Opinion
No. WD54818
Opinion Filed: October 6, 1998
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY HONORABLE BYRON L. KINDER, JUDGE.
Before Ellis, P.J., Lowenstein and Riederer, JJ.
Dr. Earl Russell appeals from the revocation of his medical license by the State Board of Registration for the Healing Arts. Affirmed.
Facts
Dr. Russell, Appellant, has been licensed as a physician in Missouri since 1953 and has practiced family medicine in Springfield, Missouri for his entire career. Appellant is semi-retired and works approximately 20 hours per week, due in part to visual problems associated with diabetes. The Board received three complaints against Appellant; one on December 13, 1991, one on June 18, 1990, and one on May 31, 1990. In addition, on July 17, 1984 and on June 13, 1989, the Board received complaints in the form of NAIC Medical Professional Liability Insurance Information Claims Reports from the Missouri Department of Insurance. On July 16, 1991, the Board sent Appellant a document entitled "Notice and Subpoena Before the Missouri State Board of Registration for the Healing Arts." The document stated that Appellant was to appear at a hearing before the Board on August 9, 1991 to review and investigate his ability to practice as a physician with reasonable skill and safety pursuant to § 334.100.2(25), and that after the hearing the Board would make a finding whether there was probable cause to proceed. The notice also stated that Appellant could have legal counsel accompany him. On August 9, 1991, the Board conducted its probable cause hearing, which consisted of a series of hypothetical questions regarding diagnosis and treatment of certain conditions and the use of certain drugs. Appellant appeared without counsel. On May 25, 1993, some 21 months later, the Board issued its Order finding probable cause to question Appellant's competency, and ordered him to submit to reexamination by taking and passing the Special Purpose Examination (SPEX). The Board specifically alleged the following as its basis for its finding of probable cause:
All statutory references are to RSMo 1994, unless otherwise indicated.
Section 334.100.2 provides that "The Board may cause a complaint to be filed with the Administrative Hearing Commission . . ." However, § 334.100.2 (25)(e) provides: "Proceedings under this subdivision shall be conducted by the Board without the filing of a complaint with the Administrative Hearing Commission." All proceedings discussed in this case were conducted under subdivision (25) of § 334.100.2, and were therefore conducted by the Board and not the AHC.
1. Dr. Russell's failure to diagnose and treat congestive heart failure, diabetes melitis and hypertension.
2. Dr. Russell's lack of knowledge in the use of calcium channel blockers and ACE inhibitors.
3. Dr. Russell's failure to know how to categorize and treat syphilis.
4. Dr. Russell's lack of knowledge of the mechanism of action of penicillin and erythromycin.
5. Dr. Russell's failure to know the difference between a penetrating ulcer and a perforating ulcer.
6. Dr. Russell's inadequate knowledge of gastric physiology and pharmacology.
The Order allowed Appellant two opportunities to obtain a passing scaled score of 75 on the SPEX examination. The Order further provided that if Appellant failed to register and submit to the examination or failed to pass the examination, that failure would constitute an admission of all of the allegations set forth in the Order. Due to Appellant's visual impairment, he had to take the examination orally. Appellant took the SPEX examination on June 16, 1994, and received a scaled score of 69. Between the first and second SPEX examination, Appellant took the "Refocusing" course held by the University of Health Sciences. Appellant then took the SPEX examination a second time on September 15, 1995, and obtained a scaled score of 74.
Due to Appellant's two failed attempts at the SPEX examination, the Board sent Appellant a "Notice of Hearing," dated December 15, 1994. This was Appellant's notice of the final disciplinary hearing set for December 15, 1994. The hearing was continued until April 28, 1995. At the hearing, Appellant had counsel present, and Appellant testified. Following the hearing, on September 16, 1996, the Board issued its Finding of Fact, Conclusions of Law, and Disciplinary Order. The Board determined that Appellant had failed to establish his competency to practice medicine, since he failed to pass the SPEX exam. The Board ordered that Appellant's license to practice medicine be revoked and that Appellant could not apply for reinstatement for two years and one day from the effective date of the Order. On September 10, 1996, the Board wrote to Appellant's counsel to notify her of the Order, which, by its terms, was effective September 16, 1996. Counsel filed a petition for judicial review, declaratory judgment, and injunctive and equitable relief on September 13, 1996, in the Circuit Court of Cole County. On that same date, The Honorable Byron L. Kinder issued a stay order.
