The opinion
392
Argued and submitted December 1, 2020, affirmed June 16, petition for review
denied October 10, 2021 (368 Or 637)
Naina SACHDEV, M. D.,
Petitioner,
v.
OREGON MEDICAL BOARD,
Respondent.
Oregon Medical Board
A172081
494 P3d 1018
Licensee is a medical doctor licensed by the Oregon Medical Board (board) to
practice medicine in Oregon. The board alleged that she violated numerous state
and federal laws while practicing medicine. After a hearing on those allegations,
it entered an order revoking her license. In Sachdev v. Oregon Medical Board,
292 Or App 778, 426 P3d 118 (2018), the Court of Appeals reversed that order,
concluding that the board failed to provide licensee with adequate notice as to all
but one of its allegations. It remanded the case for the board to impose an appro-
priate sanction on the remaining allegation—that licensee violated an interim
suspension order (ISO) by practicing medicine while the board investigated
her conduct. Based solely on her violation of the ISO, the board again revoked
licensee’s license. On her petition for review from that order, licensee argues that
(1) the board violated her right to due process by, among other things, declining
her request to appear in-person to contest the sanction; (2) the board’s order was
excessive; and (3) the order was unsupported by substantial evidence or substan-
tial reason. Held: Under Mathews v. Eldridge, 424 US 319, 333, 96 S Ct 893, 47
L Ed 2d 18 (1976), the board provided licensee all the process that was due; the
board’s order was not excessive; and the order was supported by substantial evi-
dence and substantial reason.
Affirmed.
Philip A. Talmadge, Washington, argued the cause for
petitioner. Also on the briefs were Talmadge/Fitzpatrick,
Philip G. Arnold, Washington, and Campiche Arnold PLLC.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Affirmed.
Cite as 312 Or App 392 (2021) 393
MOONEY, J.
Licensee is a medical doctor licensed by the Oregon
Medical Board (board) to practice medicine in Oregon. The
board alleged that she violated various state and federal
laws related to the practice of medicine. It held an extensive
hearing on the allegations, after which it entered an order
revoking her license, imposing a $10,000 fine, and assess-
ing the costs of the proceedings. She petitioned for review
of the board’s order. We concluded that, because the board
failed to provide her with adequate notice on all but one of
its allegations, in violation of ORS 183.415(3), those allega-
tions were not properly before the board and could not be
used as a basis to sanction her. Sachdev v. Oregon Medical
Board, 292 Or App 778, 426 P3d 118 (2018) (Sachdev I). We
concluded that the only allegation properly before the board
was licensee’s violation of its interim suspension order (ISO).
We thus remanded the case to the board for its consideration
of the sole remaining issue—an appropriate sanction for vio-
lation of the ISO. Id. at 803.
On remand, licensee argued that the board should
impose a three-year license suspension, with credit for the
period of suspension to which her license had already been
subjected. Instead, the board found that licensee’s violations
of the ISO warranted a permanent revocation of her license
to practice medicine. It also imposed a $10,000 civil penalty
and assessed the costs of the proceedings against licensee.
The license revocation and civil penalty were the same as
the board had imposed before Sachdev I. However, it reduced
the assessed “costs of the proceedings” from $119,836 to
$30,000 in light of the reversed allegations.
Licensee again petitions for review, arguing that
the board (1) violated her right to due process by failing to
give her an opportunity to appear at an in-person hearing,
(2) imposed an excessive sanction of license revocation, and
(3) imposed a sanction unsupported by substantial evidence
and substantial reason. We conclude that licensee was
afforded sufficient due process, and that the board’s order
was supported by substantial evidence and reason. We also
conclude that the license revocation was not an excessive
sanction. We affirm.
394 Sachdev v. Oregon Medical Board
I. BACKGROUND
We summarized the pertinent factual background
concerning the board’s investigation of, and resulting com-
plaint against, licensee in Sachdev I:
“Licensee practiced ‘integrative and functional’ medicine,
which is an integration of traditional Western medical prac-
tice with alternative medicine, and offered cosmetic and
medical services at her clinic in Lake Oswego. In December
2011, the board began investigating licensee after receiving
a patient complaint. The next year, the board became aware
of a federal Drug Enforcement Administration (DEA) con-
trolled substances investigation into licensee’s clinic and
received a second complaint about her. The board’s investi-
gation included concerns that, among other things, licensee
improperly dispensed controlled substances, inadequately
charted patient care, and provided substandard care to
her patients. Unsatisfied by licensee’s responses to its con-
cerns, the board asked licensee to stop practicing medicine
until it completed its investigation and, on June 7, 2012,
licensee agreed to the ISO, which provided that she would
withdraw from the practice of medicine.
