Kifle-Thompson v. Bd. of Chiropractic
Examiners
Filed 7/20/12 Kifle-Thompson v. Bd. of Chiropractic
Examiners CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
ASTER
KIFLE-THOMPSON,
Plaintiff and Appellant,
v.
BOARD OF
CHIROPRACTIC EXAMINERS,
Defendant and Respondent.
A130819
(Alameda County Super. Ct.
No. RG-08-408981)
In
August 2008 the Board of Chiropractic Examiners (Board) issued a decision
revoking Aster Kifle-Thompson’s chiropractic license. Kifle-Thompson sought judicial review by
petition for writ of administrative
mandate, and now appeals the trial court’s denial of her petition. She contends the Board’s findings are not
supported by the evidence, the Board
exceeded its jurisdiction and failed to give her a fair hearing, and improperly
imposed the disciplinary measure of license revocation.
We
conclude the challenged findings are supported by substantial evidence, and
find no merit in Kifle-Thompson’s other claims of error. We affirm the order denying her petition.
Background
In
April 2007, the Acting Executive Director of the Board brought before the Board
a second amended accusation (the accusation) against licensed chiropractor
Kifle-Thompson, seeking revocation or suspension of her license in accordance
with section 10, subdivision (b), of the Chiropractic Act and the
administrative adjudication provisions for formal hearing set out in the
Administrative Procedure Act (APA).
name="_ftnref1" title="">[1] (See Gov. Code, §§ 11501, subd. (a),
11503.) This accusation charged
Kifle-Thompson with unprofessional conduct within the meaning of California
Code of Regulations, title 16, section 317, subdivisions (e), (k), (
317).
More
specifically, the accusation alleged Kifle-Thompson was the wife of former
licensed chiropractor Steven Thompson, and she had been employed at
chiropractic clinics he had owned and operated in
County. In 1997 Thompson was
convicted of seven misdemeanor violations of Insurance Code section 1871.4, subdivision
(a)(2) (presentation of false or fraudulent claim for workers’ compensation),
and in 2000 the Board had revoked his chiropractic license based on evidence of
insurance fraud relating to his conviction.
Kifle-Thompson allegedly, and in connection with Thompson, owned,
managed, and controlled a number of business entities described collectively as
the “Thompson affiliated clinics.”
The
accusation set out 35 separate “causes” or allegations of unprofessional
conduct. These instances of unprofessional
conduct arose from the creation by Thompson and Kifle-Thompson of several sham
professional medical corporations—each of which was ostensibly owned and
directed by a licensed physician, but was in fact effectively owned, managed,
and controlled by “management” corporations created and operated by Thompson
and Kifle-Thompson.
title="">[3] Thompson and Kifle-Thompson, through these
management corporations, professional medical corporations, and affiliated
chiropractic clinics, presented to the public, insurers, and other third
parties the appearance that they were
properly constituted to provide both medical and chiropractic services, and
engaged in a scheme to submit fraudulent and excessive claims for the payment
of workers’ compensation and other health benefits.
The
accusation noted that these same activities had resulted in an action for civil
penalties instituted in 2003 in Monterey County against Thompson,
Kifle-Thompson, and the corporations they had formed. The trial court in that case found these
defendants had violated Insurance Code section 1871.7, subdivision (b), by
submitting fraudulent claims for compensation proscribed by Penal Code section
550, and imposed civil penalties against them in the total amount of
$479,115.29. The Sixth District Court of
Appeal upheld this judgment in 2006.
The accusation in this matter
against Kifle-Thompson was tried by an administrative law judge (ALJ) in
Alameda County. The ALJ during 15 days
of hearings over six months in 2007, heard testimony and accepted numerous
exhibits submitted by both the Board and Kifle-Thompson. (See Gov. Code, §§ 11502, subd. (a), 11506,
subd. (c), 11508, subd. (a), 11512, subd. (a), 11517, subd. (a).) On December 31, 2007, the ALJ issued her
proposed decision in favor of Kifle-Thompson.
(See Gov. Code, § 11517, subd. (c)(1).)
