Chapter 4 Disciplinary Actions

LibraryMissouri Professional Licensing (2018 Ed.)

Chapter 4

Disciplinary Actions

A. Introduction

B. Due Process

C. Answers and Defenses

D. Informal Settlement

E. Discovery and Evidence

F. Decision of the Administrative Hearing Commission

G. Disciplinary Hearing by a Board

H. Statutory Hearing Before a Board

A. Introduction

The usual disciplinary process is a bifurcated proceeding. First, the board files a complaint with the AHC (Administrative Hearing Commission) to see whether there are grounds for disciplinary action. Section 621.045, RSMo 2016. If the AHC finds cause to discipline a professional license and issues its findings of fact, conclusions of law, and order finding cause to discipline, the next phase is a second hearing, which is held by the board, to decide what discipline should be imposed. Section 621.110, RSMo 2016.

At this hearing, which is a continuation of a “contested” case, the board receives any evidence in mitigation of discipline from the licensee or any other source. The board takes the findings and conclusions of the AHC as true; it does not retry the facts. The board may look at particular portions of the record for further consideration of what discipline should be imposed if the record is cited to by the licensee or board’s attorney. The board then decides the discipline to be imposed and issues its findings of fact, conclusions of law, and decision imposing discipline. The licensee may seek a review of the AHC’s action, the board’s action, or both, once issued, by filing a petition for review in the circuit court. Appeals may also be taken to the court of appeals or, if the matter involves a constitutional question, directly to the Supreme Court.

Parties to an AHC action are limited to the licensees and the board. For example, a medical association is not a proper party to a licensing action because it was created for the promotion of its members’ interests. It has no rights that could be affected, so it is not a real party in interest. State ex inf. Danforth v. Dale Curteman, Inc., 480 S.W.2d 848 (Mo. 1972). But the AHC does allow intervention to occur under its rules, which require there to be an “interest in the action which is different from the general public interest and which cannot be represented adequately by the parties.” 1 C.S.R. 15-3.390(1)(B).

B. Due Process

Under § 621.100.1, RSMo 2016, the board or the Attorney General has the authority to file a written complaint with the AHC. Some boards are given the specific authority to file an emergency action in the AHC for immediate health, safety, and welfare concerns. See, e.g., §§ 340.272, 334.102, and 338.055.4, RSMo 2016. A due process violation requires a deprivation of life, liberty, or property. Lane v. State Comm. of Psychologists, 954 S.W.2d 23 (Mo. App. E.D. 1997).

Procedural due process requires that the complaint specify the basis for disciplining the licensee with reasonable particularity so that the licensee has knowledge and can adequately prepare a defense. Sander v. Mo. Real Estate Comm’n, 710 S.W.2d 896 (Mo. App. E.D. 1986). See also § 621.045.4(1), RSMo 2016, which requires boards to “[p]rovide the licensee with a written description of the specific conduct for which discipline is sought and a citation to the law and rules . . . violated” as well as a copy of the investigation with any settlement offers made before filing with the AHC. In the AHC, a complaint filed by a board must provide sufficient notice of the statute violated and the facts giving rise to the violation. See Moheet v. State Board of Registration for Healing Arts, 154 S.W.3d 393, 397–401 (Mo. App. W.D. 2004), for a review of a complaint and application of this principle.

The hearing process meets procedural due process requirements. All that due process requires is notice, an opportunity to be heard by an impartial decision-maker, and an opportunity to cross-examine witnesses. Mueller v. Ruddy, 617 S.W.2d 466 (Mo. App. E.D. 1981). Because a license is a property interest, procedural due process must be afforded before a license can be revoked. See, e.g., Larocca v. State Bd. of Registration for Healing Arts, 897 S.W.2d 37 (Mo. App. E.D. 1995) (due process is not violated by a delay in bringing an action).

The hearing process before the AHC satisfies due process because an impartial commissioner determines whether there is cause to discipline. Due process requires notice of the proscribed activity and guidelines to be enforced in a nonarbitrary, nondiscriminatory fashion. Even the amendment of a complaint on the day of hearing to add a legal ground for taking disciplinary action when the licensee made no request for continuance or further relief did not constitute an abuse of discretion or failure of due process because the factual allegations were the same. Perez v. Mo. State Bd. of Registration for Healing Arts, 803 S.W.2d 160 (Mo. App. W.D. 1991).

