Appendix — Washington State Department of Health v. Ongom, 127 S. Ct. 2115 (2007) (No. 06-1274)

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Supreme Court, US.

adie c’Lteg

o/ 06127 Mae 14 2007 |

NO. OFFICE OF THE CLERK

IN THE SUPREME CouRT OF

THE UNITED STATES

WASHINGTON STATE DEPARTMENT OF HEALTH,

Petitioner,

Vv.

ALICE ONGOM,

Respondent.

ON PETITION For A WRIT OF CERTIORARI

To THE SUPREME COURT OF WASHINGTON

APPENDIX

Robert M. McKenna

Attorney General

Maureen A. Hart

Solicitor General

William Berggren Collins*

Deputy Solicitor General

*Counsel of Record

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

Counsel For Petitioner

TABLE OF CONTENTS

Ongom v. Department of Health

159 Wash. 2d 132, 148 P.3d 1029 (2006)..........

Ongom v. Department of Health

124 Wash. App. 935, 104 P.3d 29 (2005)..........

Findings Of Fact, Conclusions Of Law,

Judgment And Order dated 7-10-08 ......................

Order Denying Respondent’s Petition For

Reconsideration dated 10-18-02...................002.02.0-

Findings Of Fact, Conclusions Of Law And

Peas COR FI soo oc vcd occkcccncncincsdtetincpcccustares

Wein: COE NG. TN ik icscesbntese eee

REVISED CODE OF WASHINGTON (RCW)

All Washington statutes are 2006, unless otherwise noted.

Chapter 18.88A

Nursing Assistants

RCW 18.88A.010 Legislative declaration ...........

RCW 18.88A.020 Definittons.......0...000..00...00...200e

RCW 18.88A.030 - Scope of practice —

Voluntary certification —

RCW 18.88A.040 Registration and

CITI siciedecoscectstvesacdnns

RCW 18.88A.050 Powers of secretary.................

RCW 18.88A.060 Commission — Powers............

RCW 18.88A.080 Registration requirements .....

RCW 18.88A.085 Certification of requirements....90

RCW 18.88A.090 Examinations.........................000. 90

RCW 18.88A.110 Certificates for applicants

credentialed in another state....91

RCW 18.88A.120 Applications for registration

and certification — Fee ............. 92

RCW 18.88A.130 Renewal of registration or

IN cs cnc tnckoenenvesevesuiees 92

RCW 18.88A.150 Application of uniform

GRBCIPTATIOTY BCE .ce.ccesecscressesesesees 92

RCW 18.88A.200 Delegation of nursing care

tasks — Legislative finding ...... 93

RCW 18.88A.210 Delegation — Generally............ 93

RCW 18.88A.230 Delegation — Liability —

Reprisal or disciplinary

EES 94

Chapter 18.130

Regulation Of Health Professionals

Uniform Disciplinary Act

I ON a concccnvecesvveenscocesenceves 95

MWe BG.8G0.02Z0 Detimitions ...................c.cccccceseees 96

RCW 18.130.040 Application to certain

professions — Authority of

secretary — Grant or denial

of licenses — Procedural

Tee ie i cnenweite 97

RCW 18.130.050 Authority of disciplining

ne. Mee eenneD 102

RCW 18.130.080 Unprofessional conduct —

Complaint — Investigation

‘~~ Immunity of complainant...104

RCW 18.130.090

RCW 18.130.095

RCW 18.130.100

RCW 18.130.110

RCW 18.130.120

RCW 18.130.130

RCW 18.130.150

RCW 18.130.160

RCW 18.130.170

RCW 18.130.172

RCW 18.130.180

RCW 18.130.185

Statement of charge —

Request for hearing (2004)..... 106

Uniform procedural rules

i iinkscciderniniidaijelarmckepadaien 107

Hearings — Adjudicative

proceedings under chapter

34.05 RCW (2004)................... 110

Findings of fact — Order —

Report (2004) .......cceccseeseceeeeeeee 110

Actions against license —

IE iho isiicintainsstadntiincgeiels 111

Orders — When effective —

I cic iia sis cacgichainiigiiiiaseien 112

EIST T AT 112

Finding of unprofessional

conduct — Orders —

Sanctions — Stay — Costs

— Stipulations ........................ 113

Capacity of license holder to

practice — Hearing —

Mental or physical

examination — Implied

I Gace hei nota 115

Evidence summary and

I ice sicceccetuiensazicns 120

Unprofessional conduct .......... 122

Injunctive relief for

violations of RCW

18.130.170 or 18.130.180........ 126

RCW 18.130.190 Practice without license —

Investigation of complaints

— Cease and desist orders

— Injunctions — Penalties .....

Chapter 34.05

Administrative Procedure Act

Adjudicative Proceedings

RCW 34.05.449 Procedure at hearing...............

RCW 34.05.452 Rule of evidence — Cross

a ER RE ee aT

RCW 34.05.455 Ex parte communications........

RCW 34.05.458 Separation of functions ...........

RCW 34.05.461

Entry of orders..................c..s0000

RCW 34.05.464 Review of initial orders ...........

RCW 34.05.467 NN cic cinsicicnibceiahceiieielcsicigndooesas

RCW 34.05.470 _—_ Reconsideration.....................++

RCW 34.05.473 Effectiveness of orders.............

RCW 34.05.476 Agency record .................::.::00+

RCW 34.05.479 Emergency adjudicative

III inci iciscnsicctucoinctinnaies

Judicial Review

RCW 34.05.510 Relationship between this

chapter and other judicial

review authority ................02.0.-

RCW 34.05.514 Petition for review — Where

RCW 34.05.526 Appellate review by supreme

court or court of appeals..........

BCW 34.05.5390 Staining. nen cecccncccccccccosseceecneres

RCW 34.05.542 ‘Time for filing petition for

WO ok ice tas apeudededecessonn 148

RCW 34.05.546 Petition for review —

ORE See DS LIE SOON EOD NOs 149

RCW 34.05.550 Stay and other temporary

WG iii, bs ccicdeeicssescbbsweioun’ 150

RCW 34.05.554 Limitation on new issues ....... 151

RCW 34.05.558 Judicial review of facts

confined to record ................. 152

RCW 34.05.570 POA COWIE hoi aiiiiciiciccis 152

WASHINGTON ADMINISTRATIVE CODE

(WAC)

All Washington codes are 2006, unless otherwise noted.

Chapter 246-10

Adjudicative Proceedings

WAC 246-10-101 Application of chapter....... 155

WAC 246-10-102 SAD vn stisiceikcncthccccvesin 156

WAC 246-10-104 - Appearance of parties ....... 159

WAC 246-10-107(2) Persons who may request

adjudicative proceedings... 160

WAC 246-10-108(1)(a) Representation .................. 160

WAC 246-10-117 Official notice and agency

IE ihosithidcrnscniindiciiseie 161

WAC 246-110-121 Notice to limited-English-

speaking parties................ 161

WAC 246-10-122 SCIRIOEOTE fovice i sicocesevaicesss 161

WAC 246-10-123 CR iis cticdisonaen 163

WAC 246-10-201

WAC 246-10-202

WAC 246-10-203

WAC 246-10-402

WAC 246-10-403

WAC 246-10-405

WAC 246-10-602

WAC 246-10-603

WAC 246-10-605

WAC 246-10-606

WAC 246-10-701

WAC 246-10-702

WAC 246-10-704

WAC 246-10-706 |

Form and content of

initiating documents ..... —

Amendment of initiating

I sini i iccedeineieicsntininssrsin 167

Request for adjudicative

DOING vivcsrcscscivciononwens 168

RIOT ge cicciticescsiciansiontisnntenive 172

BNI ci i alk cnciphateiconictien 178

Protective orders ................ 182

Conduct of adjudicative

III Ss ccscckacncdboganenin 182

TID oi ititciccostncnctmensectectes 184

Issuance of final order........ 185

Standard of proof................ 185

Appeal from initial order ...186

EGE CRGIE rn cccciccceseecsvsecers 187

Reconsideration of final

NE i 188

Judicial review ..................- 189

Chapter 246-841

Nursing Assistants

WAC 246-841-990

Nursing assistant — Fees

and renewal cycle............... 190

APPENDIX

Washington Supreme Court, En Banc

Alice ONGOM, Petitioner,

¥.

STATE of Washington, DEPARTMENT OF

HEALTH, OFFICE OF PROFESSIONAL

STANDARDS, Respondent.

No. 76618-5.

Dec. 14, 2006.

Sanders, J.

4/1 By a mere preponderance of the evidence in

an administrative hearing, Alice Ongom’s nursing

assistant’s registration was suspended for alleged

abuse of a patient. Ongom appealed to the Superior

Court which affirmed, as did the Court of Appeals.

Ongom v. Dep't of Health, 124 Wash. App. 935, 104

P.3d 29 (2005). We granted review and reverse,

holding due process requires clear, cogent, and

convincing proof.

FACTS

{2 Fleeing Africa as a refugee, Alice Ongom

escaped to the United States with her family making

her new home in Washington. The State then

registered her to practice as a nursing assistant in

July 2000. By February 2001 Ms. Ongom was

employed in that capacity at the Woodmark

Retirement Home in Federal Way.

43 On the evening of February 22, 2001, an

incident transpired between Ms. Ongom and an

Alzheimer’s resident. As a result the nursing

assistant program of the Department of Health

issued a statement of charges against Ms. Ongom,

alleging that she engaged in unprofessional conduct

in violation of RCW 18.130.180(24). She was also

criminally charged with fourth degree assault.!

44 Thereafter, on April 4, 2002, the

Department conducted an administrative hearing to

consider allegations of unprofessional conduct. Three

witnesses. testified: coworker Rebecca Bristlin;

Woodmark program director Jocelyn Umagat, LPN;

and respondent Ongom. The State was represented

by the attorney general; however, Ms. Ongom, who

speaks English only as her second language,

represented herself pro se. Besides considering the

testimony of these three witnesses, the health law

judge also considered various documents including a

prior written statement by Ms. Ongom and an

affidavit of Franciska Chmielewski, another

coworker who witnessed the incident. Chmielewski

was unable to attend the hearing but generally

supported Ms. Ongom’s version of the events. As

acknowledged by the hearing officer, the evidence

was in serious conflict.

{5 Bristlin claimed she observed respondent

Ongom pick up a cup or dish from the floor and

throw it at an Alzheimer’s resident, slap the resident

on the hands several times, and kick her on the left

ankle or lower leg. However, Ms. Bristlin admitted

she did not report the incident to management until

the following day, contrary to a policy which required

immediate reporting of such events.

! The court ultimately dismissed the assault charge sua

sponte.

{6 Respondent Ongom testified that this

particular resident had been aggressively violent

toward her since the very first day of -her

employment and that she had frequently accosted

her with racist remarks on various occasions,

including the evening in question.2 Nonetheless

respondent testified that she held no ill will toward

- the resident as she understood the resident to be sick

and not responsible for her actions. Respondent

testified that the resident threw silverware and/or

dishes at her that evening and that she (Ongom)

suffered an injury to her shoulder as a result of being

hit by a dish thrown by the resident. Ms. Ongom

denied ever picking up the dish although she

testified that she did take a plate from the resident

to prevent further injury to herself or others,

receiving no help from other caregivers in the room.

7 Ms. Chmielewski supported Ongom’s

version of the events, stating under oath that she

saw the resident throw a glass, that she did not see

Ms. Ongom throw anything at the resident, and that

the resident “was well-known to staff for her

aggressive behavior toward both staff and other

residents. She sometimes kicked [ ] staff, and I have

learned she assaulted another resident.” Clerk's

Papers (CP) at 173.

{8 Finding that the program proved its case

by no more than a mere preponderance, the hearing

officer concluded the State had not proved its case by

clear and convincing evidence. He found:

2 “You black bastard, why don’t you leave me alone; all

my properties have been stolen by black people.” Clerk’s Papers

at 88 (Statement of Alice Ongom).

The Presiding Officer concludes the

Program did not prove its case by clear

and convincing evidence. The Presiding

Officer concludes this is so because

there are conflicting witness statements

whether the Respondent touched

Resident A or threw anything at

Resident A. Additionally, there was a

period of time between the time the

incident in question, and when Resident

A’s injury was diagnosed or assessed.

Finally, the[re] was evidence to show

that Resident A was combative and

known to kick out on her own. While the

evidence provided by the Program is of

the type that “reasonably prudent

persons are accustomed to rely upon in

the conduct of their affairs,” (see WAC

246-10-606), it is not of the type that is

“highly probable” (see State Farm Fire

& Cas. Co. v. Huynh, 92 Wash. App.

454, 962 P.2d 854 (1998)), following a

review and consideration of all of the

evidence in the record.

CP at 112 (Findings of Fact, Conclusions of Law and

Final Order). Nevertheless, the presiding officer

suspended Ongom’s license because WAC 246-10-606

requires only proof by a preponderance of the

evidence and WAC 246-10--602(3)(c) provides, “The

presiding officer shall: ... (c) [nJot declare any statute

or rule invalid.”

49 After concluding a preponderance of the

evidence supported the charge of unprofessional

conduct and further concluding the violation was

“moderate in nature,” CP at 111, the presiding officer

suspended Ms. Ongom’s license for 24 months. The

presiding officer also ordered her to complete the

Healthcare Integrity and Protection Data Bank

Reporting Form (section 1128E of the Social Security

Act, 42 U.S.C. § 1320a-7e), id., and promptly return

the form to the Nursing Assistant Program, thereby

establishing a permanent public record of the

disciplinary measure.

410 The nursing home fired Ongom

immediately after the incident in question. Ongom

testified that “since that time I did go to school, I’ve

been suffering without job, I can’t get a job. I got one

one [sic] place and I work for a day and then they

stop me.” CP at 242 (hearing transcript, docket no.

01-07-B-1031 NA (4/4/02)). “And the job I don’t get, I

came here as a refugee and I am being put this kind

of thing, it really made me very, feel very bad.” Id.

ANALYSIS

411 We review this administrative decision

pursuant to the Administrative Procedure Act,

chapter 34.05 RCW, and apply the “error of law”

standard of RCW 34.05.570(3)(d) to the agency’s

legal conclusions. Haley v. Med. Disciplinary Bd.,

117 Wash. 2d 720, 728, 818 P.2d 1062 (1991).

412 We must determine whether proof by a

preponderance of the evidence in a _ professional

license disciplinary proceeding satisfies due process.

For the reasons expressed in Bang Nguyen v.

Department of Health, 144 Wash. 2d 516, 29 P.3d 689

(2001),3 we conclude that due process requires clear

and convincing proof. Accord Miss. State Bd. of

Nursing v. Wilson, 624 So. 2d 485, 493 (Miss. 1993)

(“The standard of proof required for a decision of the

Board of Nursing in cases involving fraud or conduct

deemed quasi-criminal in nature is clear and

convincing evidence.”); Hogan v. Miss. Bd. of

Nursing, 457 So. 2d 931, 934 (Miss. 1984).

Accordingly, we reverse and dismiss.

3 The dissent suggests we overrule Nguyen and adopt a

preponderance of the evidence standard for all professional

disciplinary proceedings. As a rule, we decide only issues

properly raised by the parties in the petition for review or

answer. See RAP 13.7(b) (“If the Supreme Court accepts review

of a Court of Appeals decision, the Supreme Court will review

only the questions raised in the motion for discretionary

review....”); RAP 13.4(d) (“If the party wants to seek review of

any issue which is not raised in the petition for review, that

party must raise that new issue in an answer.”). In the event

we raise an issue sua sponte, we generally request additional

briefing from the parties. RAP 12.1(b). And see, e.g., State v.

Aho, 137 Wash. 2d 736, 741, 975 P.2d 512 (1999). The State

failed to argue we overrule Nguyen in its answer to the petition

for review, but first raised the issue in an _ unsolicited

supplemental brief. This is a wholly adequate and sufficent

ground to deny review. See In re Custody of Brown, 153 Wash.

2d 646, 651, 105 P.3d 991 (2005); State v. Collins, 121 Wash. 2d

168, 179, 847 P.2d 919 (1993); Clam Shacks of Am., Inc. v.

Skagit County, 109 Wash. 2d 91, 98, 743 P.2d 265 (1987)

(declining to review issue because raised only in supplemental

brief). Furthermore, the issue “is precluded under RAP 2.5(a) as

one raised for the first time on appeal” as the state “has not

established its entitlement to an exception under the rule.”

Hoflin v. Ocean Shores, 121 Wash. 2d 113, 130-31, 847 P.2d 428

(1993) (footnote omitted). Because “the ends of justice” do not

demand waiver or alteration of our rules of appellate procedure,

RAP 1.2(c), reconsideration of Nguyén is inappropriate.

413 As stated, the identical issue was resolved

in our recent Nguyen decision.4 Dr. Nguyen was

disciplined under the same statute (RCW 18.130.180)

as was Ms. Ongom. As is always the case, there are

certain factual and technical differences between the

proceedings; however, we conclude the differences do

not constitute a distinction justifying disparate

treatment for Ms. Ongom under the generalized

considerations set forth in Mathews v. Eldridge, 424

U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976).5

4114 We noted in Nguyen that “[a] professional

disciplinary proceeding subjects a medical doctor to

grave concerns which include the potential loss of

patients, diminished reputation, and professional

dishonor.” Nguyen, 144 Wash. 2d at 521, 29 P.3d 689.

Although undoubtedly a medical license is much

more difficult to obtain than a registration to

practice as a nursing assistant, each constitutes a

4 The dissent does not argue Nguyen can be

distinguished.

5 More precisely, our prior decisions indicate

that identification of the specific dictates of due

process generally requires consideration of three

distinct factors: First, the private interest that

will be affected by the official action; second, the

risk of an erroneous deprivation of such interest

through the procedures used, and the probable

value, if any, of additional or substitute

procedural safeguards; and finally, the

Government's interest, including the function

involved and the fiscal and administrative

burdens that the additional or substitute

procedural require-ment would entail.

