United States Court of Appeals
For the First Circuit
No. 08-1431
JOHN DOE, M.D.,
Plaintiff, Appellant,
v.
MICHAEL O. LEAVITT, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Selya, and Stahl, Circuit Judges.
Michael A. Duddy, with whom Kelly, Remmel & Zimmerman was on
brief, for appellant.
Eric Fleisig-Greene, Attorney, Appellate Staff, with whom
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Paula D. Silsby, United States Attorney, and Mark B. Stern,
Attorney, Appellate Staff, were on brief, for appellee.
January 14, 2009
SELYA, Circuit Judge. This appeal requires us to
construe the word "investigation" as that word is used in a
provision of the Health Care Quality Improvement Act (HCQIA), a
statute that directs hospitals and other health care entities to
report to the Secretary of Health and Human Services (the
Secretary) in the event that a physician surrenders his clinical
privileges while he is "under an investigation" for suspected
incompetence or improper professional conduct. 42 U.S.C. §
11133(a)(1)(B)(i). The question is one of first impression at the
federal appellate level.
In the underlying administrative proceeding, the
Secretary concluded that an investigation is ongoing for purposes
of the HCQIA until the hospital's decisionmaking process runs its
course and the hospital either takes a final action or formally
closes the probe. The appellant, a physician reported to the
Secretary under section 11133(a)(1)(B)(i), challenged the
Secretary's interpretation of the word "investigation." The
district court rejected this challenge and upheld the Secretary's
action. After careful consideration, we affirm.
I. BACKGROUND
Generally speaking, information gathered pursuant to the
reporting provisions of the HCQIA is confidential. See id. §
11137(b)(1). But the statute expressly provides that information
presented "in a form that does not permit the identification of any
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particular health care entity, physician, other health care
practitioner, or patient shall not be considered confidential."
Id. In the case at hand, the protagonists' identities and the
specific details of the alleged misconduct are easily separated
from the central legal question. Accordingly, we sketch the
background of the case with the aid of pseudonyms and generalities.
That course allows us to balance two important but sometimes
conflicting interests: on the one hand, safeguarding the privacy of
physicians and other health care professionals; on the other hand,
providing public access to judicial decisions.
On July 26, 2005, an operating room nurse at the XYZ
Hospital (the name is fictitious) filed a written complaint against
the appellant (a physician whom we refer to by the alias "Dr.
Doe"). The complaint charged that the appellant had threatened the
nurse.
The following day, the medical staff executive committee
temporarily suspended Dr. Doe's privileges and appointed an ad hoc
investigating committee (the AHC) to inquire into the nurse's
allegations. On August 2, 2005, the AHC reported to the executive
committee that the nurse reasonably perceived Dr. Doe's actions as
threatening.
Three days later, the executive committee met to discuss
both the report and Dr. Doe's status. Following that discussion,
the executive committee proposed that Dr. Doe be allowed to return
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to work so long as he agreed to certain contractual modifications,
including provisions for regular proctoring and psychological
evaluations. On August 11, Dr. Doe rejected this proposal and
voluntarily relinquished his clinical privileges. The Hospital
accepted his resignation on August 19.
Believing that Dr. Doe had resigned while "under an
investigation," the Hospital reported his resignation to the
National Practitioner Data Bank (the NPDB), a data bank
established by the Secretary as a repository for reports filed
pursuant to the HCQIA. See 45 C.F.R. § 60.1.
On September 19, Dr. Doe requested administrative review
of the Hospital's filing. See id. § 60.14. He contended that the
Hospital's investigation had ended when the AHC presented its
report to the executive committee and, therefore, that he had not
resigned while under an investigation. An exchange of views
followed.
On May 25, 2007, the Secretary issued a written decision
in which he ruled that the Hospital appropriately had reported the
appellant to the NPDB. The Secretary premised this ruling on a
statement that "[a]n investigation is . . . considered ongoing
until the health care entity's decision making authority takes a
final action or formally closes the investigation." Because the
executive committee had neither taken a final disciplinary action
nor formally closed its inquiry when Dr. Doe resigned, the
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Secretary found that Dr. Doe was still "under an investigation" at
that moment. Consequently, the Hospital had a duty to report the
resignation under 42 U.S.C. § 11133(a)(1)(B)(i).
