[No. 24473-3-III. Division Three. April 26, 2007.]
[1] Medical Treatment Discipline Burden of Proof Clear and Convincing Evidence Necessity. In a medical disciplinary proceeding, the required degree of proof is clear and convincing evidence. [2] Administrative Law Judicial Review Conclusions of Law Standard of Review. Conclusions of law entered by an administrative adjudicator are reviewed by a court de novo. [3] Statutes Construction Administrative Construction Deference to Agency In General. A court will give substantial weight to an agency's interpretation of a statute the agency administers. [4] Administrative Law Rules Construction Administrative Construction Judicial Deference. A court will give substantial weight to an agency's interpretation of its own rules. [5] Administrative Law Rules Construction Question of Law or Fact Review Standard of Review. The meaning of an agency rule is a question of law that is reviewed de novo. [6] Administrative Law Rules Construction Plain Meaning Determination. When the meaning of an agency rule is plain on its face, a court must give effect to that plain meaning as an expression of the agency's intent. The plain meaning of an agency rule is ascertained from an examination of the rule as a whole and from related rules that reveal the agency's intent concerning the provision in question. [7] Administrative Law Rules Construction Ambiguity What Constitutes. An agency rule is not ambiguous unless it can be interpreted in more than one way. [8] Administrative Law Rules Construction Avoiding Absurdity. A court must avoid reading an agency rule in a manner that would result in absurd or strained consequences. [9] Medical Treatment Dentistry Unauthorized Practice "Administration" of Anesthetic by Unlicensed Person. WAC 246-817-540(4) expressly prohibits dentists from allowing unlicensed persons to perform any administration of anesthetic of any nature, even if the employee is under the supervision or direction of the dentist. "Administration" is not a specialized term and does not mean the supervision by a dentist of the entire process of giving anesthetic (as distinguished from the actual procedure of delivering anesthetic). [10] Medical Treatment Dentistry Discipline Unprofessional Conduct Allowing Administration of Anesthetic by Unlicensed Person. A dentist commits "unprofessional conduct" within the meaning of RCW 18.130.180(7) by allowing an unlicensed assistant to administer anesthetic to a patient in violation of WAC 246-817-540(4). [11] Medical Treatment Discipline Unprofessional Conduct Allowing Unlicensed Assistant To Start Intravenous Line and Give Anesthetic. A licensed medical professional engages in "unprofessional conduct" within the meaning of RCW 18.130.180(10), which defines "unprofessional conduct" to include "[a]iding or abetting an unlicensed person to practice when a license is required," by allowing an unlicensed assistant to start intravenous lines in patients and to give them anesthetic. [12] Administrative Law Hearing Evidence Standard of Proof Consideration of More Than One Standard Application of More Demanding Standard. An agency adjudicator does not err by considering a case under two standards by which the government must prove its case if the adjudicator ultimately finds that the government's burden is met under the more demanding standard. [13] Administrative Law Judicial Review Prejudice Necessity. Under RCW 34.05.570(1)(d), an aggrieved party is not entitled to relief from an agency action if the party was not substantially prejudiced by the action. [14] Administrative Law Judicial Review Applicable Statutes Administrative Procedure Act In General. Judicial review of a final agency decision in an adjudicative proceeding is limited by the provisions of the Administrative Procedure Act (chapter 34.05 RCW). [15] Administrative Law Judicial Review Issues Not Presented to Agency In General. Under RCW 34.05.554, an issue not raised in an agency adjudication may not be raised before a reviewing court except as authorized by the statute. [16] Administrative Law Judicial Review Issues Not Presented to Agency "Change in Controlling Law" Application of Existing Statute Determination of Merit Before Investigation Commences.For purposes of RCW 34.05.554(1)(d)(i), which allows a reviewing court to consider an issue that was not first raised in an agency adjudication if it is based on a "change in controlling law" occurring after the agency made its decision, the holding in Client A v. Yoshinaka, 128 Wn. App. 833 (2005), that an agency failed to follow RCW 18.130.080 of the Uniform Disciplinary Act by pursuing an investigation of a complaint of unprofessional conduct against a licensed professional without first determining that the complaint had merit does not constitute a "change in