BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for Penalty Relief­Reinstatement of Revoked Certificate of:

) ) )

ELSWORTH P. WILLIAMS

Petitioner.

DECISION

) Case No. 8002014002366 ) ) OAH No. 2014060163 ) ) )

The Proposed Decision of Ralph B. Dash, Administrative Law Judge, dated October 1, 2014 is attached hereto. Said decision is hereby amended, pursuant to Government Code section 11517( c )(2)(C), to correct technical or minor changes that do not affect the factual or legal basis of the proposed decision. The proposed decision is amended as follows:

1. Page 1, Case No. 8002014060163 is stricken and replaced with Case No. 8002014002366

The Proposed Decision as amended is hereby accepted and adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00p.m. on November 26, 2014.

IT IS SO ORDERED October 30,2014.

MEDICAL BOARD OF CALIFORNIA

By: ____________________ __ Dev Gnanadev, M.D., Chair Panel B

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Petition for Reinstatement of Revoked Certificate of: MBC Case No. 800-2014-060163

ELSWORTH P. WILLIAMS, OAH Case No. 2014060163

Petitioner,

PROPOSED DECISION

Administrative Law Judge Ralph B. Dash heard this matter on September 11, 2014, in Los Angeles, California.

Deputy Attorney General Randall Murphy represented the Office of the Attorney General.

Attorney at Law Robert W. Frank represented Elsworth P. Williams (Petitioner), who was present throughout the proceedings.

Oral and documentary evidence having been received and the matter having been submitted, the Administrative Law Judge makes the following Proposed Decision.

FINDINGS OF FACT

1. On August 30, 1971, the Medical Board of California (Board) issued Physician's and Surgeon's Certificate number A 24406 to Petitioner.

2. In its Decision effective November 14, 2005, in case number 23-2003-142527, the Board accepted and adopted a stipulated surrender of Petitioner's license. In the surrender documents, Petitioner admitted the allegations in the Accusation filed in that case. Petitioner, referenced as "Respondent" in the Accusation, admitted the following:

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FIRST CAUSE FOR DISCIPLINE (Prescribing Without Prior Examination)

12. Respondent is subject to disciplinary action under section 2242 of the Code in that he prescribed, sold, and furnished dangerous drugs specified in section 4022 of the Code to Patients Daniel P., Tulie F., Kevin B., Janice H., John R., Kenneth F., and Samantha W., without a good faith prior examination. The circumstances are as follows.

13. At all times relevant to this Cause for Discipline Respondent was not licensed to practice medicine in any State other than the State of California.

14. Respondent came into contact with the Patients Daniel P., Julie F., Kevin B., Janice H., John R., Kenneth F. and Samantha W. (sometimes hereinafter referred to as "the patients") through an entity called "Medical Services Network" ("MSN"). The patients initially contacted MSN through an Internet site maintained by MSN. Thereafter, MSN referred these patients to Respondent. MSN charged the patients approximately $100 for each telephonic consultation with Respondent. Respondent received compensation from MSN for his telephonic consultations with the patients.

15. Each of the patients was a resident of a state other than California. Respondent had no face-to-face contact with any of the patients. Rather, all consultations with Respondent were accomplished via telephone communication between the patients and Respondent. Respondent provided each of the patients with multiple prescriptions for dangerous drugs within the meaning of Section 4022 of the Code without having first examined any of the patients, as set forth in the table in paragraph 16 below. In each instance, the prescription was filled and the medication was shipped to the patient by one of three California pharmacies, namely, Glesener Pharmacy in Covina, California; Absolute Care Pharmacy in Van Nuys, California; or Mariner's Pharmacy in Newport Beach, California.

16. The table below sets forth, as to each patient, the patient's state of residence, the drug prescribed by Respondent to the patient, the number of refills allowed by the prescription, and the approximate date of the prescription.

Patient

Daniel P.

Daniel P.

