              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-337

                              Filed: 16 February 2016

Wake County, No. 13 CVS 4049

CYNTHIA WALKER, D.D.S., Petitioner,

             v.

THE N.C. STATE BOARD OF DENTAL EXAMINERS, Respondent.


      Appeal by Petitioner from order entered 23 October 2014 by Judge Elaine

Bushfan in Superior Court, Wake County.              Heard in the Court of Appeals

21 September 2015.


      Ryan McKaig for Petitioner-Appellant.

      Carolin Bakewell for Respondent-Appellee.


      McGEE, Chief Judge.


      Cynthia Walker (“Petitioner”) appeals from an order affirming the Final

Agency Decision (“the Decision”) of a panel of the North Carolina State Board of

Dental Examiners (“the Board”). The Board concluded in its Decision that Petitioner

had violated certain recordkeeping rules adopted by the Board and had been

negligent in the practice of dentistry. We affirm.

                                   I. Background

      Petitioner has been licensed to practice dentistry in North Carolina since 1993.

Petitioner was served with an Amended Notice of Hearing (“the Notice”) by the Board
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                                       Opinion of the Court



on or around 25 April 2012. The Notice alleged, inter alia, that Petitioner had failed

to properly document the reasons for prescribing narcotic pain medications for a

number of patients in her treatment records. A hearing was held on this matter on

1–2 November 2012 (“the Board hearing”).                 The Board issued its Decision on

21 February 2013, and concluded that Petitioner had “violated the Board’s rules and

the standard of care for recordkeeping for narcotic pain medications prescribed for

patients[,]” in violation of 21 N.C.A.C. 16T.101(a)(6)1 (“the Record Content Rule”) and

N.C. Gen. Stat. § 90-41(a)(12), respectively. Petitioner filed a Petition for Judicial

Review of the Decision on 21 March 2013. Following a hearing, the trial court denied

Petitioner’s petition and affirmed the Decision of the Board, in an order entered

23 October 2013 (“the order”). Petitioner appeals.

                                   II. Standard of Review

       Judicial review of the final decision of an administrative agency in a contested

case is governed by N.C. Gen. Stat. § 150B–51 (2013) in the North Carolina

Administrative Procedure Act (“the APA”).              The statute “governs both trial and

appellate court review of administrative agency decisions.” N. C. Dept. of Correction

v. Myers, 120 N.C. App. 437, 440, 462 S.E.2d 824, 826 (1995), aff'd per curiam, 344

N.C. 626, 476 S.E.2d 364 (1996). Pursuant to N.C.G.S. § 150B–51(b), a reviewing

court may


       1 21 N.C.A.C. 16T.101 was amended in 2015 and 21 N.C.A.C. 16T.101(a)(6) is currently codified
at 21 N.C.A.C. 16T.101(f). See 30 N.C. Reg. 342 (3 August 2015) (Effective 1 July 2015).

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                                   Opinion of the Court



             reverse or modify the [final] decision [of an agency] if the
             substantial rights of the petitioner[ ] may have been
             prejudiced because the findings, inferences, conclusions, or
             decisions are:

             ...

             (2)   In excess of the [agency’s] statutory authority[;]

             ...

             (4)   Affected by other error of law;

             (5)   Unsupported by substantial evidence . . . ; or

             (6)   Arbitrary, capricious, or an abuse of discretion.
When the issue for review is whether an agency's decision was supported by

“substantial evidence” or was “[a]rbitrary, capricious, or an abuse of discretion,” this

Court applies the “whole record” test. N.C.G.S. § 150B–51(c).

             A court applying the whole record test may not substitute
             its judgment for the agency's as between two conflicting
             views, even though it could reasonably have reached a
             different result had it reviewed the matter de novo. Rather,
             a court must examine all the record evidence — that which
             detracts from the agency's findings and conclusions as well
             as that which tends to support them — to determine
             whether there is substantial evidence to justify the
             agency's decision. Substantial evidence is defined as
             relevant evidence a reasonable mind might accept as
             adequate to support a conclusion.

Watkins v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769

(2004) (citations and quotation marks omitted). We review de novo the questions of

whether a final agency decision was made “[i]n excess of the [agency’s] statutory

authority” or was “[a]ffected by other error of law[.]” N.C.G.S. § 150B–51(c).

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                                    Opinion of the Court



                                     III. Violations

                               A. The Record Content Rule

         Petitioner contends the trial court erred by affirming the Board’s conclusion

that she had violated the Record Content Rule. Specifically, Petitioner argues that

she did not violate the Record Content Rule because the rule does not require dentists

to record a “reason” for the medications prescribed in their treatment records. We

agree.

