                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1623
                              Filed August 27, 2014

DONNA DELOUIS, D.O.,
    Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Petitioner appeals the district court decision affirming the ruling of the Iowa

Board of Medicine refusing her request to rescind a settlement agreement.

AFFIRMED.



      Michael M. Sellers of Sellers & Haraldson, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and September M. Lau, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                        2



BOWER, J.

       Dr. Donna DeLouis appeals the district court decision affirming the ruling

of the Iowa Board of Medicine refusing her request to rescind a settlement

agreement. We conclude the district court was correct in determining it did not

have the ability to review the validity or the terms of the settlement agreement as

the petition for judicial review was untimely to challenge a contested case

proceeding.    Alternatively, Dr. DeLouis claims she timely filed a petition for

judicial review challenging “other agency action” of the board. However, the

actions of the board, which Dr. DeLouis characterizes as “other agency action,”

were actually part of the resolution in a contested case proceeding. We affirm

the decision of the district court.

I.     Background Facts & Proceedings

       Donna DeLouis, D.O., has been licensed to practice medicine in Iowa

since 1987. In 2012 the Iowa Board of Medicine alleged she violated the rules of

the board by prescribing phentermine, a controlled substance, to a family

member on multiple occasions between April 2009 and February 2012.

       The board presented Dr. DeLouis with a Statement of Charges and

Settlement Agreement (Settlement Agreement), which she signed, and which

was approved by the board on September 21, 2012. The Settlement Agreement

cited her for violating the rules of the board and warned “that violating the laws

and rules governing the practice of medicine in the future may result in further

disciplinary action, including suspension or revocation of her Iowa medical

license.” Dr. DeLouis was assessed a civil fine of $2500 and was also required
                                       3



to complete a professional ethics program within ninety days. The Settlement

Agreement provided, “By entering into this Order, [Dr. DeLouis] voluntarily

waives any rights to a contested case hearing on the allegations contained in the

Statement of Charges and waives any objections to the terms of this Order.” On

the board’s approval, the Settlement Agreement constituted a final order of the

board.

         Pursuant to federal rule, 45 C.F.R. § 60.8(a), “Each Board of Medical

Examiners must report to the NPDB [National Practitioner Data Bank] any action

based on reasons relating to a physician’s or dentist’s professional competence

or professional conduct,” (1) which revokes, suspends, or restricts a physician’s

license, (2) which censures, reprimands, or places on probation a physician, or

(3) under which a physician’s license is surrendered. Following this rule, the

Iowa Board of Medicine reported the Settlement Agreement to the NPDB. Based

on the report in the NPDB, Dr. DeLouis was dropped from coverage by her

medical malpractice insurance carrier and because she did not have insurance

coverage she was no longer able to practice medicine with her employer.

         On November 29, 2012, Dr. DeLouis filed a request with the board for

rescission of the Settlement Agreement and the board’s report to the NPDB. She

stated the Settlement Agreement contained no notice that a report would be

made to the NPDB and she was not guilty of unprofessional conduct.           She

pointed out she had not been represented by counsel and claimed she had not

understood the nature or the importance of the charges against her. Dr. DeLouis
                                        4



asked to have the Settlement Agreement rescinded to permit her to continue with

a contested case proceeding.

      The board denied Dr. DeLouis’s request to rescind the Settlement

Agreement on February 14, 2013.        The board determined Dr. DeLouis had

voluntarily entered into the Settlement Agreement. It pointed out that she could

have sought legal counsel, but chose not to. The board concluded Dr. DeLouis

“should have understood the gravity of the charges given the formal nature of the

combined Statement of Charges and Settlement Agreement.” It noted that it was

required by federal law to file a report with the NPDB. The board concluded the

Settlement Agreement was a valid and binding order.

      On March 15, 2013, Dr. DeLouis filed a petition for judicial review of the

board’s decision. Before the district court, the board filed a motion to dismiss

asserting Dr. DeLouis’s petition for judicial review was untimely because it was

not filed within thirty days after the Settlement Agreement was approved by the

board on September 21, 2012.       The board also responded to Dr. DeLouis’s

petition on the merits. Dr. DeLouis resisted the board’s motion to dismiss.

      The district court affirmed in part and denied in part the motion to dismiss.

The district court determined the Settlement Agreement was the resolution of a

contested case proceeding and because Dr. DeLouis did not seek review of the

Settlement Agreement in a timely manner, the court could not address the terms

of the document. Additionally, the court determined the board’s denial of Dr.

DeLouis’s request to rescind the report to the NPDB constituted “other agency

action,” which could be raised whenever a person was aggrieved or adversely
                                         5



affected by agency action. The court concluded the petition for judicial review

was limited to the issue of whether the board’s decision not to rescind its report

to the NPDB was an error of law or was unreasonable, capricious, or arbitrary.

