Does the head of the DC Department of Health, or a deputy who runs a public-health program, need a DC medical license to do their job?

Plain-English summary

The DC Department of Health asked whether the Director, certain Deputy Directors, and other senior officials administering DOH programs needed DC medical licenses. The Corporation Counsel answered with a functional test: licensure depends on the actual work, not the title.

The DC Health Occupations Revision Act of 1985 defines "practice of medicine" as the application of scientific principles to "prevent, diagnose, and treat physical and mental diseases, disorders, and conditions" and to safeguard the life and health of women and infants through pregnancy. The statute also provides that no person may "practice, attempt to practice, or offer to practice a health occupation" without a current DC license, with narrow exemptions for federal employees, emergencies, and consulting physicians.

Two DC Court of Appeals cases drew the operative line. In Joseph v. DC Board of Medicine, 587 A.2d 1085 (D.C. 1991), the Board of Medicine disciplined a physician for misconduct as an expert witness, and the court held the misconduct occurred in the practice of medicine because the doctor had analyzed medical records to determine cause of death. Pure record review counted as "diagnosis." In Morris v. DC Board of Medicine, 701 A.2d 364 (D.C. 1997), the Board denied a license to a Blue Cross medical director on the theory that his administrative work over coverage decisions amounted to "treatment." The court reversed: just affecting or influencing patient care does not equal treatment, and an administrator without a doctor's voice in clinical recommendations is not practicing medicine even if the work shapes patient outcomes.

Stitching the two cases together, the Corporation Counsel concluded:

• DOH employees giving direct patient care need a license.
• DOH employees who, as physicians, vote or weigh in on prevention, diagnosis, or treatment of specific patients (including post-treatment review or cause-of-death determinations) need a license.
• DOH executives and administrators whose duties are policy, procedure, and program direction, without that doctor-voice in individual patient decisions, do not need a license.

The takeaway from Morris: focus on the actions of the individual administrator, not the job title or M.D. credential.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Health Occupations Revision Act has been amended (notably the 2007 omnibus amendments expanding scope of practice for various professions) and DOH has been restructured several times.

Historical context

The question landed in the Corporation Counsel's office during a period when DC was tightening up its public-health administrative structure. Some senior DOH positions had historically been held by physicians, but reorganizations were creating new administrative posts that did not require clinical judgment. The Personnel office wanted to know whether to require licensure as a job qualification or treat it as discretionary.

The functional test the Corporation Counsel adopted gave the Personnel office a workable framework. Job descriptions defined what the position actually did, and the actually-does test settled licensure. Pure policy and program-management roles could be filled by non-clinical professionals (public health professionals with MPHs, lawyers, fiscal managers); roles that required a doctor-voice in patient decisions required licensed physicians.

What this meant at the time for DOH and Personnel

A position description focused on policy and program direction, without clinical decision authority, did not have to require a DC medical license. Position descriptions including review of clinical care of specific patients did. The Director's role itself was not automatically clinical; it depended on whether the Director was actually involved in patient-specific clinical determinations.

What this meant for individual physician-administrators

A licensed physician could move into administrative work without losing licensure issues, but had to avoid signing off on specific-patient clinical determinations under the M.D. credential without an active DC license.

What this meant for non-physician public health administrators

Public-health roles requiring administrative skill but not clinical decision-making were open to qualified non-physicians.

What this meant beyond DOH

The same functional test applies to similar roles at hospitals, insurers, government health programs, and HMOs operating in DC. Morris itself involved Blue Cross, not a government employer.

Common questions

Q: Does using "M.D." in a title trigger licensure?
A: Not by itself. Morris held that using "M.D." in correspondence does not violate D.C. Code § 2-3310.3(g) unless the use conveys to the audience that the user is licensed to practice in DC or is actually practicing in DC. The risk is higher when the audience is the general public; lower when the audience is sophisticated (e.g., other state medical boards).

Q: Does prevention activity require a license?
A: Only when it amounts to applying scientific principles to prevent disease in individual patients. Public-health prevention programs (campaigns, education, regulatory standards) do not.

Q: What about a DOH employee who reviews medical records of deceased patients to determine cause of death?
A: That's the Joseph fact pattern. Diagnostic analysis of records, including determining cause of death, falls within "practice of medicine" and requires a license.

Q: What about a DOH employee who sets the hospital licensing standards?
A: Setting standards is policy work, not patient diagnosis or treatment. No license required.

Citations

Statutes
- DC Health Occupations Revision Act of 1985, D.C. Law 6-99
- D.C. Code § 2-3301.2(7) (definition of "practice of medicine")
- D.C. Code § 2-3305.2 (exemptions)
- D.C. Code § 2-3310.1 (licensure requirement)
- D.C. Code § 2-3310.3(g) (use of M.D. title)

Cases
- Joseph v. DC Bd. of Medicine, 587 A.2d 1085 (D.C. 1991) (record review and cause-of-death analysis as "diagnosis")
- Morris v. DC Bd. of Medicine, 701 A.2d 364 (D.C. 1997) (insurance medical director without doctor-voice in clinical recommendations not practicing medicine)

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-License-to-Practice.pdf

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-License-to-Practice.pdf

License

This opinion is published by the Office of the Attorney General for the
District of Columbia. Per the DC.gov terms of use, content is licensed
under Creative Commons Attribution 3.0,
which permits commercial use, redistribution, and modification with
attribution.

Original opinion text

t· .,
<&outnlmtnt of tltt IIhrtrid of <!tolumbia
OFFICE OF THE CORPORATION COUNSEL
JUDICIARY SQUARE
441 FOURTH ST .. N.W.
WASHINGTON. D. C.

20001

IN REPLY REFER TO:

LCD:LED/ABE
(AL-98-155)

11 JUN 1999
OPINION OF THE CORPORATION COUNSEL
(CORRECTED)
SUBJECT:

Are the Director, certain Deputies, and other executives administering
Department of Health programs required to hold a license to practice
medicine in the District of Columbia?

Marlene N. Kelley, M.D.
Interim Director
Department of Health
825 North Capitol Street, N.E.
Washington, D.C. 20002
Judy D. Banks
Interim Director
D.C. Office of Personnel
441 4th Street, N.W.
Washington, D.C. 20001
Dear Dr. Kelley and Ms. Banks:
This responds to the request of Dr. Allan S. Noonan, Dr. Kelley's predecessor, for
a formal opinion addressing the above-noted question insofar as it concerns Deputies and
other executives who administer Department of Health ("DOH") programs. I understand,
based upon conversations my staff has had with Thomas Brown, DOH General Counsel,
that this issue remains relevant, and that DOH continues to desire a formal opinion of the
Corporation Counsel on this topic. This also responds to the June 4, 1999 request from
Ms. Banks regarding medical licensing requirements for the Director of DOH.
Conclusions

DOH officers and employees who are engaged in prevention, diagnosis, or
treatment of the medical conditions of individual people - whether in the context of direct
or indirect patient care - are engaged in the practice of medicine and, therefore, are
required by District law to hold a valid D.C. medical license. The focus must be on the
actions ofthe individual administrator, not his or her job title or identification as M.D.

..

,

.
DOH officers and employees who provide direct patient care are clearly engaged in the
practice of medicine as defined by District law and must have a District medical license.
In addition, DOH officials are required to have a D.C. medical license if in the exercise
of their official duties they have a voice in making judgments concerning the prevention,
diagnosis, or treatment of medical conditions of individual patients (including patients
who have already been treated or who are deceased). This would include an official who
reviews the propriety of medical treatment provided to, or diagnosis made of, a patient by
another health care provider, or who is responsible for diagnosing the cause of death in a
deceased individual. However, DOH officials whose duties solely involve the
development or interpretation of policy, the establishment of procedures, or the direction
of programs, without direct or indirect patient care, are not engaged in the practice of
medicine and, therefore, are not required to obtain a D.C. medical license.
Analysis

The practice of medicine is defined in the District of Columbia Health
Occupations Revision Act of 1985, effective March 25, 1986 ("Health Occupations
Act"), D.C. Law 6-99, D.C. Code § 2-3301.2(7) (1994), as follows:
"Practice of medicine" means the application of scientific principles to prevent,
diagnose, and treat physical and mental diseases, disorders, and conditions and to
safeguard the life and health of any woman and infant through pregnancy and
parturition.
The Health Occupations Act provides, at D.C. Code § 2-331O.1,that "[n]o person shall
practice, attempt to practice, or offer to practice a health occupation licensed or regulated
by the District unless currently licensed, or exempted from licensing, under this act."
None of the exemptions from the licensure requirements of the Health Occupations Act
are applicable to practitioners employed by the District at a location within the city.l

I Exemptions from District licensing requirements are found in section 502 of the Health
Occupations Act, D.C. Code § 2-3305.2:

The provisions of this act prohibiting the practice of a health
occupation without a license shall not apply:
(1) To an individual who administers treatment or provides
advice in any case of emergency;
(2) To an individual employed in the District by the federal
government, while he or she is acting in the official discharge of the duties
of employment;
(3) To an individual, licensed to practice a health
occupation in a state, who is called from the state in professional
consultation by or on behalf of a specific patient to visit, examine, treat, or
advise the specific patient in the District, or to give a demonstration or
clinic in the District, provided that the individual engages in the
(Continued on next page)
2

..

.

.
Thus, if a District employee or official is engaged in the practice of medicine as defined
in the Health Occupations Act, he or she must hold a current and valid license to practice
issued by the Board of Medicine of the District of Columbia. The meaning of the phrase
practice of medicine is not further defined in the applicable regulations implementing the
Health Occupations Act, but the phrase has been construed in at least two decisions of the
District of Columbia Court of Appeals.
In Joseph v. District of Columbia Bd. of Medicine, 587 A.2d 1085 (D.C. 1991), a
physician challenged a final decision of the Board of Medicine imposing a reprimand and
civil fine as discipline for misconduct in connection with the Doctor's testimony as an
expert witness in a medical malpractice trial, on the ground that the Board erred in
finding that his misconduct occurred in the practice of medicine as defined by the Health
Occupations Act. Specifically, Dr. Joseph had misrepresented his credentials under oath
in a wrongful death action arising out of a child's death during surgery. Because his
involvement was limited to the review and analysis of the deceased child's medical
records, Dr. Joseph argued that his misconduct did not occur in the practice of medicine
as defined by District law. Dr. Joseph took the position that the statute's use of the words
"prevent, diagnose, and treat" served to define the practice of medicine solely in terms of
patient care. The Board of Medicine, however, construed the definition of practice as
going beyond just patient care, and found that Dr. Joseph had engaged in "diagnosis"
when he analyzed the decedent's medical records to determine the nature and cause of
her condition and the reasons for her subsequent death.

(Continued)
consultation, demonstration, or clinic in affiliation with a comparable
health professional licensed pursuant to this act;
(4) To a health professional who is authorized to practice a
health occupation in any state adjoining the District who treats patients in
the District if:
(A) The health professional does not have an office
or other regularly appointed place in the District to meet patients;
(B) The health professional registers with the
appropriate board and pays the registration fee prescribed by the
board prior to practicing in the District; and
(C) The state in which the individual is licensed
allows individuals licensed by the District in that particular health
profession to practice in that state under the conditions set forth in
this subsection.
(D) Notwithstanding the provisions of
subparagraphs (A), (B), and (C) of this paragraph, a health
professional practicing in the District pursuant to this paragraph
shall not see patients or clients in the office or other place of
practice of a District licensee, or otherwise circumvent the
provisions of this act.

3

The Court began its analysis in Joseph by explaining the applicable standard of
reVIew:
The members of the Board of Medicine are presumed to have substantially
greater familiarity than do judges with the meaning of terms like "the
practice of medicine." The determination to be made is one that demands
the type of agency expertise and informed discretion towards which we
generally show great deference. Accordingly, we must give the Board's
decision substantial weight. The Board's interpretation of the statute is
binding on us unless it is plainly erroneous or conflicts with the language
or purpose of the statute. In order to sustain the Board's decision, we
"need not conclude that the agency's construction was the only one it
permissibly could have adopted ... or even the reading the court would
have reached if the question initially had arisen in a judicial proceeding."
If the Board's interpretation can reasonably be reconciled with the statute,
our task is at an end.
587 A.2d at 1088 (citations omitted). The Court then reviewed the facts of the case and
determined that "[t]he Board reasonably concluded that Dr. Joseph's misstatements [in
the course of his work as an expert witness] were made in the practice of medicine." 587
A.2d at 1091. The Court relied upon Webster's Third New International Dictionary
(1969) ("Webster's"), which defines diagnosis as, among others things, "investigation or
analysis of the cause or nature of a condition, situation or problem ...." The Court
stated "we do not think it would be plainly wrong for the Board to conclude that [Dr.
Joseph] conducted an 'investigation' and 'analysis' of 'the nature of [the girl's]
condition,' and specifically her cause of death." 587 A.2d at 1089 (quoting Webster's).
Thus, although Dr. Joseph provided no patient care whatsoever (indeed, the patient was
already deceased when he took the case) the Court held that the Board did not err in
finding that Dr. Joseph's misconduct occurred within the practice of medicine as defined
in District of Columbia law.
In a still more recent case, however, the Court found that the Board of Medicine
had interpreted the language of the statute too broadly when it found that a medical
director for Blue Cross insurance had engaged in the practice of medicine without a
District license. In Morris v. District of Columbia Bd. of Medicine, 701 A.2d 364 (D.C.
1997), Dr. Gregory Morris was employed as Vice President and Medical Director for
Health Affairs, and later as Senior Vice President for Health Care Delivery for Blue
Cross. In both of his positions, Dr. Morris was responsible for building the network of
Blue Cross providers and for managing the process for post-treatment claim review and
appeal. Under the review and appeal process Dr. Morris sat as a staff person on the peer
review committee. However, he took no part in the deliberations of the committee and
had no vote in its recommendations. Dr. Morris applied for a license to practice medicine
in the District, and the Board of Medicine issued an order denying such a license because
of his perceived unlicensed practice. The Board of Medicine contended that Dr. Morris
was engaged in "treatment" because "the practical effect of [his] activities as medical
director of Blue Cross ... was to influence the course of treatment of individual patients

4

,

.
and, hence, to 'treat' them within the meaning of the [Health Occupations] Act." 701
A.2d 367. The Court disagreed:
This definition of "treatment" is so open-ended that it cannot reasonably
be squared with the statutory term. In normal medical usage, "treat"
means "to care for ... medically or surgically: deal with by medical or
surgical means." Webster's Third New International Dictionary 2435
(1971). Conduct that merely "affects," "influences," or "substantially
impacts" on the course of such care by others cannot itself be treatment
... Equating "treatment" with any conduct that "practically affect[s]" it, in
ways potentially involving no exercise of medical judgment, is contrary to
any sensible interpretation of the statute.
701 A.2d at 367. The Court was more sympathetic to the Board's contention that Dr.
Morris's work as medical director for an insurer required him to engage in "diagnosis,"
much as Dr. Joseph did in the earlier case. Indeed, Dr. Morris apparently conceded that if
he had a voice as a doctor (rather than as a mere administrator) in the recommendations
of the Blue Cross medical advisers and review committee responsible for analyzing
patient files and making recommendations concerning payment of claims and/or possible
inappropriate treatment, his participation would constitute the practice of medicine for
purposes of District law. The Court concluded, however, that because the record in the
case contained no substantial evidence that Dr. Morris had a voice as a doctor in those
recommendations, there was no evidence that he was engaged in the type of diagnosis
found in the Joseph case. 2
Despite its holding that Dr. Morris was not engaged in the practice of medicine as
Medical Director for Blue Cross, the Court in the Morris case cautioned that,
This does not mean, of course, that on other facts a medical administrator
of a health insurer such as Blue Cross which monitors and regularly
questions treatment decisions by physicians, may not be found to have
practiced medicine as defined in [District law]. The focus must be on the

2 I understand that, on remand from the Court of Appeals, the Board of Medicine had the

option of rehearing the case or evaluating Dr. Morris's application consistent with the
Court's finding that he did not practice medicine at Blue Cross. The Board chose to
reevaluate Dr. Morris's application, which - given the Court's decision and his testimony
- was the application of a physician who had not practiced medicine for over six years.
With this fact established, the Board instructed Dr. Morris to take an examination to
demonstrate current clinical competency, just as would be required of any other applicant
who had been so long absent from the practice of medicine. I also understand that, while
Dr. Morris initially appealed this determination of the Board to the Court of Appeals, he
ultimately obtained a voluntary dismissal of his appeal and withdrew his application for a
license.

5

"

actions of the individual administrator, not his job title or identification as
"M.D.")
701 A.2d at 368.
Taken together, the Joseph and Morris cases clearly stand for the proposition that
a person engaged in prevention, diagnosis, or treatment of a disease, disorder, or
condition as those terms are defined in Webster's, is engaged in the practice of medicine
for purposes of District law, and must hold a valid District of Columbia medical license.
The practice of medicine for purposes of District law is not limited to patient care. On
the other hand, the mere fact that a person's work affects, influences, or even
substantially impacts the treatment a patient will receive is not the practice of medicine
unless the person is also engaged in the exercise of medical judgment with respect to
individual patients amounting to prevention, diagnosis, or treatment within the dictionary
definition of those terms.
Sincerely,

Anne Robinson
nterim Corporation Counsel

) The Court also rejected the Board of Medicine's contention that Dr. Morris had
improperly used the title "M.D." in violation of D.C. Code § 2-3310.3(g), which makes
it unlawful for a person not licensed in the District to "use or imply the use of the words
... medical doctor [or] M.D .... or any similar title or description of services with the
intent to represent that the person practices medicine." The Court concluded that the
letters to which Dr. Morris had affixed the title "M.D.", taken as a whole and in context,
did not convey the impression that "the opinions therein stemmed ... from Dr. Morris's
own exercise of medical judgment ('application of scientific principles')." 701 A.2d at
369. The Court suggested, however, that even so, "Dr. Morris would have been better
advised ... to disclaim his licensure in the District or list the jurisdictions in which he
was licensed to practice medicine," and that "[t]he result might have been different had
the letters been directed to an unsophisticated portion of 'the public' instead of to [the
Maryland State Medical Board]." 701 A.2d at 369. The case suggests, accordingly, that
the use ofthe title M.D. by a physician not licensed in the District is prohibited if used in
such a way as to convey the impression that the user is licensed to practice - or is
practicing - medicine in the District, and that this impression is more likely to occur if
the title M.D. is used in a communication directed to the public at large rather than to a
sophisticated audience.

6

cc:

Thomas Brown
General Counsel
Department of Health
E. Jacqueline Edgett
Associate Director of Personnel

7