Dale E. Alsager, D.o., Phd. v. Wa State Bd Of Osteopathic Medicine

Filed
Washington State
Court of Appeals
Division Two
November 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DALE E. ALSAGER, D.O., No. 47367-4-II
(Consolidated with No. 47727-1-II)
Appellant,
v.
PART PUBLISHED OPINION
BOARD OF OSTEOPATHIC MEDICINE
AND SURGERY, DEPARTMENT OF
HEALTH, STATE OF WASHINGTON,
Respondents.
BJORGEN, C.J. — Dale Alsager appeals the Washington Board of Osteopathic Medicine
and Surgery’s1 permanent revocation of his license to practice medicine, as well as several of
the Board’s prehearing rulings and its order denying reconsideration. He makes two primary
arguments. First, he contends that the Board violated his federal and state constitutional rights
against compelled self-incrimination by sanctioning him for failing to testify and to disclose
prescription records. Second, he contends that the Board violated his federal and state
constitutional rights against unlawful searches and seizures by searching and procuring his
prescription records from the state’s prescription monitoring program and participating
pharmacies. He also argues that the superior court erred by dismissing his petition for
declaratory judgment under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24
1
We refer to this entity as the Board.
No. 47367-4-II (Cons. w/
No. 47727-1-II)
RCW, that the Board’s findings of fact and conclusions of law were insufficiently supported,
that a panel member should have been disqualified, and that documentary evidence was
admitted without authentication.
We hold in the published portion of this opinion that the Board’s proceedings did not
deprive Alsager of any right against compelled self-incrimination and that the Board and
Department of Health acted within constitutional bounds in procuring the prescription records.
In the unpublished portion of this opinion, we hold that the superior court properly dismissed
Alsager’s petition for declaratory action, that the Board’s findings of fact and conclusions of
law were sufficiently supported, that Alsager failed to establish grounds for the panel member’s
disqualification, and that any error in admitting the documentary evidence without assessing
authentication was harmless. Accordingly, we affirm the Board’s revocation of Alsager’s
license to practice medicine.
FACTS
In 2008, the Board sanctioned Alsager for inappropriately prescribing potentially
dangerous medications without conducting necessary patient examinations.2 The sanctions
prohibited Alsager from prescribing Schedule II or III controlled substances until he completed
an approved residency or pain management training course.
In 2012, the Board received a complaint regarding Alsager’s treatment of one of his
patients and notified Alsager of the complaint. Following the Uniform Disciplinary Act (UDA),
2
Alsager appealed the Board’s 2008 order, and we affirmed in an unpublished opinion. Alsager
v. Wash. State Bd. of Osteopathic Med. & Surgery, noted at 155 Wash. App. 1016, ___ P.3d ___
(2010).
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No. 47727-1-II)
chapter 18.130 RCW, the Board found that the complaint had merit and initiated an
investigation. RCW 18.130.080(2). An investigator contacted Alsager, requesting that he
produce a copy of the patient's file, which included prescription records, and make a written
statement responding to the complaint.
Alsager did not answer the request or provide the requested information. Instead, he
asked the Board to quash the production demand on constitutional grounds. The Board denied
Alsager’s request. The investigator then performed a search of the State’s prescription
monitoring program database, which archives prescriptions for medical drugs filled in
Washington. See Chapter 70.225 RCW. This search uncovered prescription records showing
that Alsager prescribed Schedule III controlled substances to his patients and himself after the
Board issued its prior order prohibiting him from doing so.
Based on the information the investigator uncovered from the database, the Board
authorized additional investigation. The investigator again contacted Alsager, this time
requesting medical records for patients to whom Alsager had prescribed Schedule II or III
controlled substances since the Board issued its 2008 order. Alsager responded, asserting that
his Fourth and Fifth Amendment rights protected him from compelled cooperation. The
investigator then requested prescription records from various pharmacies.
Alsager petitioned the Board under RCW 34.05.240 for an order declaring that he need
not testify or produce the requested records on constitutional grounds. He also requested
clarification as to the scope of the Board’s 2008 order. The Board denied the petition and
declined to clarify the scope of the order, finding that Alsager “ha[d] not demonstrated an
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uncertainty necessitating resolution exists with regard[] to [its] language.” Administrative
Record (AR) at 1919.
Alsager then petitioned the superior court under the UDJA for a declaratory judgment
that the Board could not require him to testify or produce the records and that the statutes
imposing those requirements were facially unconstitutional. The superior court granted the
Board’s motion for summary judgment and dismissed the case, reasoning that Alsager could not
circumvent Washington’s Administrative Procedure Act (APA), chapter 34.05 RCW, by seeking
a declaratory judgment. Instead, the superior court ruled that Alsager must utilize the judicial
review process under the APA. Alsager appealed, and we have consolidated this appeal with the
others described below.
Alsager also brought suit in federal court seeking a declaration that his compelled
cooperation would violate his constitutional rights. The federal court denied him the relief he
sought, similarly reasoning that the APA provided the appropriate avenue for review of his
constitutional claims. Alsager v. Bd. of Osteopathic Med. & Surgery, noted at 573 Fed. Appx.
619 (9th Cir. 2014).
The Board ultimately charged Alsager with unprofessional conduct under the UDA for
violating the 2008 order and failing to cooperate with the investigation. For this conduct, the
Board summarily suspended his license to practice. The Board held a show cause hearing on the
summary suspension at Alsager’s request, after which it upheld that sanction.
