Hearings Before the State Office of Administrative Hearings

After a licensing board begins an investigation and has issued formal charges/held an informal settlement conference, it will subsequently set the case for a hearing. The overwhelming majority of state agencies hold their hearings at the State Office of Administrative Hearings (or “SOAH”). SOAH is an independent agency that conducts independent hearings for other agencies. This separates the agency’s prosecutorial goals from the decision-making process. Some agencies still hold in-house hearings, but this is becoming less and less common.

At the Hearing

At SOAH, an administrative law judge (or “ALJ”) that will hear the evidence in your case. The ALJ will conduct the hearing similarly to a stereotypical trial. The state agency will act as the prosecutor, and your attorney will act as the defense. Both parties will make opening statements, call witnesses, present evidence, and make closing arguments. What types of arguments and evidence are presented will be different from case to case. For example, in a Chapter 53 case in which the agency seeks to deny a license based on criminal history, the agency’s evidence will often simply include presenting the past criminal convictions, whereas applicants or licensees will present evidence regard their character, work history, rehabilitation, and more.

Although the hearing will resemble a trial in many ways, there are some significant differences between a SOAH hearing and trials in court. For one, the rules of evidence are much more lax in SOAH hearings: Using the Chapter 53 example, the SOAH ALJ will be required to consider letters of recommendation written on the licensee’s behalf, even though these would be considered hearsay at an ordinary trial. Likewise, at most trials, the jury determines questions of fact and the judge determines questions of law, but at SOAH hearings, there will be no jury and the ALJ will determine both. Another substantial difference is that testimony can be delivered by telephone at SOAH hearings.

After the Hearing

Following the hearing, the ALJ will have 60 days to consider the evidence presented and render a proposal for decision (or “PFD”). This is not a final decision, but a proposal to be sent back to the agency. The ALJ’s PFD will include the judge’s recommendation for the case, as well as the findings of fact and conclusions of law. Additionally, the PFD will include a discussion of the relevant law, the evidence presented, and the judge’s analysis of the law and evidence.

After the ALJ issues the PFD, the parties have an opportunity to file exceptions asking the judge to change the proposal before it is sent to the agency. The parties can also respond to the exceptions filed by the opposing party. After the ALJ has had an opportunity to revise the PFD in light of any exceptions filed, the ALJ will submit the PFD to the agency’s board to consider it at their next meeting.

Representation

SOAH has recently made efforts to assist licensees that represent themselves at hearings, or “self-represented litigants.” For example, SOAH often provides excerpts of the relevant law when sending notices to parties. Nonetheless, FosterDanowsky strongly recommends that you consider hiring an attorney to represent you at SOAH. An experienced attorney will have not only greater knowledge of the law than a layperson but also the understanding of how to apply that law to your case.

As a professional, you understand the importance of skill and expertise. You have worked hard to earn your professional license and to develop your skill and expertise, and you deserve a skilled and experienced defense of your license. If you have any questions or comments about the material included here, please contact FosterDanowsky.

The information on this blog is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.

When an Agency Investigates Your License: Formal Charges and Informal Settlement Conferences

A professional license pointing true north after an agency investigation grants someone their license back

After a licensing board begins an investigation, it will subsequently file formal charges and invite the licensee to speak at an informal settlement conference (or “ISC”). This post will discuss these stages, but please note that these procedural rules are described generally: there might be variations between different boards. Some are minor, such as referring to informal settlement conferences simply as “informal conferences.” Others are far more substantial: for example, the Texas Department of Licensing and Regulation (TDLR) does not employ informal settlement conferences at all!

Formal Charges

The most practical difference between the investigation stage and the formal charges stage is that formal charges will often be posted in the public license verification system, which may be accessible on an agency website or a national database such as Nursys. Thus, a potential client or employer can see in the system that charges are pending, although typically the specific charges are not public.

When formally charged by the agency, you will receive these charges by mail, and the agency will request a written response from you. As stated in our previous post, DO NOT IGNORE letters sent by the agency, as a failure to respond will give the agency the legal authority to proceed with a “default judgment.” A default judgment allows the agency to decide the case against you without giving you a chance to defend yourself. Oftentimes, a default judgment will lead to revocation of the professional license, and most agencies will not allow a licensee to reapply until one year after revocation. Do not lose your livelihood because you didn’t respond to a letter!

In addition to asking for a written response, the formal charges will usually ask that you attend an informal settlement conference to discuss the charges. (Some agencies, such as the Board of Nursing, separate this into two separate steps). While you will have the opportunity to speak to the agency in person, your written response is the first thing the agency will see. Often the agency will have made their decision or be leaning in a direction before you even come through the door, so it’s crucial to submit a thoroughly prepared response. We strongly recommend that you consult with an attorney prior to filing a written response.

