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 outcomesInform respondent of possible outcomes

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 allegationsSubject’s chance to respond to allegations 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 membersRole of Committee chair and 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

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 fact) Decide what happened (make findings of 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 lawProposed findings of fact and conclusions of law

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