When the investigation of a complaint has been completed, the complaint proceeds down one of two pathways to final resolution. The determination of which path the complaint proceeds down is dependent upon whether probable cause is found following the Council’s investigation.
Probable cause means the facts and circumstances within the agency’s knowledge, and of which it has reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the respondent committed a violation of the Council’s rules or other law within the jurisdiction of the agency.
If Probable Cause is NOT found:
If no probable cause can be found for the alleged violation(s), the complaint is referred to legal counsel. If legal counsel agrees that no probable cause exists for the alleged violation(s), the complaint is then referred to the Executive Director for dismissal. Both the complainant and the respondent are informed of the dismissal.
If Probable Cause is found:
If probable cause is found for the alleged violation(s), the complaint is referred for an informal conference (i.e., informal settlement conference or ISC) by agency staff or a Disciplinary Review Panel. A Disciplinary Review Panel is composed of not more than three board members selected by the relevant member board. Prior to conducting an informal conference and in an effort to resolve a complaint by agreement, agency staff may send the respondent a proposed agreed order, i.e., a settlement offer. If the respondent rejects a proposed agreed order or requests an informal conference, the complaint is then set for an informal conference.
Informal Settlement Conferences:
Prior to an informal conference, the respondent is provided with written notice of the alleged violation(s) for which probable cause has been found to exist and is invited to participate in an informal conference. The complainant is also invited to participate in the informal conference, but separate from the respondent. Both the complainant and respondent may speak with and present evidence to agency staff or the Disciplinary Review Panel, and may be represented by legal counsel if desired.
NOTE: Informal conferences involving complaints requiring the use of expert testimony to prove a violation of a standard of care or the scope of practice for the profession must be held before a Disciplinary Review Panel; agency staff may not conduct an informal conference if counsel for the agency reasonably believes that expert testimony is required to prove a violation of a standard of care or the scope of practice for the profession.
Following an informal conference, a recommendation is made regarding the informal disposition of the complaint. This recommendation may include dismissal or disciplinary action, or the recommendation may be to remand the complaint for further investigation. A recommendation for disciplinary action is forwarded to the respondent in the form of an agreed order which operates as a settlement offer.
If the respondent accepts the agreed order, it is then referred to the Executive Director for approval. If the respondent does not accept the agreed order, the agency refers the complaint to the State Office of Administrative Hearings (SOAH) and the complaint becomes a contested case.
Contested Cases at SOAH
A contested case before SOAH is similar to a bench trial. The hearing is open to the public. A complainant may be called as a witness to give testimony at the hearing, in a deposition, or both. Evidence at the hearing may include a complainant’s testimony, the licensee’s testimony, admission of patient records, and the testimony of expert witnesses. Following the hearing, the administrative law judge will make a Proposal for Decision (PFD) containing the judge’s opinion as to whether the facts establish a violation of the law within the jurisdiction of the Council. The Council will have the option to accept the PFD, or in limited circumstances, to reject or modify it. If the PFD finds that a Council rule or other law within the jurisdiction of the Council was violated, the Council may sanction the licensee. If not, the complaint will be dismissed.
Notice to Complainant of Disposition:
Complainants will receive a copy of any disciplinary action entered against a licensee by the Council. Alternatively, complainants will also receive written notification if their complaint is dismissed. The notice of dismissal will reflect the legal basis or reason for the dismissal.
Right to Appeal:
Respondents may appeal any disciplinary action entered against them in accordance with Chapter 2001 of the Government Code.
Complainants however, may not appeal any disciplinary action or dismissal entered by the Council.
