MEMORANDUM OPINION* BY v. Record No. 0308-18-4 JUDGE WESLEY G. RUSSELL, JR. DECEMBER 4, 2018 VIRGINIA BOARD OF MEDICINE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D. White, Judge

Pankaj Merchia, M.D., pro se.

Erin L. Barrett, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on brief), for appellee.

Appellant Pankaj Merchia, M.D., challenges a circuit court order dismissing his appeal of a decision of the Virginia Board of Medicine (the Board) reprimanding and disciplining him for his conduct related to patients’ records. Finding no error, we affirm.

BACKGROUND

On appeal, we view the evidence in the light most favorable to the Board, the party prevailing below. Hedleston v. Va. Ret. Sys., 62 Va. App. 592, 594, 751 S.E.2d 1, 2 (2013).

Appellant is a licensed physician certified in sleep medicine. In 2005, he helped establish a sleep disorder center known as SleepHeart in Massachusetts; the center closed in 2008. In 2008, he assisted a medical school friend and her father with establishing a similar center in Northern

Virginia, also called SleepHeart, and organized under the name SleepHeart of Virginia, LLC.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Appellant helped file the center’s LLC paperwork and served as its registered agent, but did not have an equity interest in the business. Nonetheless, he did serve as a manager of the business and as the center’s “medical director.” Although appellant described his work with SleepHeart of Virginia, LLC as “part-time,” he testified before the Board that he worked for the business thirty to forty hours a week. In addition to performing consulting and research services for SleepHeart, he provided medical services to patients, including Patients A and C. He identified himself as SleepHeart’s “sole clinician who sees patients” and testified that he “reported to [himself].” Patient A began seeing appellant in March 2009, but in June relocated to Pennsylvania, where she found another doctor. In August 2009, Patient A requested multiple times that appellant send a copy of her records to her or her new doctor. The new doctor also requested the records on Patient A’s behalf. When neither Patient A nor her new doctor received the records, Patient A filed a complaint with the Department of Health Professions (DHP) on November 3, 2009. As of the initiation of these proceedings, Patient A still had not received any of her records. Appellant provided sleep medicine services to Patient C in April and May 2009. Months later, Patient C began a different treatment plan with another practice. To facilitate the transition, Patient C requested his records from SleepHeart in October 2009. On March 1, 2010, Patient C received seven pages of documents reflecting summaries of office visits and resulting treatment, but the records received did not include all of his records from SleepHeart. Patient C filed a complaint with DHP on March 9, 2010. By letter dated August 18, 2014, DHP informed appellant that the Board was going to conduct an informal conference to “inquire into allegations that [he] may have violated certain laws and regulations governing the practice of medicine and surgery in Virginia.” The allegations included the complaints by Patients A and C regarding their requests for medical records and a charge that appellant had engaged in fraudulent billing practices. The informal conference was scheduled for November 12, 2014, and the letter informed appellant that he could be represented by counsel.

Appellant requested more time to review documentation provided by the Board, and the informal conference was continued to January 14, 2015. Appellant appeared with counsel. On

February 25, 2015, the Board issued appellant a reprimand based on its finding that appellant failed to comply with requirements regarding medical records. By letter dated April 6, 2015, appellant, by

counsel, requested that the Board vacate its order; appellant contended that, as a result of a June 11, 2013 e-mail he sent to a representative of DHP, the issues already had been decided in his favor by

operation of Code § 2.2-4021 and that the January conference failed to “compl[y] with certain procedural and substantive requirements” with relation to some of the allegations, rendering it void.

In the alternative, appellant requested a formal administrative hearing.

By letter dated April 14, 2015, the Board advised appellant that it had received his “request

for a formal hearing,” that the matter would be scheduled in the future with thirty-days’ notice, and that the February 25, 2015 order had been vacated. On May 14, 2015, the Board issued a notice of a formal administrative hearing for June 18, 2015. The Board provided a “Statement of Particulars” on May 15, 2015. By letter dated May 19, 2015, appellant requested that the matter “be continued”

to allow for adequate preparation and resolution of another pending matter. Throughout 2016, the Board, at the request of appellant, issued numerous subpoenas to third parties. Some of those parties challenged the subpoenas, causing additional delays.

The formal hearing was rescheduled for January 27, 2017, but on November 28, 2016, appellant requested another continuance to allow for responses to some of the subpoenas that had been issued at his request. Appellant’s motion for a continuance was granted on December 2, 2016.

Although appellant had requested that the matter not be heard prior to June 1, 2017, on March 8, 2017, the Board sent a notice informing appellant that the hearing had been set for May 19, 2017.

After receiving the notice on March 9, appellant, by letter dated April 5, 2017, requested that the hearing be postponed to November 19, 2017. As grounds, appellant cited the Board’s “failure to provide reasonable notice” of pre-hearing objection and motion deadlines, insufficient time to obtain new counsel, and insufficient time to react to the subpoena rulings. The Commonwealth objected to this request for yet another continuance. The Board denied the requested continuance.

