ST. ANTHONY HOSP. v. U.S. DEPT. OF H.H.S.

LUCERO, Circuit Judge.

In June 2000, the Departmental Appeals Board ("DAB") of the Department of Health and Human Services upheld the imposition of a civil monetary penalty against St. Anthony Hospital for violation of the Emergency Medical Treatment and Active Labor Act's ("EMTALA" or "Act") "reverse-dumping" provisions. ("Reverse-dumping" occurs when a hospital emergency room refuses to accept an appropriate transfer of a patient requiring its specialized capabilities. By contrast, "patient-dumping" is the emergency-room practice of refusing to accept or treat individuals who do not have medical insurance.) St. Anthony has filed a petition to this court requesting that the agency's determination be set aside on several bases.

We are called upon to determine, among numerous other issues: should the agency have sought an expert opinion from the appropriate peer review organization ("PRO") on issues relevant to St. Anthony's liability; and applying Oklahoma agency law, did St. Anthony refuse an appropriate patient transfer? Exercising jurisdiction under 42 U.S.C. § 1320a-7a(e), we deny St. Anthony's petition.

I

We begin by reviewing the relevant factual and procedural background. The following facts have been taken from the Administrative Law Judge's ("ALJ") October 5, 1999 decision and other portions of the administrative record.

A

R.M.,1 a sixty-five-year-old male, was involved in an automobile accident on a highway outside of Oklahoma City on April 8, 1995. At 4:50 p.m. that afternoon, he was taken to the emergency room at Shawnee Regional Hospital, a small hospital about thirty-five miles outside of Oklahoma City that lacked the ability to perform many complex medical procedures. Almost two hours later, at 6:44 p.m., Dr. Kent Thomas diagnosed R.M. with a neurological injury and arranged for his transfer to University Hospital in Oklahoma City.

At 6:50 p.m., as R.M. was boarded onto an ambulance, Dr. Carl Spengler, a third-year resident and physician at Shawnee, arrived at the emergency room as Dr. Thomas was ending his shift. In a brief conversation, Dr. Thomas told Dr. Spengler that R.M. had suffered a broken back and that his transfer to University Hospital had been arranged. En route to University Hospital, R.M.'s condition deteriorated,2 and the ambulance was forced to return to Shawnee. In hindsight, R.M. had actually suffered from "a life-threatening traumatic injury to his abdominal aorta, the principal vessel carrying blood to the lower part of his body, which shut off the flow of blood to his lower extremities." (Admin. R. at 7.)

(Id. at 8 (citations omitted).) Dr. Spengler determined that R.M. should be transferred because R.M. needed surgery that Shawnee could not provide.3

Given the circumstances, Dr. Spengler concluded that he could not then permit the ambulance to proceed to University Hospital. Dr. Spengler began treatment to stabilize R.M.'s condition and contacted Medi-Flight, an air-ambulance service, to transport R.M. to University Hospital, as Medi-Flight would be a faster mode of transportation, and, in Dr. Spengler's opinion, "the personnel on the helicopter are much more trained." (Admin. R.App. F at 352.) Aware that Dr. Thomas had painted for University Hospital a very different clinical picture,

(Admin. R. at 9 (citation omitted).) Upon being informed that University Hospital lacked capacity to give immediate care, Dr. Spengler had a Shawnee staff member conduct a search for another hospital. The search included a call to St. Anthony, "a large modern hospital in Oklahoma City with state of the art surgical facilities." (Id. at 4.)

At this point in the chronology, the facts become disputed. We proceed utilizing the ALJ's findings. A short time later that evening, Dr. Spengler spoke with St. Anthony emergency-room physician Dr. Billy Buffington and made a request for a transfer.4 After learning of R.M.'s condition, Dr. Buffington deferred to the judgment of St. Anthony's on-call thoracic and vascular surgeon, Dr. Scott Lucas.5 The ALJ found, "Dr. Lucas and Dr. Spengler spoke by telephone after Dr. Buffington spoke with Dr. Lucas. In that conversation and in a subsequent telephone conversation with Dr. Spengler, Dr. Lucas declined Dr. Spengler's request that Dr. Lucas provide care to R.M." (Id. at 15.) "Dr. Lucas told Dr. Spengler that he was not interested in taking R.M.'s case. He told Dr. Spengler that the case was University Hospital's problem." (Id. at 16 (citation omitted).) "Eventually, Dr. Spengler arranged the transfer of R.M. via Medi-Flight to Presbyterian Hospital in Oklahoma City." (Id. at 9.)

B

As required by 42 U.S.C. § 1395dd(d)(3), allegations that Shawnee Regional Hospital violated the federal patient-dumping statute, EMTALA, were referred to the appropriate PRO, the Oklahoma Foundation for Medical Quality, Inc. The PRO afforded Shawnee Regional an opportunity for participation. Shawnee filed a written response and submitted additional information that was "taken into consideration in determining the outcome of the issues" before the PRO. (Id. at 265.) Shawnee made the most of its opportunity to participate in the PRO review, as is illustrated in the following excerpt from the PRO's January 23, 1997 findings:

(Id. at 268.)

St. Anthony was given neither reasonable notice of the PRO review nor an opportunity to participate in the proceedings. In January 1997, the PRO found that R.M. was critically injured and suffered from an emergency medical condition. It further found that although R.M.'s condition was likely to deteriorate during transfer, this risk was outweighed by the benefits of the transfer.

In May 1998, the Office of the Inspector General ("OIG") notified St. Anthony that it sought to impose a $50,000 civil monetary penalty against it based "on a determination that St. Anthony Hospital failed to accept the appropriate transfer of [R.M.] on Saturday, April 8, 1995." (Admin. R. at 162.) St. Anthony was advised that if it wished to contest the OIG's determination, it had to file a written request for a hearing before an ALJ. Prior to the ALJ hearing, St. Anthony moved to dismiss the agency's action on the basis that it was premature. Citing 42 U.S.C. § 1395dd(d)(3) and 42 C.F.R. § 489.24(g), St. Anthony claimed entitlement to "review by an appropriate peer review organization regarding this matter." (Id. at 132.) The ALJ denied this motion, concluding that St. Anthony's argument was "unsupported by the Act and regulations" (id. at 470):

(Id. (citation omitted).) Evidently, the ALJ did not consider the applicability of 42 U.S.C. § 1320c-3(a)(16), an EMTALA-specific provision which affords hospitals subject to PRO review certain procedural rights such as the rights to receive reasonable notice and to submit additional information to the PRO.

