Professional Discipline

1
Professional Discipline
2007 Annual Conference

• Ruby E. Brice, J.D.
• S.C. Department of Labor, Licensing and Regulation

2
The Disciplinary Process

• Use of Administrative Hearings
• Nature of Proceeding
• Role of the Board
• Participants
• Jurisdiction of the Board

3
Steps in a Disciplinary Action

• Initial Complaint
• Investigation
• Formal Complaint
• Informal Disposition
• Formal Hearing
• Sanction
• Judicial Review

4
Steps in the Enforcement Process

• Intake Receiving and acknowledging complaints,
  setting up files and initiating complaint
  tracking.
• Assessment Screening complaints determining
  the type of response appropriate for the
  complaint determining jurisdiction. In cases of
  perceived immediate public risk statute may
  permit immediate suspension of registration.
• Investigation Assigning an investigator or
  investigative teams for determining the details
  of the case and producing a final report.

5
Steps in the Enforcement Process

• Review Determining the disposition of
  investigated complaints those without merit,
  closed those with merit, a determination of the
  level of action to be taken.
• Formal and Informal Resolution Informal
  resolution by stipulated agreement or Formal
  Hearings formal resolution by hearings before
  the board or administrative law judge.
• Final Orders Determining facts, legal
  conclusions and sanctions in appropriate cases.
• Compliance Following up on all final orders to
  assure the orders are being obeyed.

6
Practitioner Misconduct

• Misconducts may include but are not limited to
• Direct physical harm to a client
• Abuse of a client
• Improper advertising
• Failure to provide access to records
• Failure to keep records as required

7
Practitioner Misconduct

• Falsification of records
• Failure to maintain Standards of Practice
• Failure to comply with the Code of Conduct
• Falsifying financial records
• Practicing the profession while mentally
  incompetent
• Practicing the profession while impaired

8
Mental or Physical Impairment

• Appropriate mental and/or physical evaluations be
  completed to ensure that the board has complete
  information on which to base their decisions in
  these cases.

9
Chemical Impairment

• The process of drug impairment in regulated
  professionals typically progresses along a
  continuum from use, to misuse, to abuse, to
  dependency on a chemical substance. A regulatory
  authority should be careful in determining if a
  licensees drug activity is for legitimate
  reasons, and not interfering with competent
  performance.

10
Informal Disposition of Complaints

• Advantages of Informal Disposition
• Disposition by Correspondence
• Consent Order
• Settlement
• The Boards Role in Informal Dispositions

11
The Formal Hearing

• Format
• Hearing Officer
• Panel
• Full Board
• Issues
• Confidentiality
• Recusal
• Taint

12
Rights of the Parties

• Right to Appear and Be Heard
• Right to Present Evidence
• Right to Cross Examine Witnesses
• Right to Be Accompanied and Advised by Counsel
• Right to a Fair and Impartial Hearing
• Right to Judicial Review

13
Forms of Evidence

• Oral testimony
• Documentary evidence
• Visual, physical, illustrative evidence
• Admissions
• Facts officially noted

14
Making the Decision

• Fact Finding Function
• Determine the Facts Solely on Evidence Submitted
  at the Hearing
• Determine whether the facts support the Charges
• Conclusion of Law
• Determine Whether the Charges are a Violation of
  the Relevant Law or Rule.

15
Determining Sanctions

• The Nature/Circumstances of Offense
• The Severity of the Allegations
• The Number of Times Incident Occurred
• The Length of Time Over Which Behavior Occurred
• The Licensees Motivation for Action
• Public Injury/Harm
• The Protection of the Public
• The Standards of the Profession

16
Types of Disciplinary Actions Include

• Dismissal
• Revocation
• Suspension or Other Restriction of the License
• Surrender
• Probation
• Censure/Public Reprimand
• Requirement of Additional Education/Supervision
• Administrative Fine
• Cease and Desist
• Restitution

17
Judicial Review

• Remands to Board

18
Characteristics of a Strong Enforcement Process

• Publicize their existence and role in handling
  consumer complaints. Options include
• Toll-free complaint lines
• Information brochure with wide distribution
• Notices about where and how to file complaints
  posted in all licensed professionals offices

19
Characteristics of a Strong Enforcement Process

• Public service TV and radio ads
• Speeches by board members to community
  associations
• Coordination of publicity/consumer information
  with local consumer groups
• Including complaint filing information in statute
  and/or rules.

20
Characteristics of a Strong Enforcement Process

• Develop a well-organized complaint handling
  process.
• Establish appropriate periods of time for notice
  and for investigative review.
• Observe due process.
• Specify the reasons for which the board may take
  disciplinary actions.
• Consider ways to establish internal consistency
  with regard to charges and sanctions.

21
Receiving and Sharing Information

• The board should make provisions through the
  practice act to receive information from
  professional associations, professional review
  organizations (PROs), hospitals, clinics or other
  institutions in which a licensee performs
  professional services, on possible chemical
  abuse, or incompetent or unethical behavior
  within a specified time. Circulate notice of
  sanctions taken by the board to other licensing
  jurisdictions.

22
Speaker Contact Information

• Ruby E. Brice, JD
• Assistant Deputy Director
• Office of Health and Medically Related
  Professions
• S.C. Department of Labor, Licensing and
  Regulations
• 110 Centerview Drive
• Columbia, SC 29210
• [phone] Office
• [phone] Fax
• mcclainr_at_llr.sc.gov