                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 16, 2010 Session

  JOSEPH EDWARD RICH, M.D. v. TENNESSEE BOARD OF MEDICAL
                       EXAMINERS

                 Appeal from the Chancery Court for Davidson County
                     No. 08-229-II   Carol McCoy, Chancellor


              No. M2009-00813-COA-R3-CV - Filed September 14, 2010


This is an administrative appeal arising from the suspension of a doctor’s medical license by
the Tennessee Board of Medical Examiners. The appellant’s medical license was suspended
by the Board following its finding that he violated four provisions of the Tennessee Medical
Practice Act, three state regulations, and one provision of the United States Code. The
violations related to his use of chelation therapy and intravenous hydrogen peroxide therapy,
and his use of methadone to treat patients. Following the Board’s decision, the appellant filed
a petition for judicial review before the chancery court. The chancery court affirmed the
decision of the Board. The appellant raises numerous issues on appeal, inter alia, that the
Board’s decision was arbitrary and capricious and that the Board’s decision was not
supported by substantial and material evidence. We reverse the finding that Dr. Rich was in
violation of subsections (1), (4) and (12) of Tenn. Code Ann. § 63-6-214(b) because the
Board did not articulate the applicable standard of care, as required by Tenn. Code Ann. §
63-6-214(g), to demonstrate his violations of that standard. We affirm the chancery court on
all other issues including the findings that Dr. Rich violated of subsection (14) of Tenn. Code
Ann. § 63-6-214(b), Tenn. Comp. R. & Regs. 0880-2-.14(6)(c), Tenn. Comp. R. & Regs. §
0880-2-.14(6)(e)(3)(ii) and 21 U.S.C.A § 823(g)(1). Due to our reversal of the Board’s
finding on three of the seven charges against Dr. Rich, we remand this action for the
reconsideration of the sanctions against him.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in
                      Part, Affirmed in Part, and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Jeffrey B. Levens, Chicago, Illinois, and James C. Bradshaw III, Nashville, Tennessee, for
the appellant, Joseph Edward Rich, M.D.
Robert E. Cooper, Jr., Attorney General and Reporter, and Sara E. Sedgwick, Senior
Counsel, for the appellee, Tennessee Board of Medical Examiners.

                                            OPINION

      Dr. Joseph Edward Rich received his medical degree from the University of Saarland,
Germany and holds a Masters of Public Health degree from the University of Michigan and
a Masters of Medical Management degree from Tulane University. Prior to obtaining a
medical license in Tennessee, Dr. Rich obtained a license to practice medicine in the states
of Oregon, Michigan, California, Kansas, Indiana, and Kentucky.

       In August 1995, Dr. Rich was granted a conditional medical license to practice
medicine in Tennessee. Dr. Rich then opened a medical office in Knoxville, Tennessee,
under the name Center for Environmental and Integrative Medicine. By 2002, Dr. Rich’s
medical practice included chelation and hydrogen peroxide therapies. Additionally, Dr. Rich
treated patients for “opioid dependency” using methadone.

       On June 15, 2005, the Division of Health Related Boards of the Tennessee
Department of Health (hereinafter “the Department”) filed a Notice of Charges against Dr.
Rich.1 The Notice of Charges was amended twice. In the final amendment, filed on July 13,
2007, Dr. Rich was alleged to have provided chelation therapy and intravenous hydrogen
peroxide therapy to patients without appropriate diagnosis or medical documentation. The
Department also alleged that Dr. Rich used methadone in violation of statutes and regulations
because (1) his use of methadone was not supported by the appropriate medical records and
(2) he used methadone to “detoxify” patients yet he was not licensed to use methadone for
that purpose. The Notice of Charges additionally set forth numerous facts pertaining to these
and other charges.

        In the final amended Notice of Charges, Dr. Rich was alleged to have violated the
following provisions of the Tennessee Medical Practice Act, Tenn. Code Ann. § 63-6-101,
et seq.:

       (1) “[u]nprofessional, dishonorable or unethical conduct” pursuant to Tenn.
       Code Ann. § 63-6-214(b)(1);

       (2) “[g]ross malpractice, or a pattern of continued or repeated malpractice,
       ignorance, negligence or incompetence in the course of medical practice”


       1
        Dr. Rich had previously been disciplined by the Board of Medical Examiners in 1999 and placed
on probation for two years.

