Phillip Allen Peterson, M.D. v. West Virginia Board of Medicine

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

PHILLIP ALLEN PETERSON, M.D., FILED
Respondent Below, Petitioner February 28, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 24-ICA-197 (W. Va. Bd. of Med., Case No. 22-86-W) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

WEST VIRGINIA BOARD OF MEDICINE,
Petitioner Below, Respondents

MEMORANDUM DECISION

Petitioner Phillip Allen Peterson, M.D. (“Dr. Peterson”) appeals the West Virginia
Board of Medicine’s (“Board”) April 12, 2024, final decision and order imposing a $500
fine and requiring that Dr. Peterson pay the costs and expenses of the disciplinary
proceeding. The Board timely filed a response.1 Dr. Peterson filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s final decision and order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

Dr. Peterson holds an active status license to practice medicine and surgery in the
state of West Virginia, initially issued in 1988. Physician medical licenses issued by the
Board are subject to renewal on a fixed, two-year schedule. To be eligible for medical
license renewal, physicians must successfully complete all required continuing medical
education (“CME”) training during the preceding two-year cycle. See W. Va. Code § 30-
3-12(b) (2017); W. Va. C.S.R. § 11-6-3 (2018). As part of the renewal application,
physicians must complete a Certificate of Continuing Education Compliance, which
requires the renewing physicians to attest that they have successfully completed all CME
requirements during the preceding two-year CME reporting period. For physicians who
renewed their West Virginia medical license in 2021, the CME reporting period was July
1, 2019, through June 30, 2021.

On June 8, 2021, Dr. Peterson submitted a renewal application for the period of July
1, 2021, through June 30, 2023. On his 2021 renewal application, Dr. Peterson certified to

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Dr. Peterson is represented by C. William Davis, Esq., and William L. Mundy,
Esq. The Board is represented by Greg S. Foster, Esq., and Jamie S. Alley, Esq.
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the Board that he completed all CME requirements during the applicable reporting period,
including completion of a Board-approved controlled substance course.

The Board randomly selected Dr. Peterson for a CME audit to verify his compliance
with all applicable CME requirements. Dr. Peterson responded to the CME audit and
included documentation showing that he completed his basic CME obligation of 50 CME
hours, and he produced a CME certificate for having completed a 21-hour CME entitled
PBI Prescribing Course: Opioids, Pain Management and Addiction on January 9-10, 2021.
The PBI Course was not previously approved by the Board as a controlled substance course
appropriate for licensees who were required to satisfy this CME requirement.2

On January 18, 2022, the Board notified Dr. Peterson of his CME noncompliance
because he failed to complete an approved controlled substance course during the
applicable reporting period. Over six months after the end of the applicable CME reporting
period, on January 28, 2022, Dr. Peterson completed a Board-approved controlled
substance training course.

Dr. Peterson was referred to the Board’s complaint committee for his
noncompliance with the Board's CME requirements. On September 11, 2022, the
Complaint Committee authorized Initiated Complaint No. 22-86-W against Dr. Peterson.
When the parties were unable to resolve the complaint by agreement, the Complaint
Committee determined that probable cause existed to institute disciplinary charges against
Dr. Peterson for violating the Board’s rule requiring completion of specific controlled
substance CME training. CME noncompliance for failure to complete the mandatory
Board-approved controlled substance course is the most common CME deficiency referred
to the Board’s complaint committee each year. The consistent fine imposed by the
Complaint Committee for a licensee’s CME noncompliance for failure to complete the
mandatory Board-approved controlled substance course is a $500 administrative fine
pursuant to a voluntary consent order. The Board cannot impose any disciplinary action
against a licensee, including an administrative fine, without either a voluntary consent
order or a Board order. CME noncompliance complaints are typically resolved without the
initiation of formal disciplinary charges or a public hearing. Consistent with Board
precedent, and on multiple occasions after Complaint No. 22-86-W was initiated, Dr.
Peterson was offered the opportunity to resolve Complaint No. 22-86-W by his agreement
to a Consent Order imposing a $500 administrative fine. After the parties were unable to

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Dr. Peterson was ordered to attend the PBI Course as a disciplinary sanction by
the Virginia Board of Medicine pursuant to a consent order entered on November 20, 2020.
The Virginia consent order explicitly prohibited Dr. Peterson from using the CME hours
he earned from the PBI Course toward meeting his CME obligations in Virginia. The Board
and Dr. Peterson entered a reciprocal consent order in West Virginia. Although prohibited
from applying the PBI course credits to Virginia CME requirements, he now seeks to apply
those same credits to satisfy his West Virginia CME requirements.
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resolve the complaint by agreement, the Complaint Committee determined that probable
cause existed to institute disciplinary charges against Dr. Peterson due to his CME
noncompliance.