The court denied Dr. DeLouis’s motion pursuant to Iowa Rule of Civil Procedure

1.904(2).

      In considering the merits of the case, the district court affirmed the

decision of the board to deny the request to rescind its report to the NPDB. The

court determined Dr. DeLouis had been censured and reprimanded by the terms

of the Settlement Agreement citing her for violating the rules of the board and

issuing a warning concerning further rule violations. The court determined that

under federal law the board was required to report the terms of the Settlement

Agreement to the NPDB. Dr. DeLouis appeals the decision of the district court.

II.   Untimeliness of Petition

      Dr. DeLouis first claims the district court erred in its ruling on the board’s

motion to dismiss the petition for judicial review on the ground of untimeliness.

She asserts she was not aware of the effects of the Settlement Agreement until

the time to file a petition for judicial review had passed. She claims the board

concealed the fact the Settlement Agreement would be reported to the NPDB,

which prevented her from filing a petition in a timely manner.

      We review the district court’s ruling on a motion to dismiss for the

correction of errors at law. Strickland v. Iowa Bd. of Med., 764 N.W.2d 559, 561

(Iowa Ct. App. 2009). We apply the standards found in Iowa Code chapter 17A

(2011) to determine whether our conclusions are the same as those made by the
                                          6



district court. Doe v. Iowa Bd. of Med. Exam’rs, 733 N.W.2d 705, 707 (Iowa

2007).

         A.    Whether Dr. DeLouis’s petition for judicial review was timely

depends upon the type of action being reviewed. See Fort Dodge Sec. Police,

Inc. v. Iowa Dep’t of Revenue, 414 N.W.2d 666, 669 (Iowa Ct. App. 1987). In a

contested case proceeding a petition for judicial review must be filed within thirty

days after the agency’s final decision. Iowa Code § 17A.19(3). On the other

hand, “In cases involving a petition for judicial review of agency action other than

the decision in a contested case, the petition may be filed at any time petitioner is

aggrieved or adversely affected by that action.” Id.

         The Settlement Agreement provided that it “constitutes the resolution of a

contested case proceeding.”      See also Iowa Admin. Code r. 653-25.3(4) (“A

combined statement of charges and settlement agreement shall constitute the

resolution of a contested case proceeding.”).      Furthermore, in considering an

informal settlement agreement with the Iowa Board of Medical Examiners, the

Iowa Supreme Court found, “Our review convinces us that this was a contested

case proceeding that resulted in a settlement agreement.” Paulson v. Bd. of

Med. Exam’rs, 592 N.W.2d 677, 680 (Iowa 1999). The court continued, “The

order that ensued from the board was a final decision in a contested case. As

such, Paulson was subject to the time limitations for appeals in Iowa Code

section 17A.19(3).” Id.

         We conclude the district court was correct in determining the Settlement

Agreement was the final agency action in a contested case proceeding, and
                                              7



therefore, in order to timely challenge the Settlement Agreement Dr. DeLouis

would have been required to file a petition for judicial review within thirty days of

the agency’s final decision on September 21, 2012. Her petition filed on March

15, 2013, was untimely to challenge the contested case proceeding. Without a

timely petition for judicial review the district court did not have jurisdiction to

review the terms of the Settlement Agreement.1 See Sharp v. Iowa Dep’t of Job

Serv., 492 N.W.2d 668, 669 (Iowa 1992) (“A timely petition for judicial review to

the district court is a jurisdictional prerequisite for review of final agency action.”).

       The exclusive means of seeking judicial review of agency action is through

the statutory provisions of section 17A.19. Sharp, 492 N.W.2d at 670. Section

17A.19 does not provide any method for extending the time to file a petition for

judicial review based on discovery or fraudulent concealment. Furthermore, the

Iowa Rules of Civil Procedure do not apply to extend the time limit for filing a

petition for judicial review. Id. We conclude the district court was correct in

determining it did not have the ability to review the validity or the terms of the

Settlement Agreement.

       B.      As noted above, the thirty-day time limitation does not apply to

“other agency action.”       See Iowa Code § 17A.19(3).            The board’s action of

informing the NPDB of the action taken against Dr. DeLouis constituted “other


1
    Courts have been inconsistent in their terminology concerning whether a court lacks
authority or subject matter jurisdiction when a party fails to follow the statutory requisites
for filing a petition for judicial review. See. e.g., City of Des Moines v. City Dev. Bd., 633
N.W.2d 305, 309 (Iowa 2001) (finding a court was without authority to hear a case
because the petition for judicial review was untimely); Anderson v. W. Hogman & Sons,
Inc., 524 N.W.2d 418, 421 n.2 (Iowa 1994) (distinguishing between subject matter
jurisdiction and authority, then stating “compliance with the statutory prerequisites for
judicial review is required for the district court to obtain jurisdiction.”).
                                         8



agency action.” See Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d 822, 826-

27 (Iowa 2007) (finding board’s dissemination of information about the denial of a

physician’s license was “other agency action”); see also Doe, 733 N.W.2d at 707

(finding board’s action informing a medical board in another state of a pending

investigation in Iowa constituted “other agency action”). A petition for judicial

review challenging “other agency action” may be filed at any time a petitioner is

aggrieved or adversely affected by the agency’s action. Iowa Code § 17A.19(3);

Smith, 729 N.W.2d at 826. Thus, the district court was correct in determining Dr.

DeLouis had timely filed a petition for judicial review challenging the action of the

board in informing the NPDB of the Settlement Agreement.            On appeal, Dr.

DeLouis has not challenged the district court’s determination that under 45

C.F.R. § 60.8 the board was required to report the terms of the Settlement

Agreement to the NPDB.

III.   “Other Agency Action”

       Dr. DeLouis claims the district court erred when it refused to consider

deficiencies in the Settlement Agreement as part of its review of “other agency

action.” Dr. DeLouis attempts to characterize several aspects of the Settlement

Agreement as constituting “other agency action.”          She claims the board’s

decision not to include information in the Settlement Agreement that a report

would be sent to the NPDB was “other agency action.” She also claims the

Settlement Agreement did not reflect her informed consent, and therefore, the

board’s decision not to rescind the Settlement Agreement constituted “other

agency action.” She asserts other physicians who were investigated for similar
                                         9



conduct were not subject to public discipline, nor reported to the NPDB, and the

board’s decision to subject her to public discipline and send a report to the NPDB

was “other agency action.”

       “Other agency action” is action by an administrative agency that is not a

contested case proceeding or rulemaking.            Smith, 729 N.W.2d at 826.

“Accordingly, agency action taken without a hearing required by a statute or

constitution or action taken after a required hearing that does not rise to the level

of an evidentiary hearing is other agency action.”       Id.   In a contested case

proceeding, however, “the legal rights, duties or privileges of a party are required

by Constitution or statute to be determined by an agency after an opportunity for

an evidentiary hearing.” Id. (citing Iowa Code § 17A.2(5)).

       We conclude the district court was correct in determining the board’s

actions, which Dr. DeLouis characterizes as “other agency action,” were actually

part of the resolution in a contested case proceeding. The decision concerning

which terms to include in the Settlement Agreement was part of the settlement of

the contested case proceeding.       By signing the Settlement Agreement, Dr.

DeLouis agreed to the terms of the Settlement Agreement.             See Gouge v.

McNamara, 586 N.W.2d 710, 714-15 (Iowa Ct. App. 1998) (“A party is charged

with notice of the terms and conditions of a contract if the party is able or has had

the opportunity to read the agreement and is bound by a document the party

signs even though the party has not expressly accepted all of the contract

provisions and is not aware of them.”). Furthermore, the Settlement Agreement

provided, “By entering into this Order, [Dr. DeLouis] voluntarily waives any rights
                                        10



to a contested case hearing on the allegations contained in the Statement of

Charges and waives any objections to the terms of this Order.” (Emphasis

added).

      We also note in a similar case a surgeon was issued a citation and

warning after an administrative hearing, and subsequently the board submitted

an adverse action report to the NPDB. See Leo v. Iowa Bd. of Med. Exam’rs,

586 N.W.2d 530, 531 (Iowa Ct. App. 1998). We found while the board’s citation

and warning did not advise the surgeon it would report the infraction, the citation

and warning were a public record. Id. at 532. We stated, “This language was

sufficient to advise Leo he had no expectation of privacy in the citation and the

Board held it as a public record.         Leo was sufficiently advised of the

consequence of the citation and warning of which he now complains.” Id. at 532-

33.

      The Settlement Agreement was a public record. See Iowa Admin. Code

rs. 653-25.3(5) (“A combined statement of charges and settlement agreement is

an open record.”); 653-25.17(5) (“A settlement agreement is an open record.”).

Furthermore the board’s rules provide, “The board shall report final decisions to

the appropriate organizations, including but not limited to the National

Practitioner Data Bank, the Federation of State Medical Boards and all media

and other organizations that have filed a request for public information.” Iowa

Admin. Code r. 653-25.32(17A).      As was the case in Leo, Dr. DeLouis was

sufficiently advised of the consequences of the Settlement Agreement.
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      We affirm the decision of the district court affirming the decision of the

Iowa Board of Medicine.

      AFFIRMED.