State

Pennsylvania Tylenol #4

Pennsylvania Tylenol #4

2

Refills

2

2

Date

December 1, 2000

April11, 2001

Daniel P. Pennsylvania Tylenol #4 2 June 15, 2001

Julie F. Idaho hydrocodone 10/500 2 May 10,2001

Julie F. Idaho Soma 2 August 10, 2001

Julie F. Idaho hydrocodone 10/500 2 August 10, 2001

Julie F. Idaho Soma 2 December 3, 2001

Julie F. Idaho hydrocodone 10/500 2 December 3, 2001

Kevin B. Indiana hydrocodone 10/650 2 August 6, 2001

Kevin B. Indiana Valium 2 August 6, 2001

Kevin B. Indiana hydrocodone 10/650 2 October 10, 2001

Kevin B. Indiana Valium 2 October 10, 2001

Kevin B. Indiana hydrocodone 10/650 2 January 3, 2002

Kevin B. Indiana Valium 2 January 3, 2002

Kevin B. Indiana hydrocodone 10/650 2 March 15, 2002

Kevin B. Indiana Valium 2 March 15, 2002

Janice H. New Jersey Vicodin ES 2 February 7, 2001

Janice E. New Jersey Soma 2 May 30, 2001

Janice H. New Jersey Vicodin ES 2 May 30, 2001

Janice H. New Jersey Vicodin ES 2 September 11, 2001

John R. Arkansas hydrocodone 10/325 2 December 26, 2000

John R. Arkansas hydrocodone 10/325 7 April 16, 2001

John R. Arkansas Adipex 7 November 7, 200 1

John R. Arkansas hydrocodone 10/325 2 November 7, 200 1

Kenneth F. Texas hydrocodone 7.5/500 2 May 23, 2001

Kenneth F. Texas Lorcet 10/650 2 September 26, 2001

Samantha W. Mississippi Vicoprofen 2 June 11, 2001

Samantha W. Mississippi Klonopin September 19, 2001

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Samantha W. Mississippi Vicoprofen

Samantha W. Mississippi Klonopin

December 17, 2001

December 17, 2001

17. Each of the drugs listed in paragraph 16 above is a dangerous drug within the meaning of Section 4022 of the Code, and was dispensed by a pharmacy in California to the patient as listed in paragraph 16 above.

SECOND CAUSE FOR DISCIPLINE (Violation of Federal Drug Statute)

18. Respondent is subject to disciplinary action under section 2233 of the Code in that he violated federal statutes regulating dangerous drugs or controlled substances. The federal statutes violated by Respondent are sections 331(a) and 353(b) oftitle 21 ofthe United States Code, which sections are part ofthe Federal Food, Drug, and Cosmetic Act. Sections 331(a) and 353(b) prohibit the introduction or delivery for introduction into interstate commerce, or the causing of such introduction or delivery for introduction, of any misbranded drug. The circumstances ofthe violations are as follows.

19. The facts alleged in paragraphs 13-17 above are re-alleged at this point.

20. Each of the drugs listed in paragraph 16 above is subject to the prescription requirements of section 353(b) oftitle 21 ofthe United States Code.

21. The Physician and Surgeon's Certificate issued by the Board did not authorize Respondent to administer dangerous drugs to the patients listed in paragraph 16 above, all of whom resided outside the State of California and none of whom Respondent had examined, either within the State of California or outside the State of California. Moreover, Respondent did not at any time relevant to the Causes for Discipline alleged herein possess a license from any other State authorizing him to administer any of the drugs listed in paragraph 16 above to the patients. Accordingly, pursuant to section 353(b) oftitle 21 of the United States Code, each act of dispensing of the drugs listed in paragraph 16 above is deemed to be an act which resulted in the drug being misbranded while held for sale.

22. Each of the drugs listed in paragraph 16 above was, pursuant to Respondent's prescription, dispensed by a pharmacy in the State of California through interstate commerce to the patients as listed in paragraph 16 above.

23. Respondent's conduct as set forth in paragraphs 13-17 above constituted the introduction or delivery for introduction, or the causing of such introduction or delivery for introduction, into interstate commerce, of misbranded drugs, in violation of section 353(b) oftitle 21 ofthe United States Code.

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THIRD CAUSE FOR DISCIPLINE:

(Prescribing to an Addict-Patient Samantha W.)

24. Respondent is subject to disciplinary action under section 2241 of the Code in that he prescribed a drug or compound mentioned in section 2239 of the Code, to wit, Vicoprofen, to Patient Samantha W., who was, at the time of the prescriptions, an addict to narcotic analgesics. The circumstances are as follows:

25. The facts alleged in paragraphs 13-16 above are re-alleged at this point.

26. Vicoprofen (hydrocodone bitartrate and ibuprofen tablets) is a narcotic analgesic, and a Schedule III controlled substance. Vicoprofen is a dangerous drug within the meaning of section 4022 of the Code.

