Opinion
18-225
11-14-2018
KEVIN E. BIAS v. LOUISIANA PHYSICAL THERAPY BOARD
Jennifer Jones Thomas Elizabeth J. Wilson Kean Miller LLP P.O. Box 3513 Baton Rouge, LA 70821-3513 (225) 387-0999 Attorneys for Appellant/Plaintiff Kevin E. Bias George M. Papale P.O. Box 1827 Hammond, LA 70404 (985) 543-0171 Attorney for Appellee/Defendant Louisiana Physical Therapy Board
NOT FOR PUBLICATION APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2017-1201
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
SYLVIA R. COOKS JUDGE
Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
REVERSED AND VACATED.
Jennifer Jones Thomas
Elizabeth J. Wilson
Kean Miller LLP
P.O. Box 3513
Baton Rouge, LA 70821-3513
(225) 387-0999
Attorneys for Appellant/Plaintiff
Kevin E. Bias George M. Papale
P.O. Box 1827
Hammond, LA 70404
(985) 543-0171
Attorney for Appellee/Defendant
Louisiana Physical Therapy Board COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
Kevin E. Bias (Bias) is a physical therapist licensed in the states of Texas and Louisiana. Bias was licensed in Louisiana in 2005 and practiced in this state for eleven years without any complaints. He is a resident of the Shreveport-Bossier City area and practices physical therapy in both Louisiana and Texas. Bias voluntarily ceased practicing his profession in Louisiana in June of 2016 after the Louisiana Physical Therapy Board (the Board) received an anonymous complaint about him on May 2, 2016. He continued to practice in Texas and there has been no action taken against him by the Texas licensing authority. The complaint did not involve his actions as a physical therapist but rather were the result of his arrest on April 25, 2016 in Bossier City, Louisiana for an alleged aggravated assault while driving. The alleged offense did not involve the use of alcohol or drugs. Bias pled not guilty to the charges. According to the court minutes from the Twenty-Sixth Judicial District Court, Bias was "deferred to the DA diversion plan." The case was "nolle prossed" on November 2, 2016, after he successfully completed the program. Nevertheless, the Board filed an Administrative Complaint against Bias. Following a hearing on the matter the Board suspended his Louisiana physical therapy license with conditions for reinstatement.
Bias appealed the decision to the Fifteenth Judicial District Court, Parish of Lafayette. The trial court affirmed the Board's order. Bias appeals alleging six assignments of error including his assertions that the decision by the Board was made upon unlawful procedure and in violation of statutory provisions. Because of our holding herein we pretermit any ruling on Bias' additional assignments of error.
LEGAL ANALYSIS
The Board is established under the provisions of La.R.S. 37:2403, which provides:
A. The Louisiana Physical Therapy Board, hereinafter referred to as the "board", is hereby created within the Louisiana Department of Health. The board shall be domiciled in Lafayette Parish.
B. The board shall consist of seven members who shall be appointed by the governor as follows:
(1) Two members shall be physical therapists who possess an unrestricted license to practice physical therapy and who have been practicing in the state for no less than three years.
(2) One member shall be a physical therapist who possesses an unrestricted license to practice physical therapy and has been practicing in the state for no less than three years and shall be appointed from a list of names submitted by the Louisiana Hospital Association.
(3) Two members shall be physical therapists who possess an unrestricted license to practice physical therapy and have been practicing in the state for no less than three years and shall be appointed from a list of names submitted by the Louisiana Physical Therapy Association.
(4) One member shall be a physical therapist assistant who possesses an unrestricted license to assist in the practice of physical therapy as a physical therapist assistant and who has been practicing in the state for no less than three years.
(5) One member shall be a physician who possesses an unrestricted license to practice medicine in the state and who specializes in the practice of orthopedic surgery or the practice of physiatry and shall be appointed from a list of names submitted by the Louisiana State Medical Society.
C. The term of each board member shall be three years; however, initial board appointments may be for less than three years in order to establish staggered terms. Each appointment by the governor shall be submitted to the Senate for confirmation.