The appellant challenged this ruling in a suit brought
against the Secretary under the Administrative Procedure Act, 5
U.S.C. §§ 701-706. The parties cross-moved for judgment on the
administrative record. The district court, in a sealed opinion,
ruled in the Secretary's favor. This timely appeal ensued.
II. ANALYSIS
We review the district court's decision de novo, applying
the same standards to the Secretary's final action that the
district court was bound to apply. See Mass. ex rel. Div. of
Marine Fisheries v. Daley, 170 F.3d 23, 28 (1st Cir. 1999); Assoc'd
Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997).
We will reverse only if the Secretary's determination was
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A). We are not married to
the lower court's reasoning but may uphold its decision on any
ground made manifest by the record. See InterGen N.V. v. Grina,
344 F.3d 134, 141 (1st Cir. 2003).
The sole issue on appeal is the propriety of the
Secretary's interpretation of the word "investigation" as that word
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is used in the HCQIA reporting provision, quoted in the margin.1
The Secretary has determined that an investigation is ongoing (and,
therefore, a matter is under investigation) until a health care
entity makes a final decision or formally closes the probe, even if
the entity is no longer gathering facts but is merely deliberating
about what course of action it should follow.
The appellant argues that the Secretary has cast too wide
a net. He maintains that the word "investigation," as used in the
statute, refers only to the fact-gathering phase of the inquiry.
In dealing with these dueling interpretations, a
threshold question looms: What level of deference, if any, is due
to the Secretary's interpretation? We tackle that question first
and then proceed to the merits.
A. The Deference Question.
It cannot be gainsaid that the Secretary possesses
authority to promulgate regulations implementing the HCQIA. See,
e.g., 42 U.S.C. § 11136. Withal, the Secretary has not exercised
this rulemaking authority to set forth his interpretation of the
1
In pertinent part, the provision imposes a reporting
obligation on any health care entity that
accepts the surrender of clinical privileges of a
physician —
(i) while the physician is under an
investigation by the entity relating to
possible incompetence or improper professional
conduct . . . .
42 U.S.C. § 11133(a)(1)(B).
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word "investigation." Instead, the Secretary's interpretation must
be gleaned from (i) an agency manual, the NPDB Guidebook (the
Guidebook), issued in September of 2001, and (ii) the Secretary's
decision in this case. The appellant contends that these
"informal" interpretations do not warrant deference under the
familiar rubric of Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984), but must be evaluated
under the more neutral framework limned in Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). The Secretary counters that Chevron
offers the appropriate frame of reference. The district court
nimbly sidestepped this question, vouchsafing that the Secretary's
interpretation of the word was unimpugnable regardless of what
level of deference attached.
In the aftermath of the Court's opinion in United States
v. Mead Corp., 533 U.S. 218, 226-27 (2001), the level of deference
owing to informal agency interpretations is freighted with
uncertainty. See Lisa Schultz Bressman, How Mead Has Muddled
Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1457-69
(2005) (reviewing divergent applications of Mead by various courts
of appeals). The Mead Court seems to have contemplated the
application of Chevron deference to most statutory interpretations
that are the fruit of notice-and-comment rulemaking or formal
adjudications. See Mead, 533 U.S. at 229-31; but cf. Nat'l Cable
& Telecomms. Ass'n v. Brand X Internet Serv., 545 U.S. 967, 1004
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(2005) (Breyer, J., concurring) (stating that "the existence of a
formal rulemaking proceeding" is not "a sufficient condition for
according Chevron deference to an agency's interpretation of a
statute"). In some ways, however, Mead is unhelpful: for instance,
the decision does not clarify the circumstances in which Congress
should be deemed to have intended an informal agency interpretation
to carry the force of law and, thus, attract Chevron deference.
See Mead, 533 U.S. at 231. Mead indicates, however, that even if
an informal agency interpretation is deemed not to warrant Chevron
deference, it may nonetheless lay claim to a lesser degree of
deference under the Skidmore banner. Id. at 234.
The case at hand falls into this gray area. The
Guidebook is an agency manual. It is not a product of notice-and-
comment rulemaking, nor was it ever published in the Federal
Register, which makes only a glancing reference to it, see Notice
Announcing Opening Date of NPDB, 55 Fed. Reg. 31,239-01 (Aug. 1,
1990). Given these facts, we do not believe that the Guidebook is
entitled to Chevron deference. See Christensen v. Harris County,
529 U.S. 576, 587 (2000); Visiting Nurse Ass'n Gregoria Auffant,
Inc. v. Thompson, 447 F.3d 68, 73 (1st Cir. 2006); De La Mota v.
U.S. Dep't of Educ., 412 F.3d 71, 79 (2d Cir. 2005); Pub. Citizen,
Inc. v. U.S. Dep't of HHS, 332 F.3d 654, 660 (D.C. Cir. 2003).
This leaves the Secretary's decision. Congress
explicitly empowered the Secretary to establish dispute resolution
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procedures relative to HCQIA filings. See 42 U.S.C. § 11136(2).
In response, the Secretary promulgated a regulation that
established an adjudicative process — a process that, among other
things, provides for secretarial review of written information
submitted by both the reporting entity and the reported physician,
as well as the issuance of a final administrative determination
anent the accuracy of reported information. See 45 C.F.R. § 60.14.
The decision in this case was a creature of this adjudicative
process. Although secretarial review is not governed by the trial-
like procedures characteristic of formal agency adjudications, see,
e.g., 5 U.S.C. §§ 554, 556, 557, several courts have afforded
Chevron deference to agency adjudications similar in type and kind
to the agency action at issue here, see, e.g., Am. Fed'n of Gov't
Employees, Local 446 v. Nicholson, 475 F.3d 341, 353-54 (D.C. Cir.
2007); Cleveland Nat'l Air Show, Inc. v. U.S. Dep't of Transp., 430
F.3d 757, 763-64 (6th Cir. 2005); Davis v. EPA, 348 F.3d 772, 779
& n.5 (9th Cir. 2003). Other courts, however, have declined to
afford Chevron deference to the fruit of informal agency
adjudications. See, e.g., Mead, 533 U.S. at 221; Am. Fed'n of
Gov't Employees, Local 2152 v. Principi, 464 F.3d 1049, 1057 (9th
Cir. 2006).
This is an interesting legal conundrum, but the task of
a federal appellate court is to resolve particular cases and
controversies, not merely to satisfy intellectual curiosity
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(whether its own curiosity or that of others). In the last
analysis, we agree with the district court that the level of
deference is not determinative here; whether viewed through the
prism of Chevron or the less forgiving prism of Skidmore, the
Secretary's interpretation of the word "investigation" withstands
scrutiny.
Thus, we bypass the question of whether the Secretary's
decision engenders Chevron deference. Instead, we assume,
favorably to the appellant and in line with his argument, that the
Secretary's interpretation should be evaluated under the Skidmore
standard. We proceed on that assumption.
B. The Merits.
The nuances of the Skidmore standard are not cut-and-
dried. See, e.g., Cathedral Candle Co. v. U.S. Int'l Trade Comm'n,
400 F.3d 1352, 1365-66 (Fed. Cir. 2005) (discussing varying
formulations). The Supreme Court has characterized Skidmore as
requiring courts to defer to agency interpretations of statutes
within the agency's ken "to the extent that those interpretations
have the 'power to persuade.'" Christensen, 529 U.S. at 587
(quoting Skidmore, 323 U.S. at 140). If this is not an unabashed
tautology, it must mean something more than that deference is due
only when an inquiring court is itself persuaded that the agency
got it right. Otherwise, Skidmore deference would not be deference
at all.
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What the Skidmore standard entails is a sliding-scale
approach under which the degree of deference accorded to an agency
interpretation hinges on a variety of factors, such as "the
thoroughness evident in [the agency's] consideration, the validity
of its reasoning, [and the] consistency [of its interpretation]
with earlier and later pronouncements." Skidmore, 323 U.S. at 140.
That compendium is not exhaustive; other factors may weigh in the
balance. See Kristin E. Hickman & Matthew D. Krueger, In Search of
the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1259 (2007)
(identifying "thoroughness, formality, validity, consistency, and
agency expertise" as factors in an agency's power to persuade).