                                                 -2-
       pursuant to Tenn. Code Ann. § 63-6-214(b)(4);

       (3) “dispensing, prescribing or otherwise distributing any controlled substance
       or any other drug not in the course of professional practice, or not in good faith
       to relieve pain and suffering, or not to cure an ailment, physical infirmity, or
       disease, or in amounts and/or for durations not medically necessary, advisable
       or justified for a diagnosed condition” pursuant to Tenn. Code Ann. § 63-6-
       214(b)(12);

       (4) “dispensing, prescribing or otherwise distributing any controlled substance
       or other drug to any person in violation of any law of the state or of the United
       States” pursuant to Tenn. Code Ann. § 63-6-214(b)(14).

      The Department also alleged that Dr. Rich’s use of controlled substances, specifically
methadone, was in violation of the following state regulations and federal statute:

       (5) Tenn. Comp. R. & Reg. 0880-2-.14(6)(c);
       (6) Tenn. Comp. R. & Reg. 0880-2-.14(6)(e)(3)(ii); and
       (7) 21 U.S.C.A § 823(g)(1).

       A contested case hearing was tried on ten separate days over a period of eighteen
months, from July 26, 2006 to December 6, 2007. At the conclusion of the final day of the
hearing, December 6, 2007, the Board found Dr. Rich in violation of all four provisions of
the Tennessee Medical Practice Act, specifically Tenn. Code Ann. § 63-6-214(b)(1), (4), (12)
and (14), two state regulations, specifically Tenn. Comp. R. & Reg. 0880-2-.14(6)(c) and
(6)(e)(3)(ii), and one provision of the United States Code, 21 U.S.C.A § 823(g)(1).

        Based upon the above findings, and after considering his previous violations and
sanctions, the Board suspended Dr. Rich’s medical license for one year. The suspension was
subject to the following conditions: that Dr. Rich obtain an evaluation from the Vanderbilt
Comprehensive Assessment Program for Professions (“VCAP”), that Dr. Rich authorize
VCAP to send its recommendations to the Board, that Dr. Rich comply with the VCAP
recommendations, that he complete a comprehensive course in pain management, that he pay
the costs of the prosecution, and that he personally appear before the Board at the conclusion
of his one-year suspension to determine if a probationary period was necessary. The Board
also required that Dr. Rich transfer all of his patients to other medical providers prior to the
start of his suspension. At the conclusion of the final hearing on December 6, Dr. Rich’s




                                              -3-
counsel notified the Board that he was withdrawing as Dr. Rich’s counsel.2 A final order was
entered on December 21, 2007.

       Dr. Rich obtained substitute counsel in January 2008 and on February 13, 2008, Dr.
Rich filed a petition for judicial review of the Board’s final order asserting a plethora of
reasons to overturn the Board’s action.3 He contended, inter alia, that the Board’s findings
were not supported by substantial and material evidence, that evidence was erroneously
excluded, that the applicable standards of care were not established, and that the Board’s
decision was arbitrary and capricious, an abuse of discretion, beyond the Board’s authority,
and/or in violation of the law. On March 17, 2009, the chancery court issued a thorough and
detailed Memorandum Opinion affirming the decision of the Board. This appeal followed.

                                                   I SSUES

       Dr. Rich raises numerous issues on appeal, many of which are interrelated. He
contends, inter alia, that the expert testimony presented by the Department is inadequate and
improper, that the Department failed to satisfy the locality rule regarding the standard of care
for chelation therapy, and that the Board’s decision is not supported by substantial and
material evidence. He also contends that the Board’s findings were arbitrary and capricious,
and characterized by abuses of discretion and procedural flaws that deprived him of due
process. Additionally, Dr. Rich argues that his counsel was ineffective warranting a reversal
of the Board’s findings and that he was prejudiced by the bias of the chancellor. We will
dispose of the last two issues first and then discuss the other issues in turn.