The Board issued the Complaint, Notice of Hearing, Pre-Hearing Directives, and
Protective Order (“CNOH”) in this matter on September 20, 2023, setting forth a single
count alleging professional misconduct by Dr. Peterson arising from a Board-initiated
complaint, identified as Complaint No. 22-86-W. On December 7, 2023, the hearing
examiner granted the Board’s motion in limine to prohibit Dr. Peterson from calling Dr.
David Mullins, the Chair of the Board’s Complaint Committee, Dr. Ashish Sheth, the
President of the Board, and Dr. Matthew Christiansen, the Secretary of the Board, as
witnesses during the evidentiary hearing on the Complaint against him. On December 13,
and 14, 2023, the hearing examiner held an evidentiary hearing. During the hearing, the
Board presented testimony from its Executive Director Mark Spangler (“Executive
Director”). The Board also called Dr. Peterson as a witness. Dr. Peterson testified and
presented testimony from Drs. Jennifer Schneider and Lee Smith. The evidentiary hearing
was recorded and transcribed by a court reporter, and the parties were given an opportunity
to obtain a copy of the transcript. On March 5, 2024, the parties timely submitted proposed
findings of fact and conclusions of law to the hearing examiner.

The hearing examiner’s recommended decision was entered on March 19, 2024, and
the Board’s final decision and order, which adopted the recommended decision with minor
modifications, was entered on April 12, 2024. In the orders, both the hearing examiner and
the Board determined that Dr. Peterson failed to perform a statutory and legal obligation
of a licensee of the Board in violation of West Virginia Code § 30-3-14(c)(17) (2022) and
11 C.S.R. 1A §§ 12.1.o, and 12.1.bb. (2023) and that the Board met its burden of proving
the substantive allegations of professional misconduct set forth in Count 1 of the CNOH
by clear and convincing evidence. As a result, the Board issued the following sanctions
against Dr. Peterson: (1) a fine of $500; and (2) payment to the Board for the costs of the
proceeding. Dr. Peterson appeals the Board’s final decision.

The West Virginia Administrative Procedures Act governs this Court’s standard of
review in administrative appeals, including appeals from final disciplinary orders of the
Board:

(g) The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate or modify the order or decision
of the agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions,
decision, or order are:

(1) In violation of constitutional or statutory provisions;

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(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence on
the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021). With this standard in mind, we turn to Dr.
Peterson's assignments of error.

In his first assignment of error, Dr. Peterson asserts that the Board’s decision was
clearly wrong because no Board-approved controlled substance CME courses were
available during the applicable reporting period and therefore, it was impossible for Dr.
Peterson to comply. Dr. Peterson argues that no Board-approved controlled substance CME
courses were available because the Board improperly delegated its CME course approval
duties to the Board’s Executive Director and therefore the available CME courses were not
technically “Board-approved” as required by 11 C.S.R. 6 § 3.3 (2018).

To determine whether an agency’s decision is clearly wrong, this Court presumes
that the agency’s decision is “valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, in part, In re Queen, 196 W. Va. 442, 473 S.E.2d
483 (1996). Here, the Board’s decision on this issue was supported by substantial evidence
and a rational basis. At the evidentiary hearing, the Executive Director testified that since
he began the position, it was his duty to approve CME courses that satisfy the CME
requirements. He further testified that his review of CME courses submitted by CME
providers is an objective administrative review simply to verify that a submitted CME
course complies with pre-set components that were already approved by the Board.

The Board’s decision on this issue is also supported by a rational basis. Since the
Board regularly meets on two-month intervals, delegation of CME course approval
authority is necessary for the Board to comply with the twenty-day deadline established in
its CME rule to respond to CME provider requests for course approval. Based on our
review, there is no provision in the Board’s CME rules that restricts the Board from
delegating its authority to approve CME courses to its Executive Director. Similarly, there
is no provision in the West Virginia Medical Practice Act, West Virginia Code §§ 30-3-1
to 30-3-18, which requires the Board to follow any particular procedure when delegating
authority to its Executive Director or any other part of its staff.

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Dr. Peterson next asserts, in his second assignment of error, that the Board violated
his due process rights under Article III, § 10 of the Constitution of West Virginia and
United States Constitution, Amendment V and violated provisions of West Virginia Code
§ 29A-5-2(a) (1964) by preventing Dr. Peterson from presenting the testimony of Drs.
Sheth, Christiansen, and Mullins during the evidentiary hearing and from vouching the
record with their testimony. Dr. Peterson argues that these individuals could have provided
relevant testimony regarding: (1) the existence of a Board-approved controlled substance
training during the applicable time period; (2) the process for a course to become Board-
approved; (3) the alleged delegation of the Board’s duty to approve such training; the
procedure followed by the Complaint Committee in initiating a complaint against Dr.
Peterson; (4) the investigation of the allegations against Dr. Peterson; and (5) factors
considered by the Board when it determined that probable cause existed for the complaint.
Dr. Peterson argues that these are all facts of consequence so their proposed testimony
would have been relevant. Conversely, the Board argues that the hearing examiner properly
excluded Dr. Peterson from compelling three Board members to testify at the hearing
because their participation was wholly unnecessary, they were not proper witnesses, and
the information sought was not relevant, material, or probative on any fact of consequence.

