Opinion
No. 341665
12-18-2018
In re MUHAMMED KAMRAN AHSAN, M.D. DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, Petitioner-Appellee, v. MUHAMMED KAMRAN AHSAN, M.D., Respondent-Appellant.
UNPUBLISHED Board of Medicine
LC No. 16-142878 Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent, Muhammed Kamran Ahsan, M.D., appeals as of right the final order of the Michigan Board of Medicine Disciplinary Subcommittee (Disciplinary Subcommittee) concluding that he violated MCL 333.16221(a) (negligence or failure to exercise due care), MCL 333.16221(b)(i) (incompetence), and MCL 333.16221(c)(iv) (prescribing or administering drugs for other than lawful diagnostic or therapeutic purposes) of the Public Health Code (PHC), MCL 333.1101 et seq. The order imposed a fine of $20,000 and suspended respondent's license to practice medicine for a minimum of six months and one day. On appeal, respondent argues that the order should be reversed because he was not provided reasonable notice of the administrative complaint and because the final order violates the requirements of the Administrative Procedures Act of 1969 (APA), MCL 24.201 et seq. We affirm.
I. BACKGROUND
In August 2017, the Department of Licensing and Regulatory Affairs (LARA) Bureau of Professional Licensing filed an administrative complaint setting forth numerous deficiencies identified by an expert reviewer in each of the eight patient files analyzed during LARA's investigation into respondent's practice of medicine. Copies were mailed to respondent by first-class mail and certified mail, return receipt requested. The complaint included notice that, under MCL 333.16231(8), respondent had 30 days from the date of receipt to answer the complaint, and that a failure to answer would be considered an admission of all allegations in the complaint, which would be forwarded to the Disciplinary Subcommittee for the imposition of sanctions. Respondent failed to answer the complaint, and the certified mailing was returned as unclaimed. Subsequently, the Disciplinary Subcommittee issued a final order finding that respondent violated MCL 333.16221(a), (b)(i), and (c)(iv). Respondent was fined $20,000, his medical license was suspended for a minimum of six months and one day, and his controlled substance license was automatically void commencing the effective date of his suspension.
II. ANALYSIS
Service of Process. On appeal, respondent argues that he was denied due process because he did not receive adequate notice of the complaint. We disagree.
Constitutional issues are reviewed de novo on appeal. McDonald v Grand Traverse Co Election Comm, 255 Mich App 674, 679; 662 NW2d 804 (2003). A person cannot be deprived of property without due process of law. US Const Am XIV; Const 1963, art 1, § 17. In an administrative proceeding, due process requires that a person "be afforded notice, an opportunity to be heard, and a written statement of findings." Mich Electric Coop Ass'n v Mich Pub Serv Comm, 267 Mich App 608, 622; 705 NW2d 709 (2005). To be adequate, the notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950). The means employed to notify parties must be more than mere gesture—i.e., the means must be actually intended to notify the parties. Id. at 315. Actual notice, however, is not required before the governmental action may commence. Sidun v Wayne Co Treasurer, 481 Mich 503, 509; 751 NW2d 453 (2008).
Respondent argues that he was denied due process because he was not provided with adequate notice of the pending disciplinary action. MCL 333.16231 sets forth the procedure for investigation of alleged violations under the PHC, and MCL 333.16231(8) specifically directs that a complaint shall be served under section 16192. MCL 333.16192(2) codifies the notice requirements under the PHC:
The department may serve a notice of hearing or a complaint on an applicant, licensee, or registrant in an action or proceeding for a violation . . . by regular mail and by certified mail, return receipt requested, to the applicant's, licensee's, or registrant's last known address, by serving the notice on the applicant, licensee, or registrant, or by making a reasonable attempt to serve the notice on the applicant, licensee, or registrant. For purposes of this subsection, if service is by mail, service is effective 3 days after the date of mailing, and nondelivery does not affect the validity of the service if the nondelivery was caused by the refusal of the applicant, licensee, or registrant to accept service.