                                                 A NALYSIS

                                                     A.
                                INEFFECTIVE A SSISTANCE OF C OUNSEL

        Dr. Rich contends throughout his brief that he was deprived of his due process right
to a fair hearing because his counsel during the contested case hearing was ineffective. We
find this issue without merit because there is no constitutional guarantee to effective counsel
in civil cases. See Thornburgh v. Thornburgh, 937 S.W.2d 925, 926 (Tenn. Ct. App. 1996).
Moreover, Dr. Rich has failed to establish a legal or factual basis to support his argument.
Therefore, we affirm the Chancellor’s ruling on this issue.


        2
            Dr. Rich did not attend the final hearing on December 6, 2007; he was on vacation.
        3
        Dr. Rich also filed several petitions to stay the suspension of his medical license, all of which the
chancery court denied.

                                                     -4-
                                       B.
             A LLEGATION THE C HANCELLOR WAS B IASED A GAINST D R. R ICH

       Dr. Rich contends the chancellor was biased against him. This contention is based on
two circumstances: (1) the chancellor denied his request for a stay of the judgment in
chancery court; and (2) the chancellor refused to recuse herself in a separate action that Dr.
Rich brought pursuant to Tenn. Code Ann. § 63-1-117(a)(3)(A). We find no merit to Dr.
Rich’s contention of bias in fact and in law.

       As a matter of law, the mere fact that a trial judge rules adversely to a party is not a
sufficient ground to establish bias. Keisling v. Keisling, 92 S.W.3d 374, 380 (Tenn. 2002).
As a matter of fact, we find nothing in the record that supports Dr. Rich’s conclusory
contention of bias. We also note that Dr. Rich has waived this issue because he never asked
the chancellor to recuse herself from this action.

                                              C.
                                  E XCLUSION OF E VIDENCE

       Dr. Rich contends the administrative judge erred in excluding witnesses and exhibits
he intended to present in the contested case hearing. The administrative judge excluded the
evidence at issue upon a finding that Dr. Rich failed to comply with a scheduling order
requiring the disclosure of witnesses and exhibits by a certain date.

        The scheduling order required the parties to disclose their witnesses and exhibits to
be introduced at the hearing by April 24, 2006. The first day of the protracted contested case
hearing was July 26, 2006. Dr. Rich did not file his witness or exhibit list until December 20,
2006. The administrative judge then set a second deadline for disclosure of witnesses and
exhibits, that of December 27, 2006; however, Dr. Rich again failed to comply with the
deadline and filed his disclosure on January 3, 2007. Although Dr. Rich admits he did not
conform to the scheduling orders mandated by the administrative judge, he insists he should
have been allowed to present the evidence that was excluded to avoid “injustice.”

       The pertinent statute, Tenn. Code Ann. § 4-5-313(3), provides that the administrative
judge “may admit affidavits not submitted in accordance with this section where necessary
to prevent injustice.” (emphasis added). The statute expressly affords the administrative
judge the discretion to admit or exclude evidence by use of the word “may.” The chancery
court affirmed the decision to exclude the evidence and found the administrative judge’s
decision was reasonably based on Dr. Rich’s “continued failure to comply with procedural
deadlines” set in the contested case hearing. We agree and find the administrative judge did
not abuse his discretion in excluding the evidence at issue.

                                              -5-
                                             D.
                                   A DMISSION OF E VIDENCE

        Dr. Rich challenges the decision of the administrative judge to allow the Department
to present evidence when it also failed to conform to the first scheduling order and failed to
comply with Tenn. R. Civ. P. 26 in the disclosure of its expert witnesses. We find this issue
without merit for three reasons. First, although the Department submitted its list of witnesses
and exhibits late, after the date set by the first scheduling order, unlike Dr. Rich, the
Department submitted its list prior to the start of the contested case hearing. Second, Dr. Rich
did not object to the Department’s failure to comply with Tenn. R. Civ. P. 26 during the
contested case hearing. Third, he failed to raise this issue in his petition for review before the
chancery court. Accordingly, Dr. Rich waived the issue. McClellan v. Bd.of Regents of State
University, 921 S.W.2d 684, 690 (Tenn. 1996); see also Barnhill v. Barnhill, 826 S.W.2d
443, 458 (Tenn. Ct. App. 1991) (holding that an appellate court will not address issues raised
for the first time on appeal).

