                                                                           FILED
                                                                      May 24 2018, 5:41 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Terry A. White                                            Curtis T. Hill, Jr.
      Olsen & White, LLP                                        Attorney General of Indiana
      Evansville, Indiana                                       Frances Barrow
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gerald G. Gray,                                           May 24, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                26A01-1707-PL-1595
              v.                                                Appeal from the Gibson Superior
                                                                Court
      Medical Licensing Board of                                The Honorable Robert R.
      Indiana,                                                  Aylsworth, Judge
      Appellee-Respondent.                                      Trial Court Cause No.
                                                                26D01-1510-PL-1084



      Pyle, Judge.


                                        Statement of the Case
[1]   Dr. Gerald Gray (“Dr. Gray”) appeals the denial of his petition for judicial

      review of an order issued by the Medical Licensing Board of Indiana (“the

      Board”) indefinitely suspending his medical license. Dr. Gray specifically


      Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018                  Page 1 of 14
      contends that the trial court should have granted his petition for judicial review

      because there is not substantial evidence to support the suspension. Concluding

      that substantial evidence supports the suspension, we affirm the trial court’s

      denial of Dr. Gray’s petition.


[2]   We affirm.


                                                      Issue
              Whether the trial court erred in denying Dr. Gray’s petition for
              judicial review.


                                                      Facts
[3]   Seventy-nine-year-old Dr. Gray is an osteopathic physician who practices in

      southern Indiana. He was issued an Indiana medical license in June 1963. In

      2004, Dr. Gray hired an unlicensed physician to treat his patients. Dr. Gray

      paid this unlicensed physician $20.00 per hour but submitted claims to

      Medicaid and insurance companies at his standard rates and under his name.

      Dr. Gray also allowed the unlicensed physician to prescribe controlled

      substances under Dr. Gray’s Drug Enforcement Agency (“DEA”) registration

      number. In 2005, Dr., Gray voluntarily surrendered his DEA registration

      number. In 2006, Dr. Gray pled guilty to one count of Medicaid fraud, and the

      Board placed him on indefinite probation with a list of terms and conditions,

      including continuing training, community service, and a fine.


[4]   Later in 2006, Dr. Gray filed an application for a new DEA registration. The

      DEA approved Dr. Gray’s application pursuant to the terms of a 2007

      Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018    Page 2 of 14
      Memorandum of Understanding (“MOU”) that was scheduled to expire in

      early 2010. In the MOU, Dr. Gray agreed to abide by all state and federal laws

      relating to controlled substances. He also agreed not to prescribe, dispense, or

      administer any controlled substance to himself or any person with whom he did

      not have a legitimate doctor-patient relationship. He further agreed to prescribe

      controlled substances in a reasonable quantity for a legitimate medical purpose

      and to maintain a complete and accurate record of all controlled substances that

      he prescribed or maintained.


[5]   In May 2009, Dr. Gray filed an application to renew his Indiana Controlled

      Substance Registration (“CSR”). Question number two on the application

      asked if he had ever had any action, discipline, or revocation on his DEA

      registration or if he had ever entered into an MOU on the registration. Dr.

      Gray responded that he had not.


[6]   Also in 2009, C.P. began working as a housekeeper for Dr. Gray, and they soon

      began dating. From June 2009 through October 2009, Dr. Gray wrote C.P.

      eighteen controlled substance prescriptions. In October 2009, C.P. admitted to

      Dr. Gray that she had a “drug problem.” (Tr. 102). C.P. moved into Dr.

      Gray’s house in November 2009. In early 2010, Dr. Gray learned that C.P. was

      addicted to prescription narcotics.


[7]   In February 2010, Dr. Gray received authorization to prescribe Schedule III-V

      FDA approved narcotics for addiction treatment and began treating C.P. From

      February through October 2010, Dr. Gray wrote fourteen controlled substance


      Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018   Page 3 of 14
      prescriptions for C.P. In late 2010, C.P. sought treatment for her addiction at a

      local behavioral healthcare system. She subsequently stopped attending the

      treatment program, and Dr. Gray prescribed her Xanax. From January

      through March 2011, Dr. Gray gave C.P. intra-muscular shots, including

      Morphine, Demerol, Nubian, Morphine Sulfate, and Dilaudid.