Before the hearing on his charges before the Board, Alsager moved for several prehearing
rulings. Among other matters, he moved for rulings that his constitutional rights precluded
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compelled testimony or production of documents, that several members of the Board should be
disqualified due to the fact that they practiced in the same geographic area as Alsager, and that
prescription records obtained from the prescription monitoring program database were not
authenticated and were therefore inadmissible. The Board denied each of these motions.
The Board held its hearing on the merits of Alsager’s charges on June 4, 2014. The
Department of Health provided the prescription records from the database, as well as prescription
records from pharmacies obtained by the investigator. The investigator testified and was cross-
examined. Instead of making specific objections or focusing on specific topics, Alsager refused
to testify or present any evidence on the general basis of the Fourth and Fifth Amendments. The
presiding officer ruled that these protections did not apply and stated that it would instruct the
panel that they may draw negative inferences from Alsager’s refusal to testify. The Department
then directed specific questions to an empty witness stand, and Alsager provided no individual
responses or invocations of his rights.
The Board issued its Final Order on July 9, 2014. It concluded that Alsager had
committed unprofessional conduct as defined in RCW 18.130.180 by repeatedly violating the
2008 order and by refusing to cooperate with the investigation. Based on these conclusions, the
Board permanently revoked Alsager’s license to practice osteopathic medicine in Washington.
Subsequently, the Board denied Alsager’s motion for reconsideration. Alsager appealed to the
superior court, which denied the petition for judicial review.
Alsager appeals various prehearing orders by the Board, the Board’s Final Order, the
Board’s denial of reconsideration, and the superior court’s denial of the petition for judicial
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review. We have consolidated this appeal with his earlier appeal of the superior court’s
dismissal of his declaratory judgment action.
ANALYSIS
Alsager presents two primary arguments. First, he argues that the Board violated his
constitutional right against compelled self-incrimination by requiring him to cooperate with its
investigation. Second, he contends that it engaged in a constitutionally unlawful search and
seizure by searching the prescription monitoring program for records of the prescriptions he
wrote. Alsager additionally argues that the Board’s Final Order was not properly supported, one
of the Board’s panel members should have been disqualified from serving on the panel, and the
Board erred by admitting prescription records that were not authenticated. In his appeal of the
superior court’s decision on declaratory judgment, he contends that the superior court improperly
dismissed his petition on grounds that the declaratory action was unavailable in light of the
judicial review process of the APA. We are not persuaded by these arguments.
I. RIGHTS AGAINST COMPELLED SELF-INCRIMINATION
Alsager argues that because a professional disciplinary proceeding is “quasi-criminal” in
nature, the Board violated his constitutional right against compelled3 self-incrimination by
3
Alsager asserts that the Board’s requirement that he testify and produce patient records
constituted compulsion because it would impose penalties on him, among them revocation of this
medical license, if he failed to comply. We agree with Alsager on this point. RCW
18.130.180(8) defines unprofessional conduct as including
8. [f]ailure to cooperate with the disciplining authority by:
(a) Not furnishing any papers, documents, records, or other items;
(b) Not furnishing in writing a full and complete explanation covering the matter
contained in the complaint filed with the disciplining authority;
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requiring him to testify and produce testimonial records. Br. of Appellant at 1-2. We disagree
that these medical license revocation proceedings were sufficiently criminal in nature to require
application of the Fifth Amendment protection against self- incrimination. Consequently, the
Board did not violate Alsager’s Fifth Amendment rights.
We review final administrative decisions under the APA. Feil v. E. Wash. Growth Mgmt.
Hr’gs Bd., 172 Wash. 2d 367, 376, 259 P.3d 227 (2011). We review the agency’s decision, not the
decision of the superior court on initial review. Pal v. Wash. State Dep’t of Soc. & Health Servs.,
185 Wash. App. 775, 781, 342 P.3d 1190 (2015). We will grant relief from the agency’s decision
if it suffers from one of the infirmities listed in RCW 34.05.570(3), which include:
(a) The order, or the statute or rule on which the order is based, is in violation of
constitutional provisions on its face or as applied;
....
(d) The agency has erroneously interpreted or applied the law.
RCW 34.05.570(3). The party asserting the invalidity of the agency decision bears the burden of
showing that the decision is invalid on one of these grounds. RCW 34.05.570(1)(a).
Alsager claims that the Board’s Final Order and the statutes on which it was based violate
his constitutional rights. We review such issues de novo, though we presume that statutes are
(c) Not responding to subpoenas issued by the disciplining authority, whether or not the
recipient of the subpoena is the accused in the proceeding; or
(d) Not providing reasonable and timely access for authorized representatives of the
disciplining authority seeking to perform practice reviews at facilities utilized by the
license holder[.]
Because unprofessional conduct is grounds for discipline, including suspension or revocation of
a physician’s license, RCW 18.130.160, the statutory scheme compels disclosure and general
cooperation with disciplinary proceedings. See Spevack v. Klein, 385 U.S. 511, 516, 87 S. Ct.
625, 17 L. Ed. 2d 574 (1967).
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constitutional. City of Seattle v. Evans, 184 Wash. 2d 856, 861-62, 366 P.3d 906 (2015), petition
for cert. by Evans v. City of Seattle, ___ U.S. ___ (2016).
