IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
YI SWEENEY, No. 84092-4-I Petitioner, DIVISION ONE v. UNPUBLISHED OPINION WASHINGTON STATE OFFICE OF THE INSURANCE COMMISSIONER,
Respondent.
DÍAZ, J. — Yi Sweeney appeals the Office of the Insurance Commissioner’s (OIC)
revocation of her resident insurance producer license. OIC found that Sweeney shuffled
clients from one type of Medicare plan to another, then immediately re-enrolled them back
to their original plans to obtain the commissions, all without the clients’s consent, which
was in violation of OIC’s regulations. Sweeney now argues that OIC’s Administrative Law
Judge (ALJ) erroneously applied the preponderance of the evidence standard;
erroneously admitted hearsay evidence, such that substantial evidence did not support
the OIC’s revocation; the revocation was an arbitrary and capricious penalty; and her own
polygraph test was improperly excluded. Finding no error, we affirm. No. 84092-4-I/2
I. FACTS
A. Background
Sweeney 1 obtained her first resident insurance producer license in 2015. She
began to sell Medicare products for United Health Care (UH) in 2016, such as its
specialized supplemental Medicare and Medicaid-eligible plan (Dual Complete). 2
According to Sweeney, UH recruited her to communicate with seniors who were Chinese-
speaking and low-income and, thus, eligible for UH’s Dual Complete plans because other
insurance producers were unable to communicate with these consumers. Sweeney
asserted consumers were often distrustful of the government and insurance companies,
and feared losing their Medicaid-only benefits. At the time, again according to Sweeney,
there were no other Chinese-speaking insurance producers in the greater Seattle area.
In 2017, Sweeney failed the re-certification test, which was required to sell UH’s
Medicare Advantage Plan (a Dual Complete plan). For reasons not expanded upon, she
failed the certification test six times. Her failure to pass the test meant that she could not
sell the Dual Complete plans for 2018, nor could she earn a commission on those sales
or renewals, but she still could sell other products. According to Sweeney, she had
enrolled approximately 200 consumers in a Dual Complete Plan in 2016 for 2017.
1 Yi Sweeney’s former last name is Peng, to which she is sometimes referred. We, however, will refer to her by the name under which she appealed. 2 Four different types of health plans are relevant here: Medicare Part A, which covers
hospital visits, skilled nursing care hospice, and some home care for people 65 years and older, 42 U.S.C. § 1395c; Medicare Part B, covering doctor visits, medical equipment, and some health care coverage, 42 U.S.C. § 1395k; Medicare Part C, which serves high needs populations letting them choose from private benefits not offered by the federal government, 42 U.S.C. § 1395w-21; and “Dual” plans which serve people who are both low-income (Medicaid eligible) and also have high needs, often age or disability. Often these are very low-income seniors. 2 No. 84092-4-I/3
Sweeney does not dispute that she was not certified to sell the Dual Complete
Plan to the consumers in 2018. However, as she told it, after failing the certification test,
she continued to provide other services to the seniors, such as helping them contact care
coordinators and helping them access translation services.
By “early in 2019,” Sweeney again became certified to sell the UH Dual Complete
Plans.
It is undisputed that, in approximately a 15-hour period between March 30 and 31,
2019, Sweeney created profiles for, and dis-enrolled and re-enrolled, 120 to 133
consumers from the UH Dual Complete Plan to a “original” Medicare plan and back. 3 She
listed her phone number and email as the contact information for most of them. The
creation of a profile and resulting dis-enrollment and re-enrollment required a signature
from the consumer, which appeared on each file.
Sweeney claims that this was done with each person’s consent. Namely, she
claims that, in early 2019, when she would see the client in person, she would ask them
whether they liked their UH Dual Complete Plan and whether they wanted her to remain
as their producer. She would then ask permission to transfer them to their original
Medicare plan for one month, and then she would re-enroll them in the Dual Complete
plan. “When they expressed yes, I would enroll them and capture their signature.”
Sweeney claims she captured their signatures with a mouse on her laptop.
3 Sweeney testified that, because of a built in “grace period,” no client would be harmed
by this process, i.e., there would be no gap in coverage between an “original” Medicare plan and the Dual Complete Benefits.
3 No. 84092-4-I/4
Although Sweeney claims these conversations with consumers occurred in “early
2019,” four of the consumers had died by January 8, 2019, some in 2018. 4
Sweeney claimed she captured each consumer’s signature in-person, and saved
it to UH’s software program, LEAN, to be submitted at a later time. Pierce DuCharme, a
business process analyst for UH, testified that such a scenario is impossible under LEAN,
unless Sweeney left the internet browser tabs with the pending signatures open for
months.
Beginning in early April 2019, Clara Yu, a support services specialist at the
Chinese Information Service Center in Seattle, received complaints from approximately
11 consumers who had been disenrolled from their Medicare Advantage plan, then re-
enrolled around a month later without their permission. Upon receiving these complaints,
Yu filed a complaint with OIC on April 9. Yu filed an additional complaint on April 18 on
behalf of SHIBA volunteers 5 who had received similar complaints from Sweeney’s clients.
Yu continued to update OIC on complaints from consumers.
OIC opened an investigation into Sweeney’s mass enrollments on May 15, 2019.
Jamie Bariekman, a senior investigator with OIC, submitted a declaration summarizing
his efforts. Bariekman also interviewed and obtained declarations from several
consumers who stated they did not give Sweeney permission to disenroll them and then
re-enroll them in their Dual Complete plans. Bariekman also reviewed the documentary
data available to OIC about Sweeney’s enrollments and disenrollment; and relevant
4 Sweeney testified that she received these clients’s consent before they died, that she
resubmitted them on accident, and, after receiving notices of their deaths (after she re- enrolled them), was not allowed to rescind their enrollments. 5 SHIBA is a program run by OIC, that provides an unbiased resource for seniors to
navigate complex issues with their Medicare coverage. 4 No. 84092-4-I/5
information about consumer signatures and death certificates for those consumers who
predeceased their re-enrollment.
Around the same time, UH opened its own investigation into Sweeney’s insurance
production.
On June 19, 2020, OIC issued an order to revoke Sweeney’s license. (Order No.
20-0554). The same day, Sweeney filed a demand for hearing with OIC’s Hearing Unit.
The Hearing Unit transferred the matter to the Office of Administrative Hearings (OAH).
B. The Administrative Process
Sweeney’s appeal was heard before an OAH’s ALJ, T.J. Martin, in March and April
2021. Sweeney was represented by counsel and was able to testify on her own behalf.
She also introduced one witness to testify for her, Dong Ma, a colleague from UH. OIC
offered five witnesses to testify to revoking Sweeney’s license: DuCharme; Sarah
Gelemeev, a UH investigator; Kathleen Nevells, UH’s director of sales operations; Tyler
Robbins, an OIC regulatory investigator; and Judith Bendersky, an OIC health insurance
adviser.
Furthermore, eleven of Sweeney’s twelve proposed exhibits were admitted, and
OIC’s 24 exhibits were admitted with two withdrawn. Sweeney’s only proposed exhibit
that was deemed inadmissible was her polygraph examination.
On June 14, 2021, the ALJ affirmed the OIC’s initial order revoking Sweeney’s
license. (Docket No. 06-2020-INS-0084). The matter was referred to OIC for review. In
December 2021, OIC’s chief reviewing officer affirmed the initial order from the ALJ. The
chief reviewing officer further adopted the ALJ’s findings of fact and conclusions of law,
5 No. 84092-4-I/6
with a few additions, in a final order. Sweeney appeals the OIC’s chief reviewing officer’s
final order.
II. ANALYSIS
Because Sweeney appealed a final order of an administrative proceeding, under
the Administrative Procedure Act (APA), judicial review is of the final decision by the
agency and the administrative record before this panel. Ch. 34.05 RCW. We review the
final order issued on January 8, 2022, which adopted the ALJ’s findings of fact and
conclusions of law, with some additions, issued June 14, 2021. RCW 34.05.464(4).
The APA allows a reviewing court to reverse an administrative decision when, (1)
the administrative decision is based on an error of law; (2) the decision is not based on
substantial evidence; or (3) the decision is arbitrary or capricious. RCW 34.05.570(3);
Tapper v. State Emp’t Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993), superseded
by statute on other grounds. “In reviewing administrative action, this court sits in the same
position as the superior court,” applying the standards of the APA directly to the record
before the agency. Id.
The party asserting the invalidity of agency action has the burden of demonstrating
the invalidity of the action. Shaw v. State, Dep’t of Ret. Sys., 193 Wn. App. 122, 128, 371
P.3d 106 (2016) (citing RCW 34.05.570(1).
“We review for substantial evidence in light of the whole record.” Campbell v. State
Emp’t Sec. Dep’t, 180 Wn.2d 566, 571, 326 P.3d 713 (2014) (citing RCW
34.05.570(3)(e)). “Substantial evidence” is evidence of a “sufficient quantity . . . to
persuade a fair-minded person of the truth and correctness” of the agency action. Id.
(quoting Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568, 588, 90 P.3d 659
6 No. 84092-4-I/7
(2004) (internal quotation marks omitted)). Unchallenged findings are verities on appeal.
Tapper, 122 Wn.2d at 407.
A. Standard of Proof
We conclude that the reviewing officer did not err in applying the preponderance
of the evidence standard and did not thereby violate due process, as Sweeney alleges.
1. Law
“Whether an agency order, or the statute supporting the order, violates
constitutional provisions is a question of law and ‘[w]e review issues of law de novo.’”
Hardee v. Wash. State Dep’t of Soc. & Health Servs., 172 Wn.2d 1, 7, 256 P.3d 339
(2011) (quoting Thurston County v. W. Wash. Growth Mgmt. Hr'gs Bd., 164 Wn.2d 329,
341, 190 P.3d 38 (2008)).
“A professional license is a property interest for which revocation requires due
process.” Hardee, 172 Wn.2d at 8-9. The fundamental requirement of due process is
the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews
v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong
v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)), abrogated on other
grounds. Accordingly, the United States Supreme Court has “consistently [] held that
some form of hearing is required before an individual is finally deprived of a property
interest.” Mathews, 424 U.S. at 333.
Washington state courts apply the three-part test from Mathews to determine
whether the legislative standards for an adjudicative proceeding satisfy constitutional due
process requirements. Hardee, 172 Wn.2d at 10. Namely Mathews requires this court
to examine: (1) the private interest that will be affected by the official action; (2) “the risk
7 No. 84092-4-I/8
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and (3) the
government’s interest, including the function and fiscal and administrative burdens of
additional procedural requirements. Mathews, 424 U.S. at 335; Hardee, 172 Wn.2d at
10.
Our Supreme Court has held that certain licenses, such as that of a physician,
require clear and convincing evidence before revocation. Hardee, 172 Wn.2d at 8-9
(citing Bang D. Nguyen v. Dep’t of Health Med. Quality Assurance Comm’n, 144 Wn.2d
516, 518, 29 P.3d 689 (2001)). However, it has also held that not all occupations require
the same “personal investment” and not all state-granted credentials constitute a
“professional” license. Id. at 9. And the appellate courts, thus, rightly have applied a
preponderance of the evidence standard to many types of occupational licensing
revocations, such as real estate agents, adult-home caregivers, among others. Id.
Neither party assigned error to the findings of fact by the ALJ as to the nature and
functions of an insurance producer and, therefore, those findings are verities on appeal,
which we do not disturb and refer to below. Tapper, 122 Wn.2d at 407.
2. Discussion
i. Private interest
The first of Mathews’s three-part test addresses the nature of Sweeney’s private
interest in her license. To determine the value of a private interest in one’s license, a
court must look to objective measures of investment (e.g., time, money, education, etc.)
rather than engaging in “the hopeless task of weighing the subjective value each
8 No. 84092-4-I/9
individual places on his or her chosen occupation.” Hardee, 172 Wn.2d at 15.
In Hardee, our Supreme Court upheld the revocation of a home childcare license
under a preponderance of the evidence standard. Id. at 10. In contrasting the level of
investment of a home childcare licensee to that of a physician, the Court reasoned that
“[b]ecoming a licensed physician requires a four-year undergraduate degree, a four-year
postgraduate degree, and additional years of residency training. Physicians must pass
multiple tests and examinations before licensure and maintain continuing educational
requirements thereafter.” Id. at 13. Further, in assessing the impact of the loss of a
license, the court stated that a “physician’s license is not limited to a particular location. .
. . The physician holds the medical license—not the facility in which the physician
administers care. . . . Upon revocation of the license, a physician can no longer engage
in the practice of medicine.” Hardee, 172 Wn.2d at 13.
Ultimately, the Court held that “a license for a home child care facility is not a
personal interest that compels a standard of proof beyond a preponderance of the
evidence” because, in pertinent part, a “provider can obtain a license for a home by
completing a mere 20 hours of state approved training” and “an individual who wishes to
care for children but who lacks the requisite qualifications to obtain a license can still
potentially work in the field as a child care staff member.” Id. at 10-11.
Similarly, here, obtaining a license to produce insurance requires (1) being at least
18 years old, (2) 20 hours of coursework, (3) passing an exam, and (4) payment of
application and appointment fees. RCW 48.17.090(2)(a)-(e); RCW 48.14.010; WAC 284-
17-510. While we acknowledge that obtaining a resident insurance producer license is
an undertaking in its own right and may provide a valuable service to a community, the
9 No. 84092-4-I/10
commitment required to do so is objectively different than the investment in a license,
e.g., to practice medicine, when looking at the time, course requirements, and cost.
Indeed, there is no evidence in this record about what kind of time commitment is
necessary to pass the requisite exam. Furthermore, as in Hardee, by the revocation,
Sweeney was not barred from the insurance industry as a whole because there are other
jobs within the insurance agency she can still do without this specific license. RCW
48.17.062(2)(a).
Thus, on all “objective” measures, such a license is not a personal interest that
compels a standard of proof beyond a preponderance of the evidence.
Sweeney acknowledges the distinction between, as she describes it, “merely an
occupational license rather than a professional license,” as laid out in Hardee. Sweeney,
however, asks us to look beyond these objective measures and assess the effect on her
“livelihood and professional reputation” and the “stigma” the revocation created, citing
Nguyen, 144 Wn.2d at 527. Further, she avers that “to the extent the proceeding is
considered quasi criminal as to professional licensure, the lowest standard of proof should
not be applied.”
Indeed, our Supreme Court in Nguyen reiterated that a “loss of a professional
license is more than a monetary loss; it is a loss of a person’s livelihood and loss of a
reputation.” Nguyen, 144 Wn.2d at 527 (quoting Johnson v. Bd. of Governors, 1996 OK
41, 1346, 913 P.2d 1339 (1996)). However, the predicate fact is that it is the loss of
professional license, which per the objective measures above, a license to become an
insurance producer is not, again, in part because the revocation does not “destroy[] his
10 No. 84092-4-I/11
or her ability to practice” in that field. Id.
Furthermore, it is true that “a higher level of certainty [is] ‘necessary to preserve
fundamental fairness in a variety of government-initiated proceedings that threaten the
individual involved with a significant deprivation of liberty or stigma.’” Id. at 528 (quoting
Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct. 1388, 1396, 71 L. Ed. 2d 599 (1982)).
However, there is no evidence in this record that there is a “significant” or even possible
deprivation of liberty or any significant stigma attached to this revocation, other than
Sweeney’s bare assertions in her briefing.
Finally, the proceedings before the OIC were nothing like the medical disciplinary
proceedings described in Nguyen which were “indeed quasicriminal,” “unique,” “not
strictly adversarial,” and “unavoidably punitive.” Id. Here, Sweeney was represented by
counsel, had full use of discovery procedures, could and bring witnesses, etc., as will be
described more fully below.
Therefore, although Sweeney does hold a private interest in her occupational
license, her objective investment in this particular licensure is not comparable to that of a
physician as in Nguyen, so it does not warrant the higher burden of proof for its revocation.
ii. Risk of erroneous result
As to the second Mathews factor, OIC’s investigative and adjudicative process has
several steps that are likely to reduce the risk of an erroneous deprivation. First, OIC’s
Regulatory Investigations Unit investigates alleged wrongdoing. Second, if the OIC
decides to suspend, revoke or refuse to renew a license, it must issue a written order with
strict notice and timing requirements. RCW 48.17.540(2)-(3). Further, the license holder
has the right to challenge such a decision in a hearing before the hearing unit and an ALJ,
11 No. 84092-4-I/12
which may include written advocacy, oral argument, and the presentation of witnesses.
Id.; RCW 48.04.010(2), (5); RCW 34.05.446(3); RCW 34.05.449(2). Throughout the
process, the license holder may be represented by legal counsel. WAC 10-08-083.
Furthermore, much like a civil legal proceeding, each party may serve
interrogatories; request and depose witnesses; issue subpoenas; and cross-examine
witnesses. Former WAC 284-02-070(e)(2021) 6; RCW 34.05.446; RCW 34.05.449; WAC
10-08-120.
Should the ALJ uphold the original order, the reviewing officer then reviews the
ALJ’s decision, may take written argument from the parties, including objection to any of
the findings from the ALJ, and issues a final written order. WAC 284-02-070(2)(d)(i);
RCW 34.05.464. After that, if the license holder is dissatisfied, they may petition for
reconsideration or seek judicial review. RCW 34.05.470; RCW 34.05.510-98.
Believing there is a conflict or “gap” in our Supreme Court’s precedents, Sweeney
asks this court, first, not to follow Hardee’s holding, 172 Wn.2d at 11, that processes such
as those described above minimize the risk of an erroneous revocation, unless the
revokee can show that such processes “suffer from inadequacies that make erroneous
deprivations readily foreseeable.” Sweeney argues that a “standard higher than a
preponderance of the evidence should always apply in administrative hearing matters
where private interests are implicated, such as in Ms. Sweeney’s case.” (emphasis
added) (citing Nguyen, 144 Wn.2d at 527).
As a preliminary matter, for the reasons provided above, Sweeney does not have
6 At the time of this hearing, parties did not need the ALJ to grant permission to engage
in discovery. See Wash. St. Reg. (WSR) 21-23-079 at 1, 3-4 (December 21, 2021) (Permanent Rules). 12 No. 84092-4-I/13
the same private interest that Dr. Nguyen had. More importantly, there is no conflict
between Hardee and Nguyen because they described different processes; one, in
Hardee, which was as adversarial as the one here, and one in Nguyen was not. We,
thus, should not and need not decline to apply our Supreme Court’s precedent in Hardee,
which held that processes such as the one used here adequately minimized the risk of
erroneous deprivation.
Sweeney further contends that the risk of erroneous deprivation was further
aggravated because the OIC applied an “almost entirely subjective standard of conduct.”
There is nothing subjective, however, in requiring a client’s consent to make changes to
their healthcare insurance. That is binary and entirely distinguishable from the standards
of conduct considered in Nguyen.
Finally, to the extent that Sweeney may suggest additional procedural safeguards
would have helped, “that fact alone does not justify their adoption” because “additional
procedural safeguards will always decrease the likelihood of revocation. Hardee, 172
Wn.2d at 11. Sweeney must point to something more which “make[s] erroneous
deprivations readily foreseeable.” Hardee, 172 Wn.2d at 11. She does no such thing.
In short, Sweeney does not argue that these procedures themselves were so
structurally flawed that they risked a result that was error. Rather, she disagreed with a
standard of proof that was part of an extensive process that found against her. We
conclude that OIC’s process weighs in favor of applying the preponderance standard.
iii. Governmental interest
As to the third and final Mathews factor, the State has a significant interest in
protecting elderly and low-income health care consumers from insurance fraud. For this
13 No. 84092-4-I/14
reason, the legislature sets a high standard of conduct to obtain and retain an insurance
producer license, requiring trustworthy behavior and acting in good faith in all insurance
matters. RCW 48.01.030. Our Supreme Court has explained that “[s]tatutory aims and
objectives serve as strong independent evidence of a public good’s value.” Hardee, 172
Wn.2d at 12.
Here, Sweeney’s clients, dual eligible Medicare beneficiaries, were elderly or
disabled individuals with limited financial resources. Furthermore, they were often
members of Chinese immigrant communities, who were limited English-language
proficient and some of whom (as Sweeney asserted) may have been skeptical of the
government. These clients relied upon Sweeney to help them navigate complex
bureaucratic systems and also everyday tasks such as scheduling appointments.
Sweeney exercised a position of significant trust, sometimes as the only contact available
to help each client access and understand their health care.
As with Hardee, it is vital to ensure that the OIC can effectively investigate and
regulate insurance providers to fulfil its obligation to insurance consumers. Whether or
not a more stringent review is warranted, Sweeney did not demonstrate that the current
process was deficient such that it outweighed the government’s significant interest in
ensuring that vulnerable seniors were provided insurance with good faith.
In applying all of the above factors from Mathews, the we conclude that the
reviewing officer did not err in applying the preponderance of the evidence standard.
B. Hearsay and Substantial Evidence
14 No. 84092-4-I/15
We conclude that the reviewing officer did not err in relying partially on hearsay
evidence and, in doing so, did not err in finding there was substantial evidence sufficient
to revoke Sweeney’s license.
In an administrative hearing, “[f]indings of fact shall be based exclusively on the
evidence of the record in the adjudicative proceeding . . . [and] [f]indings shall be based
on the kind of evidence on which reasonably prudent persons are accustomed to rely in
the conduct of their affairs.” RCW 34.05.461(4). “However, the presiding officer shall not
base a finding exclusively on evidence” that would be inadmissible in a civil trial “unless
the presiding officer determines that doing so would not unduly abridge the parties’
opportunities to confront witnesses and rebut evidence.” Id. (emphasis added).
Moreover, hearsay evidence may be admissible under certain circumstances in
administrative proceedings. RCW 34.05.452(1). Namely, the APA permits the admission
of “hearsay evidence . . . if in the judgment of the presiding officer it is the kind of evidence
on which reasonably prudent persons are accustomed to rely in the conduct of their
affairs.” Id. Again, the ALJ cannot rely upon it exclusively. RCW 34.05.461(4). But, if
the ALJ does exclusively rely on hearsay, the order must include the basis for determining
that the parties were not prevented from confronting witnesses or rebutting evidence. Id.
Substantial evidence requires court to look at evidence “in the light most favorable
to the party who prevailed in the highest forum that exercised fact-finding authority.”
Freeburg v. City of Seattle, 71 Wn. App. 367, 371-72, 859 P.2d 610 (1993) (quoting State
ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 619, 829 P.2d
15 No. 84092-4-I/16
217 (1992), superseded by statute on other grounds).
We conclude that the reviewing officer did not err because (1) the ALJ did not rely
solely upon hearsay and, thus, did not need to reach whether Sweeney’s ability to
confront witnesses against her was unduly abridged; (2) ample evidence indeed
supported the ALJ’s findings.
i. Hearsay
Sweeney contends that the declarations against her were hearsay which would be
inadmissible in ordinary civil proceedings. That is true, but the question here is whether
it is the “kind of evidence on which reasonably prudent persons are accustomed to rely in
the conduct of their affairs.” RCW 34.05.452(1). Sweeney offers no argument or authority
that reasonable persons do not rely on declarations in their ordinary affairs. Where a
party fails to provide citation to support a legal argument, we assume counsel, like the
court, has found none. State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020)
(citing State v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017)). It is simply not
true that the presence of hearsay dooms the validity of such a process.
Sweeney next argues that she was unable to confront any declarants who did not
appear for the hearing and, thus, her opportunity to do so was “unduly abridged,” making
implicit reference to RCW 34.05.461(4). In her reply, Sweeney further argues that it was
not her burden to produce witnesses, that none of the consumers she enrolled testified,
and neither did the primary investigator who spoke to them.
The plain language of the statute requires the presiding officer to determine
Sweeney’s opportunities to confront witnesses and rebut evidence were not unduly
16 No. 84092-4-I/17
abridged only if the officer is relying exclusively on inadmissible evidence. RCW
34.05.461. Here, the findings of fact the ALJ noted, were based not just on, e.g.,
Robbins’s testimony or the declarations, but also multiple exhibits offered by OIC. While
these exhibits included a declaration from Bariekman and from consumers who stated
they did not consent to re-enrollment, there was abundant additional evidence and
testimony offered, including live witnesses, uncontested data, and more. In short, the
presiding officer, here the ALJ, did not need to make the determinations regarding
Sweeney’s opportunity to confront witnesses because the ALJ’s finding was not based
solely on hearsay.
ii. Substantial evidence
More broadly, Sweeney claims that “[s]ubstantial evidence does not support the
final order.” We disagree. The record amply supports the findings the reviewing officer
adopted.
First, the findings of fact regarding Sweeney’s license history, process for signing
clients up for UH Dual Complete, and her subsequent disenrollment and re-enrollment of
clients were based almost entirely on Sweeney’s own testimony.
Next, the findings of fact credited DuCharme, who gave extensive testimony about
how the LEAN program (which housed UH’s enrollments) worked, and about Sweeney’s
enrollments from 2019. DuCharme explained that it was not technologically possible for
Sweeney to collect the signatures for disenrollment and reenrollment as far in advance of
the March 2019 mass-enrollment as she claimed she could, because the LEAN program
would not allow it. Additionally, he noted that in all cases, Sweeney selected the option
to send all confirmations of enrollments to herself instead of to the consumers, which was
17 No. 84092-4-I/18
unusual.
Additionally, OIC and UH’s own administrators and investigators, Nevells and
Gelemeev, respectively, testified as to the steps they took to assess Sweeney’s actions.
The OIC reviewed these steps and the declarations they generated from clients who
attested they never met with Sweeney or consented to dis-enrollment or re-enrollment.
Finally, the OIC was presented with documentary evidence of Sweeney’s 133 re-
enrollments, which included the names of consumers, contact information (listed as
Sweeney’s), and the time stamp for when she enrolled them in a 15-hour period.
Sweeney had the opportunity to bring evidence and witnesses to rebut this
testimony. She brought only a colleague without personal knowledge of the events to
testify to her character in general. Sweeney called none of the 129 living consumers she
re-enrolled.
Ultimately, ALJ Martin, and later the reviewing officer who adopted his findings,
found the OIC and UH’s witnesses more credible than Sweeney.
Therefore, we conclude reviewing officer did not rely entirely on inadmissible
evidence, nullifying the need to show no undue abridgement of Sweeney’s opportunities
to confront evidence against her, and the final decision was supported by substantial
evidence.
C. Arbitrary and Capricious Sanction
Sweeney argues that the reviewing officer erred by revoking her license because
such a harsh sanction was arbitrary and capricious.
An “arbitrary and capricious” agency action, for purposes of RCW 34.05.570(3)(i),
is a “willful and unreasoning action, taken without regard to or consideration of the facts
18 No. 84092-4-I/19
and circumstances surrounding the action. Where there is room for two opinions, an
action taken after due consideration is not arbitrary and capricious even though a
reviewing court may believe it to be erroneous.” City of Redmond v. Cent. Puget Sound
Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46-47, 959 P.2d 1091 (1998).
“The ‘harshness’ of an agency’s sanction is not the test for arbitrary and capricious
action.” Cummings v. Wash. State Dep’t of Licensing, 189 Wn. App. 1, 26, 355 P.3d 1155
(2015). “Agencies ‘need not fashion identical remedies’, and the courts may ‘not enter
the allowable area of [agency] discretion.’” Brown v. State Dep’t of Health, Dental
Disciplinary Bd., 94 Wn. App. 7, 17, 972 P.2d 101 (1998) (quoting Shanlian v. Faulk, 68
Wn. App. 320, 328, 843 P.2d 535 (1992) (alteration in original)). In short, neither the
harshness, nor the similarity of a sanction to that issued in another case, are grounds to
find a penalty arbitrary and capricious.
Moreover, “An agency’s determination of sanctions should be accorded
considerable judicial deference as it is peculiarly a matter of administrative competence.”
Cummings, 189 Wn. App. at 26 (quoting Brown, 94 Wn. App. at 16). “‘[T]he scope of
review of an order alleged to be arbitrary or capricious is narrow, and the challenger
carries a heavy burden.’” Brown, 94 Wn. App. at 16 (quoting Keene v. Bd. of
Accountancy, 77 Wn. App. 849, 859, 894 P.2d 582 (1995)).
Sweeney did not offer evidence to show the agency intentionally acted willfully or
in the absence of the abundant facts reviewed above in revoking her license. Instead,
she focused on the harshness and alleged inconsistency in the penalty. It is irrelevant
whether, in other cases regarding insurance fraud provided by the petitioner, other
appellants faced different penalties because the OIC is not bound by how it has
19 No. 84092-4-I/20
sanctioned other licensees. Cummings, 189 Wn. App. at 26. Therefore, in granting the
deference due, we conclude the revocation was neither arbitrary nor capricious.
D. Polygraph examination
In administrative hearings, “The presiding officer shall exclude evidence that is
excludable on constitutional or statutory grounds or on the basis of evidentiary privilege
recognized in the courts of this state. The presiding officer may exclude evidence that is
irrelevant, immaterial, or unduly repetitious.” RCW 34.05.452(1).
Sweeney sought to have her two-question polygraph admitted, which consisted
entirely of the following:
1) Were you untruthful when you answered Jamie Bariekmans [sic.] questions?
Ms. Sweeney answered “no”.
2) Were you untruthful about your insurance work with your attorney Jessica Creager?
Washington courts have held that, because polygraph reports are not recognized
as reliable evidence, they are not admissible absent stipulation from both parties in
attorney discipline matters. In re Disciplinary Proc. Against Kronenberg, 155 Wn.2d 184,
194, 117 P.3d 1134 (2005). There was no such stipulation here and, thus, her polygraph
was not admissible.
Even if, as Sweeney concedes in her reply, the presiding officer had the discretion
to admit or exclude the polygraph, ALJ Martin made no error in excluding it as duplicative
of Sweeney’s testimony under ER 403. Sweeney had already testified about her
20 No. 84092-4-I/21
recollection of the events in terms not dissimilar to examination.
Therefore, we conclude the hearing examiner did not err in excluding it.
III. CONCLUSION
We affirm the final order.
WE CONCUR: