MODEL SANCTIONS

Introduction

The Regulatory Issues Subcommittee of the Council on Licensure, Enforcement and Regulation (CLEAR) has prepared Model Sanctions for the use of CLEAR members, particularly professional and occupational licensing authorities, and for others who may find it useful. Model Sanctions will be invaluable to licensing and regulatory authorities, legislators, attorneys, practitioners, the general public, professional associations and any private or governmental entity involved in disciplinary action.

Sanctions imposed as disciplinary action may vary substantially from jurisdiction to jurisdiction and even among the different professions and occupations within a jurisdiction. The subcommittee believes that standardization of terms and sanctions will aid every person or organization involved in the establishment, interpretation or enforcement of standards for conduct, as well as those affected by interpretation or enforcement. Persons licensed in multiple jurisdictions, as well as professionals and license holders moving to a new jurisdiction, will benefit from the predictability that comes with uniformity.

Uniformity will assist attorneys, hearing officers and investigators in handling cases involving different professions and occupations and will eventually result in a more uniform body of case law. Adoption of the Model Sanctions will strengthen professional regulation by ensuring fairness, predictability and public confidence.

Model Sanctions is the result of input from CLEAR members from numerous states and provinces. It is intended to provide a comprehensive list of sanctions using standardized language, and to complement the Uniform Grounds for Disciplinary Action, a 1995 CLEAR Resource Brief.

Some authorities may wish to adopt the entire Model Sanctions to ensure a comprehensive list of sanctions, whereas others may wish to use the Model Sanctions as a checklist to fill in gaps and loopholes in existing disciplinary codes. In some jurisdictions the legislature may adopt these provisions; in others, regulatory agencies may have the authority to adopt some of the provisions as administrative regulations. And, as comprehensive and as useful as we have tried to make Model Sanctions, we welcome any suggestions or other comments which could make any later revision even more helpful and comprehensive.

We trust you will find Model Sanctions helpful.

The 1995-96 Regulatory Issues Subcommittee

SECTION I. COMPLAINT--IMMUNITY--INVESTIGATION:

1. An individual, government, or private entity may submit a written complaint to the board alleging acts or omissions which may constitute a violation by a licensee or applicant for licensure of this act [or act specifying grounds for discipline--see the Uniform Grounds for Disciplinary Action, Ground for Discipline No. 25, 1995 CLEAR Resource Brief]. An individual or entity filing a complaint or otherwise participating in an investigation or proceeding under this part in good faith is immune from suit.
2. If the board receives a written complaint or otherwise obtains information that a licensee may have committed an act or omission justifying disciplinary action, or that an applicant for licensure may have committed an act or omission justifying restriction or denial of license, the board may investigate.
3. If the board finds reasonable cause to believe that a licensee or an applicant for licensure is unable to practice with reasonable skill and safety [see Section 25, Uniform Grounds for Disciplinary Action, 1995 CLEAR Resource Brief], the board may require a licensee or an applicant for licensure to submit to a physical or mental examination, or both, by a physician or other health care provider selected by the board. The board may scrutinize all health care records of the licensee or applicant for licensure generated by such examination and, notwithstanding any provision of law to the contrary, copies of such records shall be released to the board on written request.

SECTION II. SANCTIONS--STAY--COSTS--STIPULATIONS:

1. Upon a decision that a licensee has violated this act [or act specifying grounds for discipline--see Uniform Grounds for Disciplinary Action, 1995 CLEAR Resource Brief] or that a licensee or an applicant for licensure is unable to practice with reasonable skill and safety due to a physical or mental condition or upon stipulation of the parties as provided in subsection (5), the board may issue an order providing for one or any combination of the following actions or sanctions:
   1. revocation of the license;
   2. suspension of the license for a fixed period or until one or more conditions are met;
   3. restriction or limitation of the practice or business;
   4. satisfactory completion of remedial education;
   5. submission to a mental and/or physical evaluation;
   6. satisfactory completion of remedial treatment;
   7. monitoring of the practice by a supervisor approved by the board;
   8. public censure or reprimand;
   9. compliance with conditions of probation for a designated period of time;
   10. payment of an administrative fine not to exceed $_______for each violation. Fines shall be deposited in the __________ fund;
       denial of a license application;
   11. refund of costs and fees collected from a consumer;
   12. payment to the board all costs incurred by the board in investigating, preparing and prosecuting the case, including but not limited to attorney fees, witness, transportation, and per diem expenses. All investigation, preparation, and trial costs paid under this section must be deposited in the state special revenue fund for the use of the board in enforcing the provisions of this act. The board may reimburse other agencies for costs reasonably incurred in the enforcement of this act.
2. Should the licensee leave [the forum state or province] to reside or practice outside of [the forum state or province] for any period, or should the licensee leave [the forum state or province] for any other reason for a period exceeding ________ days, the licensee shall notify the board in writing of the dates of departure and return, and the reason for the absence. The duration of any sanction for which a duration is specified in the board’s order under subsection (1) above shall be extended by a length of time equal to the duration of the licensee’s absence(s).
3. Should the licensee violate a disciplinary order issued under subsection (1) in any respect, the board, after giving respondent notice and an opportunity to be heard, may revoke probation, carry out any disciplinary order that was stayed, or impose any additional disciplinary order which is justified under the circumstances.
4. In imposing sanctions, the board shall first consider which sanctions are necessary to protect or compensate the public. Only then may the board consider and include in the order any requirements designed to rehabilitate the licensee or applicant for licensure. A sanction may be totally or partially stayed by the board.
5. The licensee or applicant for licensure may enter into a stipulated agreement resolving potential or pending charges that includes any or all of the sanctions in this section. A voluntary surrender of a license as part of a stipulated agreement shall be deemed a revocation of that license and shall include a statement identifying the admitted charges justifying the surrender or the allegations under investigation at the time of the surrender.
6. The licensee shall surrender a suspended or revoked license to the board within 24 hours after receiving notification of the suspension or revocation by mailing it or delivering it personally to the board.
7. An applicant for reinstatement whose license has been revoked under this section shall not be entitled to petition for reinstatement of the revoked license unless specified in the board's order of revocation [or as provided in __________]. When an applicant petitions the board for reinstatement, the board may deny reinstatement or order reinstatement and impose terms and conditions. The board may deny reinstatement or order reinstatement and impose terms and conditions. The board may require the successful completion of an examination as a condition of reinstatement and may treat an applicant whose license has been revoked or suspended as a new applicant for purposes of establishing the requisite qualifications of licensure.
8. A board may adopt rules setting forth mandatory minimum sanctions for specified violations of this act (see the Uniform Grounds for Disciplinary Action, 1995 CLEAR Resource Brief). A mandatory minimum sanction adopted by rule of the board shall be binding on the parties of the action, on any administrative law judge presiding over the case, and upon any reviewing court. Nothing in this section shall be construed, however, to prevent an administrative law judge or the board from imposing a sanction greater than the specified mandatory minimum.