“As the board continued its investigation, licensee
remained involved in the clinic. In her view, informed by
the advice of counsel, she had a ‘duty to not abandon her
patients,’ so she hired physicians and staff to continue to
provide patient care, and any contact between her and
clinic staff or patients was limited to providing ‘continuity
of care.’ The board finished its investigation and provided
licensee with a complaint and notice of proposed disci-
plinary action against her under ORS 677.205.”
Sachdev I, 292 Or App at 779-80 (footnote omitted).
The board’s complaint proposed to take disciplinary
action against licensee, alleging numerous violations of ORS
677.190. Licensee was charged with unprofessional or dis-
honorable conduct, gross or repeated negligence in the prac-
tice of medicine, violating the Controlled Substances Act,
prescribing controlled substances outside accepted prescrib-
ing and recordkeeping standards, and violating a board
order (the ISO). The hearing before the administrative law
judge (ALJ) spanned 10 days and resulted in a 144-page
order. Licensee filed objections that the board considered
Cite as 312 Or App 392 (2021) 395
but did not sustain. The board adopted the ALJ’s proposed
order and permanently revoked licensee’s license to practice
medicine, imposed a $10,000 fine, and assessed the costs of
the proceedings. As already mentioned, licensee petitioned
this court for review, and we reversed all but the allegation
alleging violations of the ISO under ORS 677.190(17). Id. at
803. We therefore remanded to allow the board to consider
an appropriate sanction for that remaining allegation. Id.
On remand, the board’s counsel notified licensee
that the board would reconsider its sanction for her viola-
tion of the ISO, that she would not have an opportunity to
appear for that, and that it would issue a proposed order
once it made its decision. He also informed licensee that,
rather than issuing a new sanction, the board might instead
decide to initiate a new disciplinary action and recharge
licensee with the allegations that had been reversed due to
inadequate notice. In September 2018, licensee’s attorney
responded to the board’s counsel, asserting, among other
things, that proceeding without an in-person hearing would
violate her right to due process.
After the appellate judgment issued, the board
decided to re-sanction licensee on the one remaining alle-
gation, rather than recharge her with those allegations
that had been reversed. It did not provide licensee with
an in-person hearing, and it did not allow her to person-
ally appear for the meeting at which the sanction was dis-
cussed. In May 2019, the board issued a proposed order
that would impose a permanent revocation of her license to
practice medicine, a $10,000 civil penalty, and an assess-
ment of the costs associated with the proceedings. Licensee
objected to that order, arguing that the proposed sanction
was “too severe and not appropriate for the offense of vio-
lating the Board’s [ISO].” She argued that “[a] more appro-
priate sanction would be suspension for three years with
credit for the period of revocation[.]” In addition, licensee’s
counsel sent a letter to the board, explaining that licensee
had made substantial changes that would affect the way in
which she would practice medicine, and that she had taken
a number of courses to improve her understanding of med-
ical recordkeeping. Attached to that letter were a number
396 Sachdev v. Oregon Medical Board
of certificates, which demonstrated that licensee had com-
pleted courses related to medical recordkeeping and other
practice improvements.
In July 2019, the board issued its final order, reject-
ing licensee’s exceptions and imposing a permanent license
revocation, fine, and assessment of costs as a sanction it
deemed appropriate for the repeated ISO violations. The
board explained that
“[b]y willfully violating the ISO on repeated occasions,
Licensee was not honest with the Board in that she
breached the terms of an agreement/Order with the Board
that she had committed to comply with. This highlights a
disregard for the authority of her licensing board, and an
unwillingness on her part to conform her conduct to the
requirements of the law. Her conduct also placed her clinic
staff into a conflicted situation, in which they knew she
had agreed to refrain from practicing medicine, so that
they had to decide whether to acquiesce to her continued
medical practice and her directed orders and tasks related
to patient care or to comply with the express terms of the
ISO.”
On review, licensee raises the three assignments of
error described above: that the board violated her due pro-
cess rights when it declined her request to appear in-person
for discussion of the sanction upon remand, that revocation
of her license is an excessive sanction, and that the board’s
order is not supported by substantial evidence or reason. We
reject all three assignments.
II. ANALYSIS
A. Due Process
Licensee first assigns error to the board’s proce-
dures, arguing that “the Board violated [her] constitutional
right to due process.” This assignment does not meet the
requirements of ORAP 5.45(3), which provides that each
assignment of error is to “identify precisely the legal, pro-
cedural, factual, or other ruling that is being challenged.”
