To Disclose or Not to Disclose on Renewal Application. That is the Question.

Physicians regularly complete new and renewal applications for all sorts of things. Medical licenses. Hospital privileges. Employment. In-network status with insurance carriers. Professional liability coverage.  

The list is long. 

The longer you have been in practice, the more complicated the applications.  

The questions cast a wide net. As exemplified in an Ohio Appellate case, Zedaker v. State Medical Board of Ohio. No. 24AP-244 (C.P.C. No. 23CV-6056). 

A physician assistant (PA) was suspended for six months and fined $1,000, with his license placed on probation for one year for allegedly not answering a question accurately on his renewal license application. 

Appellant obtained an Ohio license to practice as a PA in 2004 and has renewed his license every two years since that time. He is also actively licensed as a PA in Florida and California. In January 2016, he was hired by Florida State University (“FSU”) to develop an accredited PA training program; the program began in fall 2017.  

By letter dated November 5, 2021, FSU informed appellant that he was the subject of a formal sexual misconduct investigation based on complaints by FSU employees. 

On November 29, 2021, appellant was interviewed by FSU investigators about the allegations.  

The PA submitted his license renewal application in Ohio on December 2, 2021. Notably, this was after he was interviewed by FSU investigators. 

The question on the renewal application read: 

“[a]t any time since signing your last application for renewal of your certificate have you been investigated, warned, censured, put on probation, terminated, or disciplined by any employer, hospital, group, practice, nursing home, clinic, health maintenance organization, or other similar institution, for any reason?”  

Zedaker answered “No.” 

The Board believed this answer was deceptive. 

Your acts, conduct, and/or omissions as alleged in paragraph (1) above, individually and/or collectively, constitute “[m]aking a false, fraudulent, deceptive, or misleading statement in soliciting or advertising for employment as a physician assistant; in connection with any solicitation or advertisement for patients; in relation to the practice of medicine as it pertains to physician assistants; or in securing or attempting to secure a license to practice as a physician assistant, as that clause is used in Section 4730.25(B)(8), Ohio Revised Code. 

Zedaker defended as below: 

At that hearing, held before a Board hearing examiner on October 24, 2022, appellant testified he received the November 5, 2021 letter from FSU and was thus aware that he was under investigation related to allegations of sexual misconduct made by FSU employees; he further hired legal counsel approximately one week later to defend him…. 

State’s exhibit 5 consists of FSU’s investigative file, an 86-page document which includes an 8-page investigative summary dated January 4, 2022, along with several attachments. The attachments include a written statement from one of appellant’s alleged accusers, investigator notes from appellant’s November 29, 2021 interview, investigator notes from interviews of appellant’s alleged accusers, and samples of text messages sent between appellant and an alleged accuser. … 

Appellant averred that he was “pretty much * * * kept in the dark as to what the investigation was.”  

Appellant ultimately agreed that he understood from the interview that he was being investigated about his employment at FSU and his relationships with employees.  

Now for his defense. 

Appellant further testified that in the December 2, 2021 Ohio license renewal application, he answered no when asked if at any time since signing his last renewal application he had been investigated for any reason by any employer. Appellant averred that he knowingly answered no to the question because it was an accurate answer “for the time it was answered.” (Record of Proceedings Tr. at 40.) Appellant explained that he answered as he did because he interpreted the word “investigated” as pertaining to investigations having been conducted in the past rather than being presently conducted.  

Appellant clarified: 

To me, investigated is past tense. And I was – – in the middle of this [investigation]. So this was not an intent to mislead. This was just me reading the words that were there. And investigated is past tense. And I read this as, you know, I was in the middle of something; not having been investigated, I was being investigated.  

(Record of Proceedings Tr. at 41.) 

In other words, he believed he not been investigated. He was being investigated. 

Was this credible? 

Appellant acknowledged that the question does not ask whether a past investigation had been completed; however, he reiterated that the question “uses past tense words” and that the investigation by FSU “was not completed, and so I didn’t look at this as I’ve been investigated.” (Record of Proceedings Tr. at 42.) He further acknowledged that he was under investigation by FSU at the time he completed the license renewal application. He averred that had the question asked if he was “currently under investigation,” he would have answered yes. (Record of Proceedings Tr. at 54-55.)  

In sum, Zedaker knew he was under investigation by his employer. But he parsed the question grammatically differently than the Board. He presumed the question related to past, closed investigations, rather than a current open investigation.  

The Board wasn’t buying it. It noted that  

The assistant attorney general also addressed the Board, arguing that the question on the license renewal application asking if appellant had been investigated by his employer was unambiguous. The assistant attorney general further argued that the fact appellant appeared before the FSU investigative panel just a few days before completing the license renewal application established that he lied on the application and evidenced his intent to deceive the Board. 

The appellate court agreed with the Board. 

