Finding No Due Process Violation In Administrative Hearing Process, The Court Of Appeal Underscores Differences Between An Arbitrator And A Hearing Officer
Plaintiff, Dr. Safari, sought a determination that the administrative peer reviewing hearing process involving Kaiser, resulting in findings that he should no longer treat patients, violated his due process rights and was not supported by substantial evidence. In affirming a judgment denying Dr. Safari’s petition for a writ of administrative mandate directed to Kaiser,the Court of Appeal distinguished between the role of an arbitrator and a hearing officer and how that distinction bears upon disclosure requirements. Safari v. Kaiser Foundation Health Plan, Inc., Case No. A134619 (1st Dist. Div. 2 Nov. 15, 2012) (Lambden, J.) (unpublished).
Dr. Safari argued Kaiser unilaterally appointed the hearing officer over his objection, and that this procedure violated his due process rights. Dr. Safari contended that the hearing officer “was actually biased against him because he had provided legal representation for Kaiser in the past and had other relationships with Kaiser.” Bus. & Prof. Code § 809.2, pertaining to a licentiate who “timely requests a hearing concerning a final proposed action for which a report is required to be filed”, requires a hearing officer be unbiased, and also derive no direct financial benefit from the outcome.
Dr. Safari argued there was a violation of due process because, “there are no disclosure requirements in an administrative hearing and thus he could not disqualify [the hearing officer] based on connection to Kaiser revealed during voir dire [of the hearing officer].” One can inquire into bias at the administrative hearing, but the statute does not include a disclosure standard/bias disqualification process. Dr. Safari pointed out that arbitration requires disclosure requirements. Moreover, an arbitrator’s failure to disclose the nature of his legal practice has been held to violate the California Arbitration Act. Benjamin, Weill & Mazer v. Kors, 195 Cal.App.4th 40 (2011) (Kors).
But here, the Court of Appeal explained: “Kors has minimal applicability to the present case.” Why? “[T]he requirements underlying arbitrations and administrative hearings are very different.”
First, there is a statutory difference: disclosure requirements for an arbitrator are governed by the California Arbitration Act. See Cal. Civ. Proc. Code § 1281.9. Second, the hearing officer’s rulings are subject to appellate review and reversal if actual bias of the hearing officer is demonstrated. Third, the hearing officer, unlike an arbitrator, is not a trier of fact. Bus. & Prof. Code section 809.2(b) (hearing officer presiding over panel “shall not act as a prosecuting officer or advocate, and shall not be entitled to vote”).
In addition to recognizing the legal distinctions between an arbitrator and a hearing officer, the Court of Appeal distinguished the facts from cases in which “[h]earing officers have had a significant entwinement with the hospital . . . “ Here, the facts did not evince a “long-standing and continuous” relationship between Kaiser and the hearing officer.
Judgment affirmed.
The square tower has the remains of a sign, Kaiser Foundation Hospital. Richmond Field Hospital, 1330 Cutting Boulevard, Richmond, Contra Costa County, CA. Library of Congress.
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