D. Any vacancy occurring in the membership of the board shall be filled in the same manner as the original appointment.
E. The governor may remove any member of the board for misconduct, incompetence, or neglect of duty.
F. No person shall be appointed to the board if they have served for more than two consecutive three-year terms (emphasis added).
At the hearing on December 8, 2016, Mr. Al Moreau, acting chairperson, called the hearing to order. The Board panel consisted of Board members Mr. Moreau, Mr. Craig Prejean, Ms. Beth Austin, Mr. Patrick Cook and Ms. Kristina Lousenberry. Ms. Austin disclosed that she "knew of Kevin Bias" by name but did not know any more about him and did not have a working relationship with him. Mr. Bias disclosed he knew who Ms. Austin was and recognized her. Bias' attorney, Mr. Ian McDonald, acknowledged that this posed no problem for his client. Mr. Moreau asked if there was any objection to the makeup of the panel and counsel for Bias responded there were none. Mr. Papale next explained the reason why Board member Mr. Don Cassano was not permitted to serve as an adjudicator on the panel. He then added: "In addition, the Board composition includes a physician. That position is currently unfilled, but we do have a quorum. So, I want to make sure that everybody is aware of that on the record as a housekeeping matter" (Emphasis added). No one made any response. Mr. Moreau then relinquished control of the hearing to Mr. Harry Vorhoff and the hearing proceeded.
By its' own admission the Board was not lawfully constituted at the time of its actions concerning Bias. In Cunningham v. State, Department of Health & Hospitals, 05-1378 p. 3 (La. App. 3 Cir. 9/27/06), 939 So. 2d 695, 697-98, writ denied, 06-2597 (La. 2/22/07), 949 So. 2d 427, this court upheld the trial court's reversal of the Board's decision rendered when the Board did not have as a member a licensed physician as mandated by statute:
The district court has the authority to reverse the decision of any agency if substantial rights of the party who seeks review have been prejudiced because the agency's decision is in violation of statutory provisions or made upon unlawful procedure. Sanders v. Pilley, 96-196 (La.App. 1 Cir. 11/8/96), 684 So.2d 460, writ denied[,] 97-352 (La.3/21/97), 691 So.2d 90; La.R.S. 49:964(G). There is no dispute that there was no licensed physician on the board at the times relevant herein. The provisions of La.R.S. 37:2401.1 concerning the composition of the board are mandatory. Therefore, we agree with the trial judge that a hearing conducted in the absence of a licensed physician member on the board was in violation of the statute which rendered the decision one made upon unlawful procedure. (Emphasis added)
This court in Cunningham rejected the Board's arguments that the licensee did not object to the composition of the Board, and that the hearing was held by a quorum of Board members. We likewise reject those arguments herein. As this court stated in Cunningham, "[c]ompliance with this section [providing for a quorum] does not negate the fact that the composition of the board was not in compliance with statutory mandates." Id. at 698. (Emphasis added) Additionally, the fact that Bias' attorney did not attempt to stop the hearing from going forward when he was informed just prior to the start of the hearing that there was no physician member on the Board does not constitute a waiver of any sort. Bias cannot waive the mandatory lawful makeup of a duly constituted Board and any action taken by an administrative board not properly constituted under the enabling statute's mandatory requirements is void ab initio and must be vacated. The Louisiana First Circuit Court of Appeal, applying the provisions of La. R.S. 49:964(G), also held that "[a]ny one of the six bases listed in the statute is sufficient to modify or reverse an agency determination." Doc's Clinic, APMC v. State ex rel. Dep't of Health & Hosps., 07-480, p. 8 (La.App. 1 Cir. 11/2/07), 984 So.2d 711, 718, writ denied, 07-2302 (La. 2/15/08), 974 So.2d 665. Louisiana Revised Statute 49:964(G)(3) provides that "The court may reverse or modify the decisions [of administrative boards] if substantial rights of the appellant have been prejudiced" because of a decision "made upon unlawful procedure."
For the reasons stated, we reverse the judgment of the trial court and hereby vacate the order of the Board suspending Kevin E. Bias's license to practice physical therapy in the State of Louisiana. All costs of this appeal are assessed against Defendant Louisiana Physical Therapy Board.
REVERSED AND VACATED.