### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00667- CV

Michael C. Scally, M.D., A ppellan t

v. Texas State Board of Medical Exam iners, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0113 4, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

O P I N I O N

Michae l C. Scally , M.D., appea l s t h e d i strict court’s judgme nt aff irming the final order of the Texas S t at e Boa rd of Medica l Ex aminers (the Boa rd), which revoke d his license to
prac tice medicine in Tex as . T he Boa rd order ed the license revoc ation afte r deter mining that Scally violated the Texas Medica l Practice Act, Tex. Occ

. Code Ann. §§ 151. 0 0 1 -1 67.202 (West
2004 & Supp. 20 1 0 ), by presc ribing anabolic steroids to patients without a valid medical purpose and by failing to keep adequate medical rec ords for s o m e o f those patients. I n six issues, Scally contends that the district court err ed by aff irming the Boa

rd’s final order

. We will aff irm the district
court’s judgme nt beca

use we find no erro r i n t h e Board’s final order and conclude that it was supported by

substantial evidence

.BACK GR OUND
T h e Bo ar d ’s staff soug ht to revoke Scally ’s medical license by filing a complaint
ag ainst Scally with the Boa rd and at the State Offic e of Administrative Hea ring s in A ug ust 2002. 1
The complaint alleg ed in essenc e that Scally had presc ribed anabolic steroids to healthy patients for the improper purpose of body building. Throug hout the proce eding s, Scally admitted to presc ribing

2
anabolic steroids, but maintained that he only presc ribed the drug s to improve the patients’ overa ll health and to trea t medical conditions like steroid-induce d hy pog onadism or associate d sy mptoms, not for the pur

pose of body

building. 3
After an unsucce ssful mediated settlement confe renc e, the case we n t t o an administrative law judge (AL J ) for a contested- case hear ing. The Boa rd amende d its complaint in
J uly 2003, alleg ing that Scally violated the Medica l Practice Act by improperly presc ribing anabolic
stero i d s t o n i ne patients and failing to keep adequate medical rec ords and to conduct appropr iate testing for those patients. See id

. §§ 164.001; .051(a) (1), (3), (6); .052(a) (5); .053(a) (1), (5), (6). At the contested- case hear ing, Scally took the p o s i t i o n that presc ribing anabolic steroids along with other medications to stimul ate the hy pothalamic-pituitary -testicular axis (HPTA) is t h e p roper

The fac ts rec ited here in are taken from the administrative rec ord on appea l, including the 1 testimony and exhibits admitted at the conte sted-ca se hea ring

. Section 481.071 of the health and safe ty code provides in pa rt that anabolic steroids may 2 only be presc ribed for “a valid m ed i ca l purpose,” and “body building, muscle enhanc ement, or incre asing muscle bulk or streng th throug h the use of an anabolic steroid or human g rowth hormone listed in Schedule I I I by a person who is in g ood health is not a valid medical purpose.” Tex. Hea lth & Saf ety Code Ann. § 481.071(b) (1), ( c) ( West 2010). The parti es d efined “hy

pog onadism” as inadequa te function of the repr oductive org ans 3 (testes in men, ova

ries in women) , which manife sts a s defic ient sex-hormone secr etion. “Steroidi n d u ce d hy

pog onadism” is subnormal or impaired production of sex hormones cause d by taking anabolic ste roids. 2standard of car e for reduc ing the sever ity and duration of steroid-induce d hy pog onadism. He also

4

asser ted that he perf

ormed the proper diag nostic tests be fore presc ribing anabolic steroids and that he maintained a dequate medical r ecor ds for these patients.

T he AL J conducte d an eleve n-day evidentiar y hear ing, during which th e Bo ar d offe red the expert testimony of two board- cer tified end o cr inologists, Dr. Har old Werner and
Dr. J eff rey J ackson. Scally offe red his own testimony along with expert testimony from Dr. Mauro DiPasquale, a doctor licensed in Ontario, Canada , who has prac ticed sports m edicine for thirty
y ear s. I n addition, Sca lly offe red testimony from Gre g Seal, a patient trea ted by Scally beg inning 5
in 2000 (af

ter most of the patients cited i n t h e Boa rd’s complaint), and Andre w Hodg e, Scally ’s assistant as of January

2000. The pa

rties also submitted post-hear ing br iefing to the AL J

. After the rec ord was closed, the AL J issued a proposal for decision that included 271 finding s of fac t and 25 conclusions of law. For eac h of the nine patients at issue, the AL J analy zed the Boa rd’s fac tual alleg ations and whether Scally had violated the Medica l Practice Act or the
Boa rd’s rules by (1) presc ribing anabo lic steroids to the patients outside the standard of car e, (2) failing to keep adequate medical rec ords for them, and (3) failing to conduct appropr iate tests to rule out di agn o s es o t h er than hy pog onadism. The AL J conclude d that Scally (1) violated the

T he hy pothalamic-pituitary -testicular axis (HPTA) ref ers to the inte r d e p e n d e n t r e la ti o n s h ip 4 between t h e gl ands, hormones, and enzy matic fac tors involved in the eventua l production and reg ulation of sex hormones.

Dr. DiPasq u ale’ s medical- school internship was in g ener al and internal medicine. I n 5 addition to his g ener al privat e prac tice, he specia liz ed in baria tric medicine and sports medicine. Although he has not had fo rm al t ra i n i n g in endocr inology , he has been cer tified by the Medica l Review Offic er Certifica tion Council to perf orm and interpre t drug testing in sports. He is the president of the United World Power L iftin g Fe d er at i o n and the Pan Americ an Power L ifting Fe d er ation and is a former medical direc tor of t he W orld Body building Feder ation and the World Wrestling F eder ation. 3standard of car e by presc ribing anabolic steroids to patients M.W., J .S., J .M., T.W., J .B., J .Bi., S.L .,

and S.D. without a valid medical purpose and for the purpose of body building; (2) failed to prac tice medicine in an acce p t ab l e p rofe ssional manner consistent with the public health and welfa re; (3) committed unprofe ssional or dishonorable acts that wer e likely to dece ive or defr aud the public; and (4) presc ribed controlled substances to these patients in a manner inconsistent with public health and welfa re. See id

. §§ 164.051(a) (1), .052(a) (5), .053(a) (1), (5); Tex. Hea lth & Safety Code Ann. 6 § 481.071 (West 2010). The AL J conclude d that Scally ’s conduct was intentional based on his pattern of marke ting to people interested in body building and providing them with anabolic steroids. The AL J also conclude d that Scally failed to maintain adequa te medical rec ords for T.C., M.W., J .S., T.W., J .B., and J .Bi. After considering both the ag gra v at ing and mitigating fac tors provided as
g uidelines in the Boa

rd’s rules, the AL J rec ommended that Scally ’s license be revoke d and that the
Boa rd assess an admin i s t ra t i v e penalty ag ainst him in the amount of $190,000, as well as
transcr iption costs of $12,809.50. The Boa rd revie wed the AL J ’s proposal for decision and adopted 7
it in full. Scally soug ht judicial revie w of the Boa rd’s order in district court. After a hear ing on the merits, the district court a ffirme d the B oard’ s final orde r. This appe al followed.

The AL J deter

mined t h at t h e Bo ard did not establish for any of the patients that Scally 6 failed to c onduct the appr opriate te sts to rule out diag noses other tha n hy pog onadism. The AL J rec ommended that the Boa rd sanction Scally with the maxi mum penalty of $5,000 7 for eac h of the 32 times that Scally pre s cr i b ed anabolic steroids below the standard of car e and $5,000 for eac h of the six times tha t Sca lly failed to maintain adequate medical rec ords, for a total penalty of $190,000. See Tex. Occ. Code Ann. § 165.003 ( West 2004). 4STANDARD OF REVIEW The substantial-evidenc e standard of the Texas Administrative Procedur e Act (APA)
g overns our revie w of the Boa rd’s final order

. See Tex. Gov’t Code Ann. § 2001.174 (West 2008). The APA authori zes reve rsal or rema nd of an ag ency ’s decision that prejudice s the appellant’ s substantial rig hts beca

use the administrative finding s, infere nce s , conclusions, or decisions (1) vi o l ate a constitutional or statutory provision, (2) exceed the ag ency ’s statutory authority , (3) wer e made throug h unlawful proce dure, (4) are aff ecte d by other err or of law, or (5) are arbitra ry

or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of discretion. Id. § 2001.174(2)( A)-( D), (F ).

The APA also authorizes a revie wing court to test an ag ency ’s finding s, infere nces, conclusions, and decisions to deter mine whether they are rea sonably supported by substantial evidenc e considering the reliable and probative evidenc e in the rec ord as a whole. Graff Chevrolet
Co. v. Texas Motor Vehicle Bd. , 60 S.W .3d 154 , 1 5 9 (T ex . App.—Austin 2001, pet. denied) ; see Tex. Gov’t Code Ann. § 2001.174(2)( E). Under this defe rential standard, we presume that the
Boa rd’s order is supported by substantial evidenc e, and Sc a ll y b e a r s th e b u r d e n o f proving otherwise.
Texas Health Facilities Comm’n v. Charter Medic al-Dallas, Inc. , 665 S.W .2d 446, 453 (Tex. 1984). The burden i s a h eavy one—eve n a showing t hat t he evidence preponde rate s ag ainst the age ncy ’s decision wil l not be enoug h to overc ome it, if there is some rea sonable basis in the rec ord for the action taken by the ag ency . Id. at 452. Our ultimate conce rn is the rea sonablene ss of the ag ency ’s order , not its corr ectne ss. Firemen’ s & Policeme n’s Civil Serv. Comm’n v. Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984).

5Whether the ag ency ’s order satisfies the substantial-evidenc e standard is a question

of l aw. Id. Thus, the di strict court’s judgment that there was subst antial evid en ce s u p p orting the
Boa rd’s final order is not entitled to defe renc e on appe al. Texas Dep’ t of Pub. Safety v. Alford , 209 S.W .3d 101, 103 (Tex. 2006) (per curia m). On appeal from the di strict court’s judg ment, the focus of the appellate court’s revie w, as in the district cour t , i s o n the Boa rd’s decision. See Montgomery Indep. Sch. Dist. v. Davis , 34 S.W .3d 559, 562 (Tex. 2000); Tave v. Alanis , 109 S.W .3d 890, 893 (Tex. App.—Dallas 2003, no pe t.).

