BY DYLAN GALLAGHER
Associate Attorney
Whether you are a physician, nurse, professional engineer, therapist, plumber, or one of a variety of other professional license holders practicing in Montana, you worked hard for your license, and you take your professional ethics and responsibilities seriously.
But, without warning, you are notified of a complaint filed against you with your state licensing board. What should you do? First, take a deep breath – your right to practice is not affected just because a complaint was filed. Second, read below to understand the complaint process and your rights in defending against a disciplinary action.
Your Rights
You weren’t just handed your license; you earned it. You completed the education, you passed the exams, you filed an application with the board, you paid the application processing fee and, after finding you were qualified, the board issued your license. You have a property interest in the license, and the board cannot suspend, revoke, or otherwise “sanction” the license without providing you with due process.
Due process, in simple terms, means that you have the right to notice and an opportunity to respond. You can be an active participant in the complaint process, not just a passive victim of the system. The details of what is required to meet your due process rights – to provide you with adequate notice and opportunity to respond – are flexible and depend on the situation. In this case, you want to be aware of whether you are facing a complaint investigation or a proposed disciplinary action.
Complaint V. Disciplinary Action
A complaint is “a written allegation filed with a board that, if true, warrants an injunction, disciplinary action against a licensee, or denial of an application submitted by a license applicant.” Anyone can file a complaint, and the Department of Labor and Industry almost always performs some investigation into the complaint allegations.
The purpose of this investigation is to gather enough information for the board’s “screening panel” (a group of about half of the board’s members) to determine whether there is “reasonable cause to believe that a licensee has violated a particular statute, rule, or standard justifying disciplinary action.” Only after a screening panel has found reasonable cause does a disciplinary action start.
The board pursues the disciplinary action; the complainant is not a party. In this role, the board considers what sanctions are necessary to protect or compensate the public, or to ensure that you can practice with reasonable skill and safety, given the alleged violation of statute, rule or standard.
What To Expect In The Complaint Investigation
When the Department investigates a complaint, due process requires that you are notified of the factual allegations against you, and you have an opportunity to respond to those allegations in writing. You do not have a right to examine and respond to every piece of information that the Department gets during the investigation (but in most cases, that information is provided to you, anyway). Even if you didn’t get a chance to look at all of the evidence, the screening panel cannot pursue disciplinary action on an issue about which you were not given notice and a chance to respond.
Another right that you enjoy during this process is the constitutional right of individual privacy. Generally, your right to privacy during the investigation stage outweighs the public’s right to know. So, before a screening panel starts a disciplinary action, all complaint information is usually confidential, and not available to the public.
You are also allowed to attend the meeting where the screening panel discusses the complaint and investigation. The screening panel may also ask you some clarifying questions. This is where your ability to participate in the meeting ends. Generally, you do not have a right to present any argument, evidence, or testimony. So, make sure that you have given the screening panel everything you want them to review before the meeting. You may also be excluded from portions of the meeting if the screening panel’s attorney is providing legal advice to the panel.
If there is evidence that public health, safety, or welfare imperatively requires emergency action, the screening panel may consider whether to “summarily suspend” your license. Summary suspension is the immediate prohibition against your right to practice, while disciplinary proceedings play out. Summary suspension is a board action so, before the panel members consider whether to suspend your license, you have a right to address the screening panel during the meeting and plead your case.
Concerned about whether the screening panel may be considering whether to summarily suspend your license? Don’t worry, you will receive a letter before the meeting that specifically tells you whether that is a possibility.
If the screening panel dismisses the complaint, then everything remains confidential, and you can go about your happy life, continuing to practice at the high standard to which you hold yourself. If the screening panel “finds reasonable cause,” then you will be defending against proposed disciplinary action.
What To Expect During A Disciplinary Action
The first step in a disciplinary action is for the Department to serve you with a Notice of Proposed Board Action and Opportunity for Hearing. This “notice” contains the basic facts that show the need for disciplinary action. It also contains key legal provisions at issue, including the specific statute, rule, or standard of practice that the screening panel believes you violated. The notice will also tell you how to request a hearing to contest the disciplinary action if you would like to do so.
If you request a hearing, expect to engage in pretrial-like activities, including scheduling an evidentiary hearing, exchanging discovery, participating in depositions, and filing pre-trial motions. Due process, at this stage, means that you get to test every piece of evidence that the Board would ultimately rely on to decide whether to sanction your license.
Alternatively, you could negotiate terms of a “stipulation” to settle things without a hearing. In that case, you would agree to certain facts, conclusions of law, and sanctions against your license. Sanctions can range from a public reprimand, probation on your license for a certain period, or suspension or revocation of your license.
After you sign a stipulation or contest the action at a hearing, the final step in the process is for the board’s adjudication panel (the board members who were not on the screening panel) to decide whether to enter a public final order. This panel is ultimately responsible for deciding whether you committed unprofessional conduct and, if so, what sanctions are appropriate.
After the board issues a final order, you may also have the right to continue fighting the board action through judicial review by a district court.
Still Have Questions?
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Please contact our office today for assistance from our professional licensing attorneys. We can help you navigate the convoluted complaint and disciplinary action process or assist you in any other issues you may have with your professional licensing board. Call 406-449-4829 or visit https://mttaxlaw.com/contact/ to get help now!