A professional license represents the culmination of years of perseverance and sacrifice. It carries with it not only the key to your livelihood but a new world of responsibilities. For many professions, these responsibilities are governed and enforced by the Utah Division of Occupational and Professional Licensing (DOPL). DOPL is a Utah state agency tasked with the licensing, investigation, and regulation of roughly 60 different professions within the state. From plumbers and dieticians to funeral directors and midwives, contractors, doctors, DOPL acts as gatekeeper and watchdog in an effort to preserve the legitimacy and integrity of dozens of professions. And these are, without a doubt, valuable functions, both to consumers and to professionals within these fields.
But a DOPL inquiry represents a challenge not only to your competency and judgment but also to your very livelihood. At worst, your professional license could be revoked. But even a suspension or a public reprimand can have serious repercussions for your professional reputation. Once a complaint has been filed with DOPL, it goes through a preliminary review. That review results in one of three findings:
I. no violation;
II. violation, but beyond DOPL’s jurisdiction or authority;
III. or violation within DOPL’s jurisdiction or authority.
The first finding is, of course, the best outcome for a professional against whom a complaint has been made. When there is a finding of no violation, the file is closed and no public reporting of the matter occurs. The second finding generally does not end the matter. DOPL may pass the matter along to the appropriate authority to investigate, or DOPL may issue a letter of concern regarding the matter to the professional involved. A letter of concern will bring the issue to the professional’s attention, and it will give the professional a chance to respond. A letter of concern is not public, and it is not a disciplinary action. However, a letter of concern on file with DOPL may have an effect on DOPL’s determination on any future complaint. The third finding will trigger a more in-depth investigation by DOPL. At what point the professional is notified depends on the individual investigation. Depending on what the evidence shows, one of a few different types of hearings will be called. These are administrative hearings, as DOPL generally functions under the Utah Administrative Procedures Act.
The hearings usually take the shape of a mini-trial. In every instance, the professional will have an opportunity to be heard, and to tell his or her side of the story. Navigating administrative procedures even the “informal” ones can be perilous. And your story and personality can get lost in the shuffle. If you’re facing disciplinary actions from DOPL, please contact a competent Lawyer.
Informal Violations Are Resolved In One Of Three Ways:
• Administrative Citations: A citation is the imposition of a cease and desist order in response to the unlawful or unprofessional conduct. Examples of citable offenses are practicing without a license, exceeding the scope of a license and hiring someone who is requires to be licensed that is unlicensed.
• Stipulated Agreement: A stipulated agreement is a written settlement accepted by all applicable parties with regard to the involved individual’s license. It may also result in the voluntary surrender of an individual’s license.
• Informal Adjudicated Proceedings: Is a case that is initiated by notice of agency action and decided or resolved by a file review as opposed to a hearing.
Formal Violations Are Resolved As Follows
• Stipulation Agreements: Same as informal stipulated agreements.
• Formal Adjudicative Proceedings: Is a proceeding initiated by a notice of agency action with a Petition and decided or resolved through a formal administrative hearing. This is similar in some ways to a civil court. Each party may present evidence in response to the case. An administrative law judge rules on all evidence, procedures and legal issues. DOPL is represented by an Assistant Attorney General and the involved individual may be represented by personal legal counsel. At the conclusion of the hearing, the Board considers the evidence and makes a recommendation regarding the status of the individual’s license. The recommendation is submitted to the director of DOPL who may accept the entire recommendation or may issue a modified supplemental order.
Recent items that have been brought before the Board for consideration are:
• Anesthetic and Sedation Rules Update
• Administration of Botulinum Toxin and Dermal Fillers by dentists.
Pre-litigation Hearings in Medical Malpractice
• In Utah, medical malpractice tort reform began in earnest in 1976. Over the intervening years, the reforms have multiplied. New layers of limitations and procedural complexity have developed, seemingly by accretion. Almost nothing has been discarded. The result is a web of time-consuming requirements that a prospective claimant must successfully negotiate before ever filing a lawsuit. If you represent the petitioner, the goal of this process is to obtain a certificate of compliance. The certificate is a prerequisite to filing a complaint in all cases except those against dentists.
• The First Step Petitioner serves a notice of intent to commence litigation on the care providers. Within 60 days, the petitioner must file a request for prelitigation review with the Utah Division of Occupational and Professional Licensing (DOPL) with a copy of the notice attached.
• The notice must be served as a complaint or sent by certified mail. Claims against dentists, but not the dentists’ clinic and staff, require only a notice. Dentists are exempt from the prelitigation hearing requirements.
• If the notice is filed less than 90 days before the statute of limitations would expire, the new limitations period is 120 days from the date of service.
• Filing the request tolls the statute of limitations until dismissal of the prelitigation proceeding; 60 days from issuance of the panel’s opinion or issuance of a certificate of compliance; or the expiration of time for holding a hearing.
• Setting a Hearing After filing the request, DOPL either issues an approval or a denial. If denied, the statute of limitations will no longer be tolled and the time will run until petitioner files a new request for prelitigation review.
• Dismissal does not affect the new 120-day time limit if you served the notice within 90 days of expiration of the statute of limitations. The request must be filed with DOPL within 60 days of serving the notice or a new notice and request will need to be served and filed. If the request is approved, respondent files a notice of appearance of counsel within 15 days. The respondent may also request a specific specialty to sit on the panel.
