                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2475-15T2

IN THE MATTER OF THE APPLICATION OF

     FREDERIC FEIT, M.D.
     LICENSE NO. 25MA05617400

FOR REINSTATEMENT OF LICENSURE TO
PRACTICE MEDICINE IN THE STATE OF
NEW JERSEY
______________________________________

           Argued December 6, 2017 – Decided August 2, 2018

           Before Judges Fuentes, Koblitz and Manahan.

           On appeal from the New Jersey State Board of
           Medical Examiners.

           Michael Chazen argued the cause for appellant
           Frederic Feit, M.D.

           Joshua M. Bengal, Deputy Attorney General,
           argued the cause for respondent Board of
           Medical Examiners (Christopher S. Porrino,
           Attorney   General,   attorney, Andrea  M.
           Silkowitz, Assistant Attorney General, of
           counsel; Megan K. Cordoma, Deputy Attorney
           General, on the brief).

PER CURIAM

     Appellant Frederic Feit is a physician.               On September 26,

2006, he was indicted by a State Grand Jury on charges involving
fraudulent billing practices from January 15, 1998 to March 5,

2004.      Specifically, Indictment No. 06-09-0108 charged Dr. Feit

with two counts of second degree health care claims fraud, N.J.S.A.

2C:21-4.3(a), and one count of second degree theft by deception,

N.J.S.A. 2C:20-4(a).

      On    December   24,   2008,    Dr.   Feit,    represented     by   private

counsel, negotiated an agreement with the State through which he

pled guilty to third degree theft by deception, N.J.S.A. 2C:20-

4(a).      In providing a factual basis for this crime, Dr. Feit

admitted that he engaged in fraudulent billing practices and

received improper payments from insurance companies in an amount

between $500 and $75,000.            On April 2, 2009, the Criminal Part

sentenced Dr. Feit to a five-year term of probation, conditioned

on paying $578,978.12 in restitution1, a $15,000 fine, and other

mandatory fees and penalties.

      Dr. Feit filed a direct appeal to this court challenging his

conviction based on: (1) an alleged inadequate factual basis; (2)

his     attorney's     failure   to    apprise      him   of   the   collateral

disciplinary ramifications his criminal conviction would have on

his license to practice medicine; (3) his obligation to pay


1
   The court initially ordered Dr. Feit to pay restitution at the
rate of $100,000 per year.     However, with the consent of the
Attorney General, the court subsequently reduced the amount of the
payments to $250 per month.

                                        2                                 A-2475-15T2
restitution; and (4) the excessiveness of the fine imposed by the

court.     We rejected these arguments and affirmed his conviction

and sentence in an unpublished opinion.               State v. Frederic Feit,

No. A-4940-08 (App. Div. May 19, 2010) (slip op. at 1).

     On    February    25,   2009,      the   Attorney      General       filed    an

Administrative Complaint with the State Board of Medical Examiners

(Board), seeking disciplinary sanctions against Dr. Feit based on

conduct     that     constituted     "dishonesty,          fraud,     deception,

misrepresentation, false promise, and/or false pretense[,] in

violation of N.J.S.A. 45:1-21(b) . . . ."             The disciplinary action

was also predicated on Dr. Feit's conviction of a crime that

involved    "moral    turpitude"   or    related      adversely     "to    activity

regulated by the Board pursuant to N.J.S.A. 45:1-21(f)."                          The

Complaint also alleged that Dr. Feit engaged in "professional

misconduct" in violation of N.J.S.A. 45:1-21(e).                    The Attorney

General urged the Board to suspend or revoke Dr. Feit's medical

license, assess civil penalties and costs, including reimbursing

the State for the cost of these proceedings, and impose any other

relief the Board may deem just and equitable.

     Represented by private counsel, Dr. Feit filed an answer in

which he admitted to pleading guilty to committing a criminal

offense, but refuted the specific disciplinary charges.                     Shortly

thereafter,    the    Attorney   General      filed    a   motion   for     Summary

                                        3                                   A-2475-15T2
Decision urging the Board to decide this disciplinary action as a

matter of law pursuant to N.J.A.C. 1:1-12.5(b).            After reviewing

the evidence presented by the parties and considering the oral

arguments from counsel, the Board granted the Attorney General's

motion.   The Board found "undisputed" that Dr. Feit "knowingly

entered into a guilty plea and made sworn admissions that he was

guilty of theft by deception for a period in excess of six years."

The   Board    relied   on   Dr.   Feit's   "sworn   admissions   and     [his]

conviction [to find that] that the conduct he pled guilty to

involved a crime of moral turpitude in violation of [N.J.S.A.]

45:1-21(f)."

      In a Final Order Granting Summary Decision dated August 6,

2009, the Board suspended Dr. Feit's license to practice medicine

in this State for five years.          The Board ordered that the first

two years were to be "an active suspension and the remaining three

. . . years to be stayed and served as a period of probation."

The Board conditioned the restoration of his medical license upon

Dr. Feit complying with seven clearly worded conditions.                       Of

particular relevance here, condition number four stated:

              Any resumption of respondent's active practice
              of medicine in New Jersey shall include
              limitations on practice setting or billing
              including at a minimum that respondent shall
              either work in a setting where he has no
              responsibility for billing or the imposition
              of a Board approved billing monitor at

                                       4                                A-2475-15T2
          respondent's expense. The parameters of any
          limitations shall be determined by the Board
          in its discretion at the time of resumption
          of practice and may include any other
          limitations deemed appropriate at the time of
          reinstatement.

          [(Emphasis added).]

     On August 1, 2012, Dr. Feit made his first application for

the restoration of his medical license.         He appeared before the

Board pro se.     The Board referred the matter to the Preliminary

Evaluation Committee (Evaluation Committee).         After considering

Dr. Feit's testimony and reviewing the records that formed the

basis for the suspension, the Evaluation Committee recommended

that the Board deny his reinstatement and expressed particular

concern   about    Dr.   Feit's    "lack   of   insight,   remorse    and

accountability regarding [his] criminal conviction . . . ."           The

Evaluation   Committee     found    his    unwillingness    to    accept

responsibility for his criminal conduct indicated Dr. Feit was a

risk for recidivism.

     The Evaluation Committee found particularly troubling the

following statements Dr. Feit made in an essay he wrote "for the

PRIME2 course dated August 30, 2011 . . . ."        In this essay, Dr.


2
   "PRIM-E" is an acronym for "Professional Renewal in Medicine
(through) Ethics." This course was "an educational intervention
for health care professionals who are having conflicts with their
licensing boards and are required to take refresher education in


                                    5                            A-2475-15T2
Feit stated: "[I]nsurance companies use their influence with the

medical [B]oard and the [A]ttorney [G]eneral to destroy physicians

treating   intractable   pain   syndromes,   rather   than   paying   for

services[.]"     The Evaluation Committee highlighted Dr. Feit's

testimony that he "could think of no ethical violation on [his]

part which would have led the Board to require [him] to take the

PRIME course."

     In a letter dated September 23, 2011, addressed to William

V. Roerder, Esq., the Board's Executive Director, Dr. Russell L.

McIntyre, the Professor and Course Director, wrote:

           Dr. Feit stated that in December, 2008, he
           pled guilty to "theft by deception" . . . [and]
           because of this, he understood why the medical
           board had no choice but to rule accordingly
           on the evidence of this plea. . . . And,
           despite the fact that his attorney was "well
           aware" that he never committed this billing
           infraction, the attorney put him in a "state
           of panic" by repeatedly telling him[,] "I
           guarantee you will go to prison for seven
           years if you don't take the deal."3

professional ethics and boundaries." PRIM-E was jointly offered
by the Center for Continuing and Outreach Education at Rutgers
University Biomedical and Health Sciences and Bio Ethics
Consulting, LLC. PRIM-E is no longer offered.            PRIME-E:
Professional Renewal in Medicine [Through] Ethics, Rutgers Robert
Wood Johnson Medical School, http://prime.rwjms.rutgers.edu
(last visited July 23, 2018).
3
   The Criminal Part denied Dr. Feit's petition seeking post-
conviction relief (PCR) based on ineffective assistance of trial
counsel.   This court affirmed the Criminal Part's decision and
noted:


                                   6                             A-2475-15T2
     Finally, the Evaluation Committee found that "the quality of

the medical records" Dr. Feit provided from his New York practice

showed he was "deficient in that examinations were not performed

prior to prescribing medication."      In a letter dated April 15,

2013, the Board informed Dr. Feit that it had voted to accept the

Evaluation Committee's findings and recommendations to deny his

application for reinstatement.       In reaching this decision, the

Board noted that it "could not fashion any plan for reinstatement

with limitations which would address [Dr. Feit's] lack of insight,



          [The PCR judge] found defendant's claim of
          innocence "not viable" because defendant's
          admissions at the time of his guilty plea
          constituted an acknowledgment that he sent in
          the wrong code for his billings and "clearly
          satisfied each element of theft by deception."
          [The PCR judge] found the expert opinion
          regarding the [billing] code to be irrelevant:

               [A]ll that was required for the
               defendant's conviction of theft by
               deception was that the defendant
               purposely     deceived     insurance
               carriers by billing for services
               that he fraudulently claimed he
               performed on his patients. Simply
               put,    the   defendant    defrauded
               insurance carriers by billing them
               for   procedures   he   claimed   he
               performed, but did not, in fact,
               perform.

          [State v. Frederic Feit, No. A-3120-14 (App.
          Div. June 14, 2016) (slip op. at 4-5)
          (emphasis added).]

                                 7                          A-2475-15T2
remorse,    and    accountability."       The   Board   also   adopted    the

Evaluation    Committee's     decision    to    "not    entertain    another

application for reinstatement prior to one . . . year from the

date of this letter."

     In a letter dated July 30, 2014 written by an attorney, Dr.

Feit again petitioned the Board to reinstate his medical license.

On October 22, 2014, Dr. Feit and his attorney appeared before the

Board's    North   Jersey   Preliminary    Evaluation    Committee    (North

Jersey Committee) "to discuss his petition for reinstatement."

The record shows that Dr. Feit continued to impugn the validity

of his criminal conviction.      As an indication of the level of his

obduracy, we note that at the time Dr. Feit appeared before the

North Jersey Committee, this court had issued its opinion upholding

his criminal conviction and sentence.            Despite this, Dr. Feit

claimed before the North Jersey Committee that he was the victim

of ineffective assistance of trial counsel:

            Essentially, I was led by my prior attorney
            to    plead    guilty     to     billing   for
            fluoroscopically guided injections. Upon that
            poor advice of [c]ounsel that I followed that
            I did plead guilty, and I recognized that the
            Board took appropriate actions to discipline
            a physician that violated billing regulations.
            I take the responsibility for that.      I am
            remorseful   for   causing   the   Board  this
            necessity.




                                      8                              A-2475-15T2
     At the end of the hearing before the North Jersey Committee,

Dr. Feit's counsel asked him the following questions:

          Q. There [was] some concern previously when
          you sought reinstatement of your license about
          certain comments that you made regarding your
          guilt and what was stated before the Judge and
          the veracity of those statements.      Do you
          understand that in light of what happened in
          your criminal case, that the Board indeed took
          the proper action against you?

          A. Yes. And I do not feel that the Medical
          Board is in any way influenced by insurance
          companies or other agencies.

          Q. Those comments that you may have made at
          your previous hearing, do you believe they
          were the product of frustration over your
          situation?

          A. They were the product of frustration, yes.4

     After evaluating the history of the case and the evidence of

compliance with the conditions of his probation, the North Jersey

Committee recommended that the Board offer Dr. Feit a "Consent

Order of Reinstatement" conditioned on being monitored by "a Board

approved practice monitor" who would review ten patient charts a



4
  Despite these reaffirmations of criminal culpability, appellate
counsel included in the appendix the report of a physician retained
by Dr. Feit in support of his PCR petition before the Criminal
Part. This physician reviewed materials provided by counsel and
opined, "Dr. Feit's so-called guilty plea did not acknowledge any
guilty conduct. . . . He should not have pled guilty in the first
place." The PCR Judge found this physician's opinion "irrelevant."
State v. Frederic Feit, No. A-3120-14 (June 14, 2016) (slip op.
at 4).

                                9                           A-2475-15T2
month, meet personally with Dr. Feit on a monthly basis, and

"submit quarterly reports to the Board."

      In addition to reviewing Dr. Feit's billing procedures, the

practice monitor would also personally observe Dr. Feit perform

"any invasive procedure (including spinal blocks) . . . for a

minimum of 12 cases with a final report to the medical director

of the Board."    These probationary conditions "would be in place

for a minimum of two years . . . until further order of the Board."

Dr. Feit would be permitted to perform invasive procedures without

supervision only after the medical director reviewed the reports

and issued written authorization.

