                   IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1730
                             Filed September 27, 2017


FIRAS RABI, M.D.,
     Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      Firas Rabi appeals a district court order affirming an administrative

decision by the Iowa Board of Medicine. AFFIRMED.




      Michael M. Sellers of Sellers, Galenbeck & Nelson, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Julie J. Bussanmas, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       Firas Rabi, M.D., appeals a district court order denying him relief in

relation to his application for judicial review of a disciplinary decision rendered by

the Iowa Board of Medicine (Board). Rabi contends (1) the Board exceeded its

statutory authority in disciplining him under its administrative sexual-harassment

rule, (2) the evidence does not support the Board’s findings that he violated the

sexual-harassment rule, and (3) the Board exceeded its statutory authority in

disciplining him for unprofessional or unethical conduct. We affirm.

I.     Background Facts and Proceedings

       In July 2006, Rabi began a three-year fellowship in the pediatric intensive

care unit of the University of Iowa Hospitals and Clinics. After he completed his

fellowship, he worked at the hospital as a general pediatric hospitalist, a contract

position, with intentions of returning to the pediatric intensive care unit. When

Rabi applied for a permanent position in the unit in 2010, a unit nurse made

allegations of inappropriate behavior against him and enlisted other staff

members to forward similar allegations based on their exchanges with him. The

hospital investigated the allegations and, on June 18, 2010, concluded “[t]he

evidence produced during the investigation [did] provide a reasonable basis to

believe the Policy on Sexual Harassment ha[d] been violated.” Rabi was placed

on administrative leave and advised his contract with the hospital would not be

renewed and would terminate effective September 30, 2010. Rabi reported the

situation to the Board in July 2010.

       Based on Rabi’s self-report, the Board initiated its own investigation into

the matter and, on March 6, 2014, filed a statement of charges against Rabi,
                                         3


charging him with (1) sexual harassment pursuant to Iowa Code section

148.6(2)(i) (2014) and Iowa Administrative Code rules 653-13.7(6) and -23.1(10);

(2) unethical or unprofessional conduct pursuant to Iowa Code sections

147.55(3) and 272C.10(3) and Iowa Administrative Code rule 653-23.1(4); and

(3) practice harmful or detrimental to the public pursuant to Iowa Code sections

147.55(3) and 272C.10(3) and Iowa Administrative Code rule 653-23.1(3).

       In February 2016, the Board concluded Rabi violated the rules prohibiting

sexual harassment and unprofessional conduct but not the rule prohibiting

practices harmful to the public.    The Board, among other things, suspended

Rabi’s license to practice medicine indefinitely and imposed a civil penalty of

$10,000. Rabi filed a petition for judicial review pursuant to Iowa Code section

17A.19 in the district court arguing, among other things, the Board exceeded its

authority in disciplining him. In a thorough ruling, the district court affirmed the

Board’s decision in September 2016. Rabi appealed.

II.    Standard of Review

       Iowa Code chapter 17A governs judicial review of the actions of the

Board. See Iowa Code § 148.7(9). “On appeal, our sole task is to correct legal

error, if any, affecting the [Board’s] decision.” Boswell v. Iowa Bd. of Veterinary

Med., 477 N.W.2d 366, 367 (Iowa 1991).

III.   Analysis

       Rabi first argues Iowa Code section 272C.1(4) limits “licensee discipline”

to situations in which the discipline would protect patients and, as such, Iowa

Code section 17A.23(3) limits the Board’s rulemaking authority to that which

would protect patients, not coworkers in an employment setting. According to
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Rabi, because Iowa Administrative Code rule 653-13.7(6), which prohibits a

physician from engaging in sexual harassment, protects individuals other than

patients, the rule “is outside of the [Board’s] authority.” He argues because the

Board concluded he did not engage in conduct harmful or detrimental to the

public, i.e. patients, the Board had no authority to discipline him under its rules

relating to sexual harassment. In sum, he argues “[t]he nurses and co-workers

who are considered to be [his] victims . . . do not fall within the [Board’s] sphere

of protection.”

       Rabi is correct that (1) “[a]n agency shall have only that authority or

discretion delegated to or conferred upon [it] by law and shall not expand or

enlarge its authority or discretion beyond the powers delegated to or conferred

upon [it]” and (2) “[u]nless otherwise specifically provided in statute, a grant of

rulemaking authority shall be construed narrowly.”       Iowa Code § 17A.23(3).

However, the Board’s disciplinary and rulemaking authority is not limited to that

which is authorized in section 272C.1(4), as Rabi implies. Rather, the Board’s

disciplinary authority and promulgation powers are provided for in a number of

statutes.

