Bjorgen, C. J.
¶ 1 Dale Alsager appeals the Washington Board of Osteopathic Medicine and Surgery’s
permanent revocation of his license to practice medicine, as well as several of the Board’s prehearing rulings and its order denying reconsideration. He makes two primary arguments. First, he contends that the Board violated his federal and state constitutional rights against compelled self-incrimination by sanctioning him for failing to testify and to disclose prescription records. Second, he contends
that the Board violated his federal and state constitutional rights against unlawful searches and seizures by searching and procuring his prescription records from the state’s prescription monitoring program and participating pharmacies. He also argues that the superior court erred by dismissing his petition for declaratory judgment under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, that the Board’s findings of fact and conclusions of law were insufficiently supported, that a panel member should have been disqualified, and that documentary evidence was admitted without authentication.
¶2 We hold in the published portion of this opinion that the Board’s proceedings did not deprive Alsager of any right against compelled self-incrimination and that the Board and Department of Health acted within constitutional bounds in procuring the prescription records. In the unpublished portion of this opinion, we hold that the superior court properly dismissed Alsager’s petition for declaratory action, that the Board’s findings of fact and conclusions of law were sufficiently supported, that Alsager failed to establish grounds for the panel member’s disqualification, and that any error in admitting the documentary evidence without assessing authentication was harmless. Accordingly, we affirm the Board’s revocation of Alsager’s license to practice medicine.
FACTS
¶3 In 2008, the Board sanctioned Alsager for inappropriately prescribing potentially dangerous medications without conducting necessary patient examinations.
The sanctions prohibited Alsager from prescribing schedule II or III controlled substances until he completed an approved residency or pain management training course.
¶4 In 2012, the Board received a complaint regarding Alsager’s treatment of one of his patients and notified Alsager of the complaint. Following the Uniform Disciplinary Act (UDA), chapter 18.130 RCW, the Board found that the complaint had merit and initiated an investigation. RCW 18.130.080(2). An investigator contacted Alsager, requesting that he produce a copy of the patient’s file, which included prescription records, and make a written statement responding to the complaint.
¶5 Alsager did not answer the request or provide the requested information. Instead, he asked the Board to quash the production demand on constitutional grounds. The Board denied Alsager’s request. The investigator then performed a search of the State’s prescription monitoring program database, which archives prescriptions for medical drugs filled in Washington.
See
ch. 70.225 RCW. This search uncovered prescription records showing that Alsager prescribed schedule III controlled substances to his patients and himself after the Board issued its prior order prohibiting him from doing so.
¶6 Based on the information the investigator uncovered from the database, the Board authorized additional investigation. The investigator again contacted Alsager, this time requesting medical records for patients to whom Alsager had prescribed schedule II or III controlled substances since the Board issued its 2008 order. Alsager responded, asserting that his Fourth and Fifth Amendment rights under the United States Constitution protected him from compelled cooperation. The investigator then requested prescription records from various pharmacies.
¶7 Alsager petitioned the Board under RCW 34.05.240 for an order declaring that he need not testify or produce the requested records on constitutional grounds. He also requested clarification as to the scope of the Board’s 2008 order. The Board denied the petition and declined to clarify the scope of the order, finding that Alsager “ha[d] not
demonstrated an uncertainty necessitating resolution exists with regard! ] to [its] language.” Admin. Record at 1919.
¶8 Alsager then petitioned the superior court under the UDJA for a declaratory judgment that the Board could not require him to testify or produce the records and that the statutes imposing those requirements were facially unconstitutional. The superior court granted the Board’s motion for summary judgment and dismissed the case, reasoning that Alsager could not circumvent Washington’s Administrative Procedure Act (APA), chapter 34.05 RCW, by seeking a declaratory judgment. Instead, the superior court ruled that Alsager must utilize the judicial review process under the APA. Alsager appealed, and we have consolidated this appeal with the others described below.
¶9 Alsager also brought suit in federal court, seeking a declaration that his compelled cooperation would violate his constitutional rights. The federal court denied him the relief he sought, similarly reasoning that the APA provided the appropriate avenue for review of his constitutional claims.
Alsager v. Bd. of Osteopathic Med. & Surgery,
573 F. App’x 619 (9th Cir. 2014).
¶10 The Board ultimately charged Alsager with unprofessional conduct under the UDA for violating the 2008 order and failing to cooperate with the investigation. For this conduct, the Board summarily suspended his license to practice. The Board held a show cause hearing on the summary suspension at Alsager’s request, after which it upheld that sanction.
