The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH

August 13, 1997 97-R-0891

TO:

FROM: John Kasprak, Senior Attorney

You asked for information on the Department of Public Health=s (DPH) or individual licensure boards= (for those health professionals having their own board or commission) hearing and decision making processes concerning complaints brought by a consumer against a licensed health practitioner.

SUMMARY

DPH has a variety of statutorily defined powers and duties with regard to health professions- related boards and commissions. These boards and commissions, including the Connecticut Medical Examining Board and the Board of Examiners of Psychologists, are within DPH (see CGS ∋ 19a-14(a),(b)). DPH is responsible for developing and performing all administrative functions necessary to process complaints against persons licensed by the department (∋ 19a-12(a)(8)). It also is charged with conducting any necessary review, inspection, or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters (∋ 19a-14(a)(10)). DPH must also conduct any necessary investigation and follow-up in connection with complaints regarding persons subject to department licensure or regulation (∋ 19a-14(a)(11)). Finally, DPH can perform any other function necessary to the effective operation of a board or commission and not specifically vested by statute in a board or commission (∋ 19a-14(a)(12)).

COMPLAINT AND HEARING PROCESS

Bringing a Complaint

DPH has a toll-free number (1-800-842-0038) to receive consumer complaints and respond with petition forms. The written complaint is referred to as a petition. The Investigations Unit of DPH primarily receives and investigates complaints based on negligent, incompetent, or illegal actions by the licensee involved. It also gets involved with cases concerning the unlicensed practice of activities that require licensure. DPH is not permitted, by law, to get involved in cases of ethics (e.g. rudeness by a licensee) or cases of business practice (e.g. office hours). Cases involving business practices are referred to the Department of Consumer Protection (DCP).

Assignment to Investigator

Upon receiving a completed petition, the Investigations Unit assigns it to an investigator. The investigator then obtains further information and evidence and can use professional consultants to give opinions on cases. Also, a professional member of a licensing board or commission may be called upon to render an opinion. If that happens, that particular board member cannot sit with the board if that case goes to a hearing.

After the investigation is completed, the case is reviewed by the Chief of Investigations to determine if there is sufficient evidence for the case to go forward. If the evidence is not sufficient to continue, or if the case should be referred to another agency for action, the consumer is sent a letter explaining this. There is no appeal if the case is dismissed because of the administrative nature of the proceedings.

Legal Office Activity/UAPA

If there is sufficient evidence to go forward, the investigative file is forwarded to DPH=s Legal Office. Actions are then taken consistent with the Uniform Administrative Procedures Act (UAPA). Accordingly, the license is notified that there will first be an informal compliance conference to give the licensee an opportunity to show that he is not violating the law and to explore the possibilities of settling the case.

Settlement Requirements and Procedure

The licensee, DPH, and the board must agree on what would be a safe and fair resolution of the case in order for it to be settled. If agreement can be reached, the staff attorney drafts a consent order or consent agreement to be signed by the parties (licensee, DPH) and then presented to the board or commission for approval and the board chairperson=s signature. If the case cannot be satisfactorily settled, the case goes to a formal hearing before the board or commission.

Hearing Process

A DPH staff attorney presents the department=s case; the licensee (respondent) has the right to be represented by an attorney. Both sides can present witnesses and cross-examine the other side=s witnesses. A court reporter records the proceedings. An assistant attorney general is present throughout the hearing to advise the board on matters of law.

Rules of Evidence. An administrative hearing differs from a civil criminal trial, being generally less rigid in its procedures. For example, rules of evidence are more relaxed with Αhearsay≅ evidence admissible.

Communication with Staff and Parties. Before and during a hearing, all board members may not communicate with either the staff attorney handling the case for DPH or the respondent licensee. Also, there should be no communication with any other person interested in the case. All questions or concerns about the case should be addressed to the assistant attorney general advising the board. If a communication occurs between a board member and one of the parties or an other individual related to the case, this is considered an Αex-parte communication≅ (dealing with only one party) that could result in a reversal on appeal.

Matters of Fact

Board members decide matters of fact. The professional and consumer board members each have one vote in the final action. Questions board members generally face in making their decisions include (1) whether certain actions did or did not occur (credibility of witnesses); (2) whether actions were proper or improper (what should a health care consumer expect of professionals licensed in the state); and (3) what is the appropriate penalty, if any (what is fair to the licensee and safe for consumers). While consumer members of the board look to their colleagues for guidance on technical matters involved in the case, generally many of the important and basic questions can be handled by all members of the board, according to DPH.

Possible Disciplinary Actions

Actions taken by the various licensing boards are known as Αdisciplinary actions.≅ The following are the disciplinary actions that may be taken by the boards: (1) revoke a practitioner=s license, or (2) suspend a practitioner=s license; (3) reprimand, (5) place a practitioner on probationary status with terms and conditions, (6) assess a civil penalty of up to $10,000 per count, and (7) restrict or limit a license (CGS ∋ 19a-17).

Proposed Memorandum of Decision

After the board has decided on an action, a proposed memorandum of decision is drafted that includes the findings of fact, a discussion of the issues, and the order or disciplinary action to be taken, if any. The memorandum of decision is then reviewed by an assistant attorney general for legal sufficiency before signing by the board=s chairperson.

JK:tjo

Attachment(s):

- Procedures for Board Hearings (DPH)

- Procedures for Rendering a Decision (DPH)