ISC vs SOAH: How Your Disciplinary Case Can Play Out

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome to Know your Regulator. The podcast that inspires you to engage. I am your host, simone Murphy, and co-hosting with me today is MJ Hooper. Today, we’re going to talk about two critical stages in the administrative process for license holders facing disciplinary action informal settlement conferences, or often referred to as ISCs, and the State Office of Administrative Hearings, or often referred to as SOA.

Speaker 2: 0:42

Good afternoon ladies. That’s right. Today we are going to break it all down with our attorney, carrie Blitzhoff, who has an extensive experience representing professionals during these type of proceedings.

Speaker 3: 0:54

Hi, thank you for having me. I do think this is an interesting and important topic. I think a lot of license holders are probably confused by what an ISC is and what a SOA is, so I think this will be helpful for a lot of people.

Speaker 1: 1:07

Awesome. Well, let’s get into it. We’ll start with the informal settlement conference. Carrie, can you explain what it is and why it happens?

Speaker 3: 1:18

Yeah, so generally this is like the first stop during the investigation, once the license holder has submitted a response. Sometimes the agencies kind of do an ISC and a response at the same time, but most of the time the license holders probably had a chance to provide some type of information in writing, and then the boards looked at it and decided that they kind of want to hear a little bit more, and so they’ll send out an ISC notice. Sometimes they’re mandatory and other times they’re optional, and then some boards actually don’t have any ISCs at all.

Speaker 2: 1:57

Thank you for explaining that, Carrie. Also, I know every agency is different, but can you kind of give us an idea as to who typically is present at the ISC and or the panel members?

Speaker 3: 2:08

Sure, yeah, like you said, it really depends on the agency. Some agencies that are a lot more formal with their ISCs are agencies like the Board of Pharmacy, the Texas Medical Board, the boards for occupational therapists and physical therapists. Those are a little bit more formal. They normally have an administrator, sometimes the agency’s general counsel, that’s kind of monitoring or running the show, and then they’d have a staff attorney that’s there kind of presenting the facts against the license holder, and then sometimes these agencies will have an investigator or multiple investigators present that worked on the case and then generally they’ll have at least two board members, normally one public and one license holder. That would act as board members that are kind of listening in and then conducting the rest of the ISC. Those are kind of the more formal ones. They feel a little bit more like a hearing um, or they would feel like that to maybe a license holder, um.

Speaker 3: 3:13

But other ISCs can be much more casual Um, the Texas uh education agency, um. And then the behavioral executive council. Those are a little bit more relaxed. They have much less people in attendance. The ones with Tia is just the investigator and then the ones with BHEC normally have a staff attorney and two board members, but generally staff doesn’t say too much and the focus is really on the questions that the panel has for the license holder.

Speaker 1: 3:48

That’s awesome information for our viewers to know, keri. Thanks for that. I have probably a burning question on some people’s minds Is the outcome of the ISC binding, or can the license holder reject it?

Speaker 3: 4:04

Yeah, that’s a really good question and probably something that a lot of people would think about if they were deciding whether to take the ISC or not. Like I said, they’re not optional or they are optional sometimes. So somebody might be thinking about what happens. You know if I don’t like the result. The ISCs are not binding. The offer generally comes after you know the ISC closes. Binding the offer generally comes after you know the ISC closes. Sometimes it’s immediately after. Sometimes they take something under advisement and you’ll hear back in like a week or so.

Speaker 3: 4:34

But eventually, once you get whatever that offer is, you know, you do get some time to read it over and think about it, and then you do have the option to reject it. So they’re certainly not binding. I will say something to keep in mind, though, is whatever the offer is, is the offer. The offer most of the time, in 95% of the cases, is not going to be modified after. So if you have the ISC and you get your offer and then you want to come back the next day with like, oh, what about this or this other piece of information? That’s really not going to fly. So you want to make sure, if you do do the ISC, that you’re putting all your arguments out there, all your evidence, because once you get that offer, it’ll be what it is, and if you reject it, then you just have to move to the SOA.

Speaker 2: 5:22

Perfect segue. So now we’re going to talk about SOA, which again is State Office of Administrative Hearings. So can you explain to us what the difference is between SOA hearing?

Speaker 3: 5:35

and an ISC, Keri. Yeah, so that’s something that I think a lot of people get confused, because sometimes license holders will refer to ISCs as hearings and they’re really not. A SOA hearing is the actual hearing. It’s what you think about when you think about a civil case or a criminal case. You see something you know on TV. There’s going to be a judge, the agency is going to have that burden, they’re going to present their case, they’re going to call witnesses, they’re going to present evidence and then on the flip side, the license holder would have a chance to cross-examine witnesses evidence and then on the flip side, the license holder would have a chance to cross-examine witnesses, call their own witnesses and then present their evidence. So it’s much more like what you would think of when you hear the term hearing than an ISC is just kind of more of an informal discussion.

Speaker 1: 6:17

Really great information, Keri. It definitely sounds like SOA is a more formal setting. Can you talk to us a little bit about what license holders can expect at a SOA hearing?

Speaker 3: 6:30

Yeah, it definitely is more formal. Like I said, it’s going to feel like what you would think of for a trial or a hearing. The ISC might feel kind of intimidating, especially for like a license holder and certainly if they don’t have a lawyer present. Intimidating especially for like a license holder and certainly if they don’t have a lawyer present. But it really is a chance for the licensee to kind of tell their side of the story, present any type of evidence they want or any type of argument that they have.

Speaker 3: 6:56

But out of SOA all the rules of evidence, all the rules of civil procedure, they all apply. So it makes a SOA much more rigid, much more litigious, much more kind of discerning. Basically, the agency at the time in which they’re at SOA is not really interested anymore in what the license holder has to say. Right, they don’t really care about your side of the story. They’re not trying to be nice, they’re not trying to resolve it. They’re generally at that point at a SOA seeking a revocation of your license. So it’s much more of a serious interaction and, you know, it’s just a lot more of what you would think of when you would think of a trial, because of all the rules and all the deadlines that have to apply.

Speaker 2: 7:44

All right. So how would a licensee holder prepare for an upcoming ISC?

Speaker 3: 7:53

Sure. So what normally we would want to do is there might be, you know, some drafting. Like I said, sometimes you’re doing a response or a rebuttal in conjunction with the ISC, so you’d want to get your response together or an updated response. You’d want to get your evidence together or some updated evidence that the panel hasn’t received yet, some updated evidence that the panel hasn’t received yet, and then generally what we do is we would shed the license holder, meaning we prepare them for any questions that the board members might have. Like I said earlier, the biggest part of the ISC is really the agency asking the license holder any questions that they have.

Speaker 3: 8:35

Most of the time, in the beginning of any ISC you’ll kind of hear from the moderator or whoever is like running the show. You know this is your time to tell us what happened. This is your time to like explain anything you want us to know, and so it’s really just about kind of letting the license holder tell their side If you do have an attorney there, letting the license holder tell their side If you do have an attorney there. Obviously, you know if we’re there, we do provide, you know, an opening argument or a closing remark. You know if there’s some type of legal issue that needs to be addressed, we’ll do that. But generally the primary focus is that they want to hear from the license holder. They want to hear what happened and what they have to say in a more robust fashion. Then you can kind of get through a written response.

Speaker 2: 9:22

Sherry, can I ask because I know some of the clients or viewers may want to know typically, when a person has an ISC, how long does it take normally for an order or an agreement to be issued?

Speaker 3: 9:35

So generally most agencies now seem to be issuing a recommendation at the end of the ISC. That’s what happens with the Texas Medical Board, that’s what happens with most BHEK cases. With pharmacy board cases they issue the recommendation right away and then normally it takes maybe a week or a couple weeks to get the actual offer down on paper and then sent over to the client. But other agencies can take longer to do that, can sometimes take up to like several weeks to get back to you on what the end result is, which can be frustrating Definitely.

Speaker 2: 10:13

Thank you for sharing.

Speaker 1: 10:14

So for SOA hearings, I know that it’s more of a you know, more formal setting and it seems to be that there’s a little bit more that goes into that hearing than an ISC. Can you talk to us a little bit about the difference in preparation between preparing for an ISC and preparing for a SOA hearing?

Speaker 3: 10:36

Yeah, definitely At SOA, you know, less of the burden is on the licensee right. We obviously would prepare them, you know, similar to an ISC, where we want to prepare them for their testimony. But we would also have to prepare our other witnesses. We would have to prepare cross-examinations for the agency’s witnesses. We have to get our evidence together in a much more formal way. At SOA the evidence, you know, would be called an exhibit. We would have to prepare that in order to try to get it admitted.

Speaker 3: 11:14

At an ISC right, we’re just providing a response and we’re just dumping all of our evidence onto the panel. You know there’s nothing that’s going to be excluded. They get to have everything. But at SOA a judge can make certain rulings and keep certain evidence out. If you’re not following you know the proper procedural rules or you’ve missed a deadline or something like that, that can kick evidence out.

Speaker 3: 11:43

So there’s just a lot more work that has to go into that, because not everything is being admitted. So a witness could be objected to, an argument could be objected to, a piece of evidence could be objected to. So you’re not only working on organizing everything, getting things together and presenting a case, but you’re also creating a rebuttal in your head as to say, if the agency staff attorney says this or tries to exclude this, what should I say? And vice versa. The agency doesn’t get to get everything in admitted either.

Speaker 3: 12:10

So we’re having to come up with certain you know legal strategies or legal arguments that are maybe going to keep a witness out or a piece of evidence out on their side. So I would say that’s certainly you know. The more intense part of the SOA is you’re really having to craft these legal arguments. There’s probably a lot of research and you know kind of case law involved in that that you’re just not having to deal with at an ISC, because at a SOA you’re presenting your case to a judge who is a lawyer and at an ISC you’re presenting your case to just a couple other license holders. That may not truly be focused on kind of the niche parts of the law.

Speaker 2: 12:51

One thing you also say. Another difference between an ISC and a SOA hearing is typically the ISCs are held in one day, sometimes maybe in 30 minutes, versus SOA hearings it could be one to three or four days.

Speaker 3: 13:09

Oh yeah, definitely. I mean timeline is certainly a key factor and a big difference with an ISC or a SOA. I mean factor in a big difference with an ISC or a SOA. I mean sometimes ISCs can be, you know, an hour, sometimes they can be 15 minutes. You know, if the panel doesn’t have any questions, if it’s a pretty black and white case, sometimes we’ll make an argument, they’ll ask the client a couple of questions and then that’ll be that.

Speaker 3: 13:31

But a SOA I mean I’ve never had a SOA that’s less than six hours. I mean generally they’re all day, sometimes they’re half a day, but they can certainly be two days in length. So if you think about it like that, you know preparing for something that might be 30 minutes versus preparing for something that might be eight hours, and this is the same case, right? Your case hasn’t changed. Your facts are the same. But that’s how procedurally different they are. And if they’re that procedurally different, then you know the amount of work is just going to be drastically different, for you know the two that is a big difference.

Speaker 1: 14:09

It’s a really big key difference, and I think it’s important for license holders to know that, especially, you know, as they’re working with their attorneys or maybe they’re pro se, especially as they’re working with their attorneys or maybe they’re pro se, and I think that’s very, very big for anyone walking into that scenario to know if a license holder loses SOA or has an unfavorable outcome, do they have any options to continue fighting?