• The petitioner will then contact the respondent to establish two mutually-acceptable dates for a prelitigation hearing. Petitioner files a notice of availability for hearing and type of health care provider panelists requested. The dates must be at least 45 days after filing the notice of availability. If you fail to timely file, DOPL can dismiss your request though DOPL may grant an extension on request.
• If a notice of availability cannot be agreed to, petitioner files an affidavit of respondent’s failure to reasonably cooperate in scheduling hearing. This must be filed within 180 days of the request and must state that the prelitigation hearing could not be held within 180 days of request.
• If DOPL determines that respondent failed to cooperate and that petitioner cooperated, they will issue a certificate of compliance. If DOPL determines that respondent cooperated or that petitioner failed to cooperate, petitioner must file affidavits of merit within 30 days of this determination in order to obtain the certificate.
• If the agreed dates are acceptable to DOPL, they will issue a notice of prelitigation hearing and panel composition. Parties have five days to object to the composition of the panel.
• If at any time the parties stipulate that the hearing will serve no useful purpose, DOPL will cancel the hearing and issue a certificate of compliance.
• If there is a scheduling conflict, the parties have five days after discovery and two days prior to the hearing to file for a continuance. It will only be granted in extraordinary circumstances. If the continuance is granted, the requesting party must establish two mutually-agreeable dates for rescheduling. They must be no later than five days after the order of continuance and the hearing must occur within 180 days of the request.
• If the petitioner is the requesting party and a rehearing is not timely filed, DOPL will dismiss the request without prejudice. If the respondent is the requesting party and a rehearing is not timely filed, DOPL will establish a new date that is acceptable to the petitioner and disallow continuances from the respondent.
• The Hearing Counsel for petitioner and respondent should arrange to attend the hearing with their clients. Prelitigation hearings are informal and nonbinding. There is no transcript made. There is no cross examination; however, the panel members may ask questions. The hearings are confidential.
• Each party will have 15-20 minutes to make a presentation to the hearing panel. Each party may submit evidence by proffer. Attorneys have a wide variety of approaches. Most submit a selection of relevant records and explain their view of the case in the context of the records. They may choose to use medical imaging or diagrams or attach medical literature. Respondent physicians will often explain the care they provided. Some attorneys submit expert affidavits at the hearing. The petitioner may offer a brief rebuttal.
• Following the hearing, the panel deliberates and decides whether there was a breach in the standard of care; and whether the breach in the standard of care harmed the petitioner. The panel issues its opinion within 30 days of the hearing. If the answer is affirmative to both questions, the opinion is meritorious and DOPL issues a certificate of compliance. If the answer to either question is negative, the opinion is non-meritorious. If non-meritorious, the petitioner must file affidavits of merit within 60 days of issuance of the panel opinion. Within that time, the petitioner may seek a 60-day extension to file the affidavits by submitting an affidavit for extension.
• Affidavits of Merit There must be one from counsel and one or more from appropriate health care provider(s) that address the issue(s) that the panel found to be non-meritorious.
• The health care provider affidavit regarding standard of care must be from a care provider with the same licensure as the respondent. If one respondent is a physician, there need be only one physician affidavit as to all respondents if the physician offers an opinion as to each respondent.
• If the panel found no breach of the standard of care, the health care provider affidavit(s) must include an opinion that there was a breach and that the breach caused the harm complained of in the notice.
• If the panel found a breach in the standard of care but no causation, the affidavit only needs to address causation.
• After the affidavits are filed, DOPL issues a certificate of compliance.
Professional License Defense Process
A professional license investigation is generally initiated by Utah Division of Occupational and Professional Licensing (DOPL) after a complaint has been filed. Understanding the professional license defense process can help not only provide a sense of understanding during a difficult period, but also help you avoid pitfalls that may limit your defenses.
How Arrests & Convictions Affect Professional Licenses in Utah
If you’re a licensed professional in Utah like a doctor, teacher, Dentist, Contractor, or real estate broker your livelihood may be in jeopardy for sustaining certain kinds of criminal convictions. Authorities across the state are reviewing court records, running fingerprint checks and investigating complaints. Professionals without clean records face license revocation or suspension. The good news is that professionals have vested interests in their licenses. The board, department or commission that regulates you can’t just take away your license without giving you a chance for a hearing.
Can I Lose My License Because Of A Conviction?
Maybe you caught a few DUI’s or engaged in an out-of-character shoplifting spree. Maybe you did something really stupid involving weapons or narcotics. Maybe you made a mistake and now have things under control. When it comes to professionals and criminal convictions in Utah, however, even if you’ve turned things around, fulfilled your probation terms, gotten your case dismissed, etc., past convictions can continue to haunt you. If you were convicted of a crime that your regulatory board or department considers substantially related to your fitness to do your job, it may be able to revoke or suspend your professional license. In fact, you might be reading this because you’ve already received an accusation notifying you of conviction-related discipline. If you don’t hold a license but have applied for one, you might have received a statement of issues.
Can I Have A Hearing On My Discipline Case?
The hearings are governed by the Administrative Agency Law and the General Rules of Administrative Practice and Procedure. Unlike civil litigation in the courts, there is very little discovery in the administrative law setting. The prosecution will generally supply copies of documents it intends to introduce at the hearing. It is important that the attorney knows which additional documents to request so that he or she can properly defend the case. In certain situations where the prosecutor will not turn over evidence, the attorney must request a prehearing conference with the hearing officer to obtain the documents. Additionally, the hearing examiner has the authority to issue subpoenas to various third parties to either attend the proceedings or produce relevant documents. It is important that the attorney be familiar with the administrative law process to properly defend the professional.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506