            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



In re VERNON EUGENE PROCTOR, M.D.                                 UNPUBLISHED
                                                                  March 14, 2019

BUREAU OF HEALTH CARE SERVICES,

              Petitioner-Appellee,

v                                                                 No. 342029
                                                                  LARA Bureau of Professional
                                                                  Licensing
VERNON EUGENE PROCTOR, M.D.,                                      LC No. 15-041398

              Respondent-Appellant.


BUREAU OF HEALTH CARE SERVICES,

              Petitioner-Appellee,

v                                                                 No. 342676
                                                                  Board of Medicine
VERNON EUGENE PROCTOR, M.D.,                                      LC No. 15-041397

              Respondent-Appellant.


Before: METER, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

        In these consolidated appeals, respondent, Vernon Eugene Proctor, M.D., appeals as of
right disciplinary actions taken by two professional boards respecting his medical practice. In
Docket No. 342029, respondent appeals the January 2, 2018 determination of the Bureau of
Professional Licensing, Board of Pharmacy Disciplinary Subcommittee’s (the Board of
Pharmacy) $5,000 fine and suspension of his controlled substance license for a minimum of six
months and one day, with no automatic reinstatement. In Docket No. 342676, respondent
appeals the Bureau of Professional Licensing, Board of Medicine Disciplinary Subcommittee’s
(the Board of Medicine) November 30, 2017 decision to impose a $10,000 fine, place respondent
on probation for one year, and limit his license to exclude him from (1) obtaining or prescribing
Schedule II or III controlled substances for one year, and (2) providing Michigan Medical
Marihuana certifications for two years. We affirm both the Board of Pharmacy’s order and the
Board of Medicine’s order.

                                             I. FACTS

         Respondent holds a Michigan medical license, a Michigan controlled substance license,
and a federal controlled substance license. He became board-certified in addiction medicine in
2014. He has a registration under the federal drug addiction treatment act, 21 USC 823(g)(2),
which allowed him to treat patients for opioid addiction using Schedule III drugs including
Suboxone.1 He operated an internal and holistic medicine practice in Baldwin, Michigan, saw
patients at several locations in Michigan, and signed medical marijuana certifications at several
clinics throughout the state.

        Petitioner filed administrative complaints with the Board of Pharmacy and the Board of
Medicine. Petitioner asserted that respondent prescribed and dispensed Suboxone without a
proper federal Drug Enforcement Agency (DEA) registration and proper recordkeeping,
prescribed controlled substances to patients without documenting therapeutic reasons, failed to
document the destruction of morphine sulfate pills, and signed medical marijuana certifications
without seeing patients.

        The Administrative Law Judge (ALJ), heard the testimonies of respondent, petitioner’s
investigator, Janice Waldmiller, petitioner’s expert witness, Dr. Phillip Rodgers, respondent’s
expert, Dr. Bruce Springer, other doctors, law enforcement agents, and other witnesses during
eight days of hearings between October 2015 and August 2016. The ALJ considered
respondent’s treatment of 17 patients. The ALJ ultimately proposed that the Board of Medicine
find that respondent breached the standard of care concerning patients CK, DL, PM, TT, and
SW, and that he failed in his duties to keep records for JA, RA, KK, PM, TT and SS. The ALJ
recommended that neither the Board of Medicine nor Board of Pharmacy find that respondent (1)
improperly dispensed Suboxone, (2) issued prescriptions in Michigan without a DEA license
registered in Michigan, (3) issued a medical marijuana certification without examination, (4)
improperly disposed of morphine sulfate, or (5) unlawfully provided patient MS with methadone.

        The Board of Medicine accepted the ALJ’s findings regarding respondent’s violation of
law respecting treatment of specific patients, but in part rejected the ALJ’s legal conclusions that
respondent did not violate the Public Health Code (PHC) in relation to his certification of
medical marijuana patients. The Board of Medicine concluded that respondent improperly
prescribed methadone to MS and prescribed drugs in Michigan without a DEA license registered
in Michigan.




1
    Suboxone is a combination drug that is used to treat opiate dependence.


                                                 -2-
       The Board of Pharmacy also rejected in part the ALJ’s legal conclusions. The Board of
Pharmacy concluded that respondent violated the PHC by prescribing drugs in Michigan without
a DEA license registered in Michigan, improperly dispensing Suboxone to patients, improperly
destroying morphine sulfate without completing the required documenting of that action, and
improperly prescribed methadone to MS without an Opioid Treatment Program or Narcotic
Treatment Program waiver as required by law.

                            II. GENERAL LEGAL STANDARDS

        Our review of an agency’s decision is limited to determining whether the agency’s action
was authorized by law, and whether the agency’s findings of fact were “supported by competent,
material, and substantial evidence on the whole record.” Const 1963, art 6, § 28. “When
reviewing whether an agency’s decision was supported by competent, material, and substantial
evidence on the whole record, a court must review the entire record and not just the portions
supporting the agency’s findings.” Dep’t of Community Health v Risch, 274 Mich App 365, 372;
733 NW2d 403 (2007). Evidence is substantial if a reasonable mind would accept it as
“sufficient to support a conclusion.” Id. Substantial evidence requires “more than a scintilla of
evidence,” but “may be substantially less than a preponderance.” Id. (citation omitted.)

        We review de novo questions of law surrounding an agency’s decision. In re Complaint
of Rovas Against SBC Mich, 482 Mich 90, 101; 754 NW2d 259 (2008). We also review de novo
issues of statutory interpretation. Id. at 102.

       We review for an abuse of discretion preserved challenges to evidentiary rulings. Edry v
Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). A court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes. Maldonado v Ford
Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

        When interpreting a statute, this Court’s goal is to give effect to the intent of the
Legislature. US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484
Mich 1, 13; 795 NW2d 101 (2009). The language of the statute itself provides the most reliable
evidence of the Legislature’s intent. Id. We read statutory phrases “in the context of the entire
legislative scheme.” Mich Props, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548
(2012). We avoid interpretations that render statutory language meaningless. Johnson v Recca,
492 Mich 169, 177; 821 NW2d 520 (2012). “[A]gency interpretations are entitled to respectful
consideration, but they are not binding on courts and cannot conflict with the plain meaning of
the statute.” In re Rovas, 482 Mich at 117-118.




