Raymond Long v. HHS ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-5358 September Term, 2021
FILED ON: DECEMBER 3, 2021
RAYMOND A. LONG, M.D.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00458)
Before: ROGERS and WILKINS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District
of Columbia and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j). The
court has afforded the issues full consideration and has determined that they do not warrant a
published opinion. See D.C. Cir. R. 36(d). It is
ORDERED AND ADJUDGED that the judgment of the United States District Court for the
District of Columbia be affirmed.
I.
The Health Care Quality Improvement Act, 42 U.S.C. §§ 11101–52, implements mandatory
peer review and reporting requirements for health care entities, id. §§ 11131–33. One component
of the Act’s review-and-report scheme requires health care entities to file an “adverse action
report” with the U.S. Department of Health and Human Services (“HHS”) whenever the entity
“accepts the surrender of clinical privileges of a physician . . . while the physician is under an
investigation by the entity relating to possible incompetence or improper professional conduct.”
Id. § 11133(a)(1)(B). Adverse action reports are published on HHS’s National Practitioner Data
Bank (“NPDB”). 45 C.F.R. § 60.12(a)(1).
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A physician who is the subject of an adverse action report may request that HHS review “the
accuracy of the reported information” included in the challenged report. Id. § 60.21(c)(1); see also
42 U.S.C. § 11136(2). HHS’s review is limited to “accuracy,” and does “not consider the merits
or appropriateness of the action or the due process that the” reported physician received. 45 C.F.R.
§ 60.21(c)(1). HHS may revise or void a report that it determines to contain inaccurate information
or to address an unreportable adverse action. Id. § 60.21(c)(2)(ii), (iv).
II.
Appellant Raymond A. Long is an orthopedic surgeon who held clinical privileges at
Northwestern Medical Center in St. Albans, Vermont (the “Hospital” or “NMC”) beginning in
September 2001. In late 2003, he performed five shoulder surgeries at the Hospital that resulted
in post-operative infections. Dr. Long believed that his patients had been intentionally infected by
an unknown Hospital agent in retaliation for his plan to provide MRI services at his own off-site
clinic in competition with the Hospital. Dr. Long implemented a series of corrective steps in his
surgical procedures designed to prevent future infections. These steps conflicted with Hospital
protocol.
Responding to concerns raised by Hospital staff about Dr. Long’s conduct, the Hospital
convened an Ad Hoc Committee to investigate. The Committee unanimously concluded that
“ample evidence” showed Long had acted “in a confrontational manner,” caused disruptions that
“undermine[d] the appropriate team approach to patient care,” and inappropriately “caus[ed] staff
to deviate from established [operating room] protocol.” Ltr. of Joseph Salomone, M.D., Chair,
NMC Surgical Serv. Ad Hoc Comm., to James Duncan, M.D., Chair, NMC Med. Exec. Comm.
(Mar. 16, 2004) 1. Based on these findings and additional review, the Hospital’s Medical
Executive Committee recommended that Dr. Long (1) “undergo a psychiatric evaluation” and (2)
refrain from “perform[ing] any surgical procedures” pending completion of the Committee’s
review, and that (3) his charts and incidents of post-operative infection at the Hospital be subject
to “external quality assurance review.” Mem. to Steve Stata, Chair, NMC Bd. of Dirs., from NMC
Med. Exec. Comm. (Apr. 5, 2004) 1–2.
The Hospital informed Dr. Long of these recommendations and notified him that his failure
to comply would “result in a summary suspension” of his clinical privileges. Ltr. of Peter
Hofstetter, NMC CEO, to Dr. Long (Apr. 6, 2004) 1. Dr. Long was advised of his opportunity to
request a hearing. The following day, Dr. Long resigned from the Hospital, effective immediately.
Pursuant to the Act, the Hospital filed an adverse action report with the NPDB stating Dr. Long
had “voluntar[ily] surrender[ed]” his “clinical privilege(s), while under, or to avoid, investigation
relating to professional competence or conduct.” NPDB Adv. Actn. Rep’t, Long (Apr. 30, 2004)
2. This incident, in the Hospital’s view, was a reportable event under the Act as an acceptance of
Dr. Long’s “surrender of clinical privilege(s)” while he was under an investigation related to his
professional conduct. Id.; see 42 U.S.C. § 11133(a)(1)(B).
More than seven years later, in 2011, Dr. Long requested that HHS void the adverse action
report as his resignation was not a reportable event because it was not tendered during an
investigation into his professional conduct. After reviewing Long’s submission and
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documentation supplied by the Hospital, HHS denied Dr. Long’s request, concluding “ample
evidence” showed that the Hospital was investigating Dr. Long’s conduct when he resigned. Ltr.
of Judy Rodgers, M.H.A., Sen’r Adv’r, Div. of Prac. Data Banks, HHS, to Dr. Long (Feb. 27,
2012) 4.
In February 2018, Dr. Long filed suit, seeking review of HHS’s 2012 denial under the
Administrative Procedure Act. In July 2018, he asked HHS to reconsider its decision, and
submitted new evidence. As relevant, Dr. Long argued that the Hospital’s investigation of him
was a “sham” peer review meant to penalize him for attempting to compete with the Hospital for
MRI services. Req. for Recons. (July 9, 2018) 77–78. He further argued before HHS and in the
district court that the Hospital “deliberately infected [his] patients by contaminating his surgical
irrigation solutions” to create a pretext for an investigation. Appellant’s Br. 10. In Dr. Long’s
view, the investigation therefore was unrelated to his professional conduct or competence, and his
resignation was not a reportable event. The district court stayed proceedings pending HHS’s
reconsideration decision.
