“An adverse report on the [Data Bank] that deems a surgeon to have ‘substandard or inadequate skill’ is intrinsically harmful to that surgeon’s practice, professional reputation, and livelihood.”
How later courts described this case
- “An adverse report on the [Data Bank] that deems a surgeon to have ‘substandard or inadequate skill’ is intrinsically harmful to that surgeon’s practice, professional reputation, and livelihood.”
- noting the trial court’s “analog[y] [comparing] an adverse report to a scarlet letter that could permanently harm a physician’s professional reputation” (quotation marks omitted)
- “[G]overnmental immunity only extends to those government officers who are acting consistently with the law . . . .”
- “The basic justification for this ultra vires exception to sovereign immunity is that ultra vires acts—or those acts without authority—should not be considered acts of the state at all.” (citing Cobb v. Harrington, 190 S.W.2d 709, 712 (Tex. 1945))
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 20-0117
══════════
Robert W. Van Boven M.D., D.D.S.,
Petitioner,
v.
Scott Freshour, Margaret McNeese, Chris Palazola, Amy
Swanholm, Timothy Webb, and Sherif Zaafran, M.D., in their
Official Capacities as Officers of the Texas Medical Board,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
Argued September 29, 2021
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which
Justice Lehrmann, Justice Devine, Justice Blacklock, Justice Busby,
Justice Bland, Justice Huddle, and Justice Young joined.
JUSTICE BOYD filed a dissenting opinion.
Federal and state law require the Texas Medical Board to report
a disciplinary action against a physician to the National Practitioner
Data Bank1 in order “to restrict the ability of incompetent physicians to
move from State to State without disclosure or discovery of the
physician’s previous damaging or incompetent performance.” 2 A report
is generally considered confidential but is available to healthcare
entities with which a physician is or may be affiliated. 3 Reports must be
made “according to applicable federal rules and statutes.” 4 The question
before us is whether the Board is required by federal law or permitted
by Texas law to merely revise an initial report of a temporary sanction—
rather than void it—when the Board later finds that the allegations
have not been proved. We answer no. Board officials making the revised
report are therefore acting ultra vires and are subject to suit despite the
Board’s sovereign immunity. We reverse the judgment of the court of
appeals 5 and remand the case to the trial court.
I
The Board regulates the practice of medicine in Texas6 and is
authorized to take disciplinary action against a physician found to have
1 See 42 U.S.C. §§ 11132, 11134, 11151(2) (requiring reporting of
sanctions against physicians by state licensing boards); 45 C.F.R. §§ 60.1, 60.8
(designating the National Practitioner Data Bank as the report recipient); TEX.
OCC. CODE § 164.060(b)(4) (“Not later than the 30th day after the date the
board takes disciplinary action against a physician, the board shall report that
action, in writing, to . . . the United States Secretary of Health and Human
Service or the secretary’s designee . . . .”).
2 42 U.S.C. § 11101(2).
3 See id. § 11137(b)(1); 45 C.F.R. § 60.18(a)(1)(i), (iv); id. § 60.20(a).
4 22 TEX. ADMIN. CODE § 187.5.
5 628 S.W.3d 513 (Tex. App.—Austin 2020).
6 See TEX. OCC. CODE § 152.001(a).
2
engaged in certain conduct prohibited by statute. 7 When Board staff
determine there is evidence of such conduct, an informal show
compliance proceeding and settlement conference—ISC—is scheduled
before at least two Board members. 8 A disciplinary panel of three Board
members may also be convened “to determine whether a person’s license
to practice medicine should be temporarily suspended or restricted.” 9
The panel may suspend or restrict a physician’s license without prior
notice or a hearing if notice of the action is provided immediately and a
hearing is scheduled as soon as possible after ten days. 10 Otherwise, the
physician and Board staff may appear before the panel, call witnesses,
and submit evidence. 11 “If the disciplinary panel determines from the
evidence presented to the panel that a person licensed to practice
medicine would, by the person’s continuation in practice, constitute a
continuing threat to the public welfare, the disciplinary panel shall
temporarily suspend or restrict the license of that person.” 12
A disciplinary panel was convened February 29, 2016, to consider
complaints by two patients, referred to as Patients A and B, against
Dr. Robert Wayne Van Boven, a board-certified neurologist. Van Boven,
7 See id. §§ 164.051-164.055 (listing grounds for disciplinary action,
prohibited practices, and unprofessional or dishonorable conduct).