In April 2008 the Board issued a
notice of its nonadoption of the ALJ’s proposed decision. (See Gov. Code, § 11517, subd.
(c)(2)(E).) Two months later the Board
set a date for submitting written argument in the matter. (See Gov. Code, § 11517, subd.
(c)(2)(E)(ii).) Kifle-Thompson submitted
a written argument to the Board dated July 7, 2008. The Board, after review of the transcripts of
the ALJ’s hearing and the exhibits presented to the ALJ, and consideration of
the parties’ written arguments, made its final decision after nonadoption of
the proposed decision; it sustained a number of the accusation’s 35 allegations
of unprofessional conduct. On August 5,
2008, the Board sent Kifle-Thompson a copy of this final decision, effective
September 4, together with notice of its disciplinary action revoking her
license as of that date. (See Gov. Code,
§ 11518.)
On September 11, 2008,
Kifle-Thompson filed a petition for writ of administrative mandate, contending
essentially that the Board had exceeded its jurisdiction, failed to provide a
fair trial, and had abused its discretion in that its decision was not
supported by the evidence. (See Code
Civ. Proc., § 1094.5, subd. (b).) In an
order dated August 18, 2010, the trial court denied the petition based on an
(c).) This appeal followed.
Discussion
administrative mandate is available “for the purpose of inquiring into the validity of any final
administrative order or decision made as the result of a proceeding in which by
law a hearing is required to be given, evidence is required to be taken, and
discretion in the determination of facts is vested in the inferior tribunal
. . . .” (Code Civ.
Proc., § 1094.5, subd. (a).) The trial
court’s inquiry in such a case “extend[s] to the questions whether the
respondent has proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of
discretion.” (Code Civ. Proc., § 1094.5,
subd. (b).) Abuse of discretion is
established if the respondent has not proceeded in the manner required by law,
the order or decision is not supported by the findings, or the findings are not
supported by the evidence. (Code Civ.
Proc., § 1094.5, subd. (b).)
When it is
claimed the findings are not supported by the evidence, and the trial court, as
here, is authorized by law to exercise its independent judgment on the
evidence, “abuse of discretion is established if the court determines that the
findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c).) In such a case our review on appeal is
limited. We will sustain the trial
court’s findings if they are supported by substantial evidence. (Kazensky v. City of
Merced
(1998) 65 Cal.App.4th 44, 52; see also Moran v. Board of Medical
Examiners (1984) 32 Cal.2d 301, 308–309.) In reviewing the evidence, we “resolve all
conflicts in favor of the party prevailing in the superior court and must give
that party the benefit of every reasonable inference in support of the
judgment.” (Kazensky,
supra, at p. 52.)
Implicit in
the foregoing standard of review is the trial court’s authority, when
conducting an independent review, to reweigh the
evidence and make its own findings. (
Cal.App.4th 996, 1000.) As noted above,
the trial court in this case simply denied Kifle-Thompson’s petition,
essentially rejecting her contention that the Board’s findings were not
supported by the evidence. In doing so,
the trial court effectively adopted the Board’s findings, and hence it is
Board’s findings we must examine to determine whether they are supported by
substantial evidence.
Finally, we
review independently Kifle-Thompson’s other claims, that the Board exceeded its
jurisdiction or failed to afford a fair trial.
(See TWC Storage, LLC v. State Water Resources
Control Bd.
(2010) 185 Cal.App.4th 291, 296.)
The
Board’s final decision included the following general findings. The Board granted Kifle-Thompson a
chiropractic license in 1993, after she received a Doctor of Chiropractic (DC)
degree that year. She began working for
Thompson in his chiropractic clinic in Salinas later that year. They married the following year. In August 1994 Kifle-Thompson opened her own
chiropractic clinic in Seaside, using the same name—Clinica Quiropractica
Guadalupe (CQG)—as that used by Thompson for his clinic in Salinas.
In
1996 both Thompson and Kifle-Thompson attended a seminar involving the creation
of a professional medical corporation authorized to provide both chiropractic
and medical services—commonly termed an “MD-DC corporation.” (See Corp. Code, § 13401.5, subd. (a)(8),
& fn. 3, ante.) Soon afterward Thompson incorporated an MD-DC
corporation called the Peninsula Medical Group (PMG).