A. Quasi-Criminal Actions
Alsager argues that board proceedings for revocation of a medical license are quasi-
criminal in nature and therefore are subject to the protections of the Fifth Amendment to the
United States Constitution and article I, section 9 of the Washington State Constitution. We
disagree and hold that although board proceedings have a punitive aspect, they do not qualify as
“criminal cases” within the meaning of those constitutional provisions.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V. Similarly, article I, section 9 of
our state constitution provides that “[n]o person shall be compelled in any criminal case to give
evidence against himself.” WASH. CONST., art. I, § 9. The protections provided by these
provisions are coextensive. State v. Unga, 165 Wash. 2d 95, 100, 196 P.3d 645 (2008).
Although the language of these constitutional provisions specifies that they are applicable
only to “criminal cases,”
suits for penalties and forfeitures, incurred by the commission of offenses against
the law, are of [a] quasi criminal nature, . . . [and] are within the reason of criminal
proceedings for all the purposes of the fourth amendment of the constitution, and
of that portion of the fifth amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself.
Boyd v. United States, 116 U.S. 616, 634-35, 6 S. Ct. 524, 29 L. Ed. 746 (1886). However, this
seemingly broad holding has been limited over the years. United States v. Ward, 448 U.S. 242,
253, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). Under Boyd and its progeny, the “government
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may not abrogate the accused’s privilege against self-incrimination by electing the vehicle of a
nominally civil proceeding, when in reality, punishment for activity which violates the criminal
law is being imposed.” In re Daley, 549 F.2d 469, 475 (7th Cir. 1977). A civil action is
sufficiently criminal in nature if “[i]ts object, like a criminal proceeding, is to penalize for the
commission of an offense against the law.” One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S.
693, 700, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965).
Our Supreme Court has characterized professional disciplinary proceedings involving the
revocation of licenses as quasi-criminal for the purpose of determining whether due process
protections apply to such proceedings.4 Nguyen v. State, Dep’t of Health Med. Quality
Assurance Comm’n, 144 Wash. 2d 516, 527-29, 29 P.3d 689 (2001); In re Johnston, 99 Wash. 2d 466,
474, 663 P.2d 457 (1983); In re Kindschi, 52 Wash. 2d 8, 10-11, 319 P.2d 824 (1958). However,
the full protections enjoyed by criminal defendants are not necessarily available in such quasi-
criminal proceedings. See Nguyen, 144 Wash. 2d at 527-28 (holding that clear and convincing
evidence, rather than proof beyond a reasonable doubt, is required to impose sanctions in
disciplinary proceedings); cf. Rowe v. State, Dep’t of Licensing, 88 Wash. App. 781, 784-85, 946
4
Alsager seems to take the position that the term “quasi-criminal” denotes a legally significant
category of actions, much like the terms “civil” and “criminal.” However, our cases have used
the term to describe, not to categorize. See, e.g., In re Kindschi, 52 Wash. 2d 8, 11-12, 319 P.2d
824 (1958) (describing a professional disciplinary proceeding as “civil, not criminal, in nature;
yet . . . quasi criminal in that it is for the protection of the public,” and concluding that it is “a
special, somewhat unique, statutory proceeding”) (emphasis added). Simply labeling a
proceeding “quasi-criminal” is not determinative of the rights a defendant in such a proceeding
may assert. Daley, 549 F.2d at 476. We do not assign any categorical legal significance to the
term “quasi-criminal,” and instead analyze whether a claimed right applies in the context of a
particular quasi-criminal action.
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P.2d 1196 (1997) (holding that suspension of a driver’s license for conduct already sanctioned in
a criminal case did not violate defendant’s constitutional rights against double jeopardy because
it served a remedial purpose beyond the criminal penalties). Thus, we must decide whether a
disciplinary proceeding for revocation of a medical license is quasi-criminal in a manner that
requires application of the right against compelled self-incrimination.
Both Kindschi and Nguyen recognized that although the “consequence [of disciplinary
sanctions] is unavoidably punitive,” such sanctions are “not designed entirely for that purpose.”
Kindschi, 52 Wash. 2d at 10-11; Nguyen, 144 Wash. 2d at 528. Licensure of doctors and the
disciplinary procedures used to enforce it are intended not simply to ensure that doctors comply
with applicable law, but “to assure the public of the adequacy of professional competence and
conduct in the healing arts.” RCW 18.130.010; see also Kindschi, 52 Wash. 2d at 10-11.
Sanctioning unprofessional conduct serves primarily to maintain professional standards and
promote public health and confidence, rather than seeking punitive goals like vengeance. This is
akin to the system upheld in Daley:
Because the primary function of state bar disciplinary proceedings is remedial, i.e.,
maintenance of the integrity of the courts and the dignity of the legal profession as
well as protection of the public, we . . . hold that the Fifth Amendment privilege
against self-incrimination does not proscribe the introduction in state bar
disciplinary proceedings of testimony compelled under a grant of immunity.
549 F.2d at 477. We similarly conclude that the primary object of the UDA is remedial and
regulatory, not punitive.
As the United States Supreme Court discussed in Ward, the following factors are relevant
to determining whether a nominally civil action is sufficiently criminal in nature to trigger a
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defendant’s constitutional right against self-incrimination: (1) whether the penalty imposed has a
“correlation to any damages sustained by society or to the cost of enforcing the law”; (2) whether
the available sanctions include traditionally punitive penalties associated with criminal actions,
like imprisonment or fines; and (3) whether the proceedings present some danger that the subject
practitioner will prejudice himself with respect to possible criminal proceedings. 448 U.S. at
254. Ward also relied on the "overwhelming evidence" it found "that Congress intended to
create a civil penalty in all respects and quite weak evidence of any countervailing punitive
purpose or effect . . ." Id.