Mathews, 424 U.S. at 334-35, 96 S. Ct. 893.

lawful entitlement to practice one’s chosen

profession. We cannot say Ms. Ongom’s interest in

earning a living as a nursing assistant is any less

valuable to her than Dr. Nguyen’s interest in

pursuing his career as a medical doctor. See Nims v.

Bd. of Prof Eng’rs & Land Surveyors, 113 Wash.

App. 499, 505, 53 P.3d 52 (2002) (“[T]he time and

money spent on training has so little bearing on

disciplinary proceedings that it cannot, by itself,

justify a higher or lower burden of persuasion.”). We

reject the Court of Appeals conclusion that “the

property interest in a nursing assistant’s license,

while not insignificant, is considerably more limited

than the property interest in a license to practice

medicine.” Ongom, 124 Wash. App. at 944, 104 P.3d

29. The licenses may be different, but nurses and

medical doctors have an identical property interest

in licenses that authorize them to practice their

respective professions.

415 We also recognized Dr. Nguyen has a

liberty interest in his license to preserve his

professional reputation. Nguyen, 144 Wash. 2d at

527, 29 P.3d 689. So too does Ms. Ongom. True,

Ms. Ongom’s employment is probably much less

financially rewarding than that of a medical doctor,

but it is nevertheless all she has, and she is at least

equally dependent upon her professional reputation

for employment. Here a notice of her discipline for

allegedly abusing a patient was posted in a national

by all the public as well as future prospective

employers. There is no reasen to believe that the

damage to her professional reputation in the context

of her life to be any less damaging than

Dr. Nguyen’s. We therefore disagree with the

comment of the Court of Appeals that “[a] nursing

assistant who loses her license may suffer some

slight damage to her reputation, but any such

damage does not approach the significant stigma

attached to loss of the right to practice medicine.”

Ongom, 124 Wash. App. at 944, 104 P.3d 29. To the

contrary, loss of reputation to one marginally

qualified for a modest occupation is potentially more

damaging than the loss of reputation for a highly

qualified medical specialist, such as Dr. Nguyen, who

may have many more alternate career opportunities.

In either case, professional discipline is stigmatizing.

It is more than mere money and is thus entitled to a

higher standard of proof. Nguyen, 144 Wash. 2d at

524-25, 29 P.3d 689; Addington v. Texas, 441 U.S.

418, 424, 99S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

416 The Court of Appeals also attempted to

distinguish Nguyen by claiming “Ongom’s license

was suspended for only 24 months, whereas Bang

Nguyen’s license was indefinitely revoked and he

was prohibited from seeking from relicensure for five

years.” Ongom, 124 Wash. App. at 945-46, 104 P.3d

29. We do not believe, however, that the

6 The dissent cites Steadman v. Securities & Exchange

Commission, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed. 2d 69 (1981)

for the proposition that “upholding the preponderance standard

in a disciplinary proceeding against a stockbroker” sheds light

on the constitutional burden of proof standard set forth .in

Addington. Dissent at ----. To the contrary, Steadman was

decided on statutory grounds wherein “[p]etitioner makes no

claim that the Federal Constitution requires application of a

clear-and-convincing-evidence standard.” Steadman, 450 U:S.

at 97 n.15, 101 S. Ct, 999.

constitutional standard of proof in a proceeding can

be determined only after its outcome is known.

“(T]he burden of persuasion should not vary

according to the nature of the charges in the

particular case.” Nims, 113 Wash. App. at 505, 53

P.3d 52. For example in this proceeding the State

had urged the presiding officer to suspend

Ms. Ongom’s license not for 2 years but 10. The

burden of proof does not differ based on result of a

particular proceeding or the nature of the charges.

417 Further, the Court of Appeals claims the

risk of error in Nguyen’s proceeding before a

commission which applied a somewhat subjective

criteria was greater than the risk of error in the

instant proceeding conducted under the

Administrative Procedure Act where “objective facts”

are at issue. The Court of Appeals suggests, “[t]he

use of an objective standard lessens the need for a

more stringent standard of proof.” Ongom, 124 Wash.

App. at 947, 104 P.3d 29.

4118 While there are certainly some differences

in the facts and procedures at issue, we think the

facts of this case, as found by the hearing officer,

illustrate these differences do not justify a

distinction in the eyes of the law and that the

potential risk of error is not appreciably different.

Here, the presiding officer explained his inability to

determine the facts by clear and convincing evidence

where two versions of diametrically opposed

testimony were presented. Under the Administrative

Procedure Act judicial review defers to the factual

findings of the administrative hearing officer and, as

was the case with Dr. Nguyen, provides no greater

assurance against error. ,

419 Finally the Court of Appeals attempts to

distinguish Nguyen based upon the nature of the

governmental interest, claiming that the inquiry is

not about the additional fiscal burden, if any, on the

State to employ a higher burden of proof but rather

the ultimate governmental interest which justifies

the licensing scheme in the first place. We rejected a

similar argument in Nguyen:

The last factor called to our attention by

Mathews is “the Government’s interest,

including the function involved and the

fiscal and administrative burdens that

the additional or substitute procedural

requirement would entail.” Mathews,

424 US. at 335 [96 S. Ct. 893]. As one

can quickly discern from a_ simple

reading of the text, this requirement

relates to practical and financial

burdens to be imposed upon _ the

government were it to adopt a possible

- substitute procedure for the one

currently employed. As the Supreme

Judicial Court of Massachusetts

phrased it, the last factor examines “the

government's imterest in the efficient

and economic administration of its

affairs.” Thompson v. Commonwealth,

386 Mass. 811, 438 N.E.2d 33, 37

(1982). This requirement does not relate

to the interest which the government

attempts to vindicate through the

procedure itself.

Nguyen, 144 Wash. 2d at 532, 29 P.3d 689.

420 Unlike the court in Mathews, we cannot

say the “additional cost in terms of money and

administrative burden” would be substantial were a

higher burden of proof required. As we pointed out in

Nguyen, “/aJn increased burden of proof would not

have the slightest fiscal impact upon the state, as it

would not appreciably change the nature of the

hearing per se.” Nguyen, 144 Wash. 2d at 532, 29

P.3d 689. The same is true here.

21 Even if the interest to be considered was,

as the Court of Appeals put it, that “interest in

protecting the public from incompetent or abusive

nursing assistants,” Ongom, 124 Wash. App. at 948,

104 P.3d 29, we cannot see how that interest is any

greater than the State’s interest to protect the public

from incompetent or abusive medical doctors-who are

subject to discipline under the same statute-or, for

that matter, the criminal law which requires proof

beyond a reasonable doubt. As the Court of Appeals

observed in Nims, it makes no sense to say that

doctors who present the “greater risk [ ] should

receive the benefits of a higher ... burden of

persuasion” to prompt discipline than a lower-risk

vocation. 113 Wash. App. at 505, 53 P.3d 52.

422 More fundamentally as we noted in

Nguyen, the ultimate government interest is best

furthered by medical disciplinary proceedings which

reach an accurate and reliable result. Cf. Addington

vu. Texas, 441 U.S. 418, 426, 99 §. Ct. 1804, 60 L. Ed.

2d 323 (1979) (“Since the preponderance standard

creates the risk of increasing the number of

individuals erroneously, committed, it is at least

7? Mathews, 424 U-S: at 347, 96 S. Ct. 893.

ee Lees Pg

unclear to what extent, if any, the state’s interests

are furthered by using a preponderance standard in

such commitment proceedings.”); Santosky v.

Kramer, 455 U.S. 745, 766-68, 102 S. Ct. 1388, 71

L. Ed. 2d 599 (1982) (a standard of proof more strict

than preponderance of the evidence is consistent

with promoting the State’s interest in a parental

rights termination proceeding). Accuracy in

disciplinary proceedings involving those registered to

practice as nursing assistants is not less important

than those involving medical doctors.

CONCLUSION

#23 In sum, this case is on all fours with

Nguyen: The minimum constitutional standard of

proof in a professional disciplinary hearing is clear

and convincing evidence. WAC 246-10-606 is invalid

because it requires only a_ preponderance.

Accordingly we reverse the Court of Appeals, dismiss

the statement of charges, and direct that Ms. Ongom

recover her statutory costs at trial and on appeal.

8 We, however, deny Ms. Ongom’s request for

reasonable attorney fees under Washington’s equal access to

justice act, RCW 4.84.350(1), because we find the agency action

was substantially justified in light of inconsistent decisions

from the Court of Appeals: compare Nims, 113 Wash. App. 499,

53 P.3d 52 with Eidson v. Department of Licensing, 108 Wash.

App. 712, 32 P.3d 1039 (2001).

Gerry L. Alexander, C.J., Tom Chambers, Charles W.

Johnson, and James M. Johnson, JJ. (concurring).

924 Alexander, C.J. (concurring) While I

recognize that courts in other jurisdictions might

reach a different conclusion than that which we

reach here, I am in accord with the majority’s

determination that this court’s decision in Bang

Nguyen v. Department of Health, 144 Wash. 2d 516,

29 P.3d 689 (2001), is controlling precedent in this

state. Consequently, I agree that allegations of

professional misconduct mandated under

RCW 18.130.180 must be proved by clear and

convincing evidence. I write separately only to

express my disagreement with two aspects of Justice

Madsen’s concurrence in dissent.

425 First, I do not believe that it is

appropriate for this court to reach an issue that was

not asserted by the department of health, to wit:

whether there is sufficient evidence on the record to

satisfy the higher clear and convincing standard. See

concurrence in dissent at ----. As Justice Madsen

acknowledges, during the entire course of the

proceedings herein, the department has maintained

only that due process and the nature of the interests

at stake here required no greater standard of proof

than the preponderance of the evidence standard and

that the evidence was sufficient to meet that burden.

Id. Because the issue of whether the State proved its

case by clear and convincing evidence was not raised,

we should not address it.

426 Even if we were to address the issue, I

disagree with Justice Madsen’s conclusion that the

department of health proved by clear and convincing

evidence that Alice Ongom abused one of her

patients. See concurrence in dissent at ---- - ---- . As

the majority correctly observes, the hearing

examiner determined, after considering -all the

evidence before him, that the department did “not

prove[ } its case by clear and convincing evidence.”

Majority at ----. In absence of substantial evidence to

the contrary in this record and in light of the directly

conflicting witness testimony about the events in

question,'! the appropriate course for this court to

take is to defer to the hearing examiner's legal

conclusion. We should not engage, as Justice Madsen

does, in a reweighing of the evidence. See, e.g., In re

Disciplinary Proceeding Against Huddleston, 137

Wash. 2d 560, 568, 974 P.2d 325 (1999) (a reviewing

court gives deference to an administrative decision

maker’s conclusions and to the weight accorded to

conflicting evidence, particularly when the credibility

and veracity of witnesses are at issue).

' To this end, there is substantial evidence on the record

to support the presiding judge’s determination that the

department did not prove by clear and convincing evidence that

Ongom’s conduct violated RCW 18.130.180(24) (abuse of a

client). The record shows that Ongom and Rebecca Bristlin

provided directly conflicting testimony and that Ongom’s, not

Bristlin’s, version of the event or events in question was

supported by a third member of the staff, Franciska

Chmielewski, who stated under oath that she did not see

Ongom throw anything at the resident or otherwise touch her.

WE CONCUR: Richard B. Sanders, and James M.

Johnson, JJ.

Owens, J. (dissenting).

127 The majority holds that’ the

constitutionally required standard of proof in all

medical disciplinary hearings is clear and convincing

evidence. Majority at ----. The majority relies on

Bang Nguyen v. Department of Health, 144 Wash. 2d

516, 29 P.3d 689 (2001), to invalidate WAC 246-10-

-606, the regulation establishing the preponderance

of evidence standard of proof for professional disciplhi-

nary hearings under the Uniform Disciplinary Act,

chapter 18.130 RCW. I dissent because Nguyen was

wrongly decided. I would overrule Nguyen and hold

that the constitutionally required standard of proof

in registered nursing assistant disciplinary proceed-

ings is preponderance of the evidence.! Accordingly,

1 The majority’s reliance on RAP 13.7(b) amounts to

judicial sleight of hand. With one hand, the majority cites

Nguyen to support its decision while, with the other, it avoids

revisiting Nguyen by asserting RAP 13.7(b). Majority at ---- n. 3.

In this case we were asked to decide whether WAC 246-10-

-606 provides adequate procedural due process. Pet. for Review

at 9. Since Nguyen appears to control this constitutional

question, we must necessarily confront the issue of whether

Nguyen was correctly decided. Accordingly, the State argued to

overrule Nguyen in its supplemental brief and at oral

argument. See Suppl. Br. of Resp’t at 14; Wash. State Supreme

Court oral argument, Ongom vu. State, No. 76618-5 (Nov. 17,

2005), audio recording by TVW, Washington State’s Public

Affairs Network, available at http://www.tvw.org. However,

instead of considering the merits of the State’s argument that

Nguyen was wrongly decided, the majority's reliance on Nguyen

strengthens a decision inconsistent with the due process

holdings of this court and the United States Supreme Court.

RAP 13.7 is not to be used as a shield to deflect substantive

PR oe ai SA 8S a. NES 8 RM a aie anna oan ae mearasmans

because there is substantial evidence in the record

supporting the superior court’s determination that

the State proved its case by a preponderance of the

evidence, I would affirm the suspension of Alice

Ongom’s registered nursing license.

ANALYSIS

428 The State must provide “due process of

law” whenever it deprives any person of “life, liberty,

or property.” U.S. Const. amend. XIV, § 1; Wash.

Const. art. I, § 3. Professional disciplinary

proceedings must satisfy due process requirenients.

Haley v. Med. Disciplinary Bd., 117 Wash. 2d 720,

732, 818 P.2d 1062 (1991) (citing In re Revocation of

License of Kindschi, 52 Wash. 2d 8, 11-12, 319 P.2d

824 (1958)). The Washington Constitution provides

no more procedural due process protections than

does the United States Constitution. See State v.

Manussier, 129 Wash. 2d 652, 679, 921 P.2d 473

(1996) (stating, “[t]he Gunwalll?) factors do not favor

an independent inquiry under article I, section 3 of

the state constitution”); see also City of Bremerton v.

attention from a wrongly decided case. See RAP 1.2(a); see also,

e.g., In re Pers. Restraint of Carlstad, 150 Wash. 2d 583, 597, 80

P.3d 587 (2003) (Sanders, J., dissenting) (“Together RAP 1.2(a),

RAP 1.2(c), and RAP 18.8(a) make clear that an appellate court

should liberally interpret the Rules of Appellate Procedure and

alter any provision included therein when necessary to promote

justice and to consider cases and issues on their merits.”); City

of Tacoma v. William Rogers Co., 148 Wash. 2d 169, 182 n.7, 60

P.3d 79 (2002) (Sanders, J., dissenting) (“[T]here is no bar to

this court considering issues not raised at trial when the

interests of justice so dictate.”) (citing RAP 1.2(c)).

2 State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808

(1986).

Widell, 146 Wash. 2d 561, 579, 51 P.3d 733 (2002)

(indicating the similarity between the state and

federal provisions). Thus, “ ‘federal decisions

regarding due process are afforded great weight.’ ”

Manussier, 129 Wash. 2d at 680, 921 P.2d 473

(quoting Rozner v. City of Bellevue, 116 Wash. 2d

342, 351, 804 P.2d 24 (1991)). Such precedent

requires this court to overrule Nguyen.

429 The Nguyen Decision is Incorrect and

Harmful. Under the doctrine of stare decisis, this

court will abandon a previously established rule only

upon “ ‘a clear showing that [the] rule is incorrect

and harmful.’ ” Riehl v. Foodmaker, Inc., 152 Wash.

2d 138, 147, 94 P.3d 930 (2004) (quoting Jn re Rights

to Waters of Stranger Creek, 77 Wash. 2d 649, 653,

466 P.2d 508 (1970)). The majority relies on Nguyen

to support its holding that the Constitution requires

“clear and convincing” standard of proof in all

professional disciplinary proceedings. Majority at ----.

However, in Nguyen, through erroneous application

of the balancing test articulated in Mathews v.

Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976),3 and through application of faulty logic, this

3 The “Mathews test” is as follows:

First, the private interest that will be affected

by the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value, if

any, of additional or substitute procedural

safeguards; and finally, the Government's

interest, including the function involved and the

fiscal and administrative burdens that the

additional or substitute procedural require-

ment would entail.

court imappropriately changed the emphasis of

procedural due process protections. Specifically, in

balancing the Mathews factors, the Nguyen majority

erroneously overemphasized the importance of

private interests and diluted the other Mathews

factors. This error is harmful because it

unnecessarily constrains the State’s ability to protect

the public from exposure to incompetent health care

workers.

1. The Nguyen majority misapplied Mathews.

130 In Mathews, the Court pinpointed three

factors used in “identif [ying] ... the specific dictates

of due process.” 424 U.S. at 335, 96 S. Ct. 893. The

third factor of the Mathews test is “the Government’s

interest, including the function involved and the

fiscal and administrative burdens that the additional

or substitute procedural requirement would entail.”

Id. (emphasis added) (citing Goldberg v. Kelly, 397

U.S. 254, 263-71, 90 S. Ct. 1011, 25 L. Ed. 2d 287

(1970)): The Nguyen majority held that this third

factor only “relates to practical and financial burdens

to be imposed upon the government were it to adopt

a possible substitute procedure” and “does not relate

to the interest which the government attempts to

vindicate through the procedure itself.” 144 Wash. 2d

at 532, 29 P.3d 689 (emphasis added). In other

words, the Nguyen majority limited the scope of the

424 US. at 335, 96 S. Ct. 893 (citing Goldberg v. Kelly, 397 US.

254, 263-71, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)). The Court

has used the Mathews test to determine the correct standard of

proof in administrative hearings. E.g., Santosky v. Kramer, 455

U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Addington v.

Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

third Mathews factor to administrative and

pecuniary concerns. Such a limitation is contrary to

the language used in Mathews, in which the Court

described the third factor as “the Government’s

interest, including the function involved.” 424 U.S.

at 335, 96 S. Ct. 893 (emphasis added).

431 The Nguyen majority's limitation of the

third factor of the Mathews test is also contrary to a

vast body of precedent. Time and time again, both

before and after Nguyen, this court, in applying the

third Mathews factor, has considered broader

governmental interests in addition to administrative

and pecuniary burdens. See, e.g., City of Bremerton v.

Hawkins, 155 Wash. 2d 107, 110, 117 P.3d 1132

(2005) (considering the governmental interest in

protecting the public from drivers who fail to comply

with state laws); Born v. Thompson, 154 Wash. 2d

749, 755-56, 117 P.3d 1098 (2005) (considering

the governmental interests of “prosecuting

misdemeanors” and “increasing public safety”); In re

Harris, 98 Wash. 2d 276, 286-87, 654 P.2d 109 (1982)

(considering the “State’s interest in nonemergency

detention of those who present a likelihood of danger

to themselves or others”); Ritter v. Bd. of Comm’s,

96 Wash. 2d 503, 511, 637 P.2d 940 (1981)

(considering the public interest in “insuring compe-

tent, careful medical attention at all times’).4 As a

4 This analysis is not unique to our state. The Ninth

Circuit Court of Appeals also considers the substantive

governmental interests when applying the Mathews test. See,

e.g. Walvers v. Reno, 145 F.3d 1032, 1043 (9th Cir.1998)

(comeidering the government’s interests in administering

immigration laws and in preventing document fraud); First

Nat? Bank & Trust v. Dep't of the Treasury, 63 F.3d 894, 896

(9th Cir. 1995) (considering the government's interest in

result of this misapplication of the third Mathews

factor, the Nguyen majority erroneously

deemphasized the governmental interests at stake

and unnecessarily tipped the Mathews scale in favor

of the intermediate standard of proof in professional

disciplinary cases.

2. The Nguyen decision conflicts with Santosky.

432 The Nguyen majority's analysis of the

second Mathews factor is contrary to the Court’s

holding in Santosky v. Kramer, 455 U.S. 745, 102

S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The second

Mathews factor requires us to consider “the risk of an

erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substitute procedural safeguards.” 424

U.S. at 335, 96 S. Ct. 893. In Santosky, the Court

stated that it “never has approved case-by-case

determination of the proper standard of proof for a

given proceeding.” 455 U.S. at 757, 102 S. Ct. 1388.

The Court further explained that “[s]tandards of

proof, like other ‘procedural due process rules[,] are

shaped by the risk of error inherent in the truth-

finding process as applied to the generality of cases,

not the rare excéptions.’ ” Jd. (emphasis added)

(alteration in original) (quoting Mathews, 424 US. at

344, 96 S. Ct. 893).

33 Nevertheless, in balancing the second

Mathews factor, the Nguyen decision relied on case-

specific considerations. Specifically, the Nguyen

protecting bank depositors); Stypmann v. City & County of San

Francisco, 557 F.2d 1338, 1343 (9th Cir. 1977) (considering the

state’s interest in removing vehicles from streets and

highways).

majority considered whether the agency acted “ ‘as

investigator, prosecutor, and decision maker ” and

whether the charges brought against Dr. Nguyen

were primarily objective or subjective. 144 Wash. 2d

at 531, 29 P.3d 689 (quoting Painter v. Abels, 998

P.2d 931, 941 (Wyo. 2000)). Thus, the Nguyen

majority did not properly follow the Mathews test, as

delineated in Santosky, because it made case-specific

considerations such as whether there was a right to a

hearing by an unbiased tribunal or the right to

judicial review.5 The Nguyen majority weakened the

public’s ability to properly discipline all health care

workers by extrapolating a sweeping legal rule from

the peculiar facts of Dr. Nguyen’s case. The State

should not be disadvantaged in all future medical

5 As opposed to the fact-specific considerations

proffered by the Nguyen majority, the dissent

considered the following case-neutral factors in

determining that there was a low risk of

erroneous deprivation:

(1) an unbiased tribunal; (2) notice of

the proposed action and the grounds

asserted for it; (3) an opportunity to

present reasons why the proposed action

should not be taken; (4) the right to call

witnesses; (5) the right to know the

evidence against one; (6) the right to

have the decision based only on the

evidence presented; (7) [the right to]

counsel; (8) the making of a record; (9) a

statement of the reasons; (10) public

attendance; (11) judicial review.

Nguyen, 144 Wash. 2d at 544-45, 29 P.3d 689 (Ireland, J.,

dissenting) (citing Henry J. Friendly, “Some Kind of Hearing,”

123 U. Pa. L. Rev. 1267, 1279-95 (1975)). Like Dr. Nguyen, Ms.

Ongom received the benefit of all of the above factors.

disciplinary proceedings because of the specific facts.”

and charges at issue in Nguyen. i

3. The Nguyen decision conflicts with Addington.

134 The Nguyen majority relied on Addington

v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d

323 (1979), to justify a bright-line rule that the clear

and convincing standard of proof is constitutionally

required whenever an interest at stake is “more

important than the interest against erroneous

imposition of a mere money judgment.” Nguyen, 144

Wash. 2d at 525, 29 P.3d 689. However, in

Addington, the Court held that the intermediate

standard is required only “to protect particularly

important individual interests in various civil cases”

such as cases. involving’ deportation and

denaturalization. 441 U.S. at 424, 99 S. Ct. 1804.

The Addington Court simply recognized that “some

jurisdictions” use the intermediate standard and that

the “intermediate standard ... ‘is no stranger to the

civil law.” Id. (quoting.Woodby v. Immigration &

Naturalization Sért”,"385 U.S. 276, 285, 87 S. Ct.

483, 17 L. Ed. 2d 362 (1966)). This is a far cry from

the bright-line rule that the Nguyen majority labeled

a constitutional requirement. “

. 4

135 Instead of adopting a bright-line rule, the

Addington Court conducted a Mathews balancing

test to determine whether the intermediate standard

of proof was required. for indefinite civil

commitments. Id. at» 425-27, 99 S. Ct. 1804.

Subsequent United tates Supreme Court decisions

have upheld the Ea wae Rib standard in quasi-

criminal disciplinary proceedings. See Steadman v..

Sec. & Exch. Comm'n, 450 U.S. 91, 103-04, 101 S. Ct.

999, 67 L. Ed. 2d 69 (1981) (upholding the

preponderance standard in a disciplinary proceeding

against a _ stockbroker as_ constitutionally

permissible); Rivera v. Minnich, 483 U.S. 574, 579-

82, 107 S. Ct. 3001, 97 L. Ed. 2d 473 (1987)

(upholding the preponderance standard to determine

paternity, “ ‘an interest far more precious than any

property right’ ” (quoting Santosky, 455 U.S. at

758-59, 102 S. Ct. 1388)). These decisions make it

clear that, contrary to our holding in Nguyen, the

Constitution does not require courts to apply a

heightened standard of proof in all cases involving

more than a “mere money judgment.”6

6 At issue in this case is the standard of proof necessary

to provide the minimum required procedural due process

protection. States are free to enact statutes requiring higher

standards of proof. Nonetheless, at least 21 other jurisdictions

have held that the preponderance standard is constitutionally

appropriate and applies to interests greater than “mere money,”

such as those at stake in professional disciplinary proceedings.

See, e.g., Granek v. Tex. Bd. of Med. Exam'rs, 172 S.W.3d 761

(Tex. App. 2005); Parrish v. Ky. Bd. of Med. Licensure, 145

S.W.3d 401 (Ky. Ct. App. 2004); Snyder v. Colo. Podiatry Bd.,

100 P.3d 496 (Colo. Ct. App. 2004); Gallant v. Bd. of Med.

Exam’rs, 159 Or. App. 175, 974 P.2d 814 (1999); In re Smith,

169 Vt. 162, 730 A.2d 605 (1999); Giffone v. De Buono, 693

N.Y.S.2d 691, 263 A.D.2d 713, (1999); Anonymous (M- 156-90) v.

State Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998);

Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 478 S.E.2d 437

(1996); In re Pet. of Grimm, 138 N.H. 42, 635 A.2d 456 (1993);

Pickett v. Utah Dep't of Commerce, 858 P.2d 187 (1993); Gandhi

vu. State Med. Examining Bd., 168 Wis. 2d 299, 483 N.W.2d 295

(1992); Boswell v. Iowa Bd. of Veterinary Med., 477 N.W.2d 366

(lowa 1991); Johnson v. Ark. Bd. of Exam'rs in Psychology, 305

Ark. 451, 808 S.W.2d 766 (1991); In re Disciplinary Action

Against Wang, 441 N.W.2d 488 (Minn. 1989); Lyness v. State

Bd. of Med., 127 Pa. Commw. 225, 561 A.2d 362 (1989), rev'd on

436 Ignoring this precedent, the Nguyen

majority primarily relied on Painter, 998 P.2d 931, a

Wyoming Supreme Court decision, to support its

bright-line rule. In Painter, the Wyoming court held

that “[d]ue process requires that the Board prove its

disciplinary cases by clear and convincing evidence.”

Id. at 941. However, in so ruling, the Painter court

noted that “[t]his holding arguably gives Wyoming

licensees greater due process protection than is

required by the United States Constitution.” Id.

Unlike the Wyoming Constitution, the Washington

Constitution does not provide greater procedural due

process protection than is required by the United

States Constitution. See, e.g., Manussier, 129 Wash.

2d at 679, 921 P.2d 473. Thus, contrary to the

Nguyen majority's analysis, Painter supports the

conclusion that the preponderance standard is

constitutionally sufficient in professional disciplinary

proceedings in Washington. Accordingly, I would

reject the bright-line rule adopted in Nguyen.

4. The Nguyen majority applied faulty logic.

137 The Nguyen majority stated the following:

[SJociety ... has the important dual

interests that (1) Dr. Nguyen’s standard

of practice not fall below the acceptable

minimum and (2) he not be erroneously

other grounds, 529 Pa. 535, 605 A.2d 1204 (1992); Foster v. Bd.

of Dentistry, 103 N.M: 776, 714 P.2d 580 (1986); Rucker v. Mich.

Bd. of Med., 138 Mich. App. 209, 360 N.W.2d 154 (1984); In re

Revocation of License of Polk, 90 N.J. 550, 449 A.2d 7 (1982);

Ferguson v. Hamrick, 388 So. 2d 981 (Ala. 1980); Sherman v.

Comm'n on Licensure to Practice the Healing Art, 407 A.2d 595

(D.C. 1979); In re Wilkins, 294 N.C. 528; 242 S.E.2d 829 (1978).

deprived his license, as that would

erroneously deprive the public access to

and benefit from his services. Here each

interest dictates a more exacting burden

than mere preponderance.

144 Wash. 2d at 526, 29*P.3d 689. The Nguyen

majority's contention that ensuring a minimum level

of a physician’s standard of care dictates a higher

standard than the preponderance of evidence

standard is nonsensical. Logic dictates that a

heightened standard of proof will make it more

difficult, not less difficult, for the State to properly

discipline incompetent professionals. Apparently, the

majority in the present case agrees with this point,

as it eschews the Nguyen argument and instead

chooses to cite the reasoning from Nims v. Board of

Registration for Professional Engineers & Land

Surveyors, 113 Wash. App. 499, 53 P.3d 52 (2002).

Majority at ----. The majority, relying on Nims,

admits the absurdity of the reasoning employed in

Nguyen, stating, “it makes no sense to say that

doctors who present the ‘greater risk [ ] should

receive the benefits of a higher ... burden of

persuasion to prompt discipline than a lower-risk

vocation.” Jd. (quoting Nims, 113 Wash. App. at 505,

53 P.3d 52). Thus, the majority affirms Nguyen while

acknowledging that the logic used in that decision

was faulty.

438 For the reasons stated above, the Nguyen

decision is incorrect and harmful. Thus, Nguyen

should be overruled.

439 Procedural Due Process. After.overruling

Nguyen, I would apply the Mathews test in order to

determine the constitutionally required standard of

proof in registered nursing assistant disciplinary

proceedings. After balancing the private interests at

stake, the risk of erroneous deprivation, and the

governmental interests and burdens, I would hold

that the preponderance standard is constitutionally

sufficient.

1. The Private Interest

140 An individual has_ constitutionally

protected interests in his or her professional license

and reputation. See Haley, 117 Wash. 2d at 732, 818

P.2d 1062. The Mathews test requires us to analyze

the nature and extent of these interests. I agree with

the majority that Ms. Ongom’s registered nursing

assistant’s license represents her current vocational

livelihood, majority at ----, but I also recognize the

procedural and economic realities that limit the

interest she has in such a license. In order to become

a registered nursing assistant, one need only pay a

nominal $15 fee and submit an _ application.

WAC 246-841-990(2); RCW 18.88A.080(1). In

contrast with certified nursing assistants, a

registered nursing assistant need not obtain any

education or training for’ registration. See

RCW 18.88A.020(4), .085; WAC 246-841-490. Thus,

Division One of the Court of Appeals correctly

concluded that “[t]he purpose of the [registered]

nursing assistant license ... appears to be solely to

satisfy the need for a registry of those allowed to

work in the field.” Ongom v. Dep’t of Health, 124

Wash. App. 935, 943, 104 P.3d 29 (2005). In contrast,

“[a] physician completes many years of mgorous

education, training, and examination at enormous

expense.” Id. at 942, 104 P.3d 29. Therefore, while a

registered nursing assistant has a private interest in

his or her license, this interest is less significant

than those private interests that have justified

applicatien of an intermediate standard of proof in

other cases. See, e.g., Addington, 441 U.S. at 428-31,

99 S. Ct. 1804 (clear and convincing evidence

required for involuntary civil ccmmitments);

Santosky, 455 U.S. at 758, 102 S. Ct. 1388 (clear and

convincing evidence required for termination of

parental rights); Cruzan v. Mo. Dep’t of Health, 497

U.S. 261, 284, 110 S. Ct. 2841, 111 L. Ed. 2d 224

(1990) (clear and convincing evidence required for

termination of an incompetent patient’s _life-

sustaining medical treatment). Accordingly, because

the interests at stake in the present case are of lesser

magnitude than the interests at issue in Addington,

Santosky, or Cruzan, the first Mathews factor favors

application of the lower standard of proof.

2. The Risk of Erroneous Deprivation

441 In addition, under Mathews, this court

should consider “the risk of an erroneous deprivation

of such interest through the procedures used, and the

probable value, if any, of additional or substitute

procedural safeguards.” 424 U.S. at 335, 96 S. Ct.

893; see also Santosky, 455 U.S. at 761, 102 S. Ct.

1388; Nguyen, 144 Wash. 2d at 544, 29 P.3d 689

(Ireland, J., dissenting). In the present case, Ms.

Ongom received substantial procedural safeguards

that minimized the risk of error. She was given

notice of the action, a public hearing before an

unbiased tribunal, the right to present evidence and

make arguments, the right to know the government's

evidence, the right to have the decision limited to the

evidence, the opportunity to be represented by

counsel, a written record, a written statement of

findings of fact and conclusions of law, and the right

to judicial review. Ongom, 124 Wash. App. at 946,

104 P.3d 29 (citing ch. 18.130 RCW). Considering

these procedural protections, I would hold that there

is a relatively low risk of erroneous deprivation in

this case. Thus, the second Mathews factor also

weighs in favor of the preponderance standard.

3. The Governmental Interests and Burden

42 While a higher standard of proof would be

unlikely to cause a large financial impact on the

government, see Santosky, 455 U.S. at 767, 102 S. Ct.

1388, some additional cost is inevitable in order for

the government to acquire and present sufficient

evidence to satisfy the higher burden. Moreover,

under the third Mathews factor, we should consider

the governmental interest in protecting the public

against abuse by health care providers. Specifically,

the legislature has established a policy of “assur[ing]

the public of the adequacy of professional competence

and conduct in the healing arts.” RCW 18.130.010;

see also RCW 18.88A.010 (stating, “ft]he legislature

declares that the registration of nursing assistants

and providing for voluntary certification of those who

wish to seek higher levels of qualification is in the

interest of the public health, safety, and welfare”).

The governmental interest in assuring competency of

health care providers favors application of the

preponderance standard.

443 In addition, the legislature has articulated

a governmental interest in protecting vulnerable

adults. See, e.g., ch. 74.34 RCW (creating a reporting

system for abuse, neglect, or abandonment of

vulnerable adults); ch. 9A.44 RCW (imposing

heightened penalties for sex crimes against

vulnerable adults); RCW 9.96A.060 (restoration of

employment rights for felons does not include

individuals employed by the department of social and

health services if they have unsupervised access to

vulnerable adults); RCW 18.20.125 (requiring

inspections of boarding homes to protect vulnerable

adults). This interest also favors application of the

preponderance standard of proof.

444 Finally, the legislature has noted the

existence of “the high and often critical turnover

among the principal cadre of health care workers

who provide for the basic needs of patients.”

RCW 18.88A.010. I acknowledge that the

government has an interest in ensuring adequate

access to health care providers and that this interest

is furthered by a higher standard of proof. However,

this interest is intertwined with the other

governmental interests discussed above and should

not be given independent consideration. The

government's true interest is in protecting its

citizens from incompetent health care providers. The

interest in access to health care providers is

undermined if the workers are incompetent. Thus,

this court should not give much weight to an

asserted governmental interest in ensuring access to

potentially incompetent health care workers.

445 As demonstrated above, all three Mathews

factors weigh in favor of the preponderance of the

evidence standard of proof in registered nursing

assistant disciplinary proceedings. Thus, I would

uphold WAC 246-10-606, which establishes the

preponderance of the evidence standard of proof in

such proceedings.