We revie w the Boa

rd’s leg al conclusions for err ors of law and its fac tual finding s for support by substantial evidenc e. Heat Energy Advanc ed Tech., Inc. v. W est Dallas Coal. for Envtl.
Justice , 962 S.W .2d 2 8 8 , 2 9 4-95 (Tex. App.—Austin 1998, pet. denied)

. Substantial evidenc e “does not mean a larg e or considera ble amount of evidenc e, but rathe r such rele vant evidenc e as

a rea sonable mind might acc ept as adeq u at e t o s u p p ort a conclusion of fac t.” Lauderdale v. Texas Dep’ t of

Agric. , 923 S.W .2d 834, 836 (Tex. App.—Austin 1996, no writ) (quoting Pierce v. Underwood , 487 U.S. 552, 564-65 (1988)) (interna l quotation marks omitted). Thus, we will sustain the ag ency ’s action if the evidenc e as a whole is such that rea sonable minds could have rea ched the conclusion that the ag ency must have rea ched in order to justify its action. Texas State Bd. of Dental
Exam’ rs v. Sizemore , 759 S.W .2d 114, 116 (Tex. 1988).

We may not substitut e our judgme nt for that of the Boa rd on the weigh t of the evidenc e on questions committed to ag ency discretion. Charter Med. , 665 S.W .2d at 452; see also
Tex. Gov’ t Code Ann. § 2001.174. The AL J , as fac tfinder, deter mines the cre dibilit y of witnesses and the weig ht of their testimony

. Granek v. Texas State Bd. of Med. Exam’ rs , 172 S.W .3d 761, 778 (Tex. App.—Austin 2005, no pet.). We may not set aside an ag ency decision mere ly b ec au se 6testimony was conflicting or disput ed or beca use it did not compel the ag ency ’s decision. See Brinkmey er , 662 S.W .2d at 956. Consequently , if the evidenc e would support either aff irmative or
neg ative finding s on a specific matter, we must uphold the ag ency ’s decision. C h a r ter Med. , 665 S.W .2d at 453.

DISCUSSIO N

Scally asser

ts that the d i s t rict court err ed by aff irming the Boa

rd’s final order for

sever al rea sons. Scally contends in his first issue that the proce ss provided by the APA for judicial revie w of the Boa

rd’s final order violated his rig hts to due proce ss and equal protec tion by deny ing
him a jury trial and subjecting him to the substantial-evidenc e standard of revie w. I n his second issue, Scally

arg ues that the testimony of the B oard’ s expert witnesses should have be en excluded beca use the e x perts we re not qua lified, and thus t heir testim ony was ne ither re liable nor re levant. Scally asser

ts in his third issue that substantial evidenc e does not support the Boa rd’s finding s of fac t and the revoc ation of his license. I n this issue, Scally challeng es approximately 183 of the 271 finding s of fac t. I n his fourth and fifth issues, Scally challeng es an additional 13 of the 271 finding s of fac t. He asser

ts t h at t h e Board eng ag ed in ad hoc rulemaking , and its interpre tation of the administrative code exceede d its statutory authority , resulting in an err oneous finding that the patients’ medical rec ords wer e inadequa te. I n his six th issue, Scall y challeng es the
Boa rd’s contention i n t h e district court that his motion for rehea ring was insufficiently definite to
prese rve e rror .

7Relevant sc ientifi c background an d evidence prese nted
To provide context for the issues raised by Scally , we will briefly explain the nature of Scally ’s prac tice, how anabolic steroids work and thei r ef fe ct on the human body ’s natura l production of sex hormones, and the conce pts underly ing Scally ’s method for trea ting patients with steroid-induce d hy

pog onadism.
Origin of Scally’s practice The evidenc e prese nted at t h e contested- case hear ing ref lects that Scally rec eived underg radua te deg ree s in life scienc es an d c h e mistry from the Massac husetts I nstitut e of Tec hnology in 1975. Scally continued with a post-g radua te fellowship at MI T in the division of brain scienc es and neuroe ndocrinolog y . Scally g radua ted from Har vard Medica l School in 1980 and rec eived his medical lice nse in 1981. He spe cialized in anesthesiolog y until approx imately

1995.
I n Septem b er 1995, he opened an office in Houston, the Texas L ong evity and Wellness Center, wher e his prac tice focuse d on preve ntive medicine. I n an introductory letter that Scally provided to patients, he dec lare d that “[t] urning back the clock on the a g ing pr ocess is now possible” and “[t] hroug h scienc e, technolog y , and medicine we can attain and maintain a level of
y outhfulness previously

impossibl e.” H e off

ere d specia l packa g es for those intereste d in multi ple
prog rams and a

$50 cre dit for re fer

ring a new patient. Althoug h the marke ting mate rials included with the patients’ medical rec ords show that the cente r offe re d a number of trea tment prog rams, i n cl u d i n g am o n g o t h er s , Bo d y B u i l d i n g , W e i g h t L o s s , E re ct i o n Dy s fu n ct i o n , an d Hormone Repla ceme nt, Scally did not of

fer prog rams for either H PTA normalization or cessation of ana bolic-steroid use.

8Scally testified that betwee n 1994 and 1995 he beca me interested in rese arc hing and developing a method for helping patients suffe ring from steroid-induce d hy pog onadis m t o return their HPTA to normal. He had beg un exercising “a lot”—running , weig h tlifting, and doing

a e r obics—and beg an hear ing from many people at the g y m about medical problems they we r e h a v in g when they tried to stop using illicit anabolic steroids. Although anabolic steroids h av e ce rt ain 8
thera peutic uses, these pe ople wer e using them to increa se their muscle mass and streng th. Sca lly testified t h at he was disturbed by their repor ts of dismiss ive trea tment from doctors when they
soug ht help stopping their s t eroid use, so he beg an discussing the issue with his trainer and

rese arc hing the HPTA.

Anabol ic steroids and th e HPTA
I n his expert repor

t and testimony at the contested- case hear ing, Scally explained the eff ect of anabolic steroids on the HPTA. The HPTA, as not ed ea rl i er , refers to the complex
in te r d e p e n d e n

t r e la tionship betwee n the endocr ine g lands in the male (hy pothalamus, pituit a

r y g la n d , and testes), the hormones that the g lands secr ete, and the enzy matic fac tors involved in the eventua l production an d re gu l at i on of sex hormones. Anabolic steroids are a class of drug s that are based
upon the structure of the main sex hormone natura lly occur ring in men, test o s t er o n e, which is produce d by the testes. “Ana bolic” means that the drug s promote cell g rowth, particula rly muscle 9

Scally stated in his motion for rehe aring that he was training for the Mr. Texas competition 8 during this ti me per iod. Scally also ref

er re d to anabolic steroids as “andr og enic- anabolic steroids,” “AAS,” and 9 “and ro gen s ” i n h is testimony and briefing , but for clar ity we will use only the term “ana bolic steroids.” 9mass. The Boa rd’s experts testified that this incre ase in muscle mass and streng th is what leads body builders, weig ht lifters, and other athletes to seek out black- marke t steroids. Anabolic steroids also have androg enic eff

ects, which means that they aff ect the development and maintenanc e of masculine s e c o n d a

r y s e xu a l c h ara cter istics (e.g ., incre ased g rowth of body and fac ial hair, thickening of the voc al cor d). 1 0

Taking these drugs disrupts the b ody ’s natural equilibrium, sometimes causing the body to stop producing testosterone on its own. Scally testified that eac h individual mal e has his

own specific equilibrium point for testosterone. I f a man takes enoug h anabolic steroids to meet his equilibrium point, his H PTA will shut down beca use the body no longe r needs to w ork to pr oduce
testosterone on its own. Consequently , when the anabolic steroids are stopped, the body may be in

a state of hy

pog onadism beca

use the sex g lands (testes in men; ovarie s in women) are producing littl e or no hor

mones. 1 1
The amount of anabolic steroids that it tak es t o shut down the body ’s natura l production of sex hormones is unknown. Acc ording to S ca l l y , an individual who stops taking anabolic steroids will suffe r from marke d muscle loss and s t eroid-induced hy pog onadism. The
Boa rd’s experts acknow ledg ed that n o one knows exactly how long a patient will suffe r with hy pog onadism or seconda

ry hy pog onadism afte r taking anabolic steroids and then stopping them.

The manifestation of these androg enic eff ects is al s o referr ed to as masculinization or 1 0 viriliz ation.

Hy p o go n adotrophic hy

pog onadism (sec ondary hy pog onadism) can also occur when a 1 1 person stops taking anabolic steroids. Secondar y hy pog onadism is a disorder in which the pituitary g land has cea sed functioning properly and is not producing the hormones it normally does, which stimul ate testoster one sec retion by the testes. 10Whil e some rese arc h that Scally cited in his expert repor t has sh o wn t h at t h e body ’s natura l production of sex hormones will spontaneously return to normal shortly afte r the anabolic steroids

are stopped, there are other documente d cases of steroid-induce d hy pog onadism lasting from six months to over two y ear s.

Scally’s HPTA treatm ent m ethod S ca l ly testified about his proce dure for deter mining whether a patient had hy pog onadism. Scally would take a history and perf orm a phy sical exam, and then he would order blood tests to chec k the patient’s thy roi d -s t i m u l ati ng hormone level, prolac tin level, luteiniz inghormone level, and total testosterone level. Depe nding on the various hormone levels, the patient’s diag nosis could be primary hy pog onadism (testicular dy sfunction), secondary h y pog onadism (hy pothalamic pituitary dy sfunction), or mix ed hy pog onadism, which is a combination of the two. W h en Scally first beg an trea ting patients with a history of steroid use fo r HP T A dy sfunction i n 1995, he did not p re s cr i b e anabolic s teroids. I nstead, he presc ribed two drug s that
h e b e li eved would stimul ate the HPTA, human chorionic g onadotropi n ( h CG ) a n d c lo mip h e n e c it

r a te (commonly known as Clomi d). hCG stimul ates the testicles or ovarie s. Clomi d helps stimul ate the pituitary g land. Scally later added tamox ifen to his protocol to further help preve nt shut down of the pituitary function. Scally ty pically started the hCG, Clomi d, and tamox ifen all at the same time, but only presc ribed the hCG for fiftee n day s, and at that point measure d the testosterone to see whether he could continue trea

tment without the h C G. He then ty pically would continue the Clomi d and
tamox ifen for

about another

fiftee n day s (for a

total of about thirty

day s).