Thompson
arranged for Dr. Charles Salzberg, a physician with a full-time practice in
Hawaii but licensed to practice in both Hawaii and California, to be the
physician “owner” of PMG. Under this
arrangement, Salzberg was PMG’s president, director, and sole shareholder of
record, while Thompson acted as PMG’s secretary. However, the documents drafted by Thompson
and signed by Salzberg included one giving Thompson all banking authority for
PMG, as the sole signatory for its bank accounts. Another document, signed by Salzberg and
undated, tendered his resignation as president and director, which Salzberg
understood to allow Thompson to terminate their relationship at any time. Thompson, in turn, signed a document in which
PMG agreed to indemnify Salzberg for any losses or liabilities resulting from
his status as sole shareholder of record.
Salzberg further signed a consulting agreement providing that PMG would
pay him a monthly consulting fee of $250 in return for his “periodic” review of
and submission of recommendations concerning PMG’s business policies,
procedures, and administration.
By
this arrangement Dr. Salzberg effectively agreed to act as PMG’s “absentee
owner.” He understood that he had no
actual role either in PMG’s operations or its profit distribution; these would
be controlled by Thompson through a management corporation. Additionally, Salzberg’s oversight of the
professional services provided by PMG was minimal—he saw patients at PMG only
twice, in the course of visits he made in March and May of 1998, and otherwise
merely discussed with Thompson the prospect of hiring other physicians. While he was “owner” of PMG, Salzberg never
received any compensation other than his monthly consulting fee and payment for
the medical services he provided in March and May of 1998.
Thompson
became corporate secretary of Practice Management Systems (PMS) soon after its
incorporation in Nevada in November 1996.
During the period of November 1997 to November 2002, PMS corporate
filings showed that Thompson acted as president, treasurer, and director, while
Kifle-Thompson acted as secretary.
PMG
began operating at the site of Thompson’s clinic in Seaside and
Kifle-Thompson’s clinic in Salinas in late 1996 or early 1997. PMG began an arrangement with PMS for the
latter to provide management services, which included the provision of
nonprofessional employees and payroll and management of the facilities,
equipment and supplies, whereas PMG handled the professional staff
payroll. Thompson and Kifle-Thompson,
acting for PMG, hired physicians to work part-time at the Seaside and Salinas
clinics. One of these, Dr. Julius
Mueller, interviewed with both Thompson and Kifle-Thompson, and was hired for
PMG under a physician consulting contract that paid by the hour.
In
February 1998, Dr. Salzberg signed an application to obtain a fictitious name
permit from the Medical Board of California.
The application stated he was sole shareholder, director, president and
vice-president of PMG, and sought to use PMG, Professional Corporation, as a
fictitious name at the address of Thompson’s clinic in Salinas. The application answered “Yes” to the
question whether the “medical practice [was] wholly owned and entirely controlled by” the application’s
signatory, and listed Salzberg, Mueller, and another physician as the medical
licensees who would be practicing under the fictitious name. It appeared the application had been filled
out by Thompson, and listed him as the contact person; it was unknown whether the
application was ever filed with the Medical Board.
At
some point Kifle-Thompson began acting as PMG’s secretary, at Thompson’s
request. She submitted “paperwork to the
state and probably signed checks on behalf of [PMG].” Thompson signed the salary checks she
received from PMG. The Board found that
Kifle-Thompson’s testimony as to her involvement with PMG—that she “just saws [
testimony given in a 2001 deposition, in which she stated she and Thompson were
responsible for billings, all of which were done at “the Castorville
office.” It further found appellant’s
hearing testimony inconsistent with Thompson’s deposition testimony, in which
he stated “[m]y wife and I handled the billing.”