                                               -3-
                                      III. COMMON ISSUES

                                  A. EXPERT QUALIFICATION

       Respondent argues that both Boards erred by relying on Dr. Phillip Rodgers’s opinion
testimony on the ground that he lacked the qualifications to testify as an expert about addiction
medicine or medical marijuana certifications.2 We disagree.

        An expert witness may offer an opinion only if he or she has specialized knowledge that
will assist the trier of fact to understand the evidence. Edry v Adelman, 486 Mich 634, 639; 786
NW2d 567 (2010). The admissibility of expert witness testimony is governed by MRE 702,
which states:

                 If the court determines that scientific, technical, or other specialized
         knowledge will assist the trier of fact to understand the evidence or to determine a
         fact in issue, a witness qualified as an expert by knowledge, skill, experience,
         training, or education may testify thereto in the form of an opinion or otherwise if
         (1) the testimony is based on sufficient facts or data, (2) the testimony is the
         product of reliable principles and methods, and (3) the witness has applied the
         principles and methods reliably to the facts of the case.

        The record reflects that Dr. Rodgers was board-certified in family medicine, hospice, and
palliative care, and licensed to practice medicine in Michigan. He was not board-certified in
addiction medicine. He practiced family medicine and consulted in palliative care. He testified
that his family medicine practice included treating patients with controlled substances. He
estimated that a greater-than-average number of his patients had lives complicated by addiction,
comprising “roughly 15 to 20 percent of [his] patients.” He admitted that he refers patients with
addiction problems to other doctors. The record reflects, however, that Dr. Rodgers gave
presentations and taught continuing education courses on pain management that included
controlled-substance prescribing, methadone prescribing, and treatment of chronic, non-terminal
pain. He authored an article published in a national journal regarding the use of opioids for
management of chronic pain. Dr. Rodgers’s testimony established that he had familiarity with
Suboxone treatment programs but did not prescribe the drug himself because his office lacked
the necessary infrastructure. He testified that he had familiarity with the applicable standard of
care for signing medical marijuana certifications as a physician. He explained that medical
marijuana certification and prescribing controlled substances had the same standard of care
requirements.

        The record also indicates that Dr. Rodgers limited the scope of his expert opinions by
declining to render an opinion about respondent’s treatment of addiction or his practice
respecting treatment with Suboxone. However, he opined regarding the standard of care for
prescribing controlled substances to patients and that a physician breaches the standard of care
by dispensing a controlled substance like Suboxone without the requisite license. Dr. Rodgers


2
    The ALJ qualified Dr. Rodgers as an expert in medicine and chronic pain management.


                                                 -4-
also testified regarding the general standard of care required of a physician respecting
documentation of examination and treatment of patients.

        The record reflects that Dr. Rodgers also had extensive knowledge, skill, experience,
training, and education in prescribing controlled substances and treating patients who presented
with addictions. We conclude that the ALJ did not err by qualifying Dr. Rodgers as an expert in
medicine and chronic pain management because Dr. Rodgers had the requisite knowledge, skill,
experience, training, and education to render expert opinions to assist the ALJ and the two
Boards’ decision-making.

        Respondent also argues that Dr. Rodgers lacked the qualification to testify regarding the
standard of care for signing a medical marijuana certification because he claimed familiarity with
the standard of care but offered no testimony regarding how, when, and from what source he
acquired his knowledge. Respondent contends that Dr. Rodgers’s testimony that the same
standard of care applied to signing medical marijuana certifications and prescribing patients
controlled substances lacked reliability because the standards applicable for prescribing
controlled substances were not derived from settled science, and medical marijuana certification
differed from prescribing controlled substances. We disagree.

        The lack of settled science on controlled-substance prescribing did not preclude Dr.
Rodgers from opining about the applicable standard of care. MRE 702 obligates trial courts, as
the gatekeepers, to ensure the reliability of expert testimony admitted at trial. Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004). However, the subject of the
scientific testimony need not be known to a certainty. Nelson v American Sterilizer Co (After
Remand), 223 Mich App 485, 491-492; 566 NW2d 671 (1997). “As long as the basic
methodology and principles employed by an expert to reach a conclusion are sound and create a
trustworthy foundation for the conclusion reached, the expert testimony is admissible no matter
how novel.” Id. at 492.

        Dr. Rodgers acknowledged that there is no settled science on controlled-substance
prescribing, but he testified that there are emerging standards of care. He explained that the
standard of care for prescribing controlled substances includes:

       an evaluation of the patient for their presented symptoms and problems, a
       complete history, a physical examination as directed by their symptoms and
       history, a comprehensive treatment for controlled substances that not only
       includes controlled substances, but other effective modalities for the problems,
       whether it’s pain or anxiety. It—it also includes regular follow-up to access for
       the safety and effectiveness of the treatment.

                                             * * *

       One, should, if at all possible, obtain prior medical records prior to providing
       ongoing controlled substances.

                                             * * *



                                               -5-
       In my opinion, signing medical marijuana certification providing ongoing therapy
       with controlled substance is no, not the standard of care to file a certification
       without getting all of the medical background.

        Dr. Rodgers testified further that the standard of care for prescribing any controlled
substance required understanding the patient’s complete history and discerning whether the
patient had a history of addiction. Dr. Rodgers stated that, in his experience, patients were not
always able or willing to present their complete history, making obtaining and reviewing medical
records essential before beginning therapy involving controlled substances. He testified that this
experience informed his opinion that, before signing a medical marijuana certification, a
physician must obtain the patient’s medical records.3 Accordingly, sufficient established
methodology and principles served as the basis for Dr. Rodgers’s opinions regarding the
requisite standard of care.

        Dr. Rodgers’s lack of personal experience in certifying patients for medical marijuana
use did not render his opinion inadmissible. An expert’s specific qualifications are relevant to
the weight of the expert’s testimony, not its admissibility. Gilbert, 470 Mich at 788-789.
Testimony may be inadmissible “[w]here the subject of the testimony is far beyond the scope of
an individual’s expertise . . . .” Id. at 789. In this case, Dr. Rodgers had expertise in chronic
pain management and he had substantial experience and expertise in prescribing controlled
substances. Medical marijuana is a Schedule II controlled substance. MCL 333.7214(e). Dr.
Rodgers’s testimony regarding the standard of care for prescribing controlled substances
encompassed the standard of care for signing medical marijuana certifications. His testimony in
this regard did not stray beyond the scope of his expertise and the ALJ did not abuse his
discretion by admitting it. Therefore, because Dr. Rodgers qualified as an expert because of his
knowledge, skill, experience, training, and education, and his expert testimony did not go beyond
his expertise, to the extent that the two Boards considered his opinions in making their respective
determinations, neither the Medical Board nor the Pharmacy Board erred.