The notice provided in its entirety: PLEASE TAKE NOTICE, that the State Board of Registration for the Healing Arts will hold a closed hearing pursuant to Section 334.100.2(25), RSMo, for the purpose of issuing its final order regarding your competency to practice medicine and for a determination of the appropriate disciplinary measures set forth in Section 334.100.3, RSMo. This hearing will be held on Thursday, January 19, 1995 at 1:30 p.m. at the Inn at Grand Glaze, Highway 54, Lake Road 40, Osage Beach, Missouri 65065, 314/348-4731.
Pursuant to Section 334.100.2(25), RSMo, the Board held a hearing on August 9, 1991, to determine if probable cause existed to question your competency to practice as a physician and surgeon. Following that hearing, the Board issued its Order finding probable cause to question your competency and allowed you two (2) opportunities to take and pass the Federation of State Medical Boards Special Purpose Examination (SPEX) administered on June 16, 1994 and September 15, 1994 to establish your competency to practice as a physician and surgeon. The Board is now in receipt of information that you did take the SPEX on June 16, 1994 and on September 15, 1994 and you have failed to obtain a passing score on either attempt. As a result, pursuant to Section 334.100.2(25), the Board is sending you this Notice of Hearing.
All parties will have the right to be represented by legal counsel at this hearing, if they so desire. This hearing will be a closed hearing pursuant to Section 334.100.2(25), RSMo, however, any Final Order of the Board which imposes any of the disciplinary measures set forth in Section 334.100.3, RSMo, will be an open record of the Board as required by Section 334.101 and 620.010.14(7), RSMo, and Chapter 610 RSMo.
On July 29, 1997, the Circuit Court of Cole County entered its judgment and order affirming the decision of the Board, stating that the Board's decision was supported by competent and substantial evidence and that it was correct as to the law. This appeal ensued.
Standard of Review
Appellate review of an administrative decision is limited to reviewing the decision of the agency, not the judgment of the trial court. Missouri Dept. of Corrections v. Cheeney , 926 S.W.2d 939, 941 (Mo.App. 1996). Evidence is viewed in the light most favorable to the agency's decision. Id. The decision will be upheld unless it exceeds agency authority; it is not based upon substantial and competent evidence on the record as a whole; it is unreasonable, arbitrary or capricious; it involves an abuse of discretion; or it is otherwise unlawful. Id. However, where the decision of an administrative agency involves the interpretation or application of law, or the pertinent facts are undisputed between the parties, we independently review the matter as a question of law. Missouri Ethics Commission v. Thomas , 956 S.W.2d 456, 457 (Mo.App. 1997). We give no deference to the agency's or the circuit court's conclusions of law, but exercise our own independent judgment. Id.
I.
Appellant claims in his first point that the trial court erred in affirming the decision of the Board because the way in which the Board conducted its competency investigation was arbitrary and failed to provide Appellant due process in that Appellant was not given notice of the matters which precipitated the investigation, nor of the specific nature of the inquiries, and as a result, he was not given an opportunity to defend himself. Due process is provided by affording parties to an administrative proceeding the opportunity to be heard at a meaningful time and in a meaningful manner. Goldberg v. Kelly , 397 U.S. 254, 90 S.Ct. 1011, 1020 (1970); Brawley Flowers, Inc. v. Gunter , 934 S.W.2d 557, 560 (Mo.App. 1996); "This includes knowing the opponent's claims, hearing the evidence submitted, confronting and cross-examining witnesses, and submitting one's own witnesses." Mikel v. Pott Industries/St. Louis Ship , 910 S.W.2d 323, 327 (Mo.App. 1995). "However, the procedural process due in an administrative hearing is less than required by a full trial." Willard v. Red Lobster , 926 S.W.2d 550, 553 (Mo.App. 1996).
