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Birchansky v. Iowa Department of Public Health

Court of Appeal of Iowa

July 24, 2013

LEE BIRCHANSKY, M.D., Petitioner-Appellant,
v.
IOWA DEPARTMENT OF PUBLIC HEALTH, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

Dr. Birchansky appeals from the district court order dismissing his petition for judicial review.

Deborah M. Tharnish and Sara K. Franklin of Davis, Brown, Keohn, Shors & Roberts, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Heather Lynn Adams, Assistant Attorney General, for appellee.

William J. Miller of Dorsey & Whitney, L.L.P., Des Moines, for intervenor Mercy Medical Center.

Rebecca A. Brommel of Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, P.L.C., Des Moines, for intervenor St. Luke's Hospital.

Heard by Doyle, P.J., Bower, J., and Huitink, S.J. [*]

BOWER, J.

Following an unsuccessful administrative challenge to the Iowa Department of Public Health's notice of proposed action imposing a civil penalty and ordering he cease and desist performing cataract surgery in his office, Dr. Lee Birchansky filed a petition for judicial review. The district court dismissed the petition, finding Dr. Birchansky failed to serve the intervenors in the action within ten days of filing the petition, as required by law. The question presented for our review is solely a legal one: whether the district court properly dismissed the petition for failure to timely serve all required parties.

Having considered the arguments advanced by Dr. Birchansky, we find he was required to serve the intervenors in the action within ten days of the filing of his petition for judicial review. We further find Dr. Birchansky has failed to comply or substantially comply with the service requirements found in the Iowa Code. Because this failure deprives the district court of jurisdiction to entertain the judicial review action, we affirm the order dismissing Dr. Birchansky's petition.

I. Background Facts and Proceedings.

The facts are not in dispute.[1] Dr. Birchansky is an ophthalmologist who practices in Cedar Rapids. On three occasions, he has applied for a certificate of need from the State Health Facilities Council in order to perform cataract surgeries in his office, rather than in a hospital. The council has denied each of these applications. After receiving reports that Dr. Birchansky was performing cataract surgery in his office without a certificate of need, as well as an acknowledgement of the same by the doctor, the Iowa Department of Public Health (IDPH) issued a notice of proposed action against Dr. Birchansky on April 15, 2010. The notice of proposed action assessed a $20, 000 civil penalty against Dr. Birchansky and ordered him to cease and desist performing the surgeries in his office.

On May 5, 2010, Dr. Birchansky filed a notice of appeal of the proposed action, as well as a request for a contested case hearing. Mercy Medical Center (Mercy) and St. Luke's Hospital (St. Luke's) sought to intervene in the proceedings and were admitted on August 5, 2010. The administrative hearing occurred on September 24, 2010, and both Mercy and St. Luke's participated. On December 2, 2010, the administrative law judge entered a proposed decision finding Dr. Birchansky had violated the law by performing outpatient surgery in his office without a certificate of need. The decision found the civil penalty and the cease-and-desist orders were both reasonable sanctions. The IDPH affirmed and adopted the proposed decision on December 28, 2011. Dr. Birchansky's requests for rehearing and a stay were denied on February 24, 2012.

Dr. Birchansky filed a petition for judicial review on March 6, 2012. The petition named the IDHP as a party, but did not list either Mercy of St. Luke's despite their intervention in the contested case. Dr. Birchansky promptly served the IDHP with notice of the action. The IDHP provided Mercy and St. Luke's with copies of the petition for judicial review the ...


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