8 22 TEX. ADMIN. CODE § 187.2(1); see id. § 187.11; TEX. OCC. CODE
§§ 164.003-164.0031.
9 TEX. OCC. CODE § 164.059(a); see 22 TEX. ADMIN. CODE § 187.56(a)-(b).
10 See TEX. OCC. CODE § 164.059(c); 22 TEX. ADMIN. CODE § 187.60.
11 See 22 TEX. ADMIN. CODE §§ 187.58-187.59.
12 TEX. OCC. CODE § 164.059(b).
3
then age 56, had received a D.D.S. degree and practiced dentistry for 10
years before earning his M.D. degree. He had then practiced neurology
for some 17 years, had never been the subject of a professional
disciplinary action, had never had a claim for malpractice against him,
had never been reported to a professional database, and had no arrest
record. A sole practitioner, Van Boven had associated with Lakeway
Regional Medical Center (Lakeway) since its opening in 2012.
Van Boven and the Board were not strangers. He had repeatedly
complained to the Board of poor practices at Lakeway resulting in
multiple findings of violations and impositions of fines. In turn,
Lakeway had made 15 complaints against Van Boven, but unlike Van
Boven’s complaints, all but one of Lakeway’s had been dismissed. A
factor in the dysfunctional relationship between Lakeway and Van
Boven may have been, according to one of his colleagues, that the
doctor’s zeal for patient care could be viewed as arrogant or insulting. In
any event, as another colleague observed, Van Boven became a thorn in
the side of Lakeway’s administration and was viewed as a troublemaker.
The two patients’ complaints before the disciplinary panel had
been lodged within a few months of each other and pertained to medical
examinations Van Boven had conducted a few weeks apart. The day
after the hearing, the panel temporarily restricted his license. The
panel’s Order of Temporary Restriction was to remain in effect until
“superseded by subsequent Order of the Board.” The Board filed an
Initial Report of the adverse action with the National Practitioner Data
Bank in accordance with the Data Bank’s Guidebook, which sets out
4
reporting procedures. 13
The statutory and regulatory provisions specifically applicable to
physician discipline do not provide for an administrative appeal from a
disciplinary panel order, and Van Boven did not attempt to seek judicial
review. 14 The Board is instead required to initiate a proceeding before
the State Office of Administrative Hearings—SOAH—“as soon as
practicable”. 15 The Board filed a formal complaint against Van Boven
six months after the disciplinary panel’s Temporary Order issued. The
record contains no explanation for the delay, other than the Board’s offer
of settlement in an ISC process a month after the Temporary Order,
which Van Boven quickly rejected.
The complaint contained the same allegations made by Patients
A and B in the disciplinary panel hearing along with those of a third
patient and the one complaint by Lakeway that the Board had not
rejected. The SOAH hearing began on May 22, 2017—well over a year
13The Guidebook in use at the time was the 2015 edition. See U.S. DEP’T
OF HEALTH & HUM. SERVS., HEALTH RES. & SERVS. ADMIN., & BUREAU OF
HEALTH WORKFORCE, NPDB GUIDEBOOK (2015) [hereinafter GUIDEBOOK],
https://www.npdb.hrsa.gov/resources/2015NPDBGuidebook.pdf.
14 We express no view on whether judicial review is available. See TEX.
OCC. CODE § 164.009 (“A person whose license to practice medicine has been
revoked or who is subject to other disciplinary action by the board may appeal
to a Travis County district court not later than the 30th day after the date the
board decision is final.” (emphasis added)); see also Tex. Med. Bd. v. Wiseman,
No. 03-13-00210-CV & No. 03-13-00291-CV, 2015 WL 410330, at *3 (Tex.
App.—Austin Jan. 30, 2015, pet. denied) (“We hold that . . . an appeal from any
disciplinary action, including a temporary order such as the one here, may not
be taken until the Board issues a final decision in the overall dispute following
an ISC and contested case at SOAH pursuant to the procedures set out in the
[Medical Practice] Act.”).
