Boyd v. State Board of Registration for the Healing Arts

WHITE, Special Judge.

Dr. Sheila D. Boyd appeals from the trial court’s judgment affirming the discipline imposed by the State Board of Registration for the Healing Arts (“Board”) after a finding by the Administrative Hearing Commission (“AHC”) of cause to discipline Dr. Boyd. We affirm in part, reverse in part and remand.

The Board filed a five count complaint against Dr. Boyd. In Count I, the Board alleged Dr. Boyd practiced medicine without being licensed by the State of Missouri. The Board alleged in Count II Dr. Boyd signed an application for Missouri Medicaid provider numbers without being licensed by the State of Missouri. The Board alleged in Count III Dr. Boyd signed an application for a Medicare provider number without being licensed by the State of Missouri. The Board would subsequently dismiss Counts IV and V with prejudice. The parties submitted the case to the AHC for partial summary determination. *313The AHC concluded Dr. Boyd’s license was subject to discipline under Count I for Dr. Boyd’s violation of § 334.100.2(6) RSMo Supp.1987.1 Thereafter, the Board and Dr. Boyd entered into a stipulation of facts for submission of the case to the AHC.

The Board and Dr. Boyd stipulated to the following facts regarding Count I. In 1985, the District of Columbia issued Dr. Boyd a license to practice medicine. Dr. Boyd’s District of Columbia license remained active and in good standing through 1990. The People’s Health Centers (“People’s”) in St. Louis hired Dr. Boyd as a pediatrician on or about September 12, 1988. Dr. Boyd practiced medicine in the State of Missouri without a Missouri medical license from September 12, 1988 until November 8, 1988.2 Dr. Boyd consented to the issuance of an order by the AHC that cause existed for the Board to take disciplinary action against her medical license because she knowingly practiced medicine in Missouri without a Missouri license.

The Board and Dr. Boyd stipulated to the following facts regarding Counts II and III. On September 12, 1988, Dr. Boyd completed a portion of a Medicaid-Provider Enrollment Application. Dr. Boyd filled in her name, social security number, date of application, business address and telephone number. This application contained preprinted language above Dr. Boyd’s signature which provided by signing the document she certified the information was correct, there were no material omissions and if the information became materially different she would supplement the information. On September 27, 1988, Dr. Boyd signed a second Medicare-Provider Enrollment Application. The information in the second application was not completed by Dr. Boyd and this application contained the same preprinted language as the first application. On September 27,1988, Dr. Boyd signed two Missouri Medicaid-Provider Questionnaires. The block asking for the doctor’s state license number was blank when Dr. Boyd signed these two documents. By signing the questionnaires with blanks, Dr. Boyd knew they could be completed with incorrect information concerning her license. People’s forwarded the applications and questionnaires and Dr. Boyd was issued two Medicaid provider numbers. People’s received approximately $4000 for services provided by Dr. Boyd from September 1988 to December 1988. Dr. Boyd did not directly apply for or receive any reimbursement from Medicaid. On September 29,1988, Dr. Boyd signed an incomplete application form for a Medicare provider number. Dr. Boyd knew the application called for a Missouri license number and she knew she left this information blank. When Dr. Boyd signed this form she knew or reasonably should have known it could have been completed with incorrect information. No Medicare funds were issued against the provider number issued to Dr. Boyd.

The AHC concluded there was cause to discipline Dr. Boyd as charged in Count I. The AHC also concluded there was cause to discipline Dr. Boyd’s license as charged in Counts II and III under § 334.100.2(4) but no cause to discipline under §§ 334.100.2(4)(a), (14) and (17). The Board then held a hearing to determine the discipline to be imposed. The Board ordered Dr. Boyd’s license suspended for six months to be followed by five years probation. Dr. Boyd filed a petition for review by the circuit court. The circuit court affirmed and Dr. Boyd raises four points on appeal.

We note initially the AHC concluded and Dr. Boyd stipulated there was cause to discipline her license as charged by the Board in Count I. Dr. Boyd stipulated she practiced medicine in Missouri without being licensed by Missouri. Section 334.100.2(6) RSMo 1994 provides the Board may file a complaint with the AHC for violation of any rule of Chapter 334. Section 334.010 RSMo 1994 prohibits the practice of medicine, as defined, without being a “registered” physician. Under the applicable statutory provisions in Chapter 334 there was cause to discipline Dr. Boyd for her practice of medicine without a Missouri license. The trial court’s judgment is affirmed as to Count I.

*314In her first two points, Dr. Boyd challenges the finding of cause to discipline under Counts II and III. We review the decision of the agency and not the judgment of the circuit court. Francois v. State Board of Registration for the Healing Arts, 880 S.W.2d 601, 602 (Mo.App.E.D.1994).