On balance, these Ward factors weigh against a holding that Board disciplinary actions
are sufficiently criminal to trigger a practitioner’s constitutional rights against compelled
testimony and evidence production. Suspension or revocation of a license for unprofessional
conduct in medicine is closely correlated to ensuring safe and adequate medical care and to
promoting public trust in the medical profession. The available sanctions do not include
imprisonment and are tailored to minimize or prevent further unprofessional conduct, though
fines may be levied. See RCW 18.130.160. However, any authority imposing sanctions under
the UDA, including fines, “must first consider what sanctions are necessary to protect or
compensate the public.” RCW 18.130.160. Thus, even the assessment of fines primarily serves
a remedial, rather than a punitive function. In addition, there is no general danger of prejudice
with respect to future criminal proceedings, though in certain instances proceedings may involve
conduct to which criminal liability may attach. The final consideration in Ward, the
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overwhelming evidence of legislative intent, does not weigh appreciably in either direction in the
present appeal.
Under the Ward factors these medical disciplinary proceedings on balance are best
considered civil actions, not quasi-criminal. As such, they do not necessarily trigger the
constitutional protections against compelled self-incrimination.5 Subject to the limitation
discussed in Section I.B below, the Board may sanction noncompliance with its valid questions
and requests for documents. See S.E.C. v. Colello, 139 F.3d 674, 678 (9th Cir. 1998). The
Board is also free to draw adverse inferences from a physician’s refusal to testify or produce
requested documents, as long as such adverse inferences are supported by some other evidence.
Diaz v. Wash. State Migrant Council, 165 Wash. App. 59, 85, 265 P.3d 956 (2011); Doe ex rel.
5
Alsager directs our attention to cases in other states holding that professional disciplinary
proceedings are sufficiently similar to criminal cases as to require the full criminal protections of
the Fifth Amendment. In State ex rel. Vining v. Florida Real Estate Commission, the Supreme
Court of Florida struck down a statute requiring realtors to make a sworn statement in
professional disciplinary proceedings that were essentially “penal” in nature because they
“tend[ed] to degrade the individual’s professional standing, professional reputation or
livelihood.” 281 So. 2d 487, 491 (1973). In In re Woll, 387 Mich. 154, 194 N.W.2d 835 (1972),
the Supreme Court of Michigan held that Fifth Amendment protections are available in
disbarment proceedings, basing that holding on earlier case law establishing that such
proceedings are essentially punitive in nature. Both Vining and Woll were based in part on the
United States Supreme Court’s then-recent opinion in Spevack, 385 U.S. at 516-19, which held
that the threat of disbarment for exercising one’s Fifth Amendment rights constitutes
compulsion. In both Vining and Woll, the courts seemed to read Spevack as suggesting that
professional discipline was inherently punitive. 385 U.S. 516-19. No Washington court has
construed Spevack so broadly, and the Court in Spevack declined to reach the question directly.
385 U.S. at 518-19. Given the difference in the relevant law in Florida and Michigan, we read
Vining and Woll only as showing that professional disciplinary proceedings may be sufficiently
criminal in nature to require constitutional protections against self-incrimination compelled by
the threat of professional repercussions. The cases say nothing about whether Washington’s
UDA establishes proceedings that are sufficiently similar to criminal proceedings.
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Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000). Because the Board also
examined other evidence that Alsager improperly prescribed controlled substances in violation of
its earlier order, it did not err in allowing adverse inferences from Alsager’s refusal to testify or
respond.
B. Invocation of Right in Civil Proceedings
We recognize, however, that testimony or other evidence compelled in a medical
disciplinary proceeding could incriminate the practitioner in potential criminal prosecutions. In
that situation, though, the practitioner must assert his rights through specific, individual
objections, not by invoking blanket constitutional protection to avoid participating in the
proceedings.
One may assert Fifth Amendment rights in any proceeding, including civil and
administrative proceedings. Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 32 L.
Ed. 2d 212 (1972). Specifically, a party in a civil proceeding need not answer questions “where
the answer might incriminate him in future criminal proceedings.” State v. King, 130 Wash. 2d
517, 524, 925 P.2d 606 (1996).
However, in a civil proceeding, the right against testifying “necessarily attaches only to
the question being asked and the information sought by that particular question.” Glanzer, 232
F.3d at 1265. Therefore, a person invoking his Fifth Amendment right against self-incrimination
to avoid testifying in a civil action must assert that right specifically in response to particular
questions or requests for information. Glanzer, 232 F.3d at 1265. Alsager was not permitted to
avoid all cooperation with the Board by asserting that right generally. See Eastham v. Arndt, 28
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Wn. App. 524, 532, 624 P.2d 1159 (1981); see also Matter of Baun, 395 Mich. 28, 37, 232
N.W.2d 621 (1975) (Michigan case in the line stemming from Woll). Because Alsager did not
claim Fifth Amendment protections specifically or limit his assertion of the right to any
particular topics, requests, or questions, he did not properly invoke it as to matters potentially
related to criminal liability.
For the reasons above, these medical license revocation proceedings did not violate
Alsager’s Fifth Amendment rights.6
II. RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURE
Alsager argues that by searching the prescription monitoring program database for his
prescription records and gathering those records from the database and pharmacies, the Board
violated his federal and state constitutional rights to be free from unreasonable search and
seizure.7 He also argues that the statutes authorizing the search are facially unconstitutional.8
We disagree.
The Fourth Amendment to the United States Constitution provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
6
With this conclusion, we do not need to address the Board’s argument based on the required
records doctrine.
7
No party challenged Alsager’s standing to make this claim. We assume without deciding that
he has standing and proceed to the merits.