27. As of June 11, 2001, Samantha W. was addicted to narcotic analgesics.

DISCIPLINE CONSIDERATIONS

28. To determine the degree of discipline, if any, to be imposed on Respondent, Complainant alleges that on or about September 22, 1993, in a prior disciplinary action entitled In the Matter of the Accusation Against Elsworth P. Williams, M.D. before the Medical Board of California, in Case Number D-50 15, Respondent's license was placed on probation for five years, with forty-five days of actual suspension, for unprofessional conduct within the meaning of sections 726 and 2234, subdivision (a) of the Code (sexual misconduct in the treatment of two patients); and for incompetence within the meaning of section 2234, subdivision (d), of the Code (incompetently performed breast examination). That decision is now final and is incorporated by reference as if fully set forth. Respondent successfully completed probation, and his physician and surgeon's certificate was fully restored to clear status and free of probation requirements effective September 22, 1998. 1

3. Petitioner made an impressive showing that he has been rehabilitated from his former misconduct, all of which he attributed to his addiction to drugs and alcohol. Petitioner testified on his own behalf. He was confident, articulate and honest. He freely talked about his past without attempting to palliate or vitiate his conduct. Virtually all of Petitioner's testimony regarding his continuing recovery and sobriety was corroborated by several people who testified at the hearing. In this regard it is important to note that Petitioner has a strong support network; so strong that 18 of his supporters crowded the small courtroom in which this matter was heard.

1 The Deputy Attorney General chose not to question Petitioner about the 1993 discipline.

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4. Petitioner has been sober for the past 10 years. A full year before he surrendered his license, Petitioner attended the Farley Center in Virginia where he became sober. He then went to the HealthCare Center in Tampa, Florida. This facility has a specific recovery curriculum for doctors and other healthcare professionals. Petitioner is committed to maintaining his sobriety. He has gone, and continues to go, to Alcoholics Anonymous meetings once or twice, sometimes thrice, per day, every day of the week. He has had a sponsor for the past 9 years and he, in turn, sponsors others.

5. In 2009, Petitioner began attending group therapy and recovery sessions through Pacific Assistance Group (PAG), an entity that supports and monitors California physicians. Petitioner was required to have twice monthly random, monitored urine tests, all of which were negative. Petitioner still provides random urine samples but on a less frequent basis. The leader of Petitioner's PAG group is Kirby Palmer, a Licensed Clinical Social Worker. Mr. Palmer testified that Petitioner is not only very active in group therapy, but that "he approaches sobriety as the most important part of his life." He characterized Petitioner's recovery as "very very solid."

6. Eight years ago Petitioner formed a Caduceus Group at Lorna Linda University Medical Center "to put together a forum for healthcare professionals" who are in recovery. The group meets weekly and he attends each meeting in addition to his regular AA and PAG meetings. Petitioner is also active with International Doctors in Alcoholics Anonymous, helping to organize its annual conventions. Dr. Harry L. Haroutounian, the Physician Director of the Betty Ford Center,2 persuaded Petitioner to get involved with this international group. Dr. Haroutounian wrote a declaration on Petitioner's behalf which reads, in part, "I have known [Petitioner] for approximately seven years ... as a friend and colleague and fellow gentleman in recovery. In that time, I have grown to know him to be a man of integrity and patience, compassion and tolerance. I find [Petitioner], without question, an honorable and dignified man and can wholeheartedly recommend him, without

2 At the hearing, the Deputy Attorney General vigorously attacked Respondent's testimony that Dr. Haroutounian, who signed a declaration on Petitioner's behalf, actually was the Physician Director of the Betty Ford Center because the declaration, which was in letter form, was not on Betty Ford Center stationary. The Betty Ford Center website states, "Dr. Harry L. Haroutunian, known by all his patients as "Dr. Harry" is an internationally known speaker on topics of the addiction field. He has developed the "Recovery 101" lecture series on topics of Addiction Medicine, Recovery Issues, Communication Skills and Relapse Prevention. As Physician Director of the Betty Ford Center, Dr. Haroutunian has contributed to the development of a variety of programs, including the Extended Care Program, the Licensed Professional Program and the Clinical Diagnostic Evaluation Program. He is the author of 'Being Sober: A Step-by-Step Guide to Getting To, Getting Through and Living in Recovery' and collaborated with Dr. Louis Teresi, to author 'Hijacking the Brain: How Drug and Alcohol Addiction Hijacks our Brains- The Science Behind Twelve-Step Recovery."' Official Notice is taken of the Betty Ford Center website (http://www. bettyfordcenter .org/recovery I author /Dr. %20Harry%20Haroutunian. php ).