146 Substantial Evidence. In a _ factual

challenge to a lower court ruling, this court should

grant relief only if the lower court’s determination is

not supported by substantial evidence.

RCW 34.05.570(3)(e). Evidence is substantial if “the

record contains ‘a sufficient quantity of evidence to

persuade a fair-minded person of the truth or

correctness of the order.” Port of Seattle v. Pollution

Control Hearings Bd., 151 Wash. 2d 568, 588, 90

P.3d 659 (2004) (internal quotation marks omitted)

(quoting King County v. Cent. Puget Sound Growth

Mgmt. Hearings Bd., 142 Wash. 2d 543, 553, 14 P.3d

133 (2000)).

147 Ms. Ongom failed to establish that the

trial courts decision was not supported by

substantial evidence. Ms. Ongom challenged the

hearing testimony as “not credible” and argued that

“it is just as probable that [she] is innocent of all

wrongdoing.” Pet. for Review at 11-12. This court is

not well suited to make determinations of the

credibility of witnesses. Port of Seattle, 151 Wash. 2d

at 588, 90 P.3d 659. Therefore, [ would affirm the

suspension of Ms. Ongom’s registered nursing

assistance license as supported by substantial

evidence.”

7 The majority states that one witness,

Ms. Chmielewski, “supported Ongom’s version of the events.”

Majority at ----. However, Ms. Chmielewski was not present at

the hearing. In Ms. Chmielewski’s affidavit, she declared

without elaboration, “I did not see Alice [Ongom] touch or throw

anything at [the resident].” Administrative Record (AR) at 173.

Ms. Umagat testified that Ms. Chmielewski was in the dining

CONCLUSION

148 I would overrule Nguyen. The Nguyen

majority erred by misapplying precedent, thereby

skewing procedural due process protection in favor of

private interests. The Nguyen majority's incorrect

application of the Mathews test will harm the

government's ability to protect the public from

incompetent health care workers. Thus, instead of

relying on Nguyen to determine the constitutionally

required standard of proof in registered nursing

assistant disciplinary proceedings, I would conduct

an independent analysis using the Mathews

balancing test. After examining this case through the

Mathews lens, I would hold that preponderance of

the evidence is a_ constitutionally permissible

standard of proof in registered nursing assistant

disciplinary proceedings. Accordingly, because there

is substantial evidence in the record supporting the

superior court’s determination that the State proved

its case by a preponderance of the evidence, I would

affirm Ms. Ongom’s suspension.

WE CONCUR: Mary E. Fairhurst, and Bobbe J.

Bridge, JJ.

49 Madsen, J. (concurring in the dissent) As

a result of this court’s decision in Bang Nguyen uv.

Department of Health, 144 Wash. 2d 516, 29 P.3d 689

(2001), some of this state’s most vulnerable citizens

are now even more at risk for abuse. Alzheimer’s

room at the time of the incident but “told me she didn’t actually

observe the incident.” AR at 220. If Ms. Chmielewski did not

observe the incident, then her technically true statement that

she did not “see” any touching or throwing neither supports nor

contradicts Ms. Ongom’s version of events.

patients like the victim in this case, along with the

developmentally disabled, mentally ill, and the

elderly depend for their care on people licensed

under chapter 18.88A RCW. Many of these citizens

lack the ability to speak out or be heard when they

suffer abuse from caregivers. Instead of protecting

these vulnerable citizens, the majority of the court

tips the balance of protection in favor of the licensee

and against these vulnerable citizens. As a result of

applying Nguyen in this case, the abuse, which the

hearing officer found was proved by a preponderance

of the evidence, will go without redress.

750 Although I signed the majority opinion in

Nguyen, | agree with Justice Owens that Nguyen

was wrongly decided on the law. And, its application

in this case makes clear that it is also harmful and

should be overruled.

DISCUSSION

51 Addressing first the legal error in Nguyen,

this court was incorrect in defining the nature of the

interest involved in holding a professional license. In

particular, we erroneously concluded that the pursuit

of a profession involves a property right as well as a

constitutional liberty interest akin to the liberty

interests of the criminally accused. As early as 1909,

in connection with attorney discipline, this court

stated that

[while it is true that the practice of law

is a lawful occupation in itself, it is not

a natural right or a right guaranteed by

the constitution. It is a_ privilege

granted hy the state, and may be

surrounded with whatever restrictions

the legislature may in reason prescribe[,

e]ven to the extent of requiring any

attorney, without compensation, to

conduct the defense of destitute persons

accused of crime.

State ex rel. Mackintosh v. Rossman, 53 Wash. 1, 3,

101 P. 357 (1909) (citations omitted).

452 Since 1938, when the United States

Supreme Court decided United States v. Carolene

Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed.

1234 (1938), courts have uniformly held that

economic regulations such as professional licensing

laws are subject only to rational basis review.

Indeed, in Steadman v. Securities & Exchange

Commission, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed.

2d 69 (1981), the Supreme Court implicitly concluded

that there was no fundamental constitutional liberty

interest at stake in a proceeding to revoke a license

to pursue a profession or occupation, and hence

found no due process entitlement to a burden of proof

greater than a fair preponderance.

953 Although we were determining the level of

scrutiny to be applied in a due process challenge, a

majority of this court recently pointed out in

Amunrud v. Board of Appeals, 158 Wash. 2d 208,

143 P.3d 571 (2006), that neither this court nor the

United States Supreme Court has characterized the

right to pursue a particular profession as a

fundamental right. Instead, courts have repeatedly

held that the right to employment is a protected

interest subject to rational basis review. By analogy,

these decisions show that the preponderance

standard is appropriate here to protect the interests

at stake.

454 As the United States Supreme Court

recently explained:

[T]he liberty component of the

Fourteenth Amendment’s Due Process

Clause includes some generalized due

process right to choose one’s field of

private employment, but a right which

ts nevertheless subject to reasonable

government regulation.

Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S. Ct.

1292, 143 L. Ed. 2d 399 (1999) (emphasis added).

And the Supreme Court has made clear that

“rational basis review” is the appropriate standard

for reviewing such government licensing regulations.

Barry v. Barchi, 443 U.S. 55, 61-62, 67-68, 99 S. Ct.

2642, 61 L. Ed. 2d 365 (1979) (applying “rational

basis” test in the equal protection and due process

‘context to licenses for horse trainers). See aiso

Medeiros v. Vincent, 431 F.3d 25, 29 n.3 (Ist Cir.

2005) (it is “well settled” that there is no

fundamental nght to pursue a_ livelihood or

occupation, and “legislation or regulation impinging

upon such a right therefore is subject only to

‘rational basis’ review, rather than ‘strict scrutiny’ ”);

Cornwell v. Cal. Bd. of Barbering & Cosmetology,

962 F. Supp. 1260, 1271-72 (1997) (substantive due

process challenges to regulations of occupations are

“subjected to rational basis review,” and “[t}he

regulation may only be struck down if there is no

rational connection between the challenged statute

and a legitimate government objective”); Mass. Bd. of

Ret. v. Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562,

49 L. Ed. 2d 520 (1976) (no fundamental right to

government employment and applying rational basis

review to restrictions on government employment);

Schware v. Bd. of Bar Examiners of N.M., 353 U.S.

232, 238, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) (no

fundamental right to practice law); Nebbia v. New

York, 291 U.S. 502, 527-28, 54 S. Ct. 505, 78 L. Ed.

940 (1934) (the right to work in a particular

profession or trade is a protected right and subject to

rational regulation); Dittman v. California, 191 F.3d

1020, 1031 (9th Cir. 1999) (applying rational basis

review to requirements for acupuncture license);

Meyers v. Newport Consol. Joint Sch. Dist.

No. 56-415, 31 Wash. App. 145, 639 P.2d 853 (1982)

(holding that the right to employment is not

fundamental and applying rational basis review); In

re Revocation of License to Practice Med. & Surgery

of Kindschi, 52 Wash. 2d 8, 319 P.2d 824 (1958)

(applying rational basis review to license revocation).

455 Other state courts have reached the same

conclusion. See, e.g., In re Revocation of License of

Polk, 90 N.J. 550, 562, 570, 449 A.2d 7 (1982)

(interest- in a_ professional license deserves

protection, but not a fundamental right; such

licenses are “ ‘always’ subject to reasonable

regulation in the public interest’ ” (quoting B.

Jeselshon, Inc. v. Atlantic City, 70 N.J. 238, 242, 358

A.2d 797 (1976))); Petition of Grimm, 138 N.H. 42,

50, 635 A.2d 456 (1993) (“[t]he right to work in one’s

occupation has never been placed on equal footing

with fundamental personal rights,” applying rational

basis review to licensing regulation for medical

doctors).

456 In light of these cases, including our

recent decision in Amunrud, it is clear that Nguyen

is wrong in describing the interest in a professional

license as a liberty interest akin to the liberty

interests of the criminally accused and wrong in

requiring the clear, cogent, and convincing standard

to protect that interest. Additionally, requiring a

higher standard of proof than the preponderance

standard is inconsistent with this court’s recognition

in Amundrud that under due process, a government

licensing regulations need pass only rational basis

scrutiny.

{57 The Nguyen court also erred in

determining what governmental interest is to be

weighed in the balancing test of Mathews uv.

Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed.

2d 18 (1976). In Nguyen the court gave great weight

to the economic factors involved in providing a

predeprivation hearing but, though acknowledging

the government interest in protecting the public,

gave this more important interest insufficient

weight. As the Wisconsin court persuasively points

out, “the state is concerned with the direct and

immediate threat to physical health, safety and

welfare. The consequences of incompetent or

-unprofessional care or treatment may be highly

injurious, and even fatal.” Gandhi v. State Med.

Examining Bd., 168 Wis. 2d 299, 309, 483 N.W.2d

295 (1992) (conducting a Mathews balancing test and

concluding that a physician’s interest in his

professional license is adequately protected under a

preponderance standard). Here, as Justice Owens

points out, the legislature has a strong interest in

protecting vulnerable adults. Dissent at ----. This

case demonstrates why a preponderance standard is

not sufficient to protect this interest.

458 Finally, although the department has not

challenged the hearing officer’s conclusion that the

evidence presented did not meet the clear, cogent,

and convincing standard, I believe the hearing officer

is wrong on this point, based on his findings of fact.

In written conclusions of law following the hearing,

the examiner stated that the program did not prove

the allegations by clear and convincing evidence

because, he said,

there are conflicting witness statements

whether the Respondent touched

Resident A or threw anything at

Resident A. Additionally, there was a

period of time between the time [sic] the

incident in question, and when Resident

A’s injury was diagnosed or assessed.

Finally, the [sic] was evidence to show

that Resident A was combative and

known to kick out on her own.

Clerk’s Papers (CP) at 112 (Conclusion of Law 4.6).

459 The reasons given by the hearing officer

for his conclusion are not supported by his findings of

fact or by the record. First, although the hearing

officer cited conflicting witness statements as a

concern, he nevertheless found a violation, and this

fact indicates that he resolved the credibility

question against the respondent. His implicit

resolution of the credibility issue is supported by the

record and by his finding of fact showing that the

respondent gave two conflicting versions of events, at

one point denying kicking the resident and at

another point stating that she tripped over the

resident's leg. CP at 109 (Finding of Fact (FOF) 3.8).

Second, the hearing examiner is simply wrong in his

assertion that a period of time elapsed before the

resident was examined. Uncontroverted evidence

establishes that witness Rebecca Bristlin took the

resident for an immediate assessment and that the

resident complained of pain in her ankle and wrist.

Exs. 1, 3.

{60 In addition to these flaws in conclusion of

law 4.6, the hearing examiner made the erroneous

finding that the injury to the resident’s ankle “was

not consistent with the type of repeated trauma

described in the incident report.” CP at 110 (FOF

3.12). This finding has no support in the record.

Rather, the record demonstrates that the treatment

providers who examined and treated the resident

proceeded on the belief that the injury resulted from

the resident being kicked and that the resident

suffered bruising on her leg which worsened to an

abscessed condition. It is also significant that the

supervising nurse who investigated the incident and

interviewed the witnesses reported the incident to

the police.

161 The evidence here _ satisfies the

preponderance of the evidence standard that should

apply. Moreover, the evidence in the record also

meets the clear and convincing standard that the

majority says must be applied. Therefore, I would

uphold the sanction imposed in this case under the

majority’s analysis as well.

Washington Court of Appeals

Alice ONGOM, Appellant,

Vv.

STATE of Washington, DEPARTMENT OF

HEALTH, OFFICE OF PROFESSIONAL

STANDARDS, Respondent

No. 52688-0-I

Jan. 3, 2005

4/1 Ellington, A.C.J.— In this case, a registered

nursing assistant’s license was suspended for abuse

of a patient. We must decide what standard of proof

is required in such disciplinary proceedings. We hold

the preponderance of the evidence standard

adequately protects the nursing assistant’s due

process rights. Because a preponderance of the

evidence supports the findings, we affirm.

BACKGROUND

{2 In 2001, Alice Ongom was licensed as a

registered nursing assistant and was working as a

caregiver at the Woodmark Retirement Home in

Federal Way. Caregivers are responsible for

assisting residents with their basic needs, including

feeding, dressing, and hygiene.

{3 On February 22, Ongom and two other

caregivers were cleaning the dining room after

dinner. Emma Usler, a resident in the later stages of

Alzheimer’s who was known to be combative, was in

the dining room. The following day, one of the other

caregivers, Rebecca Bristlin, reported to her

supervisor that Ongom had abused Usler by slapping ~

her hands, kicking her leg, and throwing a coffee

mug, which hit Usler’s hands. Woodmark program

director Jocelyn Umagat, L.P.N., interviewed

Bristlin and other witnesses; and assessed Usler’s

injuries. Umagat reported the incident to police and

to the Department of Health and Human Services.

She then spoke to Ongom and terminated her

employment. After a police investigation, Ongom

was arrested and charged with fourth degree

assault.!

{4 The nursing assistant program of the

Department of Health (the Program) initiated

disciplinary proceedings against Ongom for abuse of

a patient in violation of RCW 18.130.180(24).2 After

investigating, the Program issued a statement of

charges, alleging that Ongom engaged in

unprofessional conduct by slapping, kicking, and

throwing a cup at a residentin her care.

{5 Bristlin, Umagat and Ongom testified at a

hearing before a health law judge. Ongom, who

represented herself at the hearing, maintained she

had not abused Usler. She testified that Usler was

often aggressive, and that on this occasion Usler

threw a glass at Ongom, hitting her, and shouted

racial insults. Ongom testified she grabbed a plate

from Usler to prevent her from throwing it, and left

1 The record shows that the court dismissed the charges

on its own motion.

2 RCW 18.130.180 provides, in part: “The following

conduct, acts, or conditions constitute unprofessional conduct

for any license holder or applicant under the jurisdiction of this

chapter:.... (24) Abuse of a client or patient or sexual contact

with a client or patient.”

the room. Ongom presented an affidavit from the -

third witness to the incident, caregiver Franciska

Chmielewski, who confirmed that Usler was

frequently aggressive, and stated she saw Usler

throw a glass at Ongom, but did not see Ongom

touch or throw anything at Usler.

{6 Health law judge John F. Kuntz observed

that the correct standard of proof-a preponderance of

the evidence, or clear and convincing evidence-

appeared to be an unsettled question. He therefore

considered the evidence under both standards, and

concluded the Program had “proven by a

preponderance of the evidence, but net by clear and

convincing evidence, that [Ongom’s] conduct violated

RCW 18.130.180(24) (regarding abuse of a client).

The Presiding Officer concludes this violation was

moderate in nature.”? Judge Kuntz ordered Ongom’s

license be suspended for 24 months.4

17 Ongom petitioned the superior court for

judicial review. That court affirmed the use of the

preponderance standard and upheld the decision to

suspend Ongom’s license. This appeal followed.

3 Clerk’s Papers at 17.

4 Ongom’s license would have been restored in July,

2004. The discipline remains a matter of record, however, and

the Department does not argue the matter is moot.

DISCUSSION

Due Process

48 Judicial review of a Department of Health

administrative decision is governed by the

Administrative Procedure Act.5 This court applies

the standards of the Act directly to the record before

the agency. In reviewing conclusions of law, we

apply the “error of law” ~ standard of

RCW 34.05.570(3)(d), under which we_= give

substantial weight to the agency’s interpretation of

the law, but are not bound by the agency’s

interpretation.’

49 A disciplinary proceeding like Ongom’s

requires the license holder to defend against charges

of unprofessional conduct, and may result in license

revocation. It must therefore comport with due

process.®

410 In Mathews v. Eldridge,® the United

States Supreme Court delineated three factors to be

balanced in determining the minimum process

required by the federal constitution: the private

interest affected by the proceeding; the risk of error

created by the State’s chosen procedure; and the

5 Ch. 34.05 RCW.

6 Tapper v. State Employment Sec. Dep't., 122 Wash. 2d

397, 402, 858 P.2d 494 (1993).

7 Haley v. Medical Disciplinary Bd., 117 Wash. 2d 720,

728, 818 P.2d 1062 (1991).

8 See Wash. Med. Disciplinary Bd. v. Johnston,

99 Wash. 2d 466, 474, 663 P.2d 457 (1983).

9 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed, 2d 18 (1976).

countervailing government interest supporting the

use of the challenged procedure.!9 In Addington v.

Texas!! and especially in Santosky v. Kramer,'2 the

Court applied these factors to the question of the

proper standard of proof.!3

411 Ongom relies upon our Supreme Court's

decision in Nguyen v. State, Department of Health,}4

and argues that the standard of proof required by

due process in all professional disciplinary

proceedings is clear and convincing evidence. In

Nguyen, the Medical Quality Assurance Commission

found, by a preponderance of the evidence, that

Dr. Bang Nguyen committed unprofessional conduct.

