     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


JONATHAN WRIGHT, M.D.,
                                                                                as
                                                 No. 71516-0-1
                     Appellant,                                                 m
                                                 DIVISION ONE
                                                                                    i




WASHINGTON STATE DEPARTMENT                      UNPUBLISHED OPINION
OF HEALTH, MEDICAL QUALITY                                                          O

ASSURANCE COMMISSION,                                                               CO




                     Respondent.                 FILED: February 9, 2015



       Spearman, C.J. — Dr. Jonathan Wright was disciplined by the Washington

Medical Quality Assurance Commission ("MQAC") for aiding and abetting Roby

Mitchell in the unlicensed practice of medicine at Wright's clinic and for refusing

to provide records during the investigation. The superior court affirmed the

sanctions and Wright appeals. He claims that he was charged unfairly, that the

hearing panel misinterpreted the law, and that he was subject to unconstitutional

searches and sanctions. We find no error and affirm.

                                      FACTS


       Dr. Jonathan Wright is the medical director of the Tahoma Clinic in King

County, Washington, where he supervises physicians and naturopaths. In

September of 2007, Roby Mitchell came to work at the clinic, claiming to be a

Texas licensed physician. Mitchell applied for licensure in Washington and
No. 71516-0-1/2


treated patients on a regular basis from September 2007 to February 2009.

Mitchell resided in Washington during that time.

       On April 16, 2009, a Medical Quality Assurance Commission (MQAC)

investigator received an inquiry about Mitchell's medical license. A records

search confirmed that Mitchell did not have a license to practice in Washington.

On April 22, 2009, the panel authorized an investigation.

       On May 4, 2009, MQAC contacted Wright about the complaint, citing its

authority to open an investigation under RCW 18.130.050, and indicating the

investigation was only preliminary and that no charges had been filed. Wright

responded on May 14, 2009, asking for the investigation file and "the

Commission's determination of merit." Clerk's Papers (CP) at 660. In a letter

dated May 21, 2009, MQAC explained to Wright that it had initiated an

investigation pursuant to its "'delegation of authority to initiate investigations'"

under WAC 246-919-615 and that there was no determination of merit, because

the complaint did not involve issues of malpractice. CP at 662. Wright did not find

the explanation credible and concluded the investigation was not lawfully

authorized.

       In March 2010, MQAC requested a detailed explanation of how Wright

supervised Mitchell and a sample of patient records that showed Wright's

supervising input. Wright declined to provide records, claiming that he needed

releases from the patients in question. He also requested that MQAC withdraw

its request for patient records, claiming that without a determination of merit, "the

request for records is not based on a legal investigation." CP at 184.
No. 71516-0-1/3

       In July 2010, Wright submitted three sets of patient records that were

almost completely redacted except for his signature. MQAC sent Wright another

request for records on August 30, 2010, explaining again that "[o]n April 22,

2009, at a regularly scheduled case management team meeting, a panel of four

Commissioners determined that this case merited investigation." CP at 202. This

request notified Wright that he had fourteen days to comply or he could be

subject to charges for failing to cooperate with a lawful investigation. On

September 27, 2010, MQAC submitted its final request for records and required

that Wright respond within three days, otherwise the case would be referred for

action based on failure to cooperate with an investigation.

       On March 16, 2011, MQAC charged Wright with violating the Uniform

Disciplinary Act, chapter 18.130 RCW, by failing to cooperate with the

investigation. Wright ultimately provided five patients records in April 2012. A

review of these records resulted in an amended statement of charges filed

against Wright that added aiding and abetting the unlicensed practice of

medicine. At the hearing on March 19, 2013, an independent panel of MQAC

members (the Tribunal) concluded that each of the charges had been proven by

clear and convincing evidence. The Tribunal did not find Wright to be a credible

witness.

       The Tribunal noted that the unprofessional conduct in this case "is not

described in a sanctioning schedule in WAC 246-16." CP at 19. Exercising its

authority to determine and impose sanctions under WAC 246-16-800(2)(d), the

Tribunal considered the severity of the conduct, the lack of remorse, and the risk
No. 71516-0-1/4

of patient harm as aggravating factors. Wright was suspended for a period of 90

days and assessed a fine of $7500 and 30 months of probation following

suspension. As conditions of his probation, Wright was required to provide proof

of the office policy regarding employee verification and appear before MQAC on

an annual basis to report the results of any new employee verification efforts. He

was also required to submit a paper to MQAC describing the importance of

medical licensing and the elements of proper licensure.

       Wright petitioned for judicial review and a stay of the Tribunal's final order.

The superior court denied his motion for a stay. After reviewing the full

administrative record and hearing oral argument from counsel, the superior court

affirmed the Tribunal's order in full. Wright appeals.

