2010, a criminal complaint was filed in Lehigh County Court of Common Pleas at No. AI-10-00459, charging Respondent with Insurance Fraud, Theft by Deception and Conspiracy, in violation of 18 Pa.C.S. §§ 4117(a)(2), 3922(a)(2) and 9039a), respectively. (Exhibit A at7; see Exhibit C-1)
6. On March 9, 2011, a Criminal Information was filed in Lehigh County Court of Common Pleas at No. CP-39-CR-680-2011, charging Respondent with two counts of Insurance Fraud, one count of Theft by Deception and one count of Criminal Conspiracy, in violation of 18Pa.C.S. §§ 4117(a)(2), 3922(a)(l) and 903(a), respectively. (Exhibit A at9; see Exhibit C-2)
7. On December 14, 20 II, Respondent pled guilty to one count of Insurance Fraud, a third-degree felony, in the criminal matter referenced here in above. (Exhibit A at II; see Exhibit C-3)
8. On January 26, 2012, Respondent was sentenced by the Lehigh County Court of Common Pleas to four to twelve months incarceration, followed by consecutive probation for a period of two years, and was ordered to pay restitution to State Farm Insurance in the sum of$6,098.52. (Exhibit A at13; see Exhibit C-4)
9. On March 19, 2012, the prosecuting attorney filed an Order To Show Cause (OSC) why the Board, upon consideration of the Factual Allegations and the applicable law, should not suspend, revoke or otherwise restrict Respondent’s license, impose a civil penalty, or impose the cost of investigation. (Board Records; see Exhibit A)
10. On May 18, 2012, Respondent, filed an answer with affirmative defenses to the Order to Show Cause. (Board Records; see Exhibit B)
11. On May 29’h, 2012, a hearing was scheduled for July 26, 2012. (Docket 11-43-
12. On July 24’\ 2012, the hearing was rescheduled for September 27, 2012. (Docket 11-49-09747, 0537-43-12)
13. On September 27, 2012, Respondent did not appear for his hearing but was represented by counsel. (N.T. 5,passim)
CONCLUSIONS OF LAW
I. The Board has jurisdiction in this matter. (Findings of fact nos. 1-3)
2. Respondent has been afforded reasonable notice of charges against him and an opportunity to be heard in this proceeding, in accordance with the Administrative Agency Law,
2 Pa. C.S. § 504. (Findings of Fact, Nos. 9-13)
3. Respondent is subject to disciplinary action under Section 506(a)(6) of the Act, 63
P.S. § 625.506(a)(6), because Respondent has been convicted of a felony in the courts of this Commonwealth. (Findings of Fact, Nos. 5-9)
4. Respondent is subject to disciplinary action under CHRIA,
18 Pa.C.S. § 9124(c)(1), because Respondent has been convicted of a felony. (Findings of Fact, Nos. 7-8)
This matter is brought under Section 506(a)(6) of the Act, 63 P.S. § 625.506(a)(6), which provides as follows:
Section 506. Refusal, suspension or revocation of license.
(a) Reasons enumerated. — The board may refuse to issue a license or may suspend or revoke a license for any of the following reasons:
(6) Being convicted of a felony, a misdemeanor in the practice of chiropractic, or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court, or a court of any other state, territory, possession or county. 63 P.S. § 625.506(a)(6).
Additionally, this matter is brought under Section 9124(c)(l) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. 9124(c (l ), which provides as follows: Section 9124. Use of records by licensing agencies.
(c) State action authorized.–Boards, commissions or departments of the Commonwealth authorized to license, cet1ify, register or permit the practice of trades, occupations or professions may refuse to grant or renew, or may suspend or
revoke any license, certificate, registration or permit for the following causes:
(I) Where the applicant has been convicted of a felony.
18 Pa. C.S.A. § 9124(c)(l).
The Commonwealth case at hearing was comprised of certified copies of documents from the Court of Common Pleas Lehigh County, evidencing the charges filed against Respondent, his conviction and sentencing. Specifically, Respondent pled guilty to one count of Insurance Fraud, a third-degree felony, in violation of 18 Pa. C.S. § 4117(a)(2).