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hesitation, for reinstatement of his licensure for the practice of medicine in the State of California."

7. Petitioner chose to form the Caduceus Group at Lorna Linda because he attends weekly family medicine Grand Rounds there. This is part of his efforts to remain up to date on his chosen field of practice. In addition, Petitioner subscribes to the New England Journal of Medicine, which he reads monthly. Every day he visits the Journal's website, which posts daily updates, to help keep his medical knowledge current.

8. Petitioner, through his own perseverance and dedication, and with the help of a wide support network, has maintained his sobriety. He is, at present, a socially and professionally responsible person and it would not be against the public interest to reinstate his medical license conditioned as set forth below. Although Petitioner presented evidence that he has kept up with the latest standards of practice in family medicine, his area of practice, he has not actually practiced medicine in 10 years. Accordingly, as a condition precedent to his being re-licensed, he will be required to take the Special Purpose Examination (SPEX). 3

LEGAL CONCLUSIONS

1. The burden rests on a petitioner to prove that he has rehabilitated himself and that he is entitled to have his license restored. (Flanzer v. Board of Dental Examiners ( 1990) 220 Cal.App.3d 1392, 1398.)

2. A person seeking reinstatement must present strong proof of rehabilitation and the showing of rehabilitation must be sufficient to overcome the Board's former adverse determination. The standard of proof is clear and convincing evidence. (Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d, 308, 315-316.)

3. Government Code section 11522, Business and Professions Code section 2307 and California Code of Regulations, title 16, section 13597, govern these proceedings and establish the timelines and format for filing a petition.

4. California Code of Regulations, title 16, section 1360.2, provides:

When considering a petition for reinstatement of a license ... pursuant to the provisions of Section 11522 of the Government Code, the division or panel shall evaluate evidence of rehabilitation submitted by the petitioner considering the following criteria:

3 The SPEX is a computerized, multiple-choice examination of current knowledge requisite for the general, undifferentiated practice of medicine.

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(a) The nature and severity ofthe act(s) or crime(s) under consideration as grounds for denial.

(b) Evidence of any act(s) or crime(s) committed subsequent to the act(s) or crime(s) under consideration as grounds for denial which also could be considered as grounds for denial under Section 480.

(c) The time that has elapsed since commission ofthe act(s) or crime(s) referred to in subsections (a) or (b).

(d) In the case of a suspension or revocation based upon the conviction of a crime, the criteria set forth in Section 1360.1, subsections (b), (d) and (e).

(e) Evidence, if any, of rehabilitation submitted by the applicant.

5. Rehabilitation is a state of mind and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved reformation and regeneration. (Hightower v. State Bar (1983) 34 Cal.3d 150, 157.)

6. Cases authorizing reinstatement to a professional practice commonly involve a substantial period of exemplary conduct following the misdeeds. The more serious the misconduct, the stronger the showing of rehabilitation must be. (In re Gossage (2000) 23 Cal.4th 1080, 1098.)

7. The purpose of discipline is not to punish, but to protect the public by eliminating practitioners who are dishonest, immoral, disreputable or incompetent. (Fahmy v. Medical Board ofCalifornia (1995) 38 Cal.App.4th 810, 817.)

8. Petitioner has met his burden, as set forth in Findings 3 through 7, that he has been sufficiently rehabilitated to warrant reinstatement of his medical license on a probationary basis.

ORDER

WHEREFORE, THE FOLLOWING ORDER is hereby made:

The Petition of Elsworth P. Williams for reinstatement of his revoked Physician's and Surgeon's Certificate number A 24406 is granted, subject to the following:

The newly reinstated certificate is hereby revoked. However, the revocation is stayed and Petitioner is placed on probation for five (5) years upon the following terms and conditions:

1. SPEX Exam: Within 60 calendar days of the effective date of this Decision, Petitioner shall take and pass the SPEX or an equivalent examination as determined by the

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Board or its designee. If Petitioner fails the first examination, he shall be allowed to take and pass a second examination.

Petitioner shall not practice medicine until he has passed the required examination and has been so notified by the Board or its designee in writing.

Failure to pass the required written examination within 180 calendar days after the effective date of this Decision is a violation of probation. Petitioner shall pay the costs of all examinations.

