Virginia Adjudication Process Policy for Disciplinary Actions

DEPARTMENT OF HEALTH PROFESSIONS THE ADJUDICATION PROCESS August, 2022

DEPARTMENT OF HEALTH PROFESSIONS THE ADJUDICATION PROCESS First Edition, June 16, 1997 Second Edition, October 13, 1998 Third Edition, October 28, 2002 Revised August 2022

CHAPTER 1 - OVERVIEW 1 CHAPTER 2 - RECEIPT OF INITIAL REPORT 6 CHAPTER 3 – INVESTIGATIONS 8 CHAPTER 4 – INSPECTIONS 9 CHAPTER 5 - PROBABLE CAUSE DETERMINATION 11 CHAPTER 6 - EXPERTS AND CONSULTANTS 13 CHAPTER 7 - INFORMAL CONFERENCES 14 CHAPTER 8 - FORMAL HEARINGS 17 CHAPTER 9 – ORDERS 19 CHAPTER 10 - ENFORCEMENT OF ORDERS 21 APPENDIX - DEFINITIONS 23

CHAPTER 1 - OVERVIEW The Department of Health Professions (“Department”) and the Health Regulatory Boards (“Boards”) are required by statutory mandate to take appropriate action against practitioners or organizations to ensure the protection of the public. The general statutory mandate provides the Department with the authority to investigate possible violations of a Board’s basic law (practice acts or regulations), and provides the Boards with authority to enforce these laws by revoking, suspending or restricting a license if a violation is proven. In addition to the general statutory mandates and a Board’s basic law, the disciplinary process is governed by the Virginia Administrative Process Act, Virginia Code § 2.2-4000 et seq., by the provisions of law generally applicable to the regulation of professions and occupations, and by court decisions interpreting these laws. Both the Department and the Attorney General’s Office provide significant resources to support the Boards in their quasi-judicial role of hearing charges of misconduct which have been made against a regulated person or entity. This manual is intended to outline the processes used by the Department and the Boards to meet this important responsibility and to be of assistance to those involved in the case adjudication process. Any and all statements provided herein shall not be construed as an official policy, position, opinion or statement of the Department of Health Professions. The information contained herein does not constitute and shall not be construed as legal advice. Please consult an attorney regarding any legal questions related to state or federal laws and regulations, including the interpretation and application of the laws and regulations governing professions regulated by the Department of Health Professions. Under no circumstances shall the Department, its members, officers, agents, or employees be liable for any actions taken or omissions made in reliance on any information contained in this publication. The Case Adjudication Process Receiving Complaints and Reports Consistent with statutory duties of the Director of the Department (“Director”), all reports received by the Department that may allege misconduct are referred to the Complaint Intake Unit of the Department. All information is reviewed to determine if a violation of law or regulation may have occurred. Experience has demonstrated that hundreds of reports are made each year that do not warrant an investigation. If a report is accepted for investigation it is given a priority, recorded in the agency’s computer tracking system and assigned to an investigator. The Investigation It is the responsibility of the Department’s Enforcement Division to conduct an investigation by interviewing potential witnesses, obtaining copies of relevant documents and obtaining any other relevant evidence.

Due to the large number of matters to be investigated, the Department utilizes a case priority system to determine which types of cases receive the most expeditious attention. This system is based on the real or potential danger to the public health or safety, as indicated by the information provided to the Department. The priority level of a case may be changed at any time new information is received. An investigator may interview the source of the initial report. All witnesses or persons with pertinent information will be interviewed. As well as collecting and reviewing relevant documents, the investigator will interview the respondent (the person being investigated). The results are fully documented as a written report, which is submitted to the appropriate Board. Cases that document unlicensed activity are presented to the appropriate Commonwealth’s Attorney for consideration of prosecution as a criminal matter. At the request of the Department, the Attorney General’s Office may seek an injunction to enjoin unlicensed practice. Determining Probable Cause Upon receipt of a report of investigation, the Board conducts a review to determine if probable cause exists and charges should be issued against the respondent. Each Board has a somewhat different procedure for making such a determination. The process used must be fair, unbiased and in compliance with law. If probable cause is found, the result is typically that a notice of informal conference is issued, or that a pre-hearing consent agreement is reached with the respondent. If probable cause is not found, the source and the respondent are so notified. Summary and Mandatory Suspensions Under certain circumstances where the conduct of a respondent represents a “substantial danger to the public health or safety,” a Board may meet and summarily suspend a license, certificate or registration. If a good faith effort to assemble a quorum has failed, the Board may meet by telephone conference call. If the Board votes to suspend a license, it must also institute proceedings for a formal hearing. Therefore, in these circumstances, an informal conference is not held. A Board may also summarily restrict a license, certificate, or registration in this manner, to prevent a practitioner from performing certain acts that pose a substantial danger to public health or safety. In this case, the Board must thereafter hold an informal conference within a reasonable time of the summary restriction. Also, the law provides for suspension of a license by the Director when a respondent has been convicted of a felony; has had his license revoked or suspended in another jurisdiction and not reinstated; has been adjudged legally incompetent; or pays for a license with a dishonored check. Lastly, under certain circumstances, a court may suspend a license for non-payment of child support. Consent Orders A pre-hearing consent Order is an agreement between a Board and a respondent to settle a case without having to conduct an informal conference or a formal hearing. Consent Orders are