        Next, Dr. Rich asserts the administrative judge erred by admitting certain patient
medical records into evidence. He contends this was error because the Department obtained
the records without consent of the patient as required by Tenn. Code Ann. § 63-1-117. We
also find no merit to this issue for three reasons. First, Dr. Rich waived this issue by failing
to object to the admission at the contested case hearing. McClellan, 921 S.W.2d at 690.
Second, we find his objection disingenuous because the records were introduced into the
record as stipulated evidence by the parties. Third, the statute in effect at the time of the
hearing, Tenn. Code Ann. § 63-1-117(a)(3)(A) (2007), provided that failing to file a petition
objecting to a records request waives any challenge to the reasonableness of the request.

                                               E.
                                     P ROCEDURAL E RRORS

       For his procedural challenges, Dr. Rich asserts that he did not receive fair notice of
the charges against him. This is based on the fact that the final (third) Notice of Charges was
submitted after the close of the contested case hearing. He also asserts that the administrative
judge erred by allowing a redacted version of the notice of charges to be submitted to the
Board, which erroneously revealed information pertaining to previous charges unrelated to
those at issue here. He states the redacted document presented to the Board was inadequate
because it merely had lines drawn through the objectionable material and the objectionable
information was legible. Dr. Rich insists there should have been a “clean” notice of charges
submitted to the Board, one that did not reveal prior charges unrelated to this case.

       We have determined that Dr. Rich had fair notice of the charges against him prior to

                                               -6-
the hearing. This is because the charges asserted in the first two notices did not differ in any
significant respect from the final notice of charges. As for the redacted notice of charges
presented to the Board, Dr. Rich failed to object when the redacted version was introduced
into evidence. Moreover, the administrative judge provided a curative instruction to the
Board stating that Dr. Rich’s disciplinary history could only be considered for determining
appropriate sanctions if and in the event the Board found Dr. Rich in violation of any of the
statutes or regulations at issue.

       A clean redacted notice of charges should have been presented to the Board when it
considered whether Dr. Rich was in violation of any of the regulations or statutes, however,
we are unable to conclude that the redacted copy presented to the Board affected the merits
of the Board’s decision. “No agency decision pursuant to a hearing in a contested case shall
be reversed, remanded or modified by the reviewing court unless for errors that affect the
merits of such decision.” Tenn. Code Ann. § 4-5-322(i). The chancery court concluded that
the “Board’s receipt of an un-redacted version of the Notice of Charges did not affect the
merits of its decision on the 2005 charges” and we agree with that conclusion. Additionally,
Dr. Rich’s prior disciplinary action was appropriate for consideration of sanctions following
the finding that he was in violation of the charged statutes and regulations. See Robertson v.
Tenn. Bd. of Social Worker Certification and Licensure, 227 S.W.3d 7, 15 (Tenn. Ct. App.
2007).

                                                     F.
                                          S TANDARD OF C ARE

        Dr. Rich contends the Board’s findings that he violated subsections (1), (4), (12) and
(14) of Tenn. Code Ann. § 63-6-214(b) should be reversed because the Board failed to
articulate the applicable standards of care he allegedly violated.4 Conversely, the Department
contends the Board was excused from articulating the standard of care because expert proof
concerning the standard of care was presented.

       We have determined the Board is not excused from articulating the applicable
standard of care merely because expert proof concerning the standard of care was presented.
Further, the Board is not excused from articulating the applicable standard of care merely
because Dr. Rich was found to have violated a regulation unless the regulation expressly
provides that a violation of the regulation shall be prima facie evidence of a violation of the


        4
         Dr. Rich also contends on appeal that the Department failed to prove the applicable standard of care;
however, he did not raise this specific argument before the chancery court. Dr. Rich did contend that the
Board’s decision was arbitrary and capricious and not supported by substantial and material evidence, which
are issues we address later in this opinion.

                                                     -7-
statute at issue. The reasoning behind our determinations is explained below.

                                   Tenn. Code Ann. § 63-6-214(g)

       At issue is the fact that the Board found Dr. Rich in violation of subsections (1), (4),
(12) and (14) of Tenn. Code Ann. § 63-6-214(b) without articulating the applicable standards
of care.5 We have determined the Board’s failure to comply with subsection (g) of Tenn.
Code Ann. § 63-6-214, by failing to articulate the applicable standards of care, constitutes
reversible error as it pertains to the findings Dr. Rich violated subsection (1), (4) and (12).