A. Probable Cause Hearing
First, Appellant argues that he was not given notice of the matters which precipitated the probable cause hearing. The Board sent Appellant a document entitled "Notice and Subpoena" on July 16, 1991. The document stated in pertinent part:
The State Board of Registration for the Healing Arts is reviewing and investigating your overall ability to practice as a physician and surgeon or with a specialty with reasonable skill and safety to patients pursuant to Section 334.100.2(254) RSMo. Supp. 1990. The board will hold a closed meeting . . . Before the Board makes any decision regarding your ability to practice and whether it will pursue any action under Section 334.100.2(25) RSMo. Supp 1990, it would like to hold a hearing to gather any information which may help to evaluate the situation. After the hearing, the Board will make a finding whether there is probable cause to proceed with enforcing the provisions of Section 334.100.2(25) RSMo. Supp. 1990.
The notice also states where and when the hearing will be held and that Appellant may have legal counsel present. Appellant cites Artman v. Board of Healing Arts , 918 S.W.2d 247, 250 (Mo. banc 1996), for his argument that he was not given notice of the matters which prompted the investigation nor of the specific nature of the inquiries, and that this lack of adequate notice denied him an effective opportunity to defend. In Artman , a doctor was notified that he was to appear before the Board to evaluate whether there was cause to question his competency. The doctor's attorney requested copies of any complaints precipitating the investigation and any information on the subjects to be addressed. The Board did not respond. At the probable cause hearing, Board members inquired about the doctor's background, general practice, and specific methods of treatment and diagnosis for hypothetical patients. The Board then issued its Order finding probable cause and ordered the doctor to submit to an SPEX examination. The Order warned that failure to take the exam was an admission of the allegations and that the Board would revoke the doctor's license without leave to reapply for seven years. The doctor did not take the exam. At the final disciplinary hearing, the Board revoked the doctor's license for seven years, finding that his failure to take the exam admitted his incompetency. In Artman , the Supreme Court determined that since the Board did not adjudicate or make binding determinations about the doctor at the probable cause hearing, the hearing was investigative in nature. Id. at 251. "When government action is not an adjudication but instead merely a general fact-finding investigation, the agency need not provide the full panoply of judicial procedures." Id. The court went on to state that since the Board gave the doctor notice of the hearing and allowed him to have his attorney present, its withholding of information about specific complaints and potential areas of inquiry did not violate the due process clause. Id. In our case, the Board used the same procedure in the probable cause hearing that was approved in Artman. Therefore, under Artman , Appellant's due process rights were not violated. Appellant was properly notified of the probable cause hearing and was given the opportunity to have an attorney present. At the probable cause stage of the proceeding the full panoply of due process is not required. Id. Due process was satisfied since the Board gave Appellant notice of the hearing and allowed him to have counsel present. Id.
B. Final Disciplinary Hearing
Appellant also argues that he was not afforded an adequate opportunity to defend himself at the final disciplinary hearing. Appellant claims that even if this court approves of the procedure used at the probable cause hearing, nevertheless, the procedure used for the final disciplinary hearing was inadequate under Artman. The court in Artman stated, "So long as before a license is revoked, the physician has a meaningful hearing with notice and an effective opportunity to defend, due process is satisfied." Id. Therefore, we must examine whether the Board afforded Appellant both (1) proper notice, and (2) an effective opportunity to defend.
1. Notice of Final Disciplinary Hearing
Appellant argues that he was not provided adequate notice. The notice of the final disciplinary hearing provided that "the State Board . . . will hold a closed hearing . . . for the purpose of issuing its final order . . . and for a determination of the appropriate disciplinary measures . . ." This notice of the final disciplinary hearing did not mention that Appellant had an opportunity to challenge the findings of probable cause by presenting evidence or offering witnesses. While Respondent agrees that Appellant was entitled to notice at the final disciplinary hearing, Respondent argues that Appellant was provided all required safeguards at the hearing.