But we understand licensee’s first assignment of error to
challenge (1) the board’s decision not to allow licensee to
appear in person when it considered the appropriate sanc-
tion for the ISO violations on remand from this court and
Cite as 312 Or App 392 (2021) 397
(2) its “obvious reconsideration of vacated charges.” For the
reasons that follow, we reject both due process challenges.
1. Licensee preserved her argument.
We begin with the board’s contention that licensee
did not preserve her due process argument for this petition
for review. In general, a party may not assign error to a
matter on appeal that was not raised in the lower tribu-
nal. ORAP 5.45(1). “Ultimately, the preservation rule is a
practical one, and close calls * * * inevitably will turn on
whether, given the particular record of a case, the court con-
cludes that the policies underlying the rule have been suf-
ficiently served.” State v. Parkins, 346 Or 333, 341, 211 P3d
262 (2009). We require preservation to ensure that the trial
court or, as here, the board, had a “chance to consider and
rule on” the argument now being made, perhaps avoiding
the need for an appeal altogether. Peeples v. Lampert, 345
Or 209, 219, 191 P3d 637 (2008). Preservation also “ensures
fairness to opposing parties” by avoiding surprise, State v.
Walker, 350 Or 540, 548, 258 P3d 1228 (2011), and it “fosters
full development of the record, which aids the [tribunal] in
making a decision and the appellate court in reviewing it,”
Peeples, 345 Or at 219-20.
We conclude that the purposes of preservation were
served in this case. Licensee’s attorney notified the board,
via letter, that licensee wanted to have an in-person hearing
before the board reconsidered its sanction. In that letter, he
explained licensee’s view that for the board to “proceed in
her absence is to continue to violate” her civil rights and,
further, that she was entitled to due process, “which, at a
minimum, requires notice and the right to be heard in any
hearing that might restrict or remove her license to practice
medicine.” The board’s attorney responded to licensee’s let-
ter on behalf of the board, explaining that, if the board chose
to re-sanction her, rather than initiate a new case, it would
proceed without a hearing. It is apparent that the board
understood licensee to be requesting a contested, in-person,
hearing. It then considered and rejected her request. The
board cannot be said to have been taken by surprise, mis-
led, or denied opportunities to meet licensee’s argument.
Licensee preserved her due process argument.
398 Sachdev v. Oregon Medical Board
2. The board provided licensee with sufficient due
process.
Although we agree with licensee that she preserved
this assignment of error for review, we nevertheless conclude
that the board afforded her all of the process she was due. We
review the board’s decision for legal error. Murphy v. Oregon
Medical Board, 270 Or App 621, 622, 348 P3d 1173 (2015).
The Due Process Clause of the Fourteenth Amendment to
the United States Constitution prohibits states from depriv-
ing persons of “life, liberty, or property without due process
of law.” US Const, Amend XIV, § 1. Both parties agree that
licensee’s interest in continuing to practice medicine is sig-
nificant and subject to the protections of the Due Process
Clause. Their disagreement focuses on whether licensee
was provided with the process she was due before she was
deprived of that interest.
We begin by rejecting licensee’s argument that
analogizes the board’s consideration of an appropriate sanc-
tion on remand to a court’s consideration of an appropriate
criminal sentence on remand. It is correct that criminal
defendants have a constitutional right to appear in-person
for sentencing under Article I, section 11, of the Oregon
Constitution and the Fourteenth Amendment. Defendants
in felony criminal cases also have a statutory right to be
present for sentencing. ORS 137.030(1). But this is not a
criminal case and the potential loss of licensee’s medical
license is not the same as the potential loss of liberty at
stake in a sentencing hearing.
Nevertheless, a person’s “right to be heard before
being condemned to suffer grievous loss of any kind, even
though it may not involve the stigma and hardships of a
criminal conviction, is a principle basic to our society.” Joint
Anti-Fascist Committee v. McGrath, 341 US 123, 168, 71 S Ct
624, 95 L Ed 817 (1951) (Frankfurter, J., concurring). Govern-
ment agencies must provide those who are subject to agency
adjudication with an “opportunity to be heard ‘at a meaning-
ful time and in a meaningful manner.’ ” Mathews v. Eldridge,
424 US 319, 333, 96 S Ct 893, 47 L Ed 2d 18 (1976) (quoting
Armstrong v. Manzo, 380 US 545, 552, 85 S Ct 1187, 14 L
Ed 2d 62 (1965)). However, due process is “ ‘not a technical
Cite as 312 Or App 392 (2021) 399
conception with a fixed content unrelated to time, place and
circumstances.’ ” Cafeteria Workers v. McElroy, 367 US 886,
895, 81 S Ct 1743, 6 L Ed 2d 1230 (1961) (quoting Joint Anti-
Fascist Committee, 341 US at 162 (Frankfurter, J., concur-
ring)). Rather, “due process is flexible and calls for such pro-
cedural protections as the particular situation demands.”
