July 2000

Litigating Department of Health Disciplinary Cases in Washington: An Assistant Attorney General's Insider's Guide

 by Edward Newcomer, Jr.

There are many worlds of law practice that few of us know about or have experience with. I recently left the Washington State Attorney General's Office, where I spent five years as a prosecutor on disciplinary cases related to licensed health care professionals, an area of law I knew nothing about before joining the Attorney General's Office.

This article focuses on professions regulated by the Department of Health and will provide you with information on how these cases are handled, how the various state boards and commissions operate, and how you can work as an effective advocate in the disciplinary process.

There are thousands of licensees in Washington who are potentially subject to discipline by a state regulatory agency. Within the nursing and medical professions alone, there are over 73,000 licensed nurses and over 17,000 licensed medical doctors in Washington. The list of licensed professions regulated by the Department of Health includes doctors, nurses, veterinarians, chiropractors, dentists, physical therapists, psychologists and others.

Although this article focuses on the professions regulated by boards and commissions of the Department of Health, you may encounter licensees regulated by the Secretary of the Department of Health. These are commonly referred to as "secretary programs" and include nursing assistants, massage therapists and similar professions. These professions do not have their own boards or commissions. You may also encounter professionals, such as real estate agents, security guards and funeral home operators, who are subject to discipline through the Department of Licensing. While the disciplinary processes of all these professions is conducted pursuant to the Administrative Procedures Act (APA), the professional boards and commissions of the Department of Health present some of the biggest litigation challenges.

The Department of Health's boards and commissions (such as the Veterinary Board or the Nursing Commission) are made up of professionals licensed in that particular profession, but also include one or more public members. All board and commission members are appointed by the governor and serve for fixed, but renewable, terms.

By statute, the Department of Health's boards and commissions are all charged with protecting the public. If you plan to represent a client in a disciplinary proceeding before a board or commission, you must, above all else, remember this fact.

Each of the professions regulated by the Department of Health's boards and commissions is subject to the Washington Uniform Disciplinary Act (UDA). The UDA lists a number of prohibited activities and can be found under RCW 18.130.180. Each board and commission has also adopted rules that further define prohibited acts. Those rules are unique to each profession and can generally be found under WAC 246. If your client is a licensed health care provider and has been charged with professional misconduct, it will be under the UDA and their professional rules.

The Department of Health's boards and commissions have many functions, only one of which is disciplinary. Within their disciplinary function, they serve as both the investigatory and adjudicatory arm of the Department. The investigative functions are discussed in more detail below. The adjudicative function is conducted pursuant to the APA (RCW 34.05). For those who have previous experience with the APA, be prepared for some unique applications in the Department of Health setting.

In most states, and in many APA hearings in Washington, cases are litigated before an administrative law judge (ALJ). The ALJ's initial decision is reviewed by the agency, which then either issues a different final decision or adopts the ALJ's decision as its own. Examples of this process include claims for benefits before the Department of Employment Security and many cases litigated before the Department of Social and Health Services. This process is not used in disciplinary cases before the Department of Health's boards and commissions.

Although the APA governs disciplinary cases before the Department of Health boards and commissions, the cases are tried directly to the board or commission members, who are your client's professional peers. The board or commission members in many cases have extensive expertise in the subject matter. To make matters more stressful, each panel member is entitled to ask questions of each witness who testifies, including your client.

Although the case is tried to the board or commission, a health law judge is present. Within the Department of Health there is an independent division known as the Office of Professional Standards (OPS). This division employs neutral health law judges who serve as presiding officers in cases before boards and commissions. Health law judges rule on objections and evidentiary matters, issue all pre- and post-hearing procedural rulings, and are present during the hearing. Although they prepare the final order in accordance with the commission's decision, they do not participate in the board's or commission's deliberations.

The Department of Health has adopted procedural rules that govern disciplinary hearings conducted under the APA and the UDA. These are in addition to the general APA rules applying to administrative hearings. They relate to motions, timelines and other important procedural matters, and can be found under WAC 246-11.

Prior to being charged with misconduct, your client will have been investigated by one of the Department of Health's investigative units. The investigation will commence after a complaint has been filed with the board or commission staff. Just as a police officer would do if a crime was reported, the investigator will contact witnesses, collect statements and evidence, and contact your client for a statement. You may or may not be involved at this time. If your client is proactive, he or she will have contacted you when they first became aware of the fact that they were being investigated. In my experience, however, most licensees contact a lawyer after they have been formally charged.

If your client retains you during the investigation, don't be surprised to find out that you have little or no access to investigative information. While the investigation is underway, and before your client is charged, you will have limited opportunities to act as a representative. The investigative materials will not be released to you, and you will not be notified of what avenues the investigator is pursuing. You will, however, have an opportunity to help your client prepare a written response and be present when your client is interviewed. You should also know that under the UDA, your client may be charged with an additional violation if he fails to cooperate with the investigation. (RCW 18.130.180(8)).