controlling law." [17] Medical Treatment Discipline Physician Medical Quality Assurance Commission Statement of Charges Authority Statutory Provisions. Under RCW 18.130.020(1), .040(2)(b)(ix), .050, and .090, the Medical Quality Assurance Commission has the authority to lodge disciplinary charges against a licensed physician for alleged acts of professional misconduct. [18] Administrative Law Interpretive and Policy Statements Effect In General. Under RCW 34.05.230(1), an agency interpretive or policy statement that has not been made the subject of a rule is advisory only. [19] Administrative Law Hearing Procedure Divergence From Interpretive or Policy Statement Validity Prejudice Necessity. An agency does not necessarily violate due process of law in the conduct of a regulatory enforcement proceeding by diverging from a procedure described in an interpretive or policy statement that has not been made the subject of a rule. A procedural due process violation does not occur unless the person who is the subject of the proceeding is prejudiced by the agency's action. Prejudice must be based on the person's inability to prepare or present a defense. [20] Medical Treatment Dentistry Discipline Dental Quality Assurance Commission Member Charging and Decision-Making Procedure Validity Due Process. The Dental Quality Assurance Commission does not necessarily violate the procedural due process rights of a commission member against whom a complaint of unprofessional conduct has been lodged where the commission (1) allows the charging decision to be made by a panel of dental commission members even though the commission's policies call for a pro-tem panel to make the charging decision or (2) allows the panel to delegate final decision-making authority on the charges to a presiding officer even though the commission's policies authorize pro-tem panels to decide such cases. [21] Administrative Law Adjudication Discovery Forms of Discovery Discretion of Presiding Officer. Under RCW 34.05.446, the presiding officer in an adjudicative proceeding has the authority to decide the form by which discovery may be conducted by the parties. [22] Administrative Law Adjudication Discovery Scope Discretion of Presiding Officer. The presiding officer in an adjudicative proceeding has wide discretion when ordering preadjudication discovery. The presiding officer's decision will not be disturbed by a reviewing court absent an abuse of discretion. [23] Discovery Interrogatories Answers Reference to Business Record Validity. Under CR 33(c), an interrogatory may be answered by reference to a business record. [24] Licenses Regulation of Occupations Professional Licensing Discipline Sanction Arbitrary or Capricious What Constitutes. The sanction imposed against a licensed professional for an act of professional misconduct is not arbitrary or capricious unless it is willful, unreasoning, and imposed without consideration and in disregard of the facts and circumstances. [25] Medical Treatment Dentistry Regulation Purposes. Under RCW 18.32.002, the health and welfare of the people of the state are of paramount importance in the regulation of dentists and dentistry. [26] Licenses Regulation of Occupations Professional Licensing Discipline Purposes. A disciplinary authority for a licensed profession performs a special function of protecting the public. Nature of Action: A licensed dentist and a licensed dentist/physician who owned a surgical practice together and who performed cosmetic and dental surgeries that required patients to be under general anesthesia sought judicial review of an administrative decision that they unlawfully allowed unlicensed employees to start intravenous lines and to administer general anesthetic to patients. The administrative decision required each plaintiff to pay a $5,000 fine and to cease and desist the practice of having nonemployees administering anesthetics. Superior Court: The Superior Court for Spokane County, No. 05-2-00656-5, Gregory D. Sypolt, J., on August 22, 2005, entered a judgment affirming the administrative decision. Court of Appeals: Holding that the plaintiffs violated the law by allowing their assistants to start intravenous lines and to administer general anesthetic to patients and that the fines and the cease and desist orders are not arbitrary or capricious, the court affirms the judgment. John C. Versnel III- and Vanessa Vanderbrug- (of Lawrence and Versnel, P.L.L.C.), for appellants. Robert M. McKenna-, Attorney General, and Susan L. Pierini- and Steven T. Skelton-, Assistants, for respondents. Ά1 KULIK, J. Dr. Melanie Lang and Dr. Mark Paxton own a surgical practice and perform cosmetic and dental surgeries that require patients to be under general anesthesia. Dr. Lang is a both a licensed medical doctor and a licensed