[8]   In the spring of 2011, Board of Pharmacy Investigator Eric Pearcy

      (“Investigator Pearcy”) and Indiana State Police Detective Vinnie Geiselman

      (“Detective Geiselman”) contacted Madeline Kuzma (“Investigator Kuzma”),

      an investigator with the DEA. Investigator Kuzma is responsible for

      enforcement of the Controlled Substance Act as it applies to pharmaceutical

      controlled substances. Investigator Pearcy and Detective Geiselman expressed

      concerns about the combinations of controlled substances that Dr. Gray was

      prescribing to his patients, the fact that many patients were coming from as far

      away as Illinois to see Dr. Gray, and the fact that Dr. Gray was prescribing

      numerous controlled substances to C.P., who was known to be Dr. Gray’s

      girlfriend and who was currently working in Dr. Gray’s office.


[9]   Investigator Kuzma visited Dr. Gray’s office in May 2011 and noted that Dr.

      Gray did not keep accurate records of the controlled substances in his office. In

      addition, Dr. Gray kept the Xanax that he dispensed to C.P. in a safe in his

      private residence. He also dispensed the Xanax to other patients. When

      Investigator Kuzma told Dr. Gray that his home was not a registered location

      for dispensing drugs and that dispensing drugs from an unregistered location

      was prohibited by federal regulations, Dr. Gray responded that he did not know

      Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018   Page 4 of 14
       that. Dr. Gray told Investigator Kuzma that he also did not know that he had

       violated federal regulations when he had prescribed hydrocodone, a Schedule II

       controlled substance, to C.P. for her opioid withdrawal while knowing that

       C.P. was an addict.1 Investigator Kuzma further told Dr. Gray that he had also

       violated DEA regulations when he failed to report that he had suspected that an

       employee had stolen a controlled substance. In addition, Investigator Kuzma

       learned that in April 2011, Dr. Gray had prescribed Suboxone for C.P. She

       only took one dose of the drug, which she claimed made her nauseous. Dr.

       Gray kept the Suboxone pills in his office and dispensed it to other patients.


[10]   In October 2014, Dr. Gray filed a petition to remove the probation that had

       been imposed in 2006. In early 2015, the State received a notification from a

       local pharmacist that she was refusing to fill controlled substance prescriptions

       for Dr. Gray’s patients. In May 2015, the State filed a five-count administrative

       complaint against Dr. Gray’s medical license. The Board held a hearing in

       September 2015 on both the complaint and Dr. Gray’s motion to withdraw his

       probation.


[11]   In October 2015, the Board issued a detailed order that found five violations of

       INDIANA CODE § 25-1-9-4. Specifically, the Board concluded that Dr. Gray had

       violated: (1) INDIANA CODE § 25-1-9-4(a)(4)(A) when he administered narcotic




       1
        Pursuant to 21 C.F.R. § 1306.07(d), a practitioner is not authorized to dispense a schedule II controlled
       substance for maintenance or detoxification treatment. Pursuant to 21 C.F.R. § 1308.12, Hydrocodone is a
       Schedule II controlled substance.

       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018                         Page 5 of 14
       controlled substances to C.P. to treat her opioid addiction; (2) INDIANA CODE §

       25-1-9-4(a)(4)(B) when he failed to keep abreast of current practices when he

       prescribed and/or administered controlled substances to C.P., a known drug

       addict, and other patients without objective evidence of medical necessity; (3)

       INDIANA CODE § 25-1-9-4(a)(9) when he knowingly prescribed or administered

       a narcotic, addicting, or dangerous drug to C.P., an addict; (4) INDIANA CODE

       § 25-1-9-4(a)(1)(A) when he engaged in or knowingly cooperated in fraud or

       material deception in order to obtain a license to practice as evidenced by his

       failure to disclose the MOU containing limitations on his DEA registration

       when he renewed his application for CSR in 2009; and (5) INDIANA CODE § 25-

       1-9-4(a)(1)(A) in that he engaged in or knowingly cooperated in fraud or

       material deception in order to obtain a license to practice as evidenced by his

       failure to disclose the MOU containing limitations on his DES registration

       when he renewed his application for a CSR in 2011. As a result of these

       violations, the Board indefinitely suspended Dr. Gray’s medical license.