At the conclusion of the Department's investigation, the investigator's report, statements and documentary evidence are reviewed by a reviewing board or commission member. This member reviews the materials, and using his professional experience, determines whether additional investigation should occur, whether the case should be closed with no action, or whether the case should proceed on a disciplinary track.

After the initial review, if the reviewing member determines that the case should go forward, it is generally referred to the board or commission for a final review. The process for that review varies depending upon the size of the board or commission. Obviously, since the board or commission members might ultimately sit as the final adjudicators in the case, some steps must be taken to shield the members from forming an opinion about the case that could later create bias at a formal hearing. This is generally accomplished at the Department of Health in one of two ways.

Large boards and commissions, like the Medical Commission, have special flexibility in avoiding the possibility that a member will be tainted after reviewing an investigation. Larger boards and commissions can be split into two panels, one for reviewing investigations and the other to actually sit as adjudicators.

Because smaller boards and commissions don't have as many members, they can't effectively utilize the two-panel system. Most of the smaller boards and commissions have their investigatory reports presented to them in a very general format, without revealing the identity of the licensee involved. In these situations, the board or commission relies heavily on the reviewing member's recommendation regarding either charging or closing the file. Reviewing members are always recused from adjudicatory panels.

If your client's case is reviewed by his licensing board and the board has determined that charges should be filed, the investigative file will be forwarded to the Attorney General's Office for legal review and charging. Generally, an assistant attorney general (AAG) will be assigned to handle one or more specific client agencies. Accordingly, assume that the assistant attorney general prosecutor working on your client's case is very knowledgeable about the UDA, APA, litigation in general, and the intricacies of working with the Department of Health's boards and commissions.

The AAG will review the investigative file, including your client's initial response to the allegations, to determine whether the evidence in the file supports the issuance of a Statement of Charges. As with all civil cases, the burden of proof is preponderance of the evidence. Accordingly, if the AAG sees that a majority of the evidence indicates misconduct, your client is probably going to be charged. (It is important to note that this is particularly true in sexual contact cases where the entire determination comes down to your client's word against a patient's. As long as there is no indication that the patient's credibility is in question, the AAG will probably charge the case and let the board or commission determine the issue of credibility.) Once the Statement of Charges is prepared, it is signed by the AAG and served on your client along with a number of other pleadings, including an answer form. Washington is a general pleading state and the charges need only place your client on notice of the basic allegations.

In almost every case, especially with the larger boards and commissions, your client will be served with a Findings of Fact, Conclusions of Law, and Agreed Order at the same time he or she is served with the Statement of Charges. Do not ignore this document. This Agreed Order is developed with input from the reviewing member. It tells you two things: what your client is expected to admit to if the case is going to be settled, and what kind of disciplinary outcome the reviewing member and AAG believe is necessary to protect the public from unreasonable risk of future harm. In your approach to settlement, you need to address these two aspects of the Agreed Order. The rest of the proposal is standardized language adopted by the Department of Health in consultation with the Attorney General's Office. In all but the most egregious cases, the Department's settlement proposals allow the licensee to continue working under some sort of probationary conditions.

The full board or commission must approve all settlements before they become final. Remember that the settlement was developed by the reviewing member and not the board or commission. However, it is rare for the board or commission to reject settlement agreements that are developed and supported by the reviewing member.

Although all state agencies must be represented in litigation by the Attorney General's Office and only this office can provide legal advice, most of the state's agencies have their own attorneys. Many are known as staff attorneys, while others are given titles that do not reflect their legal persona. As with other state agencies, this is true for the Department of Health. How AAGs and staff attorneys work together may be a little confusing at first.

Several years ago, the Department of Health decided to create legal units within the Department, staffed with its own attorneys and legal staff. In the years since the development of the legal units, the Department's staff attorneys have played a very important and valuable role in the disciplinary process. They do not, however, prosecute the cases and do not provide legal advice to the boards, commissions or reviewing members regarding the merits of a case.

Staff attorneys are deeply involved with each case beginning with its earliest stages. They are often involved in the investigative process through consultation with investigators. As a result of their detailed knowledge of each case, they provide valuable assistance to AAG prosecutors. Many of the licensing programs at the Department use staff attorneys to develop and draft the initial settlement proposals that are forwarded to the AAG to include with the charges. For most of the boards and commissions, staff attorneys are also involved in the initial settlement negotiations conducted on a case. This is where it can get confusing.

After your client is charged and you begin to engage in settlement negotiations, your primary contact may be a Department of Health staff attorney. He may be involved in any settlement conferences that occur, and you may be able to resolve the case without ever speaking to the AAG prosecutor assigned to the case. However, there will be occasions when you work with both the AAG and the staff attorney — or with just the AAG — on settlement.

