What becomes public after a board complaint

Confidential until something is issued

Virginia states the default in the strongest terms of the three codes read here. Any reports, information or records received and maintained by the Department of Health Professions or any health regulatory board in connection with possible disciplinary proceedings, including any material received or developed by a board during an investigation or proceeding, shall be strictly confidential.

The section then lists the only circumstances in which that confidential information may be disclosed, and they are narrow. They include use in a disciplinary proceeding or a subsequent trial or appeal, disclosure to regulatory authorities concerned with granting, limiting or denying licences, disclosure to hospital committees concerned with privileges where a final determination of a violation has been made, disclosure under a court order for good cause arising from extraordinary circumstances, and release to qualified personnel for bona fide research or educational purposes with personally identifiable information first deleted.

Virginia also removes the material from ordinary litigation. Confidential information received, maintained or developed by the department or a board, or disclosed under the section, shall not be available for discovery or court subpoena or introduced into evidence in any civil action.

Enforcement of that confidentiality is criminal. Any person found guilty of the unlawful disclosure of confidential information possessed by a health regulatory board is guilty of a Class 1 misdemeanour.

California builds a similar wall around its central files. The contents of any central file that are not public records under another provision of law are confidential, except that the licensee involved, or their counsel or representative, may inspect and copy their complete file apart from material that would disclose the identity of an information source.

What one state publishes, and to whom

Washington is the most explicit of the three about publication, and it names four recipients.

The disciplining authority shall report the issuance of statements of charges and final orders in cases it processes to the person or agency who brought to its attention the information that resulted in the case being opened; to appropriate organisations, public or private, which serve the professions; to the public; and to counterpart licensing boards in other states, or associations of state licensing boards.

The third of those is defined rather than left open. Notification of the public shall include press releases to appropriate local news media and the major news wire services.

That duty attaches at two points, not one. A statement of charges is reportable when issued, which is before any finding, and the final order is reportable when it issues.

The same section limits itself in a single sentence at the end: it shall not be construed to require the reporting of any information which is exempt from public disclosure under the state public records chapter.

Dismissal is published too

Washington treats a finding of no misconduct as a publishable outcome rather than a silence, which is unusual enough to be worth reading closely.

In the event of a finding of unprofessional conduct, the disciplining authority shall prepare and serve findings of fact and an order under the state administrative procedure act.

If the licence holder or applicant is found to have not committed unprofessional conduct, the disciplining authority shall forthwith prepare and serve findings of fact and an order of dismissal of the charges, including public exoneration of the licensee or applicant.

Both documents are permanent. The findings of fact and order shall be retained by the disciplining authority as a permanent record.

The asymmetry a reader should expect is therefore not between a discipline case and a dismissal, which both produce a served, retained, reportable order. It is between a matter that reached charges at all and one that did not.

Two settlements that look the same and are not

Washington contains two provisions for resolving a matter by agreement, and they sit in different sections with opposite consequences. Reading one and assuming the other is how a settlement gets described wrongly.

The first happens before charges. Prior to serving a statement of charges, the disciplining authority may furnish a statement of allegations along with a detailed summary of the evidence and a proposed stipulation for informal resolution, and those documents are exempt from public disclosure until the allegations are resolved either by stipulation or otherwise.

That stipulation must contain a statement that it is not to be construed as a finding of either unprofessional conduct or inability to practise, and the section states directly that a stipulation entered into under it shall not be considered formal disciplinary action. Certain sanctions are unavailable in it, no fine may be imposed, and the licensee may agree to reimburse the cost of investigating and processing the complaint up to an amount not exceeding one thousand dollars per allegation.

On execution by both sides, the complaint is deemed disposed of and becomes subject to public disclosure on the same basis and to the same extent as other records of the disciplining authority. Confidential while pending, disclosable once done, and still not formal discipline.

The second happens after charges, and is the mirror image. A licence holder may enter into a stipulated disposition of charges including one or more statutory sanctions, but only after a statement of charges has been issued and the licence holder has been afforded the opportunity for a hearing and has elected on the record to forgo it. That stipulation must contain specific findings of unprofessional conduct or inability to practise, or an acknowledgment that the evidence is sufficient to justify them, and the statute states that it shall be considered formal disciplinary action for all purposes.

What is kept out, and what is purged

Virginia has its own agreement that never becomes public, and a counter that ends the privilege.

A health regulatory board may request and accept a confidential consent agreement in lieu of disciplinary action. It is subject to the section's confidentiality provisions, shall not be disclosed by the practitioner or facility, includes findings of fact, and may include an admission or a finding of a violation, but it is not considered either a notice or an order of any board.

Its availability is bounded. A confidential consent agreement shall be entered into only in cases involving minor misconduct where there is little or no injury to a patient or the public and little likelihood of repetition, and a board shall not enter into one where there is probable cause to believe the practitioner or facility has demonstrated gross negligence or intentional misconduct in the care of patients, or has conducted a practice so as to be a danger to patients or the public.

The counter is the part worth knowing. A practitioner or facility that has entered into two confidential consent agreements involving a standard of care violation within the ten-year period immediately preceding the board's receipt of the most recent report or complaint shall receive public discipline for any subsequent violation within that ten-year period, unless the board finds sufficient facts and circumstances to rebut the presumption that the action be made public.

California takes a different route to the same result of an incomplete public record, through deletion rather than confidentiality. If a board, division, committee or panel has failed to act upon a complaint or report within five years, or has found that the complaint or report is without merit, the central file shall be purged of information relating to it. Virginia separately allows a board, in disability cases, to place a practitioner's health records or health services in a confidential exhibit, while requiring the public notice or order to identify, if known, the mental or physical disability that is the basis of its determination.

Sources

Each document below is named as it names itself, with the date printed on that document rather than the day it was read.

1. Revised Code of Washington 18.130.110, findings of fact and orders, public exoneration on dismissal, and reporting of statements of charges and final orders — Washington State Legislature, 2005
2. Revised Code of Washington 18.130.172, stipulations to informal disposition prior to a statement of charges — Washington State Legislature, 2008
3. Revised Code of Washington 18.130.160, sanctions following a finding, and the stipulated disposition entered after charges that counts as formal disciplinary action — Washington State Legislature, 2016
4. Code of Virginia section 54.1-2400.2, Confidentiality of information obtained during an investigation or disciplinary proceeding; penalty — Virginia Law, Virginia General Assembly, 2019
5. Code of Virginia section 54.1-2400, General powers and duties of health regulatory boards, including confidential consent agreements and the ten-year counter — Virginia Law, Virginia General Assembly, 2025
6. California Business and Professions Code section 800, central files, the five-year purge and confidentiality of non-public contents — California Legislative Information, California Legislature, January 2022