                                             201



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

RANDALL KINCHELOE,                                 No. 68642-9-1

              Appellant,



WASHINGTON STATE DEPARTMENT                        UNPUBLISHED OPINION
OF HEALTH, Health Care Assistant
Program,                                           FILED: May 20, 2013

              Respondent.


       Verellen, J. — Randall Kincheloe, a former licensed practical nurse (LPN),

applied for a special health care assistant credential, but did not disclose in his

application that he had previously had his ability to practice restricted by requirements

that he work only under direct supervision, not function as a supervisor, head nurse, or

charge nurse, and not hold a job where he would "float" between stations. As a result,

the Secretary of the Department of Health (Department) denied his application for

misrepresentation and failure to disclose a material fact. Kincheloe unsuccessfully

appealed to the Department's adjudicative service unit. A health law judge conducted

an evidentiary hearing before entering a final order denying his application. Kincheloe

appealed from the agency decision pursuant to the Administrative Procedures Act

(APA), chapter 34.05 RCW. The superior court affirmed, finding that the limitations
No. 68642-9-1/2


imposed by the stipulation included restrictions he failed to disclose in his application.
We affirm.


                                           FACTS

       In 2001, while employed as an LPN, Kincheloe entered a "Stipulation to Informal
Disposition" with the Nursing Care Quality Assurance Commission (Commission) based
on allegations that he had engaged in unprofessional conduct in the course of his

employment.1 In the stipulation, Kincheloe agreed that for one year he would practice
as a nurse subject to conditions requiring him to: (1) inform the Commission of his future

job descriptions; (2) provide the Commission with his job performance evaluations;

(3) provide a copy ofthe stipulation/order to future employers; (4) take employment only
with direct supervision by a registered nurse (RN) and not function as a supervisor,

head nurse, or charge nurse; and (5) not work "floating from unit to unit."2

       In 2010, Kincheloe applied for a health care assistant (HCA) credential. The

application asked whether the applicant had ever been found to have violated laws or

rules regulating the health care profession, and whether the applicant's credential or

privilege to practice had ever been restricted: "Have you ever had any license,


       1Administrative Record at 36-42 (ex. P2). Specifically, the allegations were that
Kincheloe failed to administer and document administration of medication, and failed to
properly document two instances where patients fell. The administrative record also
documents Kincheloe's voluntary participation in the Washington Health Professional
Services Program in 2009 and 2010 for allegedly misrepresenting himself as an RN,
failing to administer medications, and false documentation of medication administration.
He admitted consuming oxycodone he was supposed to administer to a patient in
January 2009. He also admitted failing to administer medications to 10 patients.
       2The stipulation provided thatthe allegations would constitute a violation if
proven, and that Kincheloe "does not admit any of the allegations." Administrative
Record at 37. The stipulation also provided that it is not "formal disciplinary action," and
"shall not be construed as a finding of unprofessional conduct or inability to practice."
Id.
No. 68642-9-1/3


certificate, registration, or other privilege to practice a health care profession denied,

revoked, suspended, or restricted by a state, federal or foreign authority?"3 He
answered, "No." The Secretary of the Department denied his application, determining

that he concealed or misrepresented a material fact in seeking to obtain the HCA

credential.4

       Kincheloe appealed to the Department of Health. At the April 2011 hearing

before a Department health lawjudge, Kincheloe argued that the conditions he agreed

to in the stipulation were not restrictions on his LPN license, practice, or privilege to

practice. The health law judge disagreed, determining that the 2001 stipulation

restricted Kincheloe's LPN license or privilege to practice, and that the denial of his

HCA application was proper because of his misrepresentation or concealment.

       Kincheloe appealed the Department's final order to King County Superior Court,

pursuant to the APA. The superior court affirmed the final order.

       Kincheloe appeals.

                                         ANALYSIS


       Kincheloe contends that the Department erred by determining that his license or

privilege to practice was previously restricted, and that he misrepresented or concealed

that fact in the HCA application. Kincheloe's arguments are not persuasive.

      An appellate court reviews final agency orders pursuant to the APA, based on

the agency record.5 The reviewing court will grant relief if the agency's order involves

       3 Administrative Record at 30.
      4Such conduct is defined as "unprofessional conduct." RCW 18.130.180. The
program is statutorily authorized to deny an application on the basis of such conduct.
RCW 18.130.160(9).
       5Local 2916. lAFFv.PERC. 128 Wn.2d 375, 380, 907 P.2d 1204 (1995).
No. 68642-9-1/4


an error in interpreting or applying the law, is not supported by substantial evidence, or

is arbitrary or capricious.6 "The burden of demonstrating the invalidity of agency action
is on the party asserting invalidity."7 In reviewing an agency's findings of fact, the
reviewing court determines whether the findings are supported by substantial evidence.8

This standard is highly deferential to the agency fact finder,9 and requires the reviewing
court to view the evidence in the light most favorable to the prevailing party in the

highest administrative fact-finding forum below.10

       Kincheloe argues that there was insufficient evidence that he "intended" to

conceal a material fact. We disagree. Viewing the evidence in the light most favorable

to the Department, we conclude that the 2001 stipulation and Kincheloe's failure to

disclose the stipulation in his application are "substantial evidence" that he concealed a

material fact.