Due process is also required for proceedings before the board. The same considerations apply, but the amount of due process to be afforded can vary with the type of proceeding. State ex rel. Walker v. Mo. State Bd. of Registration for Healing Arts, 926 S.W.2d 148 (Mo. App. E.D. 1996) (notice and presence of the attorney satisfied due process at the probable cause stage of a competency procedure); see also Colyer v. State Bd. of Registration for Healing Arts, 257 S.W.3d 139 (Mo. App. W.D. 2008) (due process was violated when the board incorporated a prior hearing in which Dr. Colyer was not allowed the opportunity to either cross-examine witnesses or present evidence).

C. Answers and Defenses

In the AHC, per Missouri court rules that were adopted under § 536.068.1, RSMo 2016, responsive pleadings are required within 30 days. Responsive pleadings include:

· an answer;
· a motion to dismiss;
· a motion for a more definite statement; or
· any combination of these.

Historically, defenses that have been raised include:

· denial of due process;
· laches;
· estoppel;
· limitations; and
· constitutional issues.

Except for constitutional challenges, most defenses have been largely unsuccessful or have been negated by statutory changes.

Laches, the old remedy of addressing a delay in bringing an action or prosecuting an action when the delay results in a loss of evidence or change, is really no longer an issue in professional licensing. Historically, it was raised unsuccessfully. Perez v. Mo. State Bd. of Registration for Healing Arts, 803 S.W.2d 160 (Mo. App. W.D. 1991). With the statute of limitations now basically three years for professional licensing actions, laches has become impractical as a defense. See § 324.043, RSMo 2016.

With regard to timely decisions, § 536.100, RSMo 2016, requires boards (not the AHC) to issue final decisions in contested cases either within 60 days of hearing or within 180 days of written request for a decision. When there is no final decision, administrative remedies are deemed to be exhausted, and immediate judicial review is available. Id.

Equitable estoppel lies against a governmental body only in exceptional circumstances and with great caution. A board cannot be estopped from taking a second disciplinary action when an earlier trial court in a criminal case took a similar action in suspending a professional’s license as a part of a criminal conviction. Patterson v. State Bd. of Optometry, 668 S.W.2d 240 (Mo. App. E.D. 1984). In a second disciplinary hearing before the Board of Pharmacy regarding presigned prescriptions, the Board could properly consider evidence when it imposed discipline based on other counts and did not impose discipline based on the count that concerned the alleged use of presigned prescription pads in a pharmacy. The pharmacist was estopped from objecting at the second hearing. Mo. Bd. of Pharmacy v. Tadrus, 926 S.W.2d 132 (Mo. App. W.D. 1996).

With the statute of limitations, it is necessary to ascertain when the board had notice of the complaint. If more than three years have elapsed, this can be raised in a motion to dismiss to preserve the licensee’s rights. Discovery may have to be undertaken sometimes to establish when the board actually received notice.

The maxim that constitutional challenges must be raised at the earliest opportunity has little application in the AHC. Constitutional defenses may be raised at the circuit court level in a petition for review. Tadrus v. Mo. Bd. of Pharmacy, 849 S.W.2d 222 (Mo. App. W.D. 1993). The AHC has no authority to decide the constitutionality of statutes, but the court in Schierding v. Missouri Dental Board, 705 S.W.2d 484 (Mo. App. E.D. 1985), suggested that constitutional issues may be and should be raised to present evidence and preserve the issues. The court later distinguished this position in Duncan v. Missouri Board for Architects, Professional Engineers & Land Surveyors, 744 S.W.2d 524, 531 (Mo. App. E.D. 1988). In a declaratory judgment action to find regulations invalid, raising constitutional claims requires designation of the specific constitutional provisions claimed to be violated, not merely pleading that the regulations violate the Constitution. Massage Therapy Training Inst., LLC v. Mo. State Bd. of Therapeutic Massage, 65 S.W.3d 601 (Mo. App. S.D. 2002). Counsel may be better off thinking through the constitutional violation and making specific claims, even at the AHC level.

Although raising constitutional questions may not be required, the legal strategy of preparing a case to be in a position for possible constitutional challenge may require raising...

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