First, Respondent argues that at the final hearing, the Board president announced, "The Board is now, therefore, holding this hearing to determine if Dr. Russell is subject to disciplinary action pursuant to Section 334.100.1(25) [sic] RSMo, and to determine appropriate disciplinary action." Respondent claims that this statement made at the hearing put Appellant on notice that the hearing was going to be a full-blown hearing. However, the statement made at the hearing was ambiguous. Even if the statement put Appellant on notice, it does not answer Appellant's complaint that the notice of the hearing was deficient. In addition, the President later announced to Appellant that after the Board's attorney presented evidence, "[y]ou may have the opportunity to present any evidence relating solely to Section 334.100.2(5) [sic]." (emphasis added). This is not the section under which the Appellant was charged. Thus, the Board made it clear that Appellant could not offer evidence under § 334.100.2(25).
Next, Respondent argues that the Order finding probable cause and the Amended Orders — issued April 5, 1993, May 25, 1993, and September 2, 1993 — in conjunction with the Notice of the final disciplinary hearing, provided Appellant with notice of the charges. The Order of the Board finding probable cause provided:
The Board specifically alleges the following as a basis for its finding of probable cause:
1. Dr. Russell's failure to diagnose and treat congestive heart failure, diabetes melitis and hypertension.
2. Dr. Russell's lack of knowledge in the use of calcium channel blockers and ACE inhibitors.
3. Dr. Russell's failure to know how to categorize and treat syphilis.
4. Dr. Russell's lack of knowledge of the mechanism of action of penicillin and erythromycin.
5. Dr. Russell's failure to know the difference between a penetrating ulcer and perforating ulcer.
6. Dr. Russell's inadequate knowledge of gastric physiology and pharmacology.
The notice of the final disciplinary hearing refers to the fact that "the Board held a hearing on August 9, 1991, to determine if probable cause existed" and that "Following that hearing, the Board issued its Order finding probable cause to question your competency . . ." The notice of the final disciplinary hearing did not specifically set forth the findings of probable cause nor did it attach the probable cause Order. Therefore, the notice cannot be said to have fairly put Appellant on notice about what charges he should have been prepared to defend.
Lastly, Respondent argues that both the probable cause order and § 334.100.2 (25)(d) informed Appellant of the legal effects of his refusal to take the examination or his failing the examination. Respondent has correctly argued above that due process rights did not attach in the context of the probable cause hearing and order. Respondent cannot now argue that the probable cause order, which did not require due process, relieves Respondent of its acknowledged duty under the due process clause to provide adequate notice of the subsequent final disciplinary hearing. Respondent also claims that its notice made Appellant aware of § 334.100.2 (25)(d), apparently claiming that the notice was therefore sufficient. In other words, notice to Appellant of the statute fulfilled Respondent's duty to provide notice. "Reasonable notice is to be determined in the light of the facts of the case." Irving v. Brannock , 756 S.W.2d 585, 587 (Mo. App 1988). Merely citing § 300.100.2 (25)(d) was not reasonable notice in this case.
2. Effective Opportunity to Defend
More troubling, however, is that the Board did not give any notice that Appellant had the right to defend. The notice provided that the hearing was "for the purpose of issuing its final order and for a determination of the appropriate disciplinary measures." This statement clearly implied that the issue of Appellant's competency had already been determined against him. Further, the previously issued Order of probable cause had provided that if he failed SPEX, that "shall constitute an admission of all of the allegations set forth." There was no provision in the notice that the hearing would be contested or that there were issues yet to be finally decided or for the Appellant to be prepared to present evidence. The notice did not give Appellant any advance warning that he was facing a full-blown hearing with the right to present evidence and to cross-examine witnesses presented against him. The only provision in the notice that came close to such an advance warning was the statement, "All parties will have the right to be represented by legal counsel at this hearing, if they so desire." This statement did not provide much guidance to Appellant, since substantially the same phrase appears in the notice of the probable cause hearing, and, as Respondent has correctly argued, due process rights did not attach at the hearing conducted pursuant to that prior notice.
