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Professional Licensing Board Disciplinary Proceedings: Myths and Realities

Introduction

A Board disciplinary proceeding and the prospect of losing the ability to practice your profession or earn an income is a distressing experience.This article is intended to familiarize you with the disciplinary process and to dispel misperceptions individuals often have when confronted with an investigation. While every Board has its own unique procedures and practices,the disciplinary process is relatively uniform among the Boards within the Division of Professional Licensure and the Department of Public Health Division of Health Professions Licensure.

Generally, the best chance of a complaint being dismissed is when the Board first considers the matter. It is always best to involve counsel at the beginning of an investigation.  Once a Board has determined that discipline is appropriate, it is notoriously difficult to persuade them otherwise.  A favorable resolution often comes down to what information is presented to the Board, and how.  You should never wait until it is clear that a Board is considering discipline against you before seeking legal assistance. At that point, it is often too late.

The Boards

Generally, the Boards are created by the legislature to oversee certain professions. They are considered consumer protection agencies.  Among other duties, they are given the authority to discipline anyone who violates the rules, regulations, ethics or standards of the profession over which they have jurisdiction. It is important to keep in mind that their role is not to protect you, but to protect consumers from you should you fail to maintain their standards.

Myth – I am no longer or was never licensed in this profession, so the board has no jurisdiction over me.

Reality – The Boards claim jurisdiction over anyone who has held a license or engages in conduct requiring a license issued by them. The Boards have the ability to seek criminal penalties for engaging in unlicensed practice, as well as the ability to assess civil administrative penalties.

The Process

And so it begins…

Generally, a Board opens an investigation when a consumer or competitor files a complaint against you. A Board can also initiate its own investigation, sometimes called a staff assignment, if they receive information they feel warrants it.

Myth: The complaint filed against me is merit less; therefore I have nothing to worry about.
Reality: The complaint only begins the investigation – the investigator, often a member of your profession, will dig much deeper.  This may include scrutiny of your compliance with CEU requirements, advertising restrictions,the adequacy of your record keeping or an inspection of your business or office.

The Investigation

Once an investigation begins, it can be a lengthy process.  The investigation is not limited to the concerns identified in the original complaint. It is not uncommon for licensees to face discipline for issues completely unrelated to the complaint which initiated the investigation. The investigators tend to be very thorough, and though they may mean well, may demand things of you that are beyond their authority.  Failing to cooperate or appearing flippant,arrogant or otherwise difficult can hurt you when the matter is presented to the Board. Experienced counsel can respond appropriately on your behalf and can insulate you from being perceived negatively.

Myth – This will go away if I am sorry enough.

Reality – The Board will use whatever you say against you. It is important to strike the right balance between cooperating with the Board without exposing yourself to additional liability.

Presentation to the Board

After the investigator feels he or she has conducted a thorough investigation, they will present their findings to the Board at aBoard meeting.  You may have an opportunity to be present, but the Boards’ practices vary.  This is a critical stage in the proceeding a sit is usually the first time the Board itself will consider the matter. If the Board decides that discipline is warranted and forwards the case to prosecution it is uncommon for matters to be completely dismissed.

Myth - If I can talk to the Board,they will understand.
Reality- There are very few, if any, opportunities to actually address the Board directly. It is important to present your defense appropriately during all phases of the process and to understand when and how it will be presented to the Board for consideration or reconsideration.

Your “Fair” Hearing

If the Board refers the matter to prosecutions, a formal hearing will be initiated  The hearings are conducted under rules which are foreign to even the most seasoned lawyers accustomed to the rules of court. Representation with expertise in this area of law is essential.
The prosecutor will be given terms under which it can settle the case.  The prosecutor may be willing to negotiate the settlement terms, but all offers are subject to Board approval and the prosecutor’s discretion is limited.

The prosecutor will issue an Order to Show Cause which initiates the formal hearings process.  You must then file an answer and request for hearing.  A hearings officer will be assigned to act as an independent judge. The hearings officers work in the same office as the prosecutor and the investigators, and do not often rule against the Boards.

The hearings officer will then schedule a status conference at which he or she will schedule the hearing and set a number of deadlines in the interim. If the allegations are not resolved by a dispositive motion, the hearing will often be held over several days. Assuming the hearings officer finds against you, there will not be an additional opportunity to address the appropriate sanction. The Hearings Officer will submit a tentative decision to the Board which has the opportunity to make changes to that decision before issuing a Final Decision and Order which will include the sanctions against you. There is only a limited opportunity to appeal to a court and courts tend to be reluctant to overturn even the most problematic decisions.

Myth – This will go away if I ignore it.

Reality – Many professions have a duty to cooperate with the Board.  Ignoring the board may in itself subject your license to discipline. Worse yet,completely ignoring the Board after an Order to Show Cause has been issued will result in a default judgment which almost always results in the revocation of your license and/or an assessment of the maximum penalty.

Conclusion

Even if you are ultimately exonerated, Board disciplinary proceedings are very stressful.  It can feel as though the odds are stacked against you at every step in the process. Experienced counsel retained early in the process will minimize your exposure to sanctions at your respective Board and help you through this very disruptive and challenging process.

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