dentist. Dr. Paxton is a licensed dentist. Following a complaint to the Department of Health (Department), the Dental Quality Assurance Commission (Dental Commission) and the Medical Quality Assurance Commission (Medical Commission) each charged the doctors with allowing unlicensed employees to start intravenous (IV) lines and administer general anesthetic in violation of RCW 18.130.180(7) and (10). After a contested hearing, the Commissions' presiding officer found by clear and convincing evidence that Drs. Lang and Paxton violated the statutes, imposed sanctions of a $5,000 fine, and issued orders to cease and desist. The superior court affirmed the Commissions' final orders. Ά2 On appeal, Drs. Lang and Paxton assert the Commissions' presiding officer erred by (1) concluding that the doctors allowed unlicensed assistants to start IVs and administer general anesthetic in violation of RCW 18.130.180(7) and (10); and (2) by imposing sanctions for the violations. The doctors also assert a number of procedural errors. Ά3 We conclude that the Commissions' presiding officer did not err by concluding that the doctors violated the statute by allowing unlicensed employees to start IVs and administer general anesthetic. We further conclude that the sanctions imposed were not arbitrary or capricious. We affirm. FACTS Ά4 Dr. Mark C. Paxton is licensed to practice dentistry in Washington. Dr. Melanie Lang holds a dental license and a medical license in Washington. Both doctors are subject to RCW 18.130.180 of the Uniform Disciplinary Act (UDA). At the time of the complaint and investigation, Dr. Paxton served as a member of the Dental Commission. Ά5 Dr. Lang and Dr. Paxton own Spokane Oral and Maxillofacial Surgery Associates, an office-based surgical practice in Spokane. Drs. Lang and Paxton perform surgeries, including cosmetic and dental surgery, that require the patients to be under general anesthesia. Ά6 In February 2003, a former employee of Drs. Lang and Paxton, filed a complaint with the Department alleging that Drs. Lang and Paxton allowed unlicensed employees to start IV lines and administer anesthetic both in and out of the doctors' presence. During the investigation of the complaint, both Dr. Lang and Dr. Paxton admitted that they employed unlicensed assistants to start IVs and give anesthetic during surgery. Ά7 The Dental Commission and Medical Commission each filed a statement of charges against Dr. Lang. The Dental Commission also filed charges against Dr. Paxton. The matters were consolidated for hearing. Ά8 The Commissions delegated final decision-making authority to a presiding officer. During the administrative hearing, Drs. Lang and Paxton again admitted that they employed individuals, who were unlicensed by the State of Washington, to start IV lines and give anesthetic. The doctors referred to these employees as "surgical assistants." Administrative Record (AR) at 1892. Ά9 The surgical assistants' duties included administering anesthetic, including Propofol and Versed. The surgical assistants put the IV catheter into the patient's arm, draw the anesthetic out of a vial into a syringe with a needle attached, insert the needle into the patient's IV port, and then push the anesthetic into the IV. Ά10 Patricia Rathbun-Gibson was a surgical assistant for Drs. Lang and Paxton. She attended a dental-assisting program at Apollo College. Ms. Rathbun-Gibson explained that after getting the patient hooked up to monitors, the surgical assistants started the IV before the doctors came into the room. She testified that the surgical assistants put the IV catheter into the patient's arm and would hook up the IV bags. Ms. Rathbun-Gibson was not licensed. Ά11 Ms. Rathbun-Gibson had given patients Propofol at the direction of a doctor. Ms. Rathbun-Gibson gave the medication by putting it into the IV line. On 5 to 10 occasions, Ms. Rathbun-Gibson gave Propofol when the doctor was not in the room. Ά12 Kim Colt stated that she worked as a surgical assistant for both doctors. When she started the IV or administered a general anesthetic, a doctor would usually be in the room, but not always. Ms. Colt explained that, when there was a long surgical case, the doctor might leave the room to see other patients. The doctor would then ask the surgical assistants to continue administering the general anesthetic until the doctor returned. Danielle Cain, another surgical assistant, stated that she drew up a general anesthetic and pushed it in the IV port under the supervision of a doctor. Neither Ms. Colt nor Ms. Cain was licensed. Ά13 Katrina Soliday is a registered nurse who was employed at Spokane Oral and Maxillofacial Surgery Associates for several months. During that time, she assisted both doctors and observed over 100 surgeries where she saw unlicensed surgical