What a State Calls Unprofessional Conduct

Answer first: it is a list, and it is longer than malpractice

The phrase unprofessional conduct sounds like a judgment call. In the two states read here it is an enumerated statutory list, and a licensing body acts on the items in it.

Washington puts one list in RCW 18.130.180 and applies it across a very large number of professions at once. The section opens by stating that, except as provided in a cited section, the following conduct, acts, or conditions constitute unprofessional conduct for any license holder under the jurisdiction of the chapter. It then runs to thirty numbered grounds.

Virginia writes a separate list for the Board of Medicine in Code of Virginia section 54.1-2915. That section states that the Board may refuse to issue a certificate or license to any applicant, reprimand any person, place any person on probation for such time as it may designate, impose a monetary penalty or terms as it may designate, suspend any license for a stated period or indefinitely, or revoke any license, for a list of acts of unprofessional conduct running to twenty-four items.

The single most useful thing a reader can take from either list is how little of it is about a clinical error. Injury to a patient appears in both, and then both lists spend most of their length on conduct that has nothing to do with a treatment decision.

Advertising is on both lists

A promotional claim is a disciplinary matter for the person whose license appears beside it, in both states.

Washington's third enumerated ground is stated in six words: all advertising which is false, fraudulent, or misleading. There is no threshold of harm attached to it and no requirement that anyone acted on the advertisement.

Virginia's fifteenth ground is narrower in one respect and specific in another. It covers publishing in any manner an advertisement relating to his professional practice that contains a claim of superiority or violates Board regulations governing advertising. A claim of superiority is named directly, which is a different drafting choice from Washington's general falsity standard.

Virginia's sixteenth ground adds a broader catch: performing any act likely to deceive, defraud, or harm the public. Likely to is the operative phrase — the standard does not require that anyone was in fact deceived.

Washington adds a ground that speaks to promotional pressure rather than to a claim's truth. Its sixteenth item covers promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service. That is not a rule about accuracy. It is a rule about why something was recommended.

Cooperation with the regulator is itself a ground

Both statutes make the licensee's behavior during an investigation a separate disciplinable act, which is the part that most surprises people reading a disciplinary list for the first time.

Washington's eighth ground is failure to cooperate with the disciplining authority by not furnishing any papers, documents, records, or other items; by not furnishing in writing a full and complete explanation covering the matter contained in the complaint filed with the disciplining authority; by not responding to subpoenas issued by the disciplining authority, whether or not the recipient of the subpoena is the accused in the proceeding; or by not providing reasonable and timely access for authorized representatives of the disciplining authority seeking to perform practice reviews at facilities used by the license holder.

Its ninth ground is failure to comply with an order issued by the disciplining authority or a stipulation for informal disposition entered into with the disciplining authority. Its twenty-first covers interference with an investigation or disciplinary proceeding by wilful misrepresentation of facts, by threats or harassment against a patient or witness to prevent them from providing evidence, or by financial inducements to a patient or witness to prevent them from providing evidence.

Virginia's eighteenth ground covers violating or cooperating with others in violating the general provisions of the cited chapters or the regulations of the Board.

Both states also treat action taken by another jurisdiction as a ground in its own right. Washington's fifth ground is suspension, revocation, or restriction of the individual's license to practice any health care profession by competent authority in any state, federal, or foreign jurisdiction, with a certified copy of the order, stipulation, or agreement being conclusive evidence of it. Virginia's fifth ground is restriction of a license to practice a branch of the healing arts in another state, the District of Columbia, a United States possession or territory, or a foreign jurisdiction, or for an entity of the federal government.

Virginia goes further in one place. Its subsection C states that the Board shall refuse to issue a certificate or license to any applicant who has had a license to practice a branch of the healing arts revoked or suspended, and not reinstated, in another jurisdiction. Shall, not may.

The grounds a consumer is most likely to be adjacent to

Several items on these lists sit close to how a remote prescribing service actually operates.

Washington's sixth ground covers the possession, use, prescription for use, or distribution of controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself.

Its seventh ground is 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. That clause is what converts a breach of a separate practice statute into a disciplinary matter.

Its tenth ground is aiding or abetting an unlicensed person to practice when a license is required. Its twelfth is practice beyond the scope of practice as defined by law or rule. Its thirteenth is misrepresentation or fraud in any aspect of the conduct of the business or profession — the business, not only the clinical work. Its fourteenth is failure to adequately supervise auxiliary staff to the extent that the consumer's health or safety is at risk.

Virginia's eighth ground covers prescribing or dispensing any controlled substance with intent or knowledge that it will be used otherwise than medicinally, or for accepted therapeutic purposes, or with intent to evade any law with respect to the sale, use, or disposition of the drug. Its ninth covers violating the chapter's provisions on division of fees. Its eleventh covers aiding or abetting, having professional connection with, or lending his name to any person known to him to be practicing illegally any of the healing arts. Its seventeenth covers violating any provision of statute or regulation, state or federal, relating to the manufacture, distribution, dispensing, or administration of drugs.

Washington's fourth ground states the clinical standard and then qualifies it in a sentence people rarely quote. Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed, followed by: the use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed.

How wide these lists reach, and how other statutes feed into them

Washington's list is not a physician list. RCW 18.130.040 states that the chapter applies only to the secretary and the boards and commissions having jurisdiction over the professions licensed under the chapters it specifies, and then names dozens of them — from dispensing opticians, midwives and massage therapists under the secretary's authority to the pharmacy quality assurance commission, the Washington medical commission, and the board of osteopathic medicine and surgery among the boards. One statutory definition of unprofessional conduct therefore governs a very large number of different credentials in Washington.

Virginia's section 54.1-2915 sits in the Medicine and Other Healing Arts chapter and applies to the branches of the healing arts that chapter covers.

Both lists also act as a destination for duties written elsewhere. Washington's twentieth ground incorporates violations of a set of cited provisions, including a pattern of violations of the audio-only telemedicine billing-consent subsection in its insurance code. California uses the same technique in a different code: Business and Professions Code section 2290.5 states that the failure of a health care provider to comply with its telehealth consent requirement shall constitute unprofessional conduct.

That is how a rule about a consent screen or a billing practice becomes a licensing matter. The operative statute states the duty, and a separate sentence deposits a breach of it into the unprofessional conduct category, where a board already has powers.

Two limits are worth stating plainly. Neither list decides whether anyone did any of these things — that is what an investigation and an adjudication are for. And neither list is national. Washington's thirty grounds and Virginia's twenty-four are two states' answers, and a licensee practicing in several states may be measured against several different lists at once.