Appellant is correct that the notice of Appellant's final disciplinary hearing was inadequate. The Board should have provided, "timely and adequate notice detailing the reasons for the proposed [discipline] and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own . . . evidence . . ." Goldberg , 90 S.Ct. at 1020. The notice given by the Board in this case did not provide specific notice of the charges, i.e., "notice detailing the reasons for the proposed discipline." While it could be argued that Appellant already knew the charges, that knowledge would not relieve the Board of its duty to give notice of those charges or reasons for discipline. Further, the notice given by the Board also failed to inform Appellant of his opportunity to contest the charges or his right to present witnesses or evidence. An "effective opportunity to defend" must include advance notice of the right to contest the charges and the right to present evidence.
Despite the failure of the Board to provide a notice which meets the due process standard of "adequate notice" and "effective opportunity to defend," the Appellant failed to preserve this issue for appellate review. "Constitutional issues are waived unless issued at the earliest possible opportunity consistent with orderly procedure." Hollis v. Blevins , 926 S.W.2d 683 (Mo. banc 1996). There are four mandatory prerequisites for preserving a constitutional issue for review after an administrative decision. Fitzgerald v. City of Maryland Heights , 796 S.W.2d 52, 58 (Mo.App. 1990). The aggrieved party must: (1) raise the issue at the first opportunity; (2) designate specifically the constitutional provision claimed to have been violated; (3) state facts showing such violation; and (4) preserve the constitutional question throughout for appellate review. Id. The first opportunity to raise a constitutional issue for review depends on the facts and circumstances of each individual case. Duncan v. Missouri Board for Architects , 744 S.W.2d 524, 531 (Mo.App. 1988).
First, we determine whether Appellant raised the issue at the first opportunity. Appellant's first opportunity to raise the issue was at the final disciplinary hearing. Appellant appeared in person at the final disciplinary hearing, and was represented by counsel. While his mere appearance did not waive an objection to the improper notice, he did have an opportunity, consistent with orderly procedure, to object. After the President of the Board explained the procedure to be followed at the final disciplinary hearing, he asked if there was any objection to proceeding in that way. Appellant did not object, thus bypassing an opportunity to object to the adequacy of notice and failure to provide an effective opportunity to defend. Appellant claims that he did object at the hearing. However, there are only two statements during the final disciplinary hearing that could be construed as objections. First, Appellant made a statement concerning the constitutionality of Chapter 334, and that Appellant was not before an impartial tribunal. This statement was not an objection to the improper notice or failure to provide an effective opportunity to defend. Second, Appellant stated, "We have no idea what caused this Board to question his competency in the first place." While this statement does regard Appellant's opportunity to defend, it does not designate specifically the constitutional provision claimed to have been violated or state facts showing such violation. Further, it appears to be an objection to the earlier hearing rather that the disciplinary hearing.
However, failure to object at the final hearing in front of the Board might not be fatal to Appellant's claim. Tadrus v. Missouri Board of Pharmacy , 849 S.W.2d 222, 225 (Mo.App. 1993). To properly preserve a constitutional claim, it must be raised at the earliest opportunity for meaningful review. Courts have held that if the administrative hearing officer does not have authority to resolve the constitutional points, then preservation of those points before the officer would be meaningless ritual. Dye v. Division of Child Support Enforcement , 811 S.W.2d 355, 357 (Mo.banc 1991). Here, the hearing officer may well have had the authority to rule on the constitutional point by simply postponing the hearing until the proper notice was given. However, given our ruling infra, it is not necessary to decide this issue.
"[W]hether or not raised in the administrative hearing, a constitutional question must be presented to and passed upon by a lower court in order to preserve the question for review." Hacienda Enterprises No. 2 Inc. v. Smarr , 841 S.W.2d 807, 810 (Mo.App. 1992). "If a party fails to assert his constitutional claim in his petition for review to the circuit court, it is not preserved for appeal." Bezayiff v. City of St. Louis , 963 S.W.2d 225, 230 (Mo.App. 1997).