At
the site of the Seaside and Salinas clinics, patients were given a choice of
seeing a chiropractor or a part-time physician when the latter was scheduled to
work at the clinic. Chiropractic
patients were all seen by PMG, unless they were on Medicare or Medi-Cal, in
which case they would be seen by CQG, which was an authorized provider for
Medicare and Medi-Cal. Although patients
were charged the same by PMG and CQG, Medicare and Medi-Cal reimbursed a lower
amount; Kifle-Thompson sometimes charged CQG patients on a sliding scale, in
some cases only $5.
Dr.
Salzberg resigned from PMG in November 1998, after questions were raised about
PMG’s workers’ compensation billings for employees of Monterey Mushrooms. (See fn. 4, ante.) He testified he
“regret[ed] his involvement with PMG” as an absentee owner with no control over
clinic operations. PMG ceased to provide
professional services on January 1, 1999.
On that date Kifle-Thompson signed a document assigning all of PMG’s
patient files, contracts for professional licenses, service agreements,
equipment leases, and outstanding accounts receivable to Integrated Family
Medical Group (IFMG). The document
identified Kifle-Thompson as secretary of both IFMG and PMG.
Kifle-Thompson
had incorporated IFMG, a professional corporation, in September 1997. Its address was the same as that of her
clinic in Seaside, and a Dr. Joseph Greenspan, a California licensed physician
residing in Texas, was listed as its president, director, and sole
shareholder. Kifle-Thompson was listed
as IFMG’s secretary. Greenspan had
signed a document giving Kifle-Thompson all banking authority as sole signatory
on banking accounts, an undated document resigning his positions as president
and director, and a consulting agreement under which IFMG was to pay him a
consulting fee of $3,000 annually. A
statement filed with the Secretary of State in September 1998 listed Thompson
as IFMG’s chief executive officer, with Greenspan as director. Kifle-Thompson was listed as chief financial
officer and secretary of IFMG.
Kifle-Thompson stated she did not know how Greenspan came to be owner of
IFMG, but believed it was Thompson who first communicated with him.
After
IFMG replaced PMG in January 1999, Kifle-Thompson continued operations at her
Seaside clinic as before. PMS provided
the same management services to IFMG as it had to PMG. Dr. Mueller was medical director of IFMG and
continued seeing patients on a part-time basis.
Kifle-Thompson oversaw the clinic’s day-to-day operations. Dr. Greenspan, according to her, appeared on
two occasions to review patient records and Mueller’s credentials. IFMG operated only a few months before
Greenspan died—Kifle-Thompson heard from Thompson that attorneys for Monterey
Mushrooms had contacted Greenspan, who afterwards said he “wanted to get out”
of IFMG. Greenspan reportedly died from
suicide.
In
August 1999 Thompson sold his CQG chiropractic clinic in Salinas to another
chiropractor. The purchase agreement
involved both PMS and PMG, and Kifle-Thompson signed a number of the
agreements.
In
2001, Kifle-Thompson incorporated Seaside Medical Clinic (SMC), a professional
corporation, which began operating at the address of her Seaside clinic, in
essentially the same manner that PMG and IFMG had operated. Initially, Dr. Mueller owned 51 percent of
SMC’s shares, with Kifle-Thompson owning 49 percent. Later Mueller became sole owner and
president, with Kifle-Thompson acting as SMC’s secretary. In August 2003, Universal Medical Management
(UMM) began providing management services to SMC in the same manner that PMS had
provided such services to PMG and IFMG.
UMM was incorporated in Nevada, and a document filed in that state in
October 2003 listed Thompson as president and director and Kifle-Thompson as
secretary and treasurer for the period of August 2003 to August 2004. Thompson worked at SMC in an administrative
capacity, performing a number of functions not related to patient care.
In
March 2007, Kifle-Thompson closed her clinic in Seaside and both SMC and CQG
ceased operation.
Following
these general findings, the Board’s final decision noted the civil judgment
against Kifle-Thompson, Thompson, PMG, IFMG, PMS, and other defendants, and the
fact that Thompson and Kifle-Thompson had filed for bankruptcy in face of that
judgment. (See fn. 4,
The Board declined to adopt the findings of the civil judgment, because
a higher standard of proof applied in any disciplinary proceeding.
