Saturday, January 25, 2014



            In this section ‘Administrative Law’ will refer to both enforcement by administrative agencies and the creation of regulations or administrative rules by administrative agencies.

            Enforcement & Regulation

            Physicians are licensed and regulated primarily by the state in which they practice.  Like a driver’s license, a license to practice medicine is a state-issued document.

            If you are licensed to practice medicine in Texas and you then move to California you cannot legally practice medicine in California until you obtain a California medical license.

            Each state chooses its own laws and regulations governing the practice of medicine.  There are important differences from one state to the next, but for the most part the standards are remarkably similar.

            The state agency regulating physicians will often have a name like the ‘Medical Board’ or the ‘Board of Medical Examiners’, and it will decide cases brought before it to determine your fitness to continue holding a medical license and practice medicine.  The Board of Medicine is part of the executive branch of government.

            A Board of Medicine complaint is an entirely separate action from a malpractice suit.  A malpractice suit is filed with a court, a part of the judicial branch of government, with the aim of recovering damages for an injury that has been alleged by the plaintiff.  A complaint filed with the Board of Medicine is a disciplinary issue aimed at your license and it does not seek financial recovery for your patient.

            Losing in a malpractice suit does not automatically—or even usually—trigger a complaint with the Board of Medicine.

                        Administrative Hearing

            If the Board of Medicine receives a complaint and determines that you may have committed a serious violation it will schedule an administrative hearing.  

       An administrative hearing is sometimes called a quasi-judicial proceeding and it looks deceptively like a trial in an actual court:   There are lawyers presenting evidence and arguing positions and 'judges', or 'hearing examiners' who will decide the merits of the case and render a decision.

This is only an illusion of judicial fairness.  Everyone, including the hearing examiners (judges), works for the Board of Medicine.  The judge and the prosecutor work in the same agency.  The rules of evidence are relaxed and the proceedings are ‘informal’.
The penalties are not informal and they can be very serious. 

Relaxing the rules of evidence and making the proceedings ‘informal’ does not make the operation friendly to physicians, it strips away legal protections developed over centuries in real courts and makes it easier to find against the physician.

            What To Do If Facing an Administrative Hearing

            Facing an administrative hearing before the Board of Medicine (or any regulatory agency) the first thing to do is to hire an attorney who practices before the Board, is familiar with its members and tactics, and has a record of success.

            A competent attorney can do two things: (1) he can give you your best chance of winning at the hearing; and (2) he can protect the record.  It is not uncommon for a person to lose in an administrative hearing and then win on appeal. 

           The appeal from an administrative hearing is to a real court in the judicial branch of government where the judge is not another employee of the Board of Medicine.  However, the judge handling the appeal usually does not hold a new hearing.  He has to rely on the record your attorney has established in the administrative hearing.  During the administrative hearing your attorney will have one eye on winning there, but the other eye on getting as much favorable evidence as he can on the record (hence ‘protecting the record’) so that the judge handling the appeal will have something to work with.

             An actual case serves as an illustration of the process.  In Wisconsin a number of doctors went into the street and joined a political protest.  Their purpose was to give 'sick notes' signed by a physician to protesters who skipped work to attend the rally.  Using the 'sick notes' the protesters then had a medical document they could use to defraud their employer into granting 'sick leave' intended for genuine illness rather than use their vacation time or unpaid leave to attend the rally.  A fair reading of this action could be that the doctors were participating in a financial fraud on employers.

              Two things: never, ever falsify medical records and, second, if you are corrupt or foolish enough to do so, do not do it on television.

      Of course there were consequences.  Doctors who gave protestors sick notes disciplined.

       The damage done to the reputations of these doctors is not limited to this instance of discipline.

        This is a link to the medical licensing application for the State of California.  Note on page 13 of this pdf document that the applicant is asked:

                 "Were you ever disciplined or placed under investigation?'

California Medical License Application

For the rest of their professional careers these doctors will have to answer 'Yes' to that question and provide a full explanation on this application and on applications for renewals and applications for new licenses and insurance.

          If one day one of these doctors ends up in court on any case they can almost count on one of the lawyer's asking, "Have you ever filed a false, fake, dishonest medical report?" 

         Apart from the damage to their own careers, they have also damaged the reputation of the medical community. 

                     The Trifecta

      It is, of course, possible to find yourself facing the works:  (1) Malpractice; (2) Medical Board discipline; (3) Criminal Prosecution.

      That is what happened to a Colorado anesthesiologist when he fell asleep during surgery and the patient under his care ended up with brain damage.

As the linked article below says:

1.  The Colorado Board of Medical Examiners revoked his license.  This is the administrative action.

In a separate action:

2.  The doctor paid a civil settlement to the patient's parents.  This is the malpractice action.

And in a third and separate action:

3.  The doctor was convicted of criminal medical negligence but avoided the more serious charge of manslaughter.  This is the criminal action.

Interestingly, in '2' and '3' which were in actual courts, a jury can decide the issue.  On the other hand, juries are not a part of administrative hearings as in '1' above.  You can get a jury if you are sued for malpractice and if you are charged with a crime, but you do not get a jury when you go to a hearing before the Board of Medical Examiners.

The LA Times covered the story.  Doctor Negligent of Dozing During Ill-Fated Surgery.


      The authority to make law rests with the legislative branch of government, the state legislature and, in the case of the federal government, the Congress.

       The authority to hear and decide cases and interpret law rests with the judicial branch of government, the state and federal courts.

       The authority and responsibility for enforcing the laws rests with the executive branch of government.

        Both state and federal legislatures have created administrative agencies for the executive to carry out the implementation and enforcement of laws.  The agencies are part of the executive branch of government.

         We have seen above how executive agencies have been granted some degree of quasi-judicial authority in that they can establish tribunals for hearing and deciding cases that fall within their jurisdiction.  Similarly, the administrative agencies have also been granted specific rule-making authority consistent with their specific responsibilities.

          For example, the Federal Aviation Administration (FAA) has been granted the authority to make rules governing aviation licensing and safety.

          Granting administrative agencies rule making authority makes sense because Congress has neither the time, expertise, or competence to address the fine-grained issues related to aviation or any one of scores of other fields controlled be executive agencies.

           The authority for an agency to make a regulation is tied to the law of the legislature that created the agency.  Sometimes an agency will overreach and adopt a regulation that exceeds its authority.  The two cases in the following posts [Hicks v. Arkansas Board of Medicine is required reading] are examples of regulations being struck down because the administrative agency exceeded its authority.

            The volume of administrative regulations can be staggering.  This image shows the Affordable Care Act [itself a notoriously long piece of legislation] next to the administrative regulations created under the authority of the Act.

      Before the federal administrative agency, Health and Human Services (HHS) is finished writing regulations they will need to raise the ceiling in this room.

      Businesses and individuals are expected to comply with the Affordable Care Act (on the chair) and the towering stack of regulations adopted to implement it.

       The HIPAA Privacy Rule is another example of an administrative regulation.  When Congress passed the Health Insurance Portability and Accountability Act of 1996 it had considered later going back to amend the law to include privacy rules but, in default of that, the HHS was required to create privacy standards.  The HIPAA Privacy Rule is the result promulgated by HHS as an administrative regulation is the result.

         Before HIPAA, common law, case law, and state statutes had already produced a robust legal protection for patient privacy that included compensation for a patient whose privacy and confidentiality were violated by his physician (or those working for him) as well as disciplinary action against the physician brought by the medical board.  By contrast, HIPAA has mostly encumbered physicians with burdensome paperwork and, in some respects, it has actually reduced the scope of patient privacy.

          HIPAA expressly does not create a cause of action (right to sue) for the patient so though one can still sue under state law, no right to sue exists under HIPAA.  Instead, HIPAA is simply punitive, threatening fines and, possibly, criminal prosecution against the physician who has failed to comply with the privacy rules.  Fines go to the government, not to the individual whose privacy has been violated.  Obamacare appears to have further reduced patient privacy protection because the 'confidential' electronic patient records can be accessed for purposes of law enforcement or tax collection.  Finally, since the HIPAA Privacy Rule is an administrative regulation rather than an actual law passed by Congress, it can be amended without returning to Congress for approval.

          Lately there has been discussion of letting the government access mental health records for the purpose of creating a registry of individuals who can be barred from purchasing weapons.  Medcity News notes HIPAA rule change seeks more mental health data for background checks on gun buyers.

         Whether you approve of the measure or not, you should worry about the precedent it sets.  What else might HHS decide to access in personal health records, and with whom will they share that information, and for what purpose?

               Hierarchy of Administrative Regulations and other law

          In the hierarchy of laws, administrative regulations are at the bottom.  If they do not comply with legislative acts they can be voided [see the Hicks case in the next post].  State legislative acts must comply with the state constitution or be voided.  All laws must comply with the United States Constitution or be voided.

          Just finding the administrative regulations you are expected to follow can be difficult.  Generally, for federal regulations one turns to the Code of Federal Regulations (CFR) (or the Federal Register) and for state regulations one must go to something like the California Code of Regulations or its counterpart in other states.

        The danger for physicians and, indeed, any other citizen lies in the sheer gigantic mass of ever-changing state and federal regulations which expose one to the risk of innocently violating the law and facing fines or prison.   The case of a prominent surgeon who was sent to prison for a coding error in an operative report should serve as a warning.


 The Crisis of the administrative state, posted by the influential Powerline Blog run by lawyers, is worth reading to gain a sense of the risks faced by an ever expanding administrative government.

The New York Times has this article on civil forfeiture of property.

So where are the limits to arbitrary administrative action?  Venezuela has some ideas, 


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Federal agencies (EPA, FDA, HHS, NIH, etc.) are an extension of Presidential powers, the executive branch of government.  
Legislative authority belongs with Congress.  
Judicial matters belong with the judiciary.  
If all of the federal agencies were abolished, the President would still have all of his executive powers granted by law, the Constitution.  

But what if the President went beyond his legal authority and skipped Congress to make and enforce laws on his own?  What if he issued fines and seized property? What if he sat in judgment on his own issues in a 'quasi-judicial' proceeding without a jury and without a truly independent judge? 

What if state and municipal executives copied this model and ruled without their legislative and judicial branches of government?

The answer is that that is essentially what 'administrative law' has become with the executive acting through government agencies.  
And it may not be legal.
SEE:  Is Administrative Law Unlawful by Philip Hamburger.


The Supreme Court decision in the Hobby Lobby case and the recent victory of the Ave Maria School of Law in district court are welcome victories in a larger battle for the rule of law.

In each case, established constitutional law and statutory law beat down a form of regulation promulgated by unelected, largely unknown and seemingly unaccountable bureaucrats issuing diktats from offices hidden in the depths of massive government agencies, the habitat of administrative law.

Many lawyers and scholars are concerned about what can almost be called an infection of every part of American society with the rampant growth of administrative regulations that are often unknown to the average citizen.  The regulations are frequently confusing even to the government bureaucrats administering them and all too frequently they create expensive traps for the unwary.

With the almost geometric growth of administrative law, its dangers are becoming more apparent to the legal community.  Here is why.

Government is force.

That force normally is in the hands of the executive branch of government, including the executive’s administrative agencies.

What controls, guides and tames that force is law.

In some respects, administrative ‘law’ puts the executive beyond the normal restraints of actual law and creates executive powers that properly belong to the legislature and the judiciary.

The growth of administrative law threatens a return to the rules attributed to Ulpian (170 AD – 223 AD) the Roman legal expert who served three emperors: 

Quod principi placuit legis habet vigorem. – What pleases the prince (executive) has the force of law. 

And a corollary that is equally dangerous: 

Princeps legibus solutes est.  The executive is not bound by the law. 

These are rules suitable for Roman emperors and kings, but not for executives in a republic.

Do you think this case is too fanciful?

When President Obama repeatedly deferred politically inconvenient elements of his own law, ACA, (Obamacare) he was acting without any statutory or constitutional authority whatsoever.

There is no law that grants the executive that power.  Just the opposite: the President is affirmatively required to execute the laws of the country and when he evades that responsibility he is exercising a claim to the dispensing power previously claimed by Roman Emperors and English monarchs and repeatedly denied by Anglo/American law.  By setting aside or failing to enforce existing law, including laws he signed into force, he is asserting Ulpian’s princeps legibus solutes est – the executive (President) is not bound by the law. 

In acting with the powers of a Roman emperor or English king rather than the President of the American republican, the President is sowing mass confusion through the legal system and society as a whole.  When finally someone has standing to challenge these lawless acts, the courts can and sometimes will, tear down the façade.

That is what happened when President Obama made ‘recess appointments’ to the NLRB.  Normally those appointments must be approved by the Senate but some of those he chose were so politically toxic that they probably would not have been approved even by a Senate controlled by his own party under existing Senate rules.  When the Senate was taking a break, but not actually in recess, the President chose to make ‘recess appointments’ of the same contenders.  Senate approval can be avoided for a short time when the Senate is actually in recess.  The appointments were challenged and the Supreme Court based its decision on the fact that Congress is an independent branch of government.  Congress says when it is in recess, not the President.  The appointments were voided and every decision made by that NLRB panel during the time the issue worked its way up to the Court were cast into shadow.  Massive legal confusion.

Congress did not create the so-called ‘contraceptive mandate’ when it passed Obamacare.  That mandate was created by an executive agency in the executive (presidential) branch of government and it flew in the face of both Constitutional law and statutory law passed during the Clinton administration.  After years of confusion, litigation, and enormous expense, the Supreme Court finally struck it down in the Hobby Lobby case.  Again, arbitrary administrative rules going beyond the legal authority of the executive sow legal chaos. 

The IRS, another executive agency, adopted a rule that allowed it to regulate private tax preparers, a rule that could potentially turn your own tax preparer into an adjunct IRS agent.  In February, 2014, the D.C. Court of Appeals, somewhat appalled, unanimously struck down the IRS rule declaring the IRS had no statutory authority to enact it. 
In Sackett v. Environmental Protection Agency the Supreme Court swept aside a Byzantine (Roman legalism again) set of EPA procedures that would effectively impoverish the family before it could ever be allowed into a real court.  The facts of the case are so shocking that the federal agency appears more a creature of the Stalinist Soviet Union than anything that would be permitted on American soil. 

The Obama administration’s legal overreach has been so egregious that it has lost more than 20 times before the United States Supreme Court, a Court whose members include Obama appointees.

As Senator Ted Cruz, a Harvard Law graduate has observed:

“When President Obama’s own Supreme Court nominees join their colleagues in unanimously rejecting the administration’s call for broader federal power nine times in 18 months, the inescapable conclusion is that the Obama administration’s view of federal power knows virtually no bounds.”

Senator Cruz also noted that “if the Department of Justice had won these cases, the federal government would be able to electronically track all of our movements, fine us without a fair hearing, dictate who churches choose as ministers, displace state laws based on the president’s whims, bring debilitating lawsuits against individuals based on events that occurred years ago, and destroy a person’s private property without just compensation.”

Even when operating within normal bounds, Administrative law is promulgated and enforced by the executive.  Quasi-judicial hearings held before ‘administrative law judges’ mean that the executive also ‘judges’ its own decisions.  A party appearing before an administrative law judge should be aware of several important facts.  In the hearing the attorney presenting the case against him works for the executive branch of government.  The rules are the agency’s rules.  The ‘judge’ is an employee of the agency prosecuting the case.  There is no truly independent judge of the case in these hearings as there is when one appears before a real court.  Basically, if you appear before an administrative law judge everyone in the room except for you works for the agency that has issued a complaint (and perhaps a fine) against you.

If you finally appeal an administrative decision against you (as for example an unfavorable decision by the Board of Medicine) you do not get a new trial.   The case will be reviewed by an actual judge who is a part of the judicial branch of government but he will only review the record that was created in the administrative hearing.  You cannot introduce new evidence.  And throughout the entire process, you will never see a jury.

The dangers are not limited to fines or loss of license.  The statues that created some of these executive agencies left too much room for criminal penalties. 

Consider this: 

“Mr. Norris ended up spending almost two years in prison because he didn’t have the proper paperwork for some of the many orchids he imported. The orchids were all legal - but Mr. Norris and the overseas shippers who had packaged the flowers had failed to properly navigate the many, often irrational, paperwork requirements the U.S. imposed when it implemented an arcane international treaty’s new restrictions on trade in flowers and other flora.”  (Emphasis mine).

What this victim of federal administrative law ran afoul of was failing somehow to keep up with administrative paperwork imposed on a perfectly legal activity. 

And consider this: 

Dr. John Natale was sent to prison for errors in operative reports that did not increase his billing income. The errors were alleged to relate to how he incorrectly coded (more administrative regulations) for surgery.  During his trial he was not permitted to introduce a government study that showed that close to 50% of the surgeons who billed Medicare for these procedures made errors in their reports. 


EPA threatens to fine a man $75k per day because of a homemade pond on his property.


Feed a whale and go to prison.

The alarming tendency for administrative law and executive discretion to drag us back ages to the autocratic standard that holds that ‘What pleases the prince (executive) has the force of law’ and that ‘The executive is not bound by the law’ has prompted scholars to re-examine the entire legal basis for administrative law as it now exists.  One of the most thought provoking and recent texts on the subject is Is Administrative Law Unlawful by Philip Hamburger.

The influential Powerline Blog has a post on this issue, “The Crisis of The Administrative State”. 

Also see The Liberty Law post, “Administrative Adjudication: Even Worse Than it Looks”.

The History and Danger of Administrative Law, Hamburger

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