The Commission revoked the doctor’s license’ to

practice medicine, and prohibited him from seeking

relicensure for five years. Our Supreme Court

reversed. The Nguyen court framed the issue before

it as follows: “At its heart this case concerns the

process due an accused physician by the state before

it may deprive him his interest in property and

liberty represented by his professional license.”!5

The court found that a physician’s property and

10 Td. at 335, 96 S. Ct. 893.

11441 U.S. 418, 99S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

12 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

13 The Washington Supreme Court has observed that

the Mathews factors “have some uneven relevance and

application” to the burden of proof issue. Nguyen v. State, Dep't

of Health, 144 Wash. 2d 516, 526, 29 P.3d 689 (2001) (citing

Santosky, 455 U.S. at 747, 102 S. Ct. 1388).

14 Td.

‘5144 Wash. 2d at 522, 29 P.3d 689.

liberty interests in maintaining his or her license are

compelling; that the risk of error was aggravated by

the subjective nature of the charges and by the fact

that the Commission acted as _ investigator,

prosecutor, and decision maker; and that the

government’s interest in avoiding the additional

burden associated with a more stringent evidentiary

standard was minimal.!®© Applying the factors set

forth in Mathews and Addington to _ these

circumstances, the court held that due process

required proof by clear and convincing evidence.

412 “The function of the standard of proof, as

that concept is embodied in the Due Process Clause

and in the realm of factfinding, is to ‘instruct the

factfinder concerning the degree of confidence our

society thinks he should have in the correctness of

factual conclusions for a _ particular type of

adjudication.’”!7 The Nguyen court did not address

whether the standard of proof is the same when a

different professional license (and therefore a

different private interest) is involved. In Eidson uv.

State, Department of Licensing,'® we held that the

standard depends upon an analysis of the interests

involved, and concluded the preponderance standard

provided adequate due _ process protection in

16 144 Wash. 2d at 527-33, 29 P.3d 689.

17 Addington, 441 U.S. at 423, 99 S. Ct. 1804 (quoting /n

re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970) (Harlan, J., concurring)).

18 108 Wash. App. 712, 720-21, 32 P.3d 1039 (2001).

_ proceedings to revoke the license of a real estate

appraiser. !9

413 Here, we must decide what standard

applies to revocation of the license of a registered

nursing assistant. We address the Mathews factors

in turn.

4/14 Private Interest. As Nguyen pointed out,

“It is important to focus on the nature of the interest

at stake in the sense that the more important the

interest, the more process is required.”2° The license

of a registered nursing assistant is a significant

property interest, because it allows an individual to

earn a living within a chosen field. It is not,

however, equivalent to a medical license for purposes

of due process analysis.

415 A physician completes many years of

rigorous education, training, and examination at

enormous expense, and _ generally expects the

practice of medicine to be a permanent career.

Registered nursing assistants, by contrast, have no

educational or training requirements at _ all,?!

perform duties only as delegated and supervised by

nurses,2 and are employed in a field plagued by

19 We are aware that Division Two of this court has

broadly interpreted Nguyen to apply to all professional

disciplinary proceedings. Nims v. Wa. Board of Registration,

113 Wash. App. 499, 53 P.3d 52 (2002). We disagree with that

court’s position that this question merits no case-by-case

analysis, such as the one we conducted in Etdson.

20 144 Wash. 2d at 525-26, 29 P.3d 689.

21 RCW 18.88A.080.

22 RCW 18.88A.020(4).

chronic and frequent turnover.23 The legislature

provided for a “voluntary certification of those who

wish to seek higher levels of qualification” which

requires some training and competency evaluation,”4

but even so, the value of the license to the holder is

markedly different for nursing assistants than for

physicians.

416 Additionally, the purpose of the license

must be considered. By statute, any person can

obtain a nursing assistant license by simply

submitting an application and paying a nominal

fee.25 In fact, an applicant need not even obtain the

license before beginning work as a_ nursing

assistant.26 The purpose of the nursing assistant ~

_ 2% RCW 18.88A.010 (acknowledging “the high and often

critical turnover among the principal cadre of health care

workers who provide for the basic needs of patients”).

24 RCW 18.88A.010, .085. WAC 246-841-490 provides

that approved training programs must cover certain core

competencies, and must consist of no less than 85 hours of

classroom and clinical training.

25 RCW 18.88A.080 provides that “[t]he secretary [of

health] shall issue a registration to any applicant who pays any

applicable fees and submits, on forms’ provided

by the secretary, the applicant's name, address, and

other information as determined by the _— secretary.”

RCW 18.88A.085 provides that the _ secretary “shall

issue a certificate to any applicant who demonstrates” he or she

had satisfied the requirements of completion of an approved

training program and competency evaluation.

WAC 246-841-990 establishes a $15 application fee for

registration and an equal fee for certification.

26 RCW 18.88A.080(2) (“Applicants must file an

application with the commission for registration within three

days of employment.”).

2 eee

license, therefore, appears to be solely to satisfy the

need for a registry of those allowed to work in the

field. The purpose of the medical license, on the

other hand, is to assure professional competence in a

highly complex and_ potentially dangerous

occupation, in which the practitioner is largely

unsupervised, and poses a great risk to the public if

incompetent.27._ To this. end, the education and

examination requirements are extensive.28 Thus, the

property interest in a nursing assistant’s license,

while not insignificant, is considerably more limited

than the property interest in a license to practice

medicine.

417 The Nguyen court also characterized the

doctor’s interest in his medical license as a liberty

interest: “[T]his court has recognized a doctor has a

liberty interest in preserving his _ professional

reputation.”29 The distinctions we noted above in

27 RCW 18.71.002 (“It is the purpose of the medical

quality assurance commission to regulate the competency and

quality of professional health care providers under its

jurisdiction by establishing, monitoring, and_ enforcing

qualifications for licensing, consistent standards of practice,

continuing competency mechanisms, and discipline.”).

23 RCW 18.71.050 establishes eligibility requirements

for a license to practice medicine, which include proof the

applicant has attended and graduated from an approved school

of medicine and completed two years of post-graduate medical

training, is of good moral character, and is physically and

mentally capable of safely carrying on the practice of medicine.

RCW 18.71.070 provides applicants must also successfully

complete an examination covering subjects and_ topics,

knowledge of which is generally required of a candidate for a

degree of doctor medicine.

29 144 Wash. 2d at 527, 29 P.3d 689.

terms of the property interest apply in equal

measure here. A nursing assistant who loses her

license may suffer some slight damage to her

reputation, but any such damage does not approach

the significant stigma attached to loss of the right to

practice medicine. The liberty interest here, if any,

is nominal.

418 In Addington, the United States Supreme

Court considered whether due process requires an

elevated standard of proof in involuntary civil

commitment proceedings, and held the proof must be

greater than a preponderance but need not be

beyond a reasonable doubt. In discussing the three

evidentiary standards and the sorts of proceedings to

which each applied, the Court observed that the

intermediate clear and convincing standard of proof

applies in civil cases involving “allegations of fraud

or some other quasi-criminal wrongdoing by the

defendant.”39 The Nguyen court emphasized the

quasi-criminal nature of medical disciplinary

proceedings, in concluding that due process requires

proof by clear and convincing evidence.*! Ongom

‘contends this analysis should apply in disciplinary

proceedings against a nursing assistant.

419 But the phrase “quasi-criminal” can be

logically applied to all license revocation procedures,

because the license holder is called upon to defend

against allegations made by the government with the

aim of protecting the public, and the consequences

are punitive in the sense that a privilege may be

30 Addington, 441 U.S. at 424, 99S. Ct. 1804.

31 144 Wash. 2d at 529, 29 P.3d 689.

withdrawn. The quasi-criminal character of the

proceedings must be taken into consideration in

evaluating the private interest at stake, but it does

not, standing alone, mandate application of a

heightened standard of proof. As the Nguyen court

noted, the United States Supreme Court has

mandated the intermediate standard of proof only

when the individual interests at state are “both

particularly important and more substantial than

money.”32 In other words, the clear and convincing

standard provides the “level of certainty necessary to

preserve fundamental fairness in a variety of

government-initiated proceedings that threaten the

individual with ‘a significant deprivation of liberty’

or ‘stigma’.”33 Thus, “[w]hether the loss threatened

by a particular type of proceeding is sufficiently

grave to warrant more than average certainty on the

part of the factfinder turns on both the nature of the

private interest threatened and the permanency of

the threatened loss.”*4

420 As discussed above, a registered nursing

assistant license is available for the asking, and

requires no significant financial or educational

investment. The license does not amount to a

compelling property or liberty interest, nor does its

loss carry with it a significant stigma. In addition,

Ongom’s license was suspended for only 24 months,

whereas Bang Nguyen’s license was _ indefinitely

32 Santosky, 455 U.S. at 756, 102 S. Ct. 1388; see

Nguyen, 144 Wash. 2d at 529, 29 P.3d 689.

33 Santosky, 455 U.S. at 756, 102 S. Ct. 1388.

34 Jd. at 758, 102 S. Ct. 1388.

revoked and he was prohibited from seeking

relicensure for five years.

421 Ongom’s interest in retaining her license

is important. But the minimal effort required to

obtain such a license, the limited work it authorizes

the holder to perform, and the relatively minor (if

any) stigma associated with its temporary

suspension do not constitute a private interest that

mandates an elevated standard of proof. We

therefore proceed to the other Mathews factors.

122 Risk of Error. The procedural protections

afforded to a nursing assistant in disciplinary

proceedings are many. The Uniform Disciplinary Act

(UDA)* requires that when a complaint 1s filed, it be

evaluated to determine whether an investigation is

warranted. If so, the investigator must inform the

licensee in writing of the nature of the complaint, the

licensee’s right to consult with legal counsel prior to

making a statement, and the fact that any statement

may be used in an adjudicative proceeding under the

UDA.** If the agency decides to act upon a complaint

after investigation, the Administrative Procedure Act

affords numerous procedural safeguards, including a

public hearing before an unbiased tribunal, notice of

the proposed action, the right _to present evidence

and argument and to know the government’s

evidence, the right to have a decision based only on

the evidence presented, the opportunity to be

represented by counsel, the making of a record, a

—

35 Ch. 18.130 RCW.

% RCW 18.130.095(2)(a).

statement of the reasons for the decision, and the

right to judicial review.*7

{23 Ongom does not contend she was deprived

of any of these protections. Instead she relies on

Nguyen for the proposition that these protections

cannot substitute for the proper burden of proof.

424 The Nguyen court emphasized two factors

in its risk of error analysis: the subjective nature of

the charges against the physician, and the fact that

the agency “‘acts as investigator, prosecutor, and

decision maker.” The court concluded that the

subjective standard of conduct applied by the

Commission, along with deferential judicial review,

created an unacceptable risk of erroneous

deprivation of constitutionally protected interests.

Indeed, the court characterized the charges against

the doctor, which included incompetence, negligence,

malpractice, moral turpitude, dishonesty and

corruption, as “almost entirely subjective in nature,”

and observed that a physician’s standard of care is

necessarily a matter of opinion.*9 The claims against

Ongom, in contrast, are not at all subjective. She

was accused of slapping, kicking, and throwing

objects at a patient under her care. Whether or not

such conduct violates the statute prohibiting abuse of

a patient is hardly a subjective matter. The use of

37 RCW 18.130.100; RCW 34.05.446(3), .449, .461(4),

.510-.598; WAC 246-10; See also Nguyen, 144 Wash. 2d at 545,

29 P.3d 689 (Ireland, J., dissenting).

38 Nguyen, 144 Wash. 2d at 530-31, 29 P.3d 689 (quoting

Painter v. Abels, 998 P.2d 931, 941-42 (Wyo. 2000)).

°9 Id. at 531, 29 P.3d 689.

an objective standard lessens the need for a more

stringent standard of proof.*°

425 In Nguyen, the Medical Quality Assurance

Commission investigated and monitored the doctor’s

conduct, ordered him to be assessed by an

educational program, preferred the charges against

him, and ultimately sat in judgment of him.

Although Nguyen and Ongom were disciplined under

the same. statutes, the procedures. differed

significantly. The proceedings against Nguyen were

adjudicated by the Commission itself, “consisting

largely of professional peers, rather than solely by

administrative law judges or other judicial officers.”4!

Ongom’s case, however, was decided by an

administrative law judge. Use of a professional

judicial officer lessens the influence of the agency

seeking discipline and tends to ensure independent

and unbiased judgment.

26 The procedural protections afforded to

nursing assistants minimize any risk of error, and

support a preponderance standard of proof in

disciplinary proceedings.

27 Government Interest. Ongom suggests the

only government interest at issue is the additional

fiscal burden on the State to employ a higher

standard of proof. We disagree. It is clear that the

government has a substantial interest in protecting

the public from incompetent or abusive nursing

40 See Eidson v. State, Dep't of Licensing, 108 Wash.

App. 712, 720, 32 P.3d 1039 (2001).

1! Nguyen, 144 Wash. 2d at 545, 29 P.3d 689 (Ireland,

J., dissenting).

assistants.‘2 Regrettably, the minimal

qualifications, poor compensation, arduous tasks,

and high demand for nursing assistants encourages

high turnover, which makes it easy for nursing

assistants to escape discipline by moving from one

job to the next. Additionally, nursing assistants, by

definition, work with extremely vulnerable

individuals who are unable to satisfy their own basic

needs for daily living. Many will be unable to report

abuse or testify in disciplinary proceedings. Indeed,

the record here indicates that Usler could not

remember how she had been injured shortly after it

happened. A preponderance of the evidence

standard of proof makes it more likely that abusive

or unscrupulous nursing assistants are properly

disciplined.

4/28 While an individual’s interest in his or her

license to practice as a nursing assistant is

significant, it is outweighed by the public interest in

protecting patients. We therefore hold that requiring

the Program to prove its case by a preponderance of

the evidence adequately protects both Ongom’s

interests and those of the public.

Substantial Evidence

29 An agency’s findings of fact are reviewed

under the substantial evidence standard of

12 See, e.g., Barsky v. Board of Regents of University, 347

U.S. 442, 449, 74 S. Ct. 650, 98 L. Ed. 829 (1954) (“It is

elemental that a state has broad power to establish and enforce

standards of conduct within its borders relative to the health of

everyone there. It is a vital part of a state’s police power. The

state’s discretion in that field extends naturally to the

regulation of all professions concerned with health.”).

RCW 34.05.570(3)(e). “Substantial evidence is

‘evidence in sufficient quantum to persuade a fair-

minded person of the truth of the declared

premises.’”43 This standard requires us to “view ‘the

evidence and the reasonable inferences therefrom in

the light most favorable to the party who prevailed

in the highest forum that exercised fact-finding

authority, a process that necessarily entails

acceptance of the factfinder’s views regarding the

credibility of witnesses and the weight to be given

reasonable but competing inferences.’”44

{30 Ongom contends the Department’s

decision to suspend her license is not supported by

substantial evidence. She points out that of the

three witnesses to the incident (Bristlin,

Chmielewki, [sic] and herself), only one (Bristlin)

provided testimony supporting the charges. But

Woodmark program director Jocelyn Umagat

testified she found a half-dollar sized bruise and

sweiling on Usler’s leg, which corroborated Bristlin’s

report.

{31 In the end, the health law judge had to

choose between the contradictory statements of

Ongom and Bristlin. Ongom contends Bristlin’s

testimony was not credible. But the administrative

law judge concluded otherwise, and it is not

43 Heinmiller v. Dep't of Health, 127 Wash. 2d 595, 607,

903 P.2d 433 (1995) (quoting Nghiem v. State, 73 Wash. App.

405, 412, 869 P.2d 1086 (1994)).

44 Freeburg v. City of Seatile, 71 Wash. App. 367,

371-72, 859 P.2d 610 (1993) (quoting State ex rel. Lige &

Wm. B. Dickson Co. v. County of Pierce, 65 Wash. App. 614, 619,

829 P.2d 217 (1992)).

for us to judge the credibility of witnesses

or the weight to be given conflicting evidence.*®

Bristlin’s statements were corroborated by her

contemporaneous notes in the patient progress log

and by Umagat’s assessment of Usler’s injuries;

Ongom’s testimony was undercut by inconsistent

statements about the incident. The credibility and

weight to be given this evidence was for the trial

judge. We agree with the health law judge that the

State produced substantial evidence to prove by a

preponderance that Ongom abused a patient under

her care.

432 We hold the proper standard of proof in

nursing assistant disciplinary proceedings is a

preponderance of the evidence, and that the evidence

satisfied this standard here. We therefore affirm.

Coleman and Schindler, JJ., concur.

8 Id.

STATE OF WASHINGTON

KING COUNTY SUPERIOR COURT

ALICE ONGOM, .

Petitioner, NO. 02-2-33179-3KNT

~ '

STATE OF WASHINGTON, FINDINGS OF FACT,

DEPARTMENT OF HEALTH, CONCLUSIONS OF

OFFICE OF PROFESSIONAL LAW, JUDGMENT

STANDARDS, AND ORDER

Respondents.

THIS MATTER having come before the

Honorable James Cayce of the King County Superior

Court on June 17, 2003, on a petition under the

Administrative Procedure Act, RCW 34.05, for |

judicial review of a final order of the Secretary of the

Department of Health (Department), Docket No.

01-07-B-1031NA, dated July 2, 2002, and having

considered the petition, heard the presentations of

counsel, and considered the agency record and briefs

filed herein, the Court issues the following:

I. FINDINGS OF FACT

1.1 Petitioner appealed’ the final

administrative order of the Department of Health in

which Petitioner’s nursing assistant registration was

suspended for a period of twenty-four months upon

findings of unprofessional conduct by = an

administrative law judge under RCW 18.130.180.

1.2 Along with her appeal Petitioner filed two

declarations and two exhibits containing facts

outside the agency record on review.

