Shicor v. Bd. of Speech Language Pathology & Audiology

• Decision Date: 18 April 2018
• Docket Number: A159502
• Citation: 420 P.3d 638,291 Or.App. 369
• Parties: JANEL SHICOR, SLP, aka Janell Schicker, Petitioner, v. BOARD OF SPEECH LANGUAGE PATHOLOGY AND AUDIOLOGY, Respondent.
• Court: Oregon Court of Appeals

291 Or.App. 369

420 P.3d 638

JANEL SHICOR, SLP, aka Janell Schicker, Petitioner,

v.BOARD OF SPEECH LANGUAGE PATHOLOGY AND AUDIOLOGY, Respondent.

A159502

Court of Appeals of Oregon.

Submitted November 8, 2016.

April 18, 2018

Tyler Smith, Canby, Anna Harmon, and Tyler Smith & Associates, P.C., filed the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

HADLOCK, J.

Licensee, a long time practitioner in the field of speech-language pathology, seeks judicial review of a final order of the Board of Speech Language Pathology and Audiology (the board) revoking her license to practice as a speech-language pathologist.¹ On review, licensee raises six assignments of error. We reject without discussion licensee’s second, third, and fourth assignments of error, and write to address her first and fifth assignments. In her first assignment of error, licensee contends that the board’s contested case procedure and, specifically, the ways in which the board’s executive director participated in the proceedings, violated her "constitutional right to due process." Licensee also contends, in her fifth assignment of error, that the board erred in determining that she had misrepresented her services and that it erred in applying a preponderance of the evidence standard instead of a clear and convincing standard. As explained below, we reject licensee’s contentions with respect to both of those assignments of error. And, in light of our resolution of those assignments of error, we also reject licensee’s sixth assignment of error, in which she challenges the sanctions imposed by the board.² Accordingly, we affirm.

We take the following undisputed historical facts from the board’s order. See Coffey v. Board of Geologist Examiners , 348 Or. 494, 496 n.1, 235 P.3d 678 (2010) (where the board’s factual findings are not challenged, those findings are the facts for purposes of judicial review).³ Licensee has been licensed as a speech-language pathologist (SLP) in Oregon since 2009. Before that time, she had been licensed as an SLP in Colorado and Washington. As part of her practice, licensee has used a method called "Integrated Listening Systems (iLS)" with nearly all of her clients. "iLS involves listening to filtered music (usually Mozart) through specialized headphones that contain a bone conductor to vibrate the cranial bones." There is also a physical movement component to iLS. As part of licensee’s practice in Oregon, her husband has administered the movement therapy to licensee’s clients.

In 2010, the board received a complaint alleging that licensee "exceeded the SLP scope of practice, used a method of therapy that is not professionally recognized, and billed for services that were actually provided by an unlicensed member of [her] family." Sandy Leybold, who was the board’s executive director and whose duties included, among other things, conducting and overseeing board investigations, commenced an investigation into the allegations raised in the complaint. As part of that investigation, Leybold interviewed licensee. The investigation also included a review of licensee’s client records and consultation with experts. During a telephone interview with Leybold, licensee "acknowledged that she uses iLS with nearly 100 percent of her clients and that [the American Speech-Language Hearing Association (ASHA) ] considered iLS to be experimental."⁴

Late in 2011, while the investigation into the first complaint was ongoing, the board received a second complaint regarding licensee. That complaint alleged that licensee

"violated the speech-language pathology scope of practice, made professional judgments not based on professional best practices, advertised her services deceptively on the internet, used diagnostic treatment methodologies that may be ineffective or harmful, and was not ethical in selling devices to consumers that deliver those methodologies."

The board combined the complaints into a single investigation.

Licensee was a contracted provider with Regence Blue Cross/Blue Shield (Regence). The contract with Regence provided that Regence would pay licensee for "covered services," which included medically necessary speech therapy. The contract excluded from coverage services or procedures that were considered "investigational."

In 2011, Regence began an audit of services for which it had paid licensee. Based on records that Regence received from licensee, Regence’s investigator determined that iLS was the primary service that licensee had provided to the clients whose records were part of the audit. The investigator also determined that licensee’s treatment methods fell outside of Regence’s policy on speech therapy because it considered iLS to be experimental. In her billing to Regence for the clients at issue, however, licensee had listed only "diagnosis code 92506 (speech therapy evaluation) or 92507 (speech therapy)." Regence informed licensee that, on review of her records, it had determined that the methods of treatment she employed were not traditional speech therapy and were, instead, "investigative and experimental" and therefore excluded from coverage. After the audit (including the internal appeal process) was complete, licensee terminated her Regence contract.⁵

In 2012, the board issued a notice of proposed license revocation. Licensee requested a contested case hearing and the hearing was held before an administrative law judge (ALJ) in 2014.⁶ A number of witnesses, including Leybold, testified at the hearing. The ALJ issued a proposed order in July 2014 determining that licensee had violated a number of board rules. In the ALJ’s view, although it was within the board’s discretion to revoke licensee’s license and assess the costs of the disciplinary proceedings as a result of the violations, the more appropriate sanction was a one-year license suspension and assessment of costs of the proceedings.

The board issued an amended proposed order that adopted all of the findings of fact set forth in the ALJ’s proposed order. It also accepted eight of the conclusions of law from the ALJ’s proposed order. However, it rejected part of the ALJ’s ninth conclusion of law, which related to, among other things, whether licensee had misrepresented the services she rendered. It also rejected the ALJ’s recommendation that licensee’s license be suspended because it determined that the "appropriate sanction in this case is revocation of Licensee’s SLP license." That amended proposed final order was signed by Leybold.

Licensee filed exceptions to the amended proposed final order. In November 2014, the board issued its final order. In the final order, the board explained that it had considered licensee’s exceptions to the amended proposed order but that it did not find any of those exceptions persuasive. It further adopted the amended proposed order in its entirety. Accordingly, the board revoked licensee’s SLP license and assessed the costs of the disciplinary proceedings. The final order was signed by the board chair, Price. As noted, licensee seeks judicial review of the board’s order.

In her first assignment of error, licensee asserts that the board violated her constitutional due process rights by allowing its executive director, Leybold, "to act as the primary investigator, a fact witness at trial, and the final decision maker." Specifically, licensee points out that Leybold investigated this case, issued a notice of the board’s intent to revoke licensee’s license, acted as a witness at the hearing before the ALJ, and signed the amended proposed order, which licensee characterizes as acting as a "judge" in the case. In licensee’s view, Leybold’s role in those various aspects of this case was constitutionally impermissible.

We begin by observing that, as the board correctly points out, one premise at least partially underlying licensee’s assignment of error is mistaken. That is, licensee’s assertion that Leybold acted as a "final decision-maker" or a "judge" in this case is incorrect. Although Leybold signed the amended proposed order, she was not the final decision-maker in the case. The final order, signed by the board chair, was the action of the entire board. The board considered whether to adopt the amended proposed order and considered but found unpersuasive licensee’s exceptions to that proposed order. In the final order, it was the board itself, through its chair, that adopted the amended proposed order and ordered the revocation of licensee’s license. In other words, it was not Leybold but, instead, the board, through its chair, that acted as the final decision-maker or "judge" in the case.

Furthermore, to the extent that licensee asserts that it violated her due process rights for Leybold to take part in various aspects of the administrative case, we reject that contention. "Due process demands impartiality on the part of those who function in quasi-judicial capacities." Llewellyn v. Board of Chiropractic Examiners , 119 Or.App. 397, 402, 850 P.2d 411, aff’d , 318 Or. 120, 863 P.2d 469 (1993) (citing Schweiker v. McClure , 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) ). A party cannot establish a due process violation in administrative proceedings "merely by showing that the same agency has performed the investigative, prosecutorial and adjudicative phases of a contested case." Id . Rather, it is "well established that due process does not require a formal separation of the investigative functions from the adjudicative or decision making functions of an administrative agency, nor does it preclude those who perform the latter from participating in the investigative phase." Fritz v. OSP , 30 Or.App. 1117, 1121, 569 P.2d 654 (1977) (citing Withrow v. Larkin , 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). Accordingly, the mere fact that...