typically offered when the respondent admits to the facts or when the issues are clear. A suggested consent Order that contains findings of fact, conclusions of law, sanctions and a waiver of rights to proceedings is prepared and presented to the respondent. If, and only if, the respondent agrees to the settlement offered, the consent Order may be entered by the Board. When the consent Order is entered, the case is closed. The benefits of this tool include a rapid settlement and avoidance of costly proceedings. While consent Orders are generally offered before an informal conference or formal hearing is scheduled, they may be used after a notice has been issued and before a Board has rendered a decision. Confidential Consent Agreements (“CCA”) A Confidential Consent Agreement (“CCA”) is a written agreement between a Board and a respondent that recognizes that the respondent engaged in minor, unintentional misconduct. A CCA is prepared, presented, and processed in the same way and has the same effect of closing a case as a consent Order. However, a CCA is not considered a disciplinary case. It is required to remain confidential but may be considered by the Board in any future disciplinary proceeding. Advisory Letters In cases where a Board has concerns about a licensee’s practice but chooses not to institute disciplinary action, the Board may send the licensee an advisory letter. This is a confidential letter to a licensee who has been the subject of an investigation, informing the licensee that the case is being closed without any disciplinary action, but suggesting that the licensee examine certain portions of his or her practice in light of certain specific statutes or regulations. Informal Conferences The Virginia Administrative Process Act provides for two types of proceedings, informal fact-finding conferences and formal hearings. An informal conference is required except in a few instances specifically mandated by law (i.e., following summary suspensions and mandatory suspensions). Most allegations of misconduct are resolved after the informal conference. At an informal conference, a special conference committee (“committee”), consisting of at least two Board members, meets with the respondent accused of a violation. Prior to the convening of an informal conference, the respondent receives a notice which contains the specific allegations and violations asserted by the Board. The respondent receives all information on which the committee may rely in making a decision. The source of the information that led to the investigation is notified of this session and may attend; committee members may ask him questions but cannot compel him to answer. Informal conferences are open to the general public, but may be closed pursuant to the Virginia Freedom of Information Act, Virginia Code § 2.2-3700 et seq., to discuss medical/mental health records. If the committee believes there is insufficient evidence to substantiate a violation of law or regulation, the matter is dismissed. If the committee believes there is evidence that the respondent committed a violation of law or regulation, the committee may enter an Order which contains

findings of fact, conclusions of law and a disciplinary action/sanction. A special conference committee may impose one or more of the following sanctions: • place the respondent on probation with terms; • reprimand the respondent; • modify a previous Order; and/or • impose a monetary penalty. Additionally, the committee may agree that suspension or revocation of the respondent's license is justified. In such case the matter may be referred to the full Board for a formal administrative hearing, or the committee may offer the respondent a consent Order for suspension or revocation. If the respondent agrees to the suspension or revocation of the license, this consent Order will be presented to the full Board for entry. At the conclusion of the informal conference, the decision of the committee is announced, fashioned in writing and served on the respondent. If an Order is entered and mailed, the respondent has 33 days to decide to accept or reject the Order. Rejection of the Order of the informal conference will cause the Order to be vacated. When a decision is vacated, the matter is referred to the full Board for a formal administrative hearing. An informal conference may also be conducted by an agency subordinate. Rather than issuing an Order, the agency subordinate renders a recommended decision consisting of recommended findings of fact, conclusions of law, and disposition. This recommendation is then presented to the Board for final action. The Board may accept the recommendation and enter the Order, modify and enter the Order, reject the recommendation and issue a revised Order, or set the matter for a formal administrative hearing. The Formal Hearing Should a case be referred to a formal hearing, the process begins again with notice to the respondent. A formal hearing may be conducted by a hearing officer, a panel of the Board or the full Board. Committee members who participated in the informal conference are excluded from the subsequent formal hearing. A formal hearing is an administrative proceeding similar in many ways to a trial. It is open to the public and all parties may call witnesses and introduce evidence. The Board decides whether the accused has violated a law or regulation, and if so, it imposes disciplinary action. At the conclusion of the hearing, the decision of the Board is announced. Shortly thereafter, a final Order is served on the respondent. If the respondent wishes to contest the action, he may appeal the decision to the appropriate circuit court. Judicial Review A respondent has the right to appeal a Board’s decision to a circuit court. The circuit court may affirm the Board’s decision, or suspend or set it aside and remand the matter back to the Board for further proceedings.

The respondent may further appeal the circuit court’s decision, as a matter of right, to the Court of Appeals. The Court of Appeals may affirm the Board’s decision, or suspend or set it aside and remand the matter to the Board. A further appeal is to the Supreme Court of Virginia, if certain conditions are satisfied. Roles of Support Staff The Enforcement Division of the Department receives reports of potential violations of law or regulation, evaluates and records such information, conducts investigations and reports the investigative findings and evidence to the Board for a probable cause determination. The Enforcement Division also conducts inspections for the Boards of Funeral Directors and Embalmers, Pharmacy, Dentistry, and Veterinary Medicine. The Enforcement Division is the largest unit within the Department, handling cases for all of the Boards. Staff includes case intake analysts, investigators, inspectors, and support personnel. Field investigators and inspectors are located throughout the Commonwealth. The Administrative Proceedings Division of the Department is responsible for preparation of notices (specific written allegations of misconduct) provided to a respondent, presentation of facts and evidence at informal conferences and formal hearings, and preparation of Orders. The Director and Deputy Directors of the Administrative Proceedings Division and the Adjudication Specialists may be certified by the Office of the Attorney General to provide such legal service. In recent years, the Administrative Proceedings Division has facilitated the conduct of thousands of such proceedings. An Adjudication Specialist who participates in closed session after an informal conference will not be involved in the case at the conclusion of the informal conference beyond drafting the decision document. If a case moves to a formal hearing, an Adjudication Specialist who did not participate in closed session will handle the case at formal hearing and will not consult with the Adjudication Specialist who participated in closed session. The Attorney General’s Office is by law the legal representative of all state agencies including the Boards. In certain cases, the Attorney General’s Office will assign a prosecutor to present a matter at the administrative proceeding in lieu of Administrative Proceeding Division staff. In all instances, the Attorney General’s Office remains as counsel to a Board. Board counsels, who function separately from those who prosecute cases, advise Boards on matters of law and represent Boards in court. The Compliance Case Manager(s) for each Board monitor respondents’ compliance with any terms imposed by an Order of the Board.

CHAPTER 2 - RECEIPT OF INITIAL REPORT All information received by the Department that indicates or alleges a possible violation of law or regulation is referred to the Complaint Intake Unit of the Enforcement Division. The complaint form can be obtained upon request to the Case Intake Unit or through the DHP website at Virginia Department of Health Professions - Enforcement Division. The completed complaint form can be submitted electronically, by fax, or by mail. The toll-free number, 1-800-533-1560 (Virginia only), can be used to obtain assistance with the complaint process. Complaints may also be submitted in person during normal business hours. A computerized system is used to track all cases investigated by the Enforcement Division. Preliminary Investigation (Case Intake) The Complaint Intake Analyst conducts preliminary investigations by viewing reports and complaints to determine if there is a possible violation and if the agency has jurisdiction over the matter. If the Intake Analyst requires additional information to make a determination, an initial investigation is instituted. Various types of records and documents may be obtained, interviews may be conducted by telephone, or correspondence may be generated to gather information to assist in making the initial determination. Matters that do not warrant further investigation If the Intake Analyst determines that the information does not appear to warrant further investigation, the information is referred to the appropriate Board for review. If the Board concurs with the Intake Analyst’s recommendation, the matter is not further investigated. If the Board determines that the matter requires further investigation, it is returned to the Enforcement Division with an explanation of the Board’s specific request. The source of the information is notified by the Intake Analyst, in writing, of the disposition of the case. DHP and its Boards do not have the legal authority to Order reimbursement or award damages, nor do they have authority to investigate complaints about business practices over which they have no jurisdiction. If appropriate, the source of the complaint may be referred to another agency or organization for assistance. Matters warranting further investigation When the Intake Analyst determines that information indicates a possible violation of law or regulation, a case is docketed for further investigation. A report form is completed and the information is entered into the licensing database. The database system automatically assigns a case number and links the case to the respondent’s licensing information. Computer codes are also assigned which identify other information about the case such as the nature of the complaint,

source category and method received. Additionally, each case is assigned a priority code according to the nature and severity of the alleged violation. Priority System A Priority A designation is assigned where an individual may have committed an act or is highly likely to commit an act that constitutes significant and substantial danger to the health or safety of any person. Such conduct could cause substantial harm and would warrant a summary suspension or restriction. A Priority B designation is assigned where an individual may have committed a harmful act to another person but does not pose an imminent threat to public safety. A Priority C designation is assigned where an individual may have committed an act that could be harmful or is considered substandard. A Priority D designation is assigned where an individual has committed an act that does not harm the patient but may result in the loss of property, mislead a patient or cause inconvenience. Processing The case is processed by the intake staff and forwarded to the appropriate supervisor for assignment to an investigator. Unless the source of the complaint was anonymous, the source is notified in writing that the report will be investigated and is provided with the case number for reference purposes. The source is kept informed of the status of the case throughout the adjudicatory process.

CHAPTER 3 – INVESTIGATIONS Depending on the nature and severity of the case, the Department will conduct either an administrative or a field investigation. Administrative investigations are conducted primarily by telephone and correspondence by investigators located at the Department’s central office. Field investigations are conducted by investigators based in regional units throughout the Commonwealth. Field investigations may include face-to-face interviews with the parties involved in the case as well as inspections of facilities, sites, or records. All investigators and inspectors are sworn personnel, duly authorized by the Director to conduct investigations and inspections, in accordance with Virginia Code §§ 54.1-2506 and 54.1-3308, respectively. The Department has the authority to issues subpoenas for records and other physical evidence; investigators and inspectors have the authority to serve and execute such subpoenas. Because cases may involve violations of criminal law, local or state law enforcement agencies may conduct a criminal investigation concurrent with the Department’s investigation of regulatory violations. The Department’s Enforcement Division may conduct a joint investigation with other law enforcement agencies, and the findings of the criminal investigation may be made part of the Department’s investigative report. Upon completion of an investigation, the investigator prepares a written report which identifies the source (except if the source was anonymous) and respondent, describes the nature of the respondent’s alleged misconduct and cites the possible regulatory or statutory violation. The investigative report contains a summary of the investigation, documentation of the interviews conducted, and all evidence obtained during the investigation, such as patient records, patient x-rays, correspondence, and inspection reports. The complete investigative report is forwarded to the appropriate Board for review and probable cause determination. Any reports, information, or records received and maintained by investigators on behalf of the Boards in connection with possible disciplinary proceedings are confidential, pursuant to Virginia Code § 54.1-2400.2. Such information is not subject to disclosure under the Virginia Freedom of Information Act. Virginia Code § 54.1-2400.2 authorizes disclosure only in limited circumstances. For example, once the Board has issued a notice of possible disciplinary action, the respondent is provided a copy of the investigative report and any other materials the Board may rely on in making a decision.

CHAPTER 4 – INSPECTIONS The Director is authorized by Virginia Code §§ 54.1-2505(9) and 54.1-2506 to enforce a Board’s statutes and regulations and to inspect any office or facility operated by, owned by or employing individuals regulated by a Board. Inspections of facilities are a tool that Boards may use to ensure that practitioners are competent and are practicing in compliance with statutes and regulations. Inspections may be conducted periodically as a means to monitor the performance and competence of all practitioners whose practice is subject to inspection. Four Boards within the Department have formal inspection programs: • Funeral Directors and Embalmers; • Pharmacy; • Veterinary Medicine; • Dentistry. The Department, in conjunction with the Boards of Funeral Directors and Embalmers, Pharmacy, Veterinary Medicine and Dentistry, has developed detailed Inspection Plans. These Inspection Plans establish procedures for selecting, conducting and reporting inspections of establishments licensed by the Boards. Also, the plans outline in detail the following: • types of facilities subject to inspection (e.g., pharmacies, drug wholesalers, drug manufacturers, small and large animal veterinary establishments, , dentists who hold permits to administer conscious/moderate sedation and deep sedation/general anesthesia, oral and maxillofacial surgeons who hold cosmetic procedure certificates, etc.); • types of inspections (e.g., new/change of location, routine, reinspection, quality assurance review, etc.); • inspection items (e.g., sanitation, equipment, records, etc.); • conduct of Inspectors during inspection; • frequency of inspections; • selection of facilities for inspection; • inspection costs; and • inspection report forms. All inspection results are recorded on forms approved by the Boards. Upon completion of each inspection, the Inspector reviews the inspection report with the practitioner (one exception to this procedure is for inspections conducted for the Board of Dentistry). Once the review is complete, the Inspector has the practitioner sign the inspection report, and a copy is left with the facility. If the inspection detected any deficiencies, a compliance notice is completed by the Inspector and left with the facility. A copy of the compliance notice is to be submitted to the appropriate Board by the practitioner within 14 days of the inspection, indicating what actions have been taken to correct the deficiencies. In certain cases, the Board of Pharmacy has delegated authority to inspectors to offer a pre-hearing consent Order along with the deficiency report at the

conclusion of the inspection. The Board of Pharmacy determines monetary penalties for deficiencies found during inspections based on Guidance Document 110-9. All inspection reports are reviewed by the Boards for compliance and Board action. The Board may take the following actions: • take no action; • request corrective action; • issue an advisory letter; • offer a confidential consent agreement or pre-hearing consent Order; • request a re-inspection; or • conduct an informal conference.

CHAPTER 5 - PROBABLE CAUSE DETERMINATION When a Board receives the investigative report from the Enforcement Division, a preliminary review of the case is made to determine whether probable cause exists to proceed with an administrative proceeding on allegations that one or more of the Board’s statutes or regulations has been violated. Ultimately, in order to take disciplinary action against a licensee, a health regulatory Board must have clear and convincing evidence that a violation of law or regulation has occurred. While one may believe that a practitioner's behavior could be considered improper, unethical or otherwise deserving of corrective action, it may not always be a violation of law or regulation. Board staff receiving the investigative report reviews the file for jurisdiction and completeness. If staff determines that additional information is needed, the case will be returned to the Enforcement Division with a memorandum outlining the required information. However, the investigation is usually complete and, for most Boards, the staff submits the file to at least one Board member to review the report and make an independent recommendation as to probable cause. At times, respondents or their attorneys may contact staff and initiate settlement negotiations. This may result in a pre-hearing consent Order, which may be ratified by a committee, or by the full Board if suspension or revocation is the sanction. The Board may determine that the matter should be resolved differently and may, for example, seek an expert opinion or initiate further fact-finding. If the reviewing Board members independently conclude that there is probable cause to believe a violation of Board law or regulation has occurred, the Board will forward the case to the Administrative Proceedings Division for legal review and preparation of a notice of informal conference. In certain circumstances, the Board may request that an Assistant Attorney General review and approve the notice prior to conducting the informal conference. Some Boards have developed policies whereby Board staff, which may include licensed practitioners, are given the authority to review investigative reports to determine probable cause, in consultation with Board members, if necessary. Regardless of whether the initial review of the case is conducted by Board members or by Board staff, the methods and types of further action available to Boards are as follows: • If the investigation reveals that there is no jurisdiction and/or no probable cause, the complaint may be dismissed and the case closed without any type of disciplinary action taken against the licensee. • If the Board chooses not to take disciplinary action, it may send the licensee an advisory letter stating that the case is being closed without disciplinary action but that the licensee may wish to re-examine certain portions of his or her practice in light of certain specified statutes or regulations. No response to the advisory letter is required. • If the investigative report is complete and there is probable cause, a pre-hearing consent Order may be offered to the respondent in lieu of an informal conference, but the

respondent is advised that they may request an informal conference instead. By agreeing to, or not contesting, the findings of fact, conclusions of law and sanction contained in the consent Order, the respondent acknowledges the validity of the complaint. Once the respondent has signed and returned the consent Order, it is presented for ratification to a committee, or to the full Board if the sanction is suspension or revocation. Some Boards have delegated to their executive director or designated staff the authority to enter Orders for sanctions other than suspension or revocation without the need for ratification by the Board. • If the investigative report is complete and there is probable cause that minor misconduct occurred, the Board may offer the respondent a CCA pursuant to Virginia Code § 54.1- 2400(14). A CCA may be offered only in cases where there is little or no injury to a patient or the public; little likelihood that the misconduct will be repeated; no gross negligence or intentional misconduct; and no likelihood of danger to the health and welfare of patients or the public. A CCA includes the factual basis of the misconduct and may cite the law and/or regulations violated. A CCA is not considered a disciplinary proceeding but is an acknowledgment by the practitioner of the validity of the complaint. The fact that a CCA has been entered into (and the contents thereof) must be kept confidential by both the Board and the respondent, but may be considered by the Board in any future disciplinary proceeding. • An informal conference (see Chapter 7) before a committee or an agency subordinate of the Board may be convened. • A Board may summarily suspend a license when the Board determines that a respondent’s continued practice poses a substantial danger to the public health or safety. If Board staff, or in some circumstances Board officers, determine the case should proceed as a possible summary suspension, the case is forwarded to the Administrative Proceedings Division. After preparing the case for presentation, the Administrative Proceedings Division forwards the information to the Attorney General’s Office for assignment and possible prosecution. If it is agreed that the information should to be presented to the Board as a possible summary suspension, the Board may meet by telephone conference call, provided a good faith effort to assemble a quorum of the Board in person has failed. If the Board decides that an Order should be entered that summarily suspends a practitioner’s license, the Order is served personally on or mailed to the respondent, along with a notice of a formal hearing. The Board may also choose to summarily restrict a license, certificate, or registration when it determines that the continued performance of only a specific aspect of a respondent’s practice poses a substantial danger to the public health or safety. In the case of a summary restriction, the same steps are followed as with a summary suspension, except that an informal conference, rather than a formal hearing, is scheduled.