       We decline to determine whether courts should adopt medical malpractice standards
regarding board-certified specialist opinions because our ruling would have no effect on the
outcome of this case. The ALJ did not qualify Dr. Rodgers as an expert in addiction medicine,
Dr. Rodgers offered no opinions in that regard, and his opinion testimony focused on the
applicable standards of care and practice related to prescribing controlled substances to patients.
Because petitioner did not offer and Dr. Rodgers did not opine about the practice of addiction
medicine, we need not decide whether he would have qualified to do so.

       Further, to the extent that respondent argues that the ALJ erred by failing to sequester Dr.
Rodgers, we conclude that respondent waived this claim of error. A trial court has discretion
when deciding whether to sequester witnesses and its decision will not be disturbed on appeal
absent an abuse of discretion. In re Jackson, 199 Mich App 22, 29; 501 NW2d 182 (1993). A


3
 The ALJ qualified Dr. Springer as an expert witness in the field of medicine and the treatment
of addiction. The record reflects that Dr. Springer, like Dr. Rodgers, testified that maintaining
medical records is part of the standard of care for controlled-substance prescribing.


                                                -6-
waiver is “the voluntary relinquishment or abandonment—express or implied—of a legal right or
advantage.” Reed Estate v Reed, 293 Mich App 168, 176; 810 NW2d 284 (2011). Although
respondent initially requested Dr. Rodgers’s sequestration, the record reflects that, when
petitioner challenged the request and explained that it properly provided notice to respondent
regarding his testimony as an expert, and that Dr. Rodgers would testify based on the records he
reviewed and the testimony he heard during the proceedings, respondent’s counsel
acknowledged having been provided notice. The record reflects that he effectively abandoned the
sequestration request respecting Dr. Rodgers, waiving this claim of error. Therefore, the ALJ did
not err by not sequestering Dr. Rodgers.

                              B. DEA REGISTERED ADDRESS

        Respondent argues that competent, material, and substantial evidence did not support the
Boards’ findings that respondent prescribed controlled substances in Michigan while his DEA
registered address was in New York because the Michigan Automated Prescription System
(MAPS) reports were unreliable and federal regulations exclude a person from having to register
an office in another state if the person only prescribes medication. We disagree.

        Respondent first asserts that the MAPS reports lacked reliability and consistency. We
defer to an agency’s findings of fact, “particularly with regard to witness credibility and
evidentiary questions.” VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 588;
701 NW2d 214 (2005). The determination of the weight of the evidence is an issue for the trier
of fact. Drew v Cass County, 299 Mich App 495, 501-502; 830 NW2d 832 (2013).

         In this case, the record establishes that, at times during 2011 and 2012, respondent had
DEA registered addresses only in New York. The MAPS reports showed that respondent
prescribed controlled substances to patients in Michigan during this period. Dr. Springer
testified that MAPS reports should be carefully considered because they sometimes include
significant mistakes. The record reflects that one of respondent’s MAPS reports included
prescriptions by another person as well as by respondent. The Medical Board and the Pharmacy
Board considered the MAPS reports and each Board found that the reports showed that
respondent prescribed medication while his DEA registered address only featured a New York
location. We decline to overturn the Boards’ decisions that the MAPS reports were entitled to
evidentiary weight despite some mistakes because not all of the reports contained mistakes.

         Respondent also argues that petitioner’s complaint lacked legal sufficiency because it did
not reflect a change in the law that excluded a person from having to register an office in another
state if a person only prescribed medication. We reject this argument.

       Under 21 CFR 1301.12(a), “[a] separate registration shall be required for each principal
place of business or professional practice at one general physical location where controlled
substances are manufactured, distributed, or dispenses controlled substances or list chemicals.”
Subpart (b), subparts (1)-(4) identified the locations deemed not to be places where controlled
substances are manufactured, distributed, or dispensed.




                                                -7-
       Respondent asserts that, under the December 20064 version of 21 CFR 1301.12(b)(3)’s
exception, he did not need to have a Michigan registration. 21 CFR 1301.12(b)(3)’s exception in
the December 2006 version provided:

                An office used by a practitioner (who is registered at another location in
         the same State or jurisdiction of the United States) where controlled substances
         are prescribed but neither administered nor otherwise dispensed as a regular part
         of the professional practice of the practitioner at such office, and where no
         supplies of controlled substances are maintained. [Emphasis added.]

Notably, in the summary of the final rule, the Deputy Assistant Administrator of the Office of
Diversion Control provided clarification and explained the government’s interpretation and
intent respecting the 2006 version of the exception in relevant part as follows:

                 The CSA requires that a separate registration be obtained for each
         principal place of business or professional practice where controlled substances
         are manufactured, distributed, or dispensed (21 U.S.C. 822(e)). DEA has
         provided a limited exception to this requirement (21 CFR 1301.12(b)(3)):
         practitioners who register at one location, but practice at others within the same
         State, are not required to register for any other location in that State at which they
         only prescribe controlled substances. If they maintain supplies of controlled
         substances, administer, or directly dispense controlled substances at a location,
         they must register for that location (21 U.S.C. 823(f)).

                 The exception applies only to secondary locations within the same State in
         which the practitioner maintains his/her DEA registration. However, because the
         language in § 1301.12(b)(3) does not specify that it pertains to intrastate locations
         only, individual practitioners have been applying the regulation to interstate
         situations, which is contrary to the intent of the regulation, the CSA, and the
         underlying principles that apply to individual practitioner registration. DEA
         individual practitioner registrations are based on a State license to practice
         medicine and prescribe controlled substances. DEA relies on State licensing
         boards to determine that practitioners are qualified to dispense, prescribe or
         administer controlled substances and to determine what level of authority
         practitioners have, that is, what schedules they may dispense, prescribe, or
         administer. State authority to conduct the above-referenced activities only
         confers rights and privileges within the issuing State; consequently, the DEA
         registration based on a State license cannot authorize controlled substance
         dispensing outside the State. [See 71 Fed Reg 69478-01; see also 71 Fed Reg
         69479.]




