Anatomy of a state board hearing

It's simply a matter of cause and effect:

With the number of client complaints on the rise, more veterinarians sooner or later will have to answer to their state regulatory boards.

• When that happens, what's the procedure?

• Does the board definitively act on every complaint?

• What are the possible outcomes?

Veterinarians new to the procedure might ask those and similar questions, so DVM Newsmagazine put them to an expert — Dale J. Atkinson, an Evanston, Ill., attorney experienced in professional licensure and state regulatory-association law. Atkinson serves as legal counsel for the American Association of Veterinary State Boards (AAVSB) and similar groups representing other professions. He regularly trains new members of state veterinary boards.

Dale J. Atkinson

Atkinson outlined — in nine steps — the anatomy of a typical state-board procedure, starting with the filing of a complaint and continuing through investigation, formal hearing and resolution.

Some of the steps may vary slightly from state to state, Atkinson says, but essentially this is how the process works:

Step 1 A COMPLAINT IS FILED

Any consumer may file a complaint concerning veterinary services with the regulatory board in the state where an alleged wrong took place.

Step 2 INITIAL EVALUATION

The board's administrative staff weighs the complaint's validity. Is it signed or is it anonymous? Some states won't process an unsigned complaint, so the issue may end there. Others will pursue anonymous charges if they are deemed serious enough (especially if there are two or more similar complaints against the same DVM). Does the complaint come under the board's jurisdiction as defined in the practice act? A simple dispute over a fee, for instance, may not, and the staff will send the complainant a letter saying so.

The board likely will pursue charges of malpractice or malfeasance (which may include poor record-keeping, a common complaint in recent statistics). Any unprofessional conduct, practicing while incapacitated or impaired, conviction of a felony, alcohol or other substance abuse, acts of moral turpitude and misrepresentation or fraud are among grounds for disciplinary action.

Step 3 DECIDING WHETHER TO ACT

Even if a complaint seems to fall under its jurisdiction, the board can't take on every case because of limited manpower. It must look at the severity and decide early on whether to dedicate the necessary time and resources. Usually a subcommittee of board members and administrative staff, along with an assistant attorney general, meets to decide whether to begin an investigation — investigators may be state employees or outside investigators under contract — and build a prosecution. Any egregious charge likely will be pursued. Minor issues might be handled with a letter to the licensee.

Step 4 NOTIFYING LICENSEE OF FORMAL CHARGE

If the subcommittee decides to pursue the case, the board files a formal charge and notifies the DVM licensee, citing the portion of the practice statute allegedly violated and giving the licensee opportunity to answer, hire an attorney and prepare a defense against an administrative prosecution.

Step 5 POTENTIAL SETTLEMENT

The initial goal is to reach a settlement without going into a formal hearing. Among various options, the board could call for a period of probation, impose a fine, a temporary or permanent suspension of license or some combination of these. The penalty is negotiated with the licensee and his or her counsel. If settled in that way, a consent agreement is filed and recorded to end the matter.

At this point, similar to a criminal case, the complaining party has little further to say and, whether happy with the outcome or not, cannot influence the board's action, other than possibly to testify should a formal hearing takes place.

Step 6 ADMINISTRATIVE HEARING

If no settlement is reached, an administrative hearing is ordered — handled much like a civil or criminal hearing, although somewhat less formal.

Most states hire an attorney to serve as an administrative-law judge (ALJ), who sits like a civil or criminal judge, hearing testimony from witnesses, admitting evidence, allowing for rebuttals and asking questions of both the prosecution and defense. In some states, hearings take place before the entire state board; in others, an adjudicating body is named.

Because the state board represents the public, administrative hearings are open to the public.

Step 7 JUDGE'S RECOMMENDATION

After the hearing, the ALJ writes a formal recommendation to the board and may request punishment through a fine, temporary license suspension, an order that the licensee complete some continuing-education courses or, in some states, even revocation of a license. On the other hand, the ALJ could recommend that the licensee be exonerated if the state failed to meet its burden of proof during the hearing.

Step 8 FINAL ORDER

At its regular meeting — open to the public in some states, but not in all — the state board decides whether to accept the ALJ's recommendation. Most boards customarily do, although sometimes with a modification. That acceptance serves as an administrative conviction of the licensee, and is followed by a final order that becomes public record.

Step 9 RIGHT TO APPEAL

Veterinarians may appeal an administrative conviction to a circuit court, which decides whether evidence supports the conviction and whether the licensee received due process. The circuit court can affirm the conviction or remand it back to the state board to be retried. The licensee also has the right to appeal a circuit court's decision to an appellate court and even to the state's supreme court.