1.3. The factual findings contained in the

Department of Health’s final order are incorporated

herein by reference.

II. CONCLUSIONS OF LAW

2.1 The facts contained in Petitioner’s two

additional declarations and two additional exhibits

are not admissible in a review under Chapter 34.05.

RCW and therefore are not to be considered.

2.2 The findings of fact contained in the

Department’s final order are supported’ by

substantial evidence.

2.3 Petitioner has not demonstrated that the

Department erred in applying the preponderance of

evidence standard of proof in a registered nursing

assistant disciplinary case.

2.4 Petitioner's request for attorney fees is

denied.

Ill. ORDER

IT IS THEREFORE ORDERED that:

3.1 Based on the above Findings of Fact and

Conclusions of Law, the Department’s final order is

AFFIRMED.

DATED this 10 day of July, 2003.

Fo A RO

JUDGE JAMES CAYCE

Presented by:

CHRISTINE O. GREGOIRE

Attorney General

//s//

CHRISTOPHER G. SWANSON, WSBA #30507

Assistant Attorney General

Attorneys for State of Washington

Notice of presentation waived by:

//s//

CLAUDIA KILBREATH, WSBA #23144

DANIEL F. JOHNSON, WSBA #27848

Attorneys for Petitioner '

STATE OF WASHINGTON

DEPARTMENT OF HEALTH

OFFICE OF PROFESSIONAL STANDARDS

In the Matter of the

Registration and/or Docket No. 01-07-B-

Certification to Practice asa | 1031NA

Nursing Assistant of:

ALICE ONGOM, ORDER DENYING

Registration No. RESPONDENT'S

NA00126143, PETITION FOR

Respondent, _ | RECONSIDERATION

Health Law Judge John F. Kuntz, Presiding

Officer for the Department of Health, reviewed a

Petition for Reconsideration filed by Alice Ongom

(the Respondent). Christopher G. Swanson,

Assistant Attorney General, represented the Nursing

Assistant Program of the Department of Health (the

Program). Having reviewed the Respondent’s

petition, the Program’s response and the pleading on

the record in this matter, the Presiding Officer now

enters the following:

I, RELEVANT PROCEDURAL HISTORY

AND FINDINGS OF FACT

1.1 On September 11, 2001, the Program

issued a Statement of Charges against Alice Ongom,

the Respondent, alleging the Respondent engaged in

unprofessional conduct in violation of RCW

18.130.180(24)([sic] abuse of a client or patient).

1.2 On December 3, 2001, the Adjudicative

Clerk Office received the Respondent’s Answer to

Statement of Charges. The Respondent requested an

opportunity for settlement, and a hearing if the

parties were unable to reach settlement.

1.3 On December 4, 2001, the Adjudicative

Clerk Office served upon the parties a Scheduling

Order/Notice of Hearing, scheduling a telephone

prehearing conference date on March 8, 2002, and a

hearing date on April 4, 2002.

1.4 On March 5, 2002, the Respondent filed a

Request for Issuance of Subpoena with the

Adjudicative Clerk Office. The Respondent

requested the subpoena to compel her former

employer, the Woodmark at Steel Lake, to produce

specified documents, and compel the appearance of

one witness, Franciska Chmielewski.

1.5 On March 8, 2002, the Presiding Officer

convened the telephone prehearing conference with

the parties. On March 28, 2002, the Presiding

Officer issued an Order Defining Conduct of Hearing.

Prehearing Order No. 1. Pursuant to the terms of

the order, the Program would provide the

Respondent with a copy of the Program’s

investigative file. The order also contained the

stipulations and agreements entered into by the

parties, and the orders and decisions of the Presiding

Officer.

16 On March 15, 2002, the Adjudicative

Clerk Office served upon the parties a Notice of

Hearing, informing the parties of the date, time and

location of the adjudicative proceeding in this

matter.

1.7 On March 23, 2002, the Presiding Officer

issued a Subpoena for Attendance at Administrative

Hearing, addressed to Franciska Chmielewski, on

behalf of the Respondent. The subpoena notified the

Respondent that she was responsible for the service

of the subpoena, and for any witness fees and

expenses for the appearance of Ms. Chmielewski.

1.8 On April 4, 2002, the Presiding Officer

commenced the adjudicative proceeding with the

parties. On July 2, 2002, the Presiding Officer

issued a Findings of Fact, Conclusions of Law and

Final Order (the Final Order). In the Final Order,

the Presiding Officer found the Respondent

engaged in unprofessional conduct under

RCW __18.130.180(24). The Presiding Officer

concluded the Program proved its case by a

preponderance of the evidence, the standard set for

nursing assistant cases pursuant to WAC 246-

-10-606.

1.9 The order noted the conflicting decisions

by the Washington Supreme Court in Bang Nguyen

v. Department of Health, Medical Quality Assurance

Commission, 144 Wn.2d 516, 29 P.3d 689 (2001),

cert. denied [sic] 535 U.S. __ (2002)([sic] No. 01-734,

issued march 4, 2002) and by the Division One of the

Court of Appeals in -Eidson vu. “Department of

Licensing, 108 Wn.App [sic] 712, 32 P.3d 109 (2001).

For that reason, the Presiding Officer examined the

evidence under both the preponderance of the

evidence standard and clear and_ convincing

standard, pending further legislative or judicial

guidance ir this issue. When reviewed under the

clear and cc’ vincing standard of proof, the Presiding

Officer found the Program did not prove its case.

Conclusions of Law 4.5-4.6.

1.10 Either party could petition for

reconsideration of the order by filing the petition

with the Adjudicative Clerk Office within 10 days of

service, as set forth in RCW 34.05.461(3),

RCW 34.05.470 and WAC 246-10-704. The

Adjudicative Clerk Office served upon the parties, by

mail, a true and correct copy of the Final Order on

July 3, 2002.

1.11 On July 15, 2002, the Respondent filed

her Petition for Reconsideration with the

Adjudicative Clerk Offfice. The Respondent

requested the decision be reconsidered and reversed

_ because:

A. There were three witnesses to the alleged

event, and two of them, the Respondent

and Franciska Chmielewski, say that

Respondent did not commit the acts alleged

or harm the Resident in question.

B. Ms. Chmielewski did not attend the

hearing despite the subpoena. The

Respondent was not able to compel

Ms. Chmielewski’s presence because she

had to go to work for the charging party on

the day of the hearing.

C. The testimony against the Respondent is

that she kicked Resident four times. The

bruises allegedly found on the victim are

not consistent with such extreme abuse.

D. The testimony is that the Respondent

slapped Resident several times. There was

no evidence of any such abuse.

E. The standard of proof should be clear and

convincing evidence, which the Program

did not meet.

1.12 On august 19, 2002, the Presiding Officer

issued an Order Specifying Date of Action on Petition

for Reconsideration. Posthearing Order No. 1.

The order indicated the Program could file a

response within 30 days of the order date (September

18, 2002), and the Presiding Officer would issue a

written disposition of the Respondent’s petition

within 60 days of the order (October 18, 2002).

1.13 On September 18, 2002, the Program

filed a Response to Respondent’s Petition for

Reconsideration with the Adjudicative Clerk Office.

In its response the Program addressed what it

characterized as the Respondent’s errors of law and

errors of fact:

A. The Program characterized the

Respondent’s grounds for reconsideration A, C, and

D as errors of fact. The Program contended it

presented evidence to support the alleged abuse

(Finding of Fact 3.3; Exhibits D-1 though [sic] D-7).

The Program further contended it presented

evidence of the connection between the abuse and

the injuries sustained by Resident A (Finding of Fact

3.7; Exhibits D-1 through D-7). The Program

contends the Presiding Officer weighed all of the

facts and testimony and concluded it had proven its

case by a preponderance of the evidence.

B. The Program characterized the

Respondent’s grounds for reconsideration B and E as

errors of law. The Program contended the Presiding

Officer provided the Respondent with a subpoena to

compel Ms. Chmielewskis attendance at the

adjudicative proceeding. The Program stated it was

unclear whether the Respondent served the

subpoena on Ms. Chmielewski. The Program

contended it did not prevent the Respondent from

securing the witness’s attendance, and therefore no

error of law in this circumstance. ~

C. With respect to issue E, the Program

contended the Respondent did not cite any legal or

other authority for her proposition that the higher

evidentiary standard (clear and convincing evidence)

should apply. The Program noted that there is legal

uncertainly about how the standard should apply to

different professional licenses. In addition to the

case decisions in Bang Nguyen and Ejidson, the

Program cited a recent decision of Division Two of

the Court of Appeals, Nims v. Washington Board of

Registration, __ Wn.App. [sic] __, (Docket No. 27431-

1-II, August 30, 2002). In Nims, the court concluded

that the clear and convincing standard of proof

applied to registered professional engineers. The

Program contends there is no case law extending the

clear and convincing standard to nursing assistant

licenses.

1.14 Following its analysis, the Program

argued the appropriate legal standard for nursing

assistants in the state of Washington continued to be

a preponderance of the evidence, and argued the

Respondent’s petition for reconsideration should be

denied.

1.15 On September 30, 2002, the Respondent

filed her Affidavit in Support for Reconsideration

with the Adjudicative Clerk Office. The Respondent

contended she delivered the subpoena _ to

Ms. Chmielewski, and was_ informed by

Ms. Chmielewski that she would be unable to attend

the hearing due to her work schedule at Woodmark

at Steel Lake (the Respondent’s former employer).

The Respondent asserted she was advised by staff

with the Adjudicative Clerk Office to bring the

witness's telephone number with her to the hearing.

The Respondent further contended that she was

informed the witness’s testimony was not necessary.

Il. CONCLUSIONS OF LAW

2.1 When an adjudicative proceeding is

conducted by a Presiding Officer authorized to make

the final decision, the Presiding Officer must issue a

final order containing findings of fact and

conclusions of law. WAC 246-10-605. The order

must be based upon the kind of evidence upon which

reasonably prudent persons are accustomed to rely

upon in the conduct of their affairs. WAC 246-10-

-606. Except as otherwise provided by statute, the

burden in all cases is a preponderance of the

evidence. WAC 246-110-606.

2.2 The Presiding Officer shall:

(a) Apply as the first source of law governing

an issue those statutes and rules deemed

applicable to the issue;

(b) If there is no statute or rule governing the

issue, resolve the issue on the basis of the

best legal authority and_ reasoning

available, including that found in federal

and Washington constitutions, statutes,

rules and court decisions; and

WAC 246-10-602(3). If the validity of any statute or

rule is raised as an issue, the Presiding Officer may

permit arguments to be made on the _ record

concerning the issue for purposes of subsequent

review. WAC 246-10-602(4).

2.3 The Respondent filed a timely petition for

reconsideration.

2.4 Pursuant to WAC 246-10-602(3), the

Presiding Officer cannot declare WAC 246-10-606 to

be invalid. In other words, until such time as

WAC 246-10-606 is changed or declared invalid!, the

Presiding Officer will apply the preponderance of the

evidence standard to nursing assistant cases.

2.5 Given the legal uncertainty regarding the

standard of proof in disciplinary proceedings

involving the nursing assistant profession, the

Presiding Officer created a record for further review

pursuant to WAC 246-10-602(4).

2.6 In her petition for reconsideration, the

Respondent did not raise any issues pursuant to

WAC 246-10-704(2)(b) or (c). The Respondent’s

petition for reconsideration will be granted, if at all,

pursuant to WAC 246-10-704(2)(a).

1 The Nguyen, Eidson and Nims decisions do not change

or declare WAC 246-10-606 invalid. Similarly, they do not

clearly replace the preponderance of the evidence standard with

a clear and convincing standard for nursing assistants.

2.7 The Respondent has not established a

basis for relief.

2.7.1 While the Respondent may disagree

with the conclusions reached by the Presiding Officer

regarding the evidence, she does not make any

specific showing of a factual error regarding the

decision as required by WAC 246-10-704(4).

Additionally, the Program was required under

RCW 18.130.180 to show abuse of a client, not

extreme abuse as specified in the Respondent’s

petition.

2.7.2 The Respondent alleges that

Ms. Chmielewski failed to appear in response to the

subpoena. The Respondent has not shown that she

made a request to the Presiding Officer for an order

to enforce the subpoena, nor does she make any

specific reference to the hearing record to show that

she requested the Presiding Officer make telephone

contact with the Respondent. In fact, she did not

raise this contention until filing her affidavit in

support of her petition, which was filed after the

Program filed its responsive pleading.

2.7.3 The standard of proof in nursing

assistant cases continues to be preponderance of the

evidence. Although the Program did not prove its

case by clear and convincing evidence, absent

legislative or judicial action on the issue of the

standard of proof, the Presiding Officer concludes he

cannot change the applicable standard. The

Respondent’s issue, however, is preserved for appeal.

III. ORDER

Based on the foregoing Relevant Procedural

History and Findings of Fact, and Conclusions of

Law, the Presiding Officer DENIES the Respondent’

s Petition for Reconsideration.

Proceedings for judicial review may be

instituted by filing a petition in superior court in

accordance with the procedures specified in chapter

34.05 RCW, Part V., Judicial Review and Civil

Enforcement. The petition for judicial review must

be filed within 30 days after service of this Order, as

provided in RCW 34.05.470(3) and RCW 34.05.542.

DATED THIS 18th DAY OF OCTOBER,

2002.

//s//

JOHN F. KUNTZ, Health Law Judge :

Presiding Officer

STATE OF WASHINGTON

DEPARTMENT OF HEALTH

OFFICE OF PROFESSIONAL STANDARDS

In the Matter of the

Registration and/or Docket No. 01-07-B-

Certification to Practice asa | 10O31NA

Nursing Assistant of: FINDINGS OF FACT.

ALICE ONGOM, CONCLUSIONS OF

Registration No. prin i eINAL,

NA00126143;

Respondent.

An administrative hearing was held in this

matter before Health Law Judge John F. Kuntz,

Presiding Officer for the Department of Health, on

April 4, 2002, at 10:00 a.m., at the Department of

Health, 1101 Eastside Street, Room 6, Olympia,

Washington. Christopher G. Swanson, Assistant

Attorney General, represented the Nursing Assistant

Program of the Department of Health (the Program).

Alice Ongom (the Respondent), appeared and was

not represented by an attorney. Robert Lewis,

certified court reporter, recorded the proceedings.

Having considered the testimony and evidence

presented in this matter, the Presiding Officer now

enters the following:

I. PROCEDURAL HISTORY

1.1 On September 11, 2001, the Program

issued a Statement of Charges against the

Respondent, Alice Ongom, alleging she engaged in

unprofessional conduct in violation of

RCW 18.130.180(24). This document was served, by

mail, upon the Respondent at the address on file

with the Program: 32324 4th Place S., Q4, Federal

Way, Washington 98003.

1.2 The Adjudicative Clerk Office issued a

Notice of Failure to Respond to the parties. This

document was dated September 3, 2001.

1.3 On October 4, 2001, the Adjudicative

Clerk Office issued a Notice of Failure to Respond

(Corrected Service date).

1.4 On October 30, 2001, the Program again

served the Respondent, by mail, with the Statement

of Charges. This set of charges was served at the

Respondent’s new address on file with the Program:

33011 27th Avenue SW, Federal Way, Washington

98023.

1.5 On November 29, 2001, the Adjudicative

Clerk Office issued a Notice of Failure to Respond to

the parties. This notice was served, by mail, on the

Respondent at the address on file with the Program:

33011 27th Avenue SW, Federal Way, Washington

98023.

1.6 On December 3, 2001, the Respondent

filed her Answer to Statement of Charges with the

Adjudicative Clerk office. The Respondent requested

an opportunity for settlement, and an administrative

hearing in the event the parties were unable to reach

settlement in this matter.

1.7 On December 3, 2001, the Hearing

Scheduler from the Adjudicative Clerk Office sent a

memorandum to the Assistant Attorney General

representing the Program. The memorandum

advised the Assistant Attorney General to disregard

the Notice of Failure to Respond issued on November

29, 2001, as it appeared the Respondent’s Answer

was received by the Program and Office of Attorney

General before that date.

1.8 On December 4, 2001, the Adjudicative

Clerk Office served upon the parties a Scheduling

Order/Notice- of Hearing, scheduling a telephone

prehearing conference on’ March 8, 2002 and a

hearing on April 4, 2002.

1.9 On March 8, 2002, the Presiding Officer

conducted a telephone prehearing conference with

the parties.

1.10 On March 15, 2002, the Adjudicative

Clerk Office issued a Notice of Hearing to the

parties. This notice informed the parties that the

hearing would commence on April 3, 2002, at 10:00

a.m., at the Department of Health, 1101 Eastside

Street, Room 6, Olympia, Washington.

1.11 On March 28. 2002, the Presiding Officer

issued an Order Defining Conduct of Hearing.

Prehearing Order. No. 1. This order contained the

stipulations and agreements entered into by the

parties, and the orders and decisions of the Presiding

Officer. Pursuant to the terms of the order, the

Presiding Officer reserved ruling on the Program’s

witnesses and exhibits until hearing. The Presiding

Officer reserved ruling to allow the Respondent to

receive and review a copy of the investigative file

from the Program.

1.12 On April 4, 2002, the Presiding Officer

conducted an in-person prehearing conference with

the parties prior to the hearing. During this

prehearing conference the Presiding Officer admitted

the exhibits previously offered by the Program, and

allowed the appearance of the two _ identified

Program witnesses (see paragraph 2.2 below). The

Respondent did not object to the admission of the

Program documents or appearance of the Program

witnesses in this matter. Additionally, the Presiding

Officer admitted the Respondent’s statement dated

April 29, 2001 (see paragraph 2.3 below). The

Program did not object to the admission of

Exhibit R-2.

II. HEARING

2.1 The Program called Rebecca Bristlin and

Jocelyn Umagat to testify as witnesses at the

hearing. The Respondent testified, and did not call

any additional witnesses to testify at hearing.

2.2 The following Program exhibits were

admitted at hearing:

Exhibit D-1: A copy of the resident progress

notes related to the care of

Resident A from February 22,

2001 through March 1, 2001.

Exhibit D-2: A copy of the resident incident

report, dated February 23, 2001.

Exhibit D-3: A copy of the sworn statement of

Rebecca Bristlin, dated April 19,

2001.

Exhibit D-4: A copy of the facility investiga-

tion conducted by Krista Marti.

Exhibit D-5: A copy of a report of Resident A’s

February 26, 2001 visit to

Leonico Panlasigui, M.D.

Exhibit D-6: A copy of the sworn statement of

Jocelyn Umagat, dated April 5,

2001.

Exhibit D-7: A copy of the investigation report

prepared by Candace Goehring,

R.N., BSN.

2.3 The following Respondent exhibit [sic] was

admitted at hearing:

Exhibit R-1: Affidavit of Franciska Chemie-

lewski, dated December 28, 2001.

Exhibit R-2: Statement of Alice Ongom, dated

~ April 29, 2001.

Ill. FINDINGS OF FACT

3.1 Alice Ongom, the Respondent, was issued

a registration to practice as a nursing assistant in

the state of Washington in July 2000, and was

registered at all times material hereto.

3.2 Rebecca Bristlin was employed as a

caregiver at the Woodmark at Steel Lake, Federal

Way, Washington (Woodmark) during 2001.

Ms. Bristlin described Woodmark as a retirement

home, and stated the facility houses Alzheimer’s

patients in a special care unit. In her job as a

caregiver, Ms. Bristlin provided the residents with

their daily assisted living needs (e.g., dressing,

feeding and hygiene needs). During her employment

at Woodmark, Ms. Bristlin was familiar with

Resident A. Ms. Bristlin knew this resident to be a

combative-type person (see also Exhibit R-1).

3.3 On February 22, 2001, Ms. Bristlin

observed the Respondent engage in abusive behavior

toward Resident during the dinner hour.

Ms. Bristlin, from a vantage point behind and

slightly to one side of the Respondent, observed the

Respondent pick up a cup or dish from the floor and

throw this cup/dish at the resident. Additionally, the

Respondent was observed to slap Resident A on the

hand several times (perhaps three or four times).

Immediately after slapping her on the hands, the

Respondent also kicked Resident A on the left ankle

or lower leg.

3.4 Ms. Bristlin did not report the above

incident to management until February 23, 2001. In

hindsight, she realized delaying her report was a

mistake. Ms. Bristlin decided she would report this

incident to Ms. Gorham, a nurse the witness was

familiar and comfortable with from working with her

during the day shift. Ms. Bristlin decided that

removing Resident A from the area was the best way

to defuse the situation and/or protect Resident A

from further harm. Ms. Bristlin did make entries to

the Resident Progress Notes on file for Resident A

(see Exhibit D-1, page 1) regarding the incident.

3.5 Jocelyn Umagat, L.P.N., has been

employed at the Woodmark as a Program Director

for the last two years. She was initially employed to

work as a licensed practical nurse, but was

promoted to the Program Director position for the

special care unit after four months. Ms. Umagat

knew the Respondent, as she hired the Respondent

to work as a registered nursing assistant and/or

caregiver for the Woodmark. Ms. Umagat also

provided training to the Respondent in the area of

resident safety, including how to identify and report

any incidents of resident abuse.

3.6 Ms. Umagat described Resident A as an

individual who was in the latter stages of

Alzheimer’s. Resident A also suffered from high

blood pressure. Following the reported incident,

Ms. Umagat examined Resident A. The resident had

a half-dollar sized bruise on her lower left extremity,

and the bruised area was slightly hot to the touch.

Resident A received medical attention for this injury

(see Exhibits D-1 and D-5).

3.7 In her position as Program -Duirector

Ms. Umagat interviewed all of the witnesses or

participants involved with the incident on February

22, 2001, including Rebecca Bristlin, Franciska

Chemielewski and the Respondent. Based on

Ms. Bristlin’s report, and the resident’s injuries,

Ms. Umagat believed the incident occurred as

reported. Ms. Umagat filled out a Resident Incident

Report (see Exhibit D-2) and reported her findings to

the acting executive director for the facility.

3.8 Ms. Umagat spoke with the Respondent

regarding the incident. The Respondent denied

throwing anything at Resident A, and explained that

she was trying to reach the resident's hand to

prevent her (the resident) from throwing anything at

her (the Respondent). The Respondent initially

denied kicking Resident A, but at a later point in the

discussion she stated she tripped over Resident A’s

leg. Following the discussion, Ms. Umagat notified

the Respondent she was being terminated from

working at the facility based on her conduct during

the incident (see Exhibit D-6).

3.9 The Respondent denied throwing the dish

at Resident A after picking it up. In fact, the

Respondent contended Resident A was violent

toward her from the first day of her employment at

the Woodmark. Resident A also made racist

comments to the Respondent at various times while

the-Respondent provided care to the resident. The

Respondent holds no anger toward Resident A, as

she understands the resident is “sick” and not

responsible for her actions.

3.10 During her testimony, the Respondent

referred to her April 2001 statement regarding the

incident of February 22, 2001 (see Exhibit R-2). The

Respondent recalled that Resident A_ threw

silverware and/or dishes at the Respondent. The

Respondent stated she suffered an injury to her

shoulder as a result of being hit by the dish thrown

by Resident A. The dish then fell to the floor. The

Respondent denies picking the dish up at any time.

The Respondent grabbed a plate from Resident A to

prevent further injury, and attempted to grab

Resident A’s hands to stop the resident’s violent

behavior. The Respondent remembered asking

Resident A not to throw dishes at her at least three

times, to no avail. The Respondent requested help

from the other caregivers present in the room, but

stated she received no help in response to her

requests.

3.11 The Respondent stated her version of the

event is supported by an affidavit signed by

Franciska Chemielewski (see Exhibit’ R-1).

According to her statement in the affidavit,

Ms. Chemielewski did not observe the Respondent

throw anything at Resident A.

3.12 The Respondent noted that Resident A’s

described injuries were inconsistent with the “abuse”

which she was alleged to have committed against the

resident. For example, Resident A has no wrist

injuries described in her treatment _ records.

Additionally, the ankle/lower left extremity injury

was not consistent with the type of repeated trauma

described in the incident report.

IV. CONCLUSIONS OF LAW

4.1 The Secretary of Health has jurisdiction

over the Respondent and over the subject matter of

this administrative proceeding. RCW 18.88A.050

and RCW 18.88A.150. See also WAC 246-10-101

through WAC 246-10-103. In this case the Secretary

delegated this jurisdictional authority to the

Presiding Officer.

4.2 The Secretary of Health has the author-

ity to discipline nursing assistants under the

Uniform Disciplinary Act, chapter 18.130 RCW.

RCW 18.130.160. In this case the Secretary of

Health delegated this disciplinary authority to the

Presiding Officer.

4.3 The Program bears the burden of proving

the factual allegations set forth in the Statement of

Charges by a _ preponderance of the evidence.

WAC 246-10-606. The Presiding Officer recognizes

that the Washington State Supreme Court has held

the standard of proof in disciplinary proceedings

against physicians before the Washington State

Medical Quality Assurance Commission is now proof

by clear and convincing evidence. Bang Nguyen uv.

Department of Health, Medical Quality Assurance

Commission, 144 Wn.2d 516, 29 P.3d 689 (2001), cert

denied, 535 U.S. __ (2002) (No. 01-734, issued

March 4, 2002). Further, the Washington Court of

Appeals has since held that Bang Nguyen should not

necessarily be extended [sic] disciplinary proceedings

against all professionals. Eidson v. Department of

Licensing, 108 Wn.App. [sic] 712, 32 P.3d 109 (2001).

4.4 Given the legal uncertainly regarding the

standard of proof in disciplinary proceedings against

the nursing assistant professions, the Presiding

Officer concludes the standard of proof in this

proceeding shall remain preponderance of the

evidence, pending further legislative or judicial

guidance on this issue. However, recognizing that

the standard of proof applicable to this proceeding

may subsequently be determined to be clear and

convincing evidence, the Presiding Officer elects to

consider the evidence under both the clear and

convincing standard, as well as the preponderance of

the evidence standard.

4.5 RCW 18.130.180(24) defines unpro-

fessional conduct to include “abuse of a client or

patient or sexual conduct with a client or patient”.

Based on Findings of Fact 3.2 through 3.12, the

Presiding Officer concludes the Program has proven

by a preponderance of the evidence, but not by clear

and convincing evidence, that the Respondent’s

conduct violated RCW _ 18.130.180(24) (regarding

abuse of a client). Tne Presiding Officer concludes

this violation was moderate in nature.

46 The Presiding Officer concludes the

Program did not prove its case by clear and

convincing evidence. The Presiding Officer concludes

this is so because there are conflicting witness

statements whether the Respondent touched

Resident A or threw anything at Resident A.

Additionally, there was a period of time between the

time the incident in question, and when Resident A’s

injury was diagnosed or assessed. Finally, the [sic]

was evidence to show that Resident A was

combative and known to kick out on her own. While

the evidence provided by the Program is of the type

that “reasonably prudent persons are accustomed to

rely upon in the conduct of their affairs” (see

WAC 246-10-606), it is not of the type that is “highly

probable” (see State Farm Fire & Cas. Co. v. Huynh,

92 Wn.App. [sic] 454 (1998)), following a review and

consideration of all of the evidence in the record.

4.7 Upon a finding of unprofessional conduct,

the Secretary of Health has the authority to order

appropriate sanctions. RCW 18.130.160. In this

case the Secretary of Health delegated the authority

to order sanctions to the Presiding Officer. In

determining what action is appropriate, the

Presiding Officer must first consider what sanctions

are necessary to protect or compensate the public.

RCW 18.130.160. Only after such provisions have

been made may the Presiding Officer consider and

include in the order requirements designed to

rehabilitate the license holder or _ applicant.

RCW 18.130. 160.

4.8 Based on his conclusions in paragraphs

4.5 and 4.6 above, the Presiding Officer concludes the

Respondent's conduct constitutes unprofessional

conduct and that sanctions are required in this

matter.

V. ORDER

Based on the foregoing Procedural History,

Findings of Fact and Conclusions of Law, the

Presiding Officer issues the following ORDERS:

5.1 The registration to practice as a nursing

assistant in the state of Washington for the

Respondent, Alice Ongom, is SUSPENDED for a

period of 24 months from the date of service of this

Order.

5.2 Within 10 days of the date of service of

this Order, the Respondent shall thoroughly

complete the attached Healthcare Integrity and

Protection Data Bank Reporting Form (Section 1128

of the Social Security Act) and return the completed

form to the Nursing Assistant Program.

5.3 The protective order adopted by the

Presiding Officer in Prehearing Order No. 1 is hereby

adopted as a part of this Order, pursuant to WAC

246-10-405: THE PRESIDING OFFICER HEREBY

ADOPTS AS A PART OF THIS FINAL ORDER A

PROTECTIVE ORDER. THE PRESIDING OFFICER

PROHIBITS FROM PUBLIC DISCLOSURE ANY

AND ALL HEALTH CARE INFORMATION

CONTAINED IN THE EXHIBITS LISTED ABOVE,

EXCEPT AS PROVIDED IN CHAPTER 70.02 RCW,

OR BY ORDER OF A DEPARTMENT OF HEALTH

PRESIDING OFFICER OR ORDER BY A COURT OF

COMPETENT JURISDICTION.

VI. NOTICE TO PARTIES

As provided in RCW 34.05.461(3), RCW

34.05.470 and WAC 246-10-704, either party may file

a petition for reconsideration. The petition must be

filed within 10 days of service of this Order with the

Adjudicative Clerk office, 1107 Eastside Street,

PO Box 47879, Olympia, WA 98504-7879. The

petition for reconsideration must state the specific

grounds upon which reconsideration is_ being

requested, and the relief requested. The petition for

reconsideration shall not stay the effectiveness of

this Order. The petition for reconsideration is

deemed to have been denied 20 days after the

petition is filed if the Adjudicative Clerk office has

not acted on the petition or served written notice of

the date by which action will be taken on the

petition.

Proceedings for judicial review may be

instituted by filing a petition in superior court in

accordance with the procedures specified in chapter

34.05 RCW, Part V, Judicial Review and Civil

Enforcement. The petition for judicial review must

be filed within 30 days after service of this Order, as

provided in RCW 34.05.542.

DATED THIS 2nd DAY OF JULY, 2002.

//s//

JOHN F. KUNTZ, Health Law Judge

Presiding Officer

Wash. Const. art. XX, § 2

Regulations concerning medicine,

surgery and pharmacy. ‘The legislature shall

enact laws to regulate the practice of medicine and

surgery, and the sale of drugs and medicines.

Chapter 18.88A

Nursing Assistants

RCW 18.88A.010

Legislative declaration.

The legislature takes special note of the

contributions made by nursing assistants in health

care facilities whose tasks are arduous and whose

working conditions may be contributing to the high

and often critical turnover among the principal cadre

of health care workers who provide for the basic

needs of patients. The legislature also recognizes the

growing shortage of nurses as the proportion of the

elderly population grows and as the acuity of

patients in hospitals and nursing homes becomes

generally more severe.

The legislature finds and declares that

occupational nursing assistants should have a formal

system of educational and experiential qualifications

leading to career mobility and advancement. The

establishment of such a system should bring about a

more stabilized work force in health care facilities, as

well as provide a valuable resource for recruitment

into licensed nursing practice.

The legislature finds that the quality of

patient care in health care facilities is dependent

upon the competence of the personnel who staff their

facilities. To assure the availability of trained

personnel in health care facilities the legislature

recognizes the need for training programs for

nursing assistants.

The legislature declares that the registration

of nursing assistants and providing for voluntary

certification of those who wish to Seek higher levels

of qualification is in the interest of the public health,

safety, and welfare.

RCW 18.88A.020

Definitions.

Unless the context clearly requires otherwise,

the definitions in this section apply throughout this

chapter.

(1) “Department” means the department of

health.

(2) “Secretary” means the secretary of health.

(3) “Commission” means the Washington

nursing care quality assurance commission.

(4) “Nursing assistant” means an individual,

regardless of title, who, under the direction and

supervision of a registered nurse or licensed practical

nurse, assists in the delivery of nursing and nursing-

related activities to patients in a health care facility.

The two levels of nursing assistants are (a) “nursing

assistant-certified,” an individual certified under this

chapter, (b) “nursing assistant-registered,” an!

individual registered under this chapter.

(5) “Approved training program” means a

nursing assistant-certified training program

approved by the commission. For community college,

vocational-technical institutes, skill centers, and

secondary school as defined in chapter 28B.50 RCW,

nursing assistant-certified training programs shall

be approved by the commission in cooperation with

the board for community and technical colleges or

the superintendent of public instruction.

(6) “Health care facility’ means a nursing

home, hospital, hospice care facility, home health

care agency, hospice agency, or other entity for

delivery of health care services as defined by the

commission.

(7) “Competency evaluation” means the

measurement of an individual’s knowledge and skills

as related to safe, competent performance as a

nursing assistant.

RCW 18.88A.030

Scope of practice — Voluntary certification —

Rules.

(1) A nursing assistant may assist in the care

of individuals as delegated by and under the

direction and supervision of a licensed (registered)

nurse or licensed practical nurse.

(2) A health care facility shall not assign a

nursing assistant-registered to provide care until the

nursing assistant-registered has demonstrated skills

necessary to perform competently all assigned duties

and responsibilities.

(3) Nothing in this chapter shall be construed

to confer on a nursing assistant the authority to

administer medication unless delegated as a specific

nursing task pursuant to this chapter or to practice

as a licensed (registered) nurse or licensed practical

nurse as defined in chapter 18.79 RCW.

(4) Certification is voluntary for nursing

assistants working in health care facilities other

than nursing homes unless otherwise required by

state or federal law or regulation.

(5) The commission may adopt rules to

implement the provisions of this chapter.

RCW 18.88A.040

Registration and certification.

(1) No person may practice or represent

himself or herself as a nursing assistant-registered

by use of any title or description without being

registered by the department pursuant to this

chapter.

(2) After October 1, 1990, no person may by

use of any title or description, practice or represent

himself or herself as a nursing assistant-certified

without applying for certification, meeting the

qualifications, and being certified by the department

pursuant to this chapter.

RCW 18.88A.050

Powers of secretary.

In addition to any other authority provided by

law, the secretary has the authority to:

(1) Set all certification, registration, and

renewal fees ia accordance with RCW 43.70.250 and

to collect and deposit all such fees in the health

professions account established under RCW

43.70.320;

(2) Establish forms, procedures, and

examinations necessary to administer this chapter;

(3) Hire clerical, administrative, and

investigative staff as needed to implement this

chapter;

(4) Issue a registration to any applicant who

has met the requirements for registration;

(5) After January 1, 1990, issue a certificate to

any applicant who has met the education, training,

and conduct requirements for certification;

(6) Maintain the official record for the

department of all applicants and persons with

registrations and certificates;

(7) Exercise disciplinary authority as

authorized in chapter 18.130 RCW;

(8) Deny registration to any applicant who

fails to meet requirement for registration;

(9) Deny certification to applicants who do not

meet the education, training, competency evaluation,

and conduct requirements for certification.

RCW 18.88A.060

Commission — Powers.

In addition to any other authority provided by

law, the commission may:

(1) Determine minimum education

requirements and approve training programs;

~ (2) Prepare, grade, and administer, or

determine the nature of, and supervise the grading

and administration of, examinations of training and

competency for applicants for certification;

(3) Determine whether alternative methods of

training are equivalent to approved training

programs, and establish forms, procedures, and

criteria for evaluation of an applicant’s alternative

training to determine the applicant’s eligibility to

take any qualifying examination for certification;

(4) Define and approve any experience

requirement for certification;

(5) Adopt rules implementing a continuing

competency evaluation program;

(6) Adopt rules to enable it to carry into effect

the provisions of this chapter.