11Scally eventua lly added anabolic steroids to his HPTA trea tment protocol and beg an

alterna ting a period of trea tment with the anaboli c s teroids for approximately twelve wee ks with another round of the hCG, Clomi d, and tamox ifen trea tment for thirty day s. Scally testified that he beg an adding anabolic ste roids as par t of his tr eatment protocol to help patients whose blood tests ref lected a normal value for t estoster one after the first round of hCG, Clomi d, and tamox ifen, but the value was at the low end of t h e normal rang e for their ag e, and they wer e still experiencing hy pog onadism sy

mptoms. Scally asser

ted that adding a round of anabolic steroids afte r stopping the other drug s is the best way to make the hCG, Clomi d, and tamox ifen wor k b etter beca use “the best way to produce androg en re ce p t o r s ites is androg ens [i .e., anabolic steroids].” Scally maintained that stimul ating these androg en rec eptor sites woul d work faster than continuing the Clomi d alone. Scally acknow ledg ed that the anabolic s t eroids would shut down the patient’s HPTA (and thus possibly worsen the hy

pog onadism he was supposed to be trea ting) , but he knew he would be able
to succe ssfully restar

t the HPTA loop beca

use he had done so with the initial dose of hCG, Clomi d, and tamox ifen. Neve rtheless, Scally was presc ribing steroids to patients with a prior history of illicit steroid use in a pur

ported e ffor

t to help those patients quit taking illicit steroids. 1 2

Ty pically Scally would g ive hi s patients 400 to 600 milli g rams of anabolic steroid s p er 1 2 wee k, including testosterone and other pharma ceutica l steroids such as Wins trol, Anadr o l -50, ox androlone , and Halot e s ti n . Whil e patients wer e taking the steroids, he would presc ribe other drug s to help preve nt some of the anabolic steroids’ side eff ects, including hair loss in men and masculinization i n women. 12P rese rvation of error
Be fore addre ssing Scally ’s points of err or, we must first consider the threshold issue of whether S cally

prese rved a

ny of these issues f

or appe al. Scally

was required under the APA to file a motion for rehe aring of the Boa rd’s final order befor e seeking judicial revie w. See Tex. Gov’t Code Ann. § 2001.145 (West 2008). The Boa rd arg ues that Scally ’s motion for rehe aring filed with the Boa rd was not sufficie ntly definite and thus failed to prese rve err or for appea l. Scally asser ts that his moti on for r ehea

ring was suff

iciently definite to pre serve err or. The motion for rehe aring is a statutory prer equisite to an appea l in a contested case ,

see id. , and must be sufficie ntly definite to notify the ag ency of the err or claimed so that the ag ency can either corre ct or prepa re to defe nd t h e er ro r. S

uburban Util. Corp. v. Publi c Util

. Comm’n of
Tex. , 652 S.W .2d 358, 365 (Tex. 1983). For eac h contention of err o r, t h e m o t i o n must set forth (1) the fac t finding , leg al conclusion, or ruling complained of and (2) the leg al basis of that complaint. S

ee Ha mamcy v. Texas State Bd. of Med. Exam’ rs , 900 S.W .2d 423, 425 (Tex. App.—Austin 1995, writ denied) (citing Burke v. Central Educ. Agenc y , 725 S.W .2d 393, 397 (Te x . App.—Aust in 1987, writ ref ’d n.r.e.)). I t is not sufficie nt to set forth these two elements in
g ener alities, for ex am p l e, by stating that the finding s of fac t as a body are “not supported by substantial evidenc e.” Burke , 725 S.W .2d at 397. Whil e both eleme n t s m u s t b e prese nt in

t h e m o t i o n , n ei t h er require s a briefing of t he law or facts. Id. The standard i s one of fair notice. See id.
I n the in stant case , afte r Scally timely filed a motion for rehe aring , the Boa rd challeng ed the suff

iciency of his motion, contending that it lacked suff icient detail to pre serve the alleg ed er rors. The Boa

rd conte nds that Scally

has failed to pr eser

ve err or as to any

conclusion of
13law or any finding of fac t. Scally ’s motion fo r rehe aring sets forth fourtee n “issues prese nted for

rehe aring .” Although he does no t identify by specific number any conclusions of law as err or, he specific ally identifies 235 of the Boa rd’s 271 finding s of fac t in connec tion with his fourtee nth issue, which complains that the cited finding s of fac t and the Boa rd’s conclusions are not supported by the evidenc e in the rec ord or are based on unreliable evidenc e. Scally further provides detailed rea sons for his objections to the complained- of finding s of fac t. This pleading was sufficie nt to prese rve

err or on th e i s s u e of whether substantial evidenc e supports those finding s of fac t. Wit hin the motion’s first thirteen iss ues, Scally provided the B oard w ith fair notice of the ot her issues he has raised on appea l, inc luding the admissibili ty of the Boa rd’s expert testimony , the Boa rd’s finding s and conclusions reg arding the applicable standard of car e, the Boa rd’s conclusions that the anabolic steroids wer e not presc ri b ed fo r a valid medical purpose or for thera peutic purposes, the Boa

rd’s conclusion that Scally failed to keep adequate medical rec ords, and the Boa rd’s finding s that Scally did not recor d a diag nosis for some patients.

Although the better prac tice would be to identify eac h com p l ai n ed -of finding and conclusion by number and to acc ompany eac h identified numbere d err or with the leg al basis for the challeng e, Scally ’s motion provided the Boa rd with much more specific information than that found inadequa te in case s finding wa i v er . See, e.g. , Texas Alcoholic Bev

. Comm’n v. Quintana , 225 S.W .3d 200, 2 0 4 (T ex . App.—El Paso 2005, pet. denied) (finding waiver ); Hamamc y , 900 S.W .2d at 425 (same) ; Burke , 725 S.W .2d at 398-99 (same) ; see also Morgan v. Employe es’ Ret. Sys. of Tex. , 872 S.W .2d 819, 822 (Tex. App.—Austin 1994, no writ) (par ty ’s “motion for rehe aring is not a form-book example of such a motion, but it achie ves its purpose” of sufficie ntly informing

14ag ency of alleg ed err ors). We find that Scally has sufficie ntly prese rved er ro r in his motion for

rehe aring , and thus, we w ill consider the ar g uments Scally has pre sented in his appellate brief. 1 3

Due proce ss and equal p rote ction

I n his first issue, Sc a ll y a

r g u e s tha t the judicial-re view proce ss applicable to phy sician disciplinary actions violated his constitutional rig hts to due proce ss and equal protec tion. See U.S.
Const. amend. XI V. This arg ument is primarily based on the leg islature’s differ ent proce dural
trea tment of phy sicians and attorney s subject to disciplinary acti o n s . Among Scally ’s various

asser tions, he attacks the application of the s u b s t antial-e vidence standard of revie w to phy sicianlicense revoc ations and the lack of a jury trial de novo in the district court afte r a phy sician’s license is revoked.
We revie w claims reg arding depriva tion of constitutional ri g h ts de novo beca use they
prese nt questions of law. Granek , 172 S.W .3d at 771-72. We beg in with the presumption that the
APA is constitutional and that the leg i s l at u re h as acte d neither unrea sonably nor arbitra rily

. See
Pretzer v. Motor Vehicle Bd. , 125 S.W .3d 23, 39 (Tex. App.—Austin 2003), aff’d in part and rev’ d
in part on other groun d

s , 1 3 8 S.W .3d 908 (Tex. 2004)

. The constitutional provision that Scally contends ha s been violate d, the Four teenth Amendme nt, pr ovides in r eleva nt pa rt, that “[n] o State

I n his sixth issue, Scally asser ts tha t his pleading in the district court, which alleg ed that 1 3 he had complied wit h all conditions prec edent before filing suit and was not denied by the Board, prec ludes the Board fr o m arguing that Scally ’s motion for rehe aring was insufficient to prese rve err or. Be cause we find that Scally ’s mo t ion for rehe aring was sufficie ntly detailed, we need not addre ss this arg ument. See Tex. R. App. P. 47.1 (cour t of appea ls must hand down opinions that are as brief as possible while addr essing those issues nece ssary to final dispositi on of appe al). 15shall

. . . deprive any person of life, liberty , or proper ty , without due proce ss of law; nor deny to any person within its jurisdiction t he equa l protection of the la ws.” U.S. Const. amend. XI V. The proce dural due-pr ocess safe g uards of the fede ral and Texas constitutions protec t litigants in ag ency proce eding s when the ag ency “‘de prives an individual of life, liberty , or proper ty based on resolution of contested fac t u al issues conce rning that individual.’” Flores v. Employees
Ret. Sys. of Tex. , 74 S

. W

. 3d 532, 539 (Tex. App.—Austin 2002, pet. denied) (quoting 2 Kenne th Culp Davis & Richard J

. Pierce , J r., Administrati ve Law Treatise § 9.2 at 3 (3d ed. 1994)) (interna l quotation marks omitted). When analy zing Scally ’s due-pr ocess claim, we must deter mine whether he has a constitutionally protec ted liberty or proper ty interest at stake, and if so, what proce ss is due
to sufficie ntly protec t that interest. See University of Tex. Med. Sch. v. Than , 901 S.W .2d 926, 929 (Tex. 1995). L iberty or proper ty interests protec ted under t h e Due Process Clause “attain this constitutional status by virtue of the fact that they have been init ially rec og nized and protected by state l aw . . . .” Paul v. Davis , 4 2 4 U. S. 693, 710-11 (1976). A professional license is a property rig ht, but it is one that has been cre ated by statute and is subject to the state’s power to impose conditions upon the g ranting or revoc ation of the license for the protec tion of society

. See 1 4
Adams v. Texas St ate Bd. of Chiropr a ct i c Exam’ rs , 744 S.W .2d 648, 652-53 (Tex

. App.—Austin 1988, no writ ) (c i t i ng Sherman v. State Bd. of Dental Exam’ rs , 116 S.W .2d 843, 846 (Tex. Civ. App.—San Antonio 1938, writ ref ’d)) ; see also Dent v. State of W

. Va. , 129 U.S. 114, 121-22 (1889) (prof essional license is pr operty interest but one subject to state reg ulation). Acc ording ly , we find

The leg islature has found that “the prac tice of medicine is a privileg e and n o t a natura l 1 4 rig ht of individuals and as a matter of public policy it is nece ssary to protec t th e p u b lic interest throug h enac tment of this subtitl e to reg ulate the g ranting of that privileg e and its subsequent use and control . . . .” Te x . Occ . Code Ann. § 151.003 (West 2004). 16that Scally does have a constitutionally protec ted proper ty i n t er es t at stake that must be aff orded
proce dural due proce ss.