¶11 Before the hearing on his charges before the Board, Alsager moved for several prehearing rulings. Among other matters, he moved for rulings that his constitutional rights precluded compelled testimony or production of documents, that several members of the Board should be disqualified due to the fact that they practiced in the same geographic area as Alsager, and that prescription records obtained from the prescription monitoring program database were not
authenticated and were therefore inadmissible. The Board denied each of these motions.
¶12 The Board held its hearing on the merits of Alsager’s charges on June 4, 2014. The Department of Health (Department) provided the prescription records from the database, as well as prescription records from pharmacies obtained by the investigator. The investigator testified and was cross-examined. Instead of making specific objections or focusing on specific topics, Alsager refused to testify or present any evidence on the general basis of the Fourth and Fifth Amendments. The presiding officer ruled that these protections did not apply and stated that it would instruct the panel that they may draw negative inferences from Alsager’s refusal to testify. The Department then directed specific questions to an empty witness stand, and Alsager provided no individual responses or invocations of his rights.
¶13 The Board issued its final order on July 9, 2014. It concluded that Alsager had committed unprofessional conduct as defined in RCW 18.130.180 by repeatedly violating the 2008 order and by refusing to cooperate with the investigation. Based on these conclusions, the Board permanently revoked Alsager’s license to practice osteopathic medicine in Washington. Subsequently, the Board denied Alsager’s motion for reconsideration. Alsager appealed to the superior court, which denied the petition for judicial review.
¶14 Alsager appeals various prehearing orders by the Board, the Board’s final order, the Board’s denial of reconsideration, and the superior court’s denial of the petition for judicial review. We have consolidated this appeal with his earlier appeal of the superior court’s dismissal of his declaratory judgment action.
ANALYSIS
¶15 Alsager presents two primary arguments. First, he argues that the Board violated his constitutional right
against compelled self-incrimination by requiring him to cooperate with its investigation. Second, he contends that it engaged in a constitutionally unlawful search and seizure by searching the prescription monitoring program for records of the prescriptions he wrote. Alsager additionally argues that the Board’s final order was not properly supported, one of the Board’s panel members should have been disqualified from serving on the panel, and the Board erred by admitting prescription records that were not authenticated. In his appeal of the superior court’s decision on declaratory judgment, he contends that the superior court improperly dismissed his petition on grounds that the declaratory action was unavailable in light of the judicial review process of the APA. We are not persuaded by these arguments.
I. Rights against Compelled Self-Incrimination
¶16 Alsager argues that because a professional disciplinary proceeding is “quasi-criminal” in nature, the Board violated his constitutional right against compelled
self-incrimination by requiring him to testify and produce testimonial records. Br. of Appellant at 1-2. We disagree
that these medical license revocation proceedings were sufficiently criminal in nature to require application of the Fifth Amendment protection against self-incrimination. Consequently, the Board did not violate Alsager’s Fifth Amendment rights.
¶17 We review final administrative decisions under the APA.
Fell v. E. Wash. Growth Mgmt. Hr’gs Bd.,
172 Wn.2d 367, 376, 259 P.3d 227 (2011). We review the agency’s decision, not the decision of the superior court on initial review.
Pal v. Dep’t of Soc. & Health Servs.,
185 Wn. App. 775, 781, 342 P.3d 1190 (2015). We will grant relief from the agency’s decision if it suffers from one of the infirmities listed in RCW 34.05.570(3), which include:
(a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied; [or]
(d) The agency has erroneously interpreted or applied the law.
The party asserting the invalidity of the agency decision bears the burden of showing that the decision is invalid on one of these grounds. RCW 34.05.570(l)(a).
¶18 Alsager claims that the Board’s final order and the statutes on which it was based violate his constitutional rights. We review such issues de novo, though we presume that statutes are constitutional.
City of Seattle v. Evans,
184 Wn.2d 856, 861-62, 366 P.3d 906 (2015),
cert. denied,
137 S. Ct. 474 (2016).
A. Quasi-Criminal Actions
¶19 Alsager argues that board proceedings for revocation of a medical license are quasi-criminal in nature and therefore are subject to the protections of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution. We disagree
and hold that although board proceedings have a punitive aspect, they do not qualify as “criminal cases” within the meaning of those constitutional provisions.
¶20 The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. Similarly, article I, section 9 of our state constitution provides that “[n]o person shall be compelled in any criminal case to give evidence against himself.” The protections provided by these provisions are coextensive.
State v. Unga,
165 Wn.2d 95, 100, 196 P.3d 645 (2008).
¶21 Although the language of these constitutional provisions specifies that they are applicable only to “criminal cases,”
suits for penalties and forfeitures incurred by the commission of offences against the law, are of [a] c/ua.si-criminal nature,... [and] are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.
Boyd v. United States,
116 U.S. 616, 634-35, 6 S. Ct. 524, 29 L. Ed. 746 (1886) (emphasis added). However, this seemingly broad holding has been limited over the years.
United States v. Ward,
448 U.S. 242, 253, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). Under
Boyd
and its progeny, the “government may not abrogate the accused’s privilege against self-incrimination by electing the vehicle of a nominally civil proceeding, when in reality, punishment for activity which violates the criminal law is being imposed.”
In re Daley,
549 F.2d 469, 475 (7th Cir. 1977). A civil action is sufficiently criminal in nature if “[i]ts object, like a criminal proceeding, is to penalize for the commission of an offense against the law.”
One 1958 Plymouth Sedan v. Pennsylvania,
380 U.S. 693, 700, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965).
¶22 Our Supreme Court has characterized professional disciplinary proceedings involving the revocation of licenses as quasi-criminal for the purpose of determining whether due process protections apply to such proceedings.
Nguyen v. Med. Quality Assur. Comm’n,
144 Wn.2d 516, 527-29, 29 P.3d 689 (2001);
Wash. Med. Disciplinary Bd. v. Johnston,
99 Wn.2d 466, 474, 663 P.2d 457 (1983);
In re Revocation of License of Kindschi,
52 Wn.2d 8, 10-11, 319 P.2d 824 (1958). However, the full protections enjoyed by criminal defendants are not necessarily available in such quasi-criminal proceedings.
See Nguyen,
144 Wn.2d at 527-28 (holding that clear and convincing evidence, rather than proof beyond a reasonable doubt, is required to impose sanctions in disciplinary proceedings);
cf. Rowe v. Dep’t of Licensing,
88 Wn. App. 781, 784-85, 946 P.2d 1196 (1997) (holding that suspension of a driver’s license for conduct already sanctioned in a criminal case did not violate defendant’s constitutional rights against double jeopardy because it served a remedial purpose beyond the criminal penalties). Thus, we must decide whether a disciplinary proceeding for revocation of a medical license is quasi-criminal in a manner that requires application of the right against compelled self-incrimination.
¶23 Both
Kindschi
and
Nguyen
recognized that although the “consequence [of disciplinary sanctions] is unavoidably punitive,” such sanctions are “not designed entirely for that purpose.”
Kindschi,
52 Wn.2d at 10-11;
Nguyen,
144 Wn.2d at 528. Licensure of doctors and the disciplinary procedures
used to enforce it are intended not simply to ensure that doctors comply with applicable law, but “to assure the public of the adequacy of professional competence and conduct in the healing arts.” RCW 18.130.010;
see also Kindschi,
52 Wn.2d at 10-11. Sanctioning unprofessional conduct serves primarily to maintain professional standards and promote public health and confidence, rather than seeking punitive goals like vengeance. This is akin to the system upheld in
Daley:
Because the primary function of state bar disciplinary proceedings is remedial, i. e., maintenance of the integrity of the courts and the dignity of the legal profession as well as protection of the public, we . . . hold that the Fifth Amendment privilege against self-incrimination does not proscribe the introduction in state bar disciplinary proceedings of testimony compelled under a grant of immunity.
549 F.2d at 476-77. We similarly conclude that the primary object of the UDA is remedial and regulatory, not punitive.
¶24 As the United States Supreme Court discussed in
Ward,
the following factors are relevant to determining whether a nominally civil action is sufficiently criminal in nature to trigger a defendant’s constitutional right against self-incrimination: (1) whether the penalty imposed has a “correlation to any damages sustained by society or to the cost of enforcing the law,” (2) whether the available sanctions include traditionally punitive penalties associated with criminal actions, like imprisonment or fines, and (3) whether the proceedings present some danger that the subject practitioner will prejudice himself with respect to possible criminal proceedings. 448 U.S. at 254.
Ward
also relied on the “overwhelming evidence” it found “that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect . . . .”
Id.
¶25 On balance, these
Ward
factors weigh against a holding that board disciplinary actions are sufficiently criminal to trigger a practitioner’s constitutional rights
against compelled testimony and evidence production. Suspension or revocation of a license for unprofessional conduct in medicine is closely correlated to ensuring safe and adequate medical care and to promoting public trust in the medical profession. The available sanctions do not include imprisonment and are tailored to minimize or prevent further unprofessional conduct, though fines may be levied.
See
RCW 18.130.160. However, any authority imposing sanctions under the UDA, including fines, “must first consider what sanctions are necessary to protect or compensate the public.”
Id.
Thus, even the assessment of fines primarily serves a remedial, rather than a punitive, function. In addition, there is no general danger of prejudice with respect to future criminal proceedings, though in certain instances proceedings may involve conduct to which criminal liability may attach. The final consideration in
Ward,
the overwhelming evidence of legislative intent, does not weigh appreciably in either direction in the present appeal.
¶26 Under the
Ward
factors these medical disciplinary proceedings on balance are best considered civil actions, not quasi-criminal. As such, they do not necessarily trigger the constitutional protections against compelled self-incrimination.
Subject to the limitation discussed in Section I.B below, the Board may sanction noncompliance with its valid
questions and requests for documents.
See Sec. & Exch. Comm’n v. Colello,
139 F.3d 674, 678 (9th Cir. 1998). The Board is also free to draw adverse inferences from a physician’s refusal to testify or produce requested documents, as long as such adverse inferences are supported by some other evidence.
Diaz v. Wash. State Migrant Council,
165 Wn. App. 59, 85, 265 P.3d 956 (2011);
Jane Doe v. Glanzer,
232 F.3d 1258, 1264 (9th Cir. 2000). Because the Board also examined other evidence that Alsager improperly prescribed controlled substances in violation of its earlier order, it did not err in allowing adverse inferences from Alsager’s refusal to testify or respond.
B. Invocation of Right in Civil Proceedings
¶27 We recognize, however, that testimony or other evidence compelled in a medical disciplinary proceeding could incriminate the practitioner in potential criminal prosecutions. In that situation, though, the practitioner must assert his rights through specific, individual objections, not by invoking blanket constitutional protection to avoid participating in the proceedings.
¶28 One may assert Fifth Amendment rights in any proceeding, including civil and administrative proceedings.
Kastigar v. United States,
406 U.S. 441, 444, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). Specifically, a party in a civil proceeding need not answer questions “where the answer might incriminate him in future criminal proceedings.”
State v. King,
130 Wn.2d 517, 524, 925 P.2d 606 (1996).
¶29 However, in a civil proceeding, the right against testifying “necessarily attaches only to the question being asked and the information sought by that particular ques
tion.”
Glanzer,
232 F.3d at 1265. Therefore, a person invoking his Fifth Amendment right against self-incrimination to avoid testifying in a civil action must assert that right specifically in response to particular questions or requests for information.
Id.
Alsager was not permitted to avoid all cooperation with the Board by asserting that right generally.
See Eastham v. Arndt,
28 Wn. App. 524, 532, 624 P.2d 1159 (1981);
see also State Bar Grievance Adm’r v. Baun,
395 Mich. 28, 37, 232 N.W.2d 621 (1975) (Michigan case in the line stemming from
Woll).
Because Alsager did not claim Fifth Amendment protections specifically or limit his assertion of the right to any particular topics, requests, or questions, he did not properly invoke it as to matters potentially related to criminal liability.
¶30 For the reasons above, these medical license revocation proceedings did not violate Alsager’s Fifth Amendment rights.
II. Rights against Unreasonable Search and Seizure
¶31 Alsager argues that by searching the prescription monitoring program database for his prescription records and gathering those records from the database and pharmacies, the Board violated his federal and state constitutional rights to be free from unreasonable search and seizure.
He also argues that the statutes authorizing the search are facially unconstitutional.
We disagree.
¶32 The Fourth Amendment to the United States Constitution provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei
zures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Similarly, article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs .. . without authority of law.” This state provision is more broadly protective than is its federal counterpart.
State v. Hendrickson,
129 Wn.2d 61, 69 n.1, 917 P.2d 563 (1996).
¶33 Our analysis of whether the Board violated both constitutional provisions is two pronged: we must determine whether Alsager had a protected privacy interest in the prescription records held by the State or a third party, and if so, we must look to whether the Board’s warrantless search of those records was constitutionally permissible.
See State v. Miles,
160 Wn.2d 236, 243-44, 156 P.3d 864 (2007).
¶34 Turning first to the presence of a privacy interest, both the Fourth Amendment and article I, section 7 protect against government intrusion into one’s private records. The Fourth Amendment protects a person’s “subjective and reasonable expectation of privacy.”
State v. Young,
123 Wn.2d 173, 181, 867 P.2d 593 (1994) (citing
Katz v. United States,
389 U.S. 347, 351-52, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). Article I, section 7 more broadly protects “ ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.’ ”
Id.
(quoting
State v. Myrick,
102 Wn.2d 506, 511, 688 P.2d 151 (1984)). Under each constitutional source, a search requires an intrusion within the perimeter of a protected privacy interest.
Id.
¶35 Division One of our court has held, in an opinion both our Supreme Court and the United States Supreme Court declined to review, that a patient has only a limited expectation of privacy in prescription records.
Murphy v. State,
115 Wn. App. 297, 312-13, 62 P.3d 533 (2003).
The court noted that “constitutional privacy protections are not absolute,” and where such prescription records are concerned those protections “must be balanced against the need for comprehensive and effective governmental oversight of prescription narcotic use and distribution.”
Id.
at 308. As the court explained, Washington law has long required pharmacists to retain prescription records.
Id.
at 313. Due to this requirement and the controlled substances laws, patients should expect the government to “keep careful watch” over them and “should reasonably expect that their prescription records will be available to appropriate government agents, subject to safeguards against unauthorized further disclosure.”
Id.
at 312-13.
¶36 Although the court in
Murphy
focused on prescription narcotics records,
id.
at 307-08, its reasoning applies to prescription records of other scheduled controlled substances as well. RCW 18.64.245 (formerly codified at RCW 18.67.090) has long required pharmacists to keep all prescription records and make them available when lawfully required. Moreover, scheduled controlled substances have been subject to robust governmental regulation at the state and federal levels for decades, based on the danger they can pose to the public.
See, e.g.,
RCW 69.50.201-.214, .308, .401; 21 U.S.C. §§ 812, 841-865. As such, we must consider patients’ general interest in privacy in light of “the State’s vital interest in controlling the distribution of dangerous drugs.”
Whalen v. Roe,
429 U.S. 589, 598, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Considering that vital interest, patients should reasonably expect prescriptions for such records to be subject to some governmental scrutiny, “subject,” as noted in
Murphy,
“to safeguards against unauthorized further disclosure” by officials. 115 Wn. App. at 313.
¶37 To the extent Alsager relies on the privacy interests of prescribing physicians as well, his argument founders on the authority just noted. Physicians, allowed by law to prescribe controlled substances under RCW 69.50.308, should be even more aware than patients that the govern
ment exercises tight regulatory oversight of these controlled substances.
¶38 Alsager argues that we should recognize a protected privacy interest, at least under article I, section 7, because two 19th century Washington statutes provided that pharmacists need not keep records of drugs distributed with a physician’s prescription. These statutes established a general requirement that pharmacists keep records of the distribution of all potentially dangerous drugs for law enforcement inspection, but both included an exception for drugs prescribed by a physician. Laws of 1891, ch. 153, § 12; Code of 1881, § 936.
¶39 Neither of these statutes,
howeverprohibited,
pharmacists from keeping records of physicians’ prescriptions. At most, these statutes show that physicians’ prescription records have not always been subject to mandatory pharmacy record keeping requirements. However, as Division One noted in
Murphy,
there is a “long history of government scrutiny” over prescriptions. 115 Wn. App. at 313. The statutes Alsager discusses do not establish that physicians have historically enjoyed any particular privacy interest in prescription records.
¶40 We adopt the reasoning and holding of
Murphy
and extend it to apply to prescribing physicians. We hold that prescription records kept under the prescription monitoring program, either by a pharmacist or as part of the state database, are not protected from all governmental examination by the Fourth Amendment or article I, section 7. Records of prescriptions for scheduled controlled substances are subject to legitimate oversight by appropriate agents of the State if reasonably tailored to the enforcement of state law and if effective safeguards against unauthorized further disclosure are present. Acting under these constraints, the Department and the Board did not intrude into a zone of privacy protected by either the state or federal constitutions by the examination of Alsager’s prescription records kept under the prescription monitoring program,
whether in the state database or held by a pharmacist. Therefore, the Department and the Board did not violate either constitutional guaranty through this examination.
CONCLUSION
¶41 We affirm the Board’s final order permanently revoking Alsager’s license. The Board’s proceedings did not deprive Alsager of any right against compelled self-incrimination, and the Department and the Board did not violate Alsager’s right to be free from unreasonable searches and seizures when it examined Alsager’s prescription records kept under the prescription monitoring program, whether in the state database or held by a pharmacist. Alsager’s remaining legal challenges, discussed in the unpublished portion of this opinion, similarly do not persuade us that the Board erred.
¶42 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Worswick and Lee, JJ., concur.
Review denied at 187 Wn.2d 1026 (2017).