       Iowa Code section 272C.1(4) defines “licensee discipline” as “any

sanction a licensing board may impose upon its licensees for conduct which

threatens or denies citizens of this state a high standard of professional or

occupational care.” In addition, the Board has been authorized by the legislature

to “[d]efine by rule acts or omissions that are grounds for revocation or

suspension of a license under section . . . 148.6.” Id. § 272C.4(6). Section

148.6(1) allows a licensing board “to discipline a licensee for any of the grounds
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set forth in section 147.55, chapter 272C,” or section 148.6. Specifically, the

Board may impose discipline upon “the committing by a physician of an act

contrary to honesty . . . or good morals, whether the same is committed in the

course of the physician’s practice or otherwise.” Id. § 148.6(2)(g) (emphasis

added).   Also punishable by the Board is a licensee’s “[w]illful or repeated

violation of lawful rule or regulation adopted by the board.” Id. § 148.6(2)(i). The

Board also has statutory authority to discipline a physician for “engaging in

unethical conduct or practice harmful or detrimental to the public”—“[p]roof of

actual injury need not be established” for such discipline to be lawful.          Id.

§§ 147.55(3), 272C.10(3).

       The Board’s sexual harassment rule provides: “A physician shall not

engage in sexual harassment.        Sexual harassment is defined as verbal or

physical conduct of a sexual nature which interferes with another healthcare

worker’s performance or creates an intimidating, hostile or offensive work

environment.” Iowa Admin. Code r. 653-13.7(6) (emphasis added). As noted

above, Rabi argues this rule protects individuals other than patients and,

because the Board concluded he did not engage in conduct harmful or

detrimental to the public, the Board exceeded its statutory authority in disciplining

him under the rule.

       The rule’s plain language makes clear that its primary purpose is to

protect patients by safeguarding the integrity of the performance of healthcare

workers. The Board is not limited to disciplining licensees for conduct that is

actually detrimental to the public but is allowed to discipline licensees for conduct

potentially detrimental to the public.    See Iowa Code §§ 147.55(3) (stating
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“[p]roof of actual injury need not be established” for discipline relating to

“unethical conduct or practice harmful or detrimental to the public”); 272C.1(4)

(allowing discipline for “conduct which threatens . . . a high standard of

professional or occupational care” (emphasis added)); 272C.10(3) (repeating

“[p]roof of actual injury need not be established” for discipline relating to

“unethical conduct or practice harmful or detrimental to the public”).          We

conclude the Board was within its statutory authority to promulgate rule 653-

13.7(6) and to discipline Rabi pursuant to that rule.

       Rabi also challenges the findings of the Board and district court that he

violated the Board’s sexual harassment rule. This argument, however, is also

grounded in the Board’s finding that he did not engage in conduct harmful or

detrimental to the public.    As noted above, actual harm to the public is not

required, as “conduct which threatens . . . a high standard of professional or

occupational care” is sufficient. Id. § 272C.1(4) (emphasis added). Conduct

“which interferes with another healthcare worker’s performance,” Iowa Admin.

Code r. 653-13.7(6), could quite obviously threaten the level of care provided in

healthcare facilities. Rabi further argues his conduct did not actually interfere

with other healthcare workers’ performance. Although the details of his conduct

need not be expressed here, the record reveals Rabi engaged in a pattern of

sexually-predatory behavior in the workplace that caused discomfort and

problematic work relationships. It is obvious that such tensions in the workplace

can interfere with job performance, especially in settings where teamwork and

collegiality are necessities, such as a pediatric intensive care unit in a hospital.

We affirm the district court’s conclusion that the environment Rabi created in the
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hospital could have potentially impacted patient care and the Board was

therefore warranted in disciplining Rabi under its sexual-harassment rule.

       Rabi additionally argues the district court read Iowa Code section

148.6(2)(g)1 too broadly in affirming the Board’s decision that he engaged in

unethical or unprofessional conduct. He also argues discipline under section

148.6(2)(g) should be limited to licensee actions that “deny citizens of this state a

high standard of professional care.” Based on the foregoing analysis, the plain

language of section 148.6(2)(g) and administrative rule 563-23.1(4), and the

district court’s application of the same, we affirm the district court’s decision on

these final issues without further opinion.         Finally, we do not consider the

arguments Rabi raises for the first time in this appeal in his reply brief. See

Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (“[A]n issue cannot be asserted

for the first time in a reply brief.”).

       AFFIRMED.




1
  Rabi also argues on appeal that section 148.6(2)(g) is vague and, therefore,
unenforceable. Because Rabi did not specifically argue to the district court that this
statute is unenforceable, he failed to preserve error on the issue, and we do not consider
the argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).