4
    See 71 Fed Reg 69480 (December 1, 2006).


                                                  -8-
       The exception, as amended in December 2016,5 provided that a separate registration is
not required for

                 An office used by a practitioner (who is registered at another location in
         the same State in which he or she practices) where controlled substances are
         prescribed but neither administered nor otherwise dispensed as a regular part of
         the professional practice of the practitioner at such office, and where no supplies
         of controlled substances are maintained. [21 CFR 1301.12(b)(3) (emphasis
         added).]

        We find no practical difference between the two versions because each provides an
exception for only “another location in the same State.” Because respondent had his DEA
registration only in New York at the time he prescribed controlled substances in Michigan for
which he was required to have DEA registration, respondent failed to be properly registered in
Michigan where he dispensed the medication. Accordingly, respondent’s conduct was not
excepted under 21 CFR 1301.12(b)(3).

        The record in this case establishes that competent, material, and substantial evidence
supported the Boards’ respective decisions. They appropriately considered the evidence
presented and determined the weight to be afforded to the MAPS reports, witnesses’ testimonies,
and other evidence submitted by the parties. The Boards did not err by considering the MAPS
reports for their decisions that respondent prescribed controlled substances in Michigan without a
DEA registered address in Michigan as required by law. Accordingly, the Boards did not abuse
their discretion in this regard.

                        C. UNLAWFUL METHADONE PRESCRIPTION

        Respondent also argues that competent, material, and substantial evidence did not support
the Boards’ findings that he unlawfully prescribed methadone to patient MS. Respondent’s
argument focuses on “maintenance treatment” and whether the methadone prescription served
the purpose of treating MS’s addiction. Even were we to accept respondent’s argument that he
was not engaged in maintenance treatment of MS’s addiction, he would not be entitled to relief
because a drug-addicted patient may not be prescribed methadone for take-home use during
detoxification.

         Pursuant to federal law, opioid agonist treatment medications6 may be “administered or
dispensed only by a practitioner licensed under the appropriate State law and registered under the
appropriate State and Federal laws to administer or dispense opioid drugs . . . .” 42 CFR
8.12(h)(1). Further, to “dispense” means “to deliver a controlled substance to an ultimate
user . . . including the prescribing and administering of a controlled substance . . . .” 21 USC
802(10). Practitioners who dispense narcotic drugs “for maintenance treatment or detoxification


5
    See 81 Fed Reg 97019 (December 30, 2016).
6
    Opioid agonist treatment medications include methadone. 42 CFR 8.12(h)(2)(i).


                                                 -9-
treatment” are required to have a separate DEA registration. 21 USC 823(g)(1) (emphasis
added). The word “or” is a disjunctive term that indicates a choice between alternatives.
Michigan v McQueen, 293 Mich App 644, 671; 811 NW2d 513 (2011).

        Federal law provides that “[n]o medications shall be dispensed to patients in short-term
detoxification treatment or interim maintenance treatment for unsupervised or take-home use.”
42 CFR 8.12(i)(4). At times relevant to the agencies’ proceedings, the Michigan Administrative
Code also provided that patients prescribed take-home methadone during methadone
maintenance treatment may only be dispensed methadone “in an oral, liquid form so as to
minimize its potential for abuse.” Mich Admin Code, R 324.14416(1).7

        Maintenance treatment is defined as “the dispensing, for a period in excess of twenty-one
days, of a narcotic drug in the treatment of an individual for dependence upon heroin or other
morphine-like drugs.” 21 USC 802(29). Detoxification treatment is defined as “the dispensing,
for a period not in excess of one hundred and eighty days, of a narcotic drug in decreasing doses
to an individual in order to alleviate adverse physiological or psychological effects incident to
withdrawal from the continuous or sustained use of a narcotic drug and as a method of bringing
the individual to a narcotic drug-free state within such period.” 21 USC 802(30).

        In this case, respondent assessed MS as opiate dependent with insomnia, anxiety, and
chronic pain. Respondent testified that the process of “tapering” MS off of methadone and onto
Suboxone would take between five and eight weeks. The record reflects that respondent
prescribed MS pill-form methadone in large quantities on repeated dates, including an initial
quantity of 154 tabs of 10-milligrams of methadone. Therefore, the record supports the Boards’
determinations that respondent violated the prohibition against prescribing take-home methadone
in non-liquid form to a patient in methadone maintenance treatment.

        Even if we accepted respondent’s position that insufficient evidence existed that the
prescription served the purpose of maintenance treatment, rather than for tapering MS’s
methadone use, respondent’s prescribing of methadone for MS constituted an unlawful use of
methadone. “For detoxification from narcotic drugs, methadone shall be administered daily by
the program under close observation in reducing dosages over a period of not more than 21
days.” Mich Admin Code, R 325.14410(1). Additionally, “[t]ake-home medication shall not be
allowed during detoxification.” Mich Admin Code, R 325.14410(1)(a). The record reflects that
respondent repeatedly referred to MS’s taper plan as detoxification. Consequently, if respondent
tapered MS off methadone as he claimed, rather than maintaining MS’s methadone treatment,
such prescribing of a patient take-home methadone during detoxification was also prohibited.
Both state and federal regulations prohibit a physician from prescribing take-home medication to
a patient during detoxification.

        We find that competent, material, and substantial evidence supported the Boards’
findings that respondent unlawfully dispensed methadone to MS. Accordingly, the Boards did
not err in their respective decisions in this regard.


7
    These provisions were rescinded effective December 17, 2018.


                                               -10-
                        IV. ORDER OF THE BOARD OF PHARMACY

                             A. POWER TO IMPOSE DISCIPLINE

       Respondent argues that the Board of Pharmacy erred because it lacked the power to
impose discipline on him since it did not act within 60 days of receiving the ALJ’s proposed
order. We disagree.