Morrissey v. Brewer, 408 US 471, 481, 92 S Ct 2593, 33 L Ed
2d 484 (1972). That is why, under Mathews, we balance both
the governmental interests and the individual interests to
determine whether the administrative procedures that were
provided were constitutionally sufficient. 424 US at 335.
To determine how much process was due licensee
under Mathews, we consider and balance three factors:
(1) “the private interest that will be affected by the indi-
vidual action”; (2) “the risk of an erroneous deprivation of
such interest through the procedures used, and the proba-
ble value, if any, of additional or substitute procedural safe-
guards”; and (3) “the Government’s interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement
would entail.” Id.
The first factor concerns licensee’s interest in her
professional license and reputation. Without the license,
licensee cannot practice medicine in Oregon. ORS 677.080(4).
Neither party disputes that point and we, therefore, give
significant weight to licensee’s interest in her professional
license as we conduct our Mathews due process analysis. See
Robin v. Teacher Standards and Practices Comm., 291 Or
App 379, 389, 421 P3d 385, rev den, 363 Or 677 (2018) (con-
cluding that a teacher’s “professional license and reputation
as a teacher” were “significant interests”).
The second Mathews factor for us to consider in con-
junction with the other factors is the risk of an erroneous
deprivation of licensee’s interest in her license by virtue of
the procedures that were used. And as we consider this fac-
tor, we also assess the potential value of alternative proce-
dural safeguards that might have been employed. Here, we
consider licensee’s argument that an in-person, contested
hearing on the issue of the sanction would have mitigated
the risk of an erroneous deprivation of her interest in her
400 Sachdev v. Oregon Medical Board
professional license. Mathews, 424 US at 344. Mathews is on
point. There, the petitioner argued that he should have been
afforded an evidentiary hearing before the Social Security
Administration discontinued his disability benefits. Id. at
330. In discussing the second factor, the Supreme Court
explained that “procedural due process rules are shaped
by the risk of error inherent in the truth-finding process as
applied to the generality of cases, not the rare exceptions.”
Id. at 344. “The potential value of an evidentiary hearing, or
even oral presentation to the decisionmaker, is substantially
less” than in cases where factfinding can be accomplished
through “routine, standard, and unbiased” reports, as was
the case in Mathews. Id. at 344-45; see also Logsdon v. SAIF,
181 Or App 317, 323-24, 45 P3d 990 (2002), aff’d, 336 Or 349,
84 P3d 119 (2004) (holding that the determination of a work-
ers’ compensation claimant’s medically stationary date is an
issue that does not generally involve credibility or veracity
concerns).
It is important to note the key distinction between
cases where assessing credibility is important to accurate
factfinding and cases where credibility plays a less import-
ant role. An in-person hearing would be more important
when it is necessary to assess credibility. See Board of
Curators of University of Missouri v. Horowitz, 435 US 78,
90, 98 S Ct 948, 55 L Ed 2d 124 (1978) (declining to require
in-person hearings for academic dismissal cases given the
reviewable academic information available to administra-
tors); Mathews, 424 US at 343-44 (no hearing required where
“issues of witness credibility and veracity” were not central
to the agency’s decision); cf. Koskela v. Willamette Industries,
Inc., 331 Or 362, 380, 15 P3d 548 (2000) (“[W]hen, as here,
the decision-maker must resolve factual disputes involving
credibility and veracity, due process requires an opportu-
nity for at least some kind of an oral evidentiary hearing.”).
Here, licensee argues that “the risk of an errone-
ous decision is high” without an in-person hearing because
“it is impossible to know” whether the board considered the
evidence that she submitted and whether the board refamil-
iarized itself with the facts of her case. But that argument
misses the point of the second Mathews factor. The risk
of an erroneous legal decision exists at every stage of any
Cite as 312 Or App 392 (2021) 401
proceeding and the Due Process Clause does not function to
eliminate that risk. In a due process analysis, we focus on
whether the procedures used are likely to lead to incorrect
findings of fact, which will, in turn, cause an erroneous deci-
sion. In other words, we look to whether the procedures used
are adequate for factfinding in a given context. See Mathews,
424 US at 334-35 (explaining that the Due Process Clause
requires “flexibility” in determining constitutionally suffi-
cient procedures).