[12]   Shortly thereafter, Dr. Gray filed a petition for judicial review wherein he

       asked the trial court to review the Board’s actions in suspending his license and

       to approve his petition requesting the withdrawal of his probationary status.

       The gravamen of his argument was that there was not substantial evidence to

       support the five statutory violations that resulted in the suspension of his

       medical license. The trial court denied Dr. Gray’s petition, and Dr. Gray now

       appeals that denial.




       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018   Page 6 of 14
                                                    Decision
[13]   Dr. Gray argues that the trial court erred in denying his petition for judicial

       review of an order wherein the Board indefinitely suspending his medical

       license. The Administrative Orders and Procedures Act (“AOPA”) governs the

       judicial review of decisions made by the Board. IND. CODE § 4-21.5-2-0.1.

       Agency action subject to AOPA will be reversed only if the court determines

       that a person seeking judicial relief has been prejudiced by an agency action that

       is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

       accordance with the law; (2) contrary to constitutional right, power, privilege,

       or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or

       short of statutory right; (4) without observance of procedure required by law; or

       (5) unsupported by substantial evidence. Terkosky v. Indiana Dept. of Educ., 996

       N.E.2d 832, 841-42 (Ind. Ct. App. 2013).


[14]   A trial court and an appellate court both review the decision of an

       administrative agency with the same standard of review. Id. at 842. We defer

       to the agency’s expertise and will not reverse simply because we might have

       reached a different result. Id. The burden of demonstrating the invalidity of the

       agency action is on the party to the judicial review proceeding that is asserting

       the invalidity of the action. Id. (citing IND. CODE §4-21.5-5-14(a)). Review of

       an agency’s decision is largely confined to the agency record, and the court may

       not substitute its judgment for that of the agency. Id. We give deference to the

       administrative agency’s findings of fact, if supported by substantial evidence,



       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018      Page 7 of 14
       but review questions of law de novo. Id. On review, we do not reweigh the

       evidence. Id.


[15]   The Board regulates the practice of medicine within Indiana and is charged

       with establishing standards for the competent practice of medicine in the state.

       IND. CODE § 25-22.5-2 et seq. The Board’s general authority to suspend medical

       licenses derives from INDIANA CODE § 25-1-9-9, which provides that the Board

       may suspend a practitioner’s license if it finds that the practitioner is subject to

       disciplinary sanctions under INDIANA CODE § 25-1-9-4. At the time the State

       filed its administrative complaint seeking disciplinary sanctions against Dr.

       Gray, INDIANA CODE § 25-1-9-4 provided as follows:


               (a) A practitioner shall conduct the practitioner’s practice in
               accordance with the standards established by the board
               regulating the profession in question and is subject to the exercise
               of the disciplinary sanctions under section 9 of this chapter if,
               after a hearing, the board finds:

               (1) a practitioner has:

                        (A) engaged in or knowingly cooperated in fraud or
                        material deception in order to obtain a license to practice,
                        including cheating on a licensing examination;

                        (B) engaged in fraud or material deception in the course of
                        professional services or activities;

                        (C) advertised services in a false or misleading manner; or

                        (D) been convicted of a crime or assessed a civil penalty
                        involving fraudulent billing practices, including fraud
                        under:

                                 (i) Medicaid (42 U.S.C. 1396 et seq.);
       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018         Page 8 of 14
                          (ii) Medicare (42 U.S.C. 1395 et seq.);

                          (iii) the children’s health insurance program under
                          IC 12-17.6; or

                          (iv) insurance claims;

