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Freshour v. Van Boven

Court of Appeals of Texas, Third District, Austin

January 9, 2020

Scott Freshour, Margaret McNeese, Timothy Webb, and Sherif Zaafran, M.D., in their Official Capacities as Officers of the Texas Medical Board, Robert W.Van Boven M.D., D.D.S., Appellants//Cross-Appellant,
v.
Robert W.Van Boven M.D., D.D.S., Amy Swanholm and Christopher Palazola, in their Official Capacities as Officers of the Texas Medical Board Appellee//Cross-Appellees,

          FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY, NO. D-1-GN-17-005957, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          MEMORANDUM OPINION

          CHARI L. KELLY, JUSTICE

         The dispute underlying this appeal arises from a disciplinary proceeding brought by the Texas Medical Board (the Board) against appellee Robert W.Van Boven, M.D., D.D.S. Although the proceeding resulted in a final order that dismissed the complaint against him, Dr. Van Boven filed suit against Scott Freshour, Margaret McNeese, Timothy Webb, Sherif Zaafran, Amy Swanholm, and Christopher Palazola (collectively, the Board Defendants), in their official capacities as officers of the Board, contending that they committed ultra vires acts when reporting the outcome of the proceeding to the National Practitioner Data Bank. The Board Defendants subsequently filed a plea to the jurisdiction asserting that Dr. Van Boven's claims were barred by sovereign immunity, which the court granted as to some of the Board Defendants but denied as to others. This interlocutory appeal and cross-appeal followed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Because we conclude that Dr. Van Boven's claims are barred by sovereign immunity, we reverse that portion of trial court's order denying the plea to jurisdiction and affirm that portion of the order granting the plea to the jurisdiction.

         BACKGROUND

         Administrative Proceedings and Initial Report to the National Practitioner Data Bank

         In 2015, the Texas Medical Board received two separate complaints from patients of Dr. Van Boven alleging that he had engaged in inappropriate conduct while performing a medical examination. Following an expedited hearing, a three-member disciplinary panel from the Board placed a temporary restriction on Dr. Van Boven's license to practice medicine in Texas. See Tex. Occ. Code § 164.059(b) (temporary suspension or restriction of license). The restriction prohibited Dr. Van Boven from treating female patients, and the order imposing the restriction stated that it would "remain in effect until . . . superseded by a subsequent Order of the Board."

         In March 2016, the Board reported the temporary restriction on Dr. Van Boven's license to the National Practitioner Data Bank (NPDB). Authorized by the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-52, and administered by the United States Department of Health and Human Services, the NPDB collects and maintains "information relating to the professional competence and conduct of physicians, dentists, and other health care practitioners."[1] See 45 C.F.R. § 60.1. In part, the Act seeks to prevent "incompetent physicians [from moving] State to State without disclosure or discovery of the physician's previous damaging or incompetent performance." See 42 U.S.C. § 11101(2). In furtherance of this objective, each state medical board is required to report to the NPDB whenever it "revokes or suspends (or otherwise restricts) a physician's license or censures, reprimands, or places on probation a physician, for reasons relating to the physician's professional competence or professional conduct." Id. § 11132; see id. § 11151(2) (defining "Board of Medical Examiners"). Information reported to the NPDB is considered confidential but may be provided, under limited circumstances, to other licensing boards, hospitals, and other healthcare entities. See id. § 11137(a), (b). Published guidance from the NPDB outlines four types of reports that a state medical board, in certain circumstances, should file with the NPDB: (1) an Initial-Adverse-Action Report; (2) a Revision-to-Action Report; (3) a Correction Report; and (4) a Void Report. See id. § 11134 (providing that information reported under Act "shall be reported regularly . . . and in such form and manner as the Secretary prescribes"); see also id. § 11137(c) (providing that "no person or entity . . . shall be held liable with respect to any report made . . . without knowledge of the falsity of the information contained in the report"). In this case, the Board reported the temporary restriction on Dr. Van Boven's license to the NPDB as an Initial-Adverse-Action Report.