15 TEX. OCC. CODE § 164.059(e).
5
after the Temporary Order issued—and lasted five days. Board staff
offered evidence from the three patients along with family members of
the third patient. Van Boven offered the testimony of 14 witnesses,
including himself, four physicians with whom he had practiced, and two
medical assistants.
After reviewing and analyzing all the evidence in a 77-page
Proposal for Decision issued September 15, 2017, the Administrative
Law Judge (ALJ) found that the Board staff had failed to prove any of
their allegations. Specifically, the ALJ found that “[b]ecause there are
so many implausibilities and issues of doubt raised by the evidence,
[Board staff] failed to prove that the allegations of Patients A and B are
true.” Thus, the ALJ concluded, “[s]taff failed to prove, by a
preponderance of the evidence, that Dr. Van Boven is subject to sanction
under [the] Texas Occupations Code”. Staff strongly insisted to the
Board that the case had been wrongly decided. The Board had the right
to seek judicial review of the ALJ’s findings and conclusions 16 but chose
instead to adopt them. The Board’s Final Order issued December 8,
2017. The order recited the ALJ’s findings and conclusions as the
Board’s own, including the finding that Board staff had failed to prove
the allegations of Patients A and B and the conclusion that Board staff
had not proved that Van Boven was subject to sanction. The Final Order
stated that “[t]his matter is hereby dismissed” and that “[t]his Order
supersedes the Order of Temporary Restriction issued on February 29,
2016 and Respondent’s license to practice medicine in Texas is no longer
16 TEX. OCC. CODE § 164.0072(a).
6
restricted.” 17 The temporary restriction of Van Boven’s license, premised
on grounds that the Board ultimately could not prove, lasted more than
21 months.
The Board was required to report its Final Order to the Data
Bank. The Data Bank’s Guidebook provides for three types of reports
after an Initial Report of an adverse action taken against a physician,
which the Board had filed following its Temporary Order. A Correction
Report “corrects an error or omission in a previously submitted report
by replacing it.” 18 A Void Report is “the withdrawal of a[n] [Initial]
[R]eport in its entirety” and is filed when the adverse action is
“overturned on appeal”. 19 “A Revision-to-Action Report is a report of an
action that modifies an adverse action previously reported” to the Data
Bank. 20 It “does not replace a previously reported adverse action but
rather is treated as a separate action that pertains to the previous
action.” 21 Then “[b]oth reports become part of the disclosable record.” 22
Van Boven requested that the Board file a Void Report, insisting
that the initial temporary sanction be completely removed as a blot on
his record. The Board refused and instead filed a Revision-to-Action
17 The disciplinary-panel hearing occurred on February 29, 2016, but
the Order of Temporary Restriction was actually dated March 1, 2016.
18 GUIDEBOOK, supra note 13, at E-7.
19 Id. at E-8.
20 Id.
21 Id. at E-8 to E-9.
22 Id. at E-9.
7
Report that simply described the Final Order. 23 Van Boven complained
to the Data Bank, but it refused to take action, stating: “We are not
authorized to substitute our judgment for that of the Board concerning
the language contained in its Orders, its sanctioning authority or the
intention of the Board in regard to the Initial and Final Orders in your
case.” Bound by the Board’s explanation of its action, the Data Bank
opined that the Board was “legally required to file the Revision to Action
23 The Board’s initial Revision-to-Action Report stated:
On December 8, 2017, the Board entered a Final Order
regarding Robert Wayne Van Boven, M.D., dismissing the Board
staff’s complaint. The action was based on the findings of an
Administrative Law Judge at the State Office of Administrative
Hearings (SOAH). This order resolves a formal complaint filed
at SOAH. This order supersedes all previous orders.
