IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON JONATHAN WRIGHT, M.D., Appellant,

WASHINGTON STATE DEPARTMENT OF HEALTH, MEDICAL QUALITY ASSURANCE COMMISSION, Respondent. No. 71516-0-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: February 9, 2015 as

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Spearman, C.J. — Dr. Jonathan Wright was disciplined by the Washington Medical Quality Assurance Commission ("MQAC") for aiding and abetting Roby Mitchell inthe unlicensed practice ofmedicine 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 subjectto unconstitutional searches and sanctions. We find no error and affirm. FACTS 

### Dr. Jonathan Wright is the medical director ofthe 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 inWashington andNo. 71516-0-1/2 treated patients on a regular basis from September 2007 to February 2009. Mitchell resided inWashington 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 pursuantto 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 involveissues of malpractice. CP at 662. Wright did notfind the explanation credible and concluded the investigation was not lawfully
authorized. InMarch 2010, MQACrequested a detailed explanation of how Wright 

### supervised Mitchell and a sample ofpatient records that showed Wright's supervising input. Wright declined to provide records, claiming that he needed releases fromthe patients inquestion. He also requested that MQAC withdraw 

### its request forpatient 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 sentWright 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 forfailing to cooperate with a lawful investigation. On September 27, 2010, MQAC submitted its final requestfor records and required 

### that Wrightrespond 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, byfailing to cooperate with the 

### investigation. Wright ultimately provided five patients records in April 2012. A review ofthese records resulted in an amended statement of charges filed 

### against Wrightthat added aiding and abetting the unlicensed practice of medicine. At the hearing on March 19, 2013, an independent panel ofMQAC 

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

### clear and convincing evidence. The Tribunal did notfind Wrightto be a credible

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

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

### authority to determine and impose sanctions underWAC 246-16-800(2)(d), the Tribunal considered the severity of the conduct, the lack of remorse, and the riskNo. 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 ofprobation following suspension. As conditions of his probation, Wright was required to provide proof ofthe office policy regarding employee verification and appear before MQAC on

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

was also required to submit a paperto MQAC describing the importance of medical licensing and the elements ofproper 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 WashingtonAdministrative Procedures Act, chapter 34.05 RCW, directly to the agency record inreviewing agency 

### adjudicative proceedings. Brown v. State. Dep't. ofHealth. Dental Disciplinary Bd., 94 Wn.App. 7, 11, 972 P.2d 101 (1998). We may reverse an administrative order ifit is (1)based on an error oflaw; (2) is unsupported by substantial 

### evidence; (3) is arbitrary orcapricious; (4) violates the constitution; (5) is beyond 

### statutory authority; or(6) when the agency employsimproper procedure. Id. Appellate review isconfined 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 theburden ofshowing that theaction wasinvalid. 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 ifthey

are clearly erroneous. Port ofSeattle 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 ofthe statutes itadministers, we review the agency's legal conclusions de novo. Towle, 94 Wn. App. at 204. 

### Wright firstassigns 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'spractice of medicine inWashington when he knew that Mitchell's Texas license had been revoked. He argues that MQAC failed to 

### prove that he knew of thisfact. Wright misunderstands the allegation against him. The aiding and abetting charge had nothing to dowith the status ofMitchell's Texas license. Rather, the claim was thatWright allowed Mitchell to practice 

### medicinein Washington without a license, as required by RCW 18.130.180(10). 

### Wrightdoes not dispute that he allowed Mitchell to see patients at hisclinic with full knowledge that Mitchell was not licensed inWashington.No. 71516-0-1/6 Wright argues that the Tribunal erred by applying a novel interpretation of RCW 18.71.030(6) when itfailed 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 summaryjudgment. The presiding officer's order states "[njeither side offers evidence, sufficientfor summaryjudgment purposes, that describes how [Wright] relied on [the statutory exemption or what the common practice inthe profession is concerning having out-of-state 

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

### ofrulemaking through ad hoc adjudications" when it imposed this standard. Brief ofAppellant at 28. The contention is meritless. 

### The statutory exemption in RCW 18.71.030(6) applies inlimited circumstances. It permits "[t]he practice of medicine by any practitioner licensed 

### by another state orterritory in which he or she resides, provided that such practitioner shall not open an office or appoint a place of meeting patients or 

### receiving callswithin this state." TheTribunal correctly found that Mitchell did not qualify for the exemption because he was neitherlicensed in nor a resident of another state. Even ifMitchell had been licensed in Texas and/or maintained a residence there, he would not have qualified, because he met patients andNo. 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 itinterpreted 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 itdisqualified Mitchell for the statutory exemption based on the time 

### that he practiced at the clinic. Wrightcompares the requirements of RCW 18.71.030(6) which contain no time limitations, to the temporary permits under WAC246-12-050 that allow health care professionals to practice for a specific number of days. 

### Wright's argument failsbecause neither employment status nor amount of time practicing inWashington are elements of the statutory exemption. Furthermore, there is no indication in the record that the Tribunal considered eitherthese factors when making its decision, or that itengaged 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 ofviolating RCW 18.71.030(6), because

1Wright also argues that theexemption allows physicians licensed in another state to practice in Washington as independentcontractors underthe supervision of aWashington licensed physician. Wright provides no basisfor thisargument. The statute does notprovide any exemption for physicians practicing as independent contractors. 2Wright also argues that because the hearing officermade reference to a "common practice" in ruling on theMQAC's motion for summaryjudgment, MQAC wasrequired toprove a "'common practice,'" andfailed to do so. BriefofAppellant at 20.Wrightcites noauthority for this argument and we decline to consider it.