                                   DISCUSSION

       We apply the standards of the Washington Administrative Procedures Act,

chapter 34.05 RCW, directly to the agency record in reviewing agency

adjudicative proceedings. Brown v. State. Dep't. of Health. Dental Disciplinary

Bd., 94 Wn. App. 7, 11, 972 P.2d 101 (1998). We may reverse an administrative

order if it is (1) based on an error of law; (2) is unsupported by substantial

evidence; (3) is arbitrary or capricious; (4) violates the constitution; (5) is beyond

statutory authority; or (6) when the agency employs improper procedure. Id.

Appellate review is confined to the administrative record. Clausing v. State, 90
Wn. App. 863, 870, 955 P.2d 394 (1998). The party challenging the validity of the

agency's action bears the burden ofshowing that the action was invalid. RCW
34.05.570(1)(a).
No. 71516-0-1/5


      We review an agency's factual findings to determine whether they are

supported by substantial evidence sufficient to persuade a fair-minded person of

the declared premise. Towle v. State Dep't of Fish & Wildlife, 94 Wn. App. 196,

204, 971 P.2d 591 (1999). We overturn an agency's factual findings only if they

are clearly erroneous. Port of Seattle v. Pollution Control Hearings Bd., 151

Wn.2d 568, 588, 90 P.3d 659 (2004). The undisputed facts of an agency's final

decision are verities on appeal. Yuchasz v. Dep't of Labor & Indus.,     Wn. App.

  , 335 P.3d 998, 1001 (2014). Although we give weight to the agency's

interpretation of the statutes it administers, we review the agency's legal

conclusions de novo. Towle, 94 Wn. App. at 204.

      Wright first assigns error to the Tribunal's finding that he was guilty of

aiding and abetting. Wright points out that MQAC learned during the course of its

investigation that Mitchell's Texas license to practice medicine had been

revoked. He contends the aiding and abetting charge is based on an allegation

that he facilitated Mitchell's practice of medicine in Washington when he knew

that Mitchell's Texas license had been revoked. He argues that MQAC failed to

prove that he knew of this fact. Wright misunderstands the allegation against him.

The aiding and abetting charge had nothing to do with the status of Mitchell's

Texas license. Rather, the claim was that Wright allowed Mitchell to practice

medicine in Washington without a license, as required by RCW 18.130.180(10).

Wright does not dispute that he allowed Mitchell to see patients at his clinic with

full knowledge that Mitchell was not licensed in Washington.
No. 71516-0-1/6

      Wright argues that the Tribunal erred by applying a novel interpretation of

RCW 18.71.030(6) when it failed to find that Mitchell qualified for the out-of-state

exemption. Wright's argument hinges on a remark made by the presiding officer

in its order on Wright's motions for summary judgment. The presiding officer's

order states "[njeither side offers evidence, sufficient for summary judgment

purposes, that describes how [Wright] relied on [the statutory exemption or what

the common practice in the profession is concerning having out-of-state

physicians practicing in a respondent's clinic or office. Thus, this material fact

remains in dispute." Certified Appeal Board Record (CABR) Vol. 5 at 2097.

Based on the Order, Wright contends that the Tribunal imposed an arbitrary

standard based on a "common practice" and engaged in "retroactive application

of rulemaking through ad hoc adjudications" when it imposed this standard. Brief

of Appellant at 28. The contention is meritless.

       The statutory exemption in RCW 18.71.030(6) applies in limited

circumstances. It permits "[t]he practice of medicine by any practitioner licensed

by another state or territory in which he or she resides, provided that such

practitioner shall not open an office or appoint a place of meeting patients or

receiving calls within this state." The Tribunal correctly found that Mitchell did not

qualify for the exemption because he was neither licensed in nor a resident of

another state. Even if Mitchell had been licensed in Texas and/or maintained a

residence there, he would not have qualified, because he met patients and
No. 71516-0-1/7


received calls at Wright's clinic for approximately 18 months.1 Wright presents

no evidence that the Tribunal entertained any consideration of a "common

practice" when adjudicating the claims against him.2

       Wright further claims that MQAC engaged in "ad hoc, retroactive

rulemaking by adjudication" when it interpreted the statute to prevent a physician

licensed in another state from working as an independent contractor in

Washington. Brief of App. at 25. According to Wright, MQAC also made a new

rule when it disqualified Mitchell for the statutory exemption based on the time

that he practiced at the clinic. Wright compares the requirements of RCW

18.71.030(6) which contain no time limitations, to the temporary permits under

WAC 246-12-050 that allow health care professionals to practice for a specific

number of days.

        Wright's argument fails because neither employment status nor amount of

time practicing in Washington are elements of the statutory exemption.

Furthermore, there is no indication in the record that the Tribunal considered

either these factors when making its decision, or that it engaged in any

rulemaking by adjudication based upon them.