At the Data Bank’s recommendation, the Board later filed a Correction
Report stating:
On December 8, 2017, the Texas Medical Board entered a Final
Order regarding Robert Wayne Van Boven, M.D. The Final
Order states: 1) in the “Findings of Fact” section that because
there are so many implausibilities and issues of doubt raised by
the evidence, the staff of the Board failed to prove that the
allegations raised by the patients were true, 2) in the
“Conclusions of Law” section that the “staff failed to prove, by a
preponderance of the evidence, that Dr. Van Boven is subject to
sanction under Texas Occupational Code §§ 164.051(a)(1), (a)(5),
or 164.053(a)(1), or 22 Texas Administrative Code
Sections 190.8(2)(E), (F), (P), or (S)” and 3) that the Board
adopted the Findings of Fact and Conclusions of Law as
proposed by the Administrative Law Judge at the State Office of
Administrative Hearings. The matter regarding Dr. Van Boven
was dismissed and the December 8, 2017 Final Order
superseded the February 29, 2017 Order of Temporary
Restriction and Dr. Van Boven’s license to practice medicine in
Texas is no longer restricted.
8
Report.”
Van Boven brought this ultra vires action against Board
officials 24 for injunctive, declaratory, and mandamus relief directing
them to file a Void Report with the Data Bank, which would remove the
Initial Report and the Revision-to-Action Report from disclosure. Van
Boven asserts that the reports have “forever tarnished” his reputation
and prevented him from obtaining employment. 25 The trial court denied
defendants’ plea to the jurisdiction, which asserted sovereign immunity.
The court of appeals reversed, holding that “the Board’s authority to
determine the legal effect of the Final Order as it relates to [Data Bank]
reporting requirements” is not clearly limited by statute, and therefore
Board officials did not act ultra vires in filing a Revision-to-Action
Report instead of a Void Report. 26 The court rendered judgment
Van Boven sued Board President Sheriff Zaafran, M.D.; former Board
24
members Margaret McNeese, M.D., and Timothy Webb; and Scott Freshour,
General Counsel. Van Boven also sued legal department employees Amy
Swanholm and Chris Palazola. The trial court dismissed the action against the
employees. Though all six defendants are respondents here, we consider only
Van Boven’s action against the Board officials.
25 See, e.g., Stephan v. Baylor Med. Ctr., 20 S.W.3d 880, 891 (Tex. App.—
Dallas 2000, no pet.) (noting the doctor’s testimony that “a negative [Data
Bank] report is viewed negatively by managed care plans and can make it
difficult for a physician to gain entry to plans”); Walker v. Mem’l Health Sys.,
231 F. Supp. 3d 210, 216 (E.D. Tex. 2017) (“An adverse report on the [Data
Bank] that deems a surgeon to have ‘substandard or inadequate skill’ is
intrinsically harmful to that surgeon’s practice, professional reputation, and
livelihood.”); Cole v. St. James Healthcare, 199 P.3d 810, 815 (Mont. 2008)
(noting the trial court’s “analog[y] [comparing] an adverse report to a scarlet
letter that could permanently harm a physician’s professional reputation”
(quotation marks omitted)).
26 628 S.W.3d at 524.
9
dismissing Van Boven’s action.
We granted Van Boven’s petition for review.
II
The Board’s sovereign immunity from suit as a state agency
extends to its officials who act consistently with the law 27 but not to
those who act ultra vires—that is, “without legal authority or [by]
fail[ing] to perform a purely ministerial act.” 28 An official acts without
legal authority when he “exceeds the bounds of his granted authority or
if his acts conflict with the law itself.” 29 An official fails to perform a
ministerial act when he fails to comply with a law that “prescribes and
defines the duties to be performed with such precision and certainty as
to leave nothing to the exercise of discretion or judgment.” 30 An official
who acts ultra vires is not acting for the state and not entitled to its
immunity. 31 But “it is not an ultra vires act for an official to make an
erroneous decision within the authority granted.” 32
27 See Hous. Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154,
164 (Tex. 2016) (“[G]overnmental immunity only extends to those government
officers who are acting consistently with the law . . . .”).
28 City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
29 Hous. Belt, 487 S.W.3d at 158.
30 Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015)
(quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).
31 See Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (“The basic
justification for this ultra vires exception to sovereign immunity is that ultra
vires acts—or those acts without authority—should not be considered acts of
the state at all.” (citing Cobb v. Harrington, 190 S.W.2d 709, 712 (Tex. 1945))).
32Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018)
(citing McRaven, 508 S.W.3d at 242).