The case law is clear that Respondent’s actions resulted in a conviction that may not be challenged in a subsequent licensure proceeding. Burnworth v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 589 A.2d 294 (Pa. Cmwlth. 1991) (citing Department of Transportation Bureau of Drivers Licensing v. Greene, 535 A.2d 306 (Pa. Cmwlth. 1988)). Accordingly, the documents admitted into evidence at the hearing establish a factual basis for the imposition of disciplinary action under Section 506(a)(6) of the Act, 63 P.S. § 625.506(a)(6).
Respondent pled guilty to one count of insurance fraud, and was sentenced to not less than four nor more than twelve months of imprisonment, two years of probation, and to pay restitution to State Farm in the sum of$6, 098.52.
According to court records, Respondent operated a chiropractic office, known as Ziegler Chiropractic Clinic, in which Respondent is the sole chiropractor. During the timeframe of January 21, 2009, through February 5, 2009, Respondent was incarcerated at Lehigh County Prison. However, during this same timeframe Respondent billed insurance companies, including State Farm, charging for doctor-provided services.
In assessing the appropriate sanction to impose, the Board considers the severity of violations, along with any mitigating factors present. During the hearing, Respondent’s attorney offered the information that Respondent has paid the restitution to State Farm Insurance in full. This information was later verified by a copy of the case financial information.
Under professional licensing statutes such as the Chiropractic Practice Act, the Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Board of Medicine, 670 A.2d 765, 767 (Pa.Cmwlth. 1996), (appeal denied 679 A.2d 230 (Pa. 1996)).
Respondent’s criminal actions squarely place before the Board the question of whether Respondent can be trusted to resume practice in an ethical manner. Because Respondent pled guilty to insurance fraud, there is substantial evidence that Respondent cannot practice in an ethical manner and, therefore, is subject to discipline. Respondent’s actions weigh heavily against his ability to practice chiropractic. The public can be protected only by the Board issuing an order to suspend Respondent’s license for five years, with six months active and the remainder stayed in favor of probation.
Thus, based upon the above findings of fact, conclusion of law and discussion, the following proposed order shall issue:
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE
STATE BOARD OF CHIROPRACTIC
Commonwealth of Pennsylvania,
Bureau of Professional and Occupational Affairs Docket No. 0537-43-12
Dean L. Ziegler, D.C., Respondent
File No. 11-43-09747
AND NOW, this 22nd of September, 2013, having duly convened and considered the entire record of the proceedings, and based upon the foregoing Findings of Fact, Conclusions of Law and Discussion, the State Board of Chiropractic hereby SUSPENDS the license to practice chiropractic of Respondent, Dean L. Ziegler, D.C., license numbers DC-006399L and AJ-006399-L, for FIVE YEARS, with SIX MONTHS ACTIVE, remainder to be stayed in favor of PROBATION. The terms of the Probation shall be as follows. Any violation of the terms of probation shall be considered a violation of this Order.
Respondent must enroll in an Ethics and Boundaries course. Respondent must complete this course and take and pass the Ethics and Boundaries Essay Examination offered by the National Board of Chiropractic Examiners.
At the end of the six month time period, Respondent submit to the Board proof that he has not practiced while suspended and that he has completed the Ethics and Boundaries course and passed the examination.
Further, Probation will be subject to the following te1ms and conditions:
1. Respondent shall abide by and obey all laws of the United States, the Commonwealth of Pennsylvania and its political subdivisions and all rules and regulations and laws pertaining to the practice of the profession in this Commonwealth or any other state or jurisdiction in which Respondent holds a license to practice the profession. Summary traffic violations shall not constitute a violation of this order.
2. Respondent shall at all times cooperate with the Bureau of Professional and Occupational Affairs and its agents and employees in the monitoring, supervision and investigation of Respondent’s compliance with the terms and conditions of this order, including requests for, and causing to be submitted at Respondent’s expense, written reports, records and verifications of actions that may be required by the Bureau of Professional and Occupational Affairs.
