COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Kelsey and McClanahan Argued at Richmond, Virginia

EPHIGENIA K. GIANNOUKOS OPINION BY v. Record No. 0457-04-2 J UDGE D. ARTHUR KELSEY JANUARY 11, 2005 VIRGINIA BOARD OF MEDICINE AND DEPARTMENT OF HEALTH PROFESSIONS

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Catherine C. Hammond, Judge Joseph P. McMenamin (William H. Baxter II; McGuireWoods LLP, on briefs), for appellant. Emily O. Wingfield, Assistant A ttorney General (Je rry W. Kilgore, Attorney General; David E. John son, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General; Howard M. Casway, Senior Assistant Attorney General, on brief), for appellees.
The Virginia Board of Medicine wrote a lette r to Dr. Ephigenia K. Giannoukos advising her that the Department of Health Professions wa s obligated by federal law to report her prior administrative adjudication to the Healthcare Inte grity and Protection Data Bank. In response to that letter, Dr. Giannoukos filed an action in circuit court seek ing appellate review under the Virginia Administrativ e Process Act (VAPA), Code § 2.2-4000 et seq . The circuit court dismissed the appeal, holding the VAPA did not apply because the agency’s letter regarding its own reporting obligations under federal law did not constitute a “case decision” concerning Dr. Giannoukos. We agree and affirm.
I. Dr. Giannoukos practices medicine in Delaware . She also maintains a license to practice in Virginia. In 2002, after an info rmal hearing pursuant to Code § 2.2-4019, the Virg inia Board of- 2 - Medicine found Dr. Gian noukos in violation of Code § 54.1-2910.1 and 18 Va. Admin. Code § 85-20-280, et seq. for failing to submit a prof essional profile describing her qualifications and practice. Under Virginia law, the failure to subm it the required profile exposes “the licensee to disciplinary action by the Board.” See 18 Va. Admin. Code § 85-20-300(A). Prior to a formal administra tive hearing, Dr. Giannoukos and the Board agreed to the entry of a consent order. In its findi ngs of fact, the order found that Dr. Giannoukos “did not provide, within the required timeframe and in response to fo ur (4) letters from the Board between March and September 2001, the information required by Section 54.1-2910.1 of the Code and Part VII, Practitioner Profile System (18 VAC 85-20-280 et seq .) of the Board’s General Regulations.” Acknowledging that the order affected her “licen se to practice medicine in the Commonwealth of Virginia,” Dr. Giannoukos r eceived a $250 fine. SeeCode § 54.1-2401 (a uthorizing Board to impose a monetary penalty upon a finding that “a resp ondent has violated any provision of statute or regulation pertaining to the Board”). In a cover letter to the Board enclosing the consent order, Dr. Gian noukos’s counsel asked the Board not to report the consent order to the federal Healthcare Integrity and Protection Data Bank (HIPDB). The HIPDB serves as a nationa l databank for “the reporting of final adverse actions” against health care prov iders, suppliers, and practitioners. 42 U.S.C. § 1320a-7e(a). The databank cannot be accessed by the public at la rge. Only governmental agencies and health plans may review the names on the list. See 42 U.S.C. § 1320a-7e(d); 45 C.F.R. § 61.12(a). Doctors can review their own entries, but no others. See 45 C.F.R. § 61.12(a)(3). Under federal law, federal and state ag encies “responsible for the licensing and certification of health care pr oviders” must report to the HIPD B any “negative action or finding by such Federal or State agency that is publicly available information.” 42 U.S.C.- 3 - § 1320a-7e(g)(1)(A)(iii)(III). An agency may be sanctioned for failing to report an adverse action against a licensee. See 42 U.S.C. § 1320a-7e(b)(6)(B); 45 C.F.R. § 61.7(d). The Board entered the consent order on June 20, 2003, in lie u of a formal administrative hearing. Nothing in the order addressed whethe r the Board would later report Dr. Giannoukos’s state-law violation to the HIPDB. Never appealed, the consent or der constitutes a final, binding agency case decision. See Code §§ 2.2-402 3, 2.2-4026. Several months later, the Virginia Attorney General’s office notified Dr. Giannoukos that it interpreted federal law to requir e the consent order be reported to the HIPDB. The executive director of the Virginia Board of Medicine followed up with a le tter to Dr. Giannoukos stating: “Based on the advice of counsel, I understand the Department will report this order to the HIPDB early next week. The report will contain an appropriate explana tion to present the Order in its proper light.” In response to the Board’s letter, Dr. Gianno ukos filed a VAPA action in circuit court. In her petition for appeal, Dr. Gianno ukos took issue with the Attorn ey General’s interpretation of federal law concerning “the legal requirements that govern reports by the Board and Department to the HIPDB.” Alleging that fe deral law did not require the re port, Dr. Giannoukos requested injunctive relief forbidding the Board and the De partment from reporting the consent order. The circuit court dismissed the appeal, holdin g that the letter did not fall within the definition of a “case decision” un der Code § 2.2-4001 because the letter itself addressed only the question whether the agency had a reporting duty under federal la w, not whether Dr. Giannoukos had violated any law. As the circuit court explained: In the case at bar, the Director’s letter does not express a factual determination that a party “either is , is not, or may or may not be” in violation of a law or regulation. Instead the letter summarily communicates the Department’s dete rmination that it has a legal duty to report something to HIPDB. Essentially it announces a decision about what the Department believe s it should do rather than a- 4 - decision about a party’s action. For these reas ons, this court finds that the letter is not a case decision. Dr. Giannoukos appeals to us, claiming the ci rcuit court erred in di smissing the appeal.
II. Under the VAPA, the circuit court reviews th e agency’s action in a manner “equivalent to an appellate court’s role in an appeal from a trial court.” J. P. v. Carter , 24 Va. App. 707, 721, 485 S.E.2d 162, 169 (1997) (quoting Sch. Bd. v. Nicely , 12 Va. App. 1051, 1061-62, 408 S.E.2d 545, 551 (1991)) (internal quotation marks omitted). “In this sense, the General Assembly has provided that a circuit cour t acts as an appellate tribunal.” Gordon v. Allen , 24 Va. App. 272, 277, 482 S.E.2d 66, 68 (1997) (citation omitted); Pence Holdings, Inc. v. Auto Ctr., Inc. , 19 Va. App. 703, 708, 454 S.E.2d 732, 734-35 (1995). The VAPA, however, does not vest circuit cour ts with appellate authority over all agency decisions. Only those within the definition of a “case decision” fall within the scope of the VAPA’s judicial review provisions. Code § 2.2-4026. A “case decision” means any agency proceeding or determination that, under laws or regulations at the time, a named part y as a matter of past or present fact, or of threatened or contempl ated private action, either is, is not, or may or may not be (i) in vi olation of such law or regulation or (ii) in compliance with any ex isting requirement for obtaining or retaining a license or ot her right or benefit. Code § 2.2-4001. At the “heart” of a case de cision “is a fact dete rmination respecting compliance with law.” Kenley v. Newport News Hosp. Assoc. , 227 Va. 39, 44-45, 314 S.E.2d 52, 55 (1984) (quoting reviser’s note D to predecessor statute, Code § 9-6.14:4). Under Code § 2.2-4001, the definition of a case decision focuses on the named party’s alleged violation of law or ent itlement to a legally cognizable ri ght or benefit. Except to the extent it informs this central ques tion, the scope of the agency’s le gal duties is entirely beside the- 5 - point. 1 In other words, a case decision represents a determination “under laws or regulations at the time” that the named party is or may be in vi olation of “such laws orregulations” or out of compliance with some requirement for obtaining some right or benefit. Code § 2.2-4001. A determination addressing only the agency’s lega l duties does not qualify for VAPA review. The circuit court recognized th is subtle, but critical, distin ction. As the court observed, the Board’s letter to Dr. Gioa nnoukos merely informed her that (based on its understanding of federal law) the agency had a legal duty to re port the consent order to the HIPDB. The court acknowledged the letter represen ted a determination of sorts

⎯ just not one making any independent adjudication of the legality of Dr. Giannoukos’s conduct. We agree with the circuit court’s reasoning. Applied to the Board’s letter, the case deci sion definition’s reference to “such laws or regulations” could only mean the federal stat utes and regulations governing the agency’s reporting duties. See 42 U.S.C. § 1320a-7e; 45 C.F.R. § 61.7. Dr. Giannoukos had no statutory duty to report an adverse agency action, even one she concedes to be legally reportable. The letter cannot itself be fairly characterized as an independent determination that Dr. Giannoukos violated state statutes and regulations by failing to file her professional profile with the licensing authority. That determination had already been made, several months ear lier, by the entry of a final, unappealed consent order.

1 None of the Virginia cases interpreting “case decision” under the VAPA involves a determination of the agency’s compliance or noncompliance with governing statutes or regulations. See , e.g. , Kenley , 227 Va. at 45, 314 S.E.2d at 56 (involving case decision which “ruled” that hospital needed a cer tificate of public need before performing open heart surgeries); Commonwealth v. County Utilities Corp. , 223 Va. 534, 290 S.E.2d 867 (1982) (dealing with a case decision denying a septic system permit); Va. ABC Comm. v. York St. Inn , 220 Va. 310, 257 S.E.2d 851 (1979) (addressing case decision by the ABC Commission forbidding applicant from serving alcohol under certain conditions).- 6 - To Dr. Giannoukos, this reas oning is both illogical and unfair: Illogical, because the agency’s federal statutory duty to report the consent order implies a determination that her violation of state law was a reportable offe nse. Unfair, because including her in the federal HIPDB places her, as she puts it, in the company of “frauds and cheats”

⎯ thereby exposing her to considerably more guilt-by-association than her simple (and allegedly trivial) violations of bureaucratic paperwork rules justify. We find neither assertion persuasive. From a logical point of view , we accept that the Board

⎯ in order to determine its own reporting duties

⎯ must necessarily decide wh ether the consent order is a reportable event. Federal law defines a reportable event as any “negative acti on” against a licensee that is “publicly available information.” 42 U.S.C. § 1320a-7e(g)(1)( A)(iii)(III); 45 C.F.R. § 61.7(a)(3); see also 45 C.F.R. § 61.3 (defining “[a]ny other negative action”). 2 The federal definition, th erefore, did not require the Board to decide whether Dr. Giannoukos violat ed state law. The c onsent order had already resolved that issue. The onl y thing left to do was to deci de, under federal law, how to characterize the consent order: negati ve or non-negative, public or private. As to the ostensible unfairness of being included on the HIPDB list, Dr. Giannoukos makes an emotively appealing poin t. The principal reason for the federal database appears to be an effort at exposing fraudfeasors in the medi cal profession. And her paperwork violation of

2 See also 42 U.S.C. § 1320a-7e(b)(1) (“Each Gove rnment agency and health plan shall report any final adverse action ( not including settlements in whic h no findings of liability have been made) taken against a health care provi der, supplier, or practitioner.”); 45 C.F.R. § 61.7(a)(3) (requiring reports of “[a]ny other negative action or finding by such Federal or State agency that is publicly available information”); 45 C.F.R. § 61.3 (“Any other negative action or finding by a Federal or State licensing agency me ans any action or finding that under the State’s law is publicly available information, and rende red by a licensing or ce rtification authority, including but not limited to, limitations on the sc ope of practice, liquidations, injunctions and forfeitures. This definition also includes fi nal adverse actions rendere d by a Federal or State licensing or certification au thority, such as exclusions, revocat ions or suspension of license or certification that occur in conjunc tion with settlements in which no finding of liability has been made (although such a settlement itself is not re portable under the statute). This definition excludes citations, corrective acti on plans and personnel actions.”).- 7 - state licensure regulations, she argues, falls far below the culpability threshold for being included on the list. See generally 64 Fed. Reg. 57740, 57744 (Oct. 26, 1999) (summarizing public comments prior to adopti on of final regulation). 3 That may or may not be so. Like the circuit court, we offer no opinion on the subject. He r equitable argument, however, can be made directly to the HIPDB list administrator for review. See 45 C.F.R. § 61.15(b) (establishing procedures for “disputing a report with the reporti ng entity”). Whether that effort might prove successful or futile does not change the stat e-law definition of “case decision” under Code § 2.2-4001. But it does undermine her claim that being included on the HIPDB list constitutes an irreversible harm that, by necessity, must be a ddressed within the carefully drawn limits of the state administrative process.
III. In sum, we hold that the Board’s letter advising Dr. Giannoukos th at the consent order would be reported to the HIPDB does not consti tute a “case decision” under Code § 2.2-4001. The trial court, therefore, correctly dismissed the appeal. Affirmed.

3 Butcf. http://www.npdb-hipdb.com/pubs/gb/HIPD B_Guidebook_Chapter_E.pdf, at E-9 (Feb. 2000) (last visited Dec. 20, 2004) (“A reportable final advers e licensure action must be a formal or official action; it need not be sp ecifically related to pr ofessional competence or conduct.”).