An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 8

By Attorney Arthur Thexton, Of Counsel

Part 8: How Does the Hearing With the Wisconsin Department of Safety and Professional Services Actually Proceed?

Last time, I talked about formal prosecution and the pre-hearing process; now I will talk about the actual formal hearing, in front of the administrative law judge, and the post-hearing process.

Hearing and Review When a case is not settled, it is heard on its merits (what most lawyers would call "tried") in a hearing room in the Department's building in Madison. The Department has made a policy decision not to hold hearings outside of its Madison office except in the most exceptional cases (such as physical inability of a witness to travel, see Wis. Adm. Code § SPS 2.15(8)). Hearings are generally reported by a court reporter. Transcripts are prepared in all contested cases, and typically the ALJ will require briefs after the filing of the transcript. The burden of proof is the ordinary civil standard, Wis. Stat. § 440.20(3). The ALJ makes a written proposal of findings of fact, conclusions of law, and disciplinary order, together with a narrative opinion. This may be as much as several months after the hearing, depending on the complexity of the case and the workload of the ALJ. The proposed decision will be served, together with an order setting time limits for "objecting" to the proposed decision.

If a party does not approve of any part of the findings, conclusions, or discipline, a written Objection must be filed. Such Objection should state with particularity the portion of the proposed filing objected to. Substitute language should be proposed. A brief or letter should set forth the reasoning for the Objection. The other side may respond in writing to the Objection. Either side may object, and it is common for prosecuting attorneys to do so, even in cases where discipline has been ordered. In all such cases, oral argument may be scheduled before the board, and each board member is furnished with the ALJ's proposal, and the objections (and response to them). The transcript and exhibits are made available at the Board meeting. The case advisor is not permitted to participate in the discussion or deliberation of the case at this point, and leaves the room. Oral argument must be specifically requested, and is usually limited to 15 minutes per side. The decision is usually (but not always) made the same day as the argument. In a case before the Department, these arguments are made before the Secretary of the Department or designee, in person, who then issues all final decisions and orders.

The board (or the Secretary, or designee, who is currently the General Counsel) will issue a written Final Decision and Order, with opinion, reasonably expeditiously. The decision is actually drafted by the board's legal counsel. There is currently one attorney who serves all the boards.

"Appeals" from board orders are to circuit court, by Wis. Stat. ch. 227 review. The Department and boards are defended by the Department of Justice's civil litigation unit, not by the Division's prosecuting attorneys. The Department is without authority to appeal a decision made by a board, except in medical and real estate board cases.

There has been considerable public discussion and criticism of the Department and boards. Depending on one's point of view, cases take too long to investigate, too long to prosecute, and result in either excessive or inadequate discipline. It is important to remember that while the Department staff is responsible for the length of time that investigation and prosecution takes, the Department ultimately has no control over the disciplinary decisions made by the various boards. Conduct which may result in revocation of a physician's license may result only in a suspension for a dentist, or vice versa. Such variance is within the discretion of the boards.

It is also important to remember that the function of licensing is not to assure excellence or superiority in practice, but merely to establish a bare minimum standard, and to allow the marketplace to function above that level. In most cases, disciplined practitioners will be allowed to continue in practice when they have completed some kind of rehabilitation, reeducation, or retesting program that allows them to demonstrate that they are at least as good as the recent inexperienced graduate getting his or her first license. Revocation, like capital punishment, may be publicly popular, but is not shown to be effective as a deterrent or a remedy.

Next time, I will offer some thoughts about resources, or the lack thereof.

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.