      The Board tabled the North Jersey Committee's recommendations

"due to serious concerns regarding [Dr. Feit's] quality of care

in performing invasive procedures and his absence [from the]

practice [of medicine] for the last five years."              The Board

recommended that "Dr. Feit undergo a general assessment of his

competency to return to the practice of medicine inasmuch as [he]

has been out for five years . . . ."       The Board made clear that

Dr. Feit "will not be able to perform interventional (invasive)

pain management."

      In an order entered on January 13, 2016, the Board reinstated

Dr.   Feit's   license   to   practice   medicine   subject   to     "full

compliance" with a comprehensive plan that requires Dr. Feit to

                                  10                               A-2475-15T2
be under the complete supervision of a physician selected by the

Board's Medical Director, for a minimum of three months.                      The

scope of the Board's supervisory conditions covers every aspect

of Dr. Feit's practice, from billing records to diagnosing a

patient's medical condition and subsequent treatment plan.                      To

implement this monitoring plan, the Board gave the supervising

physician unfettered access to every aspect of Dr. Feit's medical

practice; the supervising physician is required to personally

observe the administration of all treatment plans, especially

those    cases    that     would   require     invasive      procedures.      The

supervising physician also has the responsibility to report any

impropriety and offer an opinion concerning when Dr. Feit would

be ready to resume practicing medicine without supervision.

       Finally, the Board ordered Dr. Feit to be solely responsible

"for    any   costs   or   expenses"   associated     with   the   supervising

physician.       However,    Dr.   Feit     cannot   structure     his   billing

procedures to pass the cost associated with this supervisory

program to his patients in the form of medical fees.               Finally, Dr.

Feit may petition the Board for leave to be released from this

supervisory program after he has treated a minimum of thirty

patients who received "interventional pain management."

       Against this record, Dr. Feit now appeals arguing the Board

abused its discretion when it arbitrarily and capriciously imposed

                                       11                                A-2475-15T2
this overly broad supervisory program as a condition of his

reinstatement to practice medicine.                 Dr. Feit argues that the

absence from the practice of medicine for five years alone, without

any   evidence      to   question      his     medical   judgment,     is   facially

insufficient     to      support      these    unwarranted,     highly      intrusive

restrictions on his ability to practice medicine.                  He also argues

that there is no legal authority in either the Uniform Enforcement

Act, N.J.S.A. 45:1-1 to -55, or the Medical Practice Act, N.J.S.A.

45:9-1 to -27.9, to support the Board's decision to impose these

restrictions on his license to practice medicine. Finally, without

citing to evidence in the record for support, appellate counsel

claims: "One can only imagine that most every physician, barring

the possibility of a family member in the practice, will be

reluctant,     if     not    outright        against,    participating      in    such

supervision."5

      The   Attorney        General    argues    that    a   license   to    practice

medicine is "always subject to reasonable regulation[s] . . . ."



5
    Dr. Feit points out that the Board did not condition the
restoration of his medical license upon retaining a billing
monitor.   According to Dr. Feit, this indicates the arbitrary
nature of the Board's decision. The Attorney General attributes
this omission in the Board's January 13, 2016 Order as "a
ministerial error."   Despite this acknowledgement, the Attorney
General did not file a motion to supplement the appellate record
to include a revised Final Order from the Board correcting this
alleged ministerial error.

                                          12                                  A-2475-15T2
Hirsch v. N.J. State Bd. of Med. Exam'rs, 252 N.J. Super. 596, 604

(App. Div. 1991) (quoting In re Polk License Revocation, 90 N.J.

550, 570 (1982)).    In the course of exercising its discretionary

authority, the Board's decisions carry a presumption of validity

and reasonableness which appellant has the burden to overcome.

Bergen Pines Cnty. Hosp. v. Dep't of Human Servs., 96 N.J. 456,

477 (1984).     Here, the Board's decision to restrict Dr. Feit's

medical license in this fashion was based on Dr. Feit's more than

five-year absence from the practice of pain management, his chosen

area of expertise.

     Our standard of review of a State's administrative agency is

well-settled:

          An administrative agency's final quasi-
          judicial decision will be sustained unless
          there is a clear showing that it is arbitrary,
          capricious, or unreasonable, or that it lacks
          fair support in the record.      On appellate
          review, the court examines:

          (1) whether the agency's action violates
          express or implied legislative policies, that
          is, did the agency follow the law;

          (2) whether the record contains substantial
          evidence to support the findings on which the
          agency based its action; and

          (3) whether in applying the legislative
          policies to the facts, the agency clearly
          erred in reaching a conclusion that could not
          reasonably have been made on a showing of the
          relevant factors.


                                13                         A-2475-15T2
          [Allstars Auto Grp., Inc. v. N.J. Motor
          Vehicle Comm'n, ____N.J. ____, ____ (2018)
          (slip op. at 15-16) (citations omitted).]

     With these standards in mind, we conclude the record supports

the restrictions imposed by the Board on Dr. Feit's practice of

medicine dedicated to pain management. The record shows the Deputy

Attorney General who appeared before the North Jersey Committee

of the Board asked Dr. Feit a series of questions designed to

create a record of information relevant to his ability to resume

his specialized pain management practice:

          Q. Have you given any thought to what, if any,
          reeducation you might need before entering a
          solo practice?

          A. Well, as a pain specialist, I have spent a
          huge amount of time studying pain management
          and staying as abreast as I can without being
          able to clinically see patients. But I spend
          quite a bit of time on the computer.      If I
          recall, the Pri-Med course, I think I've taken
          virtually every CME and article they have
          dealing with chronic and intractable pain.

               . . . .

          Q. Other than prescriptions for painkillers,
          for want of a better word, what other types
          of therapy or modalities would you use?

          A. Well, of course, there was the paraspinal
          nerve blocks, physical therapy modalities,
          such as electric stim, galvanic stimulation,
          or interferential, ultrasound, hydrocolator
          packs, TENS sometimes.   Some people respond
          very well to TENS, some don't respond at all.
          Fluidotherapy, paraffin bath, I can mention
          many different physical therapies.    They're

                               14                          A-2475-15T2
          started on an active assisted range of motion
          exercises.    They're taught head and neck
          exercises, William flexion exercises.     Many
          different protocols, depending on the injuries
          they have, to start on a self-program of
          strengthening and reconditioning.

          I tell them if they're going to need a knee
          replacement or hip replacement they should do
          their rehab before they have the surgery so
          they're in the best shape to recover.

At this point, the following exchange took place between Dr. Feit

and a physician-member of the North Jersey Committee of the Board:

          Q. You can appreciate medicine is . . . a
          component of a psychomotor modality, and you
          haven't practiced in five years. I'm well
          aware and I have no doubt you've taken all the
          academic courses and CME credits, but when you
          start seeing a patient again and you start
          doing the blocks, do you feel comfortable
          after five years just --

          A. 100 percent, sir.     I've never had a
          complication or an issue with an injection
          I've given in my life.

          Q. But you haven't been out in five years and
          then start[ing] . . . up again.

          A. That's correct. But comparing it to how
          when I first started my practice, I have
          infinite more knowledge than when I first
          started practice.

          Q. Okay.

     We consider this colloquy as an indication of the Board's

deep concern for Dr. Feit's ability to resume the practice of this

specialized area of medicine after more than a five-year absence


                               15                          A-2475-15T2
from   day-to-day   clinical   contact   with   patients.   Dr.    Feit's

optimistic assessment of his ability to resume his medical practice

without missing a beat was obviously not shared by the medical

professional members of the Board.

       In In re Fanelli, our Supreme Court found guidance in dealing

with this difficult question in Haley v. Medical Disciplinary

Board, in which the Supreme Court of Washington stated:

            The daily practice of medicine concerns life
            and death consequences to members of the
            public. They have an understandable interest
            in the maintenance of sound standards of
            conduct by medical practitioners. The public
            has a right to expect the highest degree of
            trustworthiness of the members of the medical
            profession.

            [In re Fanelli, 174 N.J. 165, 178-79 (2002)
            (quoting Haley v. Medical Disciplinary Bd.,
            818 P.2d 1062, 1068 (Wash. 1991)).]

       The Board's decision to require Dr. Feit to retain, at his

expense, a supervising physician who will personally observe and

monitor how he clinically interacts with his patients and performs

highly intrusive and potentially dangerous medical procedures, is

rationally based on his more than five-year hiatus from the

practice of medicine and direct clinical contact with patients.

The conditions imposed by the Board in its January 13, 2016 Order

of Reinstatement are reasonable and consistent with the Board's

regulatory powers and responsibilities to the public.


                                  16                              A-2475-15T2
Affirmed.




            17   A-2475-15T2