Examination of Appellant's petition to the circuit court reveals that even if Appellant had raised the constitutional claim in front of the Board, nevertheless he did not preserve that claim in circuit court. There are two references in Appellant's circuit court petition regarding due process, neither of which addresses this issue. First, Appellant claims in his petition that § 334.100.2 (25)(e) and (f) are unconstitutional and violate Appellant's due process rights, because prior to the disciplinary hearing, Appellant did not have the due process protection provided by a notice and hearing before the Administrative Hearing Commission, as required by § 621.045. This issue is not the issue at hand, nor was it addressed in Appellant's brief. Second, Appellant claims that he was not given notice from the Board of alleged violations of Chapter 34 prior to the probable cause hearing. As noted earlier, Appellant received proper notice of the probable cause hearing. Appellant also claims other violations of due process in his petition which are general in nature which would not stand up to the prerequisites enumerated above for preservation of a constitutional claim.
After careful review of both the administrative hearing transcript and Appellant's petition to the circuit court, we find that Appellant did not preserve his constitutional claim that he was deprived of due process because of the inadequate notice and failure of Respondent to provide an effective opportunity to defend.
Point I is denied.
II.
Appellant contends in his second point that the trial court erred in affirming the decision of the Board in that the Board is enforcing a rule requiring the SPEX test as proof of competence without formally adopting said rule. Section 334.100.2 (25)(a) states in pertinent part:
In enforcing this subdivision the board shall, after a hearing by the board, upon a finding of probable cause, require a physician to submit to a reexamination for the purpose of establishing his or her competency to practice as a physician or surgeon or with a specialty conducted in accordance with rules adopted for this purpose . . . (emphasis added).
As noted in Artman , no statutory procedure for such reexamination exists. The Board adopted a rule, 4 CSR 150-2.015 entitled "Determination of Competency," which describes the process the Board follows when it has reason to believe that a physician is unable to practice with reasonable skill and safety on patients by reason of incompetency. The only apparent reference to the reexamination procedure is in subsection (3):
Following the probable cause hearing and upon a finding by the board that probable cause exists to determine a physician's or surgeon's competency, the board shall issue an order setting forth the allegations leading to a finding of probable cause, the method of further determination of competency, . . . the time frame for determination and the final order to be issued by the board in the event the physician fails to designate an examining physician to the board or fails to submit to an examination when directed . . . (emphasis added).
This rule does not provide a procedure for reexamination. Artman , 918 S.W.2d 247 at 251. Thus, we are left with the question of whether the Board was required by the statute to promulgate regulations to enforce § 334.100.2(25). "The primary rule of statutory construction requires a court to ascertain legislative intent by considering the plain and ordinary meaning of words used in the statute, and when the language of a statute is clear and unambiguous, there is no room for construction." State of Kansas, Secretary of SRS v. Briggs , 925 S.W.2d 892, 895 (Mo.App. 1996). To determine whether a statute is clear and unambiguous, this court looks to whether the language is plain and clear to a person of ordinary intelligence. Wheeler v. Board of Police Com'rs of Kansas City , 918 S.W.2d 800, 803 (Mo.App. 1996). The court will only look past the plain and ordinary meaning of a statute when the language is ambiguous or leads to an illogical result. Id.
Section 334.100.2 (25)(a) is prefaced by the phrase, "In enforcing this subdivision the board shall, . . ." "The definition of "shall" states that it is 'used in laws, regulations, or directives to express what is mandatory.'" U.S. Central Underwriters Agency, Inc., v. Hutchings , 952 S.W.2d 723, 725 (Mo.App. 1997). However, often times "shall" is not mandatory, but merely directory. The court in Hedges v. Department of Social Services , 585 S.W.2d 170, 172 (Mo.App. 1979) stated:
With respect to whether a statutory requirement (and by analogy a requirement created by administrative regulation) is mandatory or merely directory, the general rule has been stated frequently that when the statute provides what results shall follow a failure to comply with its terms, it is mandatory and must be obeyed, whereas, if it merely requires certain things to be done and nowhere prescribes the results that shall follow if such things are not done, the statute is merely directory.