7No. 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 itrequired a "different

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

### generalized "aiding and abetting." Brief ofAppellant at 22; CP at 82. RCW 18.130.090 states that "[i]fthe disciplining authority determines, 

### upon investigation, that there is reason to believe a violation of RCW 18.130.180 has occurred, a statement ofcharge or charges shall be prepared and served 

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

### ofcharge or charges shall be accompanied by a notice that the license holder or applicant may request a hearing to contestthe charge or charges." Wright was informed ofthe nature of the complaint and of all ofthe charges brought against 

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

### by"aiding orabetting an unlicensed person to practice when a license is required," not byviolating the out-of-statelicensing exemption. CP at 82. Wright claims that MQAC creates an unconstitutional condition on a 

### physician's license to practice by "imposing strict liability onphysicians for non compliance with MQAC's warrantless search and seizure procedure for medical records." BriefofAppellant at 37. In otherwords, he isforced to eithercomply with an investigation, orwaive hisrights, including the rightto be freefrom

3The second amended statement ofcharges quotes RCW 18.130.180(10) verbatim. The Final Orderexplicitly states that"[t]he Departmentproved by clearandconvincing evidence that theRespondentviolated RCW 18.130.180(10), which defines unprofessional conductas: Aiding orabetting anunlicensed person topractice when a license isrequired." CP at 18-19. The final orderalso states that"[t]he status ofMr. Mitchell's Texas'(sic) license isirrelevant. Even ifMr. Mitchell had had a validTexas medical credential, he was prohibited from practicing medicine in Washington in themanner in which theRespondent allowed him topractice athis Clinic." CP at 17.No. 71516-0-1/9 search and seizure, the right to objectto 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 fullydiscretionary. 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 interestfor which 

### revocation requires due process. Hardee v. State Dep't ofSocial & 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. 

### Wrightargues that MQAC'sprocedures "wholly ignore[] the rights and duties conferred by RCW70.02.060," and other "statutory mandates in favor of procedures that protect patient privacy." Brief ofAppellant at 42. Wright has 

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

### privacy. RCW 70.02.050(2)(a) states that "[a] health care provider shall discloseNo. 71516-0-1/10 health care information,...about a patient without the patient's authorization ifthe
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. 

### Areviewing court should defer to an agency's determination ofsanctions, because it is a matter ofadministrative competence. Brown, 94 Wn. App. at 16.

4Wright also argues that his sanctions are disproportionate compared to the sanctions imposed on otherphysicians for similaroffenses. Heincluded a discussion of otherphysicians' 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. 5Wright placesundue emphasis onhis assumption thatMQAC lied tohim andled him to believe that the investigation was unofficial byrepresenting that there had been nodetermination ofmerit. He argues thatMQAC set him up forthefailure to cooperate charges, because it deliberately misled him into thinking that the investigation was informal, all thewhile knowing that it had been officially authorized.Wright claims that hewould 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 toWright multiple times, in letters dating as early as May, 2009. Wright persisted in denying the investigation's status and his need tocomply with the requestfor records, even afterreceiving warning notices andultimately facing charges in 2011. Itwas notuntil April of2012 that the parties reached an agreement and Wright produced five sets ofpatientrecords showing thelevel ofcareMitchell hadadministered and Wright's level of supervision.

10No. 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 offacts 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 ofAppellant at 43. Wright claims that MQAC's testimony and discovery responses show that itwas 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 ofspeech under the First Amendment. According to Wright, the issue ofprofessional licensing is a "socioeconomic" and "religious issue." Brief ofAppellant at 46.

11No. 71516-0-1/12 A license to practice is a representation to the public concerning the particular qualifications ofthe holder, one which the public may rely on in 

### selecting a physician. See, Brandwein v. Cal. Bd. ofOsteopathic Examiners, 708 F.2d 1466, 1469 (9th Cir. 1983) (no First Amendment violation where state refused to allow osteopath to hold himselfout as an M.D. when he did not have 

### such a degree). It is properly withinthe State's police powerto 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 ofreligion. Butthe Tribunal imposed no restrictions on his right to engage in free speech, or to practice any religious 

### philosophy. Wright's apparentobjection to thetopic ofthe essay required by the Tribunal does not make the penalty unconstitutional. Writing a paper about the 

### importance oflicensing does not violate his FirstAmendment rights nordoes it forcehim to give up a valuableconstitutional right in order to have his license
reinstated. 

### Finally, Wright argues that theTribunal erred byfailing toapply therule of lenity. Therule oflenity applies in both criminal andquasi-criminal proceedings. See In re Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952). The rule requires that 

### wheretwo possibleconstructions of a statute are permissible, the statute must 

### be strictly construed in favor ofthe accused. Statev. Reis, 180Wn. App. 438, 453, 322 P.3d 1238 (2014) review granted, Wn.2d , 336 P.3d 1165

12No. 71516-0-1/13 (2014). Wright has not demonstrated any ambiguities inthe 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 ofthe
Tribunal.

WE CONCUR: 

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