        (2) a practitioner has been convicted of a crime that:

                 (A) has a direct bearing on the practitioner’s ability to
                 continue to practice competently; or

                 (B) is harmful to the public;

        (3) a practitioner has knowingly violated any state statute or rule,
        or federal statute or regulation, regulating the profession in
        question;

        (4) a practitioner has continued to practice although the
        practitioner has become unfit to practice due to:

                 (A) professional incompetence that:

                          (i) may include the undertaking of professional
                          activities that the practitioner is not qualified by
                          training or experience to undertake; and

                          (ii) does not include activities performed under IC
                          16-21-2-9;

                 (B) failure to keep abreast of current professional theory or
                 practice;

                 (C) physical or mental disability; or

                 (D) addiction to, abuse of, or severe dependency upon
                 alcohol or other drugs that endanger the public by
                 impairing a practitioner’s ability to practice safely;

        (5) a practitioner has engaged in a course of lewd or immoral
        conduct in connection with the delivery of services to the public;

Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018          Page 9 of 14
        (6) a practitioner has allowed the practitioner’s name or a license
        issued under this chapter to be used in connection with an
        individual who renders services beyond the scope of that
        individual’s training, experience, or competence;

        (7) a practitioner has had disciplinary action taken against the
        practitioner or the practitioner’s license to practice in any state or
        jurisdiction on grounds similar to those under this chapter;

        (8) a practitioner has diverted:

                 (A) a legend drug (as defined in IC 16-18-2-199); or

                 (B) any other drug or device issued under a drug order (as
                 defined in IC 16-42-19-3) for another person;

        (9) a practitioner, except as otherwise provided by law, has
        knowingly prescribed, sold, or administered any drug classified
        as a narcotic, addicting, or dangerous drug to a habitue or addict;

        (10) a practitioner has failed to comply with an order imposing a
        sanction under section 9 of this chapter;

        (11) a practitioner has engaged in sexual contact with a patient
        under the practitioner’s care or has used the practitioner-patient
        relationship to solicit sexual contact with a patient under the
        practitioner’s care;

        (12) a practitioner who is a participating provider of a health
        maintenance organization has knowingly collected or attempted
        to collect from a subscriber or enrollee of the health maintenance
        organization any sums that are owed by the health maintenance
        organization; or

        (13) a practitioner has assisted another person in committing an
        act that would be grounds for disciplinary sanctions under this
        chapter.




Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018      Page 10 of 14
               (b) A practitioner who provides health care services to the
               practitioner’s spouse is not subject to disciplinary action under
               subsection (a)(11).

               (c) A certified copy of the record of disciplinary action is
               conclusive evidence of the other jurisdiction’s disciplinary action
               under subsection (a)(7).

       (Emphasis added).


[16]   Here, Dr. Gray argues that the trial court erred in denying his petition for

       judicial review because there is not substantial evidence to support the Board’s

       findings that he violated five of the statutes’ subsections. However, we note

       that this statute includes the word “or” after subsection twelve and is therefore

       written in the disjunctive. See Bourbon Mini-Mart, Inc. v. Comm’r Ind. Dep’t of

       Env’t Mgmt., 806 N.E.2d 14, 20 (Ind. Ct. App. 2004). Accordingly,

       practitioners are subject to the exercise of disciplinary sanctions if the Board

       finds after a hearing that the practitioner has violated any one of the thirteen

       subsections, and we can affirm a suspension where there is substantial evidence

       of just one violation. See U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d

       542, 559 (Ind. Ct. App. 2011), trans. denied.


[17]   We now turn to the merits of the case and review one of the Board’s Ultimate

       Findings of Fact. The Board’s order provides, in relevant part, as follows:


               2.     By a vote of 4-0-0, [Dr. Gray’s] conduct as described above
               constitutes a violation of IND. CODE § 25-1-9-4(a)(1)(4)(B) in that
               [Dr. Gray] failed to keep abreast of current theory and practice
               when he prescribed and/or administered narcotic controlled
               substances to CP, a known drug addict[,] and other patients

       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018   Page 11 of 14
               without objective evidence of medical necessity for the prescribed
               narcotic medication.