Addressing
the 35 specific allegations of unprofessional conduct against Kifle-Thompson,
the Board found 12 of these allegations were not supported by clear and
convincing evidence. It sustained,
however, the remaining 23 allegations of unprofessional conduct under Section
317, subdivisions (e), (k), (l), (m),
(p), and (q). (See fn. 2,
Kifle-Thompson
had engaged in unprofessional conduct “as an individual and by and through her
capacity as an owner and officer of various entities including [PMG] and [IFMG]
operated ‘sham MD-DC corporations’ with medical doctors as ostensible owners,
that presented to the public as full service medical centers.” In fact, the medical doctors were a series of
“absentee figureheads” who gave no consideration for their ownership interests
and “for the most part had no meaningful role in the direction of patient care
or general clinic operation.”
Kifle-Thompson, based on her role as an owner and officer of PMG and
IFMG, “exercised actual dominion and control over these entities,” in violation
of the law requiring a “medical doctor” control such multi-disciplinary
professional corporations. She and
Thompson “created a sophisticated, formalized and well-concealed strategy that
was formed with the interest of maximizing profits by deceiving patients,
payors, the Workers’ Compensation System, the public[,] and state and federal
government.” The Board found that, while
the idea of this “strategy” may have originated with Thompson, Kifle-Thompson
“was clearly involved in the business arrangement” as an officer of PMG and
IFMG, and she “was involved in the finances” of these corporations and their
“arrangement with PMS,” and had “worked with Thompson to circumvent limitations
on third-party reimbursement.”
Kifle-Thompson
engaged in unprofessional conduct when she conspired with others, including
Thompson and several doctors, to form “sham corporations” for “the sole purpose
of creating a system whereby she and Thompson could defraud the Workers’
Compensation System and insurers.”
Rejecting her testimony to the contrary, the Board found Kifle-Thompson
was an “active participant in this fraudulent scheme,” and was “responsible for
billings and other business transaction[s] related to the fraudulent scheme.”
As
an officer of PMG, Kifle-Thompson participated in specific instances of
fraudulent and misleading “unbundled billings” relating to one patient during
the period between October 1996 and January 1997. These billings were submitted in a manner
designed to circumvent workers’ compensation rules that limit reimbursement to
four procedures or modalities in a single visit, and to prevent the accurate
“cascading” of reimbursement (by which workers’ compensation claims are
reimbursed at 100 percent of the maximum allowable fee for highest valued
procedure or modality, at 75 percent for the next highest, at 50 percent for
the third highest, and at 25 percent for the fourth highest). The Board found it irrelevant, either that
the patient was seen by Thompson and not Kifle-Thompson, or that Kifle-Thompson
was not listed as an owner of PMG, because Thompson and Kifle-Thompson were “de
facto owners”; the physician “owner” received only a nominal payment.
As
an officer of PMG, Kifle-Thompson, together with Thompson, was responsible for
its billings; she participated in a specific instance of “upcoding,” wherein
PMG billed for treatment of a patient in October and December 1998 by using an
improper code in order to obtain reimbursement at a higher rate.
The
Board concluded that, while it had not sustained all 35 allegations, those
which it had sustained were “extremely serious.” Conceding Kifle-Thompson had presented some
evidence in mitigation,
lack of candor, insight, and honesty.”
She “repeatedly testified” she was unable to recall “significant events
such as filing an appeal in the civil case and being served an accusation by
the Board,” and the Board viewed this behavior as “aggravating evidence” it
considered in determining the appropriate disciplinary action. Kifle-Thompson had “conspired with others to
defraud the Workers’ Compensation System by setting up sham medical
corporations,” “to engage in a pattern of insurance fraud” that circumvented
reimbursement limits, and had “shown no remorse or insight whatsoever regarding
her illegal conduct;” the Board concluded the appropriate disciplinary action
was to revoke her chiropractic license.
Substantial Evidence
Kifle-Thompson’s
main contention on appeal is that the Board abused its discretion in that its
decision was not supported by the evidence.