Speaker 3: 14:33

Yeah, so it’s a little tricky with administrative law, but basically the license holder is entitled to a hearing with SOA, but the judge is not the final decision maker. So basically the judge’s job is to make a determination as to if the agency has met their burden and if the licensee has violated a rule. Some agencies also require the judge to make a determination on sanction, but other agencies don’t ask that. They just ask the judge to say was there a violation? Regardless, the judge puts his decision in what’s called a proposal for decision and then that proposal gets presented back to the agency and there, there the agency would make the final decision on a violation and a sanction. So at that point, if the agency decides there are violations and they sanction the licensee, they would issue a final order and then the licensee does have some appeal options. So the first is, if they issue an order that the license holder doesn’t agree with, then they would have to file a motion for rehearing and they would basically file a motion back to the agency and ask for reconsideration of the order. For, whatever the case may be, whatever procedural issue or legal issue they feel is, you know, occurred during trial, they have to file that motion for rehearing and then the agency would make a decision. If that motion is denied, then they can file what’s called judicial review. That gets filed in Travis County District Court. So now we’re outside of administrative jurisdiction and we’re in kind of civil sector and here they would be asking a district court judge to review the case and determine if, like, all the proper procedures and laws were filed. And then, if the judicial review is granted, then the district court you know has found that there was an issue that the agency didn’t do you know correctly, or the judge didn’t do correctly, then the district court judge would send it back to the agency and basically the entire case would start over again. Obviously, if you lose at judicial review, then you know essentially your case is over. There’s some other appeal you know situations after that but generally if the district court finds that there was no issue, then you’re kind of stuck with that order. But if they, you know, agree with you, then it sends it back to the agency.

Speaker 3: 17:09

I think what a lot of people need to remember is the judicial review is a very uphill battle. Any type of appeal process is an uphill battle. The district court judge is not like re-litigating anything. You’re not getting anything new in. It’s strictly going off of what happened at SOA. And, like I said, even if you win, the case does not get thrown out. A lot of people are like, oh, the case just goes away. No, it just goes right back to the agency and the agency could do it all over again if they wanted to. Obviously, there could be some you know negotiation at that point. Maybe the agency could do it all over again if they wanted to. Obviously there could be some you know negotiation at that point. Maybe the agency doesn’t want to have another trial either. But it’s not automatic that the case would just go away or be dismissed.

Speaker 2: 17:49

Wow. That sounds like a long process. As we’re wrapping up, ms Carey, what would you say is a good piece of advice for anyone who is facing an ISE or SOA?

Speaker 3: 18:00

Yeah, advice for anyone who is facing an ISC or SOA. Yeah, I guess I would say my advice would generally be if you are offered an ISC, I think it’s helpful to take it Like we talked about half an hour of your time versus eight hours and the amount of work that goes into either. I think it’s always kind of helpful to try with an ISC. They’re faster If it’s less work than if you’ve hired an attorney. It’s less billable time, so it’s, you know, cheaper and it could get you what you were looking for without the headache of a trial. Remember, the board members that are giving you the offer at the ISC are going to be the same people that are reviewing that proposal for decision from the judge after a trial. So a lot of times the end result may be the same and that’s just something to consider and talk to an attorney about when you’re trying to decide.

Speaker 3: 18:51

You would hate to go through a whole trial just to come back and get the same offer that you were given at an ISC. And then I’d say probably the biggest piece of advice would be that you know you don’t want to really do either of them alone. I think an ISC might seem more doable to a license holder especially maybe even after hearing this podcast to kind of do without a lawyer than, say, a SOA hearing right. I feel like that’s generally when the client is like, oh why I need a lawyer. But you can, you know, say the wrong thing or provide the wrong evidence at an ISC and then now you’ve really kind of gone and hurt your case and attorney’s obviously going to be the one to help you with that. So I’d say, if you get either of those offers, you certainly want to at least consult with a lawyer first before you go ahead and provide anything over to an agency.

Speaker 2: 19:45

That’s awesome advice, Ms