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Board must hear MD’s appeal of order to submit to three-day impairment evaluation

The Ohio medical board erred by denying a doctor, accused of impairment after he admitted to the occasional use of marijuana, a hearing to determine whether a lengthy impairment evaluation was justified, a state appellate court ruled May 12.

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(Garber v. State Medical Board of Ohio)

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In October 2015, while discussing a different matter with investigators from the State Medical Board of Ohio, physician Michael Garber informed them that he intermittently used marijuana. Based on that admission, in May 2016 the board began a disciplinary process against Garber, claiming that his admitted use of marijuana gave it reason to believe him impaired in his practice.

The board ordered Garber, against whom no external complaint had been submitted, to submit to a three-day in-patient evaluation at a hospital, for which he would be required to pay $5,000 in costs.

Unhappy with this order, Garber sued to block it, and when that failed, declined to report for his three-day evaluation. His absence triggered a letter from the board stating that it was entitled to conclude that its allegations of impairment were true unless Garber could prove that he missed the evaluation due to circumstances beyond his control.

Garber requested a hearing, apparently hoping to contest the board’s authority to order the evaluation in the first place, but the hearing examiner conducting the case declared that the hearing was limited to the question of why Garber was unable to attend his evaluation. At the hearing’s conclusion, having determined that Garber could have submitted to the evaluation, the hearing examiner declared him impaired.

During the board proceeding that followed, at least one member publicly questioned the wisdom of ordering Garber into the evaluation, given a lack of complaints that he had been impaired in the first place, while other members debated the board’s authority in the matter. In the end, the board adopted the hearing examiner’s conclusions and suspended Garber’s license indefinitely.

He appealed and the case eventually reached the Court of Appeals of Ohio for the Tenth District. On appeal, Garber challenged the board’s order on the grounds that the board did not have the authority, given the evidence and circumstances of the case, to order him to an evaluation, and that it had erred by not providing him with a chance to contest the decision to order the evaluation.

The appellate court agreed, holding that the board was required to provide Garber with a hearing. Under Ohio law, the board may order an impairment evaluation only “if it has reason to believe” that a licensee is impaired. Garber thus was entitled to have the hearing examiner examine the question of what the board had reason to believe, and the hearing examiner had erred in not hearing the question of whether Garber was able to attend his skipped evaluation.

“Dr. Garber does not appear to seek more than the law and our precedents provide,” wrote Judge Frederick Nelson. “The record is clear that the board itself never afforded Dr. Garber the opportunity to be heard on whether the order to submit to a three-day examination was supported by a good faith ‘reason to believe’ that his ability to practice was impaired by the habitual or excessive use of drugs.”

Having held that the board improperly failed to allow Garber to challenge its evaluation order, the Court of Appeals remanded the case to the board for further proceedings.