Therefore, since § 334.100.2 (25)(a) does not specify a penalty or consequence if the statute is not obeyed, it is merely directory.
We note, that although the Board has not promulgated a rule regarding reexamination in accordance with the authority granted it in § 334.100.2 (25)(a), § 334.100.6 regarding the restoration of a physician's license that has been revoked merely states that the Board may require the applicant to take continuing medical course and pass an examination the board may direct, and yet the Board has a regulation listing the requirement for reinstatement of a physician's license after it has been revoked. Specifically, under 4 CSR 150-2.150 the physician would have to satisfactorily complete twenty five hours of continuing medical education courses and successfully pass one of four different exams listed, one of which is the Federation of State Medical Board's Special Purpose Examination (SPEX). 4 CSR 150-2.150 (A); (B). Section 334.100.6 merely prefaces its requirements with "may," and results in a rule; the Board ought to promulgate a rule relating to reexamination under § 334.100.2 (25)(a) since that section is prefaced with "shall," and since the Legislature has directed the Board to do so. Further, if there is a rule outlining the procedure a physician must follow to get a revoked license reinstated, it would be consistent to adopt a rule outlining the procedure of reexamination used as an aid in the decision to revoke a physician's license in the first place.
Point II is denied.
III.
Appellant claims in his third point that the trial court erred in affirming the decision of the Board because the manner in which the Board uses the SPEX examination is arbitrary and capricious. This issue was disposed of in Artman , 918 S.W.2d at 251. Nevertheless, we examine Appellant's claim. Specifically, Appellant claims the SPEX exam was used for a purpose for which it was not intended and the practical effect of such use delegates the authority of the Board to the SPEX examiners. From the record, it does not appear that the Board's use of the SPEX examination was arbitrary and capricious. First, Appellant argues that the Board delegates its responsibility to the SPEX examiners by ordering that if he does not pass the SPEX, it is an admission of all of the allegations of incompetence. This rule does not delegate the Board's authority. The Board does not use the results of the examination until it has made specific findings of probable cause to question Appellant's competency. The test is then used as an aid in the Board's final determination on the competency issue. Second, Appellant argues that the way the test was administered significantly affected his ability to perform well on the test.
From Appellant's citation to the record, it appears he claims that administering the test orally was arbitrary and capricious. The test was administered orally to accommodate Appellant's vision impairment. He testified that the Board enlarged the questions, provided a physician resident to read the questions, and gave him double time to answer. Appellant testified, "I can't complain. They did an excellent job in being able to read the questions and reread them and reread them." Appellant will not be heard to complain about the way the test way administered when it was done to accommodate his visual impairment. Third, Appellant argues that the SPEX scores are truncated, meaning that any score right of the decimal point is dropped, i.e. raw scores of 74.1 and 74.9 would both be scored as a 74; and that the standard of error of measurement for the SPEX was 1.5 points. Appellant does not offer any evidence that these standards are abnormal or that they were only applied to his score. The evidence is that the national norm is a passing score of 75 and that Appellant received a score of 69 and 74. Appellant argues extensively about the statistical implications of a score on the SPEX, but the dispositive evidence is that Appellant received a score of less than 75. Further, Appellant was given two opportunities to pass the exam, and he was allowed to take a course in between his first and second undertaking. Just as the SPEX exam can be used under 4 CSR 150-2.150(B) to reinstate a physician's license, it can be used as an aid to the Board in making the decision whether to revoke a physician's license. The Board's use of the SPEX and its administration to Appellant was not arbitrary and capricious.
Lastly, Appellant claims there is no evidence of incompetence in the record. This is the only issue herein, in which the standard of review is not a de novo review of a question of law. Rather, we review the agency decision viewing the evidence in the light most favorable to the decision. Cheeney , 926 S.W.2d at 941. The record at the Board hearing included the transcript of the probable cause hearing, the probable cause Order, and the evidence that Appellant twice failed to achieve a grade of 75 on the SPEX exam. There is competent and substantial evidence on the record, as a whole, of incompetence.
Point III is denied.
All concur.