C

Following a hearing, the ALJ found that St. Anthony possessed the specialized capabilities and facilities, as well as the capacity, to treat R.M. "It had on hand or available to it the qualified staff, including Dr. Lucas, necessary to provide vascular surgery to R.M. None of Respondent's operating rooms were in use on that evening." (Admin. R. at 22.) On these findings, the ALJ concluded that St. Anthony, in refusing an appropriate transfer, violated the reverse-dumping provisions of EMTALA, and imposed a civil monetary penalty of $25,000.

St. Anthony appealed the initial decision of the ALJ to the DAB and again took issue with the agency's failure to satisfy EMTALA's peer-review requirements. The DAB affirmed the imposition of a civil monetary penalty and increased the amount of the penalty to $35,000. It overruled the ALJ's conclusion that an individual's medical stability, as defined by EMTALA, was irrelevant for purposes of determining whether St. Anthony engaged in unlawful reverse-dumping. Although the DAB held that 42 U.S.C. § 1395dd(g) applied only when the individual to be transferred was in fact unstable, on the record before it, the DAB deemed the ALJ's error harmless because the "ALJ ... made underlying findings that R.M.'s emergency medical condition was not stabilized within the meaning of the Act." (Id. at 57.)

Failing to address the PRO issue, the DAB upheld the ALJ's finding regarding R.M.'s stability as supported by substantial evidence.6 In doing so, the DAB looked, in part, to the results of the Shawnee PRO, stating, "The Oklahoma Foundation for Medical Quality, Inc. (a peer review organization), which assessed the services that R.M. received at Shawnee, concluded that `[t]he patient's condition was likely to deteriorate during transfer, but it was imperative that the patient be sent to another facility for the appropriate surgical intervention.'" (Id. at 58 (quoting id. at 267).) The DAB also cited testimony by St. Anthony expert witness Dr. John Sacra regarding Dr. Spengler's decision to arrange Medi-Flight transfer:

(Id. App. F at 599-600.)

St. Anthony now brings this matter to us for review.

II

This court is not in the business of rubber-stamping agency action. Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The applicable code provision, 42 U.S.C. § 1320a-7a(e), states that "[t]he findings of the Secretary with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." This standard requires meaningful scrutiny of the agency's findings. Ultimately, we ask "whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion." Dickinson, 527 U.S. at 162, 119 S.Ct. 1816 (quotations omitted). "The substantial evidence test has been equated to review for arbitrariness or caprice." Sternberg v. Sec'y of Health & Human Servs., 299 F.3d 1201 at 1205 (10th Cir. 2002) (citing AllCare Home Health, Inc. v. Shalala, 278 F.3d 1087, 1089 (10th Cir. 2001)).

Our review is also governed by 5 U.S.C. § 706. Under § 706(2), we may set aside agency conclusions if they are

"In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." § 706; see All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443 (10th Cir.1992) ("The harmless error rule applies to judicial review of administrative proceedings."). In civil cases such as this, the party challenging the action below bears the burden of establishing that the error prejudiced that party. See Creekmore v. Crossno, 259 F.2d 697, 698 (10th Cir.1958).

We review an agency's interpretation of a statute in its charge by applying Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron holds:

Id. at 842-43, 104 S.Ct. 2778 (footnotes omitted). "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Id. at 843 n. 9. Chevron review is appropriate for adjudicatory rulemaking. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). The Supreme Court has "recognized a very good indicator of delegation meriting Chevron treatment is express congressional authorizations to engage in the process of rulemaking or adjudications that produces regulations or rulings for which deference is claimed." United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Such authorization is present here. See 42 U.S.C. § 1395dd(d)(1)(A); id. § 1320a-7a(c)-(m).

Review of an agency's interpretation of its own regulations is substantially deferential. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). In this context, a federal court's

Id. (quotations and citations omitted).

III

Congress enacted the EMTALA as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Pub.L. No. 99-272, § 9121, 100 Stat. 82, 164-67 (codified as amended at 42 U.S.C. § 1395dd), to address "the increasing number of reports that hospital emergency rooms are refusing to accept or treat patients with emergency conditions if the patient does not have medical insurance." H.R.Rep. No. 99-241, pt. 1, at 27 (1985); see Abercrombie v. Osteopathic Hosp. Founders Ass'n, 950 F.2d 676, 680 (10th Cir.1991). To that end, 42 U.S.C. § 1395dd(a) requires participating hospitals7 with emergency departments to provide patients with "an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition ... exists." If the hospital determines that a patient has an emergency medical condition,8

the hospital must provide either —

§ 1395dd(b)(1). An individual who has not been stabilized may be transferred to another medical facility only if the transfer is an "appropriate transfer" and either the patient requests the transfer in writing or a physician certifies that the medical benefits reasonably expected from the transfer outweigh the increased risks to the individual. § 1395dd(c).9

In 1989, Congress imposed a corresponding duty on participating hospitals to accept "appropriate" transfers. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 6211(f), 103 Stat. 2106, 2247-48 (codified at 42 U.S.C. § 1395dd(g)-(i)). This action came after a House of Representatives committee report found a disturbing number of

H.R. Rep. 100-531, at 17-18 (1988). Under 42 U.S.C. § 1395dd(g), EMTALA's "nondiscrimination" provision, a participating hospital is required to accept an "appropriate" transfer of an individual requiring its specialized capabilities or facilities, so long as the hospital has the capacity to treat the individual.

In addition to private causes of action permitted under the Act, § 1395dd(d)(2)(A)-(B), EMTALA provides for civil monetary penalties against hospitals and certain physicians who have negligently violated its strictures. Except in the cases of small hospitals, the agency may impose penalties of up to $50,000 for each violation. § 1395(d)(1)(A). Enforcement duties are vested in the Department of Health and Human Services's Health Care Financing Administration ("HCFA") and the OIG. See Solicitation of Comments on the OIG/HCFA Special Advisory Bulletin on the Patient Anti-Dumping Statute, 63 Fed.Reg. 67,486, 67,486 (Dec. 7, 1998). "In fiscal year 1999, which ended Sept. 30, the OIG obtained 61 settlements and judgments under the EMTALA. Penalties were worth a combined $1,725,500." Chad Bowman, Federal Penalties for Patient Dumping Rise, 68 U.S.L.W. 2275, 2275 (1999).

