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CLIENT ALERT, July 11, 2011
Washington State Supreme Court Overturns Extension of Higher Burden of Proof
Requirement to Non-Physician Licensure Proceedings In its 2001 decision in Nguyen v. Dep’t of Health Med. Quality Assurance Comm’n, the Washington Supreme Court held that constitutional due process requirements mandate that the state must meet a heightened burden of proof—clear and convincing evidence, as opposed to a mere preponderance or probability—before it can revoke or suspend a physician’s license. In 2006, the court’s decision in Ongom v. Dep’t of Health extended this requirement to nursing assistants and, by implication, all other types of professional and occupational licenses issued by the state. Yesterday, in Hardee v. State, No. 83728-7, the court overruled Ongom by an 8-1 majority and split 4-4 on whether to overrule Nguyen. A ninth justice’s vote to uphold both Omgom and Nguyen, means that the heightened proof requirement continues in effect, at least for the moment, with respect to physicians and perhaps other professionals whose licenses require graduate level training or post-graduate training. But, for most health care professionals and holders of other types of occupational licenses, it will be easier for the state to take disciplinary action. The Hardee case affirmed a DSHS decision revoking a home child care license following receipt of information that the licensee’s adult son, living in the home, had pled guilty to child molestation, and rejected Hardee’s request to impose a higher clear and convincing burden of proof to the revocation proceedings. The 4-judge lead decision, authored by Justice James Johnson, concluded that, under due process analysis, the private interest involved in a home child care license, a facility-based license requiring limited training, and subject by statute to revocation based on conduct of other residents in the home, was far less than the private interest of a physician in a medical license, which requires significant education and testing, is held by an individual, and places the physician in a unique role in society. His opinion then concluded that Ongom had incorrectly considered the subjective value of a medical assistant license to its holder instead the objective investment in the license, and also failed to consider the adequacy of existing procedural protections for the specific interests at stake, the financial and administrative burdens that would result from greater procedural requirements, or other state interests including, in this case, the state interest in protecting children. Chief Justice Madsen’s 4-judge concurring opinion agreed with the result, and with the decision to overrule Ongom, but would have also overruled Nguyen. Justice Madsen reasoned that Nguyen “overestimated” the interest in a professional license, which is not “a fundamental constitutional liberty interest,” and gave too little weight to the government’s interest in protecting the public. This ruling leaves uncertain which burden of proof will apply for many of the health professions that the Department of Health regulates, 70 in total, with educational requirements less extensive than for physicians but greater than medical assistants, such as, for example, pharmacists, nurses, psychologists, social workers, chemical dependency professionals, or as Chief Justice Madsen speculates, dental hygienists. Barring legislative intervention that consistently imposes a higher burden of proof, these issues will it will likely remain unresolved for some time, and be settled only by future litigation. Whether the 5-judge majority supporting the precedential value of Nguyen will survive Justice Sanders’ departure also remains to be determined. Contacts 
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