CHAPTER 6 - EXPERTS AND CONSULTANTS The Boards of DHP are competent to determine the facts of a case and to construct and interpret their own regulations. However, occasionally, a Board may contract with an expert in a particular specialty to review the investigative file and assist the staff in understanding the standard of practice in the specialty and in evaluating the evidence to determine whether a practitioner performed in accordance with that standard. An expert may be called on to testify at any proceeding arising from the matter. Virginia Code § 54.1-2502 permits the Department and Boards to establish a roster of consultants or experts in health care specialties for each Board and to enter into contracts with experts. Individual Boards are responsible for payment of any fees charged by experts for their services. Experts customarily are selected from lists of specialists compiled by the respective specialty professional societies and are typically located in a geographical area different from where the complaint originated. Generally, an expert is limited to reviewing the material contained in the investigative file and does not interview the respondent. The contract with the expert provides that the expert will: • be available to work with a Department investigator to develop and present evidence of the alleged violation; • review and evaluate a completed investigative report and other supporting material indicating the standard of practice rendered by the subject practitioner in treating patients; • render in writing a well-documented expert opinion regarding the standard of practice provided by the subject practitioner on a patient-by-patient basis; • assist the staff in preparing for any disciplinary proceedings which are brought against the subject practitioner by the Board; and • provide expert testimony on behalf of the Board in any administrative or court proceeding arising from the matter.

CHAPTER 7 - INFORMAL CONFERENCES Informal conferences, as described in Virginia Code §§ 2.2-4019, 2.2-4021 and 54.1-2400(10), provide for case resolution without the formalities of a trial-like procedure. These conferences are public proceedings, held before a committee of a Board. The informal conference gives the respondent the opportunity to discuss with the committee the allegations stated in the Board’s notice and the evidence contained in the investigative file. In all disciplinary matters and proceedings, the burden of proof rests with the Commonwealth to establish clear and convincing evidence that the respondent violated relevant law(s) or regulation(s). An exception is cases involving applicants for initial licensure or reinstatement, who bear the burden of proof to establish evidence that they meet eligibility requirements and are safe and competent to practice. If a Board finds probable cause to believe that an applicant has violated relevant law(s) or regulation(s), the Commonwealth bears the burden of proving such allegations. The committee may take any of the following actions: ● Order the respondent to undergo a psychological/chemical dependency evaluation if there is probable cause to believe that they may be unable to practice with reasonable skill and safety to patients because of excessive use of alcohol or drugs or physical or mental illness. The informal conference will be reconvened upon receipt of the evaluation to take further action; • Offer a consent Order, if the evidence warrants suspension or revocation of the respondent’s license, which the respondent may accept. If accepted by the respondent and ratified by the Board, the consent Order will resolve the matter without the need for further administrative proceedings; • Enter an Order imposing a sanction, such as a reprimand, probation, and/or monetary penalty. Terms and conditions of probation appropriate to the violation are implemented by Boards to be remedial and to encourage the practitioner’s further education or rehabilitation; • Exonerate the respondent and dismiss the case; • Modify a previous Order; • Reinstate the practitioner’s license; • Grant or deny an application for licensure; • Grant an application for licensure and impose a sanction; or • Refer the matter to the full Board for a formal administrative hearing. Informal conferences offer a timely, less costly, less adversarial means of adjudication of disciplinary matters, and most cases are resolved at this level. Respondents have the following rights with respect to informal conferences: • to receive reasonable notice of the date, time, and location of the proceeding; • to receive reasonable notice of the allegations of misconduct; • to receive copies of all documentation or information on which the committee may rely in making its decision; and • to be informed, briefly and in writing, of the action that the committee is authorized to take.

The respondent may choose to be represented by counsel at the informal conference. The Administrative Proceedings Division will assign an Adjudication Specialist to prepare the case for the informal conference, and the Board may choose to have a prosecuting Assistant Attorney General assigned to the case and to attend the proceeding. Staff’s function at an informal conference in public session is to assist Board members to determine whether the allegations are supported by the evidence and to take minutes. Informal conferences take place at the main office of the Department of Health Professions, in Henrico County, Virginia. Pursuant to Virginia Code § 2.2-4003, venue for administrative proceedings is where the agency has its principal office, unless the parties agree otherwise. Board members participating on a committee for informal conference proceedings may be chosen based on their field of interest, their location or their representation of specific disciplines within the practice. For some professions, a member of an advisory Board may also participate in an informal conference. Committee and advisory Board members who participate in an informal conference proceeding may not participate in any subsequent formal hearing regarding the same matter, as they are considered “tainted.” The disqualifying factor is not a general knowledge, but rather a particular personal knowledge of the facts of the case as presented at the informal conference proceeding, beyond that which the Board as a whole is aware. Committee members are disqualified only if they have met with the respondent. Following the discussion of the allegations with the respondent, the committee may enter into a closed session with the staff to discuss the allegations and evidence in the investigative file and presented at the conference. In the closed session, staff’s function is limited to assisting the committee in analyzing the evidence, laws, and regulations, completing any applicable Sanction Reference Points documents, and developing the Findings of Fact and Conclusions of Law that will be included in an Order reflecting the committee’s decision. Staff do not advocate any specific finding or sanction. It is the responsibility of the committee to determine if a violation has occurred by applying the relevant statutes and regulations to the factual evidence. Upon returning to open session, the committee makes a motion which embodies its findings, with the same information to be put in the form of a written Order and mailed to the respondent. The respondent also is advised of the appeal process in the Order. When an Order is entered and mailed, the respondent has 33 days to advise the Board, in writing, of a request for a formal hearing. Upon a timely request for a formal hearing, the informal conference Order is vacated and the case is scheduled for a formal hearing before the Board. When a consent Order is offered, the respondent may accept, submit a counter-offer, or reject it and exercise his right to a formal hearing. If the consent Order is accepted and ratified by the Board, the case will be closed when the consent Order is entered. If the respondent rejects the consent Order or fails to respond in a timely manner, the case will be scheduled for a formal hearing before the Board. An Adjudication Specialist who participates in a closed session during an informal conference will not be involved in the case at the conclusion of the informal conference beyond drafting the document reflecting the committee’s decision. If a case moves to a formal hearing, an Adjudication Specialist who did not participate in the closed session will handle the case at formal

