The complaint is assigned to an investigator for the licensing agency. Many agencies utilize Department of Consumer Affairs investigators to review complaints. The investigator may interview witnesses, subpoena documents, and seize property in conducting his or her investigation.
If the licensee is contacted, an investigator typically either requests a meeting or conducts an unannounced visit in which the licensee is asked to provide verbal or written responses regarding the complaint. It is important to realize that while a licensee is required to cooperate throughout an agency investigation, if the investigator does not have a search warrant, the licensee is not required to provide documentation or responses at this initial contact without understanding the nature of the complaint and an opportunity to prepare a response. If an investigator appears unannounced and asks the licensee to provide patient charts, business documents, or respond to questions, the licensee may decline to respond and instead advise the investigator that he or she will have an attorney contact the investigator. This allows the licensee to work with an attorney to prepare a complete and accurate record. Failure to make any response to an investigator may result in additional charges being alleged.
Most agencies are authorized to issue citations and fines against licensees for minor or technical violations of law. If the agency elects to issue a citation against your license, you will be notified. A citation is a public document that lists all of the alleged, unproven, violations. The agency will post the citation on its website where it is accessible by patients, customers, and all institutions regulating your profession.
Citations may be appealed by submitting a written appeal to the agency with evidence and argument as to why the citation is not accurate or deserved. To provide the best possible argument and evidence, and to ensure that you are not making any unintentional admissions, it is best to retain legal assistance in the preparation and filing of the appeal.
After an appeal is filed, the agency may dismiss or uphold the citation. If the citation is upheld, you may resolve the matter by agreeing to the citation and paying the fine or, you may continue to appeal the citation and request a hearing before an administrative law judge.
The citation and its resolution will remain on the agency’s website and is accessible to the public.
If the agency believes a licensee has committed a violation of law that cannot be resolved at the citation level, it will forward its investigative report to an attorney with instructions to file an Accusation seeking discipline. Some agencies have their own attorneys, such as the Department of Social Services and the Department of Insurance. Others, such as all of the healthcare boards, utilize the legal services of the Department of Justice and are represented by a Deputy Attorney General.
Once the Accusation is filed, you will have only 15 days to file a Notice of Defense, the form that advises the agency you are requesting a hearing on charges in the Accusation. If you fail to file the Notice of Defense within 15 days, the agency will revoke your license without providing you with an opportunity to defend against the charges. For this reason, it is critical that you retain legal representation immediately upon receiving an Accusation.
The Accusation phase of the disciplinary process usually takes several months. During this period, your attorney will work closely with you in developing a defense to the charges against you and will attempt to negotiate a resolution of your case in an effort to avoid the emotional and financial expense of a contested administrative hearing. All agencies have the authority to settle a case before hearing and a majority of cases are resolved during the settlement process via a stipulated agreement. The conditions and terms of the stipulated agreement depend upon the strength of the evidence rebutting the charges. Attorneys representing licensing agencies are specialists in licensing law. It is critical when obtaining legal counsel to defend your license that you retain an attorney experienced in the nuances and procedures of the licensing law that controls your profession in order to obtain the best result.
Once the agency receives your Notice of Defense, it will schedule an administrative hearing before an administrative law judge at one of the regional Offices of Administrative Hearings. Along with the Accusation, you will also receive a Request for Discovery. Both the agency and the licensee are required to submit discovery to the other party. Discovery includes all evidence that is relevant to the charges contained in the Accusation. Your attorney will obtain discovery from the agency that includes the agency’s investigative and expert reports, witness statements, and any other available evidence the agency intends to present at the hearing to prove the charges. Your attorney will work closely with you to prepare your evidence that will be submitted in rebuttal of the charges.
Your attorney may choose to file a Special Notice of Defense or other Motions in Limine if the Accusation fails to comply with the law or if other irregularities in the filing of charges or in obtaining evidence are identified. There are specific timelines in which both parties are required to file motions and exchange all of their discovery and witnesses. Failure to comply with these timelines may result in the motion being denied or evidence and/or witnesses being excluded at the hearing.
If the case is scheduled for four days or more, mandatory Prehearing and Settlement Conferences are scheduled. These conferences are usually held several weeks before the administrative hearing to ensure that all avenues of settlement have been explored and the parties are ready for hearing.
The Settlement Conference is held before an administrative law judge who is not assigned to hear the case at the administrative hearing. At the Settlement Conference, the parties individually present their cases to the settlement judge. The judge then separately discusses the case with each party in an effort to reach a settlement. Gould & Hahn believes it is in the best interest of their clients to prepare a comprehensive Settlement Conference Statement and submit it to the settlement judge prior to the Conference in order to fully familiarize the judge with the details of the defense. If a settlement can be reached, the parties enter the terms and conditions of settlement into the record in the form of a stipulated agreement and the case is resolved.
If a settlement is not reached at the Settlement Conference, the Prehearing Conference is held before the administrative law judge who will preside over the administrative hearing. This judge will rule on all of the prehearing motions that have been filed and will ensure that both parties have fully complied with the rules of discovery. Your attorney is required to file a Prehearing Conference Statement before the Conference is held identifying your prehearing motions and all discovery documents and witnesses that you intend to present at the hearing.
An administrative hearing is unlike a criminal or civil trial. The case is heard before an administrative law judge alone. There is no jury. The agency’s attorney presents the agency’s evidence in support of its Accusation in the form of investigative documents and live witness testimony. Evidence and testimony is taken under relaxed rules of evidence in which relevant evidence and testimony is permitted, even if hearsay. The licensee’s counsel has an opportunity to cross-examine agency witnesses and object to irrelevant or improperly obtained evidence. Once the agency has completed its case, the defense presents its evidence and testimony. If the agency calls an expert witness, it is critical that the defense has an expert who can rebut the agency’s expert findings. When all evidence and testimony has been submitted into the record, the hearing is closed.
The administrative law judge has thirty (30) days to prepare a Proposed Decision and submit it to the agency for its consideration. The agency has one hundred (100) days to consider the Proposed Decision and may:
If the agency fails to act within 100 days, the Proposed Decision is deemed adopted as the final Decision.
Potential outcomes at hearing include:
If a licensee disputes the Decision and Order following an administrative hearing, the Licensee may appeal the Decision by filing a Petition for Reconsideration with the agency and/or a Writ of Administrative Mandamus in a California Superior Court. The agency may, but is not required to respond to a Petition for Reconsideration. Failure of the agency to respond to a Petition for Reconsideration is deemed a denial of the Petition. The filing of a Petition for Reconsideration does not necessarily change the filing requirements for a Writ of Administrative Mandamus. It is, therefore, extremely important to consult with an experienced licensing attorney immediately upon receipt of the Decision, as failure to meet the filing deadline will result in the loss of your ability to appeal the Decision.
A Writ of Administrative Mandamus proceeding is a separate civil action that typically requires an appearance in Superior Court. The Superior Court has limited authority in licensing appeals. It is, however, authorized to stay any Decision until the Court has heard the Writ. To be successful, the Writ must identify ways in which the agency failed to act in a manner required by law. The Court will not re-litigate the facts of the case and great weight is given to findings by the administrative hearing judge. If the Writ is successful, the Court will remand the case back to the licensing agency, ordering the agency to reschedule the case for hearing to correct the defects in its procedure or Decision. At this point, a skilled licensing attorney may be able to negotiate a settlement that will resolve the case and avoid a second, contested hearing.
If the writ of administrative mandamus is denied by the Superior Court, the case may be further appealed by the filing of an appeal with the California Court of Appeals.