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Unfilled board member slot voids discipline in criminal assault case

A decision to suspend the license of a physical therapist convicted of criminal assault was reversed by a Louisiana appellate court November 14 because the board lacked a required physician board member, making its decisions invalid. (Bias v. Louisiana Physical Therapy Board).

The physical therapist in the case, Kevin Bias, has licenses in both Texas and Louisiana. In 2016, he was charged with criminal assault while driving, pleaded not guilty, and was eventually sent to a diversion plan, after which his case was dismissed.

Despite that outcome, the Louisiana Physical Therapy Board opened a disciplinary case after receiving an anonymous complaint informing it of the assault. Following a hearing, the board suspended his license, Bias appealed, and the case eventually rose to the state Court of Appeals for the Third Circuit.

On appeal, Bias argued that the board was not properly comprised when it made the decision to suspend his license. Under Louisiana law, the physical therapy board must have at least one member who is licensed to practice medicine in the state and specializes in either orthopedic surgery or physical therapy. At the time of Bias’s hearing, the board lacked a licensed physician as a member and was thus not legally constituted.

The court agreed. Although Bias and his attorney were informed, just prior to the start of the disciplinary hearing, that the board lacked a physician member and they did not initially object to that unlawful makeup, the Court of Appeals held that the failure to object was irrelevant.

“The board must be legally constituted regardless of whether a licensee objects,” Judge Silvia Cook explained. “The fact that Bias’s attorney did not attempt to stop the hearing from going forward when he was informed just prior to the start of the hearing that there was no physician member on the Board does not constitute a waiver of any sort. Bias cannot waive the mandatory lawful makeup of a duly constituted Board and any action taken by an administrative board not properly constituted under the enabling statute’s mandatory requirements is void ab initio and must be vacated.”