These factors are meant to test the seriousness of, and
therefore the respect due to, the process that underlies the
agency's interpretation. The mix of factors, once assayed, either
contributes to or detracts from the power of an agency's
interpretation to persuade. See Skidmore, 323 U.S. at 140. We
turn, then, to how these factors impact the Secretary's
interpretation of the word "investigation" as that word is used in
42 U.S.C. § 11133(a)(1)(B)(i).
We start with formality and thoroughness. The record
makes manifest that the Secretary's decision was not the product of
a strictly formal adjudication. Even so, not all informal agency
adjudications stand on the same footing. Here, the adjudication
progressed according to a previously established panoply of
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structured rules that allowed for written submissions by all
affected parties. See 45 C.F.R. § 60.14(c). Greater weight
ordinarily is due to interpretations that result from a structured
interpretive process as opposed to a catch-as-catch-can
interpretive process. See, e.g., High Sierra Hikers Ass'n v.
Blackwell, 390 F.3d 630, 648 (9th Cir. 2004); Structural Indus.,
Inc. v. United States, 356 F.3d 1366, 1370 (Fed. Cir. 2004).
The Secretary plainly understood the need for in-depth
consideration of the disputed issue. He initially set forth his
construction of the word "investigation" in the Guidebook, a
comprehensive manual of general applicability. Normally, greater
deference is due to an interpretation that "is not merely ad hoc .
. . but is applicable to all cases." Chauffeur's Training Sch.,
Inc. v. Spellings, 478 F.3d 117, 129 (2d Cir. 2007); accord Estate
of Landers v. Leavitt, 545 F.3d 98, 110 (2d Cir. 2008). So it is
here.
The Secretary then reiterated his understanding of the
word "investigation" in his decision in this case. Several aspects
of the decision indicate that it was the product of thorough
consideration. First, the decision was issued by the Secretary
himself — the highest-ranking official in the Department of Health
and Human Services (HHS). Second, the procedures employed
encouraged the operation of the deliberative process.
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In particular, there was a meaningful give-and-take. In
a letter to the Hospital dated May 26, 2006, the agency's dispute
resolution manager set out the agency's working definition of an
"investigation" and requested further information. The appellant
received a copy of this letter. On June 6, 2006, the appellant
responded, controverting the agency's working definition. The
issue was, therefore, precisely framed and the protagonists had the
opportunity to confront each other's views. This sort of open
exchange is a badge of thoroughness. See, e.g., Rubie's Costume
Co. v. United States, 337 F.3d 1350, 1356 (Fed. Cir. 2003).
Furthermore, the Secretary's decision fully engaged the
appellant's proposed interpretation of section 11133(a)(1)(B)(i).
The Secretary found that interpretation deficient largely because
it failed to square with the policies underlying the HCQIA. In
support, the Secretary highlighted relevant portions of both the
statutory scheme and its legislative history. This detailed
exegesis makes it transparently clear that the Secretary's
interpretation was a product of thorough consideration. See, e.g.,
W. Union Tel. Co. v. FCC, 665 F.2d 1126, 1143 (D.C. Cir. 1981)
(upholding, under Skidmore, an agency interpretation that was based
upon thorough analysis of statute and legislative history).
Moving to other factors, expertise and consistency
counsel in favor of honoring the Secretary's interpretation. As to
the former, HHS, over which the Secretary presides, has broad
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oversight of physician performance. Given the huge federal stake
in the funding of Medicare, Medicaid, and related programs, the
Secretary has had a powerful incentive to develop a body of
knowledge about problems affecting physician performance. See,
e.g., Estate of Landers, 545 F.3d at 107 (noting high degree of
expert knowledge required to run programs such as Medicare and
Medicaid). Indeed, the Secretary is charged with determining
whether and when a physician's rights to participate in these
complex programs should be suspended where, for example, the
physician surrenders his license to practice in a particular state
while under investigation for misconduct or incompetence. See 42
U.S.C. § 1320a-7(b)(4)(B). Thus, the area in which the disputed
interpretation operates is within the heartland of the Secretary's
expertise.
As to consistency, there is no evidence that the
Secretary has ever interpreted the word "investigation," as used in
the HCQIA, in a manner inconsistent with the interpretation that he
advances here. The Secretary initially articulated this
interpretation in the Guidebook, which was published in 2001. In
adjudicating the appellant's administrative complaint, he
faithfully applied that definition. His final decision observed
that the challenged interpretation reflected "long established
policy," and the appellant has not contested that observation. The
consistency of the Secretary's interpretation, over time, furnishes
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some degree of support for deferring to that interpretation. See
N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522 n.12 (1982);
Estate of Landers, 545 F.3d at 107; see also Barnhart v. Walton,
535 U.S. 212, 219 (2002).
We turn now to the most salient of the factors that
inform an assessment of persuasiveness: the validity of the
agency's reasoning. This inquiry does not focus on the
interpretation per se but, rather, on whether the agency has
consulted appropriate sources, employed sensible heuristic tools,
and adequately substantiated its ultimate conclusion. See De La
Mota, 412 F.3d at 80.
Here, the Secretary made good use of available
interpretive resources. In particular, he construed the word
"investigation" in light of the overall structure and evident
purpose of the statutory scheme. Those were potentially fertile
grounds for assistance in carrying out the mission of statutory
construction. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
(2006).
By the same token, the Secretary handled these
interpretive resources in a logical and intellectually disciplined
manner. He began by remarking a broad congressional purpose: "to
improve the quality of health care by encouraging hospitals to
identify and discipline practitioners who engage in unprofessional
behavior." This went hand in glove with the related goal of
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"restrict[ing] the ability of incompetent practitioners from moving
State to State without disclosure or discovery of [a] previous
adverse action . . . history." The text of the statute bears out
this statement of the overarching congressional purpose. See,
e.g., 42 U.S.C. § 11101(2). The Secretary's reasoning also is
buttressed by the statute's legislative history, which evinces
Congress's concern that "hospitals too often accept 'voluntary'
resignations of incompetent doctors in return for the hospital's
[sic] silence about the reasons for the resignations." H.R. Rep.
No. 99-903, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 6384, 6385;
see H.R. Rep. No. 99-903, at 15 (1986), reprinted in 1986
U.S.C.C.A.N. 6384, 6397 (commenting that hospitals too readily
"resort to 'plea bargains' in which a physician agrees to [a
surrender of privileges] in return for the health care entity's
promise not to inform other health care entities about the
circumstances of the physician's surrender of privileges").
Reasoning from this overarching congressional purpose,
the Secretary concluded that Congress did not intend to construct
an easily accessible escape hatch that would permit beleaguered
physicians to elude the reach of the HCQIA's reporting requirement.
He noted that the HCQIA contemplates reporting both when a hospital
takes certain actions implicating a physician, 42 U.S.C. §
11133(a)(1)(A), and when a physician resigns during the currency of
an investigation, id. § 11133(a)(1)(B)(i). A grudging view of the
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duration of an investigation, such as that proposed by the
appellant, would create a gap between the completion of fact-
gathering and the taking of a final disciplinary action. During
this "gap period," a physician could resign with impunity. That
easy escape would operate at cross-purposes with the goal of the
reporting requirement.
Conversely, interpreting the word "investigation" more
expansively affords seamless coverage of the period from the start
of an inquiry until the taking of a final disciplinary action.
That prevents the creation of a gap. At the same time, it serves
Congress's evident purpose.
This is sound reasoning. In light of it, the Secretary's
ensuing interpretation of the word "investigation," while not
inevitable, is eminently sensible.
In the face of this interpretation, the appellant looses
a barrage of counter-arguments aimed at derailing any claim to
Skidmore deference. His initial attack centers on plain meaning.
His thesis is that the plain meaning of the word "investigation" is
limited to fact-gathering.
The appellant's premise is undeniably correct: the plain
meaning of words in the text of a statute constitutes the proper
starting point for interpreting that statute. Hughes Aircraft Co.
v. Jacobson, 525 U.S. 432, 438 (1999); Aguilar v. U.S. Immig. &
Customs Enf., 510 F.3d 1, 8 (1st Cir. 2007). But "[i]n the last
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analysis, words are like chameleons; they frequently have different
shades of meaning depending upon the circumstances." United States
v. Romain, 393 F.3d 63, 74 (1st Cir. 2004). The word
"investigation" exemplifies this truism.