In its complaint, the Board asserted subdivisions (3), (4), (4)(a), (14) and (17) of § 334.100.2 as the grounds for disciplining Dr. Boyd on Counts II and III.3 As to Counts II and III, the AHC concluded there was cause to discipline Dr. Boyd for unethical and unprofessional conduct under subdivision (4) of § 334.100.2. The AHC did not find cause to discipline under subdivision (4)(a) because the stipulated facts failed to establish a specific intent to deceive which is necessary to find fraud, deception or misrepresentation. The AHC also found no cause to discipline under subdivisions (14) and (17) because the facts did not support a finding of the requisite scienter element under either subdivision.4 The AHC asserted both subdivisions require the false statement to be made “knowingly.” The AHC then stated:

As used in § 334.100.2, “knowingly” means “ ‘with awareness, deliberateness or intention,’ WEBSTER’S THIRD INTERNATIONAL DICTIONARY!;.]” Rose v. State Bd. of Reg’n for the Healing Arts, 397 S.W.2d 570, 577 (Mo.1965). Boyd left the spaces blank on the Medicaid questionnaires and the Medicare application, and there is no evidence that she “knew” someone else would fill in a false statement. Boyd’s conduct was careless enough to constitute unethical or unprofessional conduct, but that does not mean that she was aware or intended for someone else to fill in a false license number. Therefore, we do not find cause to discipline under § 334.100.2(14) or (17).

In her first point Dr. Boyd contends, in part, the legislature clearly expressed in subdivision (17) the boundaries regarding physician involvement with government reimbursement programs. According to Dr. Boyd, the AHC’s finding the evidence failed to establish cause for discipline under subdivision (17) precludes the agency from then finding cause under subdivision (4) when the alleged violation concerns government reimbursement programs. The issue is whether the legislature intended a doctor to be subject to discipline under subdivision (4) when the doctor specifically lacked the necessary scienter element required under subdivision (17) and the doctor’s alleged misconduct is based on “careless” completion of Medicaid questionnaires and a Medicare application and there is no evidence the doctor knew another person would fill in a false statement. This presents a question of law. An administrative agency’s decision based on its interpretation of law is a matter for the independent judgment of the reviewing court. Morton v. Brenner, 842 S.W.2d 538, 540 (Mo. banc 1992).

Section 334.100.2 and the previously mentioned subdivisions provide:

2. The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter or any person who has failed to renew or has surrendered his certificate of registration or authority, permit or license for any one or any combination of the following causes:
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(4)Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions or duties of any profession licensed or regulated by this chapter, including, but not limited to, the following:
(a) Obtaining or attempting to obtain any fee, charge, tuition or other compensation by fraud, deception or misrepresentation; ...
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*315(14) Knowingly making, or causing to be made, or aiding, or abetting in the making of, a false statement in any birth, death or other certificate or document executed in connection with the practice of his profession;
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(17) Knowingly making or causing to be made a false statement or misrepresentation of a material fact, with intent to defraud, for payment under the provisions of chapter 208 RSMo, or chapter 630, RSMo, or for payment from Title XVIII or Title XIX of the federal Medicare program;
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In construing a statute, the words used in the statute are to be considered in their plain and ordinary meaning to ascertain the intent of the lawmakers. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). A legislative act’s provisions must be construed and considered together and, if possible, all provisions must be harmonized and every clause given some meaning. Id. The legislature is presumed not to enact meaningless provisions. Id. The legislature is also presumed not to intend an unreasonable or absurd result but rather intends a logical result. David Ranken, Jr., Technical Inst. v. Boykins, 816 S.W.2d 189, 192 (Mo. banc 1991).

Subdivision (17) addresses false statements or misrepresentations of material facts regarding payments under Medicare and Medicaid. The terms of subdivision (17) require a scienter element be present to find cause to discipline under this subdivision. The doctor must “knowingly” make or cause to be made a false statement or misrepresent a material fact, “with intent to defraud,” for payment under Medicare or Medicaid. § 334.100.2(17). The legislature has used the term knowingly in many instances, e.g. § 192.067.5 RSMo 1994; § 208.164.9 RSMo 1994. The term knowingly has been defined by the courts. Rose v. State Board of Registration for the Healing Arts, 397 S.W.2d 570, 577 (Mo.1965). When the legislature enacts a statute referring to terms which have had other legislative or judicial meanings attached to them, the legislature is presumed to have acted with knowledge of these meanings. Citizens Electric Corp. v. Director of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989). If the legislature intended a doctor to be subject to discipline for the “careless” completion of documents for Medicare and Medicaid payments, it simply could have omitted the scienter requirement in subdivision (17) or included language to the effect the careless or negligent making of a statement regarding government reimbursement programs is a cause for discipline. The legislature chose not to do so.

Subdivision (4) is a general provision which renders doctors subject to discipline for, among other things, unethical or unprofessional conduct in the performance of the functions or duties of their profession. As part of this subdivision, a non-exclusive list of improper conduct is provided. Subdivision (17) specifically addresses false statements and misrepresentations of material facts regarding Medicare and Medicaid payments. When one statute deals with a particular subject in a general way, and a second statute addresses a part of the same subject in a more detailed way, the more general should give way to the more specific. Casey v. State Board of Registration for the Healing Arts, 830 S.W.2d 478, 481 (Mo.App.E.D.1992). This rule of statutory construction is applicable, and arguably more so, in the present case where the two provisions at issue are contained within the same section of a statute, § 334.100.2.

If we were to hold subdivision (4) could be used to find cause to discipline under the facts of this case, this would as a practical manner render subdivision (17) meaningless. All other things being equal, a doctor who knowingly makes or causes to be made a false statement or misrepresentation of a material fact, with intent to defraud, for payment under Medicare or Medicaid has committed a more serious act of misconduct than a doctor who does so only carelessly.5 If a doctor is subject to discipline pursuant to *316subdivision (4) for carelessly completing Medicare questionnaires and a Medicaid application then a doctor violating subdivision (17) would certainly be subject to discipline under subdivision (4). This renders subdivision (17) unnecessary and in effect meaningless. In harmonizing § 334.100.2, it appears illogical to find cause to discipline under subdivision (4) when the AHC concluded cause did not exist to discipline under subdivisions (4)(a), (14) and (17).

The legislature’s inclusion of a scienter requirement for subdivisions (4)(a) and (14) provides additional support for finding the legislature did not intend for subdivision (4) to be applicable when a doctor carelessly completes a Medicare or Medicaid form but did not know whether another person would make a false statement. Subdivision (4)(a) addresses a doctor’s obtaining or attempt to obtain fees. Subdivision (14) addresses the “making, causing to be made, aiding or abetting in the making of a false statement” in any certificate or document executed in connection with the practice of the applicable profession. Subdivisions (4)(a) and (14) more specifically address Dr. Boyd’s conduct regarding the Medicare and Medicaid forms than the general provision under subdivision (4). The language in (4)(a) and (14) require a scienter element to find cause to discipline under these subdivisions. The AHC found the evidence failed to establish the requisite scienter elements of subdivisions (4)(a) and (14). Under the facts of the present case, subdivision (4) cannot be used to find cause to discipline Dr. Boyd.

In response to Dr. Boyd’s argument, the Board emphasizes the “including, but are not limited to” language in subdivision (4). This language refers to the list following subdivision (4) and merely reflects the conduct addressed in subdivisions (4)(a-q) does not constitute the only conduct for which cause to discipline may be found. Subdivision (4)(a), which is a part of subdivision (4), more specifically addresses Dr. Boyd’s conduct regarding the Medicare and Medicaid forms and, therefore, this subdivision is more applicable. The fact the list in (4)(a-q) is nonexclusive does not negate the scienter requirement for a doctor’s conduct involving Medicare or Medicaid payments. In subdivision (17), the legislature specifically addressed false statements and misrepresentations of material facts regarding Medicare and Medicaid payments and, thereby, expressed its intent regarding doctor’s conduct involving this subject. The language cited by the Board simply does not justify finding cause to discipline Dr. Boyd under Counts II and III. The trial court’s judgment affirming the finding of cause to discipline Dr. Boyd’s license on Counts II and III of the Board’s complaint is reversed. Discussion of Dr. Boyd’s additional arguments in points one and two is not necessary.

In her third point, Dr. Boyd argues the Board during the disciplinary hearing improperly excluded evidence and denied her a right to a fair hearing. Dr. Boyd contends the Board improperly excluded letters regarding her good character and records of prior disciplinary decisions by the Board. Dr. Boyd also contends it was improper for the Board’s legal advisor to rule on evidentia-ry matters when the advisor and the attorney prosecuting the matter were both employed by the Missouri Attorney General.

Subject to a narrow exception not applicable in the present case, appellate courts will not review a claim of error regarding exclusion of evidence without a specific and definite offer of proof. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883-84 (Mo. banc 1985). This rule applies to decisions by administrative agencies. § 536.070(7) RSMo 1994; Greene County Concerned Citizens v. Board of Adjustment, 873 S.W.2d 246, 261 (Mo.App.S.D.1994). Dr. Boyd failed to make definite and specific offers of proof regarding the excluded evidence and the claim of error regarding the exclusion of evidence will not be reviewed.6 Because there is no reviewable claim of error as to the exclusion of evidence, Dr. Boyd can demonstrate no prejudice from the advisor and attorney prose*317cuting the matter both being employed by the Missouri Attorney General. Dr. Boyd’s third point is denied.

