The Adjudication Process Virginia Department of Health Professions New Board Member Training October 2008

Administrative Proceedings Division Who We Are Who We Are Adjudication Specialists Adjudication Specialists Support Staff Support Staff Director and Deputies Director and Deputies

Administrative Proceedings Division What We Do What We Do Prepare discipline documents Prepare discipline documents Present cases to Boards Present cases to Boards Draft post-hearing documents Draft post-hearing documents

Due Process Fundamental Fairness Fundamental Fairness Adequate notice Adequate notice Opportunity to be heard Opportunity to be heard Administrative Process Act Administrative Process Act

After Probable Cause is Found Board Staff sends case to APD Board Staff sends case to APD Adjudication Specialist conducts independent review of investigative report Adjudication Specialist conducts independent review of investigative report

After Probable Cause is Found 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 Hearing Identify misconduct Identify misconduct Identify specific statute/regulation violated Identify specific statute/regulation violated Inform respondent of rights Inform respondent of rights Inform respondent of possible outcomes Inform respondent of possible outcomes

What is the Standard of Proof? Clear and Convincing Evidence: Reasonable certainty of the truth of the facts in controversy Reasonable certainty of the truth of the facts in controversy Between “probable cause” and Between “probable cause” and “beyond a reasonable doubt”

Who Bears Burden of Proof? Disciplinary cases Disciplinary cases Commonwealth bears burden of proof Commonwealth bears burden of proof Applicant cases Applicant cases Applicant bears burden of proof of eligibility Applicant bears burden of proof of eligibility Commonwealth bears burden of proof of violations Commonwealth bears burden of proof of violations

What to Expect at an IFC Informal Informal Not recorded Not recorded Not under oath Not under oath

What to Expect at an IFC Role of respondent / applicant Role of respondent / applicant Subject’s chance to respond to allegations Subject’s chance to respond to allegations May call witnesses May call witnesses May be represented by counsel May be represented by counsel Applicant’s chance to prove eligible for licensure Applicant’s chance to prove eligible for licensure

What to Expect at an IFC Role of Committee chair and members Role of Committee chair and members Review evidence packet beforehand Review evidence packet beforehand Ask questions related to the allegations Ask questions related to the allegations Judge credibility of witnesses/evidence Judge credibility of witnesses/evidence

What to Expect at an IFC APD’s Role APD’s Role Call witnesses Call witnesses Ask questions Ask questions Assist committee Assist committee Note committee’s findings of fact and conclusions of law Note committee’s findings of fact and conclusions of law Note committee’s decision Note committee’s decision Draft Order Draft Order Does NOT make or influence decision Does NOT make or influence decision

What to Expect at an IFC Role of Board Staff Role of Board Staff Ask questions Ask questions Assist committee with process Assist committee with process Does NOT make or influence decision Explain proceedings to respondent Explain proceedings to respondent

What to Expect at an IFC Committee deliberates in closed session Committee deliberates in closed session Decide what happened (make findings of fact) Decide what happened (make findings of fact) Decide whether respondent violated laws or regulations (determine conclusions of law) Decide whether respondent violated laws or regulations (determine conclusions of law) Decide what to do: Decide what to do: Dismiss case Dismiss case impose sanction impose sanction

What to Expect at an IFC Committee announces decision in open session Committee announces decision in open session Announce findings of fact Announce findings of fact Announce conclusions of law Announce conclusions of law State dismissal or sanction State dismissal or sanction

What to Expect at A Formal Hearing Differences from IFC: Differences from IFC: Adversarial Adversarial More like court More like court Witnesses under oath Witnesses under oath Court reporter Court reporter Opening statements, witnesses, cross examination, closing argument Opening statements, witnesses, cross examination, closing argument

What to Expect at A Formal Hearing Similarities with IFC: Similarities with IFC: Standard of Proof and Burden of Proof are same Standard of Proof and Burden of Proof are same Board members may ask questions Board members may ask questions Board deliberates in closed session Board deliberates in closed session Board announces findings, conclusions, decision in open session Board announces findings, conclusions, decision in open session

What to Expect at A Formal Hearing Role of Board members Role of Board members Review evidence packet beforehand Review evidence packet beforehand Ask questions related to the allegations Ask questions related to the allegations Judge credibility of witnesses/evidence Judge credibility of witnesses/evidence Role of hearing Chair Role of hearing Chair Rule on motions Rule on motions Rule on admissibility of evidence Rule on admissibility of evidence Ensure compliance with due process Ensure compliance with due process

What to Expect at A Formal Hearing Role of APD Role of APD Present Commonwealth’s case Present Commonwealth’s case Opening statement Opening statement Introduce evidence Introduce evidence Direct and cross examination of witnesses Direct and cross examination of witnesses Closing argument Closing argument Proposed findings of fact and conclusions of law Proposed findings of fact and conclusions of law Assist Attorney General if prosecuting Assist Attorney General if prosecuting

What to Expect at A Formal Hearing Role of Board Counsel Role of Board Counsel Assist Chair in ruling on motions/evidence Assist Chair in ruling on motions/evidence Assist Board with legal issues Assist Board with legal issues Ensure compliance with due process Ensure compliance with due process

Post-Hearing Documents Order Order Consent Order Consent Order Decision Letter Decision Letter All are public All are public

Appeal of Agency Decision Circuit Court Circuit Court Review of record Review of record Constitutional Constitutional Agency followed procedures Agency followed procedures Substantial evidence Substantial evidence Board Counsel represents Board Board Counsel represents Board Appeal to Court of Appeals Appeal to Court of Appeals