W e n o w co n sider what proce ss is due to protec t Scally ’s proper ty interest. At a minimum , due process requires noti ce a nd an opportunity

to be heard at a meaningf ul time and in

a meaning ful manner . Mathews v. Eldridge , 424 U.S. 319, 333 (1976); Than , 901 S.W .2d at 930. We disa g ree with Sca lly ’s asser tion that he is e ntitled to some highe r leve l of due proc ess bec ause the contested- case hear ing was a quasi-cr iminal proce eding

. This Court has held that disciplinary 1 5 action by the Board is not a quasi-criminal proce eding ; it is civil

. Chalif oux v. T exas State Bd. of Med. Exam’ rs , No. 03-05-00320- CV, 2006 WL 3196461, at *12 (Tex. App.—Austin Nov. 1, 2006, pet. denied) (mem. op.) (addr essing specific ity of notice provided in Boa rd complaint) (citi ng Granek , 172 S.W .3d at 773, 777 (addr essing due-pr ocess implications of pre- prosec ution delay s in
ag ency actions and a

pplicable bur den of pr oof))

.

Scally complains that the burden of proof for attorney disbarment is preponde ranc e of the 1 5 evidenc e, which he asser

ts is a highe r standard than the substantial-evidenc e standard. To the extent Scally may be arg uing that the Boa rd should ha

ve been held to a highe r burden of proof during the SOAH proce eding , we note that he has confuse d the burden of proof applicable to the Boa rd during the license- revoc ation proce eding with the standard of revie w applied to the Boa rd’s final order

. We have previously observe d t h at “i n civil case s ‘[n] o doctrine is more firmly established than that issues of fac t are resolved by a preponde ranc e of the evidenc e.’” Granek v. Texas State Bd. of Med. Exam’ rs , 172 S.W .3d 761, 777 (Tex. App.—Austin 2005, no pet.) (quoting Pretzer v. Motor Vehicle Bd. , 125 S.W .3d 23, 38-39 (Tex. App.—Austin 2003), aff’d in part and rev’ d in part on other groun d s , 138 S.W .3d 908 (Tex. 2004)). And we have reje cted the contention that due proce ss require s a highe r burden of pro o f (i.e., the clea r-a nd-convinc ing standard) in license- revoc ation proce eding s, even when the proce eding involved an alleg ation of conduct constitu t i n g a criminal offe nse. See Sanchez v. Texas State Bd. of Med. Exam’ rs , 229 S.W .3d 498, 509 (Tex. App.—Austin 200 7 , n o pet.). We conclude that the AL J held the Boa rd to the appropr iate burden of proof in Scally ’s license -re vocation proc eeding

. 17The leg islature has provided that the defa ult for app e a l f

r o m a c o n te s ted-c ase decision
g overne d by the APA is substantial-evidenc e revie w on the ag ency rec ord and that the rig ht to a trial de novo in an adminis trative a ppeal must be spec ifically stated in the applica

ble s tatute. See Tex. Gov’t Code Ann. § 2001.174. As the Boa rd points out, the leg islature has the constitutional power
to limit the re v iew of the Boa rd’s disciplinary action ag ainst phy sicians to a substantial-evidenc e revie w. See Martinez v. Texas State Bd. of Med. Exam’ rs , 476 S.W .2d 400, 404 -0 5 (Tex. Civ. App.—San Antonio 1972, writ ref ’d n.r.e.) (citing Tex. Const. art. I I , § 1, ar t. XVI , § 31). I n addition, phy sician disciplinary actions do not require trial by jury

. Id. at 405 (citing City of Houston

v. Blackbird , 394 S.W .2d 159, 162-63 (Tex. 1965)); see also Adams , 744 S.W .2d at 651-54 (finding exis ting laws when T ex as Constit ution was adopted in 1876 did not provide for jury trial of phy si ci an’s license revoc ation). The leg islature has constitutionally provided for a non-jury trial beca use “a jury trial

. . . would be incompatible with the conce pt of ag ency adjudication and [would] interfe re substantially

with the Boa

rd’s role in the statutory scheme ” enac ted by the leg islature for the protec tion of the public health, safe ty , and welfa re. Adams , 744 S.W .2d at 653-54 (holding that article V, sec tion 10 of Texas Const itution does not require jury trial if leg islature has deter mined jury trial would be unsuitable in particula r proce eding s). The rec ord ref lects that S ca l l y re ce i ved notice of the Boa

rd’s complaint, as well as a full opportunity to prese nt his case to the AL J , who, by statute, is a neutra l a dminist rative mag istrate. See Tex. Gov’ t Code Ann. § 2001.058(a) -(d) (West 2008), § 2003.021(a) (W es t 2 0 0 8 ); Pierce v. Texas Racing Comm’n , 212 S.W .3d 745, 755 (Tex. App.—Austin 2006, pet. denied)

. Thus, th e required elements of due proce ss—notice, hear ing, and an impartial fac tfinder— we re satisfied at Scally ’s contested- case hear ing. See Martinez , 476 S.W .2d at 405.
18We turn next to Scally ’s contention that the judicial-re view proce ss violated his rig ht

to equal protec tion by making “unre asoned distinctions” betwee n attorney -license revoc ations and phy sician-lice nse revoc ations. W e co n duct a multi-ti ere d analy sis of whether a particula r 1 6
classifica tion violates the Fourte enth Amendment. See R ichards v. League of United Latin Amer.
C i t i zens ( LULAC) , 868 S.W .2d 306, 310-11 (Tex. 1993). The constitutional g uara ntee of equ al protec tion requires only

that disparate trea tment of diffe rent c lassifications be rationally rela ted to

a leg itimat e s t at e p u rpose, unless the classifica tion impinges on the exercise of a fundame ntal
ri gh t o r distinguishes betwee n people on a “suspec t” basis, such as rac e or national orig i n . 1 7 Barshop v. Medina County Underground W ater Conservation Dist. , 925 S.W .2d 618, 631-32 (Tex. 1996) (noting that Texas courts apply rational-ba sis test when analy zing constitutionalit y of
reg ulations aff

ecting economic rig hts); see a l s o Semler v. Oregon State Bd. of Dental Exam’ rs , 294 U.S. 608, 610-11 (1935) (holding state was not bound to reg ulate all profe ssional classes in same
way ). Mai n t aini ng a medical license is not a fundame ntal rig ht, and phy sicians are not a suspect

Scally relie s o n a n u mber of case s in support of the proposition that these “unre asoned 1 6 distinctions [between attorney s and phy sicians]

. . . impede open and equal acc ess to the courts,” but these case s are inapposite here

. They all involve equal acc ess to the rig ht to an appea l of a criminal conviction, once the rig ht to an appea l h as b ee n p ro vided. See, e.g. , Chaffi n v. Stynchc ombe , 412 U.S. 17, 24 n.11 (1973).

Classifications that impinge upon the exe rc i s e o f a fundame ntal rig ht or distinguish 1 7 betwee n people on a suspect basis (i.e., ra ce, national orig in, and aliena g e) “ are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 440 (1985); see also Tex. Const. art. I , § 3a (recog n i z i n g “s ex , rac e, color, cre ed, [ and] national origin” as protec ted classes). I n a few limit ed situations, none of which are applicable here , court s re v i ew classifica tion under an intermediate level of revie w t o d etermine whether the classifica tion is “substantially rela ted to a sufficie ntly

important g overnme ntal interest.” City of Cleburne , 473 U.S. at 440-41 (substantialre l at i o n s h ip test applied primarily in case s involving classifica tions based on g ender and illegitimacy

). 19class. Consequently , we must deter mine whether the leg islatu re h ad a rational basis for 1 8
differ entiating betwee n attorney -license revoc ati o n s a n d p h y s ic ia

n - li c e n s e r e v o c a

tions. “I n so doing,

we must uphold the law if we can conce ive of any rational basis for the L eg islature’s action.” Owens Corning v. Carter , 997 S.W .2d 560, 581 (Tex. 1999).

The leg islature has g rante d the Boa rd th e power to protec t the public interest by
reg ulating those phy sicians who ar e g rante d the privi leg e of pr acticing medicine. Te x . Occ . Code
Ann. § 151.003. The leg islature has also provided that the Boa rd’s decision to revoke a phy sician’s license is subject to the s ubstantial-evidenc e standard of revie w. See Tex. Gov’t Code Ann. 1 9 § 2001.174. The lack of a trial de novo (either a bench or jury trial) for license- revoc ation appea ls by phy sicians is rationally rela ted to the leg itimate g overnme ntal purpose of conser vation of judicial

resour ces. See Pretzer , 125 S.W .3d at 39-40. I n addition to conser ving judicial resour ces, the lack

Fundamental rig hts are rig hts that are “dee ply rooted in this Nation’s history and tradition” 1 8 and ar e “implicit in the conce pt of order ed liberty , such that neither liber ty nor justice would exist if they wer e s ac ri fi ced.” W ashington v. Glucksbe rg , 521 U.S. 702, 720-21 (1997) (citations and internal quotation marks omitted). Scally cites no authority , and we have found none, to support the proposition that the rig ht to reta in his medical license is a “funda mental rig ht” that implicates strict scrutiny

. See Adams v. Texas State Bd. of C h i r o practic Exam’ rs , 744 S.W .2d 648, 652-53 (Tex. App.—Austin 1988, no writ) (license to prac tice one’s profe ssion is p ro p er t y rig ht subject to revoc ation).

We note that t h e attorney -g rieva nce proce ss differ s proce durally from the phy sician- 1 9 disciplinary proce ss beca

use attorney s may elec t to have a complaint ag ainst them hear d in a district court or by an evidentiar

y panel of the district g rieva nce committee. See Tex. Disciplinary R. Prof’l Conduct 2.15, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2005). Thus, althoug h Scally states that attorney s are entitled to a trial de novo in the district court without losing their rig ht to prac tice, a disbarment proce eding that the attorney has elec ted to have h eard in the district court is actua lly the proce dural equiva l en t of the phy sician’s contested- case hear ing. The applicable standard of revie w on appea l depends upon which elec tion is made by the attorney

. Whil e a final judgme nt of the district court may be appealed as in civil case s g ener ally , id. R. 3.16, an appea l of an evidentiar

y panel’ s judgme nt is to the Boa rd of Disciplinary Appea ls and subject to the substantial-evidenc e standa rd of r eview, id. R. 2.24.