         “Article [2a of the APA, N.C. Gen. Stat. §§ 150B-18–21.28 (2013), governs] . . .

an agency's exercise of its authority to adopt a rule.” See N.C.G.S. § 150B-18 (defining

the “[s]cope and effect” of Article 2a). Pursuant to N.C.G.S. § 150B-18, “[a] rule is not

valid unless it is adopted in substantial compliance with this Article.” N.C.G.S.

§ 150B-18 was largely amended in 2011, see 2011 N.C. Sess. Laws 398, § 1, to further

provide that

               [a]n agency shall not seek to implement or enforce against
               any person a policy, guideline, or other interpretive
               statement that meets the definition of a rule contained in
               [N.C.G.S. §] 150B-2(8a) if the policy, guideline, or other
               interpretive statement has not been adopted as a rule in
               accordance with this Article.

(emphasis added). N.C. Gen. Stat. § 150B-2(8a) (2013) defines a “rule” in this context,

inter alia, as “any agency regulation, standard, or statement of general applicability

that implements or interprets an enactment of the General Assembly . . . or that

describes the procedure or practice requirements of an agency.”


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                                   Opinion of the Court



      The Record Content Rule provides that a dentist’s treatment records must

“include . . . [the] [n]ame and strength of any medications prescribed, dispensed or

administered along with the quantity and date.” Petitioner correctly notes that the

plain language of the Record Content Rule creates no requirement that dentists

record a “reason” for the medications prescribed in their treatment records. See In re

R.L.C., 361 N.C. 287, 292, 643 S.E.2d 920, 923 (2007) (“When the language of a

statute is clear and without ambiguity, it is the duty of this Court to give effect to the

plain meaning of the statute[.]”); see also Kyle v. Holston Grp., 188 N.C. App. 686,

692, 656 S.E.2d 667, 671 (2008) (“Our Supreme Court has applied the rules of

statutory construction to administrative regulations as well as statutes.”).

Accordingly, because a requirement that dentists record the “reason” for prescribing

medications would constitute a “rule” under N.C.G.S. § 150B-2(8a), the Board erred

by enforcing this “rule” against Petitioner without first adopting it in accordance with

the APA. See N.C.G.S. §§ 150B-2(8a), -18. However, for the reasons stated infra, we

believe this error did not “prejudice[ ]” the “substantial rights” of Petitioner and,

therefore, does not warrant reversal of the order. See N.C.G.S. § 150B-51(b).

                                     B. Negligence

      The Notice also alleged, and the Decision concluded, that Petitioner had been

negligent in the practice of dentistry by not recording the reasons for prescribing

certain narcotic pain medications to her patients. See N.C. Gen. Stat. § 90-41(a)(12)

(2013) (providing that the Board “shall have the power and authority to . . . [i]nvoke

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                                    Opinion of the Court



. . . disciplinary measures . . . in any instance or instances in which the Board is

satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry”). At the

Board hearing, the Board offered two expert witnesses who testified accordingly. Dr.

Keith Yount (“Dr. Yount”) confirmed in his testimony that the applicable “standard

of care require[s] North Carolina dentists to not only record [the] prescription [of]

controlled substances, but the reason for” prescribing those medications. Dr. Yount

further testified that Petitioner violated that standard. Dr. Richard Orlowski (“Dr.

Orlowski”) also testified that the applicable standard of care requires a dentist to

record “a reason why [the dentist is] prescribing [a] narcotic” pain medication and

that Petitioner violated that standard.          Petitioner even acknowledged in her

testimony that she had received mandatory training for past recordkeeping violations

and that this training explained that dentists were expected to record the reasons for

the medications they prescribe.

       Because “administrative boards which regulate providers of health care” need

only find that a provider “failed to conform to the standard of care invoked by the

Board” in order to conclude that the provider was negligent, In re McCollough v. N.C.

State Bd. of Dental Exam’rs, 111 N.C. App. 186, 193, 431 S.E.2d 816, 819 (1993), the

testimony of Dr. Yount, Dr. Orlowski, and Petitioner provided the Board with

“substantial evidence” that Petitioner had been negligent in the present case. See

Watkins, 358 N.C. at 199, 593 S.E.2d at 769. Therefore, the trial court’s affirmation



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                                       Opinion of the Court



of the Decision will be overturned only if the Board’s conclusion that Petitioner acted

negligently was “[a]rbitrary, capricious, or an abuse of discretion[,]” made “[i]n excess

of statutory authority[,]” or resulted from “other error of law.” See N.C.G.S. § 150B–

51.

       Similar to her previous argument, Petitioner contends that the rule-

enforcement limitation in N.C.G.S. § 150B-18, discussed above, also prohibited the

Board from disciplining her for negligence under N.C.G.S. § 90-41(a)(12) – specifically

because the Board had not adopted a rule that dentists must record a “reason” for the

medications prescribed in their treatment records. We disagree.

       The authority given to the Board under N.C.G.S. § 90-41(a)(12) does not

emanate from the Board’s general rulemaking authority under Article 2a of the APA.

N.C.G.S. § 90-41(a)(12) is not even part of the APA.2 Instead, the language in

N.C.G.S. § 90-41(a)(12) that the Board “shall have the power and authority to . . .

[i]nvoke . . . disciplinary measures . . . in any instance or instances in which the Board

is satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry” was

expressly granted to the Board by a specific enactment of the General Assembly.

(emphasis added); accord McCollough, 111 N.C. App. at 193–94, 431 S.E.2d at 820

(affirming the Board’s determination that a dentist acted negligently under N.C.G.S.




       2 However, the adjudication of contested cases by occupational licensing agencies are still
governed by Article 3a of the APA. See N.C. Gen. Stat. §§ 150B-38–42 (2013).

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                                         Opinion of the Court



§ 90-41(a)(12), even though the dentist violated an “unwritten standard of care . . .

[not] previously addressed by the Board[.]”).

                This Court adheres to the long-standing principle that
                when two statutes arguably address the same issue, one in
                specific terms and the other generally, the specific statute
                controls. And when that specific statute is clear and
                unambiguous, we are not permitted to engage in statutory
                construction in any form. This Court may not construe the
                statute in pari materia with any other statutes, including
                those that treat the same issue generally. . . . We may look
                no further than the [specific] statute's plain language to
                determine whether [the agency] possessed the power it
                claims in this case.

High Rock Lake Partners, LLC v. N.C. Dep't of Transp., 366 N.C. 315, 322, 735 S.E.2d

300, 305 (2012) (citations omitted).

        Although N.C.G.S. §§ 90-41(a)(12) and 150B-18 appear to overlap on the issue

of agency discipline, the allocation of authority by the General Assembly to the Board

under N.C.G.S. § 90-41(a)(12) is more specific than the allocation under N.C.G.S.

§ 150B-18. N.C.G.S. § 90-41(a)(12) was enacted to apply specifically to the practice

of dentistry and in “any instance or instances in which the Board” concludes that a

dentist was negligent.3          (emphasis added).          Conversely, the rule enforcement

limitation in N.C.G.S. § 150B-18 is aimed at defining the “[s]cope and effect” of Article

2a of the APA, which in turn applies only to the authority of agencies to adopt rules




        3 Specifically, Chapter 90 of North Carolina’s General Statutes governs the practice of
“[m]edicine and [a]llied [o]ccupations” and Article 2 of Chapter 90 addresses the practice of dentistry.
See N.C.G.S. §§ 90-23–48.6 (2013).

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                                    Opinion of the Court



generally. Moreover, the language in N.C.G.S. § 90-41(a)(12) that the Board “shall

have the power and authority to . . . [i]nvoke . . . disciplinary measures . . . in any

instance or instances in which the Board is satisfied that [a dentist] . . . [h]as been

negligent in the practice of dentistry[,]” (emphasis added), is “clear and

unambiguous[.]” See High Rock Lake Partners, 366 N.C. at 322, 735 S.E.2d at 305.

Therefore, N.C.G.S. § 90-41(a)(12) controls.

      Under the plain language of N.C.G.S. § 90-41(a)(12), see id., we cannot say the

Board “exce[eded] [its] statutory authority” by concluding that Petitioner had been

negligent in the practice of dentistry. See N.C.G.S. § 150B-51(b). For similar reasons,

we cannot say that the Board’s decision with respect to Petitioner’s negligence was

“[a]rbitrary, capricious, or an abuse of discretion” or “[a]ffected by other error of

law[.]” See id. Therefore, the trial court did not err by affirming the Decision on that

ground. Moreover, because the alleged misconduct by Petitioner under N.C.G.S. § 90-

41(a)(12) and the Record Content Rule was identical, and because the Board could

properly discipline Petitioner for having acted negligently under N.C.G.S. § 90-

41(a)(12), Petitioner has not established that her “substantial rights . . . [were]

prejudiced” by the trial court’s error regarding the Record Content Rule. See id. The

order of the trial court is affirmed.

      AFFIRMED.

      Judges ELMORE and DAVIS concur.



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