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

Filed
Washington State
Court of Appeals
Division Two

November 15, 2016

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
DALE E. ALSAGER, D.O., No. 47367-4-II
(Consolidated with No. 47727-1-II)
Appellant,

v.
PART PUBLISHED OPINION
BOARD OF OSTEOPATHIC MEDICINE
AND SURGERY, DEPARTMENT OF
HEALTH, STATE OF WASHINGTON,

Respondents.

BJORGEN, C.J. — Dale Alsager appeals the Washington Board of Osteopathic Medicine

and Surgery’s1 permanent revocation of his license to practice medicine, as well as several of

the Board’s prehearing rulings and its order denying reconsideration. He makes two primary

arguments. First, he contends that the Board violated his federal and state constitutional rights

against compelled self-incrimination by sanctioning him for failing to testify and to disclose

prescription records. Second, he contends that the Board violated his federal and state

constitutional rights against unlawful searches and seizures by searching and procuring his

prescription records from the state’s prescription monitoring program and participating

pharmacies. He also argues that the superior court erred by dismissing his petition for

declaratory judgment under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24

1
We refer to this entity as the Board.
No. 47367-4-II (Cons. w/
No. 47727-1-II)

RCW, that the Board’s findings of fact and conclusions of law were insufficiently supported,

that a panel member should have been disqualified, and that documentary evidence was

admitted without authentication.

We hold in the published portion of this opinion that the Board’s proceedings did not

deprive Alsager of any right against compelled self-incrimination and that the Board and

Department of Health acted within constitutional bounds in procuring the prescription records.

In the unpublished portion of this opinion, we hold that the superior court properly dismissed

Alsager’s petition for declaratory action, that the Board’s findings of fact and conclusions of

law were sufficiently supported, that Alsager failed to establish grounds for the panel member’s

disqualification, and that any error in admitting the documentary evidence without assessing

authentication was harmless. Accordingly, we affirm the Board’s revocation of Alsager’s

license to practice medicine.

FACTS

In 2008, the Board sanctioned Alsager for inappropriately prescribing potentially

dangerous medications without conducting necessary patient examinations.2 The sanctions

prohibited Alsager from prescribing Schedule II or III controlled substances until he completed

an approved residency or pain management training course.

In 2012, the Board received a complaint regarding Alsager’s treatment of one of his

patients and notified Alsager of the complaint. Following the Uniform Disciplinary Act (UDA),

2
Alsager appealed the Board’s 2008 order, and we affirmed in an unpublished opinion. Alsager
v. Wash. State Bd. of Osteopathic Med. & Surgery, noted at 155 Wn. App. 1016, ___ P.3d ___
(2010).
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chapter 18.130 RCW, the Board found that the complaint had merit and initiated an

investigation. RCW 18.130.080(2). An investigator contacted Alsager, requesting that he

produce a copy of the patient's file, which included prescription records, and make a written

statement responding to the complaint.

Alsager did not answer the request or provide the requested information. Instead, he

asked the Board to quash the production demand on constitutional grounds. The Board denied

Alsager’s request. The investigator then performed a search of the State’s prescription

monitoring program database, which archives prescriptions for medical drugs filled in

Washington. See Chapter 70.225 RCW. This search uncovered prescription records showing

that Alsager prescribed Schedule III controlled substances to his patients and himself after the

Board issued its prior order prohibiting him from doing so.

Based on the information the investigator uncovered from the database, the Board

authorized additional investigation. The investigator again contacted Alsager, this time

requesting medical records for patients to whom Alsager had prescribed Schedule II or III

controlled substances since the Board issued its 2008 order. Alsager responded, asserting that

his Fourth and Fifth Amendment rights protected him from compelled cooperation. The

investigator then requested prescription records from various pharmacies.

Alsager petitioned the Board under RCW 34.05.240 for an order declaring that he need

not testify or produce the requested records on constitutional grounds. He also requested

clarification as to the scope of the Board’s 2008 order. The Board denied the petition and

declined to clarify the scope of the order, finding that Alsager “ha[d] not demonstrated an

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uncertainty necessitating resolution exists with regard[] to [its] language.” Administrative

Record (AR) at 1919.

Alsager then petitioned the superior court under the UDJA for a declaratory judgment

that the Board could not require him to testify or produce the records and that the statutes

imposing those requirements were facially unconstitutional. The superior court granted the

Board’s motion for summary judgment and dismissed the case, reasoning that Alsager could not

circumvent Washington’s Administrative Procedure Act (APA), chapter 34.05 RCW, by seeking

a declaratory judgment. Instead, the superior court ruled that Alsager must utilize the judicial

review process under the APA. Alsager appealed, and we have consolidated this appeal with the

others described below.

Alsager also brought suit in federal court seeking a declaration that his compelled

cooperation would violate his constitutional rights. The federal court denied him the relief he

sought, similarly reasoning that the APA provided the appropriate avenue for review of his

constitutional claims. Alsager v. Bd. of Osteopathic Med. & Surgery, noted at 573 Fed. Appx.

619 (9th Cir. 2014).

The Board ultimately charged Alsager with unprofessional conduct under the UDA for

violating the 2008 order and failing to cooperate with the investigation. For this conduct, the

Board summarily suspended his license to practice. The Board held a show cause hearing on the

summary suspension at Alsager’s request, after which it upheld that sanction.

Before the hearing on his charges before the Board, Alsager moved for several prehearing

rulings. Among other matters, he moved for rulings that his constitutional rights precluded

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compelled testimony or production of documents, that several members of the Board should be

disqualified due to the fact that they practiced in the same geographic area as Alsager, and that

prescription records obtained from the prescription monitoring program database were not

authenticated and were therefore inadmissible. The Board denied each of these motions.

The Board held its hearing on the merits of Alsager’s charges on June 4, 2014. The

Department of Health provided the prescription records from the database, as well as prescription

records from pharmacies obtained by the investigator. The investigator testified and was cross-

examined. Instead of making specific objections or focusing on specific topics, Alsager refused

to testify or present any evidence on the general basis of the Fourth and Fifth Amendments. The

presiding officer ruled that these protections did not apply and stated that it would instruct the

panel that they may draw negative inferences from Alsager’s refusal to testify. The Department

then directed specific questions to an empty witness stand, and Alsager provided no individual

responses or invocations of his rights.

The Board issued its Final Order on July 9, 2014. It concluded that Alsager had

committed unprofessional conduct as defined in RCW 18.130.180 by repeatedly violating the

2008 order and by refusing to cooperate with the investigation. Based on these conclusions, the

Board permanently revoked Alsager’s license to practice osteopathic medicine in Washington.

Subsequently, the Board denied Alsager’s motion for reconsideration. Alsager appealed to the

superior court, which denied the petition for judicial review.

Alsager appeals various prehearing orders by the Board, the Board’s Final Order, the

Board’s denial of reconsideration, and the superior court’s denial of the petition for judicial

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review. We have consolidated this appeal with his earlier appeal of the superior court’s

dismissal of his declaratory judgment action.

ANALYSIS

Alsager presents two primary arguments. First, he argues that the Board violated his

constitutional right against compelled self-incrimination by requiring him to cooperate with its

investigation. Second, he contends that it engaged in a constitutionally unlawful search and

seizure by searching the prescription monitoring program for records of the prescriptions he

wrote. Alsager additionally argues that the Board’s Final Order was not properly supported, one

of the Board’s panel members should have been disqualified from serving on the panel, and the

Board erred by admitting prescription records that were not authenticated. In his appeal of the

superior court’s decision on declaratory judgment, he contends that the superior court improperly

dismissed his petition on grounds that the declaratory action was unavailable in light of the

judicial review process of the APA. We are not persuaded by these arguments.

I. RIGHTS AGAINST COMPELLED SELF-INCRIMINATION

Alsager argues that because a professional disciplinary proceeding is “quasi-criminal” in

nature, the Board violated his constitutional right against compelled3 self-incrimination by

3
Alsager asserts that the Board’s requirement that he testify and produce patient records
constituted compulsion because it would impose penalties on him, among them revocation of this
medical license, if he failed to comply. We agree with Alsager on this point. RCW
18.130.180(8) defines unprofessional conduct as including
8. [f]ailure to cooperate with the disciplining authority by:
(a) Not furnishing any papers, documents, records, or other items;
(b) Not furnishing in writing a full and complete explanation covering the matter
contained in the complaint filed with the disciplining authority;
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requiring him to testify and produce testimonial records. Br. of Appellant at 1-2. We disagree

that these medical license revocation proceedings were sufficiently criminal in nature to require

application of the Fifth Amendment protection against self- incrimination. Consequently, the

Board did not violate Alsager’s Fifth Amendment rights.

We review final administrative decisions under the APA. Feil v. E. Wash. Growth Mgmt.

Hr’gs Bd., 172 Wn.2d 367, 376, 259 P.3d 227 (2011). We review the agency’s decision, not the

decision of the superior court on initial review. Pal v. Wash. State Dep’t of Soc. & Health Servs.,

185 Wn. App. 775, 781, 342 P.3d 1190 (2015). We will grant relief from the agency’s decision

if it suffers from one of the infirmities listed in RCW 34.05.570(3), which include:

(a) The order, or the statute or rule on which the order is based, is in violation of
constitutional provisions on its face or as applied;
....
(d) The agency has erroneously interpreted or applied the law.

RCW 34.05.570(3). The party asserting the invalidity of the agency decision bears the burden of

showing that the decision is invalid on one of these grounds. RCW 34.05.570(1)(a).

Alsager claims that the Board’s Final Order and the statutes on which it was based violate

his constitutional rights. We review such issues de novo, though we presume that statutes are

(c) Not responding to subpoenas issued by the disciplining authority, whether or not the
recipient of the subpoena is the accused in the proceeding; or
(d) Not providing reasonable and timely access for authorized representatives of the
disciplining authority seeking to perform practice reviews at facilities utilized by the
license holder[.]
Because unprofessional conduct is grounds for discipline, including suspension or revocation of
a physician’s license, RCW 18.130.160, the statutory scheme compels disclosure and general
cooperation with disciplinary proceedings. See Spevack v. Klein, 385 U.S. 511, 516, 87 S. Ct.
625, 17 L. Ed. 2d 574 (1967).

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constitutional. City of Seattle v. Evans, 184 Wn.2d 856, 861-62, 366 P.3d 906 (2015), petition

for cert. by Evans v. City of Seattle, ___ U.S. ___ (2016).

A. Quasi-Criminal Actions

Alsager argues that board proceedings for revocation of a medical license are quasi-

criminal in nature and therefore are subject to the protections of the Fifth Amendment to the

United States Constitution and article I, section 9 of the Washington State Constitution. We

disagree and hold that although board proceedings have a punitive aspect, they do not qualify as

“criminal cases” within the meaning of those constitutional provisions.

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. CONST. amend. V. Similarly, article I, section 9 of

our state constitution provides that “[n]o person shall be compelled in any criminal case to give

evidence against himself.” WASH. CONST., art. I, § 9. The protections provided by these

provisions are coextensive. State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008).

Although the language of these constitutional provisions specifies that they are applicable

only to “criminal cases,”

suits for penalties and forfeitures, incurred by the commission of offenses against
the law, are of [a] quasi criminal nature, . . . [and] are within the reason of criminal
proceedings for all the purposes of the fourth amendment of the constitution, and
of that portion of the fifth amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself.

Boyd v. United States, 116 U.S. 616, 634-35, 6 S. Ct. 524, 29 L. Ed. 746 (1886). However, this

seemingly broad holding has been limited over the years. United States v. Ward, 448 U.S. 242,

253, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). Under Boyd and its progeny, the “government

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may not abrogate the accused’s privilege against self-incrimination by electing the vehicle of a

nominally civil proceeding, when in reality, punishment for activity which violates the criminal

law is being imposed.” In re Daley, 549 F.2d 469, 475 (7th Cir. 1977). A civil action is

sufficiently criminal in nature if “[i]ts object, like a criminal proceeding, is to penalize for the

commission of an offense against the law.” One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S.

693, 700, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965).

Our Supreme Court has characterized professional disciplinary proceedings involving the

revocation of licenses as quasi-criminal for the purpose of determining whether due process

protections apply to such proceedings.4 Nguyen v. State, Dep’t of Health Med. Quality

Assurance Comm’n, 144 Wn.2d 516, 527-29, 29 P.3d 689 (2001); In re Johnston, 99 Wn.2d 466,

474, 663 P.2d 457 (1983); In re Kindschi, 52 Wn.2d 8, 10-11, 319 P.2d 824 (1958). However,

the full protections enjoyed by criminal defendants are not necessarily available in such quasi-

criminal proceedings. See Nguyen, 144 Wn.2d at 527-28 (holding that clear and convincing

evidence, rather than proof beyond a reasonable doubt, is required to impose sanctions in

disciplinary proceedings); cf. Rowe v. State, Dep’t of Licensing, 88 Wn. App. 781, 784-85, 946

4
Alsager seems to take the position that the term “quasi-criminal” denotes a legally significant
category of actions, much like the terms “civil” and “criminal.” However, our cases have used
the term to describe, not to categorize. See, e.g., In re Kindschi, 52 Wn.2d 8, 11-12, 319 P.2d
824 (1958) (describing a professional disciplinary proceeding as “civil, not criminal, in nature;
yet . . . quasi criminal in that it is for the protection of the public,” and concluding that it is “a
special, somewhat unique, statutory proceeding”) (emphasis added). Simply labeling a
proceeding “quasi-criminal” is not determinative of the rights a defendant in such a proceeding
may assert. Daley, 549 F.2d at 476. We do not assign any categorical legal significance to the
term “quasi-criminal,” and instead analyze whether a claimed right applies in the context of a
particular quasi-criminal action.
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P.2d 1196 (1997) (holding that suspension of a driver’s license for conduct already sanctioned in

a criminal case did not violate defendant’s constitutional rights against double jeopardy because

it served a remedial purpose beyond the criminal penalties). Thus, we must decide whether a

disciplinary proceeding for revocation of a medical license is quasi-criminal in a manner that

requires application of the right against compelled self-incrimination.

Both Kindschi and Nguyen recognized that although the “consequence [of disciplinary

sanctions] is unavoidably punitive,” such sanctions are “not designed entirely for that purpose.”

Kindschi, 52 Wn.2d at 10-11; Nguyen, 144 Wn.2d at 528. Licensure of doctors and the

disciplinary procedures used to enforce it are intended not simply to ensure that doctors comply

with applicable law, but “to assure the public of the adequacy of professional competence and

conduct in the healing arts.” RCW 18.130.010; see also Kindschi, 52 Wn.2d at 10-11.

Sanctioning unprofessional conduct serves primarily to maintain professional standards and

promote public health and confidence, rather than seeking punitive goals like vengeance. This is

akin to the system upheld in Daley:

Because the primary function of state bar disciplinary proceedings is remedial, i.e.,
maintenance of the integrity of the courts and the dignity of the legal profession as
well as protection of the public, we . . . hold that the Fifth Amendment privilege
against self-incrimination does not proscribe the introduction in state bar
disciplinary proceedings of testimony compelled under a grant of immunity.

549 F.2d at 477. We similarly conclude that the primary object of the UDA is remedial and

regulatory, not punitive.

As the United States Supreme Court discussed in Ward, the following factors are relevant

to determining whether a nominally civil action is sufficiently criminal in nature to trigger a

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defendant’s constitutional right against self-incrimination: (1) whether the penalty imposed has a

“correlation to any damages sustained by society or to the cost of enforcing the law”; (2) whether

the available sanctions include traditionally punitive penalties associated with criminal actions,

like imprisonment or fines; and (3) whether the proceedings present some danger that the subject

practitioner will prejudice himself with respect to possible criminal proceedings. 448 U.S. at

254. Ward also relied on the "overwhelming evidence" it found "that Congress intended to

create a civil penalty in all respects and quite weak evidence of any countervailing punitive

purpose or effect . . ." Id.

On balance, these Ward factors weigh against a holding that Board disciplinary actions

are sufficiently criminal to trigger a practitioner’s constitutional rights against compelled

testimony and evidence production. Suspension or revocation of a license for unprofessional

conduct in medicine is closely correlated to ensuring safe and adequate medical care and to

promoting public trust in the medical profession. The available sanctions do not include

imprisonment and are tailored to minimize or prevent further unprofessional conduct, though

fines may be levied. See RCW 18.130.160. However, any authority imposing sanctions under

the UDA, including fines, “must first consider what sanctions are necessary to protect or

compensate the public.” RCW 18.130.160. Thus, even the assessment of fines primarily serves

a remedial, rather than a punitive function. In addition, there is no general danger of prejudice

with respect to future criminal proceedings, though in certain instances proceedings may involve

conduct to which criminal liability may attach. The final consideration in Ward, the

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overwhelming evidence of legislative intent, does not weigh appreciably in either direction in the

present appeal.

Under the Ward factors these medical disciplinary proceedings on balance are best

considered civil actions, not quasi-criminal. As such, they do not necessarily trigger the

constitutional protections against compelled self-incrimination.5 Subject to the limitation

discussed in Section I.B below, the Board may sanction noncompliance with its valid questions

and requests for documents. See S.E.C. v. Colello, 139 F.3d 674, 678 (9th Cir. 1998). The

Board is also free to draw adverse inferences from a physician’s refusal to testify or produce

requested documents, as long as such adverse inferences are supported by some other evidence.

Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 85, 265 P.3d 956 (2011); Doe ex rel.

5
Alsager directs our attention to cases in other states holding that professional disciplinary
proceedings are sufficiently similar to criminal cases as to require the full criminal protections of
the Fifth Amendment. In State ex rel. Vining v. Florida Real Estate Commission, the Supreme
Court of Florida struck down a statute requiring realtors to make a sworn statement in
professional disciplinary proceedings that were essentially “penal” in nature because they
“tend[ed] to degrade the individual’s professional standing, professional reputation or
livelihood.” 281 So.2d 487, 491 (1973). In In re Woll, 387 Mich. 154, 194 N.W.2d 835 (1972),
the Supreme Court of Michigan held that Fifth Amendment protections are available in
disbarment proceedings, basing that holding on earlier case law establishing that such
proceedings are essentially punitive in nature. Both Vining and Woll were based in part on the
United States Supreme Court’s then-recent opinion in Spevack, 385 U.S. at 516-19, which held
that the threat of disbarment for exercising one’s Fifth Amendment rights constitutes
compulsion. In both Vining and Woll, the courts seemed to read Spevack as suggesting that
professional discipline was inherently punitive. 385 U.S. 516-19. No Washington court has
construed Spevack so broadly, and the Court in Spevack declined to reach the question directly.
385 U.S. at 518-19. Given the difference in the relevant law in Florida and Michigan, we read
Vining and Woll only as showing that professional disciplinary proceedings may be sufficiently
criminal in nature to require constitutional protections against self-incrimination compelled by
the threat of professional repercussions. The cases say nothing about whether Washington’s
UDA establishes proceedings that are sufficiently similar to criminal proceedings.

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Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000). Because the Board also

examined other evidence that Alsager improperly prescribed controlled substances in violation of

its earlier order, it did not err in allowing adverse inferences from Alsager’s refusal to testify or

respond.

B. Invocation of Right in Civil Proceedings

We recognize, however, that testimony or other evidence compelled in a medical

disciplinary proceeding could incriminate the practitioner in potential criminal prosecutions. In

that situation, though, the practitioner must assert his rights through specific, individual

objections, not by invoking blanket constitutional protection to avoid participating in the

proceedings.

One may assert Fifth Amendment rights in any proceeding, including civil and

administrative proceedings. Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 32 L.

Ed. 2d 212 (1972). Specifically, a party in a civil proceeding need not answer questions “where

the answer might incriminate him in future criminal proceedings.” State v. King, 130 Wn.2d

517, 524, 925 P.2d 606 (1996).

However, in a civil proceeding, the right against testifying “necessarily attaches only to

the question being asked and the information sought by that particular question.” Glanzer, 232

F.3d at 1265. Therefore, a person invoking his Fifth Amendment right against self-incrimination

to avoid testifying in a civil action must assert that right specifically in response to particular

questions or requests for information. Glanzer, 232 F.3d at 1265. Alsager was not permitted to

avoid all cooperation with the Board by asserting that right generally. See Eastham v. Arndt, 28

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Wn. App. 524, 532, 624 P.2d 1159 (1981); see also Matter of Baun, 395 Mich. 28, 37, 232

N.W.2d 621 (1975) (Michigan case in the line stemming from Woll). Because Alsager did not

claim Fifth Amendment protections specifically or limit his assertion of the right to any

particular topics, requests, or questions, he did not properly invoke it as to matters potentially

related to criminal liability.

For the reasons above, these medical license revocation proceedings did not violate

Alsager’s Fifth Amendment rights.6

II. RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURE

Alsager argues that by searching the prescription monitoring program database for his

prescription records and gathering those records from the database and pharmacies, the Board

violated his federal and state constitutional rights to be free from unreasonable search and

seizure.7 He also argues that the statutes authorizing the search are facially unconstitutional.8

We disagree.

The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.

6
With this conclusion, we do not need to address the Board’s argument based on the required
records doctrine.
7
No party challenged Alsager’s standing to make this claim. We assume without deciding that
he has standing and proceed to the merits.
8
The statutes Alsager asserts are unconstitutional are: RCW 18.130.050(7), .180(8), .230(1);
RCW 70.02.050(2)(a); RCW 70.225.040(3).
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U.S. CONST. amend. IV. Similarly, article I, section 7 of the Washington Constitution provides

that “[n]o person shall be disturbed in his private affairs . . . without authority of law.” WASH.

CONST., art. I, § 7. This state provision is more broadly protective than is its federal counterpart.

State v. Hendrickson, 129 Wn.2d 61, 69 fn. 1, 917 P.2d 563 (1996).

Our analysis of whether the Board violated both constitutional provisions is two-pronged:

we must determine whether Alsager had a protected privacy interest in the prescription records

held by the State or a third party, and if so, we must look to whether the Board’s warrantless

search of those records was constitutionally permissible. See State v. Miles, 160 Wn.2d 236,

243-44, 156 P.3d 864 (2007).

Turning first to the presence of a privacy interest, both the Fourth Amendment and article

I, section 7 protect against government intrusion into one’s private records. The Fourth

Amendment protects a person’s “subjective and reasonable expectation of privacy.” State v.

Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994) (citing Katz v. United States, 389 U.S. 347,

351-52, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Article I, section 7 more broadly protects

“those privacy interests which citizens of this state have held, and should be entitled to hold, safe

from governmental trespass absent a warrant.” Id. (citing State v. Myrick, 102 Wn.2d 506, 511,

688 P.2d 151 (1984)). Under each constitutional source, a search requires an intrusion within the

perimeter of a protected privacy interest. Young, 123 Wn.2d at 181.

Division One of our court has held, in an opinion both our Supreme Court and the United

States Supreme Court declined to review, that a patient has only a limited expectation of privacy

in prescription records. Murphy v. State, 115 Wn. App. 297, 312-313, 62 P.3d 533 (2003). The

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court noted that “constitutional privacy protections are not absolute,” and where such

prescription records are concerned they “must be balanced against the need for comprehensive

and effective governmental oversight of prescription narcotic use and distribution.” Id. at 308.

As the court explained, Washington law has long required pharmacists to retain prescription

records. Id. at 313. Due to this requirement and the controlled substances laws, patients should

expect the government to “keep careful watch” over them and “should reasonably expect that

their prescription records will be available to appropriate government agents, subject to

safeguards against unauthorized further disclosure.” Id. at 312-13.

Although the court in Murphy focused on prescription narcotics records, 115 Wn. App. at

307-08, its reasoning applies to prescription records of other scheduled controlled substances as

well. RCW 18.64.245 (formerly codified at RCW 18.67.090) has long required pharmacists to

keep all prescription records and make them available when lawfully required. Moreover,

scheduled controlled substances have been subject to robust governmental regulation at the state

and federal levels for decades, based on the danger they can pose to the public. See, e.g., RCW

69.50.201-.214, .308, .401; 21 U.S.C. §§ 812, 841-65. As such, we must consider patients’

general interest in privacy in light of “the State’s vital interest in controlling the distribution of

dangerous drugs.” Whalen v. Roe, 429 U.S. 589, 598, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).

Considering that vital interest, patients should reasonably expect prescriptions for such records to

be subject to some governmental scrutiny, “subject,” as noted in Murphy, “to safeguards against

unauthorized further disclosure” by officials. 115 Wn. App. at 313.

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To the extent Alsager relies on the privacy interests of prescribing physicians as well, his

argument founders on the authority just noted. Physicians, allowed by law to prescribe

controlled substances under RCW 69.50.308, should be even more aware than patients that the

government exercises tight regulatory oversight of these controlled substances.

Alsager argues that we should recognize a protected privacy interest, at least under article

I, section 7, because two 19th century Washington statutes provided that pharmacists need not

keep records of drugs distributed with a physician’s prescription. These statutes established a

general requirement that pharmacists keep records of the distribution of all potentially dangerous

drugs for law enforcement inspection, but both included an exception for drugs prescribed by a

physician. LAWS OF 1891, ch. 153, § 12; 1881 CODE OF THE TERRITORY OF WASHINGTON, § 936.

Neither of these statutes, however, prohibited pharmacists from keeping records of

physicians’ prescriptions. At most, these statutes show that physicians’ prescription records have

not always been subject to mandatory pharmacy recordkeeping requirements. However, as

Division One noted in Murphy, there is a “long history of government scrutiny” over

prescriptions. 115 Wn. App. at 313. The statutes Alsager discusses do not establish that

physicians have historically enjoyed any particular privacy interest in prescription records.

We adopt the reasoning and holding of Murphy and extend it to apply to prescribing

physicians. We hold that prescription records kept under the prescription monitoring program,

either by a pharmacist or as part of the state database, are not protected from all governmental

examination by the Fourth Amendment or article I, section 7. Records of prescriptions for

scheduled controlled substances are subject to legitimate oversight by appropriate agents of the

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State if reasonably tailored to the enforcement of state law and if effective safeguards against

unauthorized further disclosure are present. Acting under these constraints, the Department and

the Board did not intrude into a zone of privacy protected by either the state or federal

constitutions by the examination of Alsager’s prescription records kept under the prescription

monitoring program, whether in the state database or held by a pharmacist. Therefore, the

Department and the Board did not violate either constitutional guarantee through this

examination.