20of a jury trial is rationally rela ted to the l egi s l ature ’s leg itimate g overnme ntal decision that the

adjudicator

y function in license- revoc ation proce eding s should be deleg ated to the Boa rd, so that it “will exercise its expert knowledg e, experience , and specia l fac iliti es in finding fac ts, apply ing law, and for mulating a

nd apply ing a dminist rative policy to acc omplish the particular objectives set for the ag ency by the L eg islature,” including the protec tion of the public’s health, safe ty , and welfa re. Adams , 744 S.W .2d at 653.

We also find that the Boa

rd’s decision that a person may not prac tice medicine while his license- revoc ation appea l is pending is rationally rela ted to its mandate to protec t the public interest in health and safe ty

. See Tex. Occ

. Code Ann. § 164.011(b). Moreove r, an appea ling license holder is entitled to seek a stay from the appropr iate court to allow h im to continue prac ticing, as long as the court finds that his continued prac tice does not prese nt a dang er to the public. See id. 2 0 § 164.011(b), (c)

. Acc ording ly , we conclude that the leg islature’s differ ent trea tment of phy sicianlicense revoc ations and attorney -license revoc ations does not violate equal protec tion. See Barshop , 925 S.W .2d at 631-32; see also Pierc e , 212 S.W .3d at 757. We overr ule Scally ’s first issue.

Adm ission of expert te stim ony

Scally contends in his second issue that i t was an abuse of discretion to admit the testimony of the Boa

rd’s two experts, Drs. J ackson and Werner, beca use neither one qualifies as an
Contrary to Scally ’s asser tion, attorney s who have lost their licenses are subject to a more 2 0 stringe nt penalty than phy sicians beca use neither a district court ju d gment of disbarment nor an evidentiar y panel’ s order of disbarment can be superse ded or stay ed during the pendenc y of any appea ls. See Tex. Disciplinary R. Prof’l Conduct 2

. 2 5 , 3.14. Only license suspensions may be stay ed pending appea l upon petition to the di s t ri ct co u rt or the evidentiar y panel, if the attorney proves that continued prac tice does not pose a continuing threa t to the welfa

re of the attorne y ’s clients or the public. See id. 21expert under Texas Rule of Evidence 702, and thus, their opinions wer e neither rele vant nor reliable

.

The Boa rd arg ues that the AL J did not err by admitting the doctors’ testimony beca use both doctors

are more than adequa

tely qualified a

nd their testimony

about the standa

rd of care and other issues is both relevant a

nd reliable

. We revie w ruli ng s on the admis sion or ex cl usion of evidence at the admini strative level under the abuse- of-discr etion standard applied to trial courts. City of Amarillo v. Railroad
Comm’n of Tex

. , 894 S.W .2d 491, 495 (Tex. A pp.—Austin 1995, writ denied)

. A court abuses its discretion if it acts without ref ere nce to g uiding rules and principles. Downer v. Aquama r ine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985). An ALJ, like a trial court, has broad discretion when deciding whether to admit expert testimony in a contested- case hear ing, and we will not disturb that decision on appea l in the a bsence of an a

buse of discr etion. See F ay-Ray Corp. v. Texas Alcoholic Be v. Comm’n , 959 S.W .2d 362, 367 (Tex. App.—Austin 1998, no pet.).

A two-par

t test g overns the admissibili ty of expert testimony : (1) the expert must be qualified; and ( 2) the testimony must be releva

nt and based on a re liable founda tion. E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W .2d 549, 556 (Tex. 1995). When deciding whether an expert is qualified, the trial court m u s t insure that the proposed expert “‘truly ha[s] expertise

conce rning the actua l subject about which [he is] offe ring an opinion.’” Gammill v. Jack W illiams Chevrolet, Inc. , 972 S.W .2d 713, 719 (Tex. 1998) (quoting Broders v. Heise , 924 S.W .2d 148, 152 (Tex. 1996)). The Texas Supreme Court has explained that when assessing reliability , the trial court
must “eva luate the methods, analy sis, a nd principles relied upon in rea ching the opinion.

. . . [and] should ensure that the opinion comports with ap p l i ca b le profe ssional standards outside the
courtroom and that it will have a reliable basis in the knowledg e and experience of the discipline.”
22Id. at 725-26 (interna l quotation marks omitted). I n Robinson , the court identified six nonexclusive

fac tors that courts may consider when deter mining whether an expert’s scientific testimony is reliable and thus admissible, but noted that courts may consider other fac tors and that those fac tors which a court will find helpful will differ with eac h particula r case . 923 S.W .2d at 557. I f expert

2 1 opinion testi m o ny will help the fac tfinder understand the evidenc e or deter mine a fac t at issue, it should be admitted. Tex. R. Evid. 702; Fay-R ay Corp. , 959 S.W .2d at 367.

Drs. J ackson and Werner are both board cer tified in endocr inology , which is a medical specia lty conce ntrating on the endocr ine sy stem, the hormones produce d by the endocr ine
g lands, and rela ted diseases, and which includes the function of the HPTA. Dr. J ackson testified that he had been board cer

tified in endocr inology for near ly twenty y ear s and internal medicine for over twenty y ear s, an associate profe s s o r of internal medicine with Texas A& M College of Medicine
Hea lth Sc i en ce s C en t er for approximately fiftee n y ear s, and a staff endocr inologist at Scott and
W h ite Clini c and Memorial Hospital, a teac hing hospital, for near ly twenty y ear s. Dr. Werner testified that he had been board cer tified in endocr i n o l o gy and internal medicine for over twenty
y ear s, a profe ssor of medicine at Texas Tec h University teac hing endocr inology and internal medicine for ten y ear s, and that he continued to see patients in his role as a profe ssor. Both doctors

The six nonexclusive fac tors identified in Robinson are : “(1) the extent to which the theory 2 1 has been or can be tested; (2) the extent to which the technique relie s u p o n the subjective interpre tation of the expert; (3) whether the theory has been s u b j ec t ed to peer revie w and/or publication; (4) the technique’ s potential rate of err or; (5) whether the underly ing theory or technique has been g ener ally acc epted as valid by the rele vant scientific community ; a nd (6) the non-judicial uses which have bee n made of the theory or technique.” E.I. du Pont de Nemours and Co., Inc. v

. Robinson , 923 S.W .2d 549, 557 (Tex. 1995) (citation omitted).

23testified that as part of their medical prac tice t h ey had medically manag ed patients with low

testosterone le vels and testosterone defic iency

.

The rec ord demonstrates that the AL J allowed Drs. J ackson and Werner to offe r their expert testimony afte r voir dire on the issue of their qualifica tions. Throug hout the proce eding s, the
AL J actively p ar t i ci p ated by asking clar ify ing questions of the witnesses when nece ssary , which allowed her to further assess the witnesses’ expertise and the principles they relied upon in rea ching their opinions. See Olin Corp. v. Smith , 990 S.W .2d 789, 796-97 & n.1 (Tex. App.—Austin 1999, pet. denied) (finding that “the conflue nce of the ‘g ateke eper ’ and fac t-finder functions” in bench trial
“ser ved to ventilate fully any Robinson iss u es”) ; Fay-R ay Corp. , 959 S.W .2d at 367 (noting AL J herse lf questioned expert about his training and experience ). As this Court observe d in Olin , when the trial court serve s as fac tfinder, in addition to being th e g ateke eper of expert testimony as descr ibed in Robinson and Gammill , our conce rns about the potentially prejudicia l impact of expert testimony are reduc ed. 990 S.W .2d at 796 n.1. Her e, as in Olin , the AL J hear d extensive testimony about the experts’ qua lifications as well as their methods, analy ses, and the principles upon which they relied in rea ching their opinions. See id. at 796. The AL J ’s dual role in this proce eding allowed her not only

to make a preliminary assessment about the qualifications of t he Board’ s experts and the reliability and rele vance of their opinions, but also to continue exploring throug hout the hear ing whether their testimony would assist her as fac tfinder in understanding the evidenc e and deter mining the fa cts at issue. See id. at 796-97.

Neve rtheless, Scally arg ues that Drs. J ackson and Werner are not qualified to provide

ex pert testimony beca

use they lack “knowledg e, skill, experience , training , or education” on (1) anabolic steroids, (2) measure ment of serum testosterone, (3) the medical risks of anabolic
24steroids, (4) hy pog onadism, (5) the use of mag netic resona nce imag ing in d ia g n o s ing hy pog onadism, (6) anabolic- steroid-induce d hy pog onadism, and (7) tamox ifen’s and the aroma tiz ation inhibitors’ eff ect on the HPTA. See Tex. R. Evi d. 702. Contrary to Scally ’s ar g ument, all of these issues are
encompa ssed within Drs. J ackson and We rn er ’s are a of expertise—endocr inology

. Both doctors testified that they

formed their opinions in this case base d on their re view and a naly sis of Scally ’s
trea tment rec ords for the patients at issue, among other documents. An d as mentioned, the AL J asked clar ify ing questions and probed the principles upon which they relied in fo rm i n g their opinions. Although Scally f rame s this arg ument in terms of the experts’ qualifica tions, the substance of his complaints on these subissues amounts to an attack on the experts’ cre dibilit y and the weig ht
to be aff orded their testimony

. His disag ree ment with the Boa rd ’s experts’ testimony on specific medical issues does not rende r them unquali fi ed t o prese nt those opinions. L ikewise, his disag ree ment with their conclusions does not rende r the methods, analy ses, and principles th e y relied
upon in rea ching their opinions unreliable

. I n a substantial-evidenc e revie w, we resolve evidentiar y ambig uities in favor of the administrative order , and we cannot substitut e our judgme nt for the AL J ’s
reg arding the weig ht a

nd cre dibilit y of the evidenc e prese nted. We overrule Scally ’s sec ond issue beca use we find no abuse of discretion in the AL J ’s decision that Drs. J ackson an d W erner wer e qualified a s experts and their testimony should be admitted.