Although a hospital's violation of EMTALA's provisions theoretically can result in the termination of that hospital's provider agreement, see 42 U.S.C. § 1395cc(a)(1)(I), (b)(2), termination generally does not occur in practice so long as the hospital takes corrective action. See Office of Inspector Gen., Dep't of Health & Human Servs., The Emergency Medical Treatment and Labor Act: The Enforcement Process 8 (2001). Civil monetary penalties are rare. More than half of the cases reviewed by the OIG are closed without the assessment of any penalty. See id. Many are dropped following PRO review of the allegations brought against a hospital. See id. at 16.

Aside from St. Anthony's various procedural challenges — which include a claim that the agency failed to seek appropriate PRO review — much of St. Anthony's petition questions whether 42 U.S.C. § 1395dd(g)'s nondiscrimination duty was ever triggered. In essence, St. Anthony challenges the agency's findings that

Furthermore, St. Anthony claims that even if these preconditions were met, it never refused to accept R.M.'s transfer.

IV

Neither party challenges the DAB's ruling that 42 U.S.C. § 1395dd(g)'s nondiscrimination duty is triggered only when the individual to be transferred suffers from an emergency medical condition that has not been stabilized.10 This question, which we thus decline to address, is separate from the question whether the agency's factual determination on stability should be upheld. We consider the latter below.

A

EMTALA's beneficent purpose should not obscure its inherent limitations. Section 1395dd is an anti-dumping provision, not a federal medical malpractice law. See Bryan v. Rectors & Visitors, 95 F.3d 349, 351 (4th Cir.1996); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994). "Its core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat." Bryan, 95 F.3d at 351. Stabilizing treatment that hospitals must tender under the Act refers only to "such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility." 42 U.S.C. § 1395dd(e)(3)(A). EMTALA's definition of "stability" does not share the same meaning as the medical term "stable condition," which "indicates that a patient's disease process has not changed precipitously or significantly," Tabor's Cyclopedic Medical Dictionary 1861 (Clayton L. Thomas ed., 17th ed.1993); see also Mosby's Medical, Nursing, & Allied Health Dictionary 1474 (Kenneth N. Anderson et al. eds., 4th ed.1994) (defining "stable condition" as "a state of health in which the prognosis indicates little if any immediate change"). Under EMTALA, "[a] patient may be in a critical condition ... and still be `stabilized' under the terms of the Act." Brooker v. Desert Hosp. Corp., 947 F.2d 412, 415 (9th Cir.1991).

St. Anthony argues that in determining whether R.M. was stable, due regard should be given to the attending hospital's and physician's opinion on the matter at the time of transfer. In Cherukuri v. Shalala, the Sixth Circuit held that "a physician may transfer any emergency room patient to another hospital without any certifications and without the express consent of the receiving hospital if he reasonably believes that the transfer is not likely to cause a material deterioration of the patient's condition" — i.e., that the patient is stable. 175 F.3d 446, 450 (6th Cir.1999) (quotation omitted); see also Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (6th Cir.1990) (stating that "neither the normal meaning of stabilization, nor any of the attendant legislative history or apparatus, indicates that Congress intended to provide a guarantee of the result of emergency room treatment and discharge").

Building upon Cherukuri, St. Anthony claims that "the testimony from the witnesses that were at RM's side in Shawnee was direct and unequivocal with regard to the legal concept of a stabilized patient under the Act." (Petitioner's Br. at 36.) The DAB rejected this argument, however, stating, "Dr. Spengler did not believe that R.M. was stabilized to the point that he could simply send R.M. to another hospital before receiving that hospital's express consent to the transfer, without violating EMTALA's transfer provisions." (Admin. R. at 61-62.) As noted below, see infra at 30-32, EMTALA forbids the transfer of individuals with emergency medical conditions that have not been stabilized without the consent of the receiving hospital. We conclude that the agency's finding regarding R.M.'s instability is supported by substantial evidence.

The ALJ found that R.M. suffered from "a life-threatening traumatic injury to his abdominal aorta, the principal vessel carrying blood to the lower part of his body, which shut off the flow of blood to his lower extremities." (Id. at 7.) The ALJ also found that en route to University Hospital, R.M.'s condition deteriorated, forcing the ambulance to return to Shawnee. Dr. Spengler testified that although he could have permitted the ground ambulance to proceed to University Hospital, he did not do so because, in his opinion, R.M. would "have been dead before he got to the city limits." (Id. App. F at 351.)

St. Anthony's reference to Dr. Spengler's and Aaron Wade's testimony that R.M. was given stabilizing treatment prior to transfer is unavailing. (Wade was the emergency medical technician who transported R.M.) We add the DAB's conclusion:

(Admin. R. at 59.) In conducting our review, we will neither reweigh the evidence nor second-guess the agency's exercise of judgment. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). The DAB's assessment of Dr. Spengler's and Wade's testimony is supported by substantial evidence. As we have already discussed, stability, as used in the medical profession, does not carry the same meaning as stability under EMTALA. Although Dr. Spengler testified that he understood there was a difference (Admin. R. at 4789), the citations to the record provided to us by St. Anthony do not make clear that Dr. Spengler understood the precise statutory meaning of "stability." Shortly following Dr. Spengler's testimony that R.M. was "stabilized," he stated that R.M.'s "blood pressure was still going up and down" (id. at 4790) and that Dr. Spengler was quickly "running out of tricks" to manage R.M.'s condition (id.). Dr. Spengler struggled to "buy [R.M.] more time" while the search for a hospital continued. (Id.) Wade's testimony suffered from the same deficiency.

St. Anthony claims that the DAB erroneously conducted "a de novo review of the record to justify its new factual finding that the patient was not stable for transfer." (Petitioner's Br. at 27.) According to St. Anthony, the DAB "cannot do the factual analysis which the trier of fact failed to do." (Id.) Even if this contention were true, we decline to grant relief because any such error would have been invited by St. Anthony, which, in its brief before the DAB requested "de novo review and that [the] DAB enter findings consistent with evidence and law." (Admin. R. at 1820.) See United States v. Johnson, 183 F.3d 1175, 1178 n. 2 (10th Cir.1999) ("The invited error doctrine prevents a party from inducing action by a court and later seeking reversal on the ground that the requested action was error.").

B

St. Anthony draws our attention to a troubling procedural irregularity that bears a relation to the stability issue, the agency's failure to provide St. Anthony with PRO review as contemplated by EMTALA. Even though St. Anthony was not notified of the PRO review conducted by the Oklahoma Foundation for Medical Quality, the agency nevertheless contends that EMTALA's peer-review provisions were satisfied. We disagree.

In the first years after EMTALA's enactment, the OIG regularly consulted with the appropriate PRO in evaluating alleged § 1395dd violations. See H.R.Rep. No. 101-881, at 85 (1990), U.S.Code Cong. & Admin.News 1990, 2017, at 2097. This discretionary review was made mandatory in 1990, when, as a matter of law, it became "a part of the routine investigation conducted in these cases." Id. Today, EMTALA provides:

42 U.S.C. § 1395dd(d)(3). Under the EMTALA-specific PRO provision, the appropriate utilization and quality control PRO

Id. § 1320c-3(a)(16). The agency's peer-review obligations are further defined by regulation, under which PRO review of an alleged § 1395dd violation must be requested "in cases where a medical opinion is necessary to determine a physician's or hospital's liability." 42 C.F.R. § 489.24(g)(1). This regulation provides for notice of the review as well as an opportunity for discussion and presentation of additional relevant information. § 489.24(g)(2). In addition, the hospital "may request a meeting with the PRO." § 489.24(g)(2)(iv). The purpose of this meeting is "to afford the ... hospital a full and fair opportunity to present the views of the ... hospital regarding the case." Id. The hospital "has the right to have legal counsel present during that meeting. However, the PRO may control the scope, extent, and manner of any questioning or any other presentation by the attorney." § 489.24(g)(2)(iv)(A). Within sixty days of receiving the case, the PRO must submit a report with its findings to the agency, which must in turn provide copies to the affected hospital. § 489.24(g)(2)(v). "The report provides expert medical opinion regarding whether the individual involved had an emergency medical condition, whether the individual's emergency medical condition was stabilized, whether the individual was transferred appropriately, and whether there were any medical utilization or quality of care issues involved in the case." Id.

By its terms, 42 U.S.C. § 1395dd(d)(3) requires PRO review only to assess "whether the individual involved had an emergency medical condition which had not been stabilized."11 The corresponding regulation, 42 C.F.R. § 489.24(g)(1), adds little to this provision, stating that PRO review is requested "in cases where a medical opinion is necessary to determine a physician's or hospital's liability." In light of EMTALA's definition of "stability" — "stabilized" means "that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility," 42 U.S.C. § 1395dd(e)(3)(B) (emphasis added) — it is difficult to envision a situation in which a determination regarding an individual's stability would not necessitate a medical opinion. Because the parties agree that stability of an emergency medical condition is relevant for purposes of holding a hospital liable under § 1395dd(g) and (d)(1), we must conclude that St. Anthony was entitled to PRO review.

The ALJ's conclusion to the contrary was based on its view that R.M.'s stability, or lack thereof, was irrelevant for purposes of holding St. Anthony liable. In opposing St. Anthony's motion to dismiss and later on appeal to the DAB, the OIG argued that the only issue relevant to St. Anthony's liability was whether the hospital had the capacity to treat the individual.12 In rejecting the ALJ's view on this matter, the DAB held that § 1395dd(g)'s nondiscrimination duty is triggered only when the individual to be transferred has not been stabilized when the transfer request was made. Yet even though the DAB held that the record evidence supported a conclusion that R.M.'s emergency medical condition had not been stabilized prior to the transfer request, it failed to address any implication its conclusion would have for the ALJ's decision regarding peer review. Because the parties accept the DAB's decision regarding stabilization, § 1395dd(d)(3)'s mandatory peer-review provision is applicable.13

We disagree with the agency's suggestion that utilization of the Shawnee PRO satisfies its obligation under EMTALA. PRO review, as mandated by EMTALA, unambiguously requires notice of the review to the hospital, as well as "a reasonable opportunity for discussion with the physician and hospital involved, and an opportunity for the physician and hospital to submit additional information." Id. § 1320c-3(a)(16). HCFA and the OIG apparently have taken this very position. In a 2001 report, the OIG stated: "According to HCFA guidelines, the PRO must offer to discuss the case with the involved physician(s) and hospital(s) and provide them with an opportunity to submit additional information." Office of the Inspector Gen., supra, at 16 (quotation omitted). St. Anthony was not afforded an opportunity for meaningful participation in a PRO review.14

It is clear to us that the agency's dereliction of its PRO obligation has the potential of prejudicing participating hospitals under investigation. EMTALA itself assigns the result of a PRO review a significant level of credence. Under its plain terms, 42 U.S.C. § 1395dd(d)(3) requires such review before the agency may effect a civil monetary assessment. And according to the agency's own regulations, the PRO report "provides expert medical opinion" regarding whether the individual had an emergency medical condition, whether that condition was stabilized, whether the individual was transferred appropriately, and whether there were any medical utilization or quality of care issues involved in the case. 42 C.F.R. § 489.24(g)(2)(v) (emphasis added).15 As we have remarked, see supra at 7, the PRO's opinion carries great weight in the agency's exercise of its discretion to assess, or decline to assess, a civil monetary penalty. See Office of Inspector Gen., supra, at 16 ("In 1997, the OIG noted that in some regions the PROs disputed HCFA's decision about a case as much as 33 percent of the time.").

Potential for prejudice in cases such as this does not in and of itself justify setting aside the agency's action. It should be remembered that under 5 U.S.C. § 706, "due account shall be taken of the rule of prejudicial error." The duty of establishing prejudice rests upon St. Anthony, Creekmore, 259 F.2d at 698; it falls far short of meeting its burden, arguing merely that its request for PRO review was denied and that its statutory and due process rights were violated.16 St. Anthony makes no effort whatsoever to explain why the agency's failure to provide appropriate PRO review could not be cured by St. Anthony's presentation of evidence and expert testimony before the ALJ.