Licensee had participated in a 10-day hearing
subject to the procedural requirements of Oregon’s Administra-
tive Procedures Act. And, on remand, the only issue was the
determination of an appropriate sanction for the ISO vio-
lations. An in-person hearing was not necessary to ensure
accurate factfinding because no additional factfinding was
required to determine an appropriate sanction.
Turning to the third Mathews factor, we look to
the governmental interest in maintaining its existing pro-
cedures. As part of that assessment, we consider the addi-
tional administrative and fiscal burdens that would be
created by requiring additional procedures. In particular,
here, we must assess “the administrative burden and other
societal costs that would be associated with requiring, as a
matter of constitutional right,” an in-person hearing when
the sole purpose of the board’s meeting is to determine an
appropriate sanction. Id. at 347. Upon remand, the board
considered licensee’s sanction during one of its regularly
scheduled meetings. It already had the benefit of the 10-day
contested case hearing that occurred before the first appeal,
and it provided licensee the opportunity to submit additional
arguments and evidence, albeit in writing, in her formal
objection to the board’s proposed order. There is evidence
that allowing licensee to appear in-person likely would have
required resetting the matter for a limited contested-case
hearing before an ALJ on the question of sanctions. But as
the board points out, even limited contested-case hearings
involve substantial time and resources.
Considering the Mathews factors, individually and
together, we conclude on balance, that the procedures
licensee seeks are not constitutionally required. The Due
402 Sachdev v. Oregon Medical Board
Process Clause requires government agencies to provide
notice and a meaningful opportunity to be heard to those
persons whose professional licenses it proposes to sanction.
Trujillo v. Pacific Safety Supply, 336 Or 349, 366, 84 P3d
119 (2004); see also Goldberg v. Kelly, 397 US 254, 267, 90
S Ct 1011, 25 L Ed 2d 287 (1970) (due process requires that
a person be heard “ ‘at a meaningful time and in a mean-
ingful manner’ ” (quoting Armstrong, 380 US at 552)). Given
that we reached the merits of the ISO violation in Sachdev I,
the previous 10-day contested case hearing, and the writ-
ten evidence and arguments licensee was permitted to sub-
mit to the board on the issue of an appropriate sanction,
licensee was provided all the process that was due to her on
remand.
3. There is no evidence that the board considered the
reversed charges in arriving at its sanction decision
on remand.
Licensee also argues that the board violated her
right to due process by its “obvious consideration” of the
charges we reversed in Sachdev I for lack of adequate notice.
She points to the board’s counsel’s September 2018 letter,
wherein he stated that the board planned to consider those
charges when it met to discuss an appropriate sanction.
She asserts that the plan to consider the reversed charges
demonstrates the board’s bias, which, according to licensee,
was to punish her for the reversed charges. But the evidence
does not establish that the board considered the reversed
charges as a basis for the sanction they imposed on remand.
We do not agree with licensee’s characterization of
the September 2018 letter from the board’s counsel to her
attorney. In that letter, he wrote that the board would “con-
sider the appropriate sanction to impose on your client for
violating the terms of the ISO[.]” And, while he also men-
tioned the possibility that the board might consider recharg-
ing licensee in a new disciplinary action with the charges
that had been reversed, he did not say that the board would
consider the reversed charges in the context of determining
the appropriate sanction for licensee’s violation of the ISO.
In fact, the board did not recharge licensee. It issued a final
order for the ISO violation. And there is no evidence that
Cite as 312 Or App 392 (2021) 403
the board actually considered the charges that we reversed
when we determined the appropriate sanction for the sin-
gle charge that this court upheld. Instead, the focus of the
board’s proposed and final orders was on licensee’s viola-
tions of the ISO.
In further support of her argument that the board
impermissibly considered the reversed charges in arriv-
ing at a sanction on remand, she asserts that the board is
biased against alternative medical providers in general and
against her as an alternative medical provider in particular.