Sub stantial evidence

I n his third issue, Scally contends that substantial evidenc e does not support the finding s of fac t underly ing the Boa rd’s order revoking his license. He asser ts that the finding s of 2 2

Scally also arg ues that beca use the Boa

rd’s two experts are not qualified, their testimony 2 2 was neither reliable nor rele vant, and thus, provided no support for the order

. We have disposed of 25fac t are contra dictory and irrec oncilable with “sound medical principles, proper ly admitted judicial

admissions, and other [findings of f act].”
We must uphold the Boa

rd’s order “if (1) the finding s of underly ing fac t in the order fairly support the [ Boa

rd’s] finding s of ul timate fac t and conclusions of law, and (2) the evidenc e
prese nted at the hear ing rea sonably supports the finding s of underly ing fac t.” Texas W

ater Comm’n

v. Lakeshore Util. Co. , 877 S.W .2d 814, 818 (Tex. Ap p . —Austin 1994, writ denied)

. Resolving fac tual conflicts and a

mbiguities is the ag ency ’s func tion, and the purpose of substantial-evidenc e revie w is to protec t that function. Brinkmey er , 662 S.W .2d at 956. I n this case , the Boa rd’s finding s of ultimate fac t and co n cl usions of law challeng ed by Scally on substantial-evidenc e g rounds

conce rn the issue of whether Scally presc ribed anabolic steroids to patients in violation of the standard of

car e without a valid medica l purpose. The ultimate conclusions which support the Boa rd’s decision to re voke Scally ’s license based on his pr escr ibing anabolic steroids to the eig ht pa tients a t issue include conclusions of law fiftee n, eig hteen, and nineteen, which state that Scally “violated the medical standards of car e by presc ribing anabolic steroids without a valid medical rea son,” “administere d anabolic steroids to [t he eig ht patients] for non-thera peuti c reasons in violation of the [Medical Practice Act],” and “administere d Schedule I I I anabolic steroids to [t he eig ht patients] for purposes of body building in violation of the Texas H ealth and Safety Code, there by violating the [Medica l Pra ctice Act].” See
Tex. Occ

. Code Ann. §§ 164.051(a) (1), .052(a) (5), .053(a) (1), (5); Tex. Hea lth & Safety Code Ann. § 481.071.

that arg ument with our conclusion that the AL J ’s decision to a dmit the experts’ testimony was not an abuse of discre tion. 26Scally challeng es numerous fac t fi n d i n gs , b ut the hear t of his arg ument is that the evidenc e does not support the fac tual finding s underly ing the Boa

rd’s ultimate conclusions beca use the eig ht pa tients f

or whom he presc ribed anabolic steroids wer e hy pog onadal. Thus, he contends he had a valid medical pur

pose and the rape utic rea sons for pre scribing the drug s to these patients, whom he asse rts wer e not in g ood health. The Boa rd, on the other ha

nd, contends that substantial evidenc e supports the AL J ’s conclusion that Scally brea ched t h e s tandar d of car e beca use Scally
presc ribed anabolic steroids: (1) to healthy individuals (patients whose test o s t er o ne levels had
returne d to normal afte r possibly being hy pog onadal beca

use of prior use of illicit steroids for nonthera peutic rea sons); (2) for the purpose of body building; including (3) to a p atient, J .Bi., who exhibi ted signs of steroid abuse; and (4 ) t o a p at ient, S.L ., who was at an incre ased risk for prostate c ance r.

For purposes of our discussion, we will g roup the finding s of fac t that Scally contends

are not supported by substantial evidenc e into t wo t o p i cs : the applicable standard of car e and whether Scally presc ribed anabolic steroids for body buildin g . The AL J ’s ultimate conclusions about Scally ’s improper presc ription of anabolic steroids depend upon her resolution of these issues. To the ex tent that Scally arg ues t hat ot her inconsistencies and contra dictions can be found within the
Boa rd’s experts’ testimony and the final order itself, we ag ain note that our con ce rn i s only the

overa rching question of whether substantial evidenc e exis t ed t o support the AL J ’s ultimate conclusions. See Lakeshore U t i l

. Co. , 877 S.W .2d at 818. The AL J , as j udg e of the weight to be

acc orded to witnesses’ testimony , may rely upon part of the testimony of one witness and disreg ard the rema inder

. See Southern Union Gas Co. v. Railroad Comm’n of Tex. , 692 S.W .2d 137, 141-42 (Tex. App.—Austin 1985, writ ref’ d n.r.e.)

. 27Evidence of standard of care The Boa rd’s experts test if

ied about the standard of car e for trea ting patients who want
to stop taking anabolic steroids and those who have steroid-induce d hy pogo n ad i sm. Both Drs.
Werner and J acks o n testified that the appropr iate proce dure is to have the patient stop using all anabolic steroids and wait to se e whether the patient’s sy stem will r eturn to its natura l equilibrium

on its own, while watching for what they t er m ed “withdra wal sy mptoms,” i.e., hy

pog onadism
sy mptoms, which are addre ssed if the patient develops them. Both doctors ag ree d that if withdrawa l
sy mptoms deve loped and the pa tient had a pe rsistent problem with the produc tion of testosterone, they would trea t the sy

mptoms by placing t he patient on a repla ceme nt dose of testosterone for

sever al months and then slowly decr easing the amount to let the patient’s sy stem return to normal. The repla ceme nt dose is a phy siologica l dose compar able to what the bo d y n o rm ally makes, as opposed to a pharma colog ical dose, which would be a highe r dose than the body normally makes.
Dr. Werner further explained that he would eng ag e in “wa tchful waiting ” if the patient had been on steroids for only a short time, but that if the patient ha d been on hig h doses for a long time a nd his whole HPTA was suppressed, he would keep him on the repla ceme nt dose of testostero n e for approximately

two to four months and then slowly decr ease the dose.
D r . We r n e r testified that there would be no valid medical purpose for placing a pati e n t who had been taking black- marke t ste roids on a presc riptive anabolic steroid. He also opined that it is outside the standard of car e to tr eat mental health problems, such as depre ssion, with anabolic steroids, as Scally ’s expert, Dr. DiPasquale, testified that Scally was doing. Ba sed on his r eview 2 3

Dr. DiPasquale acknow ledg ed that treating HPTA dy sfunction with anabolic ste roids is 2 3 not a g ener ally acc epted prac tice in the medical community , but h e o p i ned that it is proper to use 28of the pa tients’ rec ords, Dr. Werner conclude d that Scally was pre scribing anabolic ste roids to the patients in this case for body building purposes, which is outside the standard of car e and not a leg itimate medical p urpose. Dr. J ackson likewise testified that it violates the standard of car e to place a patient who ha s been using black- marke t steroids on presc riptive ana bolic steroids. As he explained, “[a]ny addit i o n al an d rogenic ag ent is g oing to continue suppression of the [HP T] axis

. . . . [R ]esuming high dose androg en or anabolic steroid thera py when y ou’re try ing to g et the axis to rec over ma kes no sense .”

Both Dr s. Werner and J ackson testified that there a re a number of me dical dang ers associate d with the use of the anabolic steroids (i.e., Anadr ol-50, ox androlone , Wins trol, Halotestin) that Scally presc ribed to his patients. Dr. J ackson testified that he will n o t u s e t hem to trea t testosterone deficienc y beca use of the l iver side eff

ects (liver damag e, jaundice, and eleva tions of liver enzy

mes), among others, including cholester ol eff ects rela ted to arte rioscler osis and hear t disease, enlar g ement of the prostate, and possible stimul ation o f p rostate and other canc ers. Dr.
Werner testified that these are only the known, measura ble side eff

ects, but as steroid use is further studied, there are likely to be more long- term problems discovere d that are associate d with their use. Both Boa rd experts testified that beca use of these dang ers, they would only use repla ceme nt dose s of testosterone ag ents n o t as s o ciated with these side eff ects to trea t patients try ing to stop using anabolic steroids who wer e experiencing sufficie nt testosterone- defic iency sy mptoms. Simi larly ,

anabolic steroids to trea t the “psy cholog ical phy siologica l” conce rns of men and women who have used i llicit steroids. He also confirme d, howeve r, t hat t he medical rec ords of the patients at i ssue d o n o t d o cu m ent those sorts of problems. Dr. DiPasquale testified that he has never presc ribed anabolic steroids as part of his own prac tice. Dr. DiPasquale ag ree d with the other three doctors that g iving a patient te s to s te r o n e or other anabolic steroids will incre ase the testosterone level and depre ss the HPTA. 29Dr. DiPasquale testified that presc ribing anabolic s t er o ids is not the appropr iate method for

normalizing a pa tient’s testosterone le vel.

Dr. J ackson testified that the normal dose of testosterone for repla ceme nt thera py is
100 milli g rams per wee k, 200 milli g ram s ev ery two wee ks, or 300 milli g rams ever y three wee ks (depe nding on the form). He explained that the dosag e Scally p rescribed to these patients of 200 milli g rams per wee k is twice as much as the normal repla ceme nt dose. I n addition, Scally would 2 4
presc ribe other anabolic steroids, like Anadr ol, ox androlone , and sometimes Wins trol, at the same time as he was presc ribing twice the normal repla ceme nt dose of testosterone. Dr. J ackson explained

t h e s i m i l ar ity betwee n this prac tice and “stac king,” a practice in which body builders us e mul tiple differ ent anabolic steroids in pharma colog ical doses at the same time to incre ase the drug s’ anabolic eff ect s . Dr

. J ac kson testified that there is no justification for Scally ’s prac tice of adding other anabolic ag ents to the testosterone dose. He explained that the anabolic steroids would further
suppress the axis , leading Scally to presc ribe another course of his hCG-Clomid-tamox ifen protocol “to wake up t he sy stem.” Jackson observe d that Scally ’s justification noted in the re cords f or this
repe ating “y o-y o” cy cle of the hCG-Clomid-tamox ifen proto co l fo l l o wed by a round of anabolic steroids was to “incr ease lean body mass” (nonfa t mass, including muscle, water , bone, connec tive

t i s s u e, an d internal org ans), which J ackson viewed as a catc h phrase for incre asing muscle enhanc ement.