We do not overlook the evident; the DAB, in its decision that the ALJ's finding regarding stability was supported by substantial evidence considered the Shawnee PRO results. In noting that "the [OIG] offered this document into evidence only to demonstrate that a peer review organization had conducted a review of the R.M. matter," the DAB nevertheless concluded that its decision could rest on its substantive content because St. Anthony itself had "relied" on it. (Admin. R. at 58 n. 8.) In a claim closely related to its separate PRO claim, St. Anthony argues that the Shawnee PRO is hearsay evidence and that reliance upon it violates its due process rights. Although the Federal Rules of Evidence generally do not apply in the agency setting, see 42 C.F.R. § 1005.17(b), the Due Process Clause of the Fifth Amendment certainly does, Bennett v. Nat'l Transp. Safety Bd., 66 F.3d 1130, 1137 (10th Cir.1995). Under the Due Process Clause, hearsay evidence is not per se inadmissible. Id. at 1137. Nonetheless, the rule of prejudicial error resolves this claim as well. In sustaining the agency's finding that R.M. was unstable, we have excluded from our consideration the Shawnee PRO results. Relief on this ground is therefore unwarranted.

Although we are mindful that "[a] court may not uphold an agency action on grounds not relied on by the agency," Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 91 (10th Cir.1993); see SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), this rule does not preclude our disposition of this issue. Our decision sustaining the agency's finding on stability is based solely on grounds relied upon by the agency. In its decision, the DAB relied on a plethora of record evidence, and, based on our analysis above — excluding the PRO evidence — we are confident that the agency would have reached the same result had it considered the residual evidence alone.

V

Given that R.M. suffered from an unstabilized emergency medical condition and that Shawnee lacked the ability to perform the complex medical procedure needed, EMTALA imposed on Shawnee an obligation to effect an appropriate patient transfer to another medical facility. 42 U.S.C. § 1395dd(b)(1)(B). An appropriate transfer under the Act is one

§ 1395dd(c)(2). Section 1395dd's nondiscrimination provision mandates that "[a] participating hospital that has specialized capabilities or facilities ... shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual." § 1395dd(g).

St. Anthony suggests that it cannot be held liable for violating § 1395dd(g) unless each of § 1395dd(c)(2)'s requirements was satisfied. This contention is a bit numbing, for there can be no "appropriate transfer," as the term is defined in § 1395dd(c)(2), if the receiving facility has not "agreed to accept transfer of the individual and to provide appropriate medical treatment," § 1395dd(c)(2)(B)(ii). St. Anthony's suggestion would lead to an absurd result, as the requirement that the hospital must accept a transfer under § 1395dd(g) would be nullified by the hospital's refusal to accept.

Two narrower arguments are also advanced by St. Anthony: that Shawnee could not have arranged a transfer to St. Anthony that was "effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer," § 1395dd(c)(2)(D); and that the evidence does not support the agency's finding that it had the specialized capability and capacity to treat R.M.

A

Supporting the first of the foregoing propositions, St. Anthony argues there was no appropriate transfer because "Mediflight had no arrangement on April 8, 1995, which allowed Mediflight to fly RM" to St. Anthony. (Petitioner's Br. at 14.) Rejecting this claim, the DAB held:

(Admin. R. at 102-03.) Having reviewed the administrative record, we conclude that the agency's finding was supported by substantial evidence.

B

As for the second proposition — regarding the agency's finding on specialized capability and capacity — St. Anthony asserts a misplaced evidentiary burden as well as inadequacy of evidence. Title 42 U.S.C. § 1395dd does not define the term "capacity," but the agency has promulgated a regulatory definition. Under 42 C.F.R. § 489.24(b),

A closely related term in § 1395dd is "specialized capability." The ALJ concluded that "Congress intended th[is] term to encompass those capabilities and facilities which enable a hospital to offer specialized care that is not offered by hospitals that are less well-endowed," i.e., the transferring hospital. (Admin. R. at 21.)

St. Anthony does not take issue with either of these definitions. Instead, it claims first that the agency misplaced upon it the burden of disproving capacity, and second that there is insufficient evidence that it "had capacity/capability to treat RM" (Petitioner's Br. at 43). We consider these claims in reverse order.

We conclude that the agency's finding regarding capability and capacity is supported by substantial evidence. St. Anthony's characterization of the record evidence — that there is no evidence of its capability to treat R.M. — is strained. Substantial evidence supports the following facts: St. Anthony's nineteen surgical suites were unoccupied on April 8, 1995; St. Anthony had "the equipment on hand to do the necessary surgery"; physicians were on call for emergencies in a number of areas, including neurology, general surgery, and thoracic surgery; and "Dr. Lucas is a specialist who is adept at performing the delicate emergency vascular surgery that R.M. required." (Admin. R. at 21.)

Moreover, the record reflects that the surgery to be performed on R.M. could not be performed at Shawnee — a "small, country hospital" (Admin. R.App. F at 347) — without undue risk. As the ALJ found,

(Admin. R. at 21 (citations omitted).)17

In its exceptions to the ALJ's decision, St. Anthony took issue with the ALJ's finding that it had capacity to treat R.M., specifically stating:

(Id. at 1700-01.) Evidence of the number of operating rooms available, the availability of a thoracic surgeon, and the availability of an anesthesiologist on April 8, 1995, St. Anthony tells us, was insufficient to prove capacity. This evidence, St. Anthony contends, "does not make reference to any other suites, staff, or equipment that was available at St. Anthony on April 8, 1995." (Id. at 1701.)

Addressing this exception, the DAB concluded that St. Anthony parsed the evidence too finely and that "the ALJ was not required to make individualized findings that each piece of equipment necessary to perform the surgery that R.M. required was on hand during the evening at issue." (Id. at 71.) The DAB observed in a footnote that St. Anthony was free to rebut — "as an affirmative defense" — the agency's evidence with any "information about the availability of additional suites, staff and equipment at its facility on the night in question" that it might have. (Id. at 71 n. 14.)

We agree with St. Anthony that the agency bore the burden of proving this element of the § 1395dd(g) violation. See 42 C.F.R. § 1005.15. Contrary to St. Anthony's assertion, however, the challenged footnote does not place upon it the burden of disproving capacity. Rather, it asserts that substantial evidence supported the agency's determination — a conclusion with which we agree — and the fact that St. Anthony failed to come forward with any contrary evidence forecloses its claim.18

VI

Section 1395dd(g) cannot be violated if a transfer was neither requested nor refused. St. Anthony claims that it cannot be held liable because (1) there is "no factual support" for the proposition that Dr. Spengler made a request (Petitioner's Br. at 41) and (2) "neither SAH nor its agents refused a transfer request" (id. at 46).