2. Professionalism Program (Ethics Course): Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a professionalism program, that meets the requirements ofTitle 16, California Code ofRegulations (CCR) section 1358. Respondent shall participate in and successfully complete that program. Respondent shall provide any information and documents that the program may deem pertinent. Respondent shall successfully complete the classroom component of the program not later than six (6) months after respondent's initial enrollment, and the longitudinal component of the program not later than the time specified by the program, but no later than one ( 1) year after attending the classroom component. The professionalism program shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

A professionalism program taken after the acts that gave rise to the charges in the Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this condition if the program would have been approved by the Board or its designee had the program been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the program or not later than 15 calendar days after the effective date of the Decision, whichever is later.

3. Monitoring ofPractice: Within 30 calendar days of passing the examination required by Condition number 1, Petitioner shall submit to the Board or its designee for prior approval as a practice monitor, the name and qualifications of one or more licensed physicians and surgeons whose licenses are valid and in good standing, and who are preferably American Board of Medical Specialties (ABMS) certified. A monitor shall have no prior or current business relationship with Petitioner, or any other relationship that could reasonably be expected to compromise the ability of the monitor to render fair and unbiased reports to the Board, including but not limited to any form ofbartering, shall be in Petitioner's field of practice, and must agree to serve as Petitioner's monitor. Petitioner shall pay all monitoring costs.

The Board or its designee shall provide the approved monitor with copies of the Decision and Accusation, and a proposed monitoring plan. Within 15 calendar days of receipt

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of the Decision, Accusation, and proposed monitoring plan, the monitor shall submit a signed statement that the monitor has read the Decision and Accusation, fully understands the role of a monitor, and agrees or disagrees with the proposed monitoring plan. If the monitor disagrees with the proposed monitoring plan, the monitor shall submit a revised monitoring plan with the signed statement.

Within 60 calendar days of the completion of the program set forth in Condition number 1 ofthis Order, and continuing through the first year of probation, Petitioner's practice shall be monitored by the approved monitor. Petitioner shall make all records available for immediate inspection and copying on the premises by the monitor at all times during business hours and shall retain the records for the entire term of probation.

The monitor shall submit a quarterly written report to the Board or its designee which includes an evaluation of Petitioner's performance, indicating whether Petitioner's practices are within the standards of practice of medicine or billing, or both, and whether Petitioner is practicing medicine safely, billing appropriately or both. It shall be the sole responsibility of Petitioner to ensure that the monitor submits the quarterly written reports to the Board or its designee within 10 calendar days after the end of the preceding quarter.

If the monitor resigns or is no longer available, Petitioner shall, within five calendar days of such resignation or unavailability, submit to the Board or its designee, for prior approval, the name and qualifications of a replacement monitor who will be assuming that responsibility within 15 calendar days. If Petitioner fails to obtain approval of a replacement monitor within 60 days of the resignation or unavailability of the monitor, Petitioner shall be suspended from the practice of medicine until a replacement monitor is approved and prepared to assume immediate monitoring responsibility. Petitioner shall cease the practice of medicine within three calendar days after being so notified by the Board or designee.

In lieu of a monitor, Petitioner may participate in a professional enhancement program equivalent to the one offered by PACE that includes, at minimum, quarterly chart review, semi­annual practice assessment, and semi-annual review of professional growth and education. Petitioner shall participate in the professional enhancement program at Petitioner's expense during the term of probation.

Failure to maintain all records, or to make all appropriate records available for immediate inspection and copying on the premises, or to comply with this condition as outlined above is a violation of probation.

4. Controlled Substances- Total Restriction: Respondent shall not order, prescribe, dispense, administer, furnish, or possess any controlled substances as defined in the California Uniform Controlled Substances Act.

Respondent shall not issue an oral or written recommendation or approval to a patient or a patient's primary caregiver for the possession or cultivation of marijuana for the personal medical purposes ofthe patient within the meaning of Health and Safety Code section 11362.5.

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If respondent forms the medical opinion, after an appropriate prior examination and a medical indication, that a patient's medical condition may benefit from the use of marijuana, respondent shall so inform the patient and shall refer the patient to another physician who, following an appropriate prior examination and a medical indication, may independently issue a medically appropriate recommendation or approval for the possession or cultivation of marijuana for the personal medical purposes of the patient within the meaning of Health and Safety Code section 11362.5. In addition, respondent shall inform the patient or the patient's primary caregiver that respondent is prohibited from issuing a recommendation or approval for the possession or cultivation of marijuana for the personal medical purposes of the patient and that the patient or the patient's primary caregiver may not rely on respondent's statements to legally possess or cultivate marijuana for the personal medical purposes of the patient. Respondent shall fully document in the patient's chart that the patient or the patient's primary caregiver was so informed. Nothing in this condition prohibits respondent from providing the patient or the patient's primary caregiver information about the possible medical benefits resulting from the use of marijuana.