        Wright claims that his due process rights were violated because according

to him, MQAC actually charged him of violating RCW 18.71.030(6), because


        1 Wright also argues that the exemption allows physicians licensed in another state to
practice in Washington as independent contractors under the supervision of a Washington
licensed physician. Wright provides no basis for this argument. The statute does not provide any
exemption for physicians practicing as independent contractors.
         2Wright also argues that because the hearing officer made reference to a "common
practice" in ruling on the MQAC's motion for summary judgment, MQAC was required to prove a
"'common practice,'" and failed to do so. Brief ofAppellant at 20. Wright cites no authority for this
argument and we decline to consider it.


                                                  7
No. 71516-0-1/8

Mitchell's Texas license was revoked. He claims he did not receive the

constitutionally required notice of this charge, and that it required a "different

means of committing the alleged violation" than the statement's charge of

generalized "aiding and abetting." Brief of Appellant at 22; CP at 82.

        RCW 18.130.090 states that "[i]f the disciplining authority determines,

upon investigation, that there is reason to believe a violation of RCW 18.130.180

has occurred, a statement of charge or charges shall be prepared and served

upon the license holder or applicant at the earliest practical time. The statement

of charge or charges shall be accompanied by a notice that the license holder or

applicant may request a hearing to contest the charge or charges." Wright was

informed of the nature of the complaint and of all of the charges brought against

him.3 He was charged with and found to have engaged in unprofessional conduct

by "aiding or abetting an unlicensed person to practice when a license is

required," not by violating the out-of-state licensing exemption. CP at 82.

        Wright claims that MQAC creates an unconstitutional condition on a

physician's license to practice by "imposing strict liability on physicians for non

compliance with MQAC's warrantless search and seizure procedure for medical

records." Brief of Appellant at 37. In other words, he is forced to either comply

with an investigation, or waive his rights, including the right to be free from

        3The second amended statement of charges quotes RCW 18.130.180(10) verbatim. The
Final Order explicitly states that "[t]he Department proved by clear and convincing evidence that
the Respondent violated RCW 18.130.180(10), which defines unprofessional conduct as: Aiding
or abetting an unlicensed person to practice when a license is required." CP at 18-19. The final
order also states that "[t]he status of Mr. Mitchell's Texas'(sic) license is irrelevant. Even if Mr.
Mitchell had had a valid Texas medical credential, he was prohibited from practicing medicine in
Washington in the manner in which the Respondent allowed him to practice at his Clinic." CP at
17.
No. 71516-0-1/9


search and seizure, the right to object to an unreasonable search and seizure,

his patient's privacy rights, or his right to his medical license.

       The "unconstitutional conditions" doctrine limits the government's ability to

exact waivers of rights as a condition of benefits, even when those benefits are

fully discretionary. U.S. v. Scott. 450 F.3d 863, 866 (9th Cir. 2005). A plaintiff

alleging a violation of the unconstitutional conditions doctrine, however, must first

establish that a constitutional right is being infringed upon. Sanchez v. County of

San Diego, 464 F.3d 916, 930-1 (9th Cir. 2006). Administrative regulations are

presumed to be constitutional. Nguyen v. Dep't of Health Med. Quality Assurance

Comm'n, 144 Wn.2d 516, 536, 29 P.3d 689 (2001). The party challenging a

statute or regulation's constitutionality bears the burden of proving its

unconstitutionality beyond a reasonable doubt. Madison v. State, 161 Wn.2d 85,

92, 163 P.3d 757 (2007). A professional license is a property interest for which

revocation requires due process. Hardee v. State Dep't of Social & Health Servs.,

172 Wn.2d 1, 8, 256 P.3d 339 (2011). Wright has not made any showing that he

was required to surrender any due process rights by complying with a lawful

investigation.

       Wright argues that MQAC's procedures "wholly ignore[] the rights and

duties conferred by RCW 70.02.060," and other "statutory mandates in favor of

procedures that protect patient privacy." Brief of Appellant at 42. Wright has

made no showing as to how MQAC's procedures violate a patient's right to

privacy. RCW 70.02.050(2)(a) states that "[a] health care provider shall disclose
No. 71516-0-1/10

health care information,...about a patient without the patient's authorization if the

disclosure is:


        (a) To federal, state, or local public health authorities,...; when
            needed to determine compliance with state or federal
            licensure,... or to investigate unprofessional conduct or
            ability to practice with reasonable skill and safety under
            chapter 18.130 RCW."

Under the statute, providers are required to furnish such health care information

to MQAC or other authorities for investigations related to licensing or

unprofessional conduct.

        Wright argues that his sanctions are arbitrary and capricious.4 He claims

that the record shows that he cooperated fully once he understood that MQAC

was conducting a lawful investigation.5 He also claims that the sanctions were

imposed as retaliation for his inquiries into MQAC and his conduct in prior

investigations.