She argues that the board demonstrated “actual bias,” as
that term is used in the context of the Due Process Clause,
Columbia Riverkeeper v. Clatsop County, 267 Or App 578,
602, 341 P3d 790 (2014), and that its bias prevented her from
receiving a fair hearing. But the evidence does not establish
improper bias on the part of the board against licensee or
her medical specialty, and we cannot infer actual bias from
conclusory allegations that the board prejudged licensee’s
case or was otherwise hostile to alternative medical pro-
viders. See Shicor v. Board of Speech Language Path. and
Aud., 291 Or App 369, 374-75, 420 P3d 638 (2018) (reject-
ing conclusory arguments of actual bias); Becklin v. Board
of Examiners for Engineering, 195 Or App 186, 207-08, 97
P3d 1216 (2004), rev den, 338 Or 16 (2005) (same). We reject
licensee’s arguments to the contrary.
B. Adequacy of the Board’s Order
We next consider licensee’s argument that the
board’s order lacked substantial evidence and reason. ORS
183.482(8). As a threshold matter, the board argues that we
should “reject petitioner’s request to review her sanction for
substantial evidence or substantial reason.” It argues that
ORS 183.482(8) applies “differently depending on whether
the ruling challenged is legal, discretionary, or factual.” In
this case, the board contends that, because its sanction rul-
ing was discretionary, our review is restricted to that which
is provided by ORS 183.482(8)(b). We do not agree that our
review is so limited.
First, the text of ORS 183.482 does not compel the
interpretation that the board advances. ORS 183.482(8)
states:
404 Sachdev v. Oregon Medical Board
“(a) The court may affirm, reverse or remand the
order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpre-
tation compels a particular action, the court shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action
under a correct interpretation of the provision of law.
“(b) The court shall remand the order to the agency if
the court finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the
agency by law;
“(B) Inconsistent with an agency rule, an officially
stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statu-
tory provision.
“(c) The court shall set aside or remand the order if the
court finds that the order is not supported by substantial
evidence in the record. Substantial evidence exists to sup-
port a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding.”
The board’s argument that subsections (a), (b), and (c)
describe exclusive, alternative methods of review “depending
on whether the ruling challenged is legal, discretionary, or
factual,” does not survive a plain reading of the statutory
text. We read paragraphs (a), (b), and (c) of ORS 183.482(8) to
describe the permissible dispositions we may employ depend-
ing on whether the agency ruling was a violation of law, an
abuse of discretion, or a failure of evidence or reason. State
v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (explaining
that “text and context remain primary, and must be given
primary weight in” determining the legislature’s intent).
Second, we have reviewed agency orders for sub-
stantial reason, even where the board selected a sanction
that was within its authority to impose. Robin, 291 Or App
at 398. In Robin, we explained that, “where the governing
statute requires an exercise of the agency’s discretion—such
as the choice of an appropriate sanction * * *—the agency’s
explanation must be sufficient to ensure that its decision
Cite as 312 Or App 392 (2021) 405
is within the range of its discretion and is consistent with
agency rules, positions, and practices, rather than ad hoc
and arbitrary.” Id. at 398-99.
The board incorrectly argues that its choice of sanc-
tion is insulated from substantial evidence and substantial
reason review. That is because we must “ensure that the
agency [gave] responsible attention to its application of the
[governing] statute.” Jenkins v. Board of Parole, 356 Or 186,
195, 335 P3d 828 (2014) (internal quotation marks omitted).
We do that by reviewing the board’s decision and selection
of sanction to determine whether the board adequately
explained its exercise of discretion. An adequate explana-
tion for an agency’s exercise of discretion, in this context,
includes an explanation for why the order was consistent
with the agency’s “rules, positions, and practices,” and why
the order was not “ad hoc and arbitrary.” Robin, 291 Or App
at 399.
That an agency has the discretion to execute the
law in a particular way does not mean that it can do so
without providing an explanation. Agencies must explain to
the public why they have executed the law in the manner
selected. Substantial reason review allows us to ensure that
the agency provides “an explanation connecting the facts of
the case and the results reached.” Michaelson/NWDA v. City
of Portland, 296 Or App 248, 259-60, 437 P3d 1215, rev den,
365 Or 556 (2019) (citations and internal quotation marks
omitted). Without that, the board could impose any sanction
for any offense without explanation and without the possi-
bility of review. The text of ORS 183.482 does not support
that, and we have not interpreted the statute that way.
Accordingly, we review the board’s exercise of dis-
cretion to determine whether it is supported by substantial
evidence and substantial reason.
C. Substantial Evidence and Reason
Under substantial evidence review, we review the
board’s decision to determine whether “the record, viewed
as a whole, would permit a reasonable person to make” find-
ings necessary to support its disposition. ORS 183.482(8)(c).
