What the statutes mean

One of the frustrations of being a licensed health care provider is that any person can file a complaint against you, whether the complaint is legitimate or not. Because the Department of Regulation; Licensing never knows if a complaint has merit, each complaint must be investigated to determine whether or not the allegations are serious. If a complaint is trivial or has no merit, the complaint is dismissed in a routine manner. If, however, the department determines that the complaint has merit, these rules determine the process the department uses during its investigation.

What happens when the Department of Regulation; Licensing receives a complaint?

When a complaint is received, it is automatically referred to the Division of Enforcement for filing, screening and, if necessary, investigation. The department or the Chiropractic Examining Board generally does the screening. Screening is a preliminary review of the complaint and is important because it is the process used to determine whether an investigation is necessary. Considerations in screening include, but are not limited to:

• Whether the person complained against is licensed. Whether the violation alleged is a fee dispute.

• Whether the matter alleged, if taken as a whole, is trivial.

• Whether the matter alleged is a violation of any statute, rule or standard of practice.

Unfortunately, there are no standards for determining if a complaint is trivial.

What must a complaint contain before it will be acted on by Regulation; Licensing?

A complaint must contain:

• The name and address of the chiropractor complained against and the name and address of the person making the complaint.

• A short statement, in plain language, of what the chiropractor did to break a statute or rule of the chiropractic profession.

• A request by the individual making the complaint for the department to investigate and act against the chiropractor.

• The signature of the person making the complaint.

If a chiropractor agrees that he or she has violated a statute or rule is there an alternative to a formal disciplinary hearing?

Yes. The state would prefer to handle complaints through a settlement conference because this method is less formal and expensive than a formal hearing. At the discretion of the department or examining board, a settlement conference may be held prior to the commencement of a disciplinary proceeding. The department or examining board may decide on this course of action if the information gathered during the investigation presents reasonable grounds to believe that a violation of the laws enforced by the examining board has occurred. Typically, the considerations in making this decision include:

Whether the issues arising out of the investigation of the informal complaint are clear, discrete and sufficiently limited to allow for resolution in the informal setting of a settlement conference.

Whether the facts of the informal complaint are undisputed or clearly understandable from the documents received during investigation.

How does a settlement conference work?

When the examining board decides that an informal settlement conference could be used to settle a complaint, the chiropractor is contacted to determine whether he or she wants to participate in the conference. If they agree, a notice containing a description of the settlement conference procedures is sent to the chiropractor, his or her attorney (if they have one) and any other participants. A settlement conference can not be held without the consent of the chiropractor.

At the settlement conference, the facts of the complaint are discussed as well as the rules or statues that have been violated. Attorneys for the department will explain how the department would like to settle the case. The possible remedies depend on the seriousness of the violation. The chiropractor or their attorney is free to negotiate with the department over the terms of the settlement.

If an agreement is not reached, the oral statements made at the settlement conference may not be introduced into or made part of the record in a disciplinary proceeding. If both sides reach an agreement that imposes discipline on the chiropractor, the agreement is not final until the chiropractor and the examining board have signed it.

If a disciplinary hearing must be held, how much notice does the chiropractor receive?

The hearing notice must be sent to the chiropractor at least 10 days prior to the hearing, unless it is impossible or impractical to do so. If so, a shorter notice may be given but never less than 48 hours in advance of the hearing.

The complaint and all other papers required to be served on the chiropractor may be served by mailing a copy of the paper to the chiropractor at the chiropractor’s last known address. Since the department has completely fulfilled its obligation by sending paperwork to the chiropractors last known address it is very important that a chiropractor always notify the department when they relocate their office or residence.

A chiropractor may be required to file papers with the department. This may be accomplished by mailing or faxing any required paperwork to the examining board office or, if an administrative law judge has been designated to preside in the matter, to the administrative law judge. If a fax is sent, a copy of the paperwork must also be mailed. Mail is considered filed when it is received at the examining board office or by the administrative law judge while faxes are deemed filed on the first business day after receipt by the examining board or administrative law judge. Please note that all the department needs to do is mail their notices to fulfill their responsibilities. A chiropractor has not fulfilled his or her responsibility until the department has actually received the information. To avoid disputes, a chiropractor should consider mailing all correspondence by certified mail, return receipt requested.

What are the elements that should be included in an answer to a complaint?

A chiropractor has 20 days, from the date the complaint was mailed, to answer the allegations of the complaint. An answer to a complaint must state in short and plain terms the defenses to each allegation that was made. The chiropractor must also admit or deny each allegation. If the chiropractor does not have enough knowledge or information to know the truth of the allegation, the chiropractor must state this fact and the department will interpret this as a denial.

The department will ignore a denial unless it directly addresses the allegation. For example, if a person alleges that a chiropractor was practicing while intoxicated, a denial that states that the chiropractor did not have lunch that day is not acceptable. In order to be an acceptable denial the chiropractor would have to deny that he or she were intoxicated. A chiropractor may admit some facts, but deny others; however, he or she must be specific about which facts are being admitted and those that are being denied.

As part of their answer, a chiropractor is encouraged to provide a clear, plain english defense to any of the allegations. If a chiropractor does not address an allegation, the department will interpret that omission as an admission of the allegation.

Who presides over disciplinary hearings?

Disciplinary hearings are presided over by an administrative law judge (ALJ) unless the examining board designates another person. The administrative law judge is an attorney who works for the department. The ALJ can also come from another state agency or can be an attorney employed by the state for a special project. To ensure fairness, the ALJ can not be an employee in the division of enforcement.

The administrative law judge has the responsibility to prepare a proposed decision that includes findings of fact, conclusions of law, and order and opinion, in a form that may be adopted as the final decision in the case. When the ALJ has reached a proposed decision, he or she gives all parties a notice of the decision. If either side objects to the decision they have at least 10 days from the date they are given the decision to file objections and argument.

The individual filing the complaint and the chiropractor under investigation, along with their attorneys, may be directed by the examining board or administrative law judge to appear at a conference to discuss ways to simplify the hearing or any method that might aid in coming to a resolution of the matter.

What happens if the chiropractor does not show up at the disciplinary hearing?

If the chiropractor fails to provide information as required by the statutes or fails to appear at the hearing, the chiropractor is in default and the examining board may make findings and enter an order on the basis of the complaint and other evidence. The examining board may, for good cause, excuse the absence of the chiropractor and give him or her another opportunity to appear at the hearing.

How is a disciplinary hearing conducted?

• The hearing is presided over by a member of the examining board or an administrative law judge.

• A stenographic, electronic or other record is made of all hearings in which the testimony of witnesses is offered as evidence.

• The complainant and the chiropractor must have time to appear in person or by counsel, to call, examine, and cross-examine witnesses and to introduce evidence into the record.

•The individual presiding over the hearing may require the filing of briefs.

•All motions, except those made at the hearing, must be in writing, filed with the individual presiding over the hearing and a copy must be given to the opposing party not later than 5 days before the motion is heard. The individual presiding over the hearing may, for a good cause, grant continuances, adjournments, or extensions of time.

• Subpoenas for the attendance of any witness at a hearing may be issued. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things that it designates.

• The individual presiding over the hearing may issue protective orders.

• All hearings are held at the Department of Regulation and Licensing offices in Madison unless the individual presiding at the hearing determines there is an emergency or that for health and safety reasons the hearing should be held elsewhere.

• If a witness appears as the result of a subpoena, they are entitled to compensation from the state for attendance and travel at the amount allowed under the statutes.

• If a transcript of the hearing is prepared by a reporting service, the fee charged for an original transcription and for copies is the amount listed in the state purchasing bulletin. If a transcript is prepared by the department, the department charges a transcription fee of $1.75 per page and a copying fee of $.25 per page. This fee can be divided equitably among the requesters. If the department has prepared a written transcript for its own use and subsequently receives a request for a copy, the department pays the transcription fee, but charges a copying fee of $.25 per page.

Who pays for the costs of a disciplinary hearing?

The proposed decision of the administrative law judge will include a recommendation as to whether the chiropractor must pay all or a portion of the cost for the hearing. If the chiropractor objects, they have a right to file an objection to the ALJ’s recommendation.

The examining board’s final decision and order imposing discipline after the disciplinary proceeding must include a determination whether all or part of the costs of the proceeding must be paid by the chiropractor. When costs are imposed, the division of enforcement and the administrative law judge must file supporting affidavits showing costs incurred within 15 days of the date of the final decision. The chiropractor must file any objection to the affidavits within 30 days of the date of the final decision and order. The examining board must review any objections, along with the affidavits, and affirm or modify its order without a hearing.

RL 2.01 Authority.

The rules in ch. RL 2 are adopted pursuant to authority in s. 440.03 (1), Stats., and procedures in ch. 227, Stats.

RL 2.02 Scope: kinds of proceedings.

The rules in this chapter govern procedures in class 2 proceedings, as defined in s. 227.01 (3) (b), Stats., against licensees before the department and all disciplinary authorities attached to the department, except that s. RL 2.17 applies also to class 1 proceedings, as defined in s. 227.01 (3) (a), Stats.

RL 2.03 Definitions. In this chapter:

(1)“Complainant” means the person who signs a complaint

(2)“Complaint” means a document which meets the requirements of ss. RL 2.05 and 2.06.

(3)“Department” means the department or attached examining board or board having authority to revoke the license of the holder whose conduct is under investigation.

(4)“Disciplinary authority” means the department or attached examining board or board having authority to revoke the license of the holder whose conduct is under investigation.

(5)“Disciplinary proceeding” means a proceeding against one or more licensees in which a disciplinary authority may determine to revoke or suspend a license, to reprimand a licensee, to limit a license, to impose a forfeiture, or to refuse to renew a license because of a violation of law.

(6)“Division” means the division of enforcement in the department.

(7)“Informal complaint” means any written information submitted to the division or any disciplinary authority by any person which requests that a disciplinary proceeding be commenced against a licensee or which alleges facts which if true, warrant discipline.

(8)“Licensee” means a person, partnership, corporation or association holding any license, permit, certificate or registration granted by a disciplinary authority or having any right to renew a license, permit, certificate or registration granted by a disciplinary authority.

(9)“Respondent” means the person against whom a disciplinary proceeding has been commenced and who is named as respondent in complaint.

(10)“Settlement conference” means a proceeding before a disciplinary authority or its designee conducted according to s. 2.036, in which a conference with one more licensee is held to attempt to reach a fair disposition of an informal complaint prior to the commencement of a disciplinary proceeding.

RL 2.035 Receiving informal complaints.

All informal complaints received shall be referred to the division for filing, screening and, if necessary, investigation. Screening shall be done by the disciplinary authority, or, if the disciplinary authority directs, by a disciplinary authority member or the division. In this section, screening is a preliminary review of complaints to determine whether an investigation is necessary. Considerations in screening include, but are not limited to:

(1) Whether the person complained against is licensed;

(2) Whether the violation alleged is a fee dispute;

(3) Whether the matter alleged, if taken as a whole, is trivial; and

(4) Whether the matter alleged is a violation of any statute, rule or standard of practice.

RL 2.036 Procedure for settlement conferences.

At the discretion of the disciplinary authority, a settlement conference may be held prior to the commencement of a disciplinary proceeding, pursuant to the following procedures:

(1) SELECTION OF INFORMAL COMPLAINTS.

The disciplinary authority or its designee may determine that a settlement conference is appropriate during an investigation of an informal complaint if the information gathered during the investigation presents reasonable grounds to believe that a violation of the laws enforced by the disciplinary authority has occurred. Considerations in making the determination may include, but are not limited to:

(a) Whether the issues arising out of the investigation of the informal complaint are clear, discrete and sufficiently limited to allow for resolution in the informal setting of a settlement conference; and

(b) whether the facts of the informal complaint are undisputed or clearly ascertainable from the documents received during investigation by the division.

(2) PROCEDURES. When the disciplinary authority or its designee has selected an informal complaint for a possible settlement conference, the licensee shall be contacted by the division to determine whether the licensee desires to participate in a settlement conference. A notice of settlement conference and a description of settlement conference procedures, prepared on forms prescribed by the department, shall be sent to all participants in advance of any settlement conference. A settlement conference shall not be held without the consent of the licensee. No agreement reached between the licensee and the disciplinary authority or its designee at a settlement conference which imposes discipline upon the licensee shall be binding until the agreement is reduced to writing, signed by the licensee, and accepted by the disciplinary authority.

(3) ORAL STATEMENTS AT SETTLEMENT CONFERENCE. Oral statements made during a settlement conference shall not be introduced into or made part of the record in a disciplinary proceeding.

RL 2.037 Parties to a disciplinary proceeding.

Parties to a disciplinary proceeding are the respondent, the division and the disciplinary authority before which the disciplinary proceeding is heard.

L 2.04 Commencement of disciplinary proceedings.

Disciplinary proceedings are commenced when a notice of hearing is filed in the disciplinary authority office or with a designated administrative law judge.

RL 2.05 Pleadings to be captioned.

All pleadings, notices, orders, and other papers filed in disciplinary proceedings shall be captioned: “BEFORE THE _____ “ and shall be entitled: “IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST___, RESPONDENT.”

RL 2.06 Complaint.

A complaint may be made on information and belief and shall contain:

(1) The name and address of the licensee complained against and the name and address of the complainant;

(2) A short statement in plain language of the cause for disciplinary action identifying with reasonable particularly the transaction, occurrence or event out of which the cause arises and specifying the statute, rule or other standard alleged to have been violated;

(3) A request in essentially the following form: “Wherefore, the complainant demands that the disciplinary authority hear evidence relevant to matters alleged in this complaint, determine and impose the discipline warranted, and assess the costs of the proceeding against the respondent;” and,

(4) The signature of the complainant.

RL 2.07 Notice of hearing.

(1) A notice of hearing shall be sent to the respondent at least 10 days prior to the hearing, unless for good cause such notice is impossible or impractical, in which case shorter notice may be given but in no case may the notice be provided less than 48 hours in advance of the hearing.

(2) A notice of hearing to the respondent shall be substantially in the form shown in Appendix I and signed by a disciplinary authority member or an attorney in the division.

RL 2.08 Service and filing of complaint, notice of hearing and other paper.

(1) The complaint, notice of hearing, all orders and other papers required to be served on a respondent may be served by mailing a copy of the paper to the respondent at the last known address of the respondent or by any procedure described in s. 801.14 (2), Stats. Service by mail is complete upon mailing.

(2) Any paper required to be filed with a disciplinary authority may be mailed to the disciplinary authority office or, if an administrative law judge has been designated to preside in the matter, to the administrative law judge and shall be deemed filed on receipt at the disciplinary authority office or by the administrative law judge. An answer under s. RL 2.09, and motions under s. RL 2.15 may be filed and served by facsimile transmission. A document filed under this section shall also be mailed to the disciplinary authority. An answer or motion filed by facsimile transmission shall be deemed filed on the first business day after receipt by the disciplinary authority.

RL 2.09 Answer.

(1) An answer to complaint shall state in short and plain terms the defenses to each cause asserted and shall admit or deny the allegations upon which the complaint relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of the allegation, the respondent shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. The respondent shall make denial as specific denials of designated allegations or paragraphs but if the respondent intends in good faith to deny only a part or a qualification of an allegation, the respondent shall specify so much of it as true and material and shall deny only the remainder.

(2) The respondent shall set forth affirmatively in the answer any matter constituting an affirmative defense.

(3) Allegations in a complaint are admitted when not denied in the answer.

(4) An answer to a complaint shall be filed within 20 days from the date of service of the complaint.

RL 2.10 Administrative law judge.

(1) DESIGNATION. Disciplinary hearings shall be presided over by an administrative law judge employed by the department unless the disciplinary authority designates otherwise. The administrative law judge shall be an attorney in the department designated by the department general counsel, an employe borrowed from another agency pursuant counsel, an employe borrowed from another agency pursuant to s. 20.901, Stats., or a person employed as a special project or limited term employe by the department, except that the administrative law judge may not be an employe in the division.

(2) AUTHORITY. An administrative law judge designated under this section to preside over any disciplinary proceeding has the authority described in s. 227.46 (1), Stats. Unless otherwise directed by a disciplinary authority pursuant to s. 227.46 (3), Stats., an administrative law judge presiding over a disciplinary proceeding shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case.

(3) SERVICE OF PORPOSED DECISION. Unless otherwise directed by a disciplinary authority, the proposed decision shall be served by the administrative law judge on all parties with a notice providing each party adversely affected by the proposed decision with an opportunity to file with the disciplinary authority objections and written argument with respect to the objections. A party adversely affected by the proposed decision shall have at least 10 days from the date of service of the proposed decision to file objections and argument.

RL 2.11 Prehearing conference

In any matter pending before the disciplinary authority the complaint and the respondent, or their attorneys, may be directed by the disciplinary authority or administrative law judge to appear at a conference or to participate in a telephone conference to consider the simplification of issues, the necessity or desirability of amendments to the pleadings, the admission of facts or documents which well avoid unnecessary proof and such other matters as may aid in the disposition of the matter.

RL 2.12 Settlements.

No stipulation or settlement agreement disposing of a complaint or informal complaint shall be effective or binding in any respect until reduced to writing, signed by the respondent and approved by the disciplinary authority.

RL 2.13 Discovery.

The person prosecuting the complaint and the respondent may prior to the date set for hearing, obtain discovery by use of the methods described in ch. 804, Stats., for the purposes set forth therein. Protective orders, including orders to terminate or limit examinations, orders compelling discovery, sanctions provided in s. 804.12 Stats. or other remedies as are appropriate for failure to comply with such orders may be made by the presiding officer.

RL 2.14 Default.

If the respondent fails to answer as required by s. RL 2.09 or fails to appear at the hearing at the time fixed therefor, the respondent is in default and the disciplinary authority may make findings and enter an order on the basis of the complaint and other evidence. The disciplinary authority may, for good cause, relieve the respondent from the effect of such findings and permit the respondent to answer and defend at any time before the disciplinary authority enters an order or within a reasonable time thereafter.

RL 2.15 Conduct of hearing.

(1) PRESIDING OFFICER. The hearing shall be presided over by a member of the disciplinary authority or an administrative law judge designated pursuant to s. RL 2.10.

(2) RECORD. A stenographic, electronic or other record shall be made of all hearings in which the testimony of witnesses is offered as evidence.

(3) EVIDENCE. The complainant and the respondent shall have time to appear in person or by counsel, to call, examine, and cross-examine witnesses and to introduce evidence into the record.

(4) BRIEFS. The presiding officer may require the filing of briefs.

(5) MOTIONS. All motions, except those made at hearing, shall be in writing, filed with the presiding officer and a copy served upon the opposing party not later than 5 days before the time specified for hearing the motions.

(6) ADJOURNMENTS. The presiding officer may, for a good cause, grant continuances, adjournments and extensions of time.

(7) SUBPOENAS.

(a) Subpoenas for the attendance of any witness at a hearing in the proceeding may be issued in accordance with s. 885.01, Stats. Service shall be made in the manner provided in s. 805.07 (5), Stats. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.

(b) A presiding officer may issue protective orders according to the provisions of s. 805.07, Stats.
(8) LOCATION OF HEARING. All hearings shall be held at the offices of the department of regulation and licensing in Madison unless the presiding officer determines that the health or safety of a witness or of a party or an emergency requires that a hearing be held elsewhere.

 

RL 2.16 Witness fees and costs.

Witnesses subpoena at the request of the division or the disciplinary authority shall be entitled to compensation from the state for attendance and travel as provided in ch. 885, Stats.

RL 2.17 Transcription fees.

(1) The fee charged for a transcript of a proceeding under this chapter shall be computed by the person or reporting service preparing the transcript on the following basis:

(a) If the transcript is prepared by a reporting service the fee charged for an original transcription and for copies shall be the amount identified in the state operational purchasing bulletin which identifies the reporting service and its fees.

(b) If a transcript is prepared by the department, the department shall charge a transcription fee of $1.75 per page and a copying charge of $.25 per page. If 2 or more persons request a transcript, the department shall charge each requester a copying fee of $.25 per page, but may divide the transcript fee equitably among the requesters. If the department has prepared a written transcript for its own use prior to the time a request is made, the department shall assume the transcription fee, but shall charge a copying fee of $.25 per page.

(2) A person who is without means and who requires a transcript for appeal or other reasonable purposes shall be furnished with a transcript without charge upon the filing of a petition of indigence signed under oath.

RL 2.18 Assessment of costs.

(1) The proposed decision of an administrative law judge following hearing shall include a recommendation whether all or part of the costs of the proceeding shall be assessed against the respondent.

(2) If a respondent objects to the recommendation of an administrative law judge that costs be assessed, objections to the assessment of costs shall be filed, along with any other objections to the proposed decision, within the time established for filing of objections.

(3) The disciplinary authority’s final decision and order imposing discipline in a disciplinary proceeding shall include a determination whether all or part of the costs of the proceeding shall be assessed against the respondent.

(4) When costs are imposed, the division and the administrative law judge shall file supporting affidavits showing costs incurred within 15 days of the date of the final decision and order. The respondent shall file any objection to the affidavits within 30 days of the date of the final decision and order. The disciplinary authority shall review any objections, along with the affidavits, and affirm or modify its order without a hearing.