In this case, petitioner's proof of service for the complaint indicated that the complaint was mailed by first-class mail and certified mail, return receipt requested. A copy of the address label was attached to the proof of service, and respondent does not argue that this address was incorrect. Therefore, petitioner has shown compliance with the option requiring the service to be completed "by regular mail and by certified mail, return receipt requested, to the applicant's, licensee's, or registrant's last known address," and, under the statute, "service is effective 3 days after the date of mailing." MCL 333.16192(2).
Nonetheless, respondent argues that he did not receive the complaint and that the certified mailing was returned to LARA as undeliverable. Still, MCL 333.16192(2) specifies that "nondelivery does not affect the validity of the service if the nondelivery was caused by the refusal of the applicant, licensee, or registrant to accept service." In this case, the certified mail was returned to petitioner, and the record contains the returned envelope. The envelope indicates that two notices were left for respondent approximately two weeks apart and that the envelope was returned as "unclaimed." Again, respondent does not claim that the address was incorrect, only that he did not receive the complaint. Respondent's own failure to claim the envelope, after two notices, does not affect the validity of the service. MCL 333.16192(2).
Respondent also claims that, based on the return of the certified letter, it cannot be presumed that the first-class letter arrived. In response, petitioner asserts that the first-class envelope was never returned and that service was considered effective three days after the date of mailing, according to the statute. Indeed, it is presumed that a letter mailed in the course of business is received. See Good v Detroit Automobile Inter-Ins Exch, 67 Mich App 270, 274-275; 241 NW2d 71 (1976). Furthermore, MCL 333.16192(2) explicitly states that "if service is by mail, service is effective 3 days after the date of mailing."
Respondent argues that this presumption is not appropriate because it cannot be established by a preponderance of the evidence that the letter was properly addressed and mailed. Petitioner, however, has shown both through the proof of service and duly stamped and addressed returned envelope that the complaints were mailed to the correct address. Therefore, there is nothing in the record to refute that respondent received the first-class mailing.
Further, respondent argues that this presumption of delivery is rebutted by his testimony of non-receipt. Respondent cites his declaration, in the form of an affidavit attached to his appellate brief, as support for his argument that neither mailing ever arrived. Nonetheless, the affidavit confirms that the correspondence was mailed to his correct "billing and administrative address," a post office box that was regularly checked "approximately every two weeks." The declaration states that, upon respondent's "information and belief, the complaint was never mailed to this address, nor delivered to this address." Yet, respondent has offered no evidence to rebut the delivery-attempt notices. Even if respondent missed the window of time in which to claim the envelope, the delivery-attempt notices themselves should have placed respondent on notice of the correspondence and the need to take additional steps to claim the mail.
Respondent also cites Jones v Flowers, 547 US 220; 126 S Ct 1708; 164 L Ed 2d 415 (2006), for the proposition that, because the certified mail was returned, petitioner was required to take additional steps to attempt to provide notice. In Jones, the United States Supreme Court indicated that one possible additional reasonable step when notice is returned as unclaimed would include sending the notice by regular mail, without a signature requirement. Id. at 234. In this case, sending notice by regular mail was already required by statute. MCL 333.16192(2). Petitioner complied with this requirement, thereby taking that additional reasonable step at the time of issuance of the administrative complaint. On this record, there is no evidence to rebut the presumption that this mailing did not arrive.
Respondent next argues that because petitioner had previously contacted him by telephone or email, it should have contacted him by phone or email to inform him of the complaint. MCL 333.16192(4) authorizes petitioner to serve notice on a respondent by electronic mail, but only if the respondent provides prior written authorization agreeing to the electronic service. Here, respondent does not argue that he provided the required authorization. Moreover, there is no provision authorizing service via telephone. Thus, contrary to respondent's argument, petitioner could not accomplish service by electronic mail or telephone.
Respondent also argues that petitioner could have attempted personal service. Nonetheless, the statute requires service by mail, by personal service, or by a reasonable attempt at service. MCL 333.16192(2). Petitioner was not required to serve respondent by multiple methods simply because he did not claim his mail.