The dose Scally presc ribed is a lower dose than wh at is often used in competitive 2 4 body building, althoug h no studies demonstrate e x actly what dose is nee ded to build muscle. 30Scally’s challenge to standard-of-care e vidence Scally contends that the finding s of fac t rela ted to the standard of car e applicable to the patients at i ssue are not supported by substantial evidenc e. As discussed above, both Boa rd 2 5 experts provided their opinions that the appropr iate standard of car e for patients with s te r o id-induced hy pog onadism or a dy sfunctional HPTA who want to stop anabolic steroids i n v o lves watchf ul waiting , and if nece s s ar y , t es tosterone repla ceme nt in phy siologica l doses. Scally insists that 2 6
beca use the Boa

rd’s experts did not provide citation to peer -re viewed literature for this standard, the
AL J should not have relied on this testimony beca use it was based only on the experts’ unsupported opinions. See Merre ll Dow Pharms., Inc. v. Havne r , 9 5 3 S.W .2d 706, 712 (Tex. 1997). Whil e Scally is corr ect that “an expert’s bald assura nce of validity is not enoug h,” id. , more than that was

Scally also arg ues that the proposal for decision states that the Boa rd “fa iled to articula te 2 5 the standard of car e in diag nosing the patients,” and thus it is not possible to articula te a standard of car e for trea tment. Contrary to Scally ’s asser tion, the AL J found that the Boa rd did not establish that Scally had conducte d inappropria te testing, not that it failed to articula te the stand ar d o f car e for diag nosis of hy

pog onadism or sec ondary hy pog onadism. Scally ’s actual contention appears to be that the Boa

rd failed to establish when it is medically appropr iate to trea t a patient for hy pog onadism or sec ondary

hy pog onadism, and thus, that it is not possible f or the Boa

rd to ha ve dete rmined that Scally inappropria tely trea ted his pa tients f or these conditions. But as part of the Boa rd’s experts’ testimony reg arding the standard of car e for steroid-induce d hy pog onadism, they explained that the appropr iate course of action is to mon itor the patient who has stopped using anabolic steroids for both testosterone defic iency and development of ass o ci ated sy mptoms for some time befor e presc ribing any drug s, so that the HPTA has a ch an ce to return to normal on its own. They also testified that it is ne ver appropr iate to tr eat steroid-induce d hy pog onadism by presc ribing anabolic steroids other than r eplac ement doses of testosterone. J .Bi., the only woman patient at issue, was taking veter inary -g rade Wins trol when she had 2 6 her initial appoi n tment with Scally

. She was exhibi ting sy mptoms of masculinization including fac ial hair g rowth, an enlar g ed clitoris, cessa tion of menstrual periods, and a deepe ning of her voice. Scally rec orded a rule-out diag nosis of perimenopa use for her. Although Scally had her discontinue the us e of ve terinar

y -g rade Wins trol, he prescribe d human-g rade Wins trol. Scally later prescr ibed her ox androlone , too. The Boa rd’s experts testified that it was outside the standard of car e to presc ribe Winstrol and other ana bolic steroids to a fe male patient e x perie ncing masculinization.

31provided by the Boa rd’s experts he re. The e x perts provide d the under ly ing sc ientific ra tionale for the s tandar d of care, expl aining the m edica l risks associate d with the anabolic steroids that Scally was prescribing an d t h e m edical rea sons why those drug s are not ty pically presc ribed to someone who is attempting to stop taking them. They also explained the medical rea sons for presc ribing the
most minimal dose of testosterone possible, if repla ceme nt testosterone is war rante d by a patient’s complaints. I n addition, althoug h Scally insists —without citation to authority —that peer -re viewed publication is nece ssary to establish the Boa rd’s standard of car e, his own trea tment protocol has not been subjected to peer revie w befor e publication. Scally al so asser ts that the Boa

rd’s experts develope d this theory solely for this litigation, but that asser tion is contra

ry to the experts’ testimony that this is the methodology they use when trea ting patients and teac hing medical students. For all these rea sons, w e conclude that substantial e vidence supports the AL J ’s fac tual finding s rela ted to the standar d of ca

re.

Evidence of

prescription of anabolic steroids to healthy patients for bodybuildin g The AL J provided a detailed analy sis of eac h patient’s trea tment in the proposal for decision, based on the m edica l rec ords and the ex pert testim ony . As part of her a naly sis, the AL J considere d the rea son each patient was seeking trea tment, whether Scally was providing another

source of anabolic steroids to patients who wer e alre ady known to have used illicit steroids, and what condit ion Scally trea ted. We will summarize the fac ts most pertinent to the Boa rd’s u l t i m at e conclusion that Scally

presc ribed a

nabolic steroids to hea lthy patients for body

building.
All nine of the patients indicated an interest in Scally ’s Body Building prog ram when they came in for their initial visit. All eig ht to whom Scally presc ribed anabolic steroids wer e either

32curr ently using anabolic steroids when they came in for their initial or a subsequent visit or they had

a history of prior steroid use. Nothing in their medical reco rd s i n d i ca t es they soug ht help with 2 7 stopping steroid use. Nothing in their medical rec ords indicates that Scally counsele d those patients using illicit steroids to stop.

As S ca l l y explained in his expert repor t, hy pog onadism may manifest throug h a number of differ ent sy

mptoms, including among others, ere ctile dy sfunction, l o s s of libido, depre ssion, decr ease d appetite, d e c r e a sed cog nitive abilities, sleep disturbance s, mood disturbance s, fatig ue, and decr ease d muscle mass and streng th. T.C., M.W., J .S., J .B., and J .Bi. repor ted none of these sy mptoms at their initial appointments. J .M. repor ted irritability and difficulty s ta y in g a sleep, 2 8
T.W. repor

ted some hy

pog onadism sy

mptoms (poor libido and sex drive, sleep disturbance s, mood disturbance s), and S.L

. repor ted only “fa ir” libido and sex drive and occa sional ere ctile problems. Scally noted that S.D. had dec rea sed testicular siz e at his initial appointment. Significa ntly , most of the patients we re n ev er diag nosed with hy pog onadism. For M.W., J

. S

. , and T.W., Scally issued only rule-out diag noses of hy pog onadism and/or seconda ry hy pog onadism and did not issue definitive diag noses afte r testing. For J .B., Scally did not indicate that he suspected seconda ry hy pog onadism; instead, his g oals wer e to incre ase J .B.’ s lean body mass and libido. For J .Bi., the only woman patient at issue, Scally indicated a rule- o u t d i agn o s is of perimenopa

use. For S.D., Scally orig inally issued a definitive diag nosis of g y necoma stia

T.C. was the only patient for whom Scally did not presc ribe steroids. I t appea rs from the 2 7 rec ord that T.C. neve r re turned a fter his initial visit.

Although the medical rec ords do not ref lect sy mptoms repor

ted by these p atients, the 2 8 Boa rd pled in its complaint that M.W. had libido problems and decr ease d testicle siz e, J .S. had low libido and ener g y , and J.B. had dec rea sed libido and weig ht loss. 33(abnor

mally enlar g ed brea st tissue in a male, which can be a side eff ect of steroid use), for which he
presc ribed tamoxifen. For J .M. and S.L ., Scally

issued definitive diag noses of hy pog onadism. 2 9 3 0 Finally , o n e o f the most compelling piece s of evidenc e is the fac t that Scally
presc ribed anabolic steroids to M.W., J .S., J .M., T.W., S.L ., and S.D. afte r their testosterone levels had re turned to within the normal ra ng e, as de fined by

the l ab that perf

ormed the blood tests. I n 3 1

some case s, S ca lly also presc ribed anabolic st eroids to patients when they had high l evels of total
testosterone. 3 2

S.D. was a body

builder who told Scally that he was involved in body building competitions 2 9 and used illicit anabolic steroids. S.D. ref used to quit taking steroids and was actively prepa ring for a body building competition when Scally presc ribed the ta mo xif e n to r e d u c e the g y necoma stia, which is a side ef

fec t of steroid use. S.D.’s visits to Scally wer e intermittent, and thre e y ear s later, whe n S.D. had a nor

mal total testosterone leve l, Scally presc ribed a

nabolic steroids to him. S.L . had a pr ior history of anabolic- steroid use and was being trea ted by another doctor, 3 0 a urolog ist, for his eleva ted PSA level, which indicates a possibili ty of prostate canc er. He was alre ady taking repla ceme nt testosterone prescr ibed by the urologist when he came in to see Scally and had a high level of total testosterone. Scally presc ribed testosterone cy pionate to continue S.L .’s repl a c e me n t th e r a

p y , but also presc ribed Wins trol and other anabolic steroids. Drs. Werner, J ackson, and DiPasquale all testified that presc ribing anabolic steroids to S.L

. exposed him to a g rea ter risk of ca ncer g rowth. I n addition, Scally presc ribed testosterone and other anabolic steroids to J .B. over a period 3 1 of sever al months while his total testosterone level was noted as “pending .” Scally also presc ribed anabolic ste roids to J .Bi., a woman alr eady

showing signs of

masculinization at her initial visi t. For example, Scally continued presc ribing testosterone cy pionate to J.M. on at least two 3 2 occa sions when his total testosterone levels wer e high. On one occa sion, he presc ribed testosterone cy pionate to J .M. befor e rec eiving the labora tory results, which later showed J .M.’s level to be high. Nothing in the medical rec ords indicates he advised J .M. to stop the testosterone afte r rec eiving the labora tory

results. 34Scally’s challenge to bodybuildin g evide nce Scally asser

ts that the anabolic steroids he presc ribed wer e proper medications for the conditions he diag nosed and that there is no reliable evidenc e that he presc ribed them for t h e nonthera peutic purpose of body

building. When we consider the rec o rd as a whole, there is substantial evidence in the rec ord that supports the ultimate c onclusions tha t Sca lly presc ribed the anabolic steroids without a valid medical reason for t he nont h era peutic purpose of body

building. Scally ’s marke ting materia ls show that he offe red a prog ram for body building, but not one for HPTA normalization or cessa tion of steroid use. The medical rec ords ref lect that all nine of the patients at issue indicated an interest in the Body Building prog ram, and none indicated they wer e there to stop taking anabolic ste roids.