hearing and will not consult with the Adjudication Specialist who participated in the closed session. An informal conference may also be conducted by an agency subordinate of a Board pursuant to Virginia Code §§ 2.2-4019 and 54.1-2400(10). After conducting an informal conference, an agency subordinate will render a recommended decision to the Board, similar to a hearing officer. An informal conference conducted by an agency subordinate is generally similar to one conducted by a Board committee. The agency subordinate has 90 days within which to render recommended findings of fact, conclusions of law, and decision. This recommendation is then sent to the respondent and presented to the Board for final action. The respondent may submit objections to the recommended decision. When a Board takes final action on a recommended decision, that recommended decision becomes an Order. When an Order is entered and mailed, the respondent has 33 days to advise the Board, in writing, of a request for a formal hearing. Upon a timely request for a formal hearing, the Order based on the agency subordinate’s recommended decision is vacated and the case is scheduled for a formal hearing before the Board.

CHAPTER 8 - FORMAL HEARINGS The purpose of formal hearings, as described in Virginia Code §§ 2.2-4020, 2.2-4021 and 54.1-110, is to take evidence regarding allegations through an adversarial, trial-like process. This type of proceeding must be conducted when it is required by the basic law, or when the informal procedures under Virginia Code §§ 2.2-4019 and 2.2-4021 were not utilized or failed to dispose of a case by consent Order or Order pursuant to Virginia Code § 54.1-2400(10). Formal hearings are required following summary suspensions or when a practitioner seeks reinstatement of a license after mandatory suspension. However, following a summary suspension, a respondent may consent to the continued suspension of his license and forgo a formal hearing. Formal hearings may be convened even though a respondent’s license has expired (as long as the respondent still has the right to renew the license according to the appropriate Board’s regulations) or was surrendered. The unilateral surrender of a license does not deprive a Board of the authority to conduct a formal hearing and to render appropriate sanctions against a respondent. Parties to a formal hearing are provided with the following rights, as detailed in Virginia Code § 2.2-4020: • to receive reasonable notice of the date, time, place, and nature of the hearing ; • to have notice of the basic law or laws under which the Board may exercise its authority; • to have notice of the matters of fact and law asserted or questioned by the Board as contained in the Statement of Allegations; • to be accompanied and represented by legal counsel; and • to subpoena witnesses and documents; to submit oral and documentary evidence and rebuttal proofs; to cross-examine the Commonwealth’s witnesses; and to have the proceedings completed and a decision made with dispatch. As with an informal conference, an Adjudication Specialist reviews the record and prepares a notice. Subsequent to this review, the case will be forwarded to the Attorney General’s Office for assignment to an Assistant Attorney General for review and approval of the notice. The Assistant Attorney General may retain the case for prosecution on behalf of the Commonwealth, or refer the matter back to the Department for presentation by the Adjudication Specialist pursuant to Virginia Code § 2.2-509. As with informal proceedings, unless the parties agree otherwise, the venue for formal hearings is the city or county where the agency maintains its principal place of business, as stated in Virginia Code § 2.2-4003. A formal hearing may be conducted before a quorum or a panel of the Board, pursuant to Virginia Code § 54.1-2400(11). The presiding officer at a formal hearing is a Board member designated for that purpose. The presiding Board member is empowered to administer oaths, receive evidence, and regulate and expedite the course of the formal hearing with the assistance of an Assistant Attorney General who serves as counsel for the Board.

At a formal hearing, preliminary motions may be made, opening statements summarizing the facts may be given, testimony may be taken by both direct examination and cross-examination of witnesses called on behalf of the Commonwealth and the respondent, documentation may be offered for the record, and parties may make a closing statement to the Board. All evidence is transcribed by a court reporter to establish a formal record of the proceeding. At the conclusion of all testimony, the Board will enter executive session to make findings of fact and conclusions of law and to determine a sanction. The decision of the Board is determined by applying the relevant basic law under which the Board operates to the evidence presented in the record. Once a decision has been reached, the Board returns to open session and announces its decision. The decision, together with the Board’s Findings of Fact and Conclusions of Law, is put in a written Order and mailed to the respondent. Sanctions for each violation may be levied separately or in combination, and may include a reprimand, a monetary penalty, probation, or suspension or revocation of a license.