assistants draw up general anesthetics from vials and push them through the patients' IV ports. Ms. Soliday testified that on one occasion she heard Dr. Lang ask the surgical assistant to give "2.5 of Versed." AR at 2052. The assistant drew up 2.5 cubic centimeters of Versed, five times more than the intended dose of 2.5 milligrams. Dr. Lang noticed the error and the surgical assistant did not put the excessive dose into the IV port. Ά14 Ms. Cain prepared an office policy statement for an Occupational Safety and Health Administration review, which stated: On a normal surgery day, we see approximately 10-14 general anesthetic patients. Us [sic] as surgical assistants need to make sure the drugs are getting administered correctly to the patients. During a general anesthetic procedure we already use fentanyl, versed, decadron and propofol. Any time we administer any of these drugs we must always check with the doctor on how much to give the patient, and the doctor must always be present. Patients vary and if you give too much to the wrong patient it could end up bad. AR at 2329 (italics added). Ά15 The Commissions' presiding officer found that Drs. Lang and Paxton violated RCW 18.130.180(7) by violating WAC 246-817-540(4). This regulation prohibits dentists from allowing unlicensed persons to conduct any administration of general anesthetic in connection with a dental operation. The Commissions' presiding officer also determined that Dr. Paxton and Dr. Lang violated RCW 18.130.180(10) by allowing their assistants to start IV lines and administer anesthetics. The Commissions' presiding officer imposed sanctions of $5,000 against each doctor and entered a cease and desist order on January 13, 2005. Ά16 Dr. Paxton and Dr. Lang appealed the Commissions' presiding officer's orders. The superior court affirmed the orders. This appeal follows. STANDARD OF REVIEW Ά17 The Administrative Procedure Act (APA) governs judicial review of agency decisions. Ch. 34.05 RCW. The burden of demonstrating the invalidity of agency action is on the party challenging the action. RCW 34.05.570(1)(a). ANALYSIS Procedures Performed by Unlicensed Assistants ADMINISTRATION OF ANESTHETIC Ά20 RCW 18.130.180(7) defines "unprofessional conduct" as: Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice. The rules promulgated by the Dental Commission contain prohibitions against certain acts by unlicensed persons. WAC 246-817-540. Specifically, WAC 246-817-540 provides: No dentist shall allow an unlicensed person who is in his/her employ or is acting under his/her supervision or direction to perform any of the following procedures: . . . . (4) Any administration of general or injected local anesthetic of any nature in connection with a dental operation. (Emphasis added.) Ά21 At the hearing, witnesses testified that the surgical assistants started IVs on patients and gave anesthetic through IVs. The Commissions' presiding officer found that the "surgical assistants were administering general anesthetics during surgery, when they drew up the general anesthetic out of a vial with a syringe, pushed the general anesthetic through the patient's IV port and sent it into the patient's veins." AR at 1918. Ά22 Drs. Lang and Paxton contend that the word "administration" in WAC 246-817-540(4) means the "control over" or "management of" the delivery of general anesthetic to a patient. In their view, the surgical assistants merely "delivered" the general anesthetic to the patients while Drs. Lang or Paxton "administered" the anesthetic by supervising the surgical assistants. Ά25 WAC 246-817-540(4) lists the "procedures" that are prohibited, and one of those procedures is "[a]ny administration of general or injected local anesthetic." The plain language of the regulation provides that "administration" of anesthetic is prohibited by an unlicensed employee even if that employee is under the supervision or direction of the dentist. Moreover, a plain reading of the regulation does not support the doctors' argument that the word "administration" means the supervision by a doctor of the entire process of giving anesthetic rather than the procedure of delivering anesthetic. Ά26 Drs. Lang and Paxton contend that the presiding officer's reading of WAC 246-817-540(4) ignored the testimony of experts who stated that the term "administration" was a specialized term within the field of oral and maxillofacial surgery. For example, Dr. Gary Maxwell, an oral and maxillofacial surgeon, testified: "to me, the only person administering the anesthetic as the captain of the ship is the person that's responsible for the anesthetic and is directing people to do ancillary actions." AR at 2142. Dr. DeAnn Isackson, an anesthesiologist, testified that the administration is a combination of events and reactions that are part