Once a case is actively involved in litigation, the AAG may step forward and take the primary lead in negotiating settlements and consulting with the reviewing member on those settlements. To a large extent, who takes the lead in settlement will be worked out between the AAG and the staff attorney. Both the AAG and staff attorney will react very strongly (in a negative way) if it appears that you are trying to play one against the other. So, if you're negotiating with the staff attorney and you have not been contacted by the AAG, do not contact the AAG regarding settlement unless you are immediately up front with him about the status of your discussions with the staff attorney. The reverse of this is also true; do not contact the staff attorney just because you do not like the result you're getting with the AAG.

There may be a time, however, when you conclude that the attorney you're negotiating with is being unreasonable. By unreasonable I mean that you believe the attorney is personally involved and failing to correctly represent your position to the reviewing member. If this is true, be very clear about your concern when you contact either the AAG prosecutor or staff attorney about the other. Mere disagreement is not reason enough to go "negotiator shopping."

When you are negotiating a settlement proposal with a staff attorney or AAG, remember that the stipulated facts are usually more negotiable than the conditions outlined in the Agreed Order. If you are engaging in negotiation over the conditions, beware of the fact that the settlement must speak for itself as an instrument that protects the public. The reviewing member, through the Agreed Order, has already told you what minimum conditions are necessary to protect the public from further risk or harm. If you want to change those conditions, you must convince the reviewing member that your proposed change will still accomplish the protection goal. Without his or her support, the Agreed Order is unlikely to be approved by the full board or commission.

Over the five years that I worked at the Attorney General's Office, the behavior that most frequently torpedoed settlement negotiations was when an attorney arrived with binders and boxes full of documents announcing that they would "exonerate" their client. Your job at a settlement conference is to discuss the proposed Agreed Order and any alternative proposals you have. As you discuss those alternatives, you should present rational arguments as to how your proposals still allow the board or commission to accomplish its mission. Documents such as an independent evaluation may play a role, but settlement is not your opportunity to prove that the reviewing member is wrong.

If you have evidence that exonerates your client, it should be submitted during the investigative process or to the staff attorney or AAG before a settlement conference occurs. Exculpatory information must be submitted in advance with a detailed explanation of how it excuses the charges against your client.

If you have been unable to reach settlement or secure dismissal of the charges, you will find yourself in a hearing before the appropriate board or commission and facing an AAG. For the most part, the hearing will challenge your general litigation skills. Essentially, you are trying your case to a jury of your client's professional peers, who are highly educated about the technicalities and realities of the profession. As in all APA cases, the Rules of Evidence are generally followed, but you should be sure to fully understand the flexibility allowed under the APA and WAC procedural rules. The state's burden of proof is by a preponderance.

Because the state has the burden of proving misconduct in these cases, the Assistant Attorney General will present the state's case first. After each witness has been examined by the state, cross-examined and questioned under redirect, each board or commission member will have an opportunity to ask additional questions of the witness. Both parties will then have the opportunity to ask additional questions based on the members' questions.

Keep in mind that your client can be subpoenaed by the prosecution and required to testify. Further, boards or commissions may take a negative inference from the invocation of Fifth Amendment rights. See, State Farm v. Huynh, 92 Wash. App. 454, 962 P.2d 854 (1988) and Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953).

Unlike cases tried to ALJs, expert witnesses are not routinely necessary in cases tried to boards or commissions. Many of the violations in the UDA are self-explanatory; they either did or did not happen. Experts are mainly used where there is a debate within the profession as to whether a given treatment or activity is appropriate. Boards and commissions may utilize their own expertise in evaluating witnesses and other evidence.

Hopefully, this has given you some insight into the subtleties of defending a disciplinary case against a licensed health professional. If you find yourself in this position, I strongly encourage you to build a friendly and nonconfrontational relationship with the AAG assigned to prosecute the case. He can be of invaluable assistance to you if you have any questions regarding process.

I also strongly discourage you from doing anything that might appear to board or commission members as an attempt to "pull the wool over their eyes." As professionals in the same field as your client, they will react negatively to any attempt to minimize serious deficiencies or to hide misconduct. If you know your client made a mistake, you are much better off trying to help him figure out conditions under which he can still practice and assure the board or commission that adequate safeguards are in place to protect the public. Even if you ultimately have to take the case to hearing, I've frequently seen licensees escape relatively unscathed simply because they've explained the behavior and offered reasonable alternatives to the state's recommended sanctions.

With these thoughts in mind, and with the "insider" information contained in this article, you should now have a better understanding of a unique area of legal practice in Washington.Edward Newcomer, Jr. served as an assistant attorney general for the Washington Attorney General's Office from 1994 to 1999. During that time, he was lead prosecutor for the Nursing Commission's Prosecution Unit and served as a prosecutor for the Medical Commission Veterinary, Podiatry, Physical Therapy and Occupational Therapy Boards. He is currently an assistant attorney general with the Colorado Attorney General's Office in Denver.

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