        Tenn. Code Ann. § 63-6-214(g) reads in pertinent part:

        For purposes of actions taken pursuant to subdivisions (b)(4), (12) and . . . any
        other subsection in which the standard of care is an issue, any Tennessee
        licensed physician serving as a board member, hearing officer, designee,
        arbitrator or mediator is entitled to rely upon that person’s own expertise in
        making determinations concerning the standard of care and is not subject to
        voir dire concerning such expertise. Expert testimony is not necessary to
        establish the standard of care. The standard of care for such actions is a
        statewide standard of minimal competency and practice that does not depend
        upon expert testimony for its establishment. However, to sustain actions based
        upon a violation of this standard of care, the board must, in the absence of
        admissions or other testimony by any respondent or such respondent’s agent
        to the effect that the standard was violated, articulate what the standard of
        care is in its deliberations. The provisions of title 29, chapter 26, and
        specifically § 29-26-115, concerning the locality rule, do not apply to actions
        taken pursuant to this chapter.

       Therefore, subsection (g) expressly requires the Board to articulate the standard of
care relative to the alleged violations of subdivisions (b)(4) and (12), and any other
subsection in which the standard of care is an issue unless the respondent makes an
admission of the violation of the applicable standard of care. See Tenn. Code Ann. § 63-6-

        5
          The underlying conduct relating to the charges against Dr. Rich for violating Tenn. Code Ann. §
63-6-214(b)(1), (4), and (12) stemmed from two separate areas of his practice: the practice of chelation
therapy and hydrogen peroxide therapy to treat heavy metal toxicity, and the use of methadone in treating
patients for pain management. The Board did not articulate a statewide standard of care applicable to the
diagnosis of heavy metal toxicity and treatment when it found Dr. Rich in violation of Tenn. Code Ann. §
63-6-214(b)(1), (4), and (12), and the Board did not articulate a standard of care applicable for prescribing
methadone for the purpose of “treating” patients when it found Dr. Rich in violation of Tenn. Code Ann. §
63-6-214(b)(1), (4), and (12).

                                                    -8-
214(g).6 There is another circumstance by which the Board may be excused from the
requirement to articulate the standard of care, that is when a regulation upon which the
statutory violation is alleged establishes the applicable standard of care. See Siddall v. Tenn.
Bd. of Medical Examiners, No. M2004-02767-COA-R3-CV, 2006 WL 1763665, at *3
(Tenn. Ct. App. June 27, 2006).

       Thus, the Board is expressly required to articulate the applicable standard of care
when the respondent is alleged to have violated subsections (4) and (12) of Tenn. Code Ann.
§ 63-6-214(b) unless the respondent admits the violation or the respondent is found to have
violated a regulation which establishes that he also violated the statute. Dr. Rich did not
admit violating either subsection, he was not found to have violated a regulation that
established the applicable standard of care,7 and the Board did not articulate the standard of
care applicable to either subsection. Therefore, unless another exception to the mandatory
provision of subsection (g) applies, the findings that he violated subsections (4) and (12) of
Tenn. Code Ann. § 63-6-214(b) must be reversed.

        The Department contends the Board was excused from articulating the standard of
care because expert testimony was presented. We find no merit to this contention. This is
because the plain language of the statute expressly requires the Board to articulate the
applicable standard(s) of care. As we determined in Siddall v. Tenn. Bd. of Medical
Examiners, No. M2004-02767-COA-R3-CV, 2006 WL 1763665, at *3 (Tenn. Ct. App. June
27, 2006), although the Department may present expert testimony, “it still must articulate a
standard of care to establish a statewide standard of minimum competency and practice.”
This is because the “plain, unambiguous language” of subsection (g) requires the Board to
articulate the standard of care in the absence of an admission of a violation. Id. Thus, the
introduction of expert medical proof in this case does not excuse the Department of its
affirmative duty to articulate the applicable standards of care relative to subsections (4) and
(12) of Tenn. Code Ann. § 63-6-214(b).