       Moreover, at the de novo hearing before the Department, it was Kincheloe's

burden to prove that he was qualified for the HCA credential. RCW 18.130.055(4)

provides:




       6RCW 34.05.570(3). Although the statute provides for several other bases for
relief, Kincheloe only argues that the three listed above apply.
       7RCW 34.05.570(1 )(a).
       8See RCW 34.05.570(3)(e); Terry v. Empl. Sec. Dep't. 82 Wn. App. 745, 748-49,
919 P.2d 111 (1996). This court reviews the findings of the Department, not the findings
of the superior court. In re Farina. 94 Wn. App. 441, 450, 972 P.2d 531 (1999). Under
this standard, an agency finding of fact will be upheld if supported by "evidence that is
substantial when viewed in light of the whole record before the court."
RCW 34.05.570(3)(e).
       9ARCO Prods. Co. v. Washington Utils. &Transp. Comm'n. 125 Wn.2d 805,
812, 888 P.2d 728 (1995).
       10 City of Univ. Place v. McGuire. 144Wn.2d 640, 652, 30 P.3d 453 (2001).
No. 68642-9-1/5


       A license applicant who is aggrieved by the decision to deny the license or
       grant the license with conditions has the right to an adjudicative
       proceeding .... The license applicant has the burden to establish, by a
       preponderance of evidence, that the license applicant is qualified in
       accordance with the provisions of this chapter.

Kincheloe failed to meet this burden.

       Kincheloe asserts that Heinmiller v. Department of Health11 and Johnson v.

Department of Health12 demonstrate that the Department was required to prove that he
had the "intent" to conceal a material fact in his application. They do not.

       In Heinmiller, our Supreme Court explained that the goal of the Uniform

Disciplinary Act, chapter 18.130 RCW, is to protect the public from the hazards of health

care professional misconduct, and that such misconduct "is not less harmful to the

public simply because the professional who engages in it fails to recognize it as such."13
Accordingly, the Heinmiller court rejected the argument that proof of "misrepresentation"

and "concealment" required evidence of "actual knowledge" of wrongdoing.14 Instead, it
held that "constructive knowledge" was sufficient to support discipline for

misrepresentation or concealment.15 There is no dispute that Kincheloe knew ofthe
existence of the stipulation and failed to disclose it in his HCA application. This is

sufficient under the analysis in Heinmiller.

       In Johnson, this court held there was sufficient evidence of misrepresentation of

a material fact where a counselor incorrectly told a court that an individual was in



       11 127 Wn.2d 595, 903 P.2d 433 (1995).
       12 133 Wn. App. 403, 136 P.3d 760 (2006).
       13127 Wn.2d at 602-03.
       14 jd at 602.
       15 ]d at 602, 604.
No. 68642-9-1/6



compliance with court-ordered chemical dependency treatment, even in the absence of

proof that she knew the information was false.16 Johnson does not support Kincheloe's
argument that the Department was required to prove he actually knew his answer in the

application was a misrepresentation or a concealment of the fact of the earlier restriction

imposed in the 2001 stipulation.

       Kincheloe next argues that the Department erred as a matter of law by failing to

differentiate between different categories of sanctions the legislature authorized the

Commission to impose by enacting RCW 18.130.160. We disagree.

       In reviewing an agency decision for an error of law, the reviewing court applies a

de novo standard of review.17 Reviewing courts give substantial weight to an agency's

interpretation of the laws it administers and to the agency's interpretations of its own

rules.18

       The Uniform Disciplinary Act governs the licensing and discipline of health care

professionals.19 RCW 18.130.050(15) gives the Department the authority to grant or
deny license applications.20 Denial ofa license is an authorized sanction for