Specifically, she challenges the findings of the Board made in
connection with the 23 allegations of unprofessional conduct that it
sustained. She reasons these findings
show only that she was “somehow involved in the business arrangement, was a
corporate officer, and was involved in the finances” of the medical
corporations and management corporations created by Thompson, but they fail to
establish thereby that she engaged in unprofessional conduct within the meaning
of Section 317, subdivisions (e), (k), (l),
(m), (p), or (q). The challenged
findings further fail to establish why the medical corporations were “sham” or
why the billings made by or on behalf of these corporations were “fraudulent.” Kifle-Thompson asserts these findings fail to
establish that she “did anything” with respect to the specific billings of
patients she never saw or treated. The
findings also fail to establish that the “unbundling” or “upcoding” was illegal
or fraudulent.
We
observe, however, that Kifle-Thompson has not
challenged the general findings made in the Board’s final decision. These findings, summarized above, are
unquestionably supported by the evidence, and provide, in turn, substantial support for the findings Kifle-Thompson
has challenged. The Board reasonably
inferred Kifle-Thompson was indeed “clearly involved” in the billing, finances,
and business arrangements of PMG, IFMG, SMC, and the two management companies. The general conclusions of the Board show the
medical corporations were, in fact, “sham” creations—in violation of state
law—in that they were not actually owned and controlled by physicians. Instead, Thompson and Kifle-Thompson
exercised actual control and de facto ownership. Perhaps most importantly they demonstrate Kifle-Thompson
actually participated in the billing practices of these corporations, and
moreover shared responsibility—as a corporate officer—for these corporations’
billing practices, regardless of whether she treated a particular patient as to
whom billings were made.
In
addition to the facts established by the general, unchallenged findings, there
was extensive testimony at the ALJ hearing, particularly that of expert witness
Dr. Michael Stahl, indicating that Kifle-Thompson and Thompson, through the sham
medical corporations and management corporations, engaged in a pattern or
scheme of fraudulent or excessive billing in violation of the chiropractic
standard of care. This same testimony
supports the challenged findings related to specific instances of “unbundled”
or “upcoded” billing involving particular patients, indicating these billings
contained fraudulent misrepresentations designed to maximize profits by
circumventing reimbursement limits established by the Workers’ Compensation
system and other health plan insurers.
In
short, our review of the administrative record leads us to conclude without
hesitation that the challenged findings are supported by substantial evidence.
Support the Board’s Decision
Besides
attacking the sufficiency of the evidence regarding particular Board findings,
Kifle-Thompson argues the challenged findings fail to satisfy the
requirement—articulated by the Supreme Court as one implicit in Code of Civil
Procedure section 1094.5—that a final administrative decision “set forth
findings to bridge the analytic gap between the raw evidence and ultimate
decision or order.” (
Los Angeles
(1974) 11 Cal.3d 506, 515 (
Board’s conclusions fail to satisfy Government Code section 11425.50,
which details the requirements for a written decision in an administrative
adjudicative proceeding subject to the APA.
Kifle-Thompson suggests the challenged findings are inadequate on these
grounds because they lack “specificity of facts and analysis.”
In
a separate but similar argument, Kifle-Thompson complains that the challenged findings fail to “apply” the stated facts
to the charged violations of Section 317, subdivisions
(e), (k), (l), (m), (p), and (q).
Appellant’s
claims do not address the sufficiency of the evidence to support the challenged
findings, so much as the formal sufficiency of these findings to support the
decision. (See Code Civ. Proc., §
1094.5, subd. (b).) In our view such a
challenge is without merit. The findings
in question are based on the evidence of record and sufficiently state the
factual bases for the Board’s decision.
(Gov. Code, § 11425.50, subds. (a), (c).) Although these findings include restatements
of the charges they sustain, an agency’s statement of factual basis “may be in
the language of, or by reference to, the [accusation].” (Gov. Code, § 11425.50, subd. (b).) Further, it requires no great analytic leap to conclude, from the facts stated, that Kifle-Thompson engaged in
conduct proscribed by Section 317, subdivisions (e), (k), (l), (m), (p), and (q). (See
fn. 2, ante.) As such the challenged findings are adequate
“to bridge the analytic gap between the raw evidence and ultimate
decision or order.” (
Kifle-Thompson
takes the position that the Board exceeded its jurisdiction because the ALJ
ordered dismissal of the proceeding against her. The Board, in her view, had no authority to
“undo” or change that dismissal.