5. Controlled Substances- Abstain From Use: Respondent shall abstain completely from the personal use or possession of controlled substances as defined in the California Uniform Controlled Substances Act, dangerous drugs as defined by Business and Professions Code section 4022, and any drugs requiring a prescription. This prohibition does not apply to medications lawfully prescribed to respondent by another practitioner for a bona fide illness or condition.

Within 15 calendar days of receiving any lawfully prescribed medications, respondent shall notify the Board or its designee ofthe: issuing practitioner's name, address, and telephone number; medication name, strength, and quantity; and issuing pharmacy name, address, and telephone number.

If respondent has a confirmed positive biological fluid test for any substance (whether or not legally prescribed) and has not reported the use to the Board or its designee, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. The respondent shall not resume the practice of medicine until final decision on an accusation and/or a petition to revoke probation. An accusation and/or petition to revoke probation shall be filed by the Board within 15 days of the notification to cease practice. If the respondent requests a hearing on the accusation and/or petition to revoke probation, the Board shall provide the respondent with a hearing within 30 days of the request, unless the respondent stipulates to a later hearing. A decision shall be received from the Administrative Law Judge or the Board within 15 days unless good cause can be shown for the delay. The cessation of practice shall not apply to the reduction of the probationary time period.

If the Board does not file an accusation or petition to revoke probation within 15 days of the issuance of the notification to cease practice or does not provide respondent with a hearing within 30 days of such a request, the notification of cease practice shall be dissolved.

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6. Alcohol- Abstain From Use: Respondent shall abstain completely from the use of products or beverages containing alcohol.

If respondent has a confirmed positive biological fluid test for alcohol, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. The respondent shall not resume the practice of medicine until final decision on an accusation and/or a petition to revoke probation. An accusation and/or petition to revoke probation shall be filed by the Board within 15 days of the notification to cease practice. If the respondent requests a hearing on the accusation and/or petition to revoke probation, the Board shall provide the respondent with a hearing within 30 days of the request, unless the respondent stipulates to a later hearing. A decision shall be received from the Administrative Law Judge or the Board within 15 days unless good cause can be shown for the delay. The cessation of practice shall not apply to the reduction of the probationary time period.

If the Board does not file an accusation or petition to revoke probation within 15 days of the issuance of the notification to cease practice or does not provide respondent with a hearing within 30 days of a such a request, the notification of cease practice shall be dissolved.

7. Biological Fluid Testing: Respondent shall immediately submit to biological fluid testing, at respondent's expense, upon request of the Board or its designee. "Biological fluid testing" may include, but is not limited to, urine, blood, breathalyzer, hair follicle testing, or similar drug screening approved by the Board or its designee. Prior to practicing medicine, respondent shall contract with a laboratory or service approved in advance by the Board or its designee that will conduct random, unannounced, observed, biological fluid testing. The contract shall require results of the tests to be transmitted by the laboratory or service directly to the Board or its designee within four hours of the results becoming available. Respondent shall maintain this laboratory or service contract during the period of probation.

A certified copy of any laboratory test result may be received in evidence in any proceedings between the Board and respondent.

If respondent fails to cooperate in a random biological fluid testing program within the specified time frame, respondent shall receive a notification from the Board or its designee to immediately cease the practice of medicine. The respondent shall not resume the practice of medicine until final decision on an accusation and/or a petition to revoke probation. An accusation and/or petition to revoke probation shall be filed by the Board within 15 days of the notification to cease practice. If the respondent requests a hearing on the accusation and/or petition to revoke probation, the Board shall provide the respondent with a hearing within 30 days of the request, unless the respondent stipulates to a later hearing. A decision shall be received from the Administrative Law Judge or the Board within 15 days unless good cause can be shown for the delay. The cessation of practice shall not apply to the reduction ofthe probationary time period.

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If the Board does not file an accusation or petition to revoke probation within 15 days of the issuance of the notification to cease practice or does not provide respondent with a hearing within 30 days of a such a request, the notification of cease practice shall be dissolved.