8
The statutes Alsager asserts are unconstitutional are: RCW 18.130.050(7), .180(8), .230(1);
RCW 70.02.050(2)(a); RCW 70.225.040(3).
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U.S. CONST. amend. IV. Similarly, article I, section 7 of the Washington Constitution provides
that “[n]o person shall be disturbed in his private affairs . . . without authority of law.” WASH.
CONST., art. I, § 7. This state provision is more broadly protective than is its federal counterpart.
State v. Hendrickson, 129 Wash. 2d 61, 69 fn. 1, 917 P.2d 563 (1996).
Our analysis of whether the Board violated both constitutional provisions is two-pronged:
we must determine whether Alsager had a protected privacy interest in the prescription records
held by the State or a third party, and if so, we must look to whether the Board’s warrantless
search of those records was constitutionally permissible. See State v. Miles, 160 Wash. 2d 236,
243-44, 156 P.3d 864 (2007).
Turning first to the presence of a privacy interest, both the Fourth Amendment and article
I, section 7 protect against government intrusion into one’s private records. The Fourth
Amendment protects a person’s “subjective and reasonable expectation of privacy.” State v.
Young, 123 Wash. 2d 173, 181, 867 P.2d 593 (1994) (citing Katz v. United States, 389 U.S. 347,
351-52, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Article I, section 7 more broadly protects
“those privacy interests which citizens of this state have held, and should be entitled to hold, safe
from governmental trespass absent a warrant.” Id. (citing State v. Myrick, 102 Wash. 2d 506, 511,
688 P.2d 151 (1984)). Under each constitutional source, a search requires an intrusion within the
perimeter of a protected privacy interest. Young, 123 Wash. 2d at 181.
Division One of our court has held, in an opinion both our Supreme Court and the United
States Supreme Court declined to review, that a patient has only a limited expectation of privacy
in prescription records. Murphy v. State, 115 Wash. App. 297, 312-313, 62 P.3d 533 (2003). The
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court noted that “constitutional privacy protections are not absolute,” and where such
prescription records are concerned they “must be balanced against the need for comprehensive
and effective governmental oversight of prescription narcotic use and distribution.” Id. at 308.
As the court explained, Washington law has long required pharmacists to retain prescription
records. Id. at 313. Due to this requirement and the controlled substances laws, patients should
expect the government to “keep careful watch” over them and “should reasonably expect that
their prescription records will be available to appropriate government agents, subject to
safeguards against unauthorized further disclosure.” Id. at 312-13.
Although the court in Murphy focused on prescription narcotics records, 115 Wash. App. at
307-08, its reasoning applies to prescription records of other scheduled controlled substances as
well. RCW 18.64.245 (formerly codified at RCW 18.67.090) has long required pharmacists to
keep all prescription records and make them available when lawfully required. Moreover,
scheduled controlled substances have been subject to robust governmental regulation at the state
and federal levels for decades, based on the danger they can pose to the public. See, e.g., RCW
69.50.201-.214, .308, .401; 21 U.S.C. §§ 812, 841-65. As such, we must consider patients’
general interest in privacy in light of “the State’s vital interest in controlling the distribution of
dangerous drugs.” Whalen v. Roe, 429 U.S. 589, 598, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
Considering that vital interest, patients should reasonably expect prescriptions for such records to
be subject to some governmental scrutiny, “subject,” as noted in Murphy, “to safeguards against
unauthorized further disclosure” by officials. 115 Wash. App. at 313.
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To the extent Alsager relies on the privacy interests of prescribing physicians as well, his
argument founders on the authority just noted. Physicians, allowed by law to prescribe
controlled substances under RCW 69.50.308, should be even more aware than patients that the
government exercises tight regulatory oversight of these controlled substances.
Alsager argues that we should recognize a protected privacy interest, at least under article
I, section 7, because two 19th century Washington statutes provided that pharmacists need not
keep records of drugs distributed with a physician’s prescription. These statutes established a
general requirement that pharmacists keep records of the distribution of all potentially dangerous
drugs for law enforcement inspection, but both included an exception for drugs prescribed by a
physician. LAWS OF 1891, ch. 153, § 12; 1881 CODE OF THE TERRITORY OF WASHINGTON, § 936.
Neither of these statutes, however, prohibited pharmacists from keeping records of
physicians’ prescriptions. At most, these statutes show that physicians’ prescription records have
not always been subject to mandatory pharmacy recordkeeping requirements. However, as
Division One noted in Murphy, there is a “long history of government scrutiny” over
prescriptions. 115 Wash. App. at 313. The statutes Alsager discusses do not establish that
physicians have historically enjoyed any particular privacy interest in prescription records.
We adopt the reasoning and holding of Murphy and extend it to apply to prescribing
physicians. We hold that prescription records kept under the prescription monitoring program,
either by a pharmacist or as part of the state database, are not protected from all governmental
examination by the Fourth Amendment or article I, section 7. Records of prescriptions for
scheduled controlled substances are subject to legitimate oversight by appropriate agents of the
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State if reasonably tailored to the enforcement of state law and if effective safeguards against
unauthorized further disclosure are present. Acting under these constraints, the Department and
the Board did not intrude into a zone of privacy protected by either the state or federal
constitutions by the examination of Alsager’s prescription records kept under the prescription
monitoring program, whether in the state database or held by a pharmacist. Therefore, the
Department and the Board did not violate either constitutional guarantee through this
examination.
