News Stream

Board can’t reject hearing examiner’s findings en masse

A state licensing board erred when it rejected a large block of its hearing examiner's findings en masse, without addressing each one individually, a Montana state district court held June 28, overturning a license revocation by the state's medical board.

(Ibsen v. Montana State Board of Medical Examiners)

The board began an investigation of physician Mark Ibsen after a former employee filed a complaint claiming that Ibsen had overprescribed narcotics to his patients. The state’s Department of Labor and Industry eventually suspended Ibsen’s license, but Ibsen appealed the decision to a state district court, arguing that the board made several procedural errors. The case went up to the Montana First Judicial District Court, Lewis and Clark County.

After the conclusion of Ibsen’s hearing process, the board rejected the majority of the presiding hearing examiner’s recommendations on the ground that the examiner was not a doctor and therefore not competent to make the findings he did. This resulted in the striking of 80 of the hearing examiner’s findings without a discussion considering the individual merits of those findings.

Unfortunately for the board, Montana’s Administrative Procedure Act requires that a hearing examiner’s findings be confirmed unless the findings are not supported by evidence. The board, Judge James Reynolds explained, did not have the authority to throw out the examiner’s findings for the sole reason because it would have determined the case differently, and had erred by not considering each of the examiner’s findings individually.

“These deficiencies violate the requirements of the [Act] for the agency to appoint a competent hearing examiner and for proper review of the hearing examiner’s findings,” wrote Judge James Reynolds. “It is analogous to the selection of a jury in a civil case and then when the verdict comes in against a party, that party asking for the selection of another jury. Except in this case, it is even more striking because it is the agency who selected the hearing examiner.”

The board had a duty to appoint a competent hearing examiner and then review that examiner’s findings to determine whether they were supported by evidence but “[t]he Board apparently feels it failed to comply with these requirements because it rejected wholesale several findings made by its hearing examiner on the basis that its selected hearing examiner was not competent to decide the matters before him.”

In addition, during proceedings before the board, one of its members, Mary Anne Guggenheim, took the opportunity to comment on the lack of qualifications of one of Ibsen’s expert witnesses, with the board member saying that she had known the witness for years and that he was not competent to testify on the matters at hand, despite the fact that the witness had been approved by the hearing examiner.

The board member also cited to two letters sent to the board by another doctor. Neither the assertions about the witness nor the letters were admitted into evidence and were unable to be challenged by Ibsen. This, too, violated due process, Judge Reynolds held.

While acknowledging that the board was entitled to rely on its members’ expertise, the judge wrote, “What happened with Dr. Guggenheim’s comments . . . was beyond and different from the use of experience, technical competence, and specialized knowledge” and Ibsen should have afforded the opportunity to rebut those assertions, as required by law