10
A
Relying primarily on our decision in Hall v. McRaven, the court
of appeals concluded that the Board had discretion to misinterpret the
federal requirements because, “[e]ffectively, the Legislature has tasked
the Board with interpreting and applying federal law in carrying out its
statutory duty to report disciplinary actions to the [Data Bank].” 33 Here,
both sides take the position that the court of appeals erred in applying
McRaven to this case, and we agree.
When deciding there that the chancellor of the University of
Texas System did not act ultra vires by allegedly misconstruing federal
law governing the release of educational records, we specifically relied
on a rule adopted by the System’s board of regents that expressly
empowered the chancellor to “determine whether State or federal law
restrict[ed]” the release of information and to “determine whether a
Regent [could] review information . . . protected by” the federal law. 34
Because “the ultimate and unrestrained objective” of the chancellor’s
duty was “to interpret collateral law,” we concluded that “a
misinterpretation [was] not overstepping such authority; it [was] a
compliant action even if ultimately erroneous.” 35
Here, however, no state or federal law grants the Board
unrestrained authority to interpret federal Data Bank reporting
requirements. To the contrary, federal law requires state licensing
agencies to report information to the Data Bank “in such form and
33 628 S.W.3d at 523.
34 McRaven, 508 S.W.3d at 242 (emphases added).
35 Id.
11
manner as the [U.S.] Secretary [of Health and Human Services]
prescribes.” 36 Texas law, in turn, simply requires the Board to report all
disciplinary actions to the Secretary or his designee, 37 and the Board’s
own rules require it to report the information “according to applicable
federal rules and statutes.” 38 Thus, the Board’s failure to comply with
the federal reporting requirements would amount to an ultra vires
action.
B
The Board officials argue that there was no ultra vires action
because “state law, federal law, federal regulations, and [Data Bank]
guidance required [the Board] to submit a Revision-to-Action Report,
and not a Void Report.” They cite several federal statutes that require
reporting by licensing agencies like the Board in the form and manner
determined by the Secretary of Health and Human Services to be
appropriate, but the statutes themselves do not prescribe what kinds of
reports must be filed. The federal regulations the Board officials cite also
do not prescribe what reports are required in particular circumstances.
The Data Bank and its Guidebook do provide very detailed guidance on
how various types of adverse actions should be reported, prescribing the
four reports we have discussed. But applying that guidance depends on
the nature of the adverse action being reported, which must be
determined under Texas law, not federal law. The Data Bank made that
clear. It approved the Board’s explanation for filing a Revision-to-Action
36 42 U.S.C. § 11134(a).
37 TEX. OCC. CODE § 164.060(b)(4).
38 22 TEX. ADMIN. CODE § 187.5.
12
Report rather than a Void Report, but in so doing, the Data Bank
cautioned: “We are not authorized to substitute our judgment for that of
the Board concerning the language contained in its Orders, its
sanctioning authority or the intention of the Board in regard to the
Initial and Final Orders in [Van Boven’s] case.” The Data Bank made
clear that the nature of the adverse action against Van Boven was to be
determined by the Board alone under Texas law, and that determination
would dictate which report should be filed.
The Board’s findings and conclusions in its Final Order negated
the factual basis for the allegations against Van Boven, which were
identical to the allegations by Patients A and B that the disciplinary
panel used to support its Temporary Order. As we noted at the outset,
Texas law allows the Board to discipline a physician only for engaging
in specific conduct set out by statute. 39 The disciplinary panel, in a brief
hearing, found that Van Boven had engaged in conduct proscribed by
statute and that a temporary sanction should be imposed. But after a
full hearing, SOAH found that the same alleged misconduct on which
the temporary sanction was based had not been proved. That is, from
the evidence, one could not conclude that the misconduct likely occurred
or that Van Boven was subject to sanction. In its Final Order, the Board
itself endorsed SOAH’s conclusion.
The Board officials insist, correctly, that the Temporary Order
was not under review in the SOAH proceedings and that the ALJ had
39 See TEX. OCC. CODE §§ 164.051-164.055 (listing grounds for
disciplinary action, prohibited practices, and unprofessional or dishonorable
conduct).
