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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 9
By Attorney Arthur Thexton, Of Counsel
Part 9: Final Thoughts on The Disciplinary Process
Last time, I talked about what goes on during and after a hearing; here are some final thoughts about resources, or the lack thereof.
The Department does not maintain any kind of digest or other research aid for practitioners. Once or twice a year some boards issue an electronic newsletter (the “Regulatory Digest”) which contains information about the profession, licensing changes, fee updates, and (in most cases) a short summary of disciplinary actions taken since the last newsletter; these are posted on the Department’s website. The Division of Legal Services and Compliance maintains paper files of all disciplinary decisions made by each board and by the Secretary. These files are public records. Any person may come read, for example, all the Chiropractic Examining Board decisions for the past 1 or 5 or 10 years. Cases since 1970 are also posted on the Department’s website, dsps.wi.gov, and they can be searched using Google.
In dealing with the Division's prosecuting attorneys, it is appropriate to remember that none of these persons has personal clerical support. There no law clerks or personal secretaries in the Department. Attorneys type their own legal documents. When asking for documents or a response to a proposal, keep in mind that the attorney is likely to have to do all of the legal and clerical work personally, so more time may be required than would be needed from an attorney in private practice who has more support resources.
Records of all cases resulting in discipline are open records under Wis. Stat. § 19.35. Documents within these files may not be open, such as patient healthcare records. Files closed without discipline are also considered open records, on a document-by-document basis.
The Department does not do significant "proactive" or preventative work, other than by auditing trust accounts and inspecting pharmacies and drug manufacturing facilities and barber/cosmetology shops and schools. The process is otherwise entirely "complaint-driven." The Pharmacy Examining Board has a program of involving pharmacies and distributors in "self-inspection" and certification, which is then spot-checked by Department investigators, as their traveling schedules permit.
There is substantial variance in the wording and interpretation of rules between boards, even boards with related occupations such as medicine and nursing. Therefore, interpretations or precedents from one board are not precedent when presenting a case to a different board, although there may be some persuasive value.
Conclusion The Wisconsin Department of Safety and Professional Services and its attached boards regulate many, but not all, of the licensed occupations and business activities in Wisconsin. Disciplinary investigations and prosecutions are carried out by the Division of Legal Services and Compliance, which is the size of a larger county's district attorney's office. Both the general rules of civil discovery, and specialized rules, apply to the investigation and prosecution of these cases.
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.