        Agencies “are only allowed the powers that the Legislature chooses to delegate to them
through statute.” Herrick Dist Library v Library of Mich, 293 Mich App 571, 582; 810 NW2d
110 (2011) (citation omitted). The Board of Pharmacy may impose discipline on a person
licensed under the PHC, MCL 333.1101 et seq., in a manner consistent with MCL 333.16101 et
seq. See MCL 333.17768(1) and (2). MCL 333.16232 provides, “A disciplinary subcommittee
shall meet within 60 days after the receipt of the recommended findings of fact and conclusions
of law from a hearings examiner to impose a penalty.” Generally, the term “shall” indicates a
mandatory provision. Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993).
However, the presence of other statutory language may indicate that the Legislature intended the
term “shall” to be permissive. Consumer Indus Servs v Greenberg, 231 Mich App 466, 468-469;
586 NW2d 560 (1998). Because none of the provisions of the PHC provide for dismissal of a
disciplinary complaint or limitation of the power to impose discipline on licensees for violation
of processing deadlines, the violation of MCL 333.16232, in the absence of prejudice suffered by
a respondent, does not mandate the dismissal of a disciplinary complaint or vacation of the
discipline imposed. Id. at 469.

        In this case, the record reflects that the ALJ issued a proposal for decision on April 7,
2017, the Board of Pharmacy issued its findings of fact and conclusions of law on December 13,
2017, and it issued its final disciplinary order on January 2, 2018. Although more than 60 days
elapsed between the Board of Pharmacy’s receipt of the ALJ’s proposed findings and
conclusions and the Board’s disciplinary decision, because the term “shall” in MCL 333.16232 is
permissive rather than mandatory, the Board of Pharmacy did not exceed its statutory authority
or act outside of its jurisdiction by issuing its disciplinary decision after 60 days from the date of
its receipt of the ALJ’s proposed decision. The record does not reflect that respondent suffered
any prejudice from the Board of Pharmacy’s delay. We find nothing unfair or unjust in the
Board of Pharmacy’s action that warrants dismissal of the disciplinary complaint or vacating of
the Board’s disciplinary decision.

                           B. SUBOXONE DISPENSING RECORDS

       Respondent argues that the Board of Pharmacy erred when it found that respondent
dispensed Suboxone to patients. We disagree.

        We give deference to an agency’s findings of fact when the record presents conflicting
evidence and calls into question the credibility of witnesses. In re Gordon, 323 Mich App 548,
558; 919 NW2d 77 (2018). Although evidence may support “a conclusion contrary to that of the
disciplinary subcommittee, a reviewing court may not set aside findings merely because
alternative findings also could have been supported by substantial evidence on the record.” Id. at
559 (quotation marks and citation omitted).

                                                -11-
       To “dispense” means “to deliver a controlled substance to an ultimate user . . . including
the prescribing and administering of a controlled substance . . . .” 21 USC 802(10) (emphasis
added). In this case, the ALJ found that respondent did not engage in dispensing Suboxone
medication to patients because respondent generally received deliveries of Suboxone and
forwarded them to a treatment facility as part of a patient assistance program. The Board of
Pharmacy rejected the ALJ’s findings because respondent admitted in testimony during a
proceeding that he gave Suboxone to a patient. The Board also rejected the ALJ’s findings
because respondent’s former counsel testified that he concluded that respondent dispensed
Suboxone to a patient from his office in Baldwin, Michigan.

        The record reflects that the Board of Pharmacy thoroughly examined the record and
based its findings and conclusions on the record evidence. Therefore, the Board of Pharmacy’s
finding that respondent unlawfully dispensed Suboxone to a limited number of patients who
were ultimate users was supported by competent, material, and substantial evidence on the whole
record.

                          C. MORPHINE DESTRUCTION RECORDS

       Respondent argues that he was not a dispenser under MCL 333.7303a(3) and was not
required to fill out DEA Form 41 to record the destruction of morphine sulfate pills that a patient
returned to him. We disagree.8

        The PHC defines “dispense” as “to deliver or issue a controlled substance to an ultimate
user or research subject by or pursuant to the lawful order of a practitioner, including the
prescribing, administering, or compounding necessary to prepare the substance for the delivery
or issuance.” MCL 333.7105(3) (emphasis added). The plain language of the statute makes
clear that a person who issues a prescription is a dispenser for the purposes of this statute. MCL
333.7105(4) defines a dispenser as a practitioner who dispenses a controlled substance. To
“issue” a drug means to provide a prescription for that drug: a “prescription” is a written and
signed order “to fill, compound or dispense a drug,” MCL 333.17708(3), and “[o]nly a
prescriber . . . may issue a prescription.” MCL 333.17744(2). A prescriber who issues a
prescription “is responsible for all of the requirements of state and federal law, rules, and
regulations regarding the issuance of prescriptions and dispensing of drugs . . . under
prescriptions.” Id. MCL 333.7303a(6)(c) of the PHC provides in part that a licensed prescriber
who dispenses controlled substances shall maintain “[r]ecords of all other dispositions of



8
  Respondent argues that petitioner waived the right to oppose this claim of error by not raising it
in its exceptions to the ALJ’s proposed decision. We disagree. MCL 333.16237(1) and (3)
specifies that the disciplinary subcommittee must “review the recommended findings of fact and
conclusions of law of the hearing examiner,” and may “revise the recommended findings of fact
and conclusions of law . . . .” The record reflects that petitioner addressed this issue in its
closing argument before the ALJ, and nothing in the language of the governing statute requires a
party to raise an issue in exceptions to a proposed opinion before the Board of Pharmacy may
revise an ALJ’s decision.


                                               -12-
controlled substances under the licensee’s control for not less than 5 years after the date of
disposition.” MCL 333.7311 in relevant part provides:

               (1) A license under section 7306 to manufacture, distribute, prescribe, or
       dispense a controlled substance may be denied, suspended, or revoked or a
       licensee may be fined, reprimanded, ordered to perform community service or
       make restitution, or placed on probation by the disciplinary subcommittee upon a
       finding that an applicant for licensure or a licensee is subject to any of the
       following:

                                             * * *

               (f) The applicant or licensee is not in compliance with applicable federal,
       state, and local laws.

                                             * * *

                (h) The applicant or licensee has violated or attempted to violate, directly
       or indirectly, assisted in or abetted the violation of, or conspired to violate this
       article or rules of the administrator promulgated under this article.

         In this case, respondent prescribed morphine sulfate to patient FB. Accordingly,
respondent dispensed morphine sulfate because he issued a drug to FB by prescribing it. FB
returned the morphine sulfate to respondent’s office,9 and respondent destroyed it. Respondent,
however, did not document the destruction or report the action to the DEA or fill out any DEA
forms. A DEA investigator testified that federal law specifies requirements for destruction of
controlled substances. If a federal registrant receives a controlled substance for destruction, the
registrant must complete an inventory of the controlled substance on a DEA Form 41 and send
the controlled substance to the DEA or request authorization to destroy the drugs. Waldmiller
testified that respondent failed to produce DEA Form 41 and that he did not have a record of
what happened to the morphine sulfate. The morphine sulfate came into respondent’s control
when FB returned it to respondent’s office; however, respondent failed to keep a record of the
disposition (in this case, destruction) of the morphine sulfate. Therefore, respondent violated
MCL 333.7303a(6)(c) by not maintaining any record of his action. Accordingly, the Board of
Pharmacy did not err by ruling that respondent’s failure to maintain disposition records of
controlled substances violated MCL 333.7311(1)(f) and (1)(h).




9
  Had FB never returned the morphine sulfate, MCL 333.7303a(6) would not have applied
because it only applies to controlled substances “under the licensee’s control.”


                                               -13-
                         V. ORDER OF THE BOARD OF MEDICINE

              A. MEDICAL MARIJUANA CERTIFICATION REQUIREMENTS

       Respondent argues that competent, material, and substantial evidence did not support the
Board of Medicine’s finding that he violated his professional duties by issuing medical
marijuana certifications before physically evaluating patients. We disagree.

        First, respondent argues that the retroactive application of a 2012 definition of physician-
patient relationship violated his right to due process and prejudiced him. We reject this argument
because the Board of Medicine did not utilize the 2012 definition. Rather, the record reflects
that, when finding that respondent violated the PHC by certifying patients for medical marijuana
without a physical examination, the Board of Medicine relied on the September 2010 statement
of the American Society of Addiction Medicine (ASAM) and the January 2011 statement of the
Federation of State Medical Boards that specified the obligations of physicians who certify
patients for medical marijuana.

        Second, respondent argues that the Board of Medicine erred by finding that respondent
incompetently certified an undercover officer, who posed as EH, for medical marijuana because
competent, material, and substantial evidence did not support its decision. We disagree because
the evidence unequivocally established that respondent certified EH for medical marijuana
without a physical examination. The record reflects that witnesses presented conflicting
testimony regarding the standard of care. However, we defer to an agency’s findings of fact,
“particularly with regard to witness credibility and evidentiary questions.” In re Gordon, 323
Mich App at 558.

        In September 2010, ASAM issued a recommendation that physicians certifying patients
for medical marijuana “[a]dhere to the established professional tenets of proper patient care,”
which included a “good faith examination of the patient[.]” Respondent testified that the
standard of care did not require him to physically evaluate a patient. Dr. Rodgers and Dr.
Springer, however, testified that the standard of care required physicians to evaluate patients
before issuing medical marijuana certifications. Respondent very briefly argues on appeal that
medical marijuana certification is not the practice of medicine. The record reflects that Dr.
Rodgers testified that the standards of care apply to any interaction a physician has with a
patient. We reject respondent’s argument because signing a medical marijuana certification
involves a physician’s interaction with a patient.

        The Board of Medicine did not err by accepting Dr. Rodgers’s and Dr. Springer’s
testimonies regarding the standard of care. The record reflects that the undercover officer who
posed as patient EH testified that he obtained a medical marijuana certification in May 2011
without having contact with respondent at any point. Respondent admitted that he never met
with EH in person. Both Dr. Rodgers and Dr. Springer testified that issuing a medical marijuana
certification before seeing the patient fell below the standard of care. The record establishes that
competent, material, and substantial evidence supported the Board of Medicine’s finding that
respondent violated the applicable standard of care when he issued EH a medical marijuana
certification without a physical evaluation.


                                               -14-
                               B. IMPROPER PRESCRIPTIONS

       Respondent argues that the Board of Medicine’s findings that he provided improper
treatment to patients JA, CK, DL, TT, and SW were not supported by competent, material, and
substantial evidence. We disagree.

         The record reflects that the ALJ found, based upon the evidence presented, that
respondent’s treatment decisions regarding JA were not negligent from January 2010 to January
2011. The ALJ, however, found that respondent’s lack of office records pertaining to
prescriptions of lorazepam and oxazepam during May and June 2011, and the reasons for
prescribing those drugs during that period, and the lack of office records respecting any visits by
JA with respondent after January 2011, constituted a breach of respondent’s professional duties.
The ALJ found that respondent lacked records sufficient to justify prescribing the two drugs after
January 2011. The Board of Medicine adopted the ALJ’s findings of fact and conclusions of law
in this regard and concluded that respondent’s recordkeeping was incomplete regarding JA.

        The record reflects that MAPS reports indicated when respondent prescribed JA
lorazepam and oxazepam. Respondent’s office records were reviewed to determine when
respondent met with JA. Dr. Rodgers testified regarding the adequacy of respondent’s
recordkeeping. He opined that respondent prescribed JA lorazepam during May 2011 without a
physical examination of the patient. Further, although evidence established that respondent
prescribed lorazepam and oxazepam after January 2011, respondent’s office records failed to
indicate office visits or any records of the prescriptions. We conclude that the Board of
Medicine’s decision adopting the ALJ’s findings and conclusions regarding JA were supported
by competent, material, and substantial evidence.

        Respondent’s argument that the Board of Medicine improperly found that his treatment
of CK fell below the standard of care lacks merit. Evidence established that respondent
prescribed CK 80 mgs per day of citalopram on November 20, 2011, despite the Federal Drug
Administration’s (FDA) warning issued in August 2011 that citalopram “should no longer be
prescribed at doses greater than 40 mgs per day.” Dr. Rodgers opined that respondent violated
professional standards by not testing CK’s heart function after the FDA issued its warning, or
alternatively, lowered CK’s citalopram dosage to 40 mgs. Dr. Springer testified that the FDA’s
warning did not establish an absolute contraindication and respondent’s prescribing of 80 mgs
did not necessarily constitute a breach of the standard of care. The ALJ concluded that
respondent should have known of the FDA warning but lacked awareness of it despite the fact
that the warning was printed on the drug’s label. The ALJ concluded that respondent’s failure to
read the label information on the drug he prescribed constituted a breach of professional duty.

