The opinion
STATE OF MAINE SUPERIOR COURT
AROOSTOOK,ss CIVIL ACTION
DOCKET NO. HOUSC-AP-16-1
ROBERTS. LAMORGESE,M.D. )
)
)
)
vs. ) DECISION AND ORDER
) REGARDING
) MOTION TO DISMISS
) RULE BOC APPEAL
)
)
)
)
STATE OF MAINE BOARD OF )
LICENSURE IN MEDICINE )
BACKGROUND
On fune 16, 2016 the State of Maine Board of Licensure in Medicine (herafter
"Board") issued a Decision and Order pursuant to 5 M.R.S. §9051-9064, 10 M.R.S.
§8003(5), 32 M.R.S. §3269 and 3282-A regarding Petitioner's medical license. By its
decision the Board made findings that the Petitioner had exhibited incompetence in
the practice for which he is licensed by engaging in conduct that evidenced a lack of
ability or fitness to discharge his duties, subjecting him to discipline pursuant to 32
M.R.S. § 3282-A(2)(E(1). Pursuant to 10 M.R.S. 8003(5)(A-1), the Board imposed
terms of probation, setting forth a number of conditions of probation and the
timeframe to comply with those conditions. Condition 3(a) required Petitioner:
Prior to his first patient contact, the Ucensee must engage a Board-approved
practice monitor who will meet with the licensee every two weel<s to review
patient charts and who will report to the Board every month for a period ofsix
months. The licensee may meet with the practice monitor via telemedicine. 1
1 At the request of the Petitioner, the Court has listened to the May 10, 2016
deliberations of the Board. From listening to their deliberations, it is apparent an
important issue was there be face-to -face interaction with the practice monitor. ln
this discussion, a brief reference was made to "telemedicine" and that it was used
for some psych appointments; a consensus was achieved that use of telemedicine
would be "ok".
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That Decision and Order was not timely appealed and no Petition for Review was
filed within 30 days per 10 M.R.S. §8003(5) and SM.R.S. §11002(3). No further
formal disciplinary or enforcement action has yet been brought by the Board to
enforce the terms and conditions of probation.
On December 2, 2016 Petitioner filed the pending Petition for Judicial Review of
Final Agency Action pursuant to M.R.Civ.P. 80C. In his Petition for Review, the
Petitioner challenges the findings and decision made by the Board in its June 16,
2016 Decision and Order. Petitioner also asserts email communications, specifically
a November 10, 2016 email, from the Board significantly altered the conditions of
his probation, and therefore said email is a final agency action from which Petitioner
has the right of appeal. The facts relative to said email are as follows:
By an email dated October 27, 2016 from Petitioner's counsel to Julie Best of the
Board, counsel wrote:
I still need clarification as to whether the BOM insists that the telemedicine
monitoring be in person or by video link. (Recol'd, p. 74).
Ms. Best responded to Petitioner's counsel with an email dated October 28, 2016,
which stated, in part:
2. The Board's decision and order indicates that Dr. l.amorgese "may meet with the
practice monitor via te/emedicine." The Board will be asked to discuss whether this
provision was intended to require the monitor to use telemedicine or rather to use it at
his/her discretion. The Board will also be asked to discuss if use ofthe telephone alone
to conduct monitoring (as telemedicine) will be sufficient to comply with the decision
and order. {Record, pp. 73-74).
Per meeling minutes---
On November 10, 2016, Ms. Best wrote to Petitioner's counsel by email:
On November au,, the Board met and discussed the points in my email below. The
outcome oftheir discussion is as follows:
• The use of telemeclicine to conc/11ct monitoring is at the discretion ofthe
monitor.
• telephone only monitoring is not acceptable. (Record, p. 73). 2
As stated, on December 2, 2016, the pending Petition for Review of Final Agency
Action was filed. On December 19, 2016, the Board filed a Motion to Dismiss the
Petition for Judicial Review on the basis the Court lacks subject matter jurisdiction
2 Sec Footnote 1; this interpretation is not inconsistent with the dialogue and
consensus of the Board voiced during their deliberations on May 10, 2016.