of a continuous process. Ά27 The expert testimony presented by Dr. Lang and Dr. Paxton fails to establish that the word "administration" is a specialized term that encompasses only the work of the supervising physician. And it contradicts the employees' testimony that they administered anesthetic by pushing a needle into an IV port. Ά28 In summary, the meaning of the word "administration" in WAC 246-817-540(4) can be determined from the regulation itself. "Administration" is not a specialized term. The plain language of the provision provides that an unlicensed employee cannot perform the procedure of administering anesthetic. The reading suggested by Drs. Lang and Paxton is strained. The Commissions' presiding officer did not err by concluding that Drs. Lang and Paxton violated WAC 246-817-540(4). LICENSE REQUIREMENTS Ά30 By reviewing health care provider regulations, the Commissions' presiding officer determined which providers are authorized to start IVs and give anesthetic. Ά31 Conclusion of law 2.13 states: [T]he Presiding Officer reviewed regulations of individuals that are licensed and are permitted to administer medications or pierce human tissue (start IVs) in the course of providing health care. Under a physician's direction, registered nurses can administer prescribed drugs or provide treatment involving piercing of the tissue. RCW 18.79.280. Under more limited restrictions and supervision, a licensed practical nurse may administer medications or, under certain circumstances, start IVs. RCW 18.79.270. Surgical technicians, who must be credentialed with the Department (RCW 18.215.020), are not allowed to penetrate human tissue or dispense medications. WAC 246-939-050. Health Care Assistants (HCA), who are required to have a credential from the Department, have similar restrictions regarding the scope of their practice. RCW 18.135.010. HCAs can withdraw blood and give shots, but there is no authority to start IVs. WAC 246-826-100. The rules provide that no HCA may start an IVonly stop and restart under limited conditions. WAC 246-826-210(1) and (2). AR at 1918-19 (emphasis added). Ά32 Drs. Lang and Paxton argue that these statutes do not require a license for an assistant who is merely "starting an IV." Drs. Lang and Paxton contend that there is insufficient evidence to support a finding that "starting IV lines" is the same as piercing tissue. But there is no finding to this effect. Instead, Drs. Lang and Paxton are apparently referring to the Commissions' presiding officer's explanation in his conclusion of law that he reviewed the regulations applying to individuals licensed to administer medication or pierce tissue and start IVs. Ά33 Here, the doctors repeat their argument that their surgical assistants are authorized to start IVs and give general anesthetic because no statutory or regulatory provision prohibits this activity. But to accept their argument, the Commissions' presiding officer, and this court, would have to ignore the responsibility of health care providers to insure that only properly licensed employees provide certain types of patient care. The doctors' argument would essentially allow anyone to start IVs. Ά34 The Commissions' presiding officer did not err by concluding that the doctors allowed unlicensed assistants to perform procedures requiring a license. Applicable Standard of Evidence Ά36 After the hearing in this matter, the Washington Supreme Court settled the controversy by concluding that due process required clear and convincing proof in professional license disciplinary proceedings. Ongom, Ά37 Drs. Lang and Paxton contend that the Commissions' presiding officer, by evaluating the evidence and the request for sanctions against their licenses under two different standards of proof, violated their right to notice of what standard would apply. But the burden was on the Department to meet the higher standard. The critical point is that the presiding officer applied the clear and convincing standard in his decision. The presiding officer did not err by considering two standards of proof because he ultimately found the violations were supported by clear and convincing evidence. Ά38 More importantly, Drs. Lang and Paxton fail to show how they were prejudiced by the application of two standards of proof. They admit that they employed unlicensed surgical assistants who started IVs and gave general anesthetic. Similarly, Drs. Lang and Paxton fail to present any evidence demonstrating that the presiding officer did not apply the clear and convincing standard. In the judicial review of an agency action, "[t]he court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of." RCW 34.05.570(1)(d). The doctors have not established any prejudice. Ά39 The Commissions' presiding officer did not err by considering the clear