Dr. Boyd argues in her fourth point the discipline imposed by the Board is not supported by substantial and competent evidence. We agree to the extent the Board’s order suspending Dr. Boyd’s license for six months for the violations under Count I is not supported by substantial and competent evidence.

Dr. Boyd admitted from September 12, 1988 to November 8, 1988 she practiced medicine in Missouri without a Missouri license. During this period, Dr. Boyd possessed a valid license from the District of Columbia. The present case is not one where a doctor without a medical license or medical training treated patients. This is not meant to diminish the importance of possessing a Missouri license when practicing medicine in Missouri. However, there is not an allegation or any evidence Dr. Boyd did not adequately treat her patients. The primary purpose of statutes authorizing the Board to discipline a doctor’s license is to safeguard the public health and welfare. Missouri Board of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App.W.D.1991). Under the circumstances of this ease, suspension of Dr. Boyd’s license for the violations charged in Count I is not supported by substantial and competent evidence.7

However, there is substantial and competent evidence to support the imposition of probation only for the stipulated conduct under Count I. Four witnesses testified for Dr. Boyd at the disciplinary hearing. A priest testified Dr. Boyd was the first doctor to volunteer for a project where she treated without compensation children from a poor St. Louis neighborhood. This witness also testified Dr. Boyd continues to treat without compensation children in this neighborhood and there are a large number of these children who would not receive medical care if Dr. Boyd could not practice.

The second witness serves as Director of Research for the Health Policy Institute which is a research, education and advocacy organization for maternal and child health services in Missouri. The witness testified she found it very difficult, until she met Dr. Boyd, to obtain medical care for her foster child who had been abused. The witness also testified regarding the professional and caring treatment of the child by Dr. Boyd and the fact Dr. Boyd receives no compensation for the treatment. The witness asserted Dr. Boyd’s reputation in the community was she is a “very fine person” and a “very competent professional.”

A St. Louis University employee, who serves as president of a health management corporation, testified he contracted with Dr. Boyd in 1992 for her to serve as medical director of pediatric services for the St. Louis County clinics. This witness testified he wanted Dr. Boyd to serve as medical director because of her excellent reputation in the community particularly in the area of pediatric services for indigent patients. The witness also testified Dr. Boyd’s references regarding her clinical abilities were and continued to be excellent.

The fourth witness is a pediatric nurse practitioner who works for Edgewood Children’s Center and who participated in the decision to hire Dr. Boyd as medical director for the facility beginning in January 1990. This facility treats emotionally, sexually and physically abused children and Dr. Boyd renders services at the facility once a month for a “very nominal fee.” The witness testified the children, particularly those who have been sexually abused, need to be treated carefully. According to this witness, Dr. Boyd treats the children in a very understanding manner and the children “dearly love her.” This witness also testified regarding Dr. Boyd’s reputation in the community and the negative impact suspension of Dr. Boyd’s license would have on the community and the Edgewood Children’s Center, specifically. The imposition of probation for the *318stipulated conduct under Count I is supported by substantial and competent evidence. Gard v. State Board of Registration for the Healing Arts, 747 S.W.2d 726, 728-30 (Mo.App.W.D.1988).

The trial court’s judgment is affirmed in part, reversed in part and remanded for the Board to consider, consistent with this opinion, the discipline to be imposed for the conduct under Count I.

SMITH, P.J., concurs. PUDLOWSKI, dissents with opinion.

. All statutory references are to RSMo Supp. 1987 unless otherwise indicated.

. Dr. Boyd was issued a Missouri medical license on December 20, 1988.

. For purposes of this opinion, §§ 334.100.2(4), 334.100.2(3), 334.100.2(4)(a), 334.100.2(14) and 334.100.2(17) will all be referred to as subdivisions.

. In its findings and conclusions, the AHC stated the Board failed to address subdivision (3) of § 334.100.2 in its written argument and the AHC concluded the stipulated facts did not support cause to discipline under this subdivision.

. We do not imply there was evidence Dr. Boyd or anyone else “intended to defraud” the Medicare or Medicaid programs.

. Dr. Boyd is represented by different counsel on appeal than represented her at the disciplinary hearing.

. The Board filed a motion with this court to reconsider our denial of the Board's request to supplement the Record on Appeal with Dr. Boyd’s deposition and the affidavit of Douglas Wheeler, D.O. The motion is denied. Even if Dr. Boyd's deposition and the affidavit were properly before this court, these documents do not justify a six month suspension.