         The Board later filed a formal complaint against Dr. Van Boven with the State Office of Administrative Hearings (SOAH), and a four-day hearing on the complaint was held before an administrative law judge (ALJ). See Tex. Occ. Code § 164.005. On September 15, 2017, the ALJ issued a proposal for decision concluding that the Board "failed to prove, by preponderance of the evidence, that Dr. Van Boven [was] subject to sanction." On December 8, 2017, the Board issued a "Final Order" that adopted the ALJ's findings of fact and conclusions of law and stated, "This matter is hereby dismissed. . . . This Order supersedes the Order of Temporary Restriction issued on February 29, 2016, and [Dr. Van Boven's] license to practice medicine in Texas is no longer restricted." See id. § 164.007(a) (providing that after receiving ALJ's findings of fact and conclusions of law, "the board shall dispose of the contested case by issuing a final order based on the [ALJ's] findings of fact and conclusions of law"); see also 22 Tex. Admin. Code § 187.37(a), (b) (Texas Medical Board, Final Decisions and Orders, ).

         Follow-up Report to the NPDB

         At the center of this dispute is the report made by the Board to the NPDB informing it of the Final Order.[2] See 45 C.F.R. § 60.6(b) (providing that entity "which reports information on licensure" "must also report any revision to the action originally reported"). The Board submitted its December 2017 report to the NPDB as a Revision-to-Action Report, and in the report stated:

On December 8, 2017, the Board entered a Final Order regarding [Dr. Van Boven], dismissing the Board staffs complaint. The action was based on the findings of an [ALJ] at [SOAH]. This Order resolves a formal complaint filed at SOAH. The Order supersedes all previous orders.

         The next day Dr. Van Boven informed the Board in writing that he disagreed with its decision to submit a Revisi on-to-Action Report and argued that the Board should have submitted a Void Report instead. In his letter, Dr. Van Boven asserted that he had been completely exonerated by the ALJ's decision and by the Board's subsequent Final Order adopting that decision. Dr. Van Boven reasoned that, as a result of the decision, any record of the underlying disciplinary proceedings against him should be removed from his disclosable NPDB record-including any record of the Board's decision to temporarily restrict his license- which could only be accomplished by the submission of a Void Report.

         The Board responded to Dr. Van Boven's written complaint and informed him it disagreed with his assertion that it should have submitted a Void Report and not a Revision-to-Action Report. The Board explained in a letter to Dr. Van Boven that the NPDB's rules and published guidance require it to submit a Revision-to-Action Report any time it "modifies an adverse action previously reported" to the NPDB and that, in this case, the Board's Final Order modified the previously reported temporary restriction on his license.

         Dr. Van Boven also contacted the NPDB about the Board's failure to submit a Void Report, invoking the NPDB's dispute resolution process. Upon reviewing materials and arguments submitted by the parties, the NPDB notified the Board that "there is a field in the Report that requires a correction." Specifically, the NPDB recommended that the Board reword its description of the action taken and "allow the narrative to reflect the complete record." In short, the NPDB recommended that the Board modify its Revision-to-Action Report to more accurately reflect that the Final Order states that the ALJ found that Board staff had failed to prove the allegations raised by the patients; that the ALJ concluded that the Board staff had failed to prove that Dr. Van Boven was subject to sanctions; and that the Board adopted all of the ALJ's findings of fact and conclusions of law. The NPDB also directed the Board to include in its corrected Report: "The matter regarding Dr. Van Boven was dismissed and the December 8, 2017 Final Order superseded the February 29, 2016 Order of Temporary Restriction and Dr. Van Boven's license to practice medicine in Texas is no longer restricted." The Board subsequently submitted a corrected Revision-to-Action Report, following the NPDB's recommendation.

         In April 2018, the NPDB issued its "Dispute Resolution Decision" based on the Revision-to-Action Report as corrected. In its written decision, the NPDB rejected Dr. Van Boven's argument that the Board had failed to comply with NPDB-reporting requirements when it filed a Revisi on-to-Action Report and not a Void Report. According to the NPDB's decision, a Void Report "is appropriate when an action is overturned or vacated" and effectively acts as a "withdrawal of a report in its entirety." In contrast, when a final action is taken that "modifies an adverse action previously reported to the NPDB," a reporting medical board should file a Revision-to-Action Report. Relying on the language of the Final Order, the NPDB concluded that it "was the intention of the Board to modify the restriction on [Dr. Van Boven's] license, not overturn or vacate the [temporary restriction order] all together," and that "[p]ursuant to the regulations that govern the NPDB, the Board was legally required to file the Revision to Action Report." In reaching this conclusion, the NPDB emphasized that it could not substitute its judgment for that of the Board, that it was the ...


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