and convincing standard and the preponderance of the evidence standard in connection with Dr. Lang's medical license and dental license, and Dr. Paxton's dental license. PROCEDURAL ISSUES Determination of Merit Ά40 The Department received a complaint concerning Drs. Lang and Paxton on February 3, 2003. The Dental Commission applied its written threshold policy and the complaint was assigned to an investigator. Drs. Lang and Paxton contend that all of the Dental Commission's subsequent actions were void because the Department's initial investigation of the complaint constituted an action in excess of the Department's statutory authority. The doctors argue that the investigation could not proceed absent a determination as to the merit of the complaint. Ά41 RCW 18.130.050 establishes the authority of the disciplining body. RCW 18.130.050(2) reads, in part, that the disciplining authority has the authority to "investigate all complaints or reports of unprofessional conduct as defined in this chapter and to hold hearings as provided in this chapter." (Emphasis added.) A "disciplining authority" is "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." RCW 18.130.020(1). Ά42 Former RCW 18.130.080 (1998) discusses the filing and investigation of complaints and reads, in part, as follows: 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. (Emphasis added.) Ά43 Drs. Lang and Paxton assert that Client A v. Yoshinaka, 128 Wn. App. 833, 116 P.3d 1081 (2005) requires this court to void the disciplinary action taken by the Commissions. In Yoshinaka, the Department received a complaint against a licensed psychologist and began an investigation without a determination of complaint merit. Id. at 836-37. When the Department made a request for patient treatment records, the psychologist objected and asked for some indication of probable cause. The Department renewed its request but later closed the complaint finding no violation. Id. at 838. The psychologist then filed a motion for declaratory and injunctive relief, arguing that the Department's request for patient records constituted an unreasonable search and seizure. Id. at 839. The trial court dismissed the petition on summary judgment and the psychologist appealed. Id. Ά44 On appeal, the court recognized that the case was moot but concluded that review should be granted. The court resolved the matter under RCW 18.130.080. The court read RCW 18.130.080 to provide that: "If the Board receives a complaint against a psychologist, it may investigate that complaint if it 'determines that the complaint merits investigation.' " Yoshinaka, 128 Wn. App. at 843 (emphasis added and omitted) (quoting RCW 18.130.080). Based on this reading, the court concluded that the Department's action violated RCW 18.130.080. The court reversed the trial court's decision in favor of the Department. Yoshinaka, 128 Wn. App. at 844-45. Ά45 Here, the doctors did not raise the issue of predetermination of merit at the administrative hearing or in superior court. The Department contends that the issue of a predetermination of merit cannot be raised for the first time on appeal pursuant to RCW 34.05.554 and RAP 2.5(a). The Department also argues that the Dental Commission's complaint threshold determination makes the determination of merit required under Yoshinaka. The threshold policy, effective in 1996, provides a preinvestigation determination of the merit of the complaints. Ά46 Yoshinaka had not been decided when Drs. Lang's and Paxton's hearing was held before the Commissions' presiding officer. The Commissions' presiding officer's orders in this matter were issued on January 13, 2005. The Yoshinaka decision was issued on August 8, 2005, and amended on September 16, 2005. Ά48 Under the circumstances here, Yoshinaka was not a change in controlling law. Yoshinaka simply held that the Board of Psychology had not followed RCW 18.130.080, which requires the disciplining authority to make a merit determination before an investigation is commenced. Simply stated, Yoshinaka applied a still-existing statute and found a violation. As a result, the issue concerning the Commissions' determination of merit cannot be raised for the first time on appeal. Dr. Lang's Medical License Ά49 Dr. Lang argues that the Medical Commission cannot file a statement of charges for violations of regulations pertaining to her dental practice. Dr. Lang maintains that the statement of charges is outside the Medical Commission's jurisdiction because it describes Dr. Lang as an oral surgeon, and because the conduct involved dental, not medical, treatment. Dr. Lang further asserts that the Medical Commission had no jurisdiction to decide whether she had violated these provisions. Ά50 The Medical Commission's statement of charges alleged that Dr. Lang is a licensed