That word commonly is used to refer to the process of
gathering facts. See, e.g., Random House Dictionary of the English
Language 1004 (2d ed. 1987). However, it also is commonly used in
a broader sense to refer to a "detailed examination" or "searching
inquiry." Webster's Third New Int'l Dictionary of the English
Language 1189 (1993). Congress itself has used the word in that
broader sense, see, e.g., 15 U.S.C. § 1681b(b)(4)(D)(ii) (defining
"national security investigation"), as have the courts, see, e.g.,
United Eng'g & Forging v. United States, 779 F. Supp. 1375, 1393
(C.I.T. 1991) (concluding that imports were "subject to
investigation" because they remained "under consideration"). Given
the range of meanings associated with the word "investigation," we
think that the Secretary was obliged in this instance to look
beyond raw language and to consider the larger context of the
HCQIA. That is exactly what the Secretary did.
Next, the appellant contends that the Secretary's
understanding conflates "investigation" with two other terms that
appear in the text of the HCQIA, namely, "professional review
activity" and "professional review action." This contention lacks
force.
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We do not doubt that a legislative body usually means
different things when it uses varying terminology in a single
statute. See, e.g., Ariz. Health Care Cost Containment Sys. v.
McClellan, 508 F.3d 1243, 1250 (9th Cir. 2007); Vonage Holdings
Corp. v. FCC, 489 F.3d 1232, 1240 (D.C. Cir. 2007). Contrary to
the appellant's importunings, however, the Secretary's
understanding of the word "investigation" does not make the word
synonymous with either a "professional review activity" or a
"professional review action."
The HCQIA defines a "professional review activity" as an
activity designed to "change or modify" a physician's clinical
privileges. 42 U.S.C. § 11151(10)(C). The appellant suggests that
this term encompasses the entire process through which a hospital
alters a physician's clinical privileges — that is, from the
commencement of fact-gathering through the final decision.
We reject this construction, instead agreeing with the
Secretary that the term "professional review activity" refers, one
by one, to each of the discrete activities that a hospital
undertakes during the course of its investigation (e.g., accepting
a complaint, deciding to investigate, appointing an investigating
committee, conducting fact-gathering, preparing a report, and so on
and so forth, up to the point at which a professional review action
is taken). See Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 634
(3d Cir. 1996) (upholding district court's determination that
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"professional review activities" are "preliminary investigative
measures taken in 'a reasonable effort to obtain the facts'
relevant to a possible change in a physician's privileges"); Singh
v. Blue Cross & Blue Shield of Mass., Inc., 182 F. Supp. 2d 164,
171 (D. Mass. 2001) (holding that "professional review activities"
were "steps in an investigation that ultimately led to an
'action'"), aff'd, 308 F.3d 25 (1st Cir. 2002). We need not
itemize the inventory of professional review activities today. For
present purposes, it suffices to say that the Secretary's
interpretation of the term "investigation" is not coterminous with
his interpretation of the term "professional review activity"
because the former encompasses a myriad of the latter.
So too the term "professional review action." That term
denotes an adverse "action or recommendation . . . taken or made in
the course of a professional review activity." 42 U.S.C. §
11151(9). The Secretary's interpretation holds that an
investigation terminates when a final action is taken. That action
is a "professional review action" within the purview of the
statute. Thus, while an investigation may culminate in a
professional review action, the Secretary's interpretation gives a
distinct meaning to each term. Consequently, he has not conflated
their meanings.
In a related vein, the appellant suggests that the
Secretary's interpretation of "investigation" makes the word
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synonymous with yet another statutory term: "formal peer review
process." 42 U.S.C. § 11151(4)(A). Though the latter term is not
defined in the HCQIA, the Secretary's implementing regulations
state that the phrase "formal peer review process" refers to "the
conduct of professional review activities through formally adopted
written procedures which provide for adequate notice and an
opportunity to be heard." 45 C.F.R. § 60.3. As such, the formal
peer review process refers only to a particular type of
investigation. The two terms, as used by the Secretary, do not
duplicate each other.