        Although Dr. Rodgers’s and Dr. Springer’s testimonies conflicted, the Board of Medicine
could properly accept the ALJ’s finding and conclusions because the determination of the weight
of the evidence was an issue for the trier of fact. Wolfe, 440 Mich at 514-515. We conclude that
competent, material, and substantial evidence supported the ALJ’s findings and conclusion that
respondent’s care of CK fell below the standard of care. Therefore, the Board of Medicine did
not err by accepting the ALJ’s determination.



                                               -15-
        Respondent next argues that the Board of Medicine lacked evidence to find that he
violated his duties by prescribing DL a course of Vicodin without a complete workup and
without addressing addiction risks. We disagree. The record reflects that respondent prescribed
DL extra-strength Vicodin beginning on July 1, 2011, and continued prescribing DL the drug
with refills over the course of approximately 12 months. Dr. Rodgers testified that respondent’s
office records did not report physical examinations of DL. Dr. Springer testified that when
prescribing a patient extra-strength Vicodin, the patient’s use of the drug required monitoring
through drug screens and inspections of MAPS reports to ensure that the patient did not shop for
doctors to obtain the drug. Dr. Springer testified that no urine drug screens or MAPS reports
were found in DL’s medical records. Dr. Rodgers opined that respondent’s treatment did not
meet the standard of care because his evaluations did not support the diagnosis for the
prescription in December 2011. The ALJ concluded, based upon the witnesses’ testimonies and
the evidence presented, that respondent’s failure to do patient workups and failure to address the
risk of addiction constituted a breach of professional duty. We conclude that competent,
material, and substantial evidence supported the ALJ’s findings and conclusions, and therefore,
the Board of Medicine did not err by accepting those findings and conclusions.

        Respondent argues that competent, material, and substantial evidence did not support the
Board of Medicine’s decision regarding TT because he saw TT within a month of prescribing TT
Suboxone. Respondent also argues in relation to this claim of error that Dr. Rodgers lacked the
requisite qualifications to opine regarding the applicable standards of care. We disagree.

        As previously discussed, Dr. Rodgers had the requisite qualifications to opine regarding
controlled-substance prescribing and the applicable standards of care associated with prescribing
controlled substances. Therefore, we reject respondent’s argument in this regard.

       The record reflects that respondent first prescribed TT Suboxone on February 20, 2012.
Respondent presented an undated, misfiled page of notes that indicated that he spoke via phone
with TT who had just been released from a detoxification program. Respondent testified that he
spoke with TT’s social worker and learned that he had been prescribed Suboxone by another
doctor. Respondent took TT as his patient and called in a Suboxone prescription on February 20,
2012, without a personal visit with TT. Respondent testified that the only time he saw TT
occurred on March 20, 2012.

       Dr. Rodgers testified that a physician should see the patient under the vast majority of
circumstances. Dr. Rodgers opined that respondent’s undated note inadequately reported what
happened. Further, Dr. Rodgers opined that respondent’s prescribing Suboxone to TT failed to
meet the standard of care because respondent performed no physical exam and failed to
document evaluations to monitor the safety or effectiveness of his treatment of TT.

       We conclude that competent, material, and substantial evidence supported the ALJ’s
findings and conclusions and the Board of Medicine did not err by accepting them. Accordingly,
we find no merit to this claim of error.

      Respondent argues further that he did not breach standards of care related to the treatment
of SW because he saw SW regularly and the label of his medication did not mention weight-loss
monitoring. We disagree.

                                              -16-
         The record reflects that respondent treated SW for obesity. Respondent had one formal
patient visit with SW and prescribed him Adipex, a stimulant used for weight loss. SW’s
medical records indicated that respondent did not conduct any further formal examinations of
SW. Instead, respondent consulted via phone with SW after which respondent authorized a refill
of Adipex. Dr. Rodgers testified that respondent’s refilling of the prescription of this controlled
substance did not meet the standard of care because prescribing required re-examination of the
patient to ensure that the stimulant did not raise blood pressure or cause toxicity. Dr. Springer
testified that the standard of care required a physician to weigh a patient before refilling Adipex
and monitor and document the patient’s weight over the long term. He testified that the failure to
regularly document the patient’s weight violated the standard of care. Respondent testified that
he spoke with SW who worked at the hotel at which respondent stayed repeatedly and
respondent contended that he could estimate someone’s weight by looking at him.

        The ALJ determined that respondent’s lack of formal visits and examinations of SW and
the failure to weigh SW to monitor his weight over time constituted a breach of respondent’s
professional duty. We conclude that competent, material, and substantial evidence supported the
ALJ’s findings and conclusions. Therefore, the Board of Medicine did not err by accepting the
ALJ’s findings and conclusions.

                              C. IMPROPER RECORDKEEPING

      Respondent argues that competent, material, and substantial evidence did not support the
ALJ and Board of Medicine’s findings regarding his failure to keep medical records for patients
RA, KK, PM, TT, and SS. We disagree.

        In general, Dr. Rodgers testified that the applicable standard of care included properly
documenting patient care. Dr. Springer testified that failing to document medical care and
failing to maintain the documentation in an accessible fashion constitutes a violation of a
physician’s general duties. Dr. Rodgers also testified that the standard of care required that a
physician must maintain medical records to determine the safety and effectiveness of a
controlled substance.

         Respecting his treatment of RA, respondent argues that, although his records could be
more clear, the records he presented sufficed to establish that he kept records and did not violate
the applicable standard of care. The record reflects that respondent testified that he saw RA at a
clinic in Flint on May 3 or 4, 2011. Except for a medical marijuana certificate, respondent could
not find any records pertaining to his meeting with RA and he did not recall if he physically
examined him. RA visited respondent again on May 9, 2011, during which respondent
diagnosed RA as having various maladies including chronic pain. The record reflects that
respondent prescribed lorazepam for anxiety and Vicodin for chronic pain. Respondent also saw
RA on May 31, 2011. During that visit RA revealed that he had an opioid addiction problem and
desired to overcome his addiction. Respondent’s records indicated that he performed a physical
examination, assessed RA’s opioid dependency, and prescribed a regimen of drugs for side
effects from withdrawal.