8. Education Course: Within 60 calendar days of the effective date of this Decision, and on an annual basis thereafter, respondent shall submit to the Board or its designee for its prior approval educational program(s) or course(s) which shall not be less than 40 hours per year, for each year of probation. The educational program( s) or course( s) shall be aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified. The educational program(s) or course(s) shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure. Following the completion of each course, the Board or its designee may administer an examination to test respondent's knowledge of the course. Respondent shall provide proof of attendance for 65 hours of CME of which 40 hours were in satisfaction of this condition.

9. Medical Evaluation and Treatment: 4 Within 30 calendar days of the effective date of this Decision, and on a periodic basis thereafter as may be required by the Board or its designee, respondent shall undergo a medical evaluation by a Board-appointed physician who shall consider any information provided by the Board or designee and any other information the evaluating physician deems relevant and shall furnish a medical report to the Board or its designee. Respondent shall provide the evaluating physician any information and documentation that the evaluating physician may deem pertinent.

Following the evaluation, respondent shall comply with all restrictions or conditions recommended by the evaluating physician within 15 calendar days after being notified by the Board or its designee. If respondent is required by the Board or its designee to undergo medical treatment, respondent shall within 30 calendar days of the requirement notice, submit to the Board or its designee for prior approval the name and qualifications of a California licensed treating physician of respondent's choice. Upon approval of the treating physician, respondent shall within 15 calendar days undertake medical treatment and shall continue such treatment until further notice from the Board or its designee.

The treating physician shall consider any information provided by the Board or its designee or any other information the treating physician may deem pertinent prior to commencement of treatment. Respondent shall have the treating physician submit quarterly reports to the Board or its designee indicating whether or not the respondent is capable of practicing medicine safely. Respondent shall provide the Board or its designee with any and all medical records pertaining to treatment, the Board or its designee deems necessary.

4 This condition has been added because during the hearing, Petitioner sought to assure the Board that he was not too old to practice medicine (he is 72) and offered a letter from his current physician attesting to his state of health (Exhibit A). That letter shows Petitioner to be suffering from a number of things, including diabetes mellitus, chronic kidney disease-stage 3, and hypertension.

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If, prior to the completion of probation, respondent is found to be physically incapable of resuming the practice of medicine without restrictions, the Board shall retain continuing jurisdiction over respondent's license and the period of probation shall be extended until the Board determines that respondent is physically capable of resuming the practice of medicine without restrictions. Respondent shall pay the cost of the medical evaluation(s) and treatment.

10. Solo Practice Prohibition: Respondent is prohibited from engaging in the solo practice of medicine. Prohibited solo practice includes, but is not limited to, a practice where: 1) respondent merely shares office space with another physician but is not affiliated for purposes of providing patient care, or 2) respondent is the sole physician practitioner at that location.

If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days ofthe effective date ofthis Decision, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established.

If, during the course of the probation, the respondent's practice setting changes and the respondent is no longer practicing in a setting in compliance with this Decision, the respondent shall notify the Board or its designee within 5 calendar days of the practice setting change. If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the practice setting change, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established.

11. Notification. Prior to engaging in the practice of medicine Petitioner shall provide a true copy of this Decision and Order to the Chief of Staff or the Chief Executive Officer at every hospital where privileges or membership are extended to Petitioner, at any other facility where Petitioner engages in the practice of medicine, including all physician and locum tenens registries or other similar agencies, and to the Chief Executive Officer at every insurance carrier which extends malpractice insurance coverage to Petitioner. Petitioner shall submit proof of compliance to the Board or its designee within 15 calendar days. This condition shall apply to any change in hospitals, other facilities or insurance carrier.

12. Supervision ofPhysician Assistants. During probation, Petitioner is prohibited from supervising physician assistants.

13. Obey All Laws. Petitioner shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in full compliance with any court­ordered criminal probation, payments, and other orders.

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14. Quarterly Declarations. Petitioner shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation. Petitioner shall submit quarterly declarations not later than 10 calendar days after the end of the preceding quarter.

15. General Probation Requirements: Compliance with Probation Unit Respondent shall comply with the Board's probation unit and all terms and conditions of this Decision.

Address Changes

Respondent shall, at all times, keep the Board informed of respondent's business and residence addresses, email address (if available), and telephone number. Changes of such addresses shall be immediately communicated in writing to the Board or its designee. Under no circumstances shall a post office box serve as an address of record, except as allowed by Business and Professions Code section 2021 (b).