In a further fusillade, the appellant maintains that the
Secretary misperceived the core purpose of the HCQIA. He argues,
in essence, that the Secretary erred in inferring a general
congressional intent to encourage reporting. In support, he notes
that the HCQIA does not require reporting of all disciplinary
measures imposed upon physicians but, rather, limits itself to
professional review actions that adversely affect a physician's
clinical privileges for longer than thirty days. See 42 U.S.C. §
11133(a)(1)(A). Building on this foundation, he posits that
Congress most likely contemplated piecemeal reporting under very
specific circumstances.
This is whistling past the graveyard. We believe that
the Secretary supportably discerned a broad congressional purpose
to improve the delivery of health care by mandating the reporting
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of significant disciplinary measures taken against physicians and
curtailing the ability of physicians to abort inquiries into
potential misconduct. The legislative history, alluded to above,
makes this purpose abundantly clear.
At oral argument, the appellant added a new twist to this
contention. He theorized that Congress must have intended
piecemeal reporting as a means of allowing private parties maximum
flexibility in adjusting the terms of employment relationships. We
demur. The legislative history leaves little doubt but that
Congress was concerned with putting an end to the sort of private
deals that the appellant claims the HCQIA is meant to foster. See,
e.g., H.R. Rep. No. 99-903, at 3, 15 (1986), reprinted in 1986
U.S.C.C.A.N. 6384, 6385, 6397.
Finally, the appellant claims that the Secretary
erroneously failed to consult the Hospital's bylaws. This charge
is unfounded.
A hospital's bylaws may shed light on whether the
institution has initiated an investigation within the purview of
the statute and, if so, whether that investigation is ongoing.
See, e.g., Simpkins v. Shalala, 999 F. Supp. 106, 115-16 (D.D.C.
1998). The Secretary, in the Guidebook, has recognized that a
hospital's bylaws may be useful in such ways. See, e.g.,
Guidebook, at E-21.
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That is not to say, however, that the meaning of the word
"investigation," as that word is used in the statute, will vary
from case to case depending on a particular hospital's bylaws. The
federal judiciary and the agency to which the interpretive task has
been entrusted have independent responsibilities for fashioning a
global definition, and a hospital cannot frustrate that definition
through its bylaws. If, say, a hospital's bylaws used the word
"investigation" to describe a phenomenon that ended upon the
completion of fact-gathering, the Secretary would not be compelled
to interpret Congress's use of the word "investigation" in lockstep
with that idiosyncratic definition.
In all events, the bylaw provisions cited by the
appellant are not inconsistent with the Secretary's interpretation.
They provide in substance that the AHC, once assembled, must submit
its written report to the medical staff's executive committee
within ten days. It is simply too much of a stretch to say, as the
appellant urges, that this means that the investigation is formally
concluded at that point. After all, the same bylaws give the
executive committee ten additional days to take action on the AHC's
report.2
To recapitulate, the Secretary has performed a careful,
well-reasoned analysis of the meaning of the word "investigation"
2
Notably, the appellant tendered his resignation during this
second ten-day period, even though it was not accepted until after
that period had expired.
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as that word is used in the HCQIA. He consulted all the
conventional sources, relied upon appropriate considerations (such
as the overall structure of the HCQIA, the congressional purpose
behind it, and the most efficacious means of effectuating that
purpose), and reasoned convincingly to a conclusion. That
conclusion flows logically from the materials consulted and
reflects long-standing policy, consistently applied. Given these
factors and given the Secretary's expertise, Skidmore demands that
we defer to his persuasive and well-supported view that an
"investigation" ends only when a health care entity's
decisionmaking authority either takes a final action or formally
closes the investigation.
III. CONCLUSION
Skidmore requires courts to walk a fine line, and we have
endeavored to do so here. For the reasons elucidated above, we
find the Secretary's interpretation deserving of Skidmore
deference. Thus, we agree that the Hospital duly reported the
appellant's resignation to the NPDB pursuant to 42 U.S.C. §
11133(a)(1)(B)(i). We need go no further. We hold that the lower
court did not err in rejecting the appellant's attempt to reverse
the Secretary's action.
Affirmed.
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