       16 Johnson. 133 Wn. App. at 412-13.
       17 Discipline of Brown. 94 Wn. App. 7, 12, 972 P.2d 101 (1998).
       18 Seatoma Convalescent Ctr. v. Dep't of Soc. & Health Servs., 82 Wn. App. 495,
518, 919 P.2d 602 (1996).
       19 See RCW 18.122.150. The Uniform Disciplinary Act serves to protect the public
and to protect the standing of the medical profession in the eyes of the public. In re
Kindschi. 52 Wn.2d 8,10-11,319 P.2d 824 (1958).
       20 "[T]he disciplining authority has the . .. authority . . . [t]o grant or deny license
applications." RCW 18.130.050(15). "Disciplining authority" is defined as "the agency,
board, or commission having the authority to take disciplinary action against a holder of,
or applicant for, a professional or business license upon a finding of a violation of this
chapter." RCW 18.130.020(6). "Disciplinary action," in turn, is defined as "sanctions
identified in RCW 18.130.160." Id.
No. 68642-9-1/7


unprofessional conduct, including misrepresentation or concealment of a material fact in

obtaining a license.21 At the time ofthe 2001 stipulation, former RCW 18.130.050(13)
(1995) authorized the Commission to investigate complaints of unprofessional conduct

and impose sanctions.22 Former RCW 18.130.172 (2000) authorized the Commission
to informally dispose of complaints of unprofessional conduct by stipulation, and to

impose sanctions in such cases.23 The available sanctions included, in relevant part,
"one or any combination" of the following: "Restriction or limitation of the practice;"

"[rjequiring the satisfactory completion of a specific program of remedial education or

treatment;" "[t]he monitoring of the practice by a supervisor approved by the disciplining

authority;" "[compliance with conditions of probation for a designated period of time;"

and "[corrective action."24
       Kincheloe concedes that in the 2001 stipulation he agreed to work only under

direct RN supervision and not to float from unit to unit, yet he contends that these

conditions were not "restrictions" and his license was not "restricted." This is so,

Kincheloe argues, because the sanctions enumerated in RCW 18.130.160(1 )-(12), are

mutually exclusive categories. Kincheloe contends that the stipulation's conditions were

not "restrictions" as enumerated in RCW 18.130.160(3), but required "monitoring of the


       21 RCW 18.130.160(9). Under RCW 18.130.180(2) such misrepresentation
constitutes unprofessional conduct.
       22 This version of the statute specifically provided the Commission authority to
"grant or deny license applications, and in the event of a finding of unprofessional
conduct by an applicant or license holder, to impose any sanction against a license
applicant or license holder provided by this chapter." Former RCW 18.130.050(13).
       23 RCW 18.130.172, substantially unchanged since the 2001 stipulation, expressly
contemplates that the sanctions set forth in RCW 18.130.160 can be imposed as part of
the stipulation.
       24 RCW 18.130.160.
No. 68642-9-1/8


practice by a supervisor approved by the disciplining authority," as provided in

RCW 18.130.160(5), or "[c]ompliance with conditions of probation for a designated
period of time," as provided in RCW 18.130.160(7).

       Kincheloe's interpretation of the statute is artificially narrow. The terms

"restriction" and "restricted" are not defined in the Uniform Disciplinary Act. Undefined

words in a statute are accorded their ordinary meanings.25 Dictionary definitions ofthe
word "restrict" include "[t]o set bounds or limits to," "to checkfree activity."26
"Restriction" is defined as "something that restricts," "confinement within bounds," "a

tacit or expressed qualification."27

       The stipulation's requirements that Kincheloe take employment only with direct

supervision by a registered nurse, not function as a supervisor, head nurse, or charge

nurse, and not hold a job that where he would float between stations are consistent with

the ordinary meaning of "restrictions." In a practical sense, these conditions were rules,

provisions, or restraints that confined or limited the type of job he could hold and the

scope of duties he could undertake at the workplace, by requiring direct supervision by

a nurse with specific credentials, and completely precluding him from working as a

supervisor, head nurse, or charge nurse, or in a job requiring him to float between

stations. In ordinary usage, his privilege to practice a health care profession was

"restricted" by the stipulation.




       25 Defined terms should be interpreted in accordance with the policy definition,
while undefined terms are interpreted according to their ordinary meanings. S & K
Motors, Inc. v. Harco Nat'l Ins. Co.. 151 Wn .App. 633, 639, 213 P.3d 630 (2009).
       26 Webster's Third New International Dictionary 1937 (2002).
       27
            Id.



                                               8
No. 68642-9-1/9


       In addition, Kincheloe's argument that the categories listed in RCW 18.130.160

are mutually exclusive ignores the provision of that section stating that the available

sanctions include "one or any combination" of the listed sanctions. By granting the

Department authority to combine the sanctions, the statute confirms the categories are

not intended to be mutually exclusive.

       This court gives "substantial weight and deference ... to an agency's

interpretation ofthe statutes and regulations it administers."28 Kincheloe fails to
demonstrate that the Department erred in interpreting or applying the law.

       Because Kincheloe does not prevail in this appeal, he is not entitled to fees

under RCW 4.84.350.

      Affirmed.




WE CONCUR:




               1




       28 Seatoma Convalescent Ctr. v. Dep't of Soc. & Health Servs., 82 Wn. App. 495,
518, 919 P.2d 602 (1996).