In general, “a party ‘is not constitutionally entitled to present irrelevant evidence.’”
State ex rel. Cooper v. Caperton, 196 W. Va. 208, 215, 470 S.E.2d 162, 169 (1996)
(quoting Doe v. United States, 666 F.2d 43, 47 (4th Cir. 1981)). The Supreme Court of
Appeals of West Virginia has held that “[e]videntiary findings made at an administrative
hearing should not be reversed unless they are clearly wrong.” Syl. Pt. 1, Francis O. Day
Co., Inc., v. Dir., Div. of Env’t Prot., 191 W. Va. 134, 443 S.E.2d 602 (1994).

Below, the hearing examiner determined that the testimony of the Board members
was not relevant, material, or probative on any fact of consequence. We find nothing clearly
wrong with this determination. At the hearing, the Board’s Executive Director testified at
length regarding the administrative review process for approving CME training courses,
explaining the duty was delegated to him by the Board and the Board provided him with
the components it required for approving CME training courses. The hearing examiner
found that the Executive Director's testimony was credible and sufficient, and that any
further testimony on Board processes or procedures from the Board members was not
relevant or material to the substantive issues in this case or the ultimate outcome.

Dr. Peterson also asserts that he should have been permitted to question the Board
members regarding the preliminary probable cause determination made by the Board’s
complaint committee. In excluding testimony from the Board members on its internal
probable cause determination, the hearing examiner determined that a probable cause
finding by the complaint committee is simply a charge, not a final decision of the Board
and the Board members are not proper witnesses because the allegations in the complaint
are tested by the evidence presented to the hearing examiner. We agree with the hearing

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examiner and find that excluding the Board members from testifying was supported by a
rational basis, and therefore not clearly wrong.

Dr. Peterson further contends that his constitutional rights were violated when the
hearing examiner denied him the right to vouch the record with testimony from the
excluded Board members. West Virginia Code § 29A-5-2(a) provides that “[a]ny party to
any such hearing may vouch the record as to any excluded testimony or other evidence.”
W. Va. Code § 29A-5-2 (1964). The hearing examiner determined that vouching the record
by presenting testimony from the excluded witnesses in this case was unnecessary. Here,
the hearing examiner allowed Dr. Peterson’s counsel to offer what he believed to be the
substance of the expected testimony and denied Dr. Peterson’s request to vouch the record
through testimony. Because he was afforded the opportunity to offer the substance of the
expected testimony, we find that Dr. Peterson’s constitutional rights were not violated and
defer to the hearing examiner's evidentiary determination on this issue.

In his final assignment of error, Dr. Peterson asserts that the Board’s actions in
initiating the proceedings against him and imposing disciplinary sanctions against him
were arbitrary and capricious, an abuse of discretion, or an unwarranted exercise of
discretion. In support of this assertion, Dr. Peterson argues that the Board is mandated to
protect the public interest, safety, health, and welfare and his completion of the 21-hour
unapproved course provided more protection to the public than the 3-hour Board-approved
course he completed following the applicable reporting period. In response, the Board
argues that there were over 28 Board-approved courses eligible to satisfy the controlled
substance CME requirement during the applicable period and the courses were clearly
published on the Board’s website. Dr. Peterson received several communications from the
Board reminding him of the requirement to complete a Board-approved controlled
substance CME course, which included hyperlinks to such courses. Nevertheless, Dr.
Peterson failed to complete a Board-approved course in a timely manner.

The hearing examiner determined that the Board established the following at the
hearing: (1) the Board has a CME requirement for certain physicians who prescribe,
administer, or dispense controlled substances, to complete one 3-hour course on drug
diversion and best practices for prescribing controlled substances during each two-year
license renewal cycle; (2) the Board made multiple CME courses that complied with the
controlled substance CME requirements readily available; (3) the Board issued several
reminders to Dr. Peterson that he must complete the controlled substance CME
requirements and provided information on how to find approved courses; (4) that Dr.
Peterson did not complete a Board-approved controlled substance CME course during the
applicable two-year reporting period as required; and (5) that Dr. Peterson was subject to
the same discipline that the Board would impose on any other similarly situated physician,
namely a $500 fine. Based on our review of the record, the Board’s decision to discipline
Dr. Peterson was supported by substantial evidence, and was therefore not arbitrary and
capricious, an abuse of discretion, or an unwarranted exercise of discretion.

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For the foregoing reasons, we affirm the Board’s April 12, 2024, final decision and
order.

Affirmed.

ISSUED: February 28, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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