On April 10, 2017, appellant filed multiple pre-hearing motions and asked for a stay of proceedings pending their resolution. Appellant also objected to numerous Commonwealth exhibits, claiming they constituted hearsay, lacked foundation or relevance, or were unfairly prejudicial. Appellant further objected to additional evidence on timeliness and other grounds.

Appellant’s pre-hearing motions were denied, and his evidentiary objections were overruled.

The Board conducted the formal hearing on May 19, 2017. Appellant was represented by counsel.^[1] Both Patients A and C testified by phone without objection. All witnesses were subject to

cross-examination by appellant’s counsel. During the Commonwealth’s first witness’ testimony, appellant attempted to ask the witness a question after his counsel already had done so; the Commonwealth objected and the Board explained to appellant, “you’ll be able to speak later as a witness, but with cross-examination, that comes from your counsel.” Appellant queried, “I cannot be co-counsel along with my counsel of record for cross-examination purposes?” The Board answered, “No.” Over appellant’s objections, the Board admitted into evidence Commonwealth exhibits 1 through 9, which included investigation reports prepared by DHP’s enforcement division relating to the patients’ complaints, correspondence between the patients and appellant, correspondence between DHP and appellant, medical and billing/insurance records, and records of the State Corporation Commission.

Patient A testified that prior to her first appointment with her new doctor in Pennsylvania, she contacted appellant to request her records. She stated: “Dr. Merchia said he could do that and then after several phone calls and e-mails by myself and the new doctor’s office, those records were never sent.” Patient A estimated she made eight attempts to obtain the records. Having established e-mail as a preferred method of communication, she “figured an e-mail request was fine,” and she testified that when she asked appellant to send her new doctor the records, “[h]e said, ‘yes, that’s no

problem, I can send them.’” When neither she nor her doctor received them, and she asked again, appellant replied that the delay was due to his son being in the hospital. Patient A stated that that

response “was different from what his receptionist said on the phone.” When she complained, appellant responded that he had thirty days in which to retrieve her records, and then acknowledged he had fifteen. Patient A testified that, as of the hearing, she still had not received any records.

Exhibits introduced by the Commonwealth corroborated Patient A’s testimony. Patient A first requested her records via e-mail on the morning of August 17, 2009. When she followed-up later that afternoon, appellant responded, “got it and will have it done.” Patient A sent another e-mail ten days later, on August 27, 2009, stating “I’m quite confused as to why my records have no[t] been sent . . . .” In the e-mail, she referenced other contact she and her doctor made seeking the records. Appellant responded the same morning that he had been ill and that his son had been hospitalized, but that he would “get things straightened out and sent to your doc.” Later the same

day, Patient A notified appellant that she would be filing a complaint with DHP. In response, appellant acknowledged the request made on August 17, but told appellant, for the first time, that she would need to “mail us a signed letter requesting a copy of your health records . . . .” After initially stating that the records would then be sent within thirty days, appellant told her that she would receive them within “[fifteen] days of written request.” After unsuccessfully attempting to fax appellant her signed “formal records request,” Patient A e-mailed a copy of her letter requesting the release of her records on September 11, 2009. The exhibits also proved that Patient A’s

Pennsylvania doctor requested her records by a letter dated August 31, 2009. That letter referenced that the doctor had made previous requests.

Patient C testified that in October 2009 he submitted a records request through a form on

SleepHeart’s website. When he did not get a response, he faxed and mailed the request. Patient C stated that he “finally sent a registered mail with the same form to get my records[, and m]y family doctor had tried to get my records and didn’t get a response.” There also “was some e-mailing back and forth.” Patient C explained that eventually, in early March 2010, “[t]hey gave me some of my records, but it wasn’t all of the doctor’s visits, it wasn’t the sleep charts and things like that, so I couldn’t get a second opinion.” After another e-mail, “[t]hey finally gave me what they told me were all of my records right before I ended up having surgery for deviated septum.”

The request form Patient C submitted to SleepHeart was admitted into evidence and shows

that Patient C requested “all sleep studies and records pertaining to sleep studies” on October 15, 2009. An e-mail shows that on March 2, 2010, Patient C followed up, notifying SleepHeart that

what he had received was incomplete and requesting that “ALL my records be sent.” As part of DHP’s investigation, appellant eventually produced far more than the seven pages of records in response to DHP’s request for Patient C’s medical records.

Testifying on his own behalf, appellant acknowledged receiving Patient A’s initial e-mail request, but denied ever having received the September 11, 2009 e-mail with her signed letter attached. He also stated Patient C did not make a request covering all the records that subsequently were sent to DHP in its investigation in light of different types of records maintained by SleepHeart.

He also contended that he was not responsible for the administrative functions of the practice such as records management.