As part of his protocol, Scally presc ribed anabolic steroids to pati ents afte r their
testosterone levels came back within nor mal rang e, even though returning the testosterone level to normal was the purported g oal of restar ting the HPTA fee dback loop. I n other words, Scally was 3 3
presc ribing anabolic steroids to otherwise healthy patients. He also ty pically presc ribed testosterone
at two times the normal repla ceme nt dose and at the same t ime as he presc ribed other anabolic steroids. Scally admitted that “[r]einit iating androg ens will only continue to suppr ess the [HP TA] and potentially worsen the condition for which they wer e stopped.” I n addition, all three of the other

Scally contends that whether he presc ribed the anabolic steroids for a valid medical rea son 3 3 should be controlled by a long list of fac tors that he derive s from primarily fede ral case law. Whil e we need not deter

mine whether those fac tors are applicable here , we note that even if they are , one of the fac tors Scally cit es is the lack of a logic al rela tion betwee n the drug s presc ribed and the trea tment of the alleg ed condition. See, e.g. , United States v. Rogers , 609 F.2d 834, 838-39 (5th Cir. 1980). 35experts, including Scally ’s own, opined that Scally presc ribed an ab o l i c steroids for purposes of

body building. 3 4

We overr ule Scally ’s third issue beca use we find that substantial evidenc e supports the finding s of fa ct under ly ing the ultimate conclusions in the Boa rd’s orde r.
Adequacy of

m edical rec ords Scally asser

ts in his fourth and fifth issues that the Boa rd err ed by finding that Scally failed to maintain adequate medical rec ords for T.C., M.W., J .S., T.W., J .B., and J .Bi. beca use Scally did not provide a “diag nosis” for these p at i en t s as required by rule 165.1(a). See 22 Tex. Admin. Code § 165.1(a) (1997) (Tex. Med. Bd., Med. Records)

. Scally maintains that his medical rec ords 3 5

wer e sufficie nt beca

use they included a “rule -out diag nosis” for eac h patient. A “rule -out diag nosis” is mere ly a possible diag nosis, not a definitive diag nosis. The Boa rd does not ag ree that a “rule -out diag nosis” is a “diagno s i s ” u n d er t he rule. I t interpre ts the term “diag nosis” to mean a definitive diag nosis that is justified by the patient’s sy mptoms. Scally challeng es this interpre tation of the rule.

Dr. DiPasquale ag ree d that Scally presc ribed anabolic steroids to M.W., J .S., J .B., J .Bi., 3 4 and S.L

. for body

building purposes. Scally contends that Dr. DiPasquale testified otherwise based on Dr. DiPasquale’s testimony that Scally was presc ribing the steroids not only to incre ase muscle mass and streng th, but also to trea t the “psy chopatholog y ” that Dr. DiPasquale desc ri bed as a potential p roblem for Scally ’s patients. Dr. DiPasquale explained that “ce rtain people psy cholog ically or emotionally

. . . fee l better with bigg er muscles.” Dr. DiPasquale acknow ledg ed, howeve r, that the medical community at lar ge wo u l d not find it acc eptable to presc ribe drug s or anabol i c s teroids for the purpose of making these people fee l better. He also acknow ledg ed that Scally did not document in the patients’ medical rec ords the exis tence of this ty pe of p ro b l em . I nstead, he based his tes t i m o n y that this psy chopatholog y was a fac tor in Scally ’s presc ription of anabolic ste roids on his discussions wit h Scally

. Although the Boa

rd has amende d the rule sever al times, all citations to rule 165.1(a) here in 3 5 ref er to the 1997 r

ule that was in e ffe ct at the time Scally trea ted the patients a t issue. 36Although Scally challeng es the Boa rd’s finding s and conclusions on statutory -construc tion g rounds,

we briefly summarize the evidenc e admitted at the hear ing about the condition of Scally ’s medical

rec ords to provide c ontext for our discussion of these issues.
Evidence that Scally’s recordke eping was in adequate As discussed above, Scally never actua lly d i agn o s ed most of the patients with hy pog onadism, and for sever al patients, Scally ’s rec ords do not incl ude a diag nosis even afte r he

rec eived lab results order ed on the basis of his rule-out diag nosis. Both Boa rd experts testified that

a ru l e- o ut diag nosis is not the same as a true diag nosis. Dr. Werner explained that it is m er el y a tentative diag nosis, also known as a differ ential diag nosis. I n other words, a doctor makes a rule-out diag nosis based on the pa tient’s sy mptoms and complaints and the n tests to determine whe ther he

can eliminate the rule-out diag nosis from his mental list of possible diag noses. Both Boa rd experts testified that i t i s b el o w t he standard of car e to fail to provide a diag nosis. Dr. DiPasquale acknow ledg ed t h at h e had to confe r with Scally about his trea tment of eac h patient beca use the medical r ecor ds were so incomplete and diff icult to read.
T h e ALJ conclude d that the rec ords of M.W., J .S., T.W., J .B., and J .Bi. wer e in a d e q u a te b e c ause they lacke d a diag nosis, and T.C.’s rec ords wer e inadequa te beca use the rec orde d
sy mptoms di d not support Scally ’s rule- out diag noses or his trea tment plan.

Scally’s challenge to the Board’s findi ngs th at his records were inadequate Scally contends that the Boa rd impermissibl y e n g a g e d in a d h o c r u le making and acte d
in excess of its statutory authority and in violation of Scally ’s constitutional rig hts to due proce ss and
ag ainst enfor ceme nt of an ex post fac to law by its interpre tation of former rule 165.1(a)

. See 22 Tex.

37Admin. Code § 165.1(a)

. We construe ad m inistrative rules in the same manner as statutes.

Rodriguez v. Servic e Lloyds Ins. Co. , 997 S.W .2d 248, 254 (Tex. 1999). Statutory construction is

a matter of law, subject to de novo revie w. City of Rock wall v. Hughes , 246 S.W .3d 621, 625 (Tex. 2008). When we construe administrative rules, “‘[a]n a dminist rative ag ency ’s interpre tation of its

own rules is en t i t l ed t o g rea t weig ht and defe renc e; it controls unless plainly err oneous

or inconsistent with the ag ency ’s enabling statute.’” Citi es ofDickinson v. Public Util. Comm’n of
Tex. , 284 S.W .3d 449, 452 (Tex. App.—Austin 2009, no pet.) (quoting Ack erson v. Clarendon Nat’l
Ins. Co. , 168 S.W .3d 273, 275 (Tex. App.—Austin 2005, pet. denied))

.

The version of rule 165.1(a) i n eff ect for the contested- case hear ing provided that
Boa rd-lice nsed phy sicians “shall maintain adequate medical rec ords for eac h patient. For purposes of this section, ‘ade quate medical rec ord’ shall mean any rec ords documenting or memorializing the history , diag nosis, and treatment of t he patient.” 22 Tex. Admin. C ode § 165.1(a ). I n finding s of fac t 52-54, 62, 96, 97, 104, 178, 179, 200, and 217, the B oard f ound that:

• medical r ecor ds are inadequa te without a diag nosis;

• a rule-out diag nosis is not a diag nosis, but only a possible diag nosis that the doctor wa nts to investigate to de termine if the patient has that condition;

• many

of Scally ’s re cords we re illeg ible;

• the rec ords of M.W., J .S., T.W., J .B., and J .Bi. wer e inadequa te beca use they lacke d a diag nosis; and

• T. C

. ’s rec ords wer e inadequa te beca use they contained an unsupported diag nosis.

S ca l l y co n t en d s that the Boa rd’s interpre tation of t h e ru l e t o ex cl u d e ru l e- o u t diag noses is impermis s i b l e ad hoc and ex post fac to rulemaking

. He further arg ues that this

38interpret at i on is inconsistent with the federa l Hea lth I nsuranc e P ortability and Accountability Act

of 1996 (HI PAA), Pub. L

. No. 104-191, 110 Stat. 1936 (codifie d primarily in Titles 18, 26, and 42 U.S.C.), which he alleg es uses the term “diag nosis” to include rule-out diag noses, and with Medica re diag nosis coding , which he all ege s allows listi ng of a chief complaint, sign, or sy mptom as an alterna tive to a diagnosis. I n his fourth and fifth i ssues, he arg ues t hat under these guidelines, the patients’ medical rec ords are adequa te. As the Boa

rd points out, even if HI PAA and Medica re allow

a rule-out diag nosis or a d es cr i p t i on of complaints instead of an actua l diag nosis, the Boa rd is entitled to require more of its licensee s. The Boa rd’s rule is not contra

ry to HI PAA beca

use a doctor who complies with the Boa rd’s rule will also be in compliance with HI PAA. See 45 C.F.R. § 160.202 (2010).

We must defe r to the Boa rd’s interpre t at i o n unless it is plainly err oneous or inconsistent with the rule. Citi es of Dick inson , 284 S.W .3d at 453 (c iting Public Util. Comm’n of
Tex. v. Gulf States Utils. Co. , 809 S.W .2d 201, 207 (Tex. 1991)). Unde r this de fer ential standard,

we cannot say that the Boa rd’s interpre tation of “diag nosis” is either plainly err oneou s o r inconsistent with the rule’s lang uag e. We overrule Scally ’s fourth a nd fifth issues. 3 6

To the extent that Scally ’s arg uments reg arding the medica l rec ords’ a dequac y could be 3 6 construed as arg ume n ts th at substantial evidenc e does not support the finding s of inadequa te rec ords, we note that eac h of the cited patients except T.C. had nothing more than a rule-out diag nosis in their rec ords. Whil e Scally rec orded a diag nosis of hy pog onadism for T.C. af

ter he rec eived the results of T.C .’s l ab tests, rathe r t han merely a rule-out diag nosis, T.C.’s m ed i ca l rec ords di d not ref er to any sy mptoms justify ing Scally ’s orig inal rule-out diag nosis and the tests order ed, rende ring the rec ords inadequa te. T.C. had stated that his libido and sex drive wer e g ood, he exercised ever y day , and he had no prostate or ere ction problems. Scally did not indicate in T.C.’s rec ord that T.C. ha d any prior history of steroid use. As the AL J explained, “the term ‘ade quate’ must mean something, otherwise nonsensical sy

mptoms could s u p p o rt any form of trea tment order ed by a doctor.” We conclude that substantial evidence supports the Boa rd’s finding s of inadequate re cords. 39CONCLUSION
Ha v i n g overr

uled all of Scally ’s issues on appea l, we aff irm the distri ct court’s judg ment.

__________________________________________ Diane M. H enson, Jus tice
Be fore J ustices Pemberton, He nson and Goodwin
Affir med Filed: Aug ust 4, 2011

40