On
the contrary, the Board was well within its jurisdiction to reject the ALJ’s
proposed decision, and render its own decision based “upon the record,
including the transcript . . . with or without taking additional evidence.” (Gov. Code, § 11517, subd. (c)(2)(E).) The ALJ’s order of dismissal was a
entitled by statute to “undo.” Once the
Board determined not to adopt the proposed decision, that decision served no “identifiable
function in the administrative adjudication process or, for that matter, in
connection with the judicial review” of that process. (Compton v. Board of Trustees (1975) 49 Cal.App.3d 150, 158.)
Kifle-Thompson
argues the Board also exceeded its jurisdiction because the Workers’
Compensation Appeals Board (WCAB) had already adjudicated claims raised by
insurer or lien-claimants with respect to the billings examined by the
Board. In her view the Board was not
authorized to make contradictory findings or to “undo” the determinations made
by WCAB.
Exclusive
jurisdiction is vested with WCAB with respect to any controversy relating to
the treatment or amounts to be paid for treatment rendered by a physician or
other provider to an employee patient whose employer has accepted liability
under Labor Code section 4600. (
489–490.) But this was not such a
controversy. Rather, the case we review
was a disciplinary proceeding by the
Board to determine whether the billing practices in which Kifle-Thompson
participated constituted unprofessional conduct. In doing so the Board was not bound by, nor
did its findings necessarily contradict, a WCAB adjudication that had previously
determined certain billings submitted by PMG were “not appropriate” in that the
billings were unbundled “in what appears to be an attempt to avoid . . .
cascading,” and that PMG would need to resubmit the billings in an appropriate
manner if it wished to pursue reimbursement as a lien claimant.
Additionally,
Kifle-Thompson alleges the Board exceeded its jurisdiction by improperly
adjudicating both the validity of the administrative functions in which she
engaged on behalf of professional medical corporations, and the validity of
billings made by those corporations for services provided by physicians. She reasons such issues were properly within
the jurisdiction of the Medical Board of California.
This
objection, too, lacks merit.
Kifle-Thompson was a licensed chiropractor—not a physician—when she
participated in the billing and other administrative functions of the medical
corporations PMG, IFMG, and SMC. Whether
the physicians who ostensibly owned or were employed by these corporations
engaged in unprofessional conduct is indeed a matter within the Medical Board
of California’s jurisdiction, but Kifle-Thompson’s conduct in connection with
these corporations was squarely within the jurisdiction of the Board of
Chiropractic Examiners.
Kifle-Thompson
argues the Board acted improperly because it did not afford her a fair hearing
in accordance with due process. She reasons most of the Board members were
“solo practitioner chiropractors,” who had a “financial” or “vested” interest
in dissuading other chiropractors from participating in MD-DC corporations
despite the fact that such corporations are permitted by state law (see fn. 3,
She suggests such corporations compete with solo chiropractors by
providing a greater scope of services.
The
APA sets out a procedure by which a party to an adjudicative proceeding may
disqualify an ALJ or an agency member—by filing an affidavit specifying the
grounds for disqualification. (Gov.
Code, § 11512, subd. (c).)
Kifle-Thompson does not contend, nor does the record indicate, that she
utilized this procedure to disqualify any of the Board members. Nor does it appear, either from
Kifle-Thompson’s petition or trial brief, that she raised the issue of bias
before the trial court. Under such
circumstances such a claim is generally deemed forfeited on appeal. (
Assurance (1982) 31 Cal.3d 124, 143.)
More importantly, Kifle-Thompson
has not pointed to any part of the record that would provide factual support
for her claim of bias on the part of those Board members who were licensed
chiropractors. In the absence of such
support her claim has no merit.
Kifle-Thompson
additionally contends she did not receive a fair trial before the Board because
it did not properly consider the “adjudicated facts,”
“solely” on written argument provided by the deputy attorney general who
prosecuted the accusation—argument she was not permitted to rebut. The Board then made its decision during a
closed session from which she was excluded.