CHAPTER 9 – ORDERS A Board’s disposition of a case involving violations of law or regulation by a respondent is documented in the form of an Order. An Order may result from a disciplinary proceeding or from a negotiated settlement in lieu of further disciplinary proceedings. An Order following a disciplinary proceeding, such as an informal conference or formal hearing, constitutes a Board’s case decision, as defined in Virginia Code § 2.2-4001. A consent Order between a respondent and a committee or Board, whether entered into prior to or in lieu of further disciplinary proceedings, also constitutes a case decision. Characteristics of an Order Orders are prepared by the Administrative Proceedings Division, using language fashioned by the Board at a disciplinary proceeding or, in the case of a negotiated consent Order, agreed upon by the parties. Orders arising out of formal hearings are reviewed and approved by the Assistant Attorney General acting as Board counsel. An Order is entered and becomes effective on the date it is signed by either a Board officer or a designated staff member on behalf of the Board. Orders generally contain the following sections: an introductory section, a notice section (if applicable), Findings of Fact, Conclusions of Law, and all sanctions, terms, and conditions imposed on the respondent. Consent Orders also contain a “Consent” section indicating that the respondent consents to the consent Order and waives the right to proceedings pursuant to the Virginia Administrative Process Act. The introductory section includes the title and opening paragraph(s). The title identifies the Board that has jurisdiction over the case and the respondent. The opening paragraph indicates the type of proceeding held and the statutory authority for adjudicating the matter. It includes the date and location of the proceeding and whether it was recorded by a court reporter. It also identifies whether the respondent and/or his legal counsel was present. The “Notice” section identifies the method by which notice of a proceeding was served on the respondent. If the respondent does not appear, this section also recites what happened to the notice sent to the respondent and whether the respondent made any contact with the Board. This section concludes with a finding that adequate notice was provided to the respondent and that the proceeding went forward in his/her absence. The “Findings of Fact” section recites the Board’s decision upon questions of fact in the alleged matter. These findings are made after the Board has considered all the information presented in the case, including investigative report information, documentary evidence, testimony of witnesses, and explanations by the respondent. Findings of fact are typically listed in numbered paragraphs using an outline format, and state the factual findings which are supported by the evidence. The findings of fact may be identical to the allegations cited in the notice for the proceeding, or may be altered to include a contrary fact basis or additional mitigating or aggravating information which supports the Board’s decision.

The “Conclusions of Law” section contains the Board’s determination either that the Board found no clear and convincing evidence of a violation or the specific laws and regulations have been violated based on the Findings of Fact. Together, the Findings of Fact and Conclusions of Law state the factual and legal basis on which the Board bases its decision in a case. The “Order” section documents the Board’s action and sanction imposed. The Board must have the authority to take the specific disciplinary action it Orders. The “Order” section may specify terms and conditions of reinstated or continued practice by a respondent and indicate possible consequences if these terms are violated. Terms may require drug testing, additional education, a monetary penalty, record-keeping and reporting requirements, or physical and psychiatric evaluations. The final paragraphs of the Order indicate that the Order is a public document and provide information regarding how to appeal the Board’s Order. The time allowed to note an appeal begins to run on the date of service of the Order on the respondent. Final Orders and Appeals If the Order has resulted from an informal conference or agency subordinate recommendation, the Order becomes “final” 33 days after the Order is mailed to the respondent, unless a written request for a formal hearing is received by the Board during that time period. Once a timely written request for an appeal to a formal hearing is received, the Order from the committee or recommended decision of the agency subordinate is vacated and a formal hearing before the Board or a panel thereof is scheduled and held. The Order which results from the Board’s decision at any subsequent formal hearing is the final decision and disposition of the case by the Board in the matter. An Order resulting from a formal hearing may be appealed within 33 days from the date of service by mail, and is handled in the judicial system at the circuit court level. An appeal at this level must comply with the procedures in Part Two A of the Rules of the Supreme Court of Virginia. The Order of the Board is not automatically vacated when appealed to the circuit court. Final Orders are matters of public record, according to Virginia Code §§ 2.2-4023 and 54.1-2400.2. A copy of a final Order is usually mailed to the original source of the complaint. While Board Orders are made available to the public, all related disciplinary case information obtained and maintained during the course of an investigation or disciplinary proceeding (such as the investigative report and accompanying records and evidence) is strictly confidential and remains unavailable to the public.

CHAPTER 10 - ENFORCEMENT OF ORDERS Virginia Code § 54.1-2505(8) authorizes the Director to monitor the status of actions taken by the Boards regarding complaints until the closure of each case. The Compliance Case Manager for each Board is responsible for monitoring terms and conditions imposed on a respondent and for reporting to the Board regarding the respondent’s compliance. Receipt of Board Orders imposed on respondent Board Orders that require a licensee to comply with terms or conditions of practice or licensure (other than compliance with the Health Practitioners’ Monitoring Program, or “HPMP”) are forwarded to the Compliance Case Manager for monitoring. Compliance with Orders requiring entry into and compliance with the HPMP is monitored by the Department’s HPMP Manager. When the Order is received, the Compliance Case Manager enters all terms and conditions of the Order into the agency’s disciplinary database, establishes a hard-copy compliance file, and sends an initial contact letter to the sanctioned licensee. Receipt and maintenance of reports required by Board Order The Compliance Case Manager receives, reviews, and tracks receipt of all reports required by an Order. If review of reports reveals no problems, the report is filed in the compliance file. If review necessitates follow-up, the Compliance Case Manager conducts the follow-up, or asks that a Field Inspector or Investigator be assigned to do so. If the follow-up involves allegations or a matter that must be considered in an informal conference, a compliance summary report number is assigned to the case in the agency’s disciplinary database. Upon completion of the requested follow-up, the report or other appropriate form of communication is forwarded to the Board. Frequency of probation report A compliance summary report on each monitored licensee will be conducted and forwarded to the Board when the monitored licensee is considered eligible for release from the terms of the Order; as needed, on a case-by-case basis; when requested by the Board; and as otherwise specified in the Order (e.g., an inspection is ordered within 18 months). Termination of probation Approximately 60 days prior to the date the licensee might be eligible for release from the Order, the Compliance Case Manager reviews the file for compliance and to determine accuracy of eligibility for release, prepares a memorandum or report, as appropriate, and forwards the report to the Board for approval. The Order generally specifies whether probation will end automatically after a certain period of time or whether the licensee is required to petition the Board for release from the terms

of the Order. If there are no allegations that the respondent has violated the Order or new allegations against the licensee that may warrant further disciplinary action, the Board may issue a letter, which has the force of a Board Order, releasing the licensee from the terms of the Order. If it appears that the licensee may have failed to comply with the Order or committed further violations of applicable law or regulation, the Board may issue a notice and conduct further administrative proceedings. Monitoring costs The Board of Dentistry has the authority under Virginia Code § 54.1-2708.2 to recover from any licensee against whom disciplinary action has been imposed reasonable administrative costs associated with investigating and monitoring such licensee and confirming compliance with any terms and conditions imposed on the licensee as set forth in the Order imposing disciplinary action. These costs cannot exceed $5,000. The Board of Dentistry calculates monitoring costs according to Guidance Document 60-17.

APPENDIX - DEFINITIONS Administrative Process Act (APA) – The procedural requirements for promulgating regulations and for deciding cases, found in Virginia Code §§ 2.2-4000 through 2.2-4033. The APA supplements the basic law of the Department and the Boards. Advisory letter – A confidential letter to a licensee who has been the subject of an investigation, informing the licensee that the case is being closed without any disciplinary action, but suggesting that the licensee examine certain portions of his or her practice in light of certain specific statutes or regulations. Agency Subordinate – An individual who conducts informal conferences and renders recommended findings of fact, conclusions of law, and decisions for review by a Board. Appellant – The party who appeals a case decision of a Board to a circuit court for review. Appellee – On appeal, the party who argues against the setting aside or the remand of a Board decision. Basic law – Provisions of Virginia statutes which pertain to specific Boards or the Department. Case decision – any agency proceeding or determination that, under laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit. Committee – See special conference committee Complaint – A report or allegation of misconduct. Confidential Consent Agreement – A non-disciplinary agreement between a respondent and a Board acknowledging minor, unintentional misconduct. CCAs are strictly confidential but can be considered by a Board in future disciplinary proceedings. Consent Order – An Order voluntarily agreed to by both a respondent and a Board. Sometimes called a “pre-hearing consent Order” when it is offered in lieu of an informal conference or a formal hearing. Consent Orders have the same effect as any Order (see below). Docket – The entry of a report into the DHP automated licensing and case tracking system. Includes the assignment of a case number, priority, nature, source and method codes, identification of applicable statutes and regulations, type of investigation warranted, regional assignment, and processing by support staff. Formal hearing – A formal administrative proceeding of litigated issues before a health regulatory Board, which is conducted in accordance with Virginia Code §§ 2.2-4020 and 2.2-4021 of the Administrative Process Act. The parties are the Commonwealth and the practitioner or applicant

alleged to have violated laws or regulations governing their practice. The hearing is conducted before either the full Board or, a quorum or panel of the Board. The formal hearing is a trial-like proceeding, which includes sworn testimony, cross-examination of subpoenaed witnesses, introduction of evidence, and transcription by a court reporter. Informal conference – A fact-finding proceeding conducted by a special conference committee of a health regulatory Board (or by an agency subordinate of the Board) with a respondent or applicant. It may result in one or more of the following actions: exonerate the practitioner; reinstate the practitioner; place the practitioner on probation with terms deemed appropriate; reprimand the practitioner; modify a previous Order; and impose a monetary penalty. The case decision and sanction Ordered at this level are final, unless they are appealed or forwarded to a formal hearing if the practitioner does not agree with the outcome. Licensee – The holder of a right to practice a profession governed by a health regulatory Board (or of a multistate licensure privilege to practice certain professions such as practical or professional nursing and physical therapy). Also includes certificant, registrant, and permittee in this Guidance Document. Notice – A statement of specific charges provided to the respondent who is the subject of a complaint. The notice states the time, place, and nature of the proceeding. Also enclosed with the notice is any information on which a Board will rely to make a case decision. Order – A decision issued by the Department, a Board, or special conference committee of a Board, pursuant to its statutory authority, affecting the license of a practitioner licensed by the Department or the approval or denial of an application for licensure or reinstatement of a license. Party or parties – A person or persons having a direct interest in the subject matter or outcome of a case; one(s) who could assert a claim, make a defense, examine witnesses, or appeal a case decision, i.e., a respondent. Only the respondent may appeal a case decision of a Board of the Department of Health Professions; the Commonwealth has no right to appeal. Probable cause – Reasonable cause; having more evidence for than against. A reasonable ground for belief in the existence of facts as reported. Record of the proceeding – A preservation of the basis for a case decision; an official transcript of a formal administrative proceeding prepared during the hearing by a court reporter, and all evidence entered into the record during the proceeding. Respondent – The person (or facility) being investigated or responding to a complaint. Service – The delivery of a notice of an administrative proceeding, a consent Order, or an Order of a Board to a party which charges the party with receipt of the document and subjects the party to the legal effect of it. Source – An individual or entity that files a complaint or makes a report of an allegation of misconduct.

Special conference committee – A committee, composed of not less than two members of a health regulatory Board, that conducts informal conferences, pursuant to Virginia Code §§ 2.2-4019 and 2.2-4021. Standing – The legal right of a party to assert or enforce legal rights and duties against another. Summary restriction – A Board’s suspension of a portion of a license, certificate, or registration without prior notice or hearing when the continued practice of that portion poses a substantial danger to the public health or safety. Followed by an informal conference. Summary suspension – A Board’s suspension of a license, certificate, or registration without prior notice or hearing when the licensee’s continued practice poses a substantial danger to the public health or safety. Followed by a formal hearing. Vacate – To set aside or render void an Order of a Board or an Order of the Department. Venue – The particular city, county, or geographical location in which a case may be heard and determined.