Pursuant to R.C. 4730.25(B)(8), the Board may discipline a PA for “[m]aking a false, fraudulent, deceptive, or misleading statement * * * in securing or attempting to secure a license to practice as a physician assistant.” The statute defines a “false, fraudulent, deceptive, or misleading statement” as one that “includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results, or includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived.”.. In order to discipline a PA under R.C. 4730.25(B)(8), the Board must prove that the PA intended to mislead or deceive the Board. Menkes v. State Med. Bd., 10th Dist. No. 19AP-476, 2020-Ohio-4656. 

A licensee’s intent to mislead or deceive the Board “may be inferred from the surrounding circumstances, such as when a licensee clearly has information which he fails to disclose in a response to a direct question.” Coleman at ¶ 12, citing Webb v. State Med. Bd. of Ohio, 146 Ohio App.3d 621, 628 (10th Dist.2001). Accord Applegate at ¶ 12; Instabooly at ¶ 16; Gipe at ¶ 64. “Thus, ‘[d]irect evidence of intent is not necessary because intent may be inferred from the surrounding circumstances.’ ” Menkes at ¶ 37, quoting Mansour v. State Med. Bd. of Ohio, 10th Dist. No. 17AP-615, 2018-Ohio-2605, ¶ 19.  

In his renewal application, appellant denied that he had been investigated by any employer since signing his last application for renewal. At the hearing, the Board claimed that FSU’s November 5, 2021 letter informing appellant that he was under investigation for alleged workplace sexual misconduct and its subsequent November 29, 2021 interview of appellant regarding those allegations constituted an investigation against him by an employer that appellant should have disclosed. Appellant testified that he both received the letter from FSU and was interviewed by FSU investigators prior to completing the renewal application. However, he claimed he interpreted the term “investigated” as meaning an investigation that had reached a conclusion, and because the FSU investigation was still ongoing at the time he submitted his renewal application, he answered the question truthfully and thus did not intend to mislead or deceive the Board… 

Finding appellant’s explanation not credible, the hearing examiner concluded appellant intended to mislead the Board when answering no to the question on the renewal application. Appellant reiterated his explanation at the Board hearing, stating he answered the question as he No. 24AP-244 12 interpreted it, i.e., that the term investigated connoted a concluded investigation; as such, he did not intend to deceive the Board in failing to report the ongoing FSU investigation. 

Essentially, appellant contends the hearing examiner and the Board should have believed the explanation he provided regarding his answer to the question on the renewal application. However, “[t]he board is under no obligation to believe [a licensee’s] testimony den[ying] any intent to deceive.” (Internal quotations and citation omitted.) Menkes at ¶ 37, quoting Mansour v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-78, 2007-Ohio-6384, ¶ 25. See also Bhama v. State Med. Bd. of Ohio, 10th Dist. No. 08AP-488, 2009-Ohio-819, ¶ 34 (“The board is not bound to accept a version of the facts that it does not find credible where there is other evidence in the record to the contrary.”). Here, appellant requests that we resolve factual conflicts in his favor, rehashing the same arguments he presented both to the Board and the common pleas court. However, “[a]n appellate court cannot second guess the Board’s credibility determinations.” Applegate at ¶ 21, citing Hoxie v. Ohio State Med. Bd., 10th Dist. No. 05AP-681, 2006-Ohio-646, ¶ 32. Moreover, even if this court were inclined to assess appellant’s credibility, we cannot find fault with the Board’s rejection of appellant’s explanation for answering as he did. As the hearing examiner noted, the question at issue called for appellant’s disclosure of any investigation conducted by his employer at any time after he signed his last application for renewal. The question at issue is direct and straightforward and thus not subject to interpretation by appellant. The renewal application made no provision for permitting appellant to determine for himself the nature or scope of the information sought by the Board with regard to investigations conducted by his employer. See Bhama at ¶ 34.  

Upon review of the record, we find that the evidence before the Board demonstrates that when appellant completed the December 2, 2021 license renewal application, he knew that he had been investigated by his employer for workplace infractions since filing his last license renewal application. Nevertheless, he answered “no” to a clear, unambiguous question that sought to ascertain that very information.  

Given this reliable, probative, and substantial evidence, we conclude the common pleas court did not abuse its discretion in finding that appellant intended to mislead or deceive the Board when completing his December 2, 2021 license renewal application.  

The Board won. 

What’s the take home message? 

Try not to be too clever when interpreting the questions on new and renewal applications. Frequently, applications will ask if are you currently being investigated. That is the more relevant question and easier to answer. When in doubt, over-disclose with an explanation. The explanation will be in your words. Is it possible that the Board will ask more questions and slow down the renewal process with a “yes” answer? Yep. But if the Board believes your answer was dishonest (subjective) and inaccurate (objective), it may go nuclear and move to discipline you.  

Interestingly, the lawsuit did not identify how the Board even learned of the FSU investigation. Go figure. 

What do you think?