Appealing an Administrative Agency Decision
Submitted by Medical License Defense Lawyer, Jeffrey Hark.
Today we are reviewing a physcian’s appeal of NJ State department/administrative decision. In this case the Board of Medical Examiners (BME), after significant factual record was developed through testimony, affidavits, records admitted, and hearings, rendered a decision revoking a doctor’s license. The doctor appeal the agency decision to an administrative law court and then to the New Jersey Appellate Division.
I am not reviewing the facts of this case and only include the ALJ’s and the BME actual decision in order the discuss the procedural/legal basis used by the appellate division to review the ALJ’s decision and the BME’s decision revoking the doctors license. I also do not intend to review the appellate panel’s review of the facts and what the court relied upon to affirm the ALJ’s and BME’s decision. I am only outlining for the reader in this blog the long standing and well established standard of review which the appellate panel is limited to in or appeals from New Jersey administrative law judges and state administrative agencies.
The concise ruling and standard is as follows:
The BME held that Brigham committed multiple statutory violations when treating not less than 241 patients, which included forty-three Grace patients. Specifically, only as to his Grace patients, the BME found Brigham violated N.J.S.A. 45:1-21(h) by “perform[ing] termination of pregnancy procedures in New Jersey in violation of [the TOP rule].” For all of his patients, the BME found Brigham violated: (1) N.J.S.A. 45:1-21(b) for “two independent bases” of dishonesty, deception, misrepresentation, false promise or false pretense for failing to inform patients of salient facts and for consistent deceptive recordkeeping practices, which the BME merged for penalty purposes; (2) N.J.S.A. 45:1-21(c) by engaging in acts constituting gross negligence; (3) N.J.S.A. 45:1-21(e) by engaging in acts of professional malpractice; (4) N.J.S.A. 45:1-21(f) by engaging in acts constituting “the unlicensed practice of medicine in Maryland[;]” and (5) N.J.S.A. 45:1-21(h) by failing “to maintain patient records consistent with the requirements of N.J.A.C. 13:35-6.5[.]” Thus, the BME “unanimously conclude[d] that no action short of revocation of licensure could adequately redress the violations of law found or adequately protect the public interest.” The BMA also imposed monetary penalties. This appeal followed.
The New Jersey’s Appellate Court’s review of a final administrative decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We “afford a ‘strong presumption of reasonableness’ to an administrative agency’s exercise of its statutorily delegated responsibilities.” Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep’t of Envtl. Prot., 82 N.J. 530, 539 (1980)). Thus, “[w]ithout a ‘clear showing’ that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency’s final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance.” Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009).
Our review of an administrative decision is limited to three questions:
(1) whether the decision is consistent with the agency’s governing law and policy;
(2) whether the decision is supported by substantial evidence in the record; and
(3) whether, in applying the law to the facts, the agency reached a decision that could be viewed as reasonable. Ibid.
Implicit in the scope of our review is a fourth question, whether the agency’s decision offends the State or Federal Constitution. George Harms Const. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).
The burden of proof is on the party challenging the agency’s action. Lavezzi, 219 N.J. at 171.
The Legislature has granted the BME “broad authority” under the Medical Practices Act (MPA), N.J.S.A. 45:9-1 to -27.9, to regulate the practice of medicine in New Jersey, and “to promulgate rules and regulations to protect patients and licensees.” In re License Issued to Zahl, 186 N.J. 341, 352 (2006); N.J.S.A. 45:9-1 and -2. “The Board’s supervision of the medical field is critical to the State’s fulfillment of its ‘paramount obligation to protect the general health of the public.'” Id. at 353 (quoting In re Polk, 90 N.J. 550, 565 (1982)). The BME is “the guardian of the health and well-being of [State] citizens.” Polk, 90 N.J. at 566. Thus, the right of physicians to practice their profession is subordinate to the government’s interest “to assure the health and welfare of the people of the State through the regulation and supervision of the licensed medical profession.” Id. at 565. In tandem with the MPA, the BME has the power to discipline and regulate the license of any physician in New Jersey under the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-14 to -27. N.J.S.A. 45:1-21; Del Tufo v. J.N., 268 N.J. Super. 291, 296 (App. Div. 1993). The BME may revoke a physician’s license under the UEA if the physician:
- Has engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense;
- Has engaged in gross negligence, gross malpractice or gross incompetence which damaged or endangered the life, health, welfare, safety or property of any person;
- Has engaged in repeated acts of negligence, malpractice or incompetence;
- Has engaged in professional or occupational misconduct as may be determined by the board;
- Has been convicted of, or engaged in acts constituting, any crime or offense involving moral turpitude or relating adversely to the activity regulated by the board. For the purpose of this subsection a judgment of conviction or a plea of guilty, non vult, nolo contendere or any other such disposition of alleged criminal activity shall be deemed a conviction;
- Has violated or failed to comply with the provisions of any act or regulation administered by the board[.]
“The remedial nature of the UEA suggests its liberal interpretation.” In re Kim, 403 N.J. Super. 378, 386 (App. Div. 2008) (citing N.J.S.A. 45:1-14). Importantly, “the Legislature did not require a finding of patient harm before authorizing license revocation[ under] N.J.S.A. 45:1-21[.]” Zahl, 186 N.J. at 355 (finding physician’s deceitful and fraudulent conduct warranted license revocation). These violations, however, must be proven by a preponderance of the evidence in a medical disciplinary hearing. Polk, 90 N.J. at 560.
We afford substantial deference to a professional board’s disciplinary action and choice of sanction because of the board’s specific expertise, special knowledge, and statutory obligation to regulate the licensed profession. Zahl, 186 N.J. at 353. For statutory disciplinary proceedings, “[t]he issues, the evidence and the standards are thoroughly understood by the parties involved. They relate to a profession, a specialty in which the parties, the witnesses and the members of the tribunals are all uniquely qualified and share a common expertise.” Polk, 90 N.J. at 567-68. Accordingly, our Supreme Court repeatedly has admonished that reviewing “courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision.” Stallworth, 208 N.J. at 191 (quoting In re Carter, 191 N.J. 474, 486 (2007)). Nevertheless, we are “in no way bound by the agency’s interpretation of a statute or its determination of a strictly legal issue.” Ardan v. Bd. of Review, 231 N.J. 589, 604 (2018) (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). We consider those issues de novo. L.A. v. Bd. of Educ. of Trenton, 221 N.J. 192, 204 (2015). Moreover, “[w]hen resolution of a legal question turns on factual issues within the special province of an administrative agency, those mixed questions of law and fact are to be resolved based on the agency’s fact finding.” Campbell v. N.J. Racing Comm’n, 169 N.J. 579, 588 (2001).