SECTION III. INTERIM EMERGENCY ORDERS:

1. The board or administrative law judge sitting alone, as provided in subsection (3), may, prior to the filing of disciplinary charges and any time prior to the issuance of a final order in a disciplinary case, issue an interim order imposing restrictions, requirements and/or conditions on a licensee including but not limited to:
   1. summary suspension of the authority to use the license pending further order of the board or the administrative law judge;
   2. restrictions on the scope or nature of the practice permitted under the license;
   3. mandatory biological fluid testing;
   4. physical or psychological evaluation or testing.
2. The order shall be based upon affidavits or other evidence that demonstrate both of the following:
3. The licensee has engaged in acts or omissions constituting a violation of this act (or rule) or has been convicted of a crime substantially related to the licensed activity (see the Uniform Grounds for Disciplinary Action, 1995 CLEAR Resource Brief).
   1. The interim restrictions, requirements, or conditions on the licensee are necessary to protect the public health, safety or welfare.
   2. No interim order provided for in this section shall be issued without notice to the licensee unless the affidavits or other evidence demonstrate that there is an eminent, substantial threat to the public’s health, safety or welfare.
4. Except as provided in subsection (3), the licensee shall be given at least ____ days’ notice of the hearing for an interim order. The notice shall include the basis for requesting the interim order. An interim order shall be served on the licensee and shall contain a notice of hearing on the disciplinary charges. The failure of the board to provide a hearing on the disciplinary charges within days following the issuance of the interim order, unless the licensee waives his or her right to the hearing or requests an extension of time for the hearing, shall result in the dissolution of the interim order.

SECTION IV. CEASE AND DESIST--INJUNCTION--CIVIL AND CRIMINAL PENALTIES:

1. If a board finds reasonable cause to believe that any individual or entity is violating the terms of any final order of the board or any law or administrative rule governing the profession, including but not limited to any provision prohibiting a licensee or an applicant for licensure from engaging in specific conduct, it may, in addition to all other actions authorized by law and without prejudice thereto, enter an order requiring such individual or entity to desist from such violation, and impose an administrative fine not exceeding $______ for such violation.
2. An order issued under subsection (1) shall inform the individual or entity that any individual or entity desiring a hearing to contest the finding of a violation, shall file a written notice of request for a hearing with the board within ______ days of the date of service of the order. If a hearing is requested, the hearing procedures specified in the [forum state’s or province’s administrative procedure act] shall govern the hearing. If a hearing is not requested pursuant to this section, the order issued by the board is conclusively valid.
3. A board may enforce the terms of any order under subsection (1) in the [court having jurisdiction over such matters in the forum state or province]. The court may issue an injunction, or other appropriate order, enforcing the terms of any order issued under subsection (1).
4. If a board finds reasonable cause to believe that any individual or entity is violating an order issued under subsection (3), it may bring an action before such court to enjoin such violation. A person who violates an order of the court issued under subsection (3) shall pay an additional civil penalty, as determined by the court, of not more than $_________. In addition, the individual or entity must pay to the board the amount of all costs incurred by the board in investigating, preparing and prosecuting the case, including but not limited to attorney fees, witness, transportation, and per diem expenses. All investigation, preparation, and trial costs paid under this section shall be deposited in the __________ fund for the use of the board in enforcing the provisions of this act. The board may reimburse other agencies for costs reasonably incurred in the enforcement of this act.
5. A person who violates an order of the court issued under subsection (3) is guilty of a (class________) misdemeanor and is punishable pursuant to the appropriate criminal statute by an administrative fine of not less than $_______ and not more than $_______, up to ________ months/years in the county jail, or both. Each day of violation is a separate offense. Subsequent violations of this section are ________class felonies.

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