Place of Practice

Respondent shall not engage in the practice of medicine in respondent's or patient's place of residence, unless the patient resides in a skilled nursing facility or other similar licensed facility.

License Renewal

Respondent shall maintain a current and renewed California physician's and surgeon's license.

Travel or Residence Outside California

Respondent shall immediately inform the Board or its designee, in writing, oftravel to any areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty (30) calendar days. In the event respondent should leave the State of California to reside or to practice respondent shall notifY the Board or its designee in writing 30 calendar days prior to the dates of departure and return.

16. Interview with the Board or Its Designee. Petitioner shall be available in person for interviews either at Petitioner's place of business or at the probation unit office, with the Board or its designee upon request at various intervals and either with or without prior notice throughout the term of probation.

17. Residing or Practicing Out-of-State. In the event Petitioner should leave the State of California to reside or to practice, Petitioner shall notifY the Board or its designee in writing 30 calendar days prior to the dates of departure and return. Non-practice is defined as any period of time exceeding thirty calendar days in which Petitioner is not engaging in any activities defined in sections 2051 and 2052 of the Business and Professions Code.

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All time spent in an intensive training program outside the State of California which has been approved by the Board or its designee shall be considered as time spent in the practice of medicine within the State. A Board-ordered suspension of practice shall not be considered as a period of non-practice. Periods of temporary or permanent residence or practice outside California will not apply to the reduction of the probationary term. Periods of temporary or permanent residence or practice outside California will relieve Petitioner of the responsibility to comply with the probationary terms and conditions with the exception of this condition and conditions of probation numbers 13 and 15.

Petitioner's license shall be automatically cancelled if Petitioner's periods oftemporary or permanent residence or practice outside California total two years. However, Petitioner's license shall not be cancelled as long as Petitioner is residing and practicing medicine in an other state ofthe United States and is on active probation with the medical licensing authority of that state, in which case the two-year period shall begin on the date probation is completed or terminated in that state.

18. Failure to Practice Medicine - California Resident. In the event Petitioner resides in the State of California and for any reason Petitioner stops practicing medicine in California, Petitioner shall notifY the Board or its designee in writing within 30 calendar days prior to the dates of non-practice and return to practice. Any period of non-practice within California, as defined in this condition, will not apply to the reduction of the probationary term and does not relieve Petitioner of the responsibility to comply with the terms and conditions of probation. Non-practice is defined as any period of time exceeding thirty calendar days in which Petitioner is not engaging in any activities defined in sections 2051 and 2052 of the Business and Professions Code. Petitioner's license shall be automatically cancelled if Petitioner resides in California and for a total of two years, fails to engage in California in any of the activities described in Business and Professions Code sections 2051 and 2052.

All time spent in an intensive training program which has been approved by the Board or its designee shall be considered time spent in the practice of medicine. For purposes of this condition, non-practice due to a Board-ordered suspension or in compliance with any other condition of probation, shall not be considered a period of non-practice.

19. License Surrender. Following the effective date of this Decision, if Petitioner ceases practicing due to retirement, health reasons or is otherwise unable to satisfY the terms and conditions of probation, Petitioner may request the voluntary surrender of her license. The Board reserves the right to evaluate Petitioner's request and to exercise its discretion whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the surrender, Petitioner shall within 15 calendar days deliver Petitioner's wallet and wall certificate to the Board or its designee and Petitioner shall no longer practice medicine. Petitioner will no longer be subject to the terms and conditions of probation and the surrender ofPetitioner's license shall be deemed disciplinary action. If Petitioner reapplies for a medical license, the application shall be treated as a petition for reinstatement of a revoked certificate.

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20. Probation Monitoring Costs. Petitioner shall pay the costs associated with probation monitoring each and every year of probation, as designated by the Board, which may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of California and delivered to the Board or its designee no later than January 31 of each calendar year. Failure to pay costs within 30 calendar days ofthe due date is a violation of probation.

21. Violation of Probation. Failure to fully comply with any term or condition of probation is a violation of probation. If Petitioner violates probation in any respect, the Board, after giving petitioner notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. If an Accusation or Petition to Revoke Probation, or an Interim Suspension Order is filed against Petitioner during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final.

22. Completion of Probation. Petitioner shall comply with all financial obligations not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, petitioner's cep:ificate shall be fully restored.

Date: ! - j 1.'-l "· { -

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RALPH B. DASH Administrative Law Judge Office of Administrative Hearings