COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and Russell Argued at Arlington, Virginia

PANKAJ MERCHIA, M.D. 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. Wh ite, Judge Pankaj Merchia, M.D., pro se . Erin L. Barrett, Assistant Atto rney General (Mark R. Herring, Attorney General; Cynthia V. Ba iley, Deputy Attorney General; Allyson K. Tysinger, Senior Assi stant Attorney General, on brie f), for appellee.
Appellant Pankaj Merchia, M.D., challenges a circuit court ord er dismissing his appeal of a decision of the Virginia Board o f Medicine (the Board) repriman ding and disciplin ing him for his conduct related to patients’ records. Finding no error, we aff irm.
BACKGROUND On appeal, we view the evidence in the light most favorable to the Board, the party prevailing below. Hedle ston v. Va. Ret. Sys

. , 62 Va. App. 59 2, 594, 751 S.E.2 d 1, 2 (2013). Appellant is a licensed physician certified in sleep medicine. In 2005, he helped establish a sleep disorder center known as SleepH eart in Massachusetts; the cente r closed in 2008. In 2008, he assisted a medical school frien d and her father with establishi ng 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 op inion is not designated fo r publication.UNPUBLISHED- 2 - Appellant helped file t he center’s LLC paper work and served as its registered agent, but did not have an equity interest in the business. Nonetheless, he did s erve as a manager of the business and as the center’s “medical direct or.” Although appellant describ ed 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 perfor ming consulting and r esearch 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 t hat he “reported to [himself].” Patient A began seeing appellan t in March 2009, but in June re located to Pennsylvania, where she found anothe r doctor. In August 2009, Patient A requ ested multiple time s that appellant send a copy of her records to he r or her new doctor. The new d octor also requested the records on Patient A’s behalf. When neithe r Patient A nor h er new doctor received the record s, Patient A filed a complaint with the Department of Health Professions (DHP) on November 3, 2009. As of the initiation of these pr oceedings, Patient A still had not receiv ed any of her records. Appellant provided sleep medicine services to Patient C in Apr il 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 offic e visits and resulting treatment, but the records received did not inc lude all of his records from Sl eepHeart. Patient C filed a complaint with DHP on March 9, 2010. By letter dated August 18, 2014 , DHP informed appellant that t he Board was going to conduct an informal conference to “inquire into allegations that [he] may have violated certain laws and regulations governing the pr actice of medicin e and surgery in Virginia.” The allegations included the complaints by Patients A and C regarding their req uests for medical records and a charge that appellant had engaged in fraudulent billing practic es. The informal conference was- 3 - scheduled for November 12, 2014, and the letter informed appell ant that he could be represented by counsel. Appellant requested more time to review documentation provided by the Board, and the informal conference was continue d to January 14, 2015. Appella nt appeared with counsel. On February 25, 2015, the Board issu ed appellant a reprimand based on its finding that appellant failed to comply with requirements rega rding medical records. By lett er dated April 6, 2 015, appellant, by counsel, requested that the Board vacate its order; appellant c ontended that, as a result of a June 11, 2013 e-mail he sent to a representative of DHP, the issues alre ady had been decided in his favor by operation of Code § 2.2-4021 and t hat the January conference fa iled to “compl[y] with certain procedural and substantive requirements” with relation to some of the allegations, rendering it void. In the alternative, appellant requ ested a formal administrative hearing. By letter dated April 14, 2015, the Board advised appellant th at it had received his “request for a formal hearing,” that the matter would be scheduled in th e future with thirty-days’ notice, and that the February 25, 2015 ord er had been vacated. On May 14, 2015, the Board issued a notice of a formal administrative hearing for June 18, 2015. The Board pro vided a “Statement of Particulars” on May 15, 2015. By letter dated May 19, 2015, appellant reque sted that the matter “be continued” to allow for adequate preparation and resolution of another pen ding matter. Throughout 2016, the Board, at the request of appellan t, issued numerous subpoenas t o third parties. Some of those parties challenged the subpoenas , causing additional delays. The formal hearing was reschedu led for January 2 7, 2017, but o n 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 continuan ce was granted on D ecember 2, 2016. Although appellant had requested that the matter not be heard p rior to June 1, 20 17, on March 8, 2017, the Board sent a notice in forming appellant that the hear ing had been set f or May 19, 2017.- 4 - After receiving the notice on Mar ch 9, appellant, by letter dat ed April 5, 2017, requested that the hearing be postponed to November 19, 2017. As grounds, appella nt cited the Board’s “failure to provide reasonable notice” of pre-hearing objection and motion deadlines, insuffi cient time to obtain new counsel, and insufficient time to react to the subpo ena rulings. The Commonwealth objected to this request for yet another continua nce. The Boar d denied the requested continuance. On April 10, 2017, ap pellant filed multiple pre-hearing motion s and asked for a stay of proceedings pending their resolution. Appellant also objected to numerous Commonwealth exhibits, claiming they constit uted 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 w ere denied, and his evidentiar y objections were overruled. The Board conducted the formal hearing on May 1 9, 2017. Appel lant was represented by counsel. 1 Both Patients A and C testifi ed by phone with out objection. All witnesses we re subject to cross-examination by appellant’s counsel. During the Commonwea lth’s first witn ess’ testimony, appellant attempted to ask the w itness a question after his cou nsel already had done so; the Commonwealth objected and the Board explained to appellant, “yo u’ll be able to speak later as a witness, but with cross -examination, that co mes from your couns el.” Appellant queried, “I cannot be co-counsel along wit h my counsel of recor d for cross-examina tion purposes?” The Board answered, “No.” Over appellant’ s objections, the Board admitte d into evidence Commonwealth exhibits 1 through 9, which inclu ded investigation reports prep ared by DHP’s enforcement division relating to the patients’ complaints, correspondence between th e patients and appellant,

1 Throughout the proceedings, appellant has been represented by multiple attorneys and has, at times, represented himsel f. At the formal hearing, the attorney who had been representing him prior to the hearing did not appear; rather, a new attorney made his first appearance at the hearing. Appellant confirmed at th e hearing that the new attor ney was there to represent him.- 5 - correspondence between DHP and a ppellant, medical and billing/i nsurance records, and records of the State Corporation Commission. Patient A testified that prior to her first appointment with h er new doctor in Pennsylvania, she contacted appellant to reque st her records. She stated: “ Dr. Merchia said he could do that and then after several phone calls a nd e-mails by myself and the ne w doctor’s office, those records were never sent.” Patient A estimated she made eight attempts to ob tain 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 a ppellant to send her new doctor the records, “[h]e said, ‘yes, that’s no problem, I can send them.’” Whe n neither she nor her doctor re ceived them, and she asked again, appellant replied that the delay was due to his son being in th e 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 retriev e her records, and t hen acknowledged he had fifteen. Patient A testified that, as of the hearing, s he still had not recei ved any records. Exhibits introduced by the Comm onwealth corroborated Patient A ’s testimony. Patient A first requested her records via e-mail on the morning of August 17, 2009. When s he followed-up later that afternoon, appellant responded, “got it and will hav e it done.” Patient A sent another e-mail ten days later, on Augus t 27, 2009, stating “I’m quite c onfused as to why my records have no[t] been sent . . . .” In the e-mail, she referenced other c ontact she and her doctor made seeking the records. Appellant respond ed the same morning that he had been ill and that his son had been hospitalized, but that he would “get things straightened out an d sent to your doc. ” Later the same day, Patient A notified appellant that she would be filing a co mplaint with DHP. In response, appellant acknowledged the reques t made on August 17, but told appellant, for the first time, that she would need to “mail us a sig ned letter requesting a copy of your health record s . . . .” After initially stating th at the records would th en be sent within th irty days, appellant told her that she- 6 - would receive them wi thin “[fifteen] days o f written request.” After unsuccessfully attempting to fax appellant her signed “formal r ecords request,” Patient A e- mailed a copy of he r letter requesting the release of her records on Sep tember 11, 2009. The exhibits also proved that Patient A’s Pennsylvania doctor requested her records by a letter dated Aug ust 31, 2009. That letter referenced that the doctor had made previous requests. Patient C testified that in October 2009 he submitted a record s 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 fo rm to get my records[, and m]y family doctor had tried to get my recor ds and didn’t get a response.” There also “was s ome e-mailing back and forth.” Patient C explained that eventually, in early Marc h 2010, “[t]hey gave me some of my records, but it wasn’t all of the doctor’s visits, it wasn’t th e 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 befo re I ended up having surgery f or deviated septum.” The request form Pati ent C submitted to Sle epHeart was admitte d into evidence and shows that Patient C requested “all sl eep studies and records pertain ing to sleep studies” on October 15, 2009. An e-mail show s that on March 2, 20 10, Patient C followe d up, notifying SleepHeart that what he had received w as incomplete and re questing that “ALL my records be sent. ” As part of DHP’s investigation, appellant e ventually produced far more tha n the seven pages of records in response to DHP’s request for P atient C’s medical records. Testifying on his own behalf, appellant ackno wledged receivingPatient 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 cove ring all the records that subsequently were sent to DHP in its investigation in light of different typ es of records maintained by SleepHeart.- 7 - He also contended that he was no t responsible for the administr ative 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 “decei ved Patient A between August 1 7, 2009 and August 27, 2009 in his verbal and electronic resp onses to her requests . . . for c opies 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 appel lant “provided incomplete medical records to Patient C several mon ths after Patient C submitted a request for his records, as required by Section 32.1-127.1:03 (E) of the Code.” The Board acknowledg ed that appellant “testified that he believed that he did not have control over the patient recor ds of his practice[, and] . . . that his father, an employee of the practice, was the only person who co ntrolled the records.” From this, the Board concluded that appellant “ did not have a full understandi ng of a practitione r’s responsibility for the maintenance and release of medical records.” Based on these findings, the Board concluded that appellant ha d 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, a s a sanction, ordered appellant to complete twelve hours of approved continuing medical education in medical record keeping within a specified time period.

2 Code § 54.1-2915(A)(16) defines as unprofessional conduct a ph ysician “[p]erforming any act likely to deceive, defraud, or harm the public . . . .”

3 Code § 54.1-2915(A)(18) defines as unprofessional conduct a ph ysician “[v]iolating or cooperating with others in viol ating any of the provisions of C hapters 1 (§ 54.1-100 et seq.), 24 (§ 54.1-2400 et seq.) and this chap ter or regulations of the Bo ard . . . .”

4 18 VAC 85-20-26(B) requires a physician to “provide patient re cords to another practitioner or to the patient or his personal re presentative i n a timely manner in accordance with provisions of § 32.1-127.1:03 of t he Code of Virginia.”- 8 - Appellant appealed the Board’s M ay 26, 2017 order to the circu it court. Appe llant alleged that the Board erred in its factual findings, misapplied the la w in deeming him responsible for responding to records requests, erroneously admitted evidence, and failed to compl y with statutory and constitutional procedural requirements. The parties submit ted memoranda, and a hearing was conducted on De cember 8, 2017. By order dated Decemb er 8, 2017, the circuit court found that “there was no error of law committed by the [Boar d]” and that the “pr oceedings under the V irginia Administrative Process Act . . . did not violate [appellant] ’s constitutional rights.” Th e circuit court held that “[t]he Board acted within its statutory j urisdiction in disciplining” appellant an d 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 denie d him due proces s by failing to comply with certain c onstitutional and statu tory requirements; (3) “it is both unlawful and unreasonable for the Board to hol d [him] liable for responding to requests for records to the practice”; and (4) “the Board admitted evidence that lacked rel evance or basis or foundation or authenticity and prejudiced the Board members.”
ANALYSIS The Board of Medicine is an administrative agency authorized t o discipline a doctor for “unprofessional conduct.” Code § 54.1-2915(A). Board discipli nary proceedings “are subject to the provisions of the Virginia A dministrative Process Act [(VAP A)].” 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 “burde n of demonstrat[ing] an error . . . subject to review.” Code § 2.2-4027. Such errors- 9 - include: (i) accordance with c onstitutional right, power, priv ilege, or immunity, (ii) compliance with statutory authority, jurisdic tion limitations, or right as provided in the basic laws as to subje ct matter, the stated objectives for which regulations may be made , and the factual showing respecti ng violations or entitlement in connection with case decisions, (iii) observanc e of required procedure where any failure the rein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact. Id. I. Substantial ev idence supported the Board’s findings 5 Appellant argues that the Board’s factual determinations were not supported by the evidence. In reviewing an agency decision, we give deference t o 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” stand ard . . . is desig ned to give great stability and finality t o the fact-findings of an administrativ e agency. The phrase “substantial evidence” refers to “such relevant evidence as a reasonable min d might accept as adequate to support a conclusion.’”” Hedle ston, 62 Va. App. a t 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 evid ence “in the light most favorabl e to sustaining the agency’s decision,” Va. Ret. Sys. v. Blair , 64 Va. App. 75 6, 770, 772 S. E.2d 26, 32 (2015 ); and “we may ‘reject [the] agency’s factual fi ndings only if, considering th e record as a whole, a reasonable mind would necessarilycome to a different conclusion, ’” Va. Bd. of Med. v. Hagmann, 67 Va. App. 488, 500, 797 S.E.2d 4 22, 428 (2017) (altera tion and emphasis in ori ginal) (quoting Blair, 64 Va. App. at 765, 772 S. E.2d at 30). “Credibility determination s are factual findings subject to this same standard.” Id.

5 At oral argument in this Court , appellant made clear that he i s not arguing that the acts and omissions alleged by the Boa rd do not constitute violations of the relevant statutes and regulations. Rather, he argue s that he did not commit those ac ts or omissions.- 10 - In the proceedings before the Board, there was substantial evi dence to support the Board’s findings. Specifically, both Patie nts A and C testified that t hey requested that appellant provide them their records. Requests we re communicated by conversation , e-mail, through the practice’s website, fax, and even registere d 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 r eceived some of them, and, from the evidence, all of them went to th e practice where appellant test ified 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 beg an requesting her records in 2009 and testified that she had not b een provided with the records a s of the 2017 hearing. Similarly, Patient C testified that he re quested records in October 2009 and did not receive any records until March 2010. At that time, despite requests for all of his reco rds, he received seven pages of records. DHP’s investigation re vealed that there were over fif ty pages of responsive records. 7 Accordingly, substant ial evidence supported the Board’s conclus ion that appellant failed to produce the records in the manner required by Code § 32.1-127.1 :03. Evidence also supports the Boa rd’s conclusion that appellant m ade deceptive statements. Patient A detailed numerous commu nications with appellant in wh ich he conveyed that he was

6 Appellant argues that evidence was introduced that would suppo rt a conclusion that he was not the only healthcare prov ider who worked at the practice . While there may be such evidence, it was not error for th e Board to accept appellant’s sworn testimony that he was the sole clinician providing patient c are, which, when credited by the Board as factfinder, constitutes substantial evidence.

7 Appellant argues that one of P atient C’s requests only sought records related to sleep studies and that the seven pages he was provided were all of th e records related t o sleep studies. This ignores evidence detaile d above that Patient C, on more th an one occasion, requested all of his records.- 11 - on top of her records request and that she could expect to rece ive the records soon. Given that Patient A never received the re cords and the differing reasons appellant gave over time for the lack of production, the Board, sitting as factfinder, was free to conclude that appellant’s explanations were untrue and de signed to deceive the patient ab out the status of her records request. In short, there was s ubstantial evidence to support the Board’s conclusion that appellant violated Code § 54.1-2915(A)(1 6), Code § 54.1-2915(A)(18), and 18 VAC 85-20-26(B). Appellant argues that other evidence in the record supports a contrary conclusion. He points to other evidence, such as portio ns of his own testimony, that calls into question his knowledge of the requests for records, whether they were properly made, and whether others at the practice were responsible for responding to the requests. In d oing so, he mi sunderstands the role of the Board as factfinder and our role on appeal. The existence of conflicting evidence is of no moment on appea l. “It is not unusual for there to be conflicting evidence in contested cases, and it is the job of the [Board], as factfinder, to resolve those conflicts .” Blair, 64 Va. App. at 769, 772 S. E.2d at 32. That appellant can point to “[t]he existence of eviden ce in the record supporting a contrary conclusion does not establish that there is not substantial ev idence in the record to support [the Board’s] determination.” Id. Because there is evidence in the record that supports the Board ’s conclusion, we cannot say the Board erred in concluding that ap pellant violated the relevant statutes and regulation in the manner described. II. Due process claims Appellant next contends that the Board erred in failing to aff ord him procedural protections grounded in specified constitutional and statutory provisions. Appellant’s challenges based on constitutional and statutory provisions raise question s of law subject to de novo review.- 12 - See Va. Bd. of Med. v. Zackrison, 67 Va. App. 461, 475, 796 S.E .2d 866, 872-73 (2017); Code § 2.2-4027. A. Constitutional due process and administrative hearings “Because a physician may not practice medicine in Virginia wit hout a license, a license to practice medicine is a signi ficant property interest,” and thus, is entitled to due process protections. Zackrison, 67 V a. App. at 482, 796 S.E.2d at 876 (internal citations omitted). Citing the United States Supreme Court, our Supreme Court has r ecognized “the minimum requirements of constitutional due process which must attend administrative hearings: timely and adequate notice, the right t o confront adverse witnesses an d present one’s own evidence, the right to the assistance of retai ned counsel, and an impartial d ecision-maker.” Hladys v. Commonwealth, 235 Va. 145, 147, 366 S.E.2d 98, 99 (1988) (citin g Goldberg v. Kelly, 397 U.S. 254, 271 (1970)). 1. Notice Here, the record is clear that a ppellant receive d notice of the allegations against him and was given more than adequate t ime to prepare having been grante d multiple continuances to allow for such preparation. Acco rdingly, his due process rightto timely and adequate notice was satisfied. 2. Confrontation of a dverse witnesses Appellant, through his chosen c ounsel, was given the opportunit y to cross-examine all of the witnesses against him, and therefore, his due process right to confront adverse witnesses was satisfied. Appellant makes much o f the fact that he was not al lowed to ask questions of the witnesses in addition to the quest ions that his chosen counsel asked. This is not a denial of confrontation; rather, it is simply a recognition of the longst anding practice in administrative and judicial proceedings that a party may not have multiple attorne ys or other representatives- 13 - conduct questioning of a single witness. In any event, the rec ord does not demonstrate that any questions that appellant wishe d to ask any witness were not or could not have been asked by his chosen counsel. Accordingly, his right to confront adverse witnesses was satisfied. 8 3. Right to pres ent evidence Similarly, appellant’s right to pr esent evidence was satisfied. In fact, appellant has pointed to no specific piece of e vidence that he sought to intr oduce that impermissibly was rejected by the tribunal. 4. Assistance of counsel Appellant was represented by counsel in the proceeding before t he Board that gives rise to this appeal. Despite previ ously having represented himself and having been represented by different retained counsel earli er in the proceedings, appellan t came to the hearing with counsel of his choosing. Because the new counsel previously had not ma de an appearance in the case, the Board had appellant confirm that the new counsel who appear ed at the hearing was his counsel and allowed that lawyer t o represent appe llant at the h earing. Given that he was represented at the hearing by counsel he chos e, appellant’s due process right to the assistance of counsel was satisfied.

8 Appellant also argues that he w as deprived of the right of con frontation because the witnesses appeare d by telephone. We note , however, that no obj ection to Patient A and Patient C testifying by telephone was made at the time their testimony was given and that appellant’s counsel questioned each of them at that time. Furthermore, abs ent some issue not apparent from the record before us, a witne ss appearing by telephone in an ad ministrative hearing does not violate due process.- 14 - 5. Impartial decision maker For the first time on appeal, appe llant asserts that he was “de nied his right to an ‘impartial jury[.]’” 9 Specifically, without any support in the record, he baldly as serts that the chairman of the Board proceeding g iving rise to this appeal “de rives profits from [a medical practice,] which includes a comp eting sleep medicine practice i n the same specialty and in the same geography as where [appellant] practices.” The record is devoid of anything that substantiates the allegation, whi ch appellant himself couches b y noting he makes it based only “upon information and belief.” App ellant points to no evidence of bias during the proceedings. This is significant in that , although the Board found against a ppellant regarding record keeping issues, it did not make an adve rse finding against him regardin g the more serious fraud charges. Given the state of the record and the presumption that, serving as a public official, the chairman “acted correctly,” Hladys, 235 Va. at 148, 366 S.E.2d at 100, a ppellant simply has not

9 The failure of appellant to rai se the claim below is significa nt because it prevented the Board from addressing the claim i n the manner prescribed by sta tute. As we observed in Hagmann, [p]ursuant to Code § 54.1-110(B), a Board member “shall disqualify himself from a proceed ing and withdraw from any case in which he cannot accord fair and impartial consideration.” T he statute further provides that any party may request disqualific ation “by stating with particularit y the grounds upon which it is cla imed that fair and impartial cons ideration cannot be accorded.” Code § 54.1-110(B). Finally, based on those allegations, “[t]h e remaining members of the . . . panel shall determine whether th e individual should be disqualif ied.” Code § 54.1-110(B). The burden of proving such bias or preju dice lies with the party se eking recusal. On appellat e review of such a determination, state administrators are assumed t o be [people] of conscience and intellectual disciplin e, capable of judging a particular contro versy fairly on the basis of its own cir cumstances absent proof to th e contrary. 67 Va. App. at 515-16, 797 S.E.2d at 435 (some internal quotati on marks and citations omitted).- 15 - demonstrated any bias on the partof the chairman. Accordingly , his due process challenge regarding bias fails. B. Protections afforded criminal defendants Equating the notice he received f rom the Board as an “indictme nt,” the informal fact-finding conference as a “1s t trial,” and the Board hearing as a “2nd trial,” appellant argues that he was entitled to a full range of constitutional protecti ons that are afforded criminal defendants. He reasons that, b ecause the fraudulent billing al legations against him are not only professional misconduct but also s erious crimes, he was entitle d to have: the Board prove “its charges to the level of beyond a reasonable doubt”; a “unanimou s jury” make any adverse finding; 10 and the full panoply of protecti ons afforded criminal defendan ts by the Fifth and Sixth Amendments to the United States Constitution, including but not limited to protections against double jeopardy. 11 The flaws in this argument are readily apparent: Board of Med icine proceedings conducted pursuant to the VAPA ar e not criminal prosecutions; they are administrative proceedings, and thus, do not afford a physician the same right s as a criminal defendant. See, e.g., Hagmann, 67 Va. App. at 503, 797 S.E.2d at 429. The Boar d’s initial notice was not an indictment, the informal fact-f inding conference was not a “1st trial,” and the ultimate proceeding before the Board was not a criminal trial, first, se cond, or otherwise. The penalties available to the Board, such as the additional continuing medic al education requirement imposed

10 We note that, by statute, the Board is authorized to impose di scipline for violations on less than a unanimous vote. Code § 54.1-105.

11 Appellant is correct that the fr audulent billing practices the Board alleged he engaged in constitute both professional mi sconduct subject to sanctions by the Board and criminal offenses that could be prosecute d by the appropriate authoritie s. The fact that the same conduct can subject a person to both crimi nal sanction and professional discipline does not convert a disciplinary proceeding before the Board into a criminal prosec ution.- 16 - here, are civil in nature, a nd the Board did not and does not h ave the power to impose criminal sanctions. Because Board proceed ings are not, in fact, crimina l, protections afforded a criminal defendant simply are not applicable to appellant. Accordingly, the Board did not violate appellant’s rights by not affordi ng him the same rights afforde d a criminal defendant. C. Statutory due process Appellant next claims that the Board violated hi s statutory ri ghts by failing to render its decision consistent with certai n procedural deadlines. We disa gree. 1. Code § 2.2-4021 Appellant contends that he was entitled to a resolution of all issues in his favor because he alleges that the informal fact-finding conference did not re nder a decision within the time frame specified in Code § 2.2- 4021. On appeal, appellant cites Code § 2.2-4021(C), which provides, in pertinent part, that [i]n any informal fact-findi ng . . . proceeding in which a hear ing officer is empowered to reco mmend a finding, the board, commission, or agency personnel responsible for rendering a decision shall render that deci sion within 30 days from the dat e that the agency receives the h earing officer’s recommendation. If the agency does not render a decision within 30 days, the named party to the case decision may pr ovide written notice to the ag ency that a decision is due. If no decision is made within 30 days from agency receipt of the notice, the decision is deemed to be in f avor of the named party. [12] The Board argues that this argum ent cannot be considered becaus e any actions of the informal fact-finding conference became a nullity once appellant appeale d its decision to the Board for a formal hearing. See Code § 54.1-2400(10).

12 Code § 2.2-4021(B) provides for a similar process for informal fact-finding conferences “in which a hearing o fficer is not us ed or is not e mpowered to recommend a finding[.]” Although he consiste ntly has referenced Code § 2.2 -4021, appellant has been inconsistent in his arguments as to whether subsection (B) or ( C) applies. Because his opening brief does not reference subs ection (B), we limit our analysis to subsection (C).- 17 - Assuming without deciding that th e argument is properly before us and that the code section is even applicable, we find that it did not preclude th e actions of the Board for multiple

reasons. 13 First, in asserting his claims, he has misidentified the initia l interviews with him regarding the respective patient c omplaints as the “informal fa ct-finding . . . proceeding[s]” and “the hearing officer’s recommenda tion[s]” that trigger the stat utory deadlines in Code § 2.2-4021(C). They were not. Initi al interviews by investiga tors are just that—interviews. They do not trigger the statu tory deadlines of Code § 2.2-4021( C). 14
Even if the initial interview s cited by appellant could be cons trued as informal fact-finding conferences, the deeming provision of Code § 2.2-4 021(C) still was not implicated. Under the statute, for “the d ecision [to be] deemed to be in favor of the named party,” two conditions must be met. Id. First , the agency must fail to is sue a decision within thirty days of receiving the recommendation of the hearing officer. Second, the named party must “provide written notice to the agency that a decision is due . . . .” I d. Only if the agency fails to issue a decision within thirty days of r eceiving such written notice wi ll the case decision be “deemed to be in favor of the named party.” Id. Here, in support of his claim th at he provided such written not ice, appellant cites only to a June 11, 2013 e-mail he sent to an employee of DHP. The “re” line of the e-mail reads: “documents I have provided you i n the past and your reports[.]” With the exception of

13 In declining to address these ot her arguments that could resul t in affirmance of the Board’s decision, we are not c ommenting on their viability. Ra ther, we are limiting our discussion of appellant’s claim t o what we conclude is the bestand narrowest ground. See Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2 015) (“The doctrine of judicial restraint dictates that we decide cases on the best an d narrowest grounds available.” (internal quotation marks and citation omitted)).

14 The record reflects that the i nformal fact-finding conference regarding these complaints occurred in Januar y 2015 and a decision was rendered in February 2015.- 18 - appellant’s name at the conclu sion of the e-mail, the entire bo dy of the e-mail reads as follows: “Thank you for your detailed message. As [sic] the board come to a decision? Thank you[.]” Nothing in the e-mail message eve n suggests “to the agency that a decision is due” as required to trigger the deeming provisi on of Code § 2.2-4021(C). The failure of the only writing cited by appellant to provide such notice precludes any possibility that he might have been entitled to relief under Code § 2.2-4021(C). 2. Code § 54.1-2400(10) Appellant contends that the proc eedings below were invalid because of the passage of time between the initial compl aints by the patients and when th e case was actually adjudicated. Specifically, he argues that Code § 54.1-2400(10) required the Board to act “upon receipt of information that a practitioner or permit holder of the appropr iate board may be subject to disciplinary action.” From this, he contends that the Board immediately has to proceed to an informal fact-finding conference when a complaint is received, and thus, the delay between the receipt of the initial compla ints and the prosecution of his ca se renders the findings invalid. This misunderstands the statute. Code § 54.1-2400, including s ubpart (10), is a statutory listing of the powers of health r egulatory boards. The provisi on in question authorizes the Board to conduct informal fact-finding c onferences “upon receipt of i nformation that a practitioner or permit holder of the appropriate board may be subject to discip linary action.” It does not set a deadline for the Board to do so and does not require, as appell ant’s argument necessarily implies, the Board to convene an informal fact-finding conference based solely on a patient complaint without first investigating the c laim to determine whether it m ay have merit. In short, appellant attempts to find a procedural r ight in a provision that does no t create one. Acco rdingly, the Board did not err in the ma nner asserted by appellant.- 19 - III. Appellant’s responsibility for patient records Appellant argues that the Boa rd erred in finding him responsib le for “responding to requests for records to the practice.” He argues that the reco rds belonged to the practice, that the requests for records were made of the practice, and that he was a mere contract worker at the practice with no abilit y to produce the requ ested records. Fro m these assertions, he contends that he did not have the responsibility t o produce the re cords even if some of the requests were made directly of him. At the outset, we note that, a s a physician licensed by the Bo ard, appellant has a statutory responsibility to prov ide medical records t o his patients who r equest them. M edical record production generally is governed by Code § 32.1- 127.1:03(A), wh ich is sometimes re ferred to as the Health Records Privacy Act. Cod e § 32.1-127.1:03(A)(1) provide s that “[h]ealth care entities shall disclose health records to the i ndividual who is the subject of the health record . . . .” In turn, Code § 32.1-127.1 :03(B) defines “health c are entity” as, among other things, “any health care provider,” and then adopts the de finition of “health care provi der” found in Code § 8.01-581.1, which includes “a person . . . li censed by this Commonwealth to provide health care or professional services as a physician . . . .” Because there is no dispute that appellant was a physician licensed by the Commonwea lth, he was subject to the H ealth Records Privacy Act, including the statutory duty to pr ovide records to his patients who request them. Code § 32.1-127.1:03(A)(1). Given this statutory duty, ap pellant’s argument amounts to lit tle more than an impossibility defense—the records belonged to the practice and he, as a mere “contract physician ,” had no ability- 20 - to provide the records to the patients. Even assuming that the re may be instances where such a defense may be viable, 15 the Board was not required to accept it here. Although at times he described hi mself as a “contract physicia n,” ample evidence before the Board supports the conclusion that this understates his role in the practice. He was central to the formation of the prac tice, had a role in the filing of the corp orate documents bringing it into existence, and served as its registered agent. He was the prac tice’s manager and “m edical director.” More importantly, he testified u nder oath before the Board that , in the relevant time period, he was the “sole clinician who [saw] p atients” and “reported to [himse lf].” From all of this, the Board, as factfinder, could reasonably conc lude that appellant had both t he duty and the ab ility to produce the requested records. Such a conclusion is buttresse d by appellant’s communications with Patient A about her records. When she first contacte d appellant about sending her records to her new doctor in Pennsylvania, appellant respond ed that he could do that. When the records were not forthcoming, Patient A again asked for the records to be sent. Appellant re sponded “no problem, I can send them.” These responses, coupled with the other evidence, suppo rts the Board’s conclusion that appellant had the ab ility to produce the requeste d records. Ac cordingly, the Board did not err in concluding that appellant was res ponsible for doing so and that his failure constituted sanctionable conduct. IV. Admission of evidence Appellant contends the Board erred in “admit[ting] evidence th at lacked relevance or basis or foundation or authenticity and prejudiced the Board members . . . .” Specific ally, he contends

15 It should go without saying that a physician may not structure his practice to insulate himself from his statutory duty t o produce medical records whenrequested.- 21 - that the admission of documents related to the Board’s allegati ons that he committe d billing fraud prejudiced the Board’s consideration of the other issues. We review appellant’s challenge to the Board’s admission of ev idence under the deferential abuse of discretion standard. See LifeCare Med. Transps., Inc. v. Va. Dep’t of Med. Assistance Servs., 63 Va. App. 538, 553, 759 S.E.2d 35, 43 (2014) (“Eviden tiary rulings at an administrative agency formal hear ing, therefore, are within the discretion of the presiding officer.”). Furthermore, we note that proceedings before the B oard “are not governed by . . . the rules of evidence” and that “normal rules regarding the admissi bility of the evidence are relaxed[.]” Zackrison, 67 Va. App. at 479, 796 S.E.2d at 875. As the Supreme Court has noted, [t]he rules of evidence are cons iderably relaxed in administrat ive proceedings, and the findings of a dministrative agencies will n ot be reversed solely because evidence was received which would have been inadmissible in court . No reversible error will be f ound in such cases unless there is aclear showing of prejudice aris ing from the admission of such evide nce, or unless it is plain thatthe agency’s conclusions were determined by the improper evidence, and that a contrary r esult would have been reached in its absen ce. Bias, 226 Va. at 270, 308 S.E.2d at 126. Here, the challenged evidence was certainly relevant. Althoug h the Board ultimately did not sanction appellant for his alleged fraudulent billing, that was an allegation that was before the Board. Because the issue of fraudulent billing was part of the proceeding, evidence related to fraudulent billing was relevant . Even if the fraudulent eviden ce was such that it “would have been inadmissible in court[,]” appellant has failed to show tha t the Board’s “conclusions [regarding appellant’s failures re garding patient records] were determined by the [evidence regarding fraudulent billing], and that a contrary result would have been reached in its absence.” Id. Accordingly, the Board did not commit reversible error in its admission of the fraudulent billing evidence.- 22 - CONCLUSION A party seeking to reverse an age ncy decision under the VAPA m ust “designate and demonstrate an error of law” th at has been committed by the age ncy. Code § 2.2-4027. We have reviewed the entire record a nd conclude that appellant has not demonstrated that the Board committed such an error in this case. Accordingly, the judgmen t below is affirmed. Affirmed.