CONCLUSION

We affirm the Board’s Final Order permanently revoking Alsager’s license. The Board’s

proceedings did not deprive Alsager of any right against compelled self-incrimination, and the

Department and the Board did not violate Alsager’s right to be free from unreasonable searches

and seizures when it examined Alsager’s prescription records kept under the prescription

monitoring program, whether in the state database or held by a pharmacist. Alsager's remaining

legal challenges, discussed in the unpublished portion of this opinion, similarly do not persuade

us that the Board erred.

A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record pursuant to RCW 2.06.040, it is so ordered.

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No. 47727-1-II)

III. DECLARATORY JUDGMENT

Alsager argues that the superior court erred by dismissing his petition for declaratory

judgment under the UDJA. We disagree.

RCW 7.24.146 clearly states that the UDJA “does not apply to state agency action

reviewable under [the APA,] chapter 34.05 RCW.” In such situations, declaratory judgment is

instead available under the APA via the judicial review process. RCW 34.05.574(1). If an

agency action is subject to judicial review under the provisions of the APA, it may not be

preemptively decided by petition to a superior court for declaratory judgment. Nw. Ecosystem

All. v. Washington Dep’t of Ecology (Nw. Ecosystem All. I), 104 Wn. App. 901, 919, 17 P.3d 697

(2001), rev’d in part, aff’d in part, Nw. Ecosystem All. v. Washington Forest Practices Bd. (Nw.

Ecosystem All. II), 149 Wn.2d 67, 66 P.3d 614 (2003).

Alsager claims that the Board’s decision not to grant him a declaratory order was not

reviewable under the APA and, therefore, that he properly sought declaratory judgment in the

superior court under the UDJA. However, an agency’s failure to act in the face of a duty to do so

is reviewable under the APA. RCW 34.05.570(4)(b); Nw. Ecosystem All. II, 149 Wn.2d at 73-

74. Therefore, to the extent the agency had any duty to issue a declaratory order related to the

constitutionality of its application of the challenged statutes, its decision not to issue such an

order was reviewable under the APA and was not subject to challenge under the UDJA. If the

agency had no such duty to issue a declaratory order, then Alsager’s avenue of as-applied

constitutional challenge was through APA judicial review of the Board’s Final Order following

his exhaustion of administrative remedies. See RCW 34.05.534, .570(3)(a).

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

Alsager also argues that the superior court erred by requiring him to resort to and exhaust

APA remedies when such remedies were futile and threatened irreparable harm to his

constitutional rights. Where administrative remedies are inadequate, futile, or will result in grave

and irreparable harm that clearly outweighs the public policy behind requiring exhaustion, a trial

court may excuse the exhaustion requirement. RCW 34.05.534(3)(b)-(c). Because the Board

has no authority to invalidate statutes on constitutional grounds, it was arguably futile for

Alsager to wait for it to address the facial constitutionality of the challenged statutes. Prisk v.

City of Poulsbo, 46 Wn. App. 793, 798, 732 P.2d 1013 (1987). However, even if we assume that

the superior court abused its discretion by dismissing Alsager’s facial challenges to the

constitutionality of the statutes, we may affirm summary judgment on any grounds supported by

the record before us. Pac. Marine Ins. Co. v. State ex rel. Dep’t of Revenue, 181 Wn. App. 730,

737, 329 P.3d 101 (2014). Our consideration above of the merits of Alsager’s constitutional

claims shows that his facial constitutional challenges fail. Therefore, we hold that the superior

court did not err in granting summary judgment and dismissing Alsager’s UDJA claims.

IV. SUFFICIENCY OF THE BOARD’S FINDINGS AND CONCLUSIONS

In addition to the constitutional challenges that form the basis of most of his assignments

of error, Alsager challenges one of the Board’s findings of fact on grounds that it was not

supported by substantial evidence, and three of the Board’s conclusions of law on grounds that

they were not supported by sufficient findings of fact or were legally erroneous. Each of these

challenges fail.

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

We will reverse an administrative agency’s order if the agency’s findings are not

supported by substantial evidence or its conclusions of law are legally erroneous or unsupported

by the findings. Campbell v. Tacoma Pub. Sch., 192 Wn. App. 874, 887, 370 P.3d 33 (2016),

review denied, 186 Wn.2d 1015; RCW 34.05.570(3). Substantial evidence is that necessary to

“persuade a fair-minded person of the truth or correctness of the order.” Miotke v. Spokane

County, 181 Wn. App. 369, 375-76, 325 P.3d 434, review denied, 181 Wn.2d 1010 (2014). We

view the evidence in the light most favorable to the Board. Id. at 375.

1. Sanction Finding 1.10

Alsager argues that sanction finding 1.10 “omits critical reference to the parties’

Prehearing Stipulations set forth in Paragraph 2 thereof and specific findings of fact as to reasons

and rationale that Dr. Alsager can never be rehabilitated or never regain the ability to practice

safely.” Br. of Appellant at 9. We hold that the omission is immaterial and the finding is

supported by substantial evidence.

Sanction finding 1.10 reads:

The Board previously determined in the 2008 Final Order that the
restrictions on prescribing and retraining placed on the Respondent by the Order
were necessary to protect the public and to rehabilitate the Respondent. The Board
provided the Respondent with a rehabilitation plan that would allow him to remove
the restriction. The evidence shows the Respondent began to violate the Final
Order by issuing prescriptions for Schedule III controlled substances as early as
September 17, 2008 and through at least February 15, 2013. The Panel finds the
Respondent’s conduct (the issuance of numerous Schedule III controlled substance
prescriptions) shows a disregard of the 2008 Final Order. As a result, the Board
finds there is no rehabilitation plan that will ensure the Respondent’s compliance.

AR at 1711-12.

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

The prehearing stipulation to which Alsager refers was that “the issue of whether Dr.

Alsager has completed the pain management course is disputed.” AR at 1446. Both parties

agreed not to provide evidence regarding the pain management course and Alsager’s alleged

participation in it.

Sanction finding 1.10 makes no reference to the pain management course at all, and

therefore evidence of that course was unnecessary to support the finding. The finding required

only evidence that Alsager issued prescriptions for Schedule III controlled substances during the

time period described, despite the conditions imposed by the Board’s 2008 order. The

documentary evidence of the prescriptions obtained through the prescription monitoring program

and pharmacies therefore was sufficient to support the finding. From that evidence, a fair-

minded person would be persuaded that Alsager exhibited a disregard of the Board’s order.

Accordingly, we hold that sanction finding 1.10 was supported by substantial evidence.

2. Conclusions 2.7, 2.8, and 2.9

Alsager challenges the Board’s conclusions in paragraphs 2.7 through 2.9 of the Final

Order, arguing that the sanction of permanent license revocation was unauthorized and

inappropriate. We hold that the conclusions were properly supported by the findings of fact and

were not legally erroneous.

The Board’s selection of appropriate sanctions for unprofessional conduct is governed by

WAC 246-16-800, which is entitled “Sanctions – General Provisions.” Subsection 2 of that rule

states in pertinent part:

(a) The disciplining authority will select sanctions to protect the public and, if possible,
rehabilitate the license holder.

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

(b) The disciplining authority may impose the full range of sanctions listed in RCW
18.130.160 for orders.
....
(ii) Permanent revocation may be imposed when the disciplining authority
finds the license holder can never be rehabilitated or can never regain the
ability to practice safely.
....
(c) The disciplining authority may deviate from the sanction schedules in these rules if
the schedule does not adequately address the facts in a case. The disciplining authority
will acknowledge the deviation and state its reasons for deviating from the sanction
schedules in the order or stipulation to informal disposition.
(d) If the unprofessional conduct is not described in a schedule, the disciplining
authority will use its judgment to determine appropriate sanctions. The disciplining
authority will state in the order or stipulation to informal disposition that no
sanction schedule applies.

WAC 246-16-800(2).

This provision generally governs sanctions, whether or not in a sanction schedule. In

turn, RCW 18.130.160 also discusses sanctions both under and apart from the sanction schedule,

stating that “[t]he disciplining authority may order permanent revocation of a license if it finds

that the license holder can never be rehabilitated or can never regain the ability to practice with

reasonable skill and safety.” This requirement therefore applies to sanctions outside of a

sanction schedule. In fact, if it did not so apply, it would be robbed of most effect; since

violation of a disciplinary order constitutes sanctionable unprofessional conduct under RCW

18.130.180(9), but is not described on any of the sanctioning schedules. See WAC 246-16-810 -

860. Therefore, to impose the sanctions it did against Alsager, the Board was required to use its

judgment to determine whether Alsager can ever be rehabilitated or can ever regain the ability to

practice safely.

The Board’s conclusions at issue read in relevant part:

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

2.7 . . .In determining appropriate sanctions, public safety must be
considered before the rehabilitation of the Respondent. The conduct in this case is
not described in a sanctioning schedule in chapter 246-16 WAC. Thus, the panel
uses its judgment to determine sanctions. The Panel considered the violation of the
2008 Final Order . . . to be the primary violation requiring protection of the public.
In making its sanctioning decision, the Panel considered the pattern of the
Respondent’s egregious violation of the 2008 Final Order in particular. The Panel
concludes the Respondent cannot be rehabilitated. The Board Panel did not reach
this decision lightly and considered whether there was any lesser sanction that
would protect the public in this case.

2.8 . . . The Board previously determined in the 2008 Final Order that the
restrictions on prescribing and retraining placed on Respondent by [the earlier]
Orders were necessary to protect the public and to rehabilitate the Respondent, yet
the Respondent began to violate the 2008 Final Order even during the original
period of summary restriction. The Panel concludes that retraining, restriction, and
oversight have failed to rehabilitate the Respondent’s conduct and that there is no
lesser sanction than permanent revocation that can adequately protect the public,
given the Respondent’s repeated unwillingness to comply with the Boards’ [sic]
Orders.

2.9 The aggravating factors supporting the permanent revocation include
the violation of the 2008 Final Order, the length of time the Respondent was
violating the 2008 Final Order, the number of violations of the 2008 Final Order,
and the seriousness of the underlying standard of care violations for which these
sanctions were imposed. There were no mitigating factors considered.

AR 1713-15 (internal citations omitted).

Alsager argues that

in order to impose the ultimate sanction of professional license revocation with
absolutely no opportunity ever for reinstatement, it is mandatory that the Board
make and enter specific findings of fact as to reasons and rationale that Dr. Alsager
can never be rehabilitated or never regain the ability to practice safely.

Br. of Appellant at 48. In fact, WAC 246-18-800 does not include any such requirement

regarding the Board’s “reasons and rationale,” although, as noted, it does require that the Board

find that the license holder can never be rehabilitated or can never regain the ability to practice

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

safely before permanently revoking a license. The challenged conclusions set out above

effectively make these findings and can be considered as such even though labeled as

conclusions of law. State v. Federov, 183 Wn. App. 736, 744, 335 P.3d 971 (2014). The same

conclusions also describe the Board’s reasoning in detail. More importantly, those conclusions

are supported by findings of fact describing the conditions imposed by the 2008 Final Order and

numerous prescriptions Alsager wrote in violation of those conditions.

Alsager also argues that the Board erred by considering aggravating factors without

considering any mitigating factors. WAC 246-16-800(3) requires the Board to consider both

aggravating and mitigating factors when imposing sanctions according to the sanctioning

schedules. However, as noted above, violation of a disciplinary order is not covered by any of

those sanctioning schedules, and therefore under WAC 246-16-800(2)(d) the Board was charged

with “us[ing] its judgment to determine appropriate sanctions.” Because the evidence showed,

and the Board found, a lengthy and continual pattern of violation of the 2008 order, it did not err

by not considering mitigating factors.

V. DISQUALIFICATION OF BOARD MEMBER FROM PANEL

Alsager appeals the denial of his motion to disqualify one of the members of the Board

panel that judged his case on the basis of a personal business interest in the revocation of

Alsager’s license. We hold that Alsager failed to show that the panel member held any bias or

conflicting professional interest and that the Board did not abuse its discretion in denying the

motion to disqualify.

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

Under the appearance of fairness doctrine, a decision-maker in a quasi-judicial

proceeding is disqualified and must recuse if a party shows that he or she has “‘apparent conflicts

of interest creating an appearance of unfairness or partiality.’” In re Disciplinary Proceeding

Against Petersen, 180 Wn.2d 768, 785, 329 P.3d 853 (2014) (quoting City of Hoquiam v. Pub.

Emp’t Relations Comm’n, 97 Wn.2d 481, 488, 646 P.2d 129 (1982)). Barring a “clear and

nondiscretionary duty to recuse,” we review for an abuse of discretion a decision-maker’s denial

of a motion to recuse. Faghih v. Washington State Dep’t of Health, Dental Quality Assurance

Comm’n, 148 Wn. App. 836, 843, 202 P.3d 962 (2009). We presume that the Board members

acted and performed their duties properly. City of Hoquiam, 97 Wn.2d at 489.

Alsager claims that one of the Board members should have been disqualified because she

practiced osteopathic medicine in the Maple Valley area, where Alsager also practiced, and

therefore stood to potentially gain a competitive advantage from revocation of his license.

Recusal is necessary if a panel member has a “substantial pecuniary interest” in the outcome of

the case. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).

However, the only evidence Alsager provided was a newspaper article showing that the panel

member was the medical director of a medical center in Maple Valley. This evidence, without

more, shows at best a highly attenuated pecuniary interest in removing Alsager from practice. It

shows neither that the member was a direct competitor nor that she stood to gain business; it

shows only that she worked in geographic proximity to Alsager. It establishes no apparent bias

or conflict of interest and is insufficient to overcome the presumption that the panel acted

appropriately. The Board did not abuse its discretion by denying Alsager’s motion for recusal.

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

VI. AUTHENTICATION OF PRESCRIPTION RECORDS

Alsager argues that the Board erred by admitting records from the prescription

monitoring program because those records were not properly authenticated. We hold that any

such error was harmless.

Under the APA, “[e]vidence, including hearsay evidence, is admissible if in the judgment

of the presiding officer it is the kind of evidence on which reasonably prudent persons are

accustomed to rely in the conduct of their affairs.” RCW 34.05.452(1). Under the procedural

regulations applicable to Board proceedings,

(5) [f]ollowing the final prehearing conference, the presiding officer shall issue a
written prehearing order which will:
....
(c) Identify those documents and exhibits that will be admitted at hearing and those
which may be distributed prior to hearing;
....
(e) Rule on motions.

WAC 246-11-390(5). At the hearing, “[t]he presiding officer shall rule on objections to the

admissibility of evidence pursuant to RCW 34.05.452 unless those objections have been

addressed in the prehearing order.” WAC 246-11-490(1). Administrative decision-makers have

“considerable discretion” when ruling on evidentiary matters, and we review those rulings for an

abuse of discretion. Univ. of Wash. Med. Ctr. v. Wash. State Dep’t of Health, 164 Wn.2d 95,

104, 187 P.3d 243 (2008).

Alsager made a prehearing motion to exclude the prescription records, challenging their

authentication among other matters. In prehearing orders, the Board denied the motion and

declined to reconsider it, but did not expressly address the authentication argument. At the

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No. 47367-4-II (Cons. w/
No. 47727-1-II)

hearing, Alsager again argued that the records were not properly authenticated, but the presiding

officer ruled that the evidence was admitted pursuant to the prehearing orders.

Even if the presiding officer erred by failing to address whether the records were

adequately authenticated, any such error was harmless. “An erroneous evidentiary ruling is not

grounds for reversal absent prejudicial error.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 448,

474, 360 P.3d 855 (2015), review denied, 185 Wn.2d 1014 (2016). The investigator testified that

the prescription records were customarily used by the Department, monitored under the

prescription monitoring program, connected to Alsager’s registration with the federal Drug

Enforcement Agency, and signed with a signature the investigator recognized as Alsager’s.

Thus, the testimony at the hearing established that the records are the kind of evidence on which

reasonably prudent persons are accustomed to rely in the conduct of their affairs. Given this

uncontested evidence, the records were adequately authenticated and properly admitted by the

Board.

We affirm the Board’s permanent revocation of Alsager’s license to practice medicine.

BJORGEN, C.J.
We concur:

WORSWICK, J.

LEE, J.

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