Included in our review for substantial evidence under ORS
406 Sachdev v. Oregon Medical Board
183.482(8)(c) is review for substantial reason. In a contested
case, the agency must articulate “the rational connection
between the facts and the legal conclusion it draws from
them.” Ross v. Springfield School Dist. No. 19, 294 Or 357,
370, 657 P2d 188 (1982).
In challenging the board’s explanation for imposing
a permanent license revocation, licensee begins by contend-
ing that “the ISO was improper in the first place, as the
underlying charges of any alleged danger to the public were
invalid.” But that is not correct. In Sachdev I, we did not
reach the merits of the underlying allegations. We reversed
those allegations due to inadequate notice, and we directed
the board that it could not rely on the reversed charges to
determine an appropriate sanction. The board was autho-
rized to temporarily suspend licensee’s license based on the
types of allegations in the board’s original complaint, with
or without her agreement. ORS 677.205(3). Here, licensee
stipulated to the ISO and entered into it voluntarily pend-
ing the board’s investigation. Sachdev I, 292 Or App at 780.
That we later reversed the board’s order to the extent that
it sanctioned licensee on the original allegations does not
invalidate the ISO. Our reversals were due to lack of ade-
quate notice. We did not reach any conclusions about the
merits of the underlying allegations that we reversed. And,
even more importantly, we concluded that the allegation that
licensee violated the ISO was properly before the board, and
we remanded the matter to the board to impose an appro-
priate sanction on that basis. We reject her argument that
the ISO was improper and, therefore, not a proper basis for
a sanction.
Turning now to the merits of licensee’s substantial
evidence and reason argument, we reiterate here that the
only issue on remand was the sanction. Her argument before
the board was that a three-year license suspension would
be the appropriate sanction, and that, because her license
had already been suspended for more than three years, she
should be considered as already having completed the sanc-
tion. In particular, she urged the board that the continuing
medical education materials that she submitted in support
of her position showed that she “took the Board’s criticisms
of her practice to heart” and that she “made substantial
Cite as 312 Or App 392 (2021) 407
changes in her practice in an effort to provide better care
to her patients and avoid the type of conflicts that arose out
of her clinic.” She argued that the classes she took “had a
profound effect on her practice” and pointed to examples
such as no longer providing “medical care to family mem-
bers, employees, or herself” and instituting “an Electronic
Medical Records (‘EMR’) system.” On petition for review,
licensee argues that “the Board was obligated to explain its
severe sanction and address why it rejected” her exceptions
to its proposed order. We understand licensee to argue that
the board’s sanction lacks substantial reason because the
board did not address her proposed sanction and explain
why it was imposing much the same sanction as it did before
we reversed all but the ISO charge.
The substantial reason requirement implicit in
ORS 183.842 exists “ ‘both for purposes of meaningful judi-
cial review and to ensure that the agency gives responsi-
ble attention to its application of the [governing] statute.’ ”
Jenkins, 356 Or at 195 (quoting Ross, 294 Or at 370). In con-
tested cases, agencies must articulate “the rational connec-
tion between the facts and the legal conclusions it draws
from them.” Ross, 294 Or at 370. And, as mentioned above,
where an agency exercises discretion, its “explanation must
be sufficient to ensure that its decision is within the range of
its discretion and is consistent with agency rules, positions,
and practices, rather than ad hoc and arbitrary.” Robin,
291 Or App at 398-99. Even if an agency correctly articu-
lates the relevant factual and legal framework leading to its
sanction, it must explain why it tied those facts to its con-
clusion. Lockett v. Teacher Standards and Practices Comm.,
289 Or App 593, 601, 412 P3d 229 (2017). The agency must
provide that explanation so that we can determine whether
its severe sanction was ad hoc or arbitrary. Id.
In its order explaining why it was revoking licens-
ee’s license for violating its ISO, the board first explained
the purpose of interim suspension orders. The board stated
that it “has a statutory mission to * * * ‘protect the public
from the practice of medicine by unauthorized or unqual-
ified persons * * * and to exercise general supervision over
the practice of medicine within this state.’ ” (Quoting ORS
677.105.) It explained that it “only offers an ISO to withdraw
408 Sachdev v. Oregon Medical Board
from practice to a licensee when the Board has a reasonable
belief that there is a risk of immediate danger to the public
if the licensee continues to practice medicine with an unre-
stricted license.” Further, by violating the ISO on repeated
occasions, when other health care providers were available
to meet her patients’ needs, licensee prevented the board
from “effectively exercis[ing] general supervision over [her]
practice of medicine and carry[ing] out its mission to protect
the public[.]” That conduct, it reasoned, “strikes at the heart
of the professional relationship between a licensee and their
licensing board, and compels the Board to ask how it is pos-
sible to exercise general supervision over such a physician[.]”
Finally, it justified its sanction by stating that,
“[b]y willfully violating the ISO on repeated occasions,
Licensee was not honest with the Board in that she
breached the terms of an agreement/Order with the Board
that she had committed to comply with. This highlights a
disregard for the authority of her licensing board, and an
unwillingness on her part to conform her conduct to the
requirements of the law.”
The board’s sanction order did, in fact, explain why
it was imposing the sanction of license revocation. It further
explained that it was reducing the costs assessed against
licensee from approximately $119,000 to $30,000 in light of
the charges that we had reversed in Sachdev I. And while
it is true that the board did not specifically say why it chose
not to impose the lesser license suspension that licensee
suggested, its explanation of why it opted for a permanent
revocation was clear and reasonable. It expressed a funda-
mental concern that licensee’s deliberate violations of the
board’s ISO affirmatively demonstrated her unwillingness
to allow the board to monitor her medical practice.
The ISO required licensee to cease practicing med-
icine while the board investigated the complaints it had
received about her. The core purpose served by the ISO was
protecting the public from what the board concluded would
amount to unsafe medical practice should the investigation
ultimately support the complaints the board had received.
We understand the board to say that a licensee who inten-
tionally violates an ISO by directing patient care on mul-
tiple occasions when that licensee’s medical competency is
Cite as 312 Or App 392 (2021) 409
in question and being investigated poses a danger to public
safety simply by virtue of her refusal to cooperate with the
board in that process. Her violations of the ISO frustrated
the board’s ability to fulfill its responsibility to ensure public
safety in the context of its mandate to regulate the practice
of medicine in this state. Its explanation demonstrated that
its decision was neither ad hoc nor arbitrary. Robin, 291 Or
App at 399. Therefore, we cannot say that the board’s choice
of sanction was unreasonable.
D. License Revocation Was Not Excessive.
Finally, licensee argues that the board’s sanction of
permanent license revocation was excessive and “the prod-
uct of its ongoing antipathy toward the type of medicine
that [licensee] practices.”1 Although revocation of licensee’s
license was within the board’s range of permissible out-
comes, ORS 677.205(2)(d), we have held that, under a totality
of the circumstances review, a punishment disproportionate
to the offense can constitute an abuse of discretion, Read v.
Oregon Medical Board, 244 Or App 603, 617, 260 P3d 771
(2011), rev den, 351 Or 649 (2012).
The petitioner in Read was found to have engaged
in unprofessional conduct and to have willfully violated a
Medical Board order that required him to submit to a com-
petence evaluation and a psychiatric evaluation, while he
was seeking renewal of his active licensure status. Id. at
611. The board ordered the licensee’s license to be revoked,
imposed a $10,000 fine, and assessed the costs of his pro-
ceedings, which totaled $14,599.05. Id. at 616-17. The board
assessed the $10,000 civil penalty because the licensee had
been “uncooperative and belligerent” during the disciplinary
proceedings. Id. at 617.
On review, we noted that the licensee’s license was
inactive, and we concluded that his behavior “did not have
any direct relation to public safety or the care of patients.”
Id. Accordingly, we held that, although the board had the
1
To the extent that licensee is challenging the excessiveness of her sanction
based on its “bias” toward alternative medicine providers, we again reject that
argument because licensee has not presented evidence of such bias—much less a
persuasive argument that it should factor into the “excessiveness” analysis. See
Shicor, 291 Or App at 374-75.
410 Sachdev v. Oregon Medical Board
statutory authority to impose the maximum fine, doing so
was a disproportionate penalty for “unprofessional or dis-
honorable” conduct unrelated to the provision of medical
care. Id.
Unlike Read, licensee’s violations of the ISO in this
case had everything to do with patient care. Under the total-
ity of the circumstances, the board’s revocation of her license
was justified. As explained above, the agency acted within
its delegated authority, based its decision on substantial evi-
dence, and provided substantial reason for its decision. As it
explained, licensee violated the board’s trust by practicing
medicine after explicitly agreeing not to do so under circum-
stances where her medical practices were in question. We
find the board’s explanation quite reasonable—that, by con-
tinuing to provide medical care after agreeing to be bound
by the board’s order not to do so, licensee compromised the
board’s ability to oversee her practice and to perform its core
protective function. License revocation was not an “exces-
sive” sanction for violating the ISO.
Affirmed.