"No one ever testified in this case that [Dr.] Spengler requested a transfer of RM to SAH," St. Anthony argues. (Id. at 41.) The ALJ acknowledged:

(Admin. R. at 11.) St. Anthony's argument on this issue is simply too ambitious. Rather than refuting the facts relied upon by the ALJ in its determination, St. Anthony claims that the agency failed to "present a scintilla of evidence" on this issue. (Petitioner's Br. at 42.) This contention is plainly without merit and does not warrant further discussion.

A

Before we proceed to our review of the agency's findings with respect to whether St. Anthony refused R.M.'s transfer, a brief summary of applicable agency law is in order. We assume, as the parties have, that Oklahoma state law should apply.

As with any corporation, a hospital can act only through its officers and agents. See Magnolia Petroleum Co. v. Davidson, 194 Okla. 115, 148 P.2d 468, 471 (1944). A principal-agent relationship may be grounded in a formal arrangement or may be inferred from "conduct which shows that one is willing for the other to act for it, subject to its control, and that the other consents so to act." Bank of Okla. v. Briscoe, 911 P.2d 311, 317 (Okla. Civ.App.1996); see Restatement (Second) of Agency § 1 (1958) ("Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."). "`It is not necessary that the parties intend to create the legal relationship or to subject themselves to the liabilities which the law imposes upon them as a result of it.'" Bank of Okla., 911 P.2d at 317 (quoting Farmers Nat'l Grain Corp. v. Young, 187 Okla. 298, 102 P.2d 180, 185 (1940)).

St. Anthony relies heavily on the agency's finding that St. Anthony "never formally vested Dr. Lucas with the authority to decide on [its] behalf whether to accept or reject a requested transfer" (Admin. R. at 27). Its preoccupation with this finding seems to us unjustified because, as we have just stated, the absence of a formal relationship does not preclude a finding that an agency relationship exists. The hospital also expends much of its energy seeking to negate the existence of apparent authority. It is well-settled that a principal may, in some cases, be liable for the acts of individuals acting with apparent authority:

Stephens v. Yamaha Motor Co., 627 P.2d 439, 441 (Okla.1981) (quotation omitted). "The existence of actual authority between principal and agent is not a prerequisite to establishing apparent authority." Id.

We need not decide whether the agency's finding that St. Anthony refused Shawnee Regional Hospital's request can be sustained applying apparent authority principles because there is substantial evidence to support the existence of actual authority in this case.19 St. Anthony concedes that Dr. Buffington had actual authority to accept or refuse R.M.'s transfer. (Petitioner's Br. at 47.) This concession appears apt considering that the ALJ found:

(Admin. R. at 14-15.) These findings have ample support in the administrative record, and therefore, we have no trouble concluding that Dr. Buffington effectively refused to accept R.M.'s transfer, permitting Dr. Lucas to communicate this fact to Shawnee Regional Hospital. Because Dr. Buffington had actual authority to refuse the transfer, we hold St. Anthony bound by the refusal.20

B

St. Anthony contends that Shawnee informed St. Anthony that "other arrangements had been made," and that this amounts to the withdrawal of the transfer request. Because the referenced communication occurred after St. Anthony refused to accept R.M.'s transfer, this contention offers St. Anthony no hope for relief. By that time the § 1395dd(g) offense was complete.

Once University Hospital accepted the original transfer request, R.M. became University's patient as a matter of law, St. Anthony argues. Thus, claims St. Anthony, it is absolved of any liability under § 1395dd. St. Anthony relies on an unpublished district court case which quotes 42 C.F.R. § 489.24 for the proposition that, for EMTALA purposes, an individual "comes to the emergency room department" if "`[t]he individual is on the hospital property (property includes ambulances owned and operated by the hospital, even if the ambulance is not on hospital grounds)....'" Madison v. Jefferson Parish Hosp. Serv. Dist. No. 1, Civ. A. No. 93-2938, 1995 WL 396316, at *2 (E.D.La. June 30, 1995) (quoting 42 C.F.R. § 489.24(b)). Under EMTALA, a hospital's screening duty kicks in only when the individual "comes to the emergency department," § 1395dd(a), and based on the regulatory definition of this phrase, there can be no doubt that Shawnee owed R.M. an appropriate medical screening. However, this language in no way supports St. Anthony's argument that it is absolved of § 1395dd(g) liability by virtue of R.M.'s having been boarded onto a University Hospital ambulance at one point on April 8, 1995. EMTALA's screening provisions are not at issue in this case, and, to put matters simply, this argument is not relevant.

C

Even if we accept the contested proposition that St. Anthony refused R.M.'s transfer, St. Anthony argues that due regard should be given to Dr. Lucas's purported exercise of medical judgment. The agency agrees with the general proposition that

(Admin. R. at 105.) "[R]eject[ion] on factual grounds [of] St. Anthony's contention that Dr. Lucas exercised sound medical judgment" (id.) by the ALJ was the predicate for the agency's decision regarding Dr. Lucas's medical judgment. The DAB:

(Id.) St. Anthony gives us no reason to question this credibility determination, and thus, we will not disturb it.

While we are on the subject of medical judgment, however, one point warrants further discussion. This court has stated that EMTALA's private cause of action, codified at 42 U.S.C. § 1395dd(d)(2)(A), is a "strict liability" provision. Abercrombie, 950 F.3d at 681. Placing Abercrombie in its proper context, we later held that strict liability attaches only if the hospital is shown to have known of the existence of a necessary fact — e.g., that the patient suffered from an emergency medical condition. Urban v. King, 43 F.3d 523, 525-26 (10th Cir.1994). Provisions sanctioning the agency's imposition of a civil monetary assessment state that a "participating hospital that negligently violates a requirement of this section is subject to a civil money penalty." 42 U.S.C. § 1395dd(d)(1)(A) (emphasis added).21 It stands to reason that a hospital may be subject to a civil monetary assessment only if it knew or should have known of the existence of an emergency medical condition, that the emergency medical condition was not stabilized, and that the hospital had the capacity to treat the individual. Cf. Burditt v. United States Dep't of Health & Human Servs., 934 F.2d 1362 (5th Cir.1991). Consistent with this, we reject St. Anthony's contention that EMTALA's negligence standard requires a determination that a hospital or physician breached a standard of care.

VII

St. Anthony challenges the agency's determination on a number of other grounds. The hospital claims that the "OIG failed to meet its burden of proof on damages" (Petitioner's Br. at 45); the agency erroneously denied its motion for summary judgment; it failed to provide reasonable notice of the claims against St. Anthony; it failed to follow its own rules in "allowing an untimely ... cross-appeal" by the OIG (id. at 26); and it denied St. Anthony a fair hearing. We now consider each of these claims.

A

Relying on the ALJ's post-hearing statement that the parties had not "talked about the amount of a civil money penalty, not one word" (Admin. R.App. F at 929), St. Anthony claims that the monetary penalty assessed against it has no evidentiary support and should be dismissed. Whether the amount of a penalty was explicitly discussed during the hearing is distinct from the question before us — whether the agency's imposition of a $35,000 penalty is supported by the evidence. St. Anthony does not discuss the evidence cited by the ALJ and the DAB, and we therefore do not reverse on this claim. See Perry v. Woodward, 199 F.3d 1126, 1141 n. 13 (10th Cir.1999).

B

Title 42 C.F.R. § 1005.4(b)(12) allows an agency to, "[u]pon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact." In this circuit, the summary-judgment procedure is not intended to be a device planted in early stages of litigation delay-set to explode on appeal. Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir.1992) (citing Holley v. Northrop Worldwide Aircraft Serv., 835 F.2d 1375, 1377-78 (11th Cir.1988)). Whalen holds that "even if summary judgment was erroneously denied, the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law ... and appellate review of those motions if they were denied." 974 F.2d at 1251. In a later case, we limited Whalen's application to determinations of "genuine issue of material fact." See Ruyle v. Cont'l Oil Co., 44 F.3d 837, 842 (10th Cir.1994). That is precisely what is at issue here. (Petitioner's Br. at 22.)

Applying this principle to the present case, we conclude that the proper recourse for a party after an erroneous denial of a motion for summary judgment by an agency is not to appeal that denial, but to "[s]ubmit written briefs and proposed findings of fact and conclusions of law" after the evidentiary hearing conducted by the ALJ, 42 C.F.R. § 1005.3, followed by an appeal of the ALJ's findings of fact and conclusions of law to the DAB, see id. § 1005.21. The DAB reviews findings of fact to determine whether the decision "is supported by substantial evidence on the whole record. The standard of review on a disputed issue of law is whether the initial decision is erroneous." Id. The decision of the DAB is then subject to review by this court. See 42 U.S.C. § 1320a-7a(e).

C

Due process requires that a party to an administrative proceeding be reasonably notified of the issues in controversy and not be misled. Rapp v. United States Dep't of Treasury, 52 F.3d 1510, 1520 (10th Cir.1995); see also 5 U.S.C. § 554. In Long v. Board of Governors, 117 F.3d 1145 (10th Cir.1997), this court stated:

Long, 117 F.3d at 1158.

On May 14, 1998, St. Anthony was notified by letter that the OIG sought to impose upon it a civil monetary penalty of $50,000 pursuant to 42 U.S.C. § 1395dd(d)(1). After summarizing the substantive provisions of § 1395dd, the OIG stated that it was authorized to impose a civil penalty of up to $50,000 for negligent violation of the section. The OIG cited 42 C.F.R. §§ 1003.102(c)(1)(i)(B), 1003.103(e)(1)(iii), and 1003.106(a)(4). Section 1003.106(a)(4) sets forth criteria to be applied in determining the appropriate civil monetary penalty, the first of which is the culpability of the participating hospital.22

In its decision of October 5, 1999, the ALJ concluded, "There is evidence in this case which relates to the criteria for deciding the amount of a civil money penalty that are stated at 42 C.F.R. § 1003.106(a)(4)." (Admin. R. at 33.) However, the ALJ disagreed "with the way in which the [OIG] seeks to assess culpability." (Id. at 35.)

(Admin. R. at 35 (citation omitted).) Relying in part on this rationale, the ALJ concluded that St. Anthony should be assessed a $25,000 penalty rather than the $50,000 penalty sought by the OIG. (Id. at 38.)

St. Anthony claims that the OIG "never gave notice of a charge of failure to maintain adequate EMTALA policies, a charge falling under a completely different statute, 42 U.S.C. § 1395cc(a)(1)(I)(i)." (Petitioner's Br. at 23.) Section 1395cc(a)(1)(I)(i) requires participating hospitals to file with the secretary an agreement "to adopt and enforce a policy to ensure compliance with the requirements of [42 U.S.C. § 1395dd] and to meet the requirements of such section." In light of this failure to charge, St. Anthony contends, the ALJ could not — consistent with St. Anthony's due process and statutory rights — "use[ ] inadequate policies as the basis for liability and to raise the fine against SAH." (Petitioner's Br. at 23-24.)

St. Anthony's argument is based on the faulty premise that the ALJ held it liable for a violation of § 1395cc(a)(1)(I)(i). To the contrary, the ALJ merely considered St. Anthony's "failure to insure that its policy was enforced" as a means of determining St. Anthony's culpability under 42 C.F.R. § 1003.106(a)(4)(i). The OIG's May 14, 1998 letter fully apprised St. Anthony that its culpability was in controversy, stating:

(Admin. R. at 162.)

Moreover, the ALJ's conclusion that St. Anthony's failure to enforce its § 1395dd policy was relevant to the culpability determination easily passes muster. "[T]he agency's interpretation [of its own regulation] must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ., 512 U.S. at 512, 114 S.Ct. 2381 (quotation omitted).

Allentown Mack Sales & Serv. Inc. v. NLRB, 522 U.S. 359, 377, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). The ALJ's conclusion was neither plainly erroneous nor inconsistent with 42 C.F.R. § 1003.106(a)(4) and will not be reversed.

D

St. Anthony claims that the DAB failed to follow its own rules in "allowing an untimely [OIG] cross-appeal which was used to increase the fine." (Petitioner's Br. at 26.) It cites United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), for the proposition that an agency is obliged to follow its own rules. This premise is no doubt true. It is not this court's place, however, to interpret the agency's procedural rules de novo. See Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993). The agency's interpretation of the relevant regulations passes the deferential standard we apply on review.

Pertinent to our consideration is 42 C.F.R. § 1005.21(a):

The notice of appeal must be accompanied by a brief "specifying exceptions to the initial decision and reasons supporting the exceptions." § 1005.21(c). Any party may file a brief opposing these exceptions "which may raise any relevant issue not addressed in the exceptions" within thirty days of the notice of appeal. Id. The DAB is empowered to "decline to review the case, or may affirm, increase, reduce, reverse or remand any penalty, assessment or exclusion determined by the ALJ." § 1005.21(g).

After the DAB granted it an extension, St. Anthony filed a timely notice of appeal and written brief specifying exceptions to the ALJ's October 5, 1999 decision. "Among its exceptions, St. Anthony Hospital contended that the civil money penalty of $25,000 assessed by the [ALJ] ... was not `reasonable in light of the evidence which relates to the factors used to decide the amount of civil money penalty and in light of the Act's penal purpose.'" (Admin. R. at 2134 (quoting Admin. R. at 1772).)

The DAB also granted the [OIG] an extension of time to file its response brief. On February 14, 2000, the OIG did so. Included in the OIG's submission were documents entitled "Inspector General's Notice of Cross-Appeal" and "Inspector General's Brief in Support of its Cross Appeal." (Id. at 2134.) "In her brief supporting the `Cross-Appeal,' the [OIG] argued that the ALJ erred in failing to assess a maximum civil money penalty of $50,000, and the [OIG] specifically responded to St. Anthony's Exception 13." (Id.)

St. Anthony complains that the inspector general's "cross-appeal" was untimely and should have been stricken. This untimeliness, contends St. Anthony, deprived the DAB of authority to increase the assessment from $25,000 to $35,000. Under the Federal Rules of Appellate Procedure, the court of appeals obtains jurisdiction over a case only upon the timely filing of a notice of appeal or cross-appeal. See Smith v. Barry, 502 U.S. 244, 245, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992); Shearson Lehman Bros., Inc. v. M & L Invs., 10 F.3d 1510, 1511 n. 1 (10th Cir.1993). Yet, the Federal Rules of Appellate Procedure are not at issue here. Rather, St. Anthony seeks review of the agency's interpretation of its own regulations. We reiterate that "the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ., 512 U.S. at 512, 114 S.Ct. 2381 (quotation omitted).

Relying on the text of 42 C.F.R. § 1005.21, the DAB concluded that the government's submission — though denominated a "cross-appeal" — was an acceptable one. As stated above, § 1005.21(c) permits any party to file a brief opposing another party's exceptions "which may raise any relevant issue not addressed in the exceptions." The DAB characterized the "cross-appeal" as follows:

(Admin. R. at 2134 (brackets omitted).) This conclusion is neither plainly erroneous nor inconsistent with the applicable regulations. We therefore sustain the DAB's decision regarding the OIG's February 14, 2000 submission.

E

One of the more serious allegations made by St. Anthony is that it was denied a fair hearing due to bias and prejudice on the part of the ALJ. As evidence of this unfairness, St. Anthony cites the ALJ's examination of witnesses, alleged predisposition regarding relevant facts, and procedural rulings.

"Due process entitles an individual in an administrative proceeding to a fair hearing before an impartial tribunal." Roach v. Nat'l Transp. Safety Bd., 804 F.2d 1147, 1160 (10th Cir.1986); see 5 U.S.C. § 556(b); Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). "However, a substantial showing of personal bias is required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair." Roberts v. Morton, 549 F.2d 158, 164 (10th Cir.1976). In Liteky v. United States, the Supreme Court observed that a presiding judge may, consistent with due process, be "exceedingly ill disposed towards [a party] who has been shown to be a thoroughly reprehensible person." 510 U.S. 540, 550-51, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Such a judge is not recusable for bias or prejudice "since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task." Id. at 55l, 114 S.Ct. 1147. On the other hand, the Liteky Court also observed that there may be circumstances in which unfair bias or prejudice may stem from knowledge gathered from the adjudication itself. "A favorable or unfavorable predisposition can also deserve to be characterized as `bias' or `prejudice' because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment." Id. With this understanding, we examine St. Anthony's claim.

1. Examination of Witnesses and Alleged Establishment of Evidence on Behalf of the OIG

St. Anthony cites various portions of the hearing transcript in which the ALJ examines witnesses, claiming that such examination proves that the ALJ was biased or prejudiced against it. This contention is without merit in light of 42 C.F.R. § 1005.4(b)(9), which grants the ALJ the power to examine witnesses. In addition, the questioning cited by St. Anthony does not evidence prejudice or bias. We quote the following exchange between the ALJ and Dr. Spengler, cited by St. Anthony as evidence of the ALJ's prosecutorial posture, as an example:

(Admin. R.App. F at 345-47.)

2. Predisposition Regarding Relevant Facts

St. Anthony claims that the "ALJ decided before hearing all of the evidence that Mediflight could fly to SAH, thus eliminating a major defense of SAH[.] A tribunal is not impartial if it is biased with respect to the factual issues to be decided at the hearing." (Petitioner's Br. at 28-29 (citation omitted).) This claim is without merit. The following portion of the transcript is cited by St. Anthony:

(Admin. R.App. F at 472-73.) Later, the ALJ stated:

(Id. at 483-84.) In our view, these portions of the transcript do not amount to the substantial showing of personal bias required in order for us to rule that the hearing was unfair. The comments do not evidence reliance on extrajudicial information nor do they "display clear inability to render fair judgment." Liteky, 510 U.S. at 551, 114 S.Ct. 1147.

3. Procedural Decisions

Finally, St. Anthony argues that the ALJ's rulings on a number of procedural issues demonstrate that the proceedings were tainted with prejudice and bias. We have carefully reviewed the administrative record and conclude that this argument is without merit. As the Liteky Court observed,

Id. at 555, 114 S.Ct. 1147. We are unable to conclude that these rulings display a clear inability by the ALJ to render fair judgment.

VIII

Having reviewed St. Anthony's petition, we DENY its request for modification or setting aside of the agency's determination. St. Anthony's motion for costs and attorney's fees is DENIED.