the adjudication process virginia department of health professions new board member training october...
TRANSCRIPT
The The Adjudication Adjudication
ProcessProcess
Virginia Department of Health Professions Virginia Department of Health Professions
New Board Member Training New Board Member Training
October 2008October 2008
Administrative Administrative Proceedings DivisionProceedings Division
Who We AreWho We Are Adjudication SpecialistsAdjudication Specialists Support StaffSupport Staff Director and DeputiesDirector and Deputies
Administrative Administrative Proceedings DivisionProceedings Division
What We DoWhat We Do Prepare discipline documentsPrepare discipline documents Present cases to BoardsPresent cases to Boards Draft post-hearing documentsDraft post-hearing documents
Due ProcessDue Process
Fundamental FairnessFundamental Fairness Adequate noticeAdequate notice Opportunity to be heardOpportunity to be heard
Administrative Process ActAdministrative Process Act
After Probable Cause is After Probable Cause is FoundFound
Board Staff sends case to APD Board Staff sends case to APD
Adjudication Specialist conducts Adjudication Specialist conducts independent review of independent review of
investigative investigative reportreport
After Probable Cause is After Probable Cause is FoundFound
Possible Outcomes
• Return to Board with closure recommendation
• Return to Enforcement with request for additional information
• Draft requested Notice / Order
Notice of IFC or Formal Notice of IFC or Formal HearingHearing
Identify misconductIdentify misconduct Identify specific statute/regulation Identify specific statute/regulation
violatedviolated Inform respondent of rightsInform respondent of rights Inform respondent of possible Inform respondent of possible
outcomesoutcomes
What is the Standard of What is the Standard of Proof?Proof?
Clear and Convincing Evidence:Clear and Convincing Evidence:
Reasonable certainty of the truth of Reasonable certainty of the truth of the facts in controversythe facts in controversy
Between “probable cause” and Between “probable cause” and ““beyond a reasonable doubt”beyond a reasonable doubt”
Who Bears Burden of Who Bears Burden of Proof?Proof?
Disciplinary casesDisciplinary cases Commonwealth bears burden of proofCommonwealth bears burden of proof
Applicant casesApplicant cases Applicant bears burden of proof of eligibilityApplicant bears burden of proof of eligibility Commonwealth bears burden of proof of Commonwealth bears burden of proof of
violationsviolations
What to Expect at an IFCWhat to Expect at an IFC
InformalInformal Not recordedNot recorded Not under oathNot under oath
What to Expect at an IFCWhat to Expect at an IFC
Role of respondent / applicantRole of respondent / applicant Subject’s chance to respond to Subject’s chance to respond to
allegationsallegations May call witnessesMay call witnesses May be represented by counselMay be represented by counsel
Applicant’s chance to prove eligible for Applicant’s chance to prove eligible for licensurelicensure
What to Expect at an IFCWhat to Expect at an IFC
Role of Committee chair and Role of Committee chair and membersmembers Review evidence packet beforehandReview evidence packet beforehand Ask questions related to the allegationsAsk questions related to the allegations Judge credibility of witnesses/evidenceJudge credibility of witnesses/evidence
What to Expect at an IFCWhat to Expect at an IFC
APD’s Role APD’s Role Call witnessesCall witnesses Ask questionsAsk questions Assist committeeAssist committee Note committee’s findings of fact and Note committee’s findings of fact and
conclusions of lawconclusions of law Note committee’s decisionNote committee’s decision Draft OrderDraft Order
Does NOT make or influence decisionDoes NOT make or influence decision
What to Expect at an IFCWhat to Expect at an IFC
Role of Board StaffRole of Board Staff Ask questionsAsk questions Assist committee with processAssist committee with process
Does NOT make or influence decisionDoes NOT make or influence decision Explain proceedings to respondentExplain proceedings to respondent
What to Expect at an IFCWhat to Expect at an IFC
Committee deliberates in closed sessionCommittee deliberates in closed session Decide what happened (make findings of Decide what happened (make findings of
fact) fact) Decide whether respondent violated laws or Decide whether respondent violated laws or
regulations (determine conclusions of law) regulations (determine conclusions of law) Decide what to do: Decide what to do:
Dismiss case Dismiss case impose sanctionimpose sanction
What to Expect at an IFCWhat to Expect at an IFC
Committee announces decision in Committee announces decision in open sessionopen session Announce findings of factAnnounce findings of fact Announce conclusions of lawAnnounce conclusions of law State dismissal or sanctionState dismissal or sanction
What to Expect at What to Expect at A Formal HearingA Formal Hearing
Differences from IFC:Differences from IFC: AdversarialAdversarial More like courtMore like court Witnesses under oathWitnesses under oath Court reporterCourt reporter Opening statements, witnesses, cross Opening statements, witnesses, cross
examination, closing argumentexamination, closing argument
What to Expect at What to Expect at A Formal HearingA Formal Hearing
Similarities with IFC:Similarities with IFC: Standard of Proof and Burden of Proof Standard of Proof and Burden of Proof
are sameare same Board members may ask questionsBoard members may ask questions Board deliberates in closed sessionBoard deliberates in closed session Board announces findings, conclusions, Board announces findings, conclusions,
decision in open sessiondecision in open session
What to Expect at What to Expect at A Formal HearingA Formal Hearing
Role of Board membersRole of Board members Review evidence packet beforehandReview evidence packet beforehand Ask questions related to the allegationsAsk questions related to the allegations Judge credibility of witnesses/evidenceJudge credibility of witnesses/evidence
Role of hearing ChairRole of hearing Chair Rule on motionsRule on motions Rule on admissibility of evidenceRule on admissibility of evidence Ensure compliance with due processEnsure compliance with due process
What to Expect at What to Expect at A Formal HearingA Formal Hearing
Role of APDRole of APD Present Commonwealth’s casePresent Commonwealth’s case
Opening statementOpening statement Introduce evidenceIntroduce evidence Direct and cross examination of witnessesDirect and cross examination of witnesses Closing argumentClosing argument Proposed findings of fact and conclusions of Proposed findings of fact and conclusions of
lawlaw Assist Attorney General if prosecutingAssist Attorney General if prosecuting
What to Expect at What to Expect at A Formal HearingA Formal Hearing
Role of Board CounselRole of Board Counsel Assist Chair in ruling on Assist Chair in ruling on
motions/evidencemotions/evidence Assist Board with legal issuesAssist Board with legal issues Ensure compliance with due processEnsure compliance with due process
Post-Hearing DocumentsPost-Hearing Documents
OrderOrder Consent OrderConsent Order Decision LetterDecision Letter
All are publicAll are public
Appeal of Agency DecisionAppeal of Agency Decision
Circuit CourtCircuit Court Review of recordReview of record
ConstitutionalConstitutional Agency followed proceduresAgency followed procedures Substantial evidenceSubstantial evidence
Board Counsel represents BoardBoard Counsel represents Board Appeal to Court of AppealsAppeal to Court of Appeals