RCW 18.88A.080

Registration requirements.

(1) The secretary shall issue a registration to

any applicant who pays any applicable fees and

submits, on forms provided by the secretary, the

applicant’s name, address, and other information as

determined by the secretary, provided there are no

grounds for denial of registration or issuance of a

conditional registration under this chapter or

chapter 18.130 RCW.

(2) Applicants must file an application with

the commission for registration within three days of

employment.

-RCW 18.88A.085

Certification of requirements.

(1) After January 1, 1990, the secretary shall

issue a certificate to any applicant who demonstrates

to the secretary’s satisfaction that the following

requirements have been met:

(a) Completion of an approved training

program or successful completion of alternate

training meeting established criteria approved

by the commission; and

(b) Successful completion of a

competency evaluation.

(2) In addition, applicants shall be subject to

the grounds for denial of certification under chapter

18.130 RCW.

RCW 18.88A.090

Examinations.

(1) The date and location of examinations shall

be established by the secretary. Applicants who have

been found by the secretary to meet the

requirements for certification shall be scheduled for

the next examination following the filing of the

application. The secretary shall establish by rule the

examination application deadline.

(2) The commission shall examine each

applicant, by a written or oral and a manual

component of competency evaluation. Examinations

shall be limited to the purpose of determining

whether the applicant possesses the minimum skill

and knowledge necessary to practice competently.

(3) The examination papers, all grading of the

papers, and the grading of skills demonstration shall

be preserved for a period of not less than one year

after the commission has made and published the

decisions. All examinations shall be conducted under

fair and wholly impartia! methods.

(4) Any applicant failing to make the required

grade in the first examination may take up to three

subsequent examinations as the applicant desires

upon prepaying a fee determined by the secretary

under RCW _ 43.70.250 for each subsequent

examination. Upon failing four examinations, the

secretary may invalidate the original application and

require such remedial education before the person

may take future examinations.

(5) The commission may approve an

examination prepared or administered by a private

testing agency or association of licensing agencies for

use by an applicant in meeting the credentialing

requirements.

RCW 18.88A.110

Certificates for applicants credentialed in

another state.

An applicant hoiding a credential in another

state may be certified by endorsement to practice in

this state without examination if the secretary

determines that the other state’s credentialing

standards are substantially equivalent to the

standards in this state.

RCW 18.88A.120

Applications for registration and certification

— Fee.

Applications for registration and certification

shall be submitted on forms provided by the

secretary. The secretary may require any

information and documentation that reasonably

relates to the need to determine whether the

applicant meets the criteria for registration and

certification credentialing provided for in this

chapter and chapter 18.130 RCW. Each applicant

shall comply with administrative procedures,

administrative requirements, and fees determined by

the secretary under RCW 43.70.250 and 43.70.280.

RCW 18.88A.130

Renewal of registration or certification.

Registrations and certifications shall be

renewed according to administrative procedures,

administrative requirements, and fees determined by

the secretary under RCW 43.70.250 and 43.70.280.

RCW 18.88A.150

Application of uniform disciplinary act.

The uniform disciplinary act, chapter 18.130

RCW, governs unregistered or uncertified practice,

issuance of certificates and registrations, and the

discipline of persons registered or with certificates

under this chapter. The secretary shall be the

disciplinary authority under this chapter.

RCW 18.88A.200

Delegation of nursing care tasks — Legislative

finding.

The legislature recognizes that nurses have

been successfully delegating nursing care tasks to

family members and auxiliary staff for many years.

The opportunity for a nurse to delegate to nursing

assistants qualifying under RCW 18.88A.210 may

enhance the viability and quality of health care

services in community-based care settings and

in-home care settings to allow individuals to live

as independently as_ possible with maximum

safeguards.

RCW 18.88A.210

Delegation — Generally.

(1) A nursing assistant meeting. the

requirements of this section who provides care to

individuals in community-based care settings or in-

home care settings, as defined in RCW 18.79.260(3),

may accept delegation of nursing care tasks by a

registered nurse as provided in RCW 18.79.260(3).

(2) For the purposes of this section, “nursing

assistant” means a nursing assistant-registered or a

nursing assistant-certified. Nothing in this section

may be construed to affect the authority of nurses to

delegate nursing tasks to other persons, including

licensed practical nurses, as authorized by law.

(3) Before commencing any specific nursing

care tasks authorized under this chapter, the

nursing assistant_must (a) provide to the delegating

nurse a certificate of completion issued by the

department of social and health services indicating

the completion of basic core nurse delegation

training, (b) be regulated by the department of

health pursuant to this chapter, subject to the

uniform disciplinary act under chapter 18.130 RCW,

and (c) meet any additional training require-

ments identified by the nursing care quality

assurance commission. Exceptions to these

training requirements must adhere to RCW

18.79.260(3)(e)(v).

RCW 18.88A.230

Delegation — _ Liability — Reprisal or

disciplinary action.

(1) The nursing assistant shall be accountable

for their own individual actions in the delegation

process. Nursing assistants following’ written

delegation instructions from registered nurses

performed in the course of their accurately written,

delegated duties shall be immune from liability.

(2) Nursing assistants shall not be subject to

any employer reprisal or disciplinary action by the

secretary for refusing to accept delegation of a

nursing task based on patient safety issues. No

community-based care setting as defined in RCW

18.79.260(3)(e), or in-home services agency as

defined in RCW 70.127.010, may discriminate or

retaliate in any manner against a person because the

person made a complaint or cooperated in the

investigation of a complaint.

Chapter 18.130

Regulation Of Health Professionals

Uniform Disciplinary Act

RCW 18.130.010

Intent.

It is the intent of the legislature to strengthen

and consolidate disciplinary and __ licensure

procedures for the licensed health and health-related

professions and businesses by providing a uniform

disciplinary act with standardized procedures for the

licensure of health care professionals and the

enforcement of laws the purpose of which is to assure

the public of the adequacy of professional competence

and conduct in the healing arts.

It is also the intent of the legislature that all

health and _ health-related professions newly

credentialed by the state come under the Uniform

Disciplinary Act.

Further, the legislature declares that the

addition of public members on all health care

commissions and boards can give both the state and

the py.blic, which it has a statutory responsibility to

protect, assurances of accountability and confidence

in the various practices of health care.

RCW 18.130.020 i

Definitions.

Unless the context clearly requires otherwise,

the definitions in this section apply throughout this

chapter.

(1) “Disciplining authority” means the agency,

board, or commission having the authority to take

disciplinary action against a holder of, or applicant

for, a professional or business license upon a finding

of a violation of this chapter or a chapter specified

under RCW 18.130.040.

(2) “Department” means the department of

health.

(3) “Secretary” means the secretary of health

or the secretary’s designee.

(4) “Board” means any of those boards

specified in RCW 18.130.040.

(5) “Commission” means any of the

commissions specified in RCW 18.130.040.

(6) “Unlicensed practice” means:

(a) Practicing a profession or operating

a business identified in RCW _ 18.130.040

without holding a valid, unexpired, unrevoked,

and unsuspended license to do so; or

(b) Representing to a consumer, through

offerings, advertisements, or use of a

professional title or designation, that the

individual is qualified to practice a profession

or operate a business identified in RCW

18.130.040, without holding a _ valid,

unexpired, unrevoked, and unsuspended

license to do so.

(7) “Disciplinary action” means_ sanctions

identified in RCW 18.130.160.

(8) “Practice review” means an investigative

audit of records related to the complaint, without

prior identification of specific patient or consumer

names, or an assessment of the _ conditions,

circumstances, and methods of the professional’s

practice related to the complaint, to determine

whether unprofessional conduct may have been

committed.

(9) “Health agency” means city and county

health departments and the department of health.

(10) “License,” “licensing,” and “licensure”

shall be deemed equivalent to the terms “license,”

“licensing,” “licensure,” “certificate,” “certification,”

and “registration” as those terms are defined in RCW

18.120.020.

RCW 18.130.040

Application to certain professions — Authority

of secretary — Grant or denial of licenses —

Procedural rules.

(1) This chapter applies only to the secretary

and the boards and commissions having jurisdiction

in relation to the professions licensed under the

chapters specified in this section. This chapter does

not apply to any business or profession not licensed

under the chapters specified in this section.

(2) (a) The secretary has authority under _

this chapter in relation to the following

professions:

(i) Dispensing opticians licensed

and designated apprentices under

chapter 18.34 RCW;

(i) Naturopaths licensed under

chapter 18.36A RCW;

(iii) Midwives licensed under

chapter 18.50 RCW;

(iv) Ocularists licensed under

chapter 18.55 RCW;

(v) Massage operators and

businesses licensed under chapter

18.108 RCW;

(vi) Dental hygienists licensed

under chapter 18.29 RCW;

(vii) Acupuncturists licensed

under chapter 48.06 RCW;

(viii) Radiologic technologists”

certified and X-ray _ technicians

registered under chapter 18.84 RCW;

(ix) Respiratory care practitioners

licensed under chapter 18.89 RCW;

(x) Persons registered under

chapter 18.19 RCW;

(xi) Persons licensed as mental

health counselors, marriage and family

therapists, and social workers under

chapter 18.225 RCW;

(xi) Persons’ registered = as

nursing pool operators under chapter

18.52C RCW;

(xiii) Nursing assistants ?

registered or certified under chapter

18.88A RCW;

(xiv) Health care assistants

certified under chapter 18.135 RCW;

(xv) Dietitians and nutritionists

certified under chapter 18.138 RCW;

(xvi) Chemical dependency

professionals certified under chapter

18.205 RCW;

(xvii) Sex offender treatment

providers and certified affiliate sex

offender treatment providers certified

under chapter 18.155 RCW;

(xvill) Persons licensed and

certified under chapter 18.73 RCW or

RCW 18.71.2085;

(xix) Denturists licensed under

chapter 18.30 RCW;

(xx) Orthotists and prosthetists

licensed under chapter 18.200 RCW;

(xxi) Surgical technologists

registered under chapter 18.215 RCW;

and

(xxii) Recreational therapists.

(b) The boards and commissions having

authority under this chapter are as follows:

100

(i) The podiatric medical board as

established in chapter 18.22 RCW;

(i) The chiropractic quality

assurance commission as established in

chapter 18.25 RCW;

(iii) The dental quality assurance

commission as established in chapter

18.32 RCW;

(iv) The board of hearing and

speech as established in chapter 18.35

RCW;

(v) The board of examiners for

_nursing home _ administrators’ as

established in chapter 18.52 RCW;

(vi) The optometry board as

established in chapter 18.54 RCW

governing licenses issued under chapter

18.53 RCW;

(vii) The board of osteopathic

medicine and surgery as established in

chapter 18.57 RCW governing licenses

issued under chapters 18.57 and 18.57A

RCW;

(viii) The board of pharmacy as

established in chapter 18.64 RCW

governing licenses issued under

chapters 18.64 and 18.64A RCW;

(ix) The medical quality

assurance commission as established in

chapter 18.71 RCW governing licenses

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and registrations issued under chapters

18.71 and 18.71A RCW;

(x) The board of physical therapy

as established in chapter 18.74 RCW;

(xi) The board of occupational

therapy practice as established in

chapter 18.59 RCW;

(xii) The nursing care quality

assurance commission as established in

chapter 18.79 RCW governing licenses

and registrations issued under that

chapter;

(xiii) The examining board of

psychology and _ its disciplinary

committee as established in chapter

18.83 RCW; and

(xiv) The veterinary board of

governors as established in chapter

18.92 RCW.

(3) In addition to the authority to discipline

license holders, the disciplining authority has the

authority to grant or deny licenses based on the

conditions and criteria established in this chapter

and the chapters specified in subsection (2) of this

section. This chapter also governs any investigation,

hearing, or proceeding relating to denial of licensure

or issuance of a license conditioned on the applicant's

compliance with an order entered pursuant to RCW

18.130.160 by the disciplining authority.

(4) All disciplining autnorities shall adopt

procedures to ensure’ substantially consistent

application of this chapter, the Uniform Disciplinary

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Act, among the disciplining authorities listed in

subsection (2) of this section.

RCW 18.130.050

Authority of disciplining authority.

The disciplining authority has the following

authority:

(1) To adopt, amend, and rescind such rules as

are deemed necessary to carry out this chapter;

(2) To investigate all complaints or reports of

unprofessional conduct as defined in this chapter and

to hold hearings as provided in this chapter;

(3) To issue subpoenas and administer oaths

in connection with any investigation, hearing, or

proceeding held under this chapter;

(4) To take or cause depositions to be taken

and use other discovery procedures as needed in any

investigation, hearing, or proceeding held under this

chapter;

(5) To compel attendance of witnesses at

hearings;

(6) In the course of investigating a complaint

or report of unprofessional conduct, to conduct

practice reviews; -

(7) To take emergency action ordering

summary suspension of a license, or restriction or

limitation of the license holder’s practice pending

proceedings by the disciplining authority. Consistent

with RCW 18.130.370, a disciplining authority shall

issue a summary suspension of the license or

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temporary practice permit of a license holder

prohibited from practicing a health care profession in

another state, federal, or foreign jurisdiction because

of an act of unprofessional conduct that is

substantially equivalent to an act of unprofessional

conduct prohibited by this chapter or any of the

chapters specified in RCW 18.130.040. The summary

suspension remains in effect until proceedings by the

Washington disciplining authority have been

completed;

(8) To use a presiding officer as authorized in

RCW 18.130.095(3) or the office of administrative

hearings as authorized in chapter 34.12 RCW to

conduct hearings. The disciplining authority shall

make the final decision regarding disposition of the

license unless the disciplining authority elects to

delegate in writing the final decision to the presiding

officer;

(9) To use individual members of the boards to

direct investigations. However, the member of the

board shall not subsequently participate in the

hearing of the case;

(10) To enter into contracts for professional

services determined to be necessary for adequate

enforcement of this chapter;

(11) To contract with licensees or other

persons or organizations to provide services

necessary for the monitoring and supervision of

licensees who are placed on probation, whose

professional activities are restricted, or who are for

any authorized purpose subject to monitoring by the

disciplining authority;

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(12) To adopt standards of professional

conduct or practice;

(13) To grant or deny license applications, and

in the event of a finding of unprofessional conduct by

an applicant or license holder, to impose any

sanction against a license applicant or license holder

provided by this chapter;

(14) To designate individuals authorized to

sign subpoenas and statements of charges;

(15) To establish panels consisting of three or

more members of the board to perform any duty or

authority within the board’s jurisdiction under this

chapter;

(16) To review and audit the records of

licensed health facilities’ or services’ quality

assurance committee decisions in which a licensee’s

practice privilege or employment is terminated or

restricted. Each health facility or service shall

produce and make accessible to the disciplining

authority the appropriate records and otherwise

facilitate the review and audit. Information so gained

shall not be subject to discovery or introduction into

evidence in any civil action pursuant to RCW

70.41.200(3).

RCW 18.130.080

Unprofessional conduct — Complaint —

Investigation — Immunity of complainant.

(1) A person, including but not limited to

consumers, licensees, corporations, organizations,

health care _ facilities, impaired practitioner

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programs, or voluntary substance abuse monitoring

programs approved by disciplining authorities, and

state and local governmental agencies, may submit a

written complaint to the disciplining authority

charging a license holder or applicant with

unprofessional conduct and specifying the grounds

therefor or to report information to the disciplining

authority, or voluntary substance abuse monitoring

program, or an impaired practitioner program

approved by the disciplining authority, which

indicates that the license holder may not be able to

practice his or her profession with reasonable skill

and safety to consumers as a result of a mental or

physical condition. If the disciplining authority

determines that the complaint merits investigation,

or if the disciplining authority has reason to believe,

without a formal complaint, that a license holder or

applicant may have engaged in unprofessional

conduct, the disciplining authority shall investigate

to determine whether there has been unprofessional

conduct. In determining whether or not to

investigate, the disciplining authority shall consider

any prior complaints received by the disciplining

authority, any prior findings of fact under RCW

18.130.110, any stipulations to informal disposition

under RCW 18.130.172, and any comparable action

taken by other state disciplining authorities.

(2) Notwithstanding subsection (1) of this

section, the disciplining authority shall initiate an

investigation in every instance where the

disciplining authority receives information that a

health care provider has been disqualified from

participating in the federal medicare program, under

Title XVIII of the federal social security act, or the

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federal medicaid program, under Title XIX of the

federal social security act.

(3) A person who files a complaint or reports

information under this section in good faith is

immune from suit in any civil action related to the

filing or contents of the complaint.

RCW 18.130.090 (2004)

Statement of charge — Request for hearing.

(1) If the disciplining authority determines,

upon investigation, that there is reason to believe a

violation of RCW _ 18.130.180 has occurred, a

statement of charge or charges shall be prepared and

served upon the license holder or applicant at the

earliest practical time. The statement of charge or

charges shall be accompanied by a notice that the

license holder or applicant may request a hearing to

contest the charge or charges. The license holder or

applicant must file a request for hearing with the

disciplining authority within twenty days after being

served the statement of charges. If the twenty-day

limit results in a hardship upon the license holder or

applicant, he or she may request for good cause an

extension not to exceed sixty additional days. If the

disciplining authority finds that there is good cause,

it shall grant the extension. The failure to request a

hearing constitutes a default, whereupon the

disciplining authority may enter a decision on the

basis of the facts available to it.

(2) If a hearing is requested, the time of the

hearing shall be fixed by the disciplining authority

as soon as convenient, but the hearing shall not be

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held earlier than thirty days after service of the

charges upon the license holder or applicant.

RCW 18.130.095 (2004)

Uniform procedural rules.

(1). (a) The secretary, in consultation with

the disciplining authorities, shall develop

uniform procedural rules to respond

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