In September 2018, HHS denied Long’s reconsideration request, concluding the Hospital’s
investigation was ongoing when Dr. Long resigned and Dr. Long’s argument the investigation was
a “sham” was outside the scope of HHS’s “accuracy” review. HHS Denial of Recons. (Sept. 26,
2018) 7. Even so, HHS considered the new information and found that his evidence “did not
establish that the peer review was a sham,” and that “there was no basis to conclude that the report
should not have been filed or that for [HHS’s] purposes it was not accurate, complete, timely or
relevant.” Id. at 8.
The parties filed cross-motions for summary judgment once the district court lifted the stay.
Several months later, Dr. Long filed a motion to supplement the administrative record with a
declaration by a purported expert in peer review activity. The district court granted HHS’s motion
for summary judgment and denied Long’s motions for summary judgment and to introduce extra-
record evidence. Long v. HHS, 422 F. Supp. 3d 143, 157 (D.D.C. 2019). The court concluded
that HHS was not arbitrary and capricious in determining that the adverse action report accurately
stated that the Hospital’s investigation of Dr. Long was related to his professional conduct. Id. at
149–52.
III.
Dr. Long raises two main contentions on appeal. First, he contends that the denial of
reconsideration was arbitrary and capricious because HHS did not consider his claim that the
adverse action report inaccurately stated that the Hospital’s investigation of him was related to
professional conduct. Such allegations fall within the scope of HHS’s “accuracy” review under
45 C.F.R. § 60.21(c)(1). HHS responds that its “accuracy” review does not consider “whether a
hospital’s actions underlying an adverse action report are legitimate or appropriate.” Appellees’
Br. 24.
The adverse action report states that Dr. Long resigned during an investigation into his
professional conduct. In its initial decision and on reconsideration, HHS in fact discussed the
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relevant evidence that the Hospital had initiated its investigation because of Long’s conduct and
explained why this evidence demonstrated that the report was accurate. In view of the
administrative record, this analysis suffices to show that HHS’s decision was not unreasonable.
In any event, this court need not resolve the parties’ differing interpretations of the scope of
“accuracy” review under HHS’s regulation at 45 C.F.R. § 60.21(c)(1). The district court
understood Long to challenge the accuracy of the Hospital’s representation that he voluntarily
resigned in connection with an investigation “related to professional competence or conduct.”
Long, 422 F. Supp. 3d at 150 (internal quotation marks and alteration omitted). The court
responded to that argument, and also to Dr. Long’s argument that HHS was arbitrary and
capricious because it failed to “make a finding, based on the facts in the record, concerning the[]
issues” regarding the alleged sham investigation. Id. (internal quotation marks omitted). The court
examined the administrative record in detail, finding that it supported the Secretary’s denial of
reconsideration. See id. at 150–52. Long’s allegation that the investigation was a “sham” goes to
the merits or appropriateness of HHS’s action and is outside the scope of review, for by regulation
HHS “will not consider the merits or appropriateness of the action,” 45 C.F.R. § 60.21(c)(1).
To the extent that Long’s challenge to the “accuracy” of the adverse action report included a
challenge to the Secretary’s alleged failure to consider evidence that he had proffered in support
of reconsideration, the district court pointed to administrative record evidence regarding steps
taken by the Hospital that undermined Dr. Long’s theories of intentional retaliatory infection of
his patients rather than a professional motive for investigating him. See id. These steps included
an investigation into complaints by Hospital staff about Dr. Long’s conduct and a peer review of
post-surgical infections in his patients. See id.; HHS Denial of Recons. 7–8. The district court
found that this record evidence outweighed the “speculations and piecemeal evidence” Dr. Long
provided to HHS. Long, 422 F. Supp. 3d at 152. Dr. Long raised no objection to HHS’s
explanation under SEC v. Chenery, 318 U.S. 80 (1943).
Therefore, there is no basis for this court to conclude that the review of the record by HHS or
the district court was insufficient, much less arbitrary and capricious.
Second, Long’s contention that the district court abused its discretion by denying his request
to supplement the administrative record with a declaration by a purported expert on peer review
activity fares no better. A court reviewing agency action will “generally consider only
‘information [that] the agency [had] when it made its decision.’” Butte County v. Chaudhuri,
887 F.3d 501, 506 (D.C. Cir. 2018) (alterations in original) (quoting CTS Corp. v. EPA, 759 F.3d
52, 64 (D.C. Cir. 2014)). An exception available when a plaintiff “challenge[s] gross procedural
deficiencies — such as where the administrative record itself is so deficient as to preclude effective
review,” Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (citing Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)), is inapplicable
here. The district court found that “the record contain[ed] more than substantial evidence to
support HHS’s determination” that the adverse action report was accurate. Long, 422 F. Supp. 3d
at 156. Long’s new expert declaration was superfluous in view of the absence of evidence of a
gross procedural deficiency, and the record evidence shows that the district court did not abuse its
discretion in denying his motion.
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Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed
to withhold issuance of the mandate herein until seven days after resolution of any timely petition
for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk