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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 4
By Attorney Arthur Thexton, Of Counsel
Part 4: The Investigation Process of the Wisconsin Department of Safety and Professional Services
In my last blog, I talked about the role of the case advisor in the process of handling complaints. This time, I will talk about how the staff proceeds with their investigations.
Investigators are the Division’s detectives. They gather the appropriate documentary records and evidence, interview the persons involved and any witnesses. They also obtain copies of depositions or other materials generated in any lawsuits which have been initiated between the parties, and in general obtain any relevant information bearing on the case. During the process, they can and do seek the advice of the prosecuting attorney assigned, and the case advisor. On occasion, the investigators conduct surveillance and undercover operations, where they pose as clients or patients. The Department may issue investigative subpoenas under Wis. Stat. § 440.03(4). Administrative search warrants are also available in Pharmacy Examining Board cases, under Wis. Stat. § 961.52, but are very rarely used. Some boards have express rules requiring their licensees to cooperate with investigations, others do not. The Medical Examining Board has authority to order its licensees to submit to physical, mental, and professional competency examinations during the investigative stage, Wis. Stat. § 448.02(3)(a). The investigators do not have traditional law enforcement powers such as arrest, although those assigned to Pharmacy Examining Board cases could be granted such powers under Wis. Stat. § 961.51(1), if that board chose. The Division's investigators carry official photo identification cards, and police-style badges, with them whenever they go out into the field, and have business cards.
The Division, as part of a government agency, is permitted to see what would otherwise be confidential files and records. The most important of these is patient healthcare records, which may be obtained without patient consent under Wis. Stat. §146.82(2)(a)5. This includes records of both respondents and patients/clients of respondents. This power is not changed by HIPAA, which contains an exception for state-mandated disclosures.
The current administration believes this does not include mental health and alcohol/drug treatment records which have special protection under federal (and conforming state) law, or AIDS tests. Thus, the investigator is not currently given the power to request mental health, alcohol and drug abuse (AODA) treatment, or AIDS testing records, without patient consent. During my time with the Department, I took the position that we did have authority to obtain mental health and AODA records under current law, so the position taken by the current administration is subject to change.
There is a substantial variation between boards in what constitutes grounds for discipline, and therefore what is investigated. In some cases, the statute sets forth a number of grounds, and in others such matters are handled entirely by administrative rule. The various grounds for discipline are generically termed "unprofessional conduct" which is a term of art and should not be taken as a comment upon the actions of the respondent. Even such clearly non-culpable conduct as having Alzheimer's disease is "unprofessional conduct" under the rules of most boards, because it renders the practitioner unable to practice with skill and safety to the patient and public.
It is also important to note that most boards have rather broadly written standards which would clearly not pass muster if they were part of the criminal code. The courts have uniformly ruled in Wisconsin that these rather generally worded rules and statutes are sufficient for disciplinary purposes (e.g. Gilbert v. Medical Examining Board, 119 Wis.2d 168, 349 N.W.2d 68 (1984)), although they are periodically challenged anew. In general, any substantial departure from the standard of practice (i.e. gross negligence), practicing while impaired, sex with a client, lying or fraudulent conduct, being disciplined in another jurisdiction, committing a crime related to the profession, violating a board order, and participating in unlicensed practice will result in discipline for all licensees. In general, the Department and boards do not handle fee disputes, although some boards do have rules prohibiting excessive fees or treatment, and those cases are investigated.
At some point in the case, the investigator will feel that the case is ready for either prosecution or closing, i.e. that discipline should be pursued or that the respondent will not be disciplined. This determination may be made at any time. When this point is reached, a memo is prepared summarizing the file, and typically the prosecutor is asked for a recommendation. The memo and file materials are then sent to the case advisor. If the determination is “close the case,” the case is put on the agenda for the next board meeting. These portions of the meetings are conducted in closed session. In most cases, the boards accept these recommendations and vote to “close” the case. In a few cases, more information is requested, or the matter is referred for prosecution.
There is no express statutory authority for a board to simply "close" a case, and in fact this procedure does not prevent a board from reopening an investigation when new evidence is received, or merely upon reconsideration. Case "closure" is merely an administrative method of organizing the caseload of the Division, and filing that case file in an inactive status. Cases are "reopened" after such "closure" with little formality, particularly if a new complaint comes in about that licensee. What was seen as an isolated incident is often reinterpreted as a pattern of conduct, if additional cases come to light.
Next, I will discuss what happens when a case is not closed, but is moved to the prosecution stage.
If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown, LLP.