       (App. 44). Dr. Gray claims that this finding “is unsupported by substantial

       evidence, not reasonably inferred from the [f]acts, and is defective as a basis for

       disciplining Dr. Gray’s medical license.” (Dr. Gray’s Br. 20). Specifically, he

       first contends that Board’s “[i]nclusion of ‘and other patients’ . . . is

       unsupported by any evidence and should be stricken prior to further assessment

       . . . .” (Dr. Gray’s Br. 20). However, our review of the evidence reveals that a

       pharmacist refused to fill controlled substance prescriptions for Dr. Gray’s

       patients. In addition, Dr. Gray kept C.P.’s prescription for Suboxone in his

       office and admitted that he had dispensed the remaining pills to other patients.

       He also kept Xanax locked in a safe at his private residence, which was an

       unregistered location with the DEA, and dispensed it to both C.P. and other

       patients. This evidence clearly supports the Board’s inclusion of “and other

       patients” in the Board’s order. We find no error.


[18]   Dr. Gray further contends that there is not substantial evidence that he “treated

       C.P., or any other patient, with narcotics without objective evidence of medical

       necessity for the prescribed medication.” (Dr. Gray’s Br. 21). In other words,

       Dr. Gray claims that there is objective evidence of medical necessity for

       prescribing narcotics to C.P. However, our review of the evidence reveals that

       Dr. Gray prescribed hydrocodone to C.P. for withdrawal even though he knew

       that she was addicted to narcotics. There is clearly no evidence of medical

       necessity in the record for prescribing hydrocodone to a narcotics addict for

       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018     Page 12 of 14
       withdrawal. Rather, prescribing hydrocodone to someone who is addicted to

       narcotics for detoxification treatment is a violation of federal regulations. See

       C.F.R. 21 C.F.R. §§ 1306.07(d) and 1308.12. As a result, we find that there is

       substantial evidence to support the Board’s finding that Dr. Gray treated C.P.

       with narcotics without objective evidence of medical necessity.


[19]   Lastly, Dr. Gray complains that the “State did not produce one doctor or other

       qualified healthcare professional to testify as to the validity of . . . Dr. Gray’s

       medical decisions versus the documented patient assessments.” (Dr. Gray’s Br.

       23). However, the State was not required to do so. The legislature has

       recognized that the Board, which is composed of six physicians, is able to

       establish standards and determine whether a practitioner has violated one or

       more of them. See IND. CODE § 25-22.5-2-1; IND. CODE § 25-1-9-4(a). There is

       no need for another physician to testify as to the validity of a practitioner’s

       medical decisions. We find no error.


[20]   The evidence in this case provides substantial support for the Board’s decision,

       and Dr. Gray’s license suspension was supported by substantial evidence. We

       therefore affirm the trial court’s denial of Dr. Gray’s petition for judicial review.

       See Regester v. Ind. State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998) (finding

       substantial evidence to support the Nursing Board’s suspension of a nurse’s




       Court of Appeals of Indiana | Opinion 26A01-1707-PL-1595 | May 24, 2018     Page 13 of 14
license and affirming the trial court’s denial of the nurse’s petition for judicial

review of the suspension).2


Affirmed.


Kirsch, J., and Bailey, J., concur.




2
  Dr. Gray also argues that “I.C. § 25-1-9-4 et seq., as applied by the Board to Dr. Gray’s conduct, are
unconstitutionally vague, thus denying due process, due to lack of a stated standard of care to which Dr.
Gray’s actions can be judged.” (Dr. Gray’s Br. 30). However, we agree with the State, that this argument
“continues to center around what [Dr. Gray] sees as a lack of an established standard of care.” (State’s Br.
35). We have already explained that the Board has statutory authority to establish standards and determine
whether a practitioner has violated one or more of them. See I.C. § 25-1-9-4(a). No standard of care
testimony was necessary.

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