3. Respondent shall not falsity, misrepresent or make material omission of any information submitted pursuant to this order.
4. Respondent shall notify the Bureau of Professional and Occupational Affairs, in writing, within five (5) days of the filing of any criminal charges against Respondent, the initiation of any legal action pertaining to Respondent’s practice of the profession, the initiation, action, restriction or limitation relating to Respondent by a professional licensing authority of any state or jurisdiction or the Drug Enforcement Agency of the United States Department of Justice, or any other investigation, action, restriction or limitation relating to Respondent’s privileges to practice the profession.
5. Respondent shall notify the Bureau of Professional and Occupational Affairs by telephone within 48 hours and in writing within five (5) days of any change of Respondent’s home address, phone number, employment status, employer and/or change in practice.
VIOLATION OF THIS ORDER
6. Notification of a violation of the terms or conditions of this order shall result in the IMMEDIATE VACATING of the stay order, TERMINATION of the period of probation, and ACTIVATION of the suspension of Respondent’s license(s) to practice the profession in the Commonwealth of Pennsylvania as follows:
a. The prosecuting attorney for the Commonwealth shall present to the Board’s Probable Cause Screening Committee (Committee) a petition that indicates that Respondent has violated any terms or conditions of this order.
b. Upon a probable cause determination by the Committee that Respondent has violated any of the terms or conditions of this order, the Committee shall, without holding a formal hearing, issue a preliminary order vacating the stay of the within su pension, terminating this probation and activating the suspension of Respondent’s license.
c. Respondent shall be notified of the Committee’s preliminary order within three business days of its issuance by certified mail and first class mail, postage prepaid, sent to the Respondent’s last registered address on file with the Board, or by personal service if necessary.
d. Within 20 days of mailing of the preliminary order, Respondent may submit a written answer to the Commonwealth’s Petition and request that a formal hearing be held concerning Respondent’s violation of probation, in which Respondent may seek relief from the preliminary order activating the suspension. Respondent shall mail the original answer and request for hearing to the Bureau of Professional and Occupational Affairs’ Prothonotary, 2601 North Third Street, P.O. Box 2649, Harrisburg, PA 17105-2649, and a copy to the prosecuting attorney for the Commonwealth, as well as all subsequent filings in the matter.
e. If Respondent submits a timely answer and request for a formal hearing, the Board or a designated hearing examiner shall convene a formal hearing within 45 days from the date of the Prothonotary’s receipt of Respondent’s request for a formal hearing.
f. Respondent’s submission of a timely answer and request for a hearing shall not stay the suspension of Respondent’s license under the preliminary order. The suspension shall remain in effect unless the Board or the hearing examiner issues an order after the formal hearing staying the suspension again and reactivating the probation.
g. The facts and averments in this order shall be deemed admitted and uncontested at this hearing.
h. If the Board or hearing examiner after the formal hearing makes a determination against Respondent, a final order will be issued sustaining the suspension of Respondent’s license and imposing any additional disciplinary measures deemed appropriate.
i. If Respondent fails to timely file an answer and request for a hearing, the Board, upon motion of the prosecuting attorney, shall issue a final order affirming the suspension of Respondent’s license.
j. If Respondent does not make a timely answer and request for a formal hearing and a final order affirming the suspension is issued, or the Board or the hearing examiner makes a determination against Respondent· sustaining the suspension of Respondent’s license, after serving the stayed suspension period and any additional imposed discipline, Respondent may petition the Board for reinstatement upon verification that Respondent has complied with the Board’s order, abided by and obeyed all laws of the United States, the Commonwealth of Pennsylvania and its political subdivisions, and all rules and regulations pertaining to the practice of the profession in this Commonwealth.
k. Respondent’s failure to fully comply with any terms 0f this order may also constitute grounds for additional disciplinary action.
7. Nothing in this order shall preclude the prosecuting attorney for the Commonwealth from filing charges or the Board from imposing disciplinary or connective measures for violations or facts not contained in this order.
This order shall be effective immediately. The Suspension and Probation shall be effective October 30 2013, 30 days from the date of this Order.