If you are a health care provider, a nurse, a chiropractor, a dentist, etc, all disciplinary hearings that could adversely affect your New York State license are held by the Department of Education, Office of Professional Discipline. The Hearings in the New York City area are held at 1411 Broadway, 10th Floor, New York, New York 10018.
This article will discuss the process when there is a “direct referral”, that is, where you have already been convicted of a crime or done something else where there is no question as to whether you are guilty instead, the only issue is the degree of punishment.
Before the Hearing takes place, the Department will try to negotiate a settlement with you. However, if the “settlement” is simply for you to surrender your license, you might well decide to go to the Hearing because the penalty really will not get worse.
You are notified of the date of the Hearing long in advance and at that time your attorney will put together a package of documents that will be submitted to the Panel deciding your matter. The Panel will be made up of three people and they will make a recommendation to the Board of Regents as to what should happen to you from the license point of view.
The documents submitted should include Continuing Education certificates, statements of payments of restitution if you have a requirement to make such payments arising out of a criminal conviction, letters of recommendation supporting your position, and any other documents that are favorable and appropriate.
Typically the Department does not call any witnesses, it simply puts into evidence the documents that support the charges against your license. For instance, the Department will put in the certificates of conviction in the case of a crime. That conviction is prima facie evidence of unprofessional conduct and the Hearing will move forward to decide only the punishment.
At the Hearing your attorney will give an opening statement in which he/she will describe the how the issue arrived at the position, and will make a case as to why the punishment should be far less than what the Department is asking for.
You can, and should, bring witnesses who know you very well to testify on your behalf. In my experience at least two, but no more than three, witnesses should be used. Please note that it is best if the witnesses personally attend the Hearing, and they should testify via telephone only as a last resort. Of course, you will then testify as the final witness.
Incredibly, the rules are that you, as the respondent, have only twelve minutes to present your case and then three minutes to give a summation and ask for a lower penalty! Now, my experience, without exception, is that the Panel will grant you much more time than twelve minutes to present your case, but you have to be prepared to do this in twelve minutes, if you must.
Your witnesses must be fully acquainted with the issue that caused you to be brought to the Hearing. It is usually a criminal conviction of some type therefore the witnesses have to be able to say that, in spite of the conviction, they believe that you should be permitted to retain your license. Please note that your attorney must prepare these witnesses on this issue so that there is no surprise during the testimony.
The witnesses, and you, must be able to answer the question as to why the Panel should permit you to continue to practice. I like to get this question out as the final question to each of the witnesses, and the answers have to be well thought out and persuasive. This takes some practice.
At the end of the Hearing, you want to feel that you were able to clearly state every point in your favor. You want to give the Panel the best picture of your side on the matter. Obviously, the deck is stacked against you in this situation, but I believe in preparing the case carefully and trying to mitigate the issues that are definitely not in your favor.
Once you have put in the evidence that is positive for you and had reliable witnesses testify on your behalf and testified yourself, then you have then given the Panel the best possible opportunity to render a recommendation that is favorable to you. In other words, you will have done all that was possible to obtain the best result under the circumstances.
Remember, this is your license and your profession, so you must do everything possible to survive this very unpleasant process.