CONCLUSION
We affirm the Board’s Final Order permanently revoking Alsager’s license. The Board’s
proceedings did not deprive Alsager of any right against compelled self-incrimination, and the
Department and the Board did not violate Alsager’s right to be free from unreasonable searches
and seizures when it examined Alsager’s prescription records kept under the prescription
monitoring program, whether in the state database or held by a pharmacist. Alsager's remaining
legal challenges, discussed in the unpublished portion of this opinion, similarly do not persuade
us that the Board erred.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record pursuant to RCW 2.06.040, it is so ordered.
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III. DECLARATORY JUDGMENT
Alsager argues that the superior court erred by dismissing his petition for declaratory
judgment under the UDJA. We disagree.
RCW 7.24.146 clearly states that the UDJA “does not apply to state agency action
reviewable under [the APA,] chapter 34.05 RCW.” In such situations, declaratory judgment is
instead available under the APA via the judicial review process. RCW 34.05.574(1). If an
agency action is subject to judicial review under the provisions of the APA, it may not be
preemptively decided by petition to a superior court for declaratory judgment. Nw. Ecosystem
All. v. Washington Dep’t of Ecology (Nw. Ecosystem All. I), 104 Wash. App. 901, 919, 17 P.3d 697
(2001), rev’d in part, aff’d in part, Nw. Ecosystem All. v. Washington Forest Practices Bd. (Nw.
Ecosystem All. II), 149 Wash. 2d 67, 66 P.3d 614 (2003).
Alsager claims that the Board’s decision not to grant him a declaratory order was not
reviewable under the APA and, therefore, that he properly sought declaratory judgment in the
superior court under the UDJA. However, an agency’s failure to act in the face of a duty to do so
is reviewable under the APA. RCW 34.05.570(4)(b); Nw. Ecosystem All. II, 149 Wash. 2d at 73-
74. Therefore, to the extent the agency had any duty to issue a declaratory order related to the
constitutionality of its application of the challenged statutes, its decision not to issue such an
order was reviewable under the APA and was not subject to challenge under the UDJA. If the
agency had no such duty to issue a declaratory order, then Alsager’s avenue of as-applied
constitutional challenge was through APA judicial review of the Board’s Final Order following
his exhaustion of administrative remedies. See RCW 34.05.534, .570(3)(a).
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Alsager also argues that the superior court erred by requiring him to resort to and exhaust
APA remedies when such remedies were futile and threatened irreparable harm to his
constitutional rights. Where administrative remedies are inadequate, futile, or will result in grave
and irreparable harm that clearly outweighs the public policy behind requiring exhaustion, a trial
court may excuse the exhaustion requirement. RCW 34.05.534(3)(b)-(c). Because the Board
has no authority to invalidate statutes on constitutional grounds, it was arguably futile for
Alsager to wait for it to address the facial constitutionality of the challenged statutes. Prisk v.
City of Poulsbo, 46 Wash. App. 793, 798, 732 P.2d 1013 (1987). However, even if we assume that
the superior court abused its discretion by dismissing Alsager’s facial challenges to the
constitutionality of the statutes, we may affirm summary judgment on any grounds supported by
the record before us. Pac. Marine Ins. Co. v. State ex rel. Dep’t of Revenue, 181 Wash. App. 730,
737, 329 P.3d 101 (2014). Our consideration above of the merits of Alsager’s constitutional
claims shows that his facial constitutional challenges fail. Therefore, we hold that the superior
court did not err in granting summary judgment and dismissing Alsager’s UDJA claims.
IV. SUFFICIENCY OF THE BOARD’S FINDINGS AND CONCLUSIONS
In addition to the constitutional challenges that form the basis of most of his assignments
of error, Alsager challenges one of the Board’s findings of fact on grounds that it was not
supported by substantial evidence, and three of the Board’s conclusions of law on grounds that
they were not supported by sufficient findings of fact or were legally erroneous. Each of these
challenges fail.
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We will reverse an administrative agency’s order if the agency’s findings are not
supported by substantial evidence or its conclusions of law are legally erroneous or unsupported
by the findings. Campbell v. Tacoma Pub. Sch., 192 Wash. App. 874, 887, 370 P.3d 33 (2016),
review denied, 186 Wash. 2d 1015; RCW 34.05.570(3). Substantial evidence is that necessary to
“persuade a fair-minded person of the truth or correctness of the order.” Miotke v. Spokane
County, 181 Wash. App. 369, 375-76, 325 P.3d 434, review denied, 181 Wash. 2d 1010 (2014). We
view the evidence in the light most favorable to the Board. Id. at 375.
1. Sanction Finding 1.10
Alsager argues that sanction finding 1.10 “omits critical reference to the parties’
Prehearing Stipulations set forth in Paragraph 2 thereof and specific findings of fact as to reasons
and rationale that Dr. Alsager can never be rehabilitated or never regain the ability to practice
safely.” Br. of Appellant at 9. We hold that the omission is immaterial and the finding is
supported by substantial evidence.
Sanction finding 1.10 reads:
The Board previously determined in the 2008 Final Order that the
restrictions on prescribing and retraining placed on the Respondent by the Order
were necessary to protect the public and to rehabilitate the Respondent. The Board
provided the Respondent with a rehabilitation plan that would allow him to remove
the restriction. The evidence shows the Respondent began to violate the Final
Order by issuing prescriptions for Schedule III controlled substances as early as
September 17, 2008 and through at least February 15, 2013. The Panel finds the
Respondent’s conduct (the issuance of numerous Schedule III controlled substance
prescriptions) shows a disregard of the 2008 Final Order. As a result, the Board
finds there is no rehabilitation plan that will ensure the Respondent’s compliance.
AR at 1711-12.
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The prehearing stipulation to which Alsager refers was that “the issue of whether Dr.
Alsager has completed the pain management course is disputed.” AR at 1446. Both parties
agreed not to provide evidence regarding the pain management course and Alsager’s alleged
participation in it.
Sanction finding 1.10 makes no reference to the pain management course at all, and
therefore evidence of that course was unnecessary to support the finding. The finding required
only evidence that Alsager issued prescriptions for Schedule III controlled substances during the
time period described, despite the conditions imposed by the Board’s 2008 order. The
documentary evidence of the prescriptions obtained through the prescription monitoring program
and pharmacies therefore was sufficient to support the finding. From that evidence, a fair-
minded person would be persuaded that Alsager exhibited a disregard of the Board’s order.
Accordingly, we hold that sanction finding 1.10 was supported by substantial evidence.
2. Conclusions 2.7, 2.8, and 2.9
Alsager challenges the Board’s conclusions in paragraphs 2.7 through 2.9 of the Final
Order, arguing that the sanction of permanent license revocation was unauthorized and
inappropriate. We hold that the conclusions were properly supported by the findings of fact and
were not legally erroneous.
The Board’s selection of appropriate sanctions for unprofessional conduct is governed by
WAC 246-16-800, which is entitled “Sanctions – General Provisions.” Subsection 2 of that rule
states in pertinent part:
(a) The disciplining authority will select sanctions to protect the public and, if possible,
rehabilitate the license holder.
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(b) The disciplining authority may impose the full range of sanctions listed in RCW
18.130.160 for orders.
....
(ii) Permanent revocation may be imposed when the disciplining authority
finds the license holder can never be rehabilitated or can never regain the
ability to practice safely.
....
(c) The disciplining authority may deviate from the sanction schedules in these rules if
the schedule does not adequately address the facts in a case. The disciplining authority
will acknowledge the deviation and state its reasons for deviating from the sanction
schedules in the order or stipulation to informal disposition.
(d) If the unprofessional conduct is not described in a schedule, the disciplining
authority will use its judgment to determine appropriate sanctions. The disciplining
authority will state in the order or stipulation to informal disposition that no
sanction schedule applies.
WAC 246-16-800(2).
This provision generally governs sanctions, whether or not in a sanction schedule. In
turn, RCW 18.130.160 also discusses sanctions both under and apart from the sanction schedule,
stating that “[t]he disciplining authority may order permanent revocation of a license if it finds
that the license holder can never be rehabilitated or can never regain the ability to practice with
reasonable skill and safety.” This requirement therefore applies to sanctions outside of a
sanction schedule. In fact, if it did not so apply, it would be robbed of most effect; since
violation of a disciplinary order constitutes sanctionable unprofessional conduct under RCW
18.130.180(9), but is not described on any of the sanctioning schedules. See WAC 246-16-810 -
860. Therefore, to impose the sanctions it did against Alsager, the Board was required to use its
judgment to determine whether Alsager can ever be rehabilitated or can ever regain the ability to
practice safely.
The Board’s conclusions at issue read in relevant part:
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2.7 . . .In determining appropriate sanctions, public safety must be
considered before the rehabilitation of the Respondent. The conduct in this case is
not described in a sanctioning schedule in chapter 246-16 WAC. Thus, the panel
uses its judgment to determine sanctions. The Panel considered the violation of the
2008 Final Order . . . to be the primary violation requiring protection of the public.
In making its sanctioning decision, the Panel considered the pattern of the
Respondent’s egregious violation of the 2008 Final Order in particular. The Panel
concludes the Respondent cannot be rehabilitated. The Board Panel did not reach
this decision lightly and considered whether there was any lesser sanction that
would protect the public in this case.
2.8 . . . The Board previously determined in the 2008 Final Order that the
restrictions on prescribing and retraining placed on Respondent by [the earlier]
Orders were necessary to protect the public and to rehabilitate the Respondent, yet
the Respondent began to violate the 2008 Final Order even during the original
period of summary restriction. The Panel concludes that retraining, restriction, and
oversight have failed to rehabilitate the Respondent’s conduct and that there is no
lesser sanction than permanent revocation that can adequately protect the public,
given the Respondent’s repeated unwillingness to comply with the Boards’ [sic]
Orders.
2.9 The aggravating factors supporting the permanent revocation include
the violation of the 2008 Final Order, the length of time the Respondent was
violating the 2008 Final Order, the number of violations of the 2008 Final Order,
and the seriousness of the underlying standard of care violations for which these
sanctions were imposed. There were no mitigating factors considered.
AR 1713-15 (internal citations omitted).
Alsager argues that
in order to impose the ultimate sanction of professional license revocation with
absolutely no opportunity ever for reinstatement, it is mandatory that the Board
make and enter specific findings of fact as to reasons and rationale that Dr. Alsager
can never be rehabilitated or never regain the ability to practice safely.
Br. of Appellant at 48. In fact, WAC 246-18-800 does not include any such requirement
regarding the Board’s “reasons and rationale,” although, as noted, it does require that the Board
find that the license holder can never be rehabilitated or can never regain the ability to practice
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No. 47367-4-II (Cons. w/
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safely before permanently revoking a license. The challenged conclusions set out above
effectively make these findings and can be considered as such even though labeled as
conclusions of law. State v. Federov, 183 Wash. App. 736, 744, 335 P.3d 971 (2014). The same
conclusions also describe the Board’s reasoning in detail. More importantly, those conclusions
are supported by findings of fact describing the conditions imposed by the 2008 Final Order and
numerous prescriptions Alsager wrote in violation of those conditions.
Alsager also argues that the Board erred by considering aggravating factors without
considering any mitigating factors. WAC 246-16-800(3) requires the Board to consider both
aggravating and mitigating factors when imposing sanctions according to the sanctioning
schedules. However, as noted above, violation of a disciplinary order is not covered by any of
those sanctioning schedules, and therefore under WAC 246-16-800(2)(d) the Board was charged
with “us[ing] its judgment to determine appropriate sanctions.” Because the evidence showed,
and the Board found, a lengthy and continual pattern of violation of the 2008 order, it did not err
by not considering mitigating factors.
V. DISQUALIFICATION OF BOARD MEMBER FROM PANEL
Alsager appeals the denial of his motion to disqualify one of the members of the Board
panel that judged his case on the basis of a personal business interest in the revocation of
Alsager’s license. We hold that Alsager failed to show that the panel member held any bias or
conflicting professional interest and that the Board did not abuse its discretion in denying the
motion to disqualify.
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Under the appearance of fairness doctrine, a decision-maker in a quasi-judicial
proceeding is disqualified and must recuse if a party shows that he or she has “‘apparent conflicts
of interest creating an appearance of unfairness or partiality.’” In re Disciplinary Proceeding
Against Petersen, 180 Wash. 2d 768, 785, 329 P.3d 853 (2014) (quoting City of Hoquiam v. Pub.
Emp’t Relations Comm’n, 97 Wash. 2d 481, 488, 646 P.2d 129 (1982)). Barring a “clear and
nondiscretionary duty to recuse,” we review for an abuse of discretion a decision-maker’s denial
of a motion to recuse. Faghih v. Washington State Dep’t of Health, Dental Quality Assurance
Comm’n, 148 Wash. App. 836, 843, 202 P.3d 962 (2009). We presume that the Board members
acted and performed their duties properly. City of Hoquiam, 97 Wash. 2d at 489.
Alsager claims that one of the Board members should have been disqualified because she
practiced osteopathic medicine in the Maple Valley area, where Alsager also practiced, and
therefore stood to potentially gain a competitive advantage from revocation of his license.
Recusal is necessary if a panel member has a “substantial pecuniary interest” in the outcome of
the case. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).
However, the only evidence Alsager provided was a newspaper article showing that the panel
member was the medical director of a medical center in Maple Valley. This evidence, without
more, shows at best a highly attenuated pecuniary interest in removing Alsager from practice. It
shows neither that the member was a direct competitor nor that she stood to gain business; it
shows only that she worked in geographic proximity to Alsager. It establishes no apparent bias
or conflict of interest and is insufficient to overcome the presumption that the panel acted
appropriately. The Board did not abuse its discretion by denying Alsager’s motion for recusal.
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VI. AUTHENTICATION OF PRESCRIPTION RECORDS
Alsager argues that the Board erred by admitting records from the prescription
monitoring program because those records were not properly authenticated. We hold that any
such error was harmless.
Under the APA, “[e]vidence, including hearsay evidence, is admissible if in the judgment
of the presiding officer it is the kind of evidence on which reasonably prudent persons are
accustomed to rely in the conduct of their affairs.” RCW 34.05.452(1). Under the procedural
regulations applicable to Board proceedings,
(5) [f]ollowing the final prehearing conference, the presiding officer shall issue a
written prehearing order which will:
....
(c) Identify those documents and exhibits that will be admitted at hearing and those
which may be distributed prior to hearing;
....
(e) Rule on motions.
WAC 246-11-390(5). At the hearing, “[t]he presiding officer shall rule on objections to the
admissibility of evidence pursuant to RCW 34.05.452 unless those objections have been
addressed in the prehearing order.” WAC 246-11-490(1). Administrative decision-makers have
“considerable discretion” when ruling on evidentiary matters, and we review those rulings for an
abuse of discretion. Univ. of Wash. Med. Ctr. v. Wash. State Dep’t of Health, 164 Wash. 2d 95,
104, 187 P.3d 243 (2008).
Alsager made a prehearing motion to exclude the prescription records, challenging their
authentication among other matters. In prehearing orders, the Board denied the motion and
declined to reconsider it, but did not expressly address the authentication argument. At the
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No. 47367-4-II (Cons. w/
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hearing, Alsager again argued that the records were not properly authenticated, but the presiding
officer ruled that the evidence was admitted pursuant to the prehearing orders.
Even if the presiding officer erred by failing to address whether the records were
adequately authenticated, any such error was harmless. “An erroneous evidentiary ruling is not
grounds for reversal absent prejudicial error.” Cook v. Tarbert Logging, Inc., 190 Wash. App. 448,
474, 360 P.3d 855 (2015), review denied, 185 Wash. 2d 1014 (2016). The investigator testified that
the prescription records were customarily used by the Department, monitored under the
prescription monitoring program, connected to Alsager’s registration with the federal Drug
Enforcement Agency, and signed with a signature the investigator recognized as Alsager’s.
Thus, the testimony at the hearing established that the records are the kind of evidence on which
reasonably prudent persons are accustomed to rely in the conduct of their affairs. Given this
uncontested evidence, the records were adequately authenticated and properly admitted by the
Board.
We affirm the Board’s permanent revocation of Alsager’s license to practice medicine.
BJORGEN, C.J.
We concur:
WORSWICK, J.
LEE, J.
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