The Disciplinary Subcommittee's Final Order. Finally, respondent argues that the Disciplinary Subcommittee failed to include findings of fact and conclusions of law in its final order, as required by MCL 24.285 of the APA. As pertinent to this case, agency decision making is split into two categories: contested and uncontested cases. Contested cases are proceedings "in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing." MCL 24.203 (emphasis added). Unless an evidentiary hearing is required by law, the proceeding is not a contested case. See In re Annexation of Territory in Larking Twp to City of Midland, 146 Mich App 29, 33; 379 NW2d 460 (1985). In contested cases, the agency must issue a final written decision conforming to several statutory requirements. MCL 24.285.
Before the Disciplinary Subcommittee may impose penalties on a physician, MCL 333.16232 requires petitioner to provide the physician "an opportunity for a hearing." A fair hearing includes notice of the allegations against the physician and an opportunity to be heard. See MCL 24.271. The physician's failure to respond to the notice renders the case undisputed, such that the Disciplinary Subcommittee may accept the allegations of the complaint as true. MCL 333.16231(9). Still, the physician's failure to respond does not render the case "uncontested" within the context of the APA, such that MCL 24.285 does not apply. See MCL 24.271. Rather, the failure to respond means that the Disciplinary Subcommittee should "proceed with the hearing and make its decision in the absence of the party." MCL 24.272(1).
After the hearing, the Disciplinary Subcommittee is required to set forth its final written decision in conformity with MCL 24.285. MCL 24.285 requires the agency to include in its final order "findings of fact and conclusions of law separated into sections captioned or entitled 'findings of fact' and 'conclusions of law,' respectively." "Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them." Id. "Each conclusion of law shall be supported by authority or reasoned opinion" and an "order shall not be made except upon consideration of the record as a whole or a portion of the record as may be cited by any party to the proceeding and as supported by and in accordance with the competent, material, and substantial evidence." Id.
Because respondent was entitled to a hearing on the allegations against him, these proceedings fall into the category of contested cases. Thus, despite respondent's failure to respond to service, the Disciplinary Subcommittee was required to make findings of fact and conclusions of law before it could impose penalties on respondent and was further required to set forth those findings and conclusions in an order that complied with MCL 24.285. Here, the Disciplinary Subcommittee's final order is deficient in several respects.
Preliminarily, the final order does not contain the required "findings of fact" and "conclusions of law" headings or sections. Even overlooking the failure to adhere to the mandated form, the Disciplinary Subcommittee's factual findings are lacking. In a case such as this, where the respondent fails to respond to the complaint, the Disciplinary Subcommittee is entitled to accept the factual allegations of the complaint as true. This does not mean, however, that the Disciplinary Subcommittee is excluded from its responsibility to make factual findings and present those findings in a final order; rather, the focus of those findings merely shifts from the actual allegations of the complaint to the adequacy of service and response. Here, the Disciplinary Subcommittee formulaically recited that a complaint was "executed" on "August 17, 2017" and that respondent failed to respond to the complaint "within 30 days from the date of receipt." Yet, the final order fails to flesh out this statement with any pertinent findings of fact or conclusions of law. Notably absent from the final order are any factual findings regarding petitioner's service of the complaint and any conclusion whether this service was legally sufficient to fulfill petitioner's statutory obligations. Thus, the Disciplinary Subcommittee failed to provide the well-reasoned analysis required by MCL 24.285.
Nevertheless, although we find respondent's argument meritorious, we are unable to grant any relief. Review of agency decisions is subject to harmless-error analysis. See Dep't of Community Health v Risch, 274 Mich App 365, 379-380; 733 NW2d 403 (2007) (applying harmless-error analysis to an agency's disciplinary decision). The record before us shows that respondent was afforded sufficient process but failed to respond to the complaint. Thus, the Disciplinary Subcommittee was entitled to accept the allegations of the complaint as true, which it did, and use those allegations to impose penalties. Because we are required to accept the unrebutted allegations as true, we are constrained to conclude that there was substantial compliance with the statute. See President Inn Properties, LLC v City of Grand Rapids, 291 Mich App 625, 643; 806 NW2d 342 (2011) (concluding that, when an error in form does not hinder this Court's review and does not otherwise prejudice a party, reversal is not required).
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Amy Ronayne Krause