Based on the evidence presented at the formal hearing, the Board, in an order dated May 26, 2017, found that appellant “deceived Patient A between August 17, 2009 and August 27, 2009 in his verbal and electronic responses to her requests . . . for copies of her medical records” and that he

“failed to provide patient records requested in a timely manner, as required by Section

32.1-127.1:03(E) of the Code.” The Board also found that appellant “provided incomplete medical records to Patient C several months after Patient C submitted a request for his records, as required by Section 32.1-127.1:03(E) of the Code.” The Board acknowledged that appellant “testified that he believed that he did not have control over the patient records of his practice[, and] . . . that his

father, an employee of the practice, was the only person who controlled the records.” From this, the Board concluded that appellant “did not have a full understanding of a practitioner’s responsibility for the maintenance and release of medical records.”

Based on these findings, the Board concluded that appellant had violated

Code § 54.1-2915(A)(16),2 Code § 54.1-2915(A)(18),3 and 18 VAC 85-20-26(B).4 The Board

issued a formal reprimand and, as a sanction, ordered appellant to complete twelve hours of approved continuing medical education in medical record keeping within a specified time period.

Appellant appealed the Board’s May 26, 2017 order to the circuit court. Appellant alleged

that the Board erred in its factual findings, misapplied the law in deeming him responsible for responding to records requests, erroneously admitted evidence, and failed to comply with statutory and constitutional procedural requirements. The parties submitted memoranda, and a hearing was conducted on December 8, 2017.

By order dated December 8, 2017, the circuit court found that “there was no error of law committed by the [Board]” and that the “proceedings under the Virginia Administrative Process Act

. . . did not violate [appellant]’s constitutional rights.” The circuit court held that “[t]he Board acted within its statutory jurisdiction in disciplining” appellant and had “observed all required procedure.”

Finding that the Board’s decision “was supported by substantial evidence in the record . . .[,]” the circuit court affirmed the judgment of the Board.

Appellant timely noted an appeal to this Court. He contends that: (1) “[t]he evidence does not support the Board’s findings of facts”; (2) the Board denied him due process by failing to

comply with certain constitutional and statutory requirements; (3) “it is both unlawful and unreasonable for the Board to hold [him] liable for responding to requests for records to the practice”; and (4) “the Board admitted evidence that lacked relevance or basis or foundation or authenticity and prejudiced the Board members.”

ANALYSIS

The Board of Medicine is an administrative agency authorized to discipline a doctor for “unprofessional conduct.” Code § 54.1-2915(A). Board disciplinary proceedings “are subject to the provisions of the Virginia Administrative Process Act [(VAPA)].” Goad v. Va. Bd. of Med., 40

Va. App. 621, 633, 580 S.E.2d 494, 500 (2003) (citing Code § 54.1-2920). Under the VAPA, an appealing party bears the “burden of demonstrat[ing] an error . . . subject to review.” Code

§ 2.2-4027. Such errors include: (i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.

Id.

I. Substantial evidence supported the Board’s findings5

Appellant argues that the Board’s factual determinations were not supported by the evidence. In reviewing an agency decision, we give deference to an administrative agency’s factual determinations, and review them only to ascertain whether they are supported by substantial evidence. Code § 2.2-4027. “‘The “substantial evidence” standard . . . is designed to give great stability and finality to the fact-findings of an administrative agency. The phrase “substantial evidence” refers to “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”” Hedleston, 62 Va. App. at 597, 751 S.E.2d at 3 (ellipsis in original)

(quoting Va. Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983)).

Accordingly, we review the evidence “in the light most favorable to sustaining the agency’s decision,” Va. Ret. Sys. v. Blair, 64 Va. App. 756, 770, 772 S.E.2d 26, 32 (2015); and “we may

‘reject [the] agency’s factual findings only if, considering the record as a whole, a reasonable mind

would necessarily come to a different conclusion,’” Va. Bd. of Med. v. Hagmann, 67 Va. App. 488, 500, 797 S.E.2d 422, 428 (2017) (alteration and emphasis in original) (quoting Blair, 64

Va. App. at 765, 772 S.E.2d at 30). “Credibility determinations are factual findings subject to this same standard.” Id.

In the proceedings before the Board, there was substantial evidence to support the Board’s findings. Specifically, both Patients A and C testified that they requested that appellant provide them their records. Requests were communicated by conversation, e-mail, through the practice’s

website, fax, and even registered mail. Although appellant contends he was aware only of some of these requests, the record was sufficient to allow a reasonable factfinder to conclude that he was

aware of all of them. After all, he does not dispute that he received some of them, and, from the evidence, all of them went to the practice where appellant testified that he was the “sole clinician who sees patients.”6

Similarly, evidence supports the finding that the records were not produced to the patients in the time frame required by Code § 32.1-127.1:03. Patient A began requesting her records in 2009

and testified that she had not been provided with the records as of the 2017 hearing. Similarly, Patient C testified that he requested records in October 2009 and did not receive any records until

March 2010. At that time, despite requests for all of his records, he received seven pages of records. DHP’s investigation revealed that there were over fifty pages of responsive records.^[7]

Accordingly, substantial evidence supported the Board’s conclusion that appellant failed to produce the records in the manner required by Code § 32.1-127.1:03.

Evidence also supports the Board’s conclusion that appellant made deceptive statements.

Patient A detailed numerous communications with appellant in which he conveyed that he was