        6
          As the statute expressly states, if subsection (g) applies, the Board is required to articulate the
standard of care relative to the alleged violations unless the respondent, in this case Dr. Rich, makes an
admission of the violation of the applicable standard(s) of care. See Tenn. Code Ann. § 63-6-214(g). There
is nothing in the record to indicate that Dr. Rich or his agent (attorney) made any admissions that the standard
was violated, nor does the Department cite to any portion of the record in which such admissions occurred,
thus, this exception does not apply to the facts of this case.
        7
          The regulation in Siddall stated that a violation of the regulation constituted “a prima facie violation
of T.C.A. § 63-6-214(b)(1), (4), and (12).” Sidall, 2006 WL 1763665, at *3-4 (citing Tenn. Comp. R. & Regs.
0880-2-.14(7)). The regulations at issue in this action, while stating that the Board may use them as
guidelines for determining whether a physician’s conduct violates Tenn. Code Ann. § 63-6-214(b)(12)-(14),
do not state that a violation is a prima facie violation of the statute. Therefore we find them distinguishable.
See Tenn. Comp. R. & Regs. 0880-2-.14(6)(e).

                                                       -9-
        Dr. Rich was also charged with violating subsections (1) and (14) of Tenn. Code Ann.
§ 63-6-214(b). Unlike subsections (4) and (12), Tenn. Code Ann. § 63-6-214(g) does not
expressly require the Board to “articulate” the standard of care as it pertains to subsections
(1) and (14). However, the Board is required to articulate the standard of care if the standard
of care “is an issue.” See Tenn. Code Ann. § 63-6-214(g) (stating the duty to articulate the
standard of care applies “for purposes of actions taken pursuant to subdivisions [of Tenn.
Code Ann. § 63-6-214(b)] . . . in which the standard of care is an issue”). Thus, if the
standard of care is an issue relative to subsections (1) or (14), the Board has a duty to
articulate the applicable standard of care unless Dr. Rich admitted the violation or the
relevant standard of care is stated in a regulation. See Tenn. Code Ann. § 63-6-214(g);
Siddall, 2006 WL 1763665, at *3.

                                       S UBSECTION (1)

       Dr. Rich was alleged to have violated subsection (1) of Tenn. Code Ann. § 63-6-
214(b) by engaging in “[u]nprofessional, dishonorable or unethical conduct.” Determining
whether a physician engaged in unprofessional, dishonorable or unethical conduct requires
an understanding of the relevant standard(s) of care. See Tenn. Dept. of Health v. Frisbee,
No. 01A01-95-11-CH-00540, 1998 WL 4718, at *4 n.8 (Tenn. Ct. App. Jan. 8, 1998). Dr.
Rich did not admit violating the applicable standard(s) of care and he was not found to have
violated a regulation that states the applicable standard(s) of care. Thus, the Board was
required to, but did not, articulate the standard(s) of care from which he deviated to be in
violation of subsection (1) of Tenn. Code Ann. § 63-6-214(b). Accordingly, the finding Dr.
Rich violated of Tenn. Code Ann. § 63-6-214(b)(1) must be reversed.

                                       S UBSECTION (14)

       The Department also alleged that Dr. Rich violated subsection (14) of Tenn. Code
Ann. § 63-6-214(b) by “dispensing, prescribing or otherwise distributing any controlled
substance or other drug to any person in violation of any law of the state or of the United
States.” Like subsection (1), subsection (14) is not listed as one of the subsections for which
the Board shall articulate the applicable standard of care; nevertheless, the Board may be
required to articulate the standard of care if the standard of care “is an issue.” See Tenn. Code
Ann. § 63-6-214(g). We have determined that, unlike subsection (1), it was not necessary for
the Board to articulate a standard of care with respect to subsection (14); this is because a
standard of care is not at issue. See Frisbee, 1998 WL 4718, at *4 n.6. Dr. Rich was alleged
to have violated subsection (14) of Tenn. Code Ann. § 63-214(b) by “illegally dispensing or
prescribing controlled substances,” which is “specific inappropriate conduct” that does not
require evidence of a specific standard of care or professional practice standard. See id.



                                              -10-
                                           G.
                          S UBSTANTIAL AND M ATERIAL E VIDENCE

       Dr. Rich contends the Board’s decision was not supported by substantial and material
evidence. To constitute “substantial and material evidence,” the evidence “must be such
relevant evidence as a reasonable mind might accept as adequate to support a rational
conclusion and such as to furnish a reasonably sound basis for the action under
consideration.” Gluck v. Civil Serv. Comm’n, 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999)
(citing Pace v. Garbage Disposal Dist., 390 S.W.2d 461, 463 (Tenn. Ct. App. 1965)).
Substantial and material evidence under Tenn. Code Ann. § 4-5-322(h) is understood to
require “something less than a preponderance of the evidence, . . . but more than a scintilla
or glimmer.” Gluck 15 S.W.3d at 490 (quoting Wayne County v. Tennessee Solid Waste
Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)).

        In determining the substantiality of the evidence, the reviewing court “shall take into
account whatever in the record fairly detracts from its weight, but the court shall not
substitute its judgment for that of the agency as to the weight of the evidence on questions
of fact.” Tenn. Code Ann. § 4-5-322(h)(5)(B); see also Jackson Mobilphone, 876 S.W.2d
106, 110 (Tenn. Ct. App. 1993). The court may reverse or modify the decision of the agency
if the petitioner’s rights have been prejudiced because the administrative findings, inferences,
conclusions or decisions are “[u]nsupported by evidence which is both substantial and
material in the light of the entire record.” Tenn. Code Ann. § 4-5-322(h)(5)(A). However,
when reviewing an administrative agency’s decision, a court may not substitute its judgment
concerning the weight of the evidence for that of the Board as to questions of fact. Tenn.
Code Ann. § 4-5-322(h)(5)(B); see Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn.
Ct. App. 2002); see also Humana of Tennessee v. Tennessee Health Facilities Comm’n, 551
S.W.2d 664, 668 (Tenn. 1977) (holding the trial court and the appellate court must review
these matters pursuant to the narrow statutory criteria). Moreover, courts generally defer to
decisions of administrative agencies when those agencies are acting within their area of
specialized knowledge, experience, and expertise.” Williamette Indus., Inc. v. Tenn.
Assessment Appeals Comm’n, 11 S.W.3d 142, 146 (Tenn. Ct. App. 1999) (quoting Wayne
County, 756 S.W.2d at 279). With the above standard of review in mind, we turn to the
remaining provisions to determine if there is substantial and material evidence in the record
to support the Board’s findings.

       The Board found that Dr. Rich was in violation of 21 U.S.C.A § 823(g)(1) and Tenn.
Code Ann. § 63-6-214(b)(14) for illegally dispensing controlled substances. The Board found
Dr. Rich in violation of 21 U.S.C.A § 823(g)(1) for dispensing narcotic drugs for
maintenance treatment or detoxification programs without a separate registration. The Board
also found Dr. Rich in violation of Tenn. Code Ann. § 63-6-214(b)(14) for “dispensing,

                                              -11-
prescribing or otherwise distributing [a] controlled substance or other drug to any person in
violation of any law of the state or of the United States.”

        As the trial court correctly noted, 21 U.S.C.A § 823(g)(1) prohibits a physician from
dispensing narcotic drugs for maintenance treatment or detoxification programs without a
separate registration. The evidence established that Dr. Rich did not have such a registration.
Moreover, although Dr. Rich maintains that his use of methadone was for a program of
“weaning and tapering,” patient records and documents from Dr. Rich’s practice established
to the satisfaction of the Board that his program was for “detoxification” or for treating
patients for “chronic pain,” not weaning or tapering. It is not the role of the court to substitute
its judgment as it pertains to the weight of the evidence concerning questions of fact. Allison,
284 S.W.3d at 323. That is the role of the administrative agency. Id. Deferring to the Board’s
determination concerning the weight of the evidence, we find there is substantial and material
evidence for the Board’s decision that Dr. Rich violated 21 U.S.C.A § 823(g)(1) and Tenn.
Code Ann. § 63-6-214(b)(14).

       The Board also found Dr. Rich in violation of Tenn. Comp. R. & Regs. 0880-2-
.14(6)(c) and Tenn. Comp. R. & Regs. 0880-2-.14(6)(e)(3)(ii). Tenn. Comp. R. & Regs.
0880-2.14(6)(c) provides that:

       If a physician provides medical care for persons with intractable pain, with or
       without the use of opiate medications, to the extent that those patients become
       the focus of the physician’s practice the physician must be prepared to
       document specialized medical education in pain management sufficient to
       bring the physician within the current standard of care in that field which shall
       include education on the causes, different and recommended modalities for
       treatment, chemical dependency and the psycho/social aspects of severe,
       chronic intractable pain.

       The Department provided records of twelve patients to whom Dr. Rich had prescribed
methadone. The Board found eleven of these patients’ records indicated a diagnosis of
“chronic pain” along with methadone addiction and there is no evidence that Dr. Rich had
“specialized medical education in pain management.” This evidence, which we find to be
substantial and material, supports the Board’s finding that Dr. Rich violated Tenn. Comp. R.
& Regs. 0880-2.14(6)(c).

       Lastly, the Board found Dr. Rich in violation of Tenn. Comp. R. & Regs. 0880-2-
.14(6)(e)(3)(ii), which provides that:

       Prescribing, ordering, administering, or dispensing dangerous drugs or

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       controlled substances for pain will be considered to be for a legitimate medical
       purpose if based upon accepted scientific knowledge of the treatment of pain,
       including intractable pain, not in contravention of applicable state or federal
       law, and if prescribed, ordered, administered or dispensed in compliance with
       the following guidelines where appropriate and as is necessary to meet the
       individual need of the patient:

              (ii) Pursuant to a written treatment plan tailored for the
              individual needs of the patient by which treatment progress and
              success can be evaluated with stated objectives such as pain
              relief and/or improved physical and psychosocial function. Such
              a written treatment plan shall consider pertinent medical history
              and physical examination as well as the need for further testing,
              consultations, referrals or use of other treatment modalities;

       The Board found that the patient records of the twelve patients to whom Dr. Rich had
prescribed methadone demonstrated that Dr. Rich had failed to comply with this regulation.
There is substantial and material evidence in the record to support the Board’s finding that
Dr. Rich violated Tenn. Comp. R. & Regs. 0880-2-.14(6)(e)(3)(ii).

       In conclusion, we have determined the decisions of the Board finding Dr. Rich in
violation of Tenn. Code Ann. § 63-6-214(b)(14), Tenn. Comp. R. & Regs. 0880-2-.14(6)(c),
Tenn. Comp. R. & Regs. 0880-2-.14(6)(e)(3)(ii), and 21 U.S.C.A § 823(g)(1) are supported
by substantial and material evidence.

                                          H.
                             S ANCTIONS IMPOSED BY B OARD

        Administrative agencies have “peculiar discretion” over sanctions to be imposed,
McClellan, 921 S.W.2d at 693, and our review of an agency’s sanctions is subject to “very
limited judicial review.” Armstrong v. Metropolitan Nashville Hospital Authority, No.
M2004-01361-COA-R3-CV, 2006 WL 1547863, at *3 (Tenn. Ct. App. June 6, 2006) (citing
Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 185-86 (1973); Woodard v. United
States, 725 F.2d 1072, 1077 (6th Cir.1984); McClellan, 921 S.W.2d at 693). The sanctions
imposed upon Dr. Rich were based on the Board’s findings that Dr. Rich had violated four
provisions of the Tennessee Medical Practice Act, specifically Tenn. Code Ann. § 63-6-
214(b)(1), (4), (12) and (14), two state regulations, specifically Tenn. Comp. R. & Reg.
0880-2-.14(6)(c) and (6)(e)(3)(ii), and one provision of the United States Code, 21 U.S.C.A
§ 823(g)(1). We have affirmed four of the seven violations found by the Board and the four
violations we affirmed appear to be very serious, especially in light of Dr. Rich’s previous

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violations. Nevertheless, we believe it appropriate to afford the Board the opportunity to
reconsider what sanctions are appropriate in light of our decision to reverse three of the seven
violations found by the Board.

                                       I N C ONCLUSION

       We reverse the Board’s findings that Dr. Rich violated Tenn. Code Ann. § 63-6-
214(b)(1), (4), and (12); we affirm the Board’s findings that Dr. Rich violated Tenn. Code
Ann. § 63-6-214(b)(14), Tenn. Comp. R. & Regs. 0880-2-.14(6)(c), Tenn. Comp. R. & Regs.
0880-2-.14(6)(e)(3)(ii), and 21 U.S.C.A § 823(g); and remand the issue of sanctions for the
Board’s reconsideration. This matter is remanded with costs of appeal assessed against the
Appellant, Joseph Edward Rich, M.D.


                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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