Informal Settlement Conference (ISC)

The informal settlement conference is an opportunity to present your side of the story to a panel of the agency. The panel will typically consist of board members, agency directors, the attorney and/or investigator assigned to your case, and other agency staff. One minor note here: because the panel is not the entire board of the agency, any decision made at the informal settlement conference is not binding on the agency, it is merely a proposal. However, it is exceptionally rare that a board does not accept the panel’s proposal.

The typical procedure at an informal settlement conference is that the agency attorney or investigator will present the background of the case and list your responsive items. After that, the panel will begin to ask questions relating to the charges and response. Here, an attorney can advise you as to what kind of questions to expect. An attorney can also make short arguments for you as may be appropriate.

After you have spoken to the panel, the panel will reach a proposed decision based on your written response and the informal conference. This proposed decision is referred to by many terms, such as “Proposed Agreed Order” or “Proposed Consent Order.” The decision is not a final order but instead is essentially a settlement offer. It is not necessary that you accept the proposed decision. If you do not accept the proposal, the agency will then take your case to a hearing before an administrative law judge or other hearing officer, which we will discuss next month.

Some agencies, such as the Texas State Board of Pharmacy (TSBP), typically inform you of their decision the same day, while others, such as the Texas Board of Professional Engineers (TSBPE), typically inform you of their decision later. For agencies that make their decision the same day, the agency will ask you to step into the lobby while they deliberate, and will invite you back in to hear their proposed decision. You will NOT be required to accept or decline the decision that day, but will receive a formal copy of the proposed decision by mail. For agencies that make their decision later, you will simply receive the proposed decision by mail a few days later.

You have worked hard to earn your professional license, and you should put the same effort into preserving it. If you have any questions or comments about the material included here, please contact FosterDanowsky.

The information on this blog is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.

What if You Want to Change an Agency Order?

Business woman with a license accepts a job offer after getting her agency order changed

You may already be subject to an order of your licensing agency. What if you want to change it?

Most often licensees want to change a pre-existing order because of difficulties they have finding employment. Requesting an agency to change an order typically requires a “petition for exception.” Changing an order, whether mutually agreed to or imposed after a hearing, is very rarely successful. This blog post will explain what you should expect when filing a petition for exception.

Don’t Expect the Agency to Toss Out the Original Order

If you file a petition for exception requesting complete relief from the original order, you can expect to be disappointed. In the case of an agreed order, the agency will state that you entered into the order of your own free will and must be expected to meet your end of the agreement. In the case of an order administered after a hearing, the agency will state that you had an opportunity to present argument and evidence in your favor and are bound by the findings at the hearing and meeting. Either way, the agency’s position will be: this is your order, you are stuck with it.

You are much more likely to succeed by requesting that only part of an order be modified. For example, if an order requires that you be directly supervised during a probationary period, you might request that the order be modified to allow for indirect supervision instead. Likewise, if an order requires payments of an administrative penalty, you might request that the penalty payments be paid in installments.

Why the Agency Might (or Might Not) Modify an Order

An agency is not going to modify an order just because you ask nicely, even if it’s a partial modification as recommended above. The agency is least likely grant a modification if the only basis for the change is your own convenience. When an agency issues an order, it does so because it believes the order is in the best interest of Texas citizens, of the agency, and of other licensees.  To the extent that the agency is concerned with your best interests, it believes the order is the best way for you to prove that you deserve a license. Thus, if you want an order modified, you’ll want to argue that the modification will benefit others, rather than arguing the modification benefits you.

The agency will be most likely to modify the order if you can prove that you simply cannot comply with the terms of the order, the agency may modify that order to give you terms that you can comply with. Using the supervision example above, imagine that the agency is requiring that you work for one year under direct supervision. Imagine also that you are unable to find employment at all. If you document your employment searches, you can attempt to prove to the agency that you are trying to meet the terms of the order, but are simply unable. This makes it most likely that the agency will modify the order in a way that makes compliance possible, such as by changing the form of the supervision, or by changing who may supervise you.

If you have any questions or comments about the material included here, please contact FosterDanowsky. Don’t let an arrest, conviction, or deferred adjudication threaten your livelihood.

The information on this blog is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.

 

What Happens when a Texas Licensing Board Agency Investigates Your Professional License?

Facing a formal complaint or investigation against your professional license? You need experienced legal representation! An attorney who is experienced with Texas licensing boards, laws, and rules is the best choice to defend your case and minimize the impact on your professional license.

There are many types of licenses governed by different agencies. FosterDanowsky represents clients before all licensing agencies, including the Board of Nursing (BON), the Texas Department of Licensing and Regulation (TDLR); the Texas State Board of Public Accountancy (TSBPA), the Texas Real Estate Commission (TREC), the Texas State Board of Examiners of Psychologists (TSBEP), and the Texas Board of Professional Engineers (TBPE). No matter what agency governs your license, having competent legal assistance is wise if you are under investigation.

Professional License Investigation Process

An administrative investigation can be initiated in several ways. A former client, patient, colleague or another person may file a complaint with the licensing board. The agency may be responding to information acquired through a background check.  Or the agency may simply perform a random inspection against you. When the agency assigns an investigator to perform their investigation, they generally have no information besides the complaint, the background check, or the results of the inspection.

Because the agency only has one side of the story and is relying initially on the information provided in the complaint, background check, or inspection, the investigator will begin trying to learn more. Initially, the investigator will write to you requesting more information. Typically, the investigator is trying to determine:

  1. whether or not any rules were actually broken, and
  2. if a rule was broken, what sort of sanction or punishment is appropriate.

Time out! If you receive a letter of investigation requesting information from an agency, DO NOT IGNORE THE LETTER. If you do not respond to an agency’s letter of investigation, the agency will have the legal authority to proceed with a “default judgment.” A default judgment allows the agency to decide the case against you without giving you a chance to defend yourself. Oftentimes, a default judgment will lead to revocation of the professional license, and most agencies will not allow a licensee to reapply until one year after revocation. Do not lose your livelihood because you didn’t respond to a letter!

Before you respond to an investigator’s request for information, consult with a lawyer experienced in this area of law. A knowledgeable lawyer will explain your rights and the licensing board’s responsibilities as they pertain to your particular license and the complaint against you. The attorney needs all the details about the complaint and your defense to it, so be ready to go over the complaint and events surrounding it extensively. This will allow the lawyer to give you the most accurate advice and assistance for your case.

While many licensed professionals try to resolve these types of issues without legal help, it definitely is not recommended. The cost of hiring an attorney to represent you in a licensing dispute is often much less than the potential sanctions that could result from the complaint. As stated above, investigators are trying to determine:

  1. Whether or not any rules were actually broken, and
  2. If a rule was broken, what sort of sanction or punishment is appropriate.

If you did not actually violate a rule, a professional licensing attorney can help you prove this to the agency. Further, even if you did violate a rule, a professional licensing attorney can often help reduce sanctions or even negotiate a dismissal of the complaint altogether.

You have worked hard to earn your professional license, and you should put the same effort into preserving it. If you have any questions or comments about the material included here, please contact FosterDanowsky.

The information on this blog is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.

How Criminal History May Impact Your Professional License

Have you been arrested, convicted, or placed on deferred adjudication for a crime? If so, this may impact your eligibility for a professional license. If you currently have a professional license, you may have to file a report with the licensing agency. If you are planning on applying for a license, you may have to report the action on your application.

Deferred Adjudication

Many licensees believe that they do not need to report deferred adjudications to their licensing agencies. This is not correct. In the State of Texas, a licensing agency may treat a deferred adjudication as a conviction! This means, for example, if you are a nurse preparing a renewal form, you must not only report a misdemeanor conviction, but also any misdemeanors for which you were placed on deferred adjudication.

Many people have this erroneous view due to the advice of their criminal attorneys or to the judges, who often say that receiving a deferred adjudication “is not the same as being convicted.” While this may be true in other circumstances, it is not true with regard to licensing agencies. If you have been placed on deferred adjudication, you should be sure that you have met any reporting requirements of your license or on your application.

When May a Licensing Agency Deny/Revoke a License Based on a Criminal Conviction?

When you report your arrest, conviction, or deferred adjudication to your licensing agency or on your application, you should be advised that the agency usually cannot revoke or deny your license without considering certain factors. These factors are listed in the Texas Occupations Code and include important facts such as whether the license would enable further similar criminal activity, the length of time that has passed since the crime was committed, or evidence of rehabilitation.

Many professionals are unaware that these factors must be considered by the licensing agency when the agency considers a criminal conviction. A professional licensing attorney can help you prepare an application or report to the licensing agency that ensures that the licensing agency will consider these factors in order to prevent a denial or revocation.

Some licensing agencies have additional power to deny licenses. For example, under the Texas Finance Code, the Department of Savings and Mortgage Lending may deny a residential mortgage loan originator a license if the licensee does not prove good moral character, including honesty, trustworthiness, and integrity. This is a flexible standard that gives the Department a lot of power. This power is another reason why professionals that have been arrested, convicted, or placed on deferred adjudication should seek legal advice before applying for a license or reporting to a licensing agency.

If you have any questions or comments about the material included here, please contact FosterDanowsky. Don’t let an arrest, conviction, or deferred adjudication threaten your livelihood.

The information on this blog is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.