13
no authority to overturn or vacate it. But the complaints of Patients A
and B were under review in the SOAH proceedings, they were the same
complaints made to the disciplinary panel, and they were the only basis
for the Temporary Order. According to the Board’s own final order, the
factual basis for the Temporary Order was baseless and Van Boven was
not subject to sanction. The Board officials argue that the ALJ did not
make any findings or conclusions regarding the Temporary Order, but
that is precisely what the ALJ did—and the ALJ did it at the instigation
of Board staff, who initiated the proceedings, made the allegations, and
requested a ruling. 40
The Board officials argue that by stating Van Boven’s license was
“no longer restricted”, the Final Order only modified the Temporary
Order, as opposed to overturning or vacating it. Under the Guidebook, a
Revision-to-Action Report is used to report modifications to an adverse
action. But the Final Order did not modify a word of the Temporary
Order. The Temporary Order stated that it “shall remain in effect until
it is superseded by a subsequent Order of the Board”, and that is what
happened. The Final Order did not modify the Temporary Order; the
40 As the dissent states, the issue before the disciplinary panel was
“whether Van Boven’s continued practice at that time (pending investigation
and resolution of the formal complaint) would constitute a ‘threat to public
welfare.’” Post at 13. But the patient-complaint evidence before the disciplinary
panel was the very same evidence SOAH found to be no evidence of misconduct.
The dissent states that “[t]he panel made a prediction, based on the evidence
before it, that the temporary restriction was necessary to protect the public
welfare.” Post at 16. But again, the panel could not predict from the lack of
evidence of misconduct by Van Boven that the public welfare needed to be
protected by limiting his practice. The Board itself later endorsed SOAH’s
conclusion that the allegations of Patients A and B had not been proved true
and that Van Boven was not subject to sanction.
14
Final Order determined that the Temporary Order should not have
issued.
“Crucially,” the Board officials tell us in their brief, “the Final
Order did not state that the temporary restriction had been imposed in
error”. The Final Order stated that “[b]ecause there are so many
implausibilities and issues of doubt raised by the evidence, [Board staff]
failed to prove that the allegations of Patients A and B are true.” Those
were the same allegations, and the only allegations, on which the
disciplinary panel based its decision to sanction Van Boven. As we noted
at the outset, a physician is subject to sanction only when he is found to
have engaged in certain conduct prohibited by statute. While the
disciplinary panel found that Van Boven engaged in misconduct, the
Board concluded it had not been proved. The temporary sanction was
thus imposed in error.
The Board officials point to the Guidebook’s instruction that a
Void Report should be made when an adverse action is overturned on
appeal. We have explained that the Final Order overturned the
Temporary Order by concluding that the basis for its issuance had not
been proved. We do not read the Guidebook’s simple reference to
“appeal” to mean that a Void Report is not appropriate unless a sanction
has been overturned on appeal in a judicial setting. A SOAH proceeding
affords a physician who has been temporarily sanctioned an avenue for
review, just as Van Boven had here. The result is the same as when an
appellate court overturns a lower court ruling. Here, the Board itself
reviewed the Temporary Order and SOAH proceedings and concluded
that Van Boven was not subject to sanction. Under the Guidebook, a
15
Revision-to-Action Report allows the Initial Report to continue to be
considered, but there is no reason to consider an Initial Report of a
baseless action.
Because the nature of the Final Order under Texas law was to
determine that no basis for the Temporary Order had been proved, the
Board was required to file a Void Report with the Data Bank. 41 Officials’
actions to the contrary were therefore ultra vires, and the officials are
not immune from Van Boven’s claims.
* * * * *
Accordingly, the judgment of the court of appeals is reversed and
the case is remanded to the trial court for further proceedings.
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: June 3, 2022
41 The dissent repeatedly asserts that cannot identify any law the Board
violated, but this ignores the Board’s own position that it has no authority to
misreport its actions to the Data Bank. The Board violated
Section 164.060(b)(4) of the Texas Occupations Code, which requires reporting
of disciplinary actions, by reporting its actions against Van Boven incorrectly.
See 22 TEX. ADMIN. CODE § 187.5 (requiring the Board to make reports
“according to applicable federal rules and statutes”).
16