physician and that she used surgical assistants who were not licensed, certified, or registered in Washington. The statement of charges does not reference dental rules or conduct, and the statement of charges does not contain evidence indicating that the unlicensed assistants were used only for dental procedures. Significantly, these assistants could have been used in both her medical practice and her dental practice. Of equal importance, the statement of charges alleged a violation of RCW 18.130.180, a provision applicable to physicians. And, in Haley v. Medical Disciplinary Board, 117 Wn.2d 720, 818 P.2d 1062 (1991), a physician was disciplined for sexual conduct that was outside his medical practice. Pro-Tem Panel Ά52 Department of Health policy D14.03 requires that the Department appoint a pro-tem panel to consider investigation and charges against a current commission member. The pro-tem panel also has the authority to delegate final decision-making authority to a presiding officer. Drs. Lang and Paxton contend the Department violated its own policy by (1) allowing the charging decision to be made by a panel, not a pro-tem panel, and (2) allowing the panel, not a pro-tem panel, to delegate final decision-making power to the presiding officer. Drs. Lang and Paxton assert that the Department's failure to follow its own procedures prejudiced the doctors. CHARGING DECISION Ά55 The failure to use a pro-tem panel here did not adversely affect the appearance of fairness or prejudice Drs. Lang's and Paxton's right to receive notice and their ability to be heard. Moreover, Drs. Lang and Paxton can show no prejudice. Drs. Lang and Paxton fail to show how the failure to use a pro-tem panel to make the decision to charge affected their ability to prepare a defense. Here, Drs. Lang and Paxton admit that they employed assistants who started IVs and delivered anesthetic. Ά56 Drs. Lang and Paxton also suggest that the delegation to the Commissions' presiding officer deprived them of their right to present their defense to their peers. There is no statutory or constitutional support for this assertion. Here, as in Ritter, even though the policy was not followed, the doctors' due process rights were not violated. See Ritter, 96 Wn.2d at 511-13. COMMISSIONS' DELEGATION OF DECISION-MAKING Ά57 The Medical Commission and Dental Commission have the statutory authority to delegate decision-making authority to a presiding officer. RCW 18.130.050(8). Also, an agency head may delegate, to a presiding officer, the authority to make a final decision and enter a final order. RCW 34.05.425(1)(b). Ά58 Policy D14.03 authorizes that a pro-tem panel should decide cases involving current Commission members. A reading of D14.03 indicates a strong policy concern for the preservation of the appearance of fairness that might be compromised by having decisions related to a commission member rendered by a panel of his or her colleagues. Ά59 Because there is statutory authority for the delegation of decision-making to a presiding officer, and no statutory authority requiring a pro-tem panel, the delegation of the decision-making power by a panel was appropriate. This delegation maintained the appearance of fairness. Ά60 The failure to use a pro-tem panel did not violate Drs. Lang and Paxton's statutory or constitutional rights. Motion to Compel Ά61 Drs. Lang and Paxton received permission to serve interrogatories on the Department. Dissatisfied with the answers they received, they filed a motion to compel. Drs. Lang and Paxton now challenge the presiding officer's denial of this motion. Drs. Lang and Paxton contend that the Department did not fully respond to their interrogatories and that the answers given failed to identify specific bases for the charges and, instead, identified the entire investigative file. Ά63 The Department's charges against Dr. Lang and Dr. Paxton were based solely on the allegation that unlicensed assistants were used to "start intravenous lines, and draw and administer intravenous sedation drugs." AR at 1. The charges here were based on the doctors' admissions and the statements of their past and present employees. The Department did not seek to introduce any witnesses or facts not contained in the investigative file. In its answers to the interrogatories, the Department gave some page numbers and identified various witness statements. Ά64 The Commissions' presiding officer did not abuse his discretion by denying the motion to compel. SANCTIONS Ά66 Here, the Commissions' presiding officer directed Drs. Lang and Paxton to cease their practice of having unlicensed employees start IV lines and administer anesthetic. The presiding officer also ordered Drs. Lang and Paxton to pay fines of $5,000 each. Ά68 We affirm. SWEENEY, C.J., and SCHULTHEIS, J., concur.