It is Kifle-Thompson’s position that in doing so, the Board violated
Government Code section 11517, subdivision (c)(2)(E), paragraphs (ii) and (iii).
As
previously discussed, when an ALJ has rendered a proposed decision under the
APA, the agency may, among other options, “[r]eject the proposed decision, and
decide the case upon the record, including the transcript . . . with or without
taking additional evidence.” (Gov. Code,
§ 11517, subd. (c)(2)(E).) In this
event, the agency must, among other requirements, “afford[] the parties the
opportunity to present either oral or written argument before the agency
itself.” (Gov. Code, § 11517, subd. (c)(2)(E)(ii).) The agency’s authority to decide the case
itself “includes authority to decide some but not all issues in the case.” (Gov. Code, § 11517, subd. (c)(2)(E)(iii).)
As
we have noted above, the Board properly issued a notice of
its nonadoption of the ALJ’s proposed decision and subsequently notified the
parties of their opportunity to submit written argument to the Board, in
compliance with Government Code section 11517, subdivision
(c)(2)(E)(ii). Kifle-Thompson, as we have also noted, did submit written argument to the Board. It appears Kifle-Thompson was properly served
with a copy of written argument submitted by the deputy attorney general on
behalf of the Board. Clearly, the Board
decided all the issues in the case, as it was authorized to do under Government
Code section 11517, subdivision (c)(2)(E)(iii).
The Board’s final decision attested it had made its decision “[a]fter
review of the entire administrative record including the transcript, exhibits,
and written argument from both parties.”
We
find nothing in the record to support Kifle-Thompson’s claim that the Board
failed to afford her a fair hearing in compliance with Government Code section
11517.
Kifle-Thompson
claims the Board’s choice of disciplinary action—revocation of her license—was
improper because it was not in accord with its own disciplinary guidelines.
In reaching a
decision on a disciplinary action under the APA, the Board is required to
consider its adopted disciplinary guidelines.
(Cal. Code Regs., tit. 16, § 384.)
Yet the Board is also authorized to deviate from these guidelines
whenever the Board, “in its sole discretion” determines that the deviation is
appropriate under the particular facts of the case. (Ibid.)
As we have noted, the
Board cited to the “aggravating evidence” that it used in determining its
disciplinary action, that is, her conduct during the hearing indicated a “lack
of candor, insight and honesty,” particularly her “repeated[]” inability to recall
“significant events.” In our view this
is a sufficient statement of its reason for deviating from its disciplinary
guidelines,
tit. 16, § 384.)
Further, we note that when, as here,
the trial court has upheld the agency findings of unprofessional conduct, and
its determination is, as we have concluded, supported by substantial evidence,
the determination of appropriate discipline is within the sound discretion of
the agency, and we are not free to substitute our discretion in its place. (Kazensky v. City of Merced, supra, 65 Cal.App.4th 44, 52.)
Disposition
The
order denying Kifle-Thompson’s petition for writ of administrative mandate is
affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Marchiano,
P. J.
__________________________________
Margulies,
J.
name="_ftn1" title="">[1] The Chiropractic Act is an initiative measure
appearing in the appendix to Deering’s Business and Professions Code. The administrative adjudication provisions
for formal hearing of the APA (Gov. Code, § 11340 et seq.) are set out in
Government Code section 11500 et seq.
conduct as: (e) conduct that endangers or is likely to endanger the public
health, welfare, or safety; (k) any act involving moral turpitude, dishonesty,
or corruption; (l) knowingly making
or signing a document relating to the practice of chiropractic that falsely
represents the existence or nonexistence of a state of facts; (m) violating or
attempting to violate, assisting in or abetting the violation, or conspiring to
violate any provision of the Chiropractic Act (Bus. & Prof., § 1000 et
seq.) or the regulations adopted by the Board pursuant to that Act; (p) the use
of advertising relating to chiropractic that violates Business &
Professions Code section 17500; and (q) participation in any act of fraud or
misrepresentation. (Cal. Code Regs.,
tit. 16, § 317.)
