Research · 7 min read
What a State Does About Practice Without a License
One state's statute gives its regulator a cease and desist order, a civil fine measured per day, an injunction any person may seek, and a criminal charge that escalates on the second violation. The exemptions beside it are narrower than they look.
Key takeaways
- Washington's license requirement in RCW 18.71.021 covers both practicing medicine and representing oneself as practicing it.
- RCW 18.130.190 gives Washington's secretary a cease and desist order, a temporary order on a written finding of irreparable public harm, and a civil fine not exceeding one thousand dollars for each day of unlicensed practice.
- A twenty-day window applies to requesting a hearing after a notice of intention; failure to request one is a default that permits a permanent order and a fine.
- Unlicensed practice is a gross misdemeanor for a single violation in Washington, and each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony.
- The exemptions in RCW 18.71.030 cover consultation with a Washington-licensed practitioner who retains responsibility, and in-person practice by an out-of-state practitioner who opens no office or place of meeting patients in the state.
- Both Washington's enforcement section and California's section 4160 are written around businesses and roles, not only around individual practitioners.
Answer first: the license requirement is short, and the enforcement section is long
The rule itself takes one sentence in each of the two states read here. Washington's RCW 18.71.021 states that no person may practice or represent himself or herself as practicing medicine without first having a valid license to do so. Virginia's Code section 54.1-2902 states that it is unlawful for any person to practice medicine, osteopathic medicine, chiropractic, or podiatry, or as a physician assistant, in the Commonwealth without a valid unrevoked license issued by the Board.
Note the two verbs in the Washington sentence. Practice, and represent himself or herself as practicing. Holding out is inside the prohibition, independent of whether any care was delivered.
The enforcement machinery sits elsewhere. Washington's RCW 18.130.190 provides that the secretary shall investigate complaints concerning practice by unlicensed persons of a profession or business for which a license is required by the chapters specified in the state's Uniform Disciplinary Act, with the same investigative authority available in a disciplinary case.
That framing matters for anyone assessing an online business. The section is about a profession or a business, and the state's investigative power over unlicensed practice does not depend on there being a licensee to discipline. It is the absence of the license that triggers it.
The order, the fine that runs by the day, and the default
RCW 18.130.190 gives Washington's secretary a graduated set of tools, and the intermediate ones do not require a court.
The secretary may issue a notice of intention to issue a cease and desist order to any person the secretary has reason to believe is engaged in unlicensed practice of a profession or business for which a license is required. The recipient may request an adjudicative proceeding to contest the charges, and the request must be filed within twenty days after service of the notice. Failure to request a hearing constitutes a default, whereupon the secretary may enter a permanent cease and desist order, which may include a civil fine.
If the secretary makes a final determination that a person has engaged or is engaging in unlicensed practice, the secretary may issue a cease and desist order. In addition, the secretary may impose a civil fine in an amount not exceeding one thousand dollars for each day upon which the person engaged in unlicensed practice, with the proceeds deposited to the health professions account.
Per day is the unit. A fine measured that way scales with the duration of the conduct rather than with the number of transactions, which is a very different arithmetic from a per-violation penalty.
There is also an emergency route. If the secretary makes a written finding of fact that the public interest will be irreparably harmed by delay in issuing an order, the secretary may issue a temporary cease and desist order, and the recipient shall be provided an opportunity for a prompt hearing. The temporary order remains in effect until further order of the secretary, and failure to request a prompt or regularly scheduled hearing again constitutes a default.
The statute then removes an argument. Neither the issuance of a cease and desist order nor payment of a civil fine relieves the person from criminal prosecution; the order or fine is in addition to any criminal liability. And the cease and desist order is conclusive proof of unlicensed practice, enforceable under the cited contempt statute, either in addition to or as an alternative to the ordinary provisions for enforcing agency orders.
Who may go to court, and what the charge becomes on a second violation
Washington's injunction provision is written with an unusually broad list of possible plaintiffs.
The attorney general, a county prosecuting attorney, the secretary, a board, or any person may, in accordance with the laws of the state governing injunctions, maintain an action in the name of the state to enjoin any person practicing a profession or business for which a license is required from engaging in that practice or operating that business until the required license is secured. The statute repeats its non-exclusivity: the injunction does not relieve the person from criminal prosecution, and the remedy by injunction is in addition to any criminal liability.
The criminal exposure escalates. Unlicensed practice of a profession, or operating a business for which a license is required by the specified chapters, unless otherwise exempted by law, constitutes a gross misdemeanor for a single violation. Each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to the cited chapter.
Whether alleged in the same or in subsequent prosecutions is the phrase that does the work there. The escalation does not require a prior conviction to have been obtained first.
All fees, fines, forfeitures, and penalties collected or assessed by a court because of a violation of the section are remitted to the health professions account.
The reach of all of this is defined by a separate section. 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 a long list of them, from midwives, dispensing opticians, dietitians and nutritionists 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 and commissions. The unlicensed practice section reaches the professions on that list and no others.
The exemptions, and the two that decide how remote care is treated
Washington's medical practice chapter carries a list of exemptions in RCW 18.71.030, and two of its items are directly relevant to a clinician licensed somewhere else.
The first covers consultation. Nothing in the chapter prohibits the consultation through telemedicine or other means by a practitioner, licensed by another state or territory in which he or she resides, with a practitioner licensed in Washington who has responsibility for the diagnosis and treatment of the patient within Washington.
Read what that exemption actually permits. The out-of-state practitioner consults with a Washington-licensed practitioner, and the Washington-licensed practitioner holds responsibility for the diagnosis and treatment. It is an exemption for a consulting relationship between two clinicians, not an exemption for treating a Washington patient directly from another state.
The second covers a visit. Nothing in the chapter prohibits the in-person practice of medicine by any practitioner licensed by another state or territory in which he or she resides, provided that such practitioner shall not open an office or appoint a place of meeting patients or receiving calls within Washington. The exemption is expressly for in-person practice, and it is conditioned on not establishing a place of meeting patients or receiving calls in the state.
The rest of the list is made up of the categories one would expect and a few that are specific to Washington: emergency assistance requiring immediate attention; the domestic administration of family remedies; administration of oral medication to students by school employees under the cited chapter; the practice of other licensed healing arts under their own licenses; commissioned medical officers of the armed forces, the public health service, or the veterans administration performing their federal duties; medical students, postgraduate trainees and physician assistant students under stated conditions; the practice of medicine by a licensed physician assistant under the supervision of or in collaboration with a physician licensed under the chapter; a Canadian-licensed physician practicing in a part of the state that shares a border with Canada and is surrounded on three sides by water; and several role-specific items.
None of the exemptions in that list is a general permission for a clinician licensed elsewhere to treat Washington patients remotely.
The same question for a company rather than a person
An unlicensed practice statute is usually read as being about individuals. Washington's is not written that way, and California's pharmacy code makes the point from a different direction.
RCW 18.130.190 repeatedly pairs the two: a profession or a business, practicing a profession or operating a business, and the criminal provision covers unlicensed practice of a profession or operating a business for which a license is required. The injunction provision likewise reaches a person operating such a business.
California takes the same approach in its pharmacy chapter. Business and Professions Code section 4160 states that a person shall not act as a wholesaler or third-party logistics provider of any dangerous drug or dangerous device unless he or she has obtained a license from the board, with a separate license required for each place of business owned or operated, annual renewal, and no transferability. The prohibition is on acting in a role, and a corporate entity acts in roles.
Two limits are worth stating. None of this describes any actual company, and nothing here is a claim that any business is or is not licensed anywhere. And the answer is state by state: Washington's per-day civil fine and escalating criminal exposure, Virginia's flat statement that practice without a valid unrevoked license is unlawful, and California's role-based license requirements are three separate schemes, and a business operating across state lines is measured against each one on its own terms.
