Opinion by Consumer Advocate Tim Bolen
The Washington State Supreme Court, in its wisdom, a few days ago (December 14th, 2006), literally, for all time, smashed the New York ad agency run“quackbuster” operation’s effort to use individual State Administrative hearings to destroy innovation in health care in favor of the “drugs, drugs, and more drugs” medical monopoly. The sleazy “Plan of ’96” has been thwarted.
Cutting-edge health professionals around the US can breathe a sigh of relief, for the method of attack derived from the filth-encrusted “Plan of ’96” has been declared to be unacceptable by the High Court. And, State Supreme Court decisions carry weight in every area of the US.
I’m proud to be a member, and a leader, in the North American Health Freedom Movement (NAHFM). In the thirteen years I’ve been active I’ve seen massive wins against which might, at one time, have seemed like insurmountable odds. The movement has so many victories, almost daily, they can’t all be nationally documented. There are, simply, so many activists charging at issues I couldn’t begin to meet with all of the groups.
But, I have to admit, this case, the one in front of the Washington State Supreme Court (Ongom v. State of Washington Department of Health, Office of Professional Standards), was not one of ours. Our movement didn’t initiate it I’m sorry to say. It was done by, as the Court states:
Fleeing Africa as a refugee, Alice Ongom escaped to the United States with her family making her new home in Washington.
The people of the US owe Alice Ongom, and her attorneys, a debt of gratitude for their efforts.
What was the Issue? Why does the decision benefit us?
The Washington High Court said, in its opening remarks:
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 Wn. App. 935, 104 P.3d 29 (2005). We granted review and reverse, holding due process requires clear, cogent, and convincing proof.
That statement by the High Court is an immense victory for those of us trying to protect cutting-edge practitioners from attack by the drug-pusher’s assault squads. Since the advent of the “Plan of ’96” the tactic used against practitioners using methods others than “drugs, drugs, and more drugs,” was simply to drag healers into an State Administrative Hearing and bring in any buffoon they could find to testify, blathering on, endlessly, usually saying something like; “dat ain’t wad dems call no standard of care. We-uns don’t not use dat voodoo quack stuff…” And, that seemed to be enough. A lot of professionals lost their ability to practice with that tactic used against them.
But that’s all changed now – and this decision will make a big difference. Why? Here’s what else the Supreme Court said:
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.
The nursing home fired Ongom immediately after the incident in question.
Of course, with this action, Ongom’s career was ruined and she was unable to get employment. Of this, the High court said:
ANALYSIS – 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 Wn.2d 720, 728, 818 P.2d 1062 (1991). 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 Wn.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.
As stated, the identical issue was resolved in our recent Nguyen decision. 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
More, the Court clearly pointed out what was wrong with the Administrative Court using the “preponderance of evidence” standard rather than the “clear and convincing evidence” standard saying:
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 Wn.2d at 521. Although undoubtedly a medical license is much more difficult to obtain than a registration to practice as a nursing assistant, each constitutes a 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’l Eng’rs & Land Surveyors, 113 Wn. 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 Wn. App.at 944. 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.
We also recognized Dr. Nguyen has a liberty interest in his license to preserve his professional reputation. Nguyen, 144 Wn.2d at 527. 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 register by order of the hearing examiner, accessible by all the public as well as future prospective employers. There is no reason 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 Wn. App. at 944. 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.6 Nguyen, 144 Wn.2d at 524-25; Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct.1804, 60 L. Ed. 2d 323 (1979).
In essence, this decision smashes the tactics laid out in the slimy “Plan of ’96” and changes everything in Administrative hearings nationwide. No more can any State bring in the local buffoon who studied “quackwatch.com” the night before to learn how, and what to testify on. Now, the State must apply the “clear and convincing evidence” standard, which means they can’t just show there is a difference of opinion, and pile up some paperwork.
In Washington State this decision will have immediate effect, for there, health activists have been petitioning the Governor, and the State Auditor, to investigate the relationship (Performance Audit) between the State Health Department employees and the “quackbusters.” In Washington State, currently, there are about ten separate actions filed against cutting-edge practitioners on the say-so of local “quackbusters.” or their hangers-on.
Washington’s Health Department is already under scrutiny for their blatant “protection” of professional sex-offenders. You can read about this by going to the article “Sexual Predators Protected by Washington Department of Health.” I’m not surprised at all that the Washington health bureaucracy is involved in this.
More, in Washington State, health activists, clearly operating to protect their right to cutting-edge health care, are pointing out to their legislators that:
State Agencies are not operating according to law or according to legislative intent.
The Department of Health and the Attorney General’s Office are prosecuting unregulated healthcare practitioners as practicing medicine without a license; and, they are prosecuting licensed healthcare practitioners for practicing outside of the traditional boundaries of western (allopathic) medicine.
Unlicensed healthcare practitioners. In their prosecution of unlicensed practitioners, the Department of Health and the Attorney General’s Office are ignoring RCW 18.120. By doing this, these agencies knowingly and without authority take property rights (the right to practice a profession; and sometimes even personal property such as herbs, homeopathics, diagnostic equipment and other tools of the trade) and they deprive patients of their fundamental constitutional right to choose their own healthcare options.
Agencies do not have the authority to act in contravention of a state statute when administering its provisions. If the legislative intent is clear and “plain on its face,” the agencies must administer the law according to the legislative intent. The agencies cannot adopt administrative rules or administrative practices that conflict with the statutes.
You can read the whole story in Washington State by going to the excellent website called “Does the State Own Your body?”
Be advised that the last words of the High court were:
CONCLUSION – 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.
The war is on – and we’re on the attack everywhere. You can read an entire copy of the Court’s Decision by clicking here.
Tim Bolen – Consumer Advocate