        A reviewing court should defer to an agency's determination of sanctions,

because it is a matter of administrative competence. Brown, 94 Wn. App. at 16.


         4Wright also argues that his sanctions are disproportionate compared to the sanctions
imposed on other physicians for similar offenses. He included a discussion of other physicians'
discipline cases in his briefand submitted the orders from those cases. The orders were not
made part of the record on appeal and we decline to consider them.
         5 Wright places undue emphasis on his assumption that MQAC lied to him and led him to
believe that the investigation was unofficial by representing that there had been no determination
of merit. He argues that MQAC set him up for the failure to cooperate charges, because it
deliberately misled him into thinking that the investigation was informal, all the while knowing that
it had been officially authorized. Wright claims that he would have complied and did comply once
he understood that the investigation was official. Nothing in this record supports these
conclusions. The investigation's official status had been explained to Wright multiple times, in
letters dating as early as May, 2009. Wright persisted in denying the investigation's status and his
need to comply with the request for records, even after receiving warning notices and ultimately
facing charges in 2011. It was not until April of 2012 that the parties reached an agreement and
Wright produced five sets of patient records showing the level of care Mitchell had administered
and Wright's level of supervision.




                                                 10
No. 71516-0-1/11


After finding a license holder has engaged in unprofessional conduct, RCW

18.130.160 grants the disciplinary authority the right to impose sanctions after

considering the need to protect or compensate the public. RCW 18.130.160;

Lang v. State, Dep't of Health, Dental Quality Assurance Comm'n, 138 Wn. App.

235, 255, 156 P.3d 919 (2007). Arbitrary and capricious action is "'willful and

unreasoning action, without consideration and in disregard of facts and

circumstances.'" Brown, 94 Wn. App. at 16 (quoting Heinmiller v. Dep't of Health,

127 Wn.2d 595, 609, 903 P.2d 433 (1995). The "harshness" of an agency's

discipline or sanction is not the test for arbitrary and capricious action. Heinmiller

at 609.


          Wright claims that he cooperated "unequivocally for 15 months" and that

the Tribunal's declaration that he was non-cooperative "is not supported by the

evidence." Brief of Appellant at 43. Wright claims that MQAC's testimony and

discovery responses show that it was satisfied with his responses to particular

requests. This is insufficient to overcome the administrative finding of fact that he

"never complied with the Commission's request for the 30 medical records

despite multiple requests." CP at 14. There is also no evidence that any of

Wright's prior actions or MQAC's earlier investigations played any part in this

case.



          Wright argues that the sanction compelling him to write a paper about the

benefits of "professional licensing" violates his freedom of speech under the First

Amendment. According to Wright, the issue of professional licensing is a

"socioeconomic" and "religious issue." Brief of Appellant at 46.



                                          11
No. 71516-0-1/12


      A license to practice is a representation to the public concerning the

particular qualifications of the holder, one which the public may rely on in

selecting a physician. See, Brandwein v. Cal. Bd. of Osteopathic Examiners, 708

F.2d 1466, 1469 (9th Cir. 1983) (no First Amendment violation where state

refused to allow osteopath to hold himself out as an M.D. when he did not have

such a degree). It is properly within the State's police power to regulate and

license professions, especially when public health concerns are affected.

Ellestad v. Swavze, 15 Wn.2d 281, 289, 130 P.2d 349 (1942).

       Wright argues that the punishment imposed by the Tribunal is an ordered

coercion concerning a viewpoint, and thus infringes upon his First Amendment

rights of free speech and freedom of religion. But the Tribunal imposed no

restrictions on his right to engage in free speech, or to practice any religious

philosophy. Wright's apparent objection to the topic ofthe essay required by the
Tribunal does not make the penalty unconstitutional. Writing a paper about the

importance of licensing does not violate his First Amendment rights nor does it
force him to give up a valuable constitutional right in order to have his license

reinstated.

       Finally, Wright argues that the Tribunal erred by failing to apply the rule of
lenity. The rule of lenity applies in both criminal and quasi-criminal proceedings.
See In re Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952). The rule requires that

where two possible constructions of a statute are permissible, the statute must

be strictly construed in favor of the accused. State v. Reis, 180 Wn. App. 438,
453, 322 P.3d 1238 (2014) review granted,          Wn.2d      , 336 P.3d 1165



                                          12
No. 71516-0-1/13

(2014). Wright has not demonstrated any ambiguities in the licensing exemption

statute, or any other statute. RCW 18.71.030 is also an exempting statute; the

rule of lenity only applies to punitive statutes. State ex rel. Dawson v. Cascade

Dist. Ct. 62 Wn. App. 587, 592, 814 P.2d 1229 (1991).

       Wright has not shown that the Tribunal acted arbitrarily and capriciously

when it imposed sanctions. We affirm the trial court's order and the actions of the

Tribunal.




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WE CONCUR:




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