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and because the November 10, 2016 email was not final agency action. A phone
conference regarding the Motion to Dismiss was held February 15, 2017. For the
reasons set forth below, the Motion to Dismiss is granted.
DISCUSSION
The original Decision and Order was issued June 16, 2016. A petition for review of
final agency action shall be filed within 30 days after receipt of notice if taken by a
party to the proceeding of which review was sought SMRS §11002(3). The time
limit for filing an appeal is jurisdictional, and if not timely filed the Court does not
have jurisdiction. Fournier v. Dep't ofCorrs., 2009 ME 112.
Petitioner asserts however that the Board's interpretation of the use of telemedicine
as expressed in Ms. llest's email dated November 10, 2016 is also final agency action
which can be appealed.
At Petitioner's counsel's request for clarification, the Board was asked to discuss
how it intended telemedicine be used. At its November 8, 2016 meeting the Board
discussed the issue. As set forth in Ms. Best's email dated November 10, 2016, the
Board voted use of telemedicine was at the discretion of the monitor, and telephone
only communication was not acceptable. 3
"Final agency action" means a decision by an agency which affects the legal
rights, duties or privileges of specific persons, which is dispositive of all issues, legal
and factual, and for which no further recourse, appeal or review is provided within
the agency. 5 M.R.S. § 8004(4). The Board's clarification how telemedicinc may be
used is not final agency action. Rather, it is it's interpretation how Petitioner may
satisfy the conditions of p1·obation. While on probation, Petitioner remains licensed.
He has not yet suffered a loss for which he has no further recomse. Were he to
follow the Board's interpretation, he arguably may incur more expense and
inconvenience than he would incur by following his interpretation. But again, he
remains licensed and with future opportunity to challenge the Board's
interpretation if it sought enforcement.
As indicated, lhe Board has not yet brought any disciplinary or enforcement action
regarding Petitioner's probation. If the Board forms the belief Petitioner has not
complied with the conditions of probation and elects to proceed, disciplinary action
is available pursuant to 32 M.R.S. §3282-A(2)(P) which provides: The Hoard may
suspend or revoke a license pursuant to Title 5, section 1004. The following are
grounds for an action to refuse to issue, modify, restrict, suspend, revoke or refuse to
renew the license ofan individual licensed under this chapter: Noncompliance with an
order or consent agreement ofthe board. In addition, the Board could bring a
See Footnotes land 2; upon listening to the May 10, 2016 deliberations of the
:i
Board, the response from the Board on November 8, 2016 is not inconsistent with
their original May 10, 2016 deliberations.
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disciplinary action pursuant to 10 M.R.S. § 8003(5)(A-1)(4) which states, in part:
Failure to comply with the conditions ofprobation is grounds for disciplinary action
against a licensee or registra11t. Regardless of which method is utilized, to further
sanction the Petitioner and threaten his license some form of adjudicatory
prncedure is required. At such disciplinary or adjudicatmy proceeding, it would be
the Board's burden to prove Petitioner had not complied with the June 16, 2016
Decision and Order. At such proceedings, Petitioner could make all of the arguments
he has made herein, and that use of tclemedicine could be as he suggests herein, and
not as "clarified" or "interpreted" by the Board. And pursuant to such proceeding,
Petitioner would have the right of review and appeal.
In summary. the Board's interpretation of the "use of telemedicine" as
communicated to Petitioner in November 2016 is not final agency action. The only
final agency action is the June 16, 2016 Decision and Order. That action was not
timely appealed. Accordingly, the Motion to Dismiss is granted for failure of the
Court to have subject matter jurisdiction. Petitioner's Motion to Stay is deemed
moot.
The clerk shall incorporate this Order into the docket by refere ,ce pursuant to
M.R.Civ.P. 79(c).
?
Dated:~dl.2017 .,
Justice, Superior Court
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