Sources
- Revised Code of Washington 18.130.190 — Practice without license — Investigation of complaints — Cease and desist orders — Injunctions — PenaltiesThe secretary's duty to investigate complaints of unlicensed practice of a profession or business; the notice of intention to issue a cease and desist order and the twenty-day hearing request window; the default and permanent order with a civil fine; the final cease and desist order and the civil fine not exceeding one thousand dollars per day deposited to the health professions account; the temporary cease and desist order on a written finding of irreparable public harm; the statement that an order or fine does not relieve criminal prosecution and that the order is conclusive proof of unlicensed practice; the injunction provision naming the attorney general, a county prosecuting attorney, the secretary, a board, or any person; the gross misdemeanor and class C felony provisions including the phrase whether alleged in the same or in subsequent prosecutions; and the remittance of court-collected amounts to the health professions account.
- Revised Code of Washington 18.71.021 — License requiredThe statement that no person may practice or represent himself or herself as practicing medicine without first having a valid license to do so.
- Revised Code of Washington 18.71.030 — ExemptionsThe exemption for consultation through telemedicine or other means by a practitioner licensed in another state with a Washington-licensed practitioner who has responsibility for the diagnosis and treatment of the patient in Washington; the exemption for in-person practice by an out-of-state practitioner conditioned on not opening an office or appointing a place of meeting patients or receiving calls in Washington; and the other enumerated exemptions relied on, including emergency assistance, domestic family remedies, other licensed healing arts, federal medical officers, students and postgraduate trainees, licensed physician assistants practicing under supervision or in collaboration, and the Canadian border provision.
- Revised Code of Washington 18.130.040 — Application to certain professionsThe statement 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 the enumeration of those professions and bodies used to describe the reach of the unlicensed practice section.
- Code of Virginia section 54.1-2902 — Unlawful to practice without licenseThe statement that it is unlawful for any person to practice medicine, osteopathic medicine, chiropractic, or podiatry, or as a physician assistant, in the Commonwealth without a valid unrevoked license issued by the Board.
- California Business and Professions Code section 4160 — wholesalers and third-party logistics providersThe prohibition on a person acting as a wholesaler or third-party logistics provider of any dangerous drug or dangerous device without a board license, and the requirement of a separate license for each place of business owned or operated, renewed annually and not transferable.
Frequently asked questions
What does a state actually do about unlicensed practice?
Washington's RCW 18.130.190 gives the secretary a notice of intention to issue a cease and desist order, a final cease and desist order, a civil fine not exceeding one thousand dollars for each day of unlicensed practice, and a temporary cease and desist order where the public interest would be irreparably harmed by delay. It also preserves injunctive relief and criminal prosecution alongside those tools. Other states have their own schemes.
How is the Washington fine calculated?
By the day. RCW 18.130.190 provides for a civil fine in an amount not exceeding one thousand dollars for each day upon which the person engaged in unlicensed practice of a business or profession for which a license is required by one or more of the specified chapters, with the proceeds deposited to the health professions account.
Is unlicensed practice a crime in Washington?
The statute says so, and it escalates. Unlicensed practice of a profession, or operating a business for which a license is required by the specified chapters, unless otherwise exempted by law, constitutes a gross misdemeanor for a single violation, and each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to the cited chapter.
Who can seek an injunction against unlicensed practice in Washington?
RCW 18.130.190 names the attorney general, a county prosecuting attorney, the secretary, a board, or any person, acting in accordance with the state's laws governing injunctions, to maintain an action in the name of the state to enjoin the practice or the operation of the business until the required license is secured. This describes who the statute names; it is not advice that any reader should or could bring such an action.
Can a clinician licensed in another state treat patients remotely in Washington under an exemption?
The exemptions in RCW 18.71.030 do not say that. One exemption covers consultation through telemedicine or other means by an out-of-state practitioner with a Washington-licensed practitioner who has responsibility for the diagnosis and treatment of the patient in Washington. Another covers the in-person practice of medicine by an out-of-state practitioner, conditioned on not opening an office or appointing a place of meeting patients or receiving calls in Washington. Neither is a general permission for direct remote treatment.
Do these rules reach companies as well as individuals?
Washington's RCW 18.130.190 repeatedly pairs practicing a profession with operating a business, including in its criminal and injunction provisions. California's Business and Professions Code section 4160 prohibits a person from acting as a wholesaler or third-party logistics provider of any dangerous drug or device without a board license, with a separate license per place of business. Both are written around roles and businesses rather than only around individual practitioners.