        Dr. Rodgers testified that respondent’s records of RA’s May 9 visit indicated no patient
history, evaluation, or physical examination performed by respondent. Dr. Springer testified that

                                               -17-
respondent appropriately diagnosed RA’s anxiety condition and opined that RA’s description of
pain supported respondent’s assessment of chronic pain and a history of that condition. The
record reflects that Dr. Springer equivocated in his testimony regarding respondent’s prescribing
of Vicodin to RA. He testified that he did not use addictive drugs to address anxiety or to treat
pain. Dr. Rodgers opined that respondent’s records inadequately reported the May 31, 2011 visit
and respondent’s treatment of RA because the notes were too vague regarding what opiates RA
was taking and who prescribed the regimen of drugs for withdrawal symptoms. Dr. Springer
opined that respondent appropriately treated RA.

       The ALJ found that respondent lacked records of his first office visit with RA which
made it unclear what respondent did to reach his conclusion that RA had severe and chronic
pain. The ALJ found that respondent breached his professional duty to keep proper records.
Respecting the other two office visits, the ALJ did not find breaches of respondent’s professional
duties. Competent, material, and substantial evidence supported the ALJ’s finding that
respondent did not maintain proper records for RA. The Board of Medicine, therefore, properly
accepted the ALJ’s findings and conclusions respecting respondent’s treatment of RA and
inadequate medical recordkeeping.

        Respondent argues that he did not fail to maintain KK’s medical records. We disagree.
The record reflects that respondent signed a medical marijuana certificate for KK and prescribed
him dronabinol, a pharmaceutical-grade cannabis-based controlled substance. Waldmiller asked
for respondent’s medical file for KK and respondent failed to locate it and never provided it to
her. MAPS reports showed that respondent issued three dronabinol prescriptions for KK.
Respondent testified that he lacked certainty where he saw KK. He testified that he recalled that
he made a record of his encounter with KK but his disorganized filing prevented him from
finding the medical records. Respondent believed that KK’s medical record consisted of a single
page that was lost during his transition to electronic medical records. Dr. Springer testified that
failure to keep complete medical records fell below the minimal standards for a physician who
prescribed a patient drugs. The ALJ found that respondent treated KK and prescribed him
dronabinol but failed to maintain treatment records which constituted a breach of respondent’s
professional duty.

       We conclude that competent, material, and substantial evidence supported the ALJ’s
finding that respondent did not maintain proper records for KK. The Board of Medicine,
therefore, properly accepted the ALJ’s findings and conclusions respecting respondent’s
inadequate medical recordkeeping for this patient.

         Respondent next argues that an unreliable MAPS report was the only evidence that he
provided PM with codeine-containing cough syrup. As previously discussed, as the trier of fact,
the Board of Medicine could appropriately assign evidentiary weight to MAPS reports. The
record reflects that respondent’s records indicated two visits with PM. Respondent’s record of
the first visit did not reflect prescribing PM codeine-containing cough syrup. MAPS reports,
however, indicated that respondent prescribed PM codeine-containing cough syrup in relation to
that first visit and issued a second prescription following PM’s second office visit. Dr. Rodgers
opined that respondent’s records included no patient history or examination. The ALJ found
respondent’s notes inaccurate and negligent because respondent reported in his notes that he
recommended an over-the-counter cough medication.

                                               -18-
       We conclude that competent, material, and substantial evidence supported the ALJ’s
finding that respondent did not maintain proper records for PM. The Board of Medicine,
therefore, properly accepted the ALJ’s findings and conclusions respecting respondent’s
inadequate medical recordkeeping for PM.

        Respondent also argues that he bore no fault for his four-year delay in providing TT’s
medical record because he had difficulty locating patient files without demographic information.
The ALJ found respondent’s recordkeeping system inadequate and his four-year delay in
producing a full usable record for TT a breach of respondent’s professional duty. We conclude
that competent, material, and substantial evidence supported the ALJ’s finding that respondent
did not maintain proper records for TT. The Board of Medicine, therefore, properly accepted the
ALJ’s findings and conclusions respecting respondent’s inadequate medical recordkeeping for
this patient.

         Respondent argues further that he did not breach his professional duties regarding
providing records to Waldmiller because Waldmiller was not a “patient.” We disagree. On June
12, 2013, Waldmiller requested medical records for patients, including for SS. Waldmiller
testified that respondent failed to provide her with medical records for SS. The record reflects
that respondent produced his file for SS at a hearing held on May 26, 2016. Respondent testified
that he did not provide his records for SS’s treatment because he did not know in what office
location he treated SS. The ALJ found that respondent’s failure to find his medical file because
it was hard to find constituted negligence because, under MCL 333.16213(1), a physician must
maintain patient records and ensure their accessibility and availability to patients, and the
government had statutory authority to investigate the complaint against respondent under
MCL 333.16221 and MCL 333.16233(1). We conclude that competent, material, and substantial
evidence supported the ALJ’s finding that respondent did not maintain proper records for SS.
The Board of Medicine, therefore, properly accepted the ALJ’s findings and conclusions
respecting respondent’s inadequate medical recordkeeping respecting this patient.

       Respondent also vaguely asserts that his due process rights were violated but fails to cite
legal authority or provide a cogent argument supporting his claim. This Court has explained
that, “where a party fails to brief the merits of an allegation of error, the issue is deemed
abandoned by this Court.” Yee v Shiawassee Co Bd of Commrs, 251 Mich App 379, 406; 651
NW2d 756 (2002) (citation omitted).

               It is not enough for an appellant in his brief simply to announce a position
       or assert an error and then leave it up to this Court to discover and rationalize the
       basis for his claims, or unravel and elaborate for him his arguments, and then
       search for authority either to sustain or reject his position. The appellant himself
       must first adequately prime the pump; only then does the appellate well begin to
       flow. [Id. (citation omitted).]

Because respondent failed to cite authority and explain the rationale for this claimed error, we
decline to address it.




                                               -19-
                                 VI. CONCLUSION

      For all of these reasons we affirm both the Board of Medicine’s and the Board of
Pharmacy’s orders.

                                                    /s/ Patrick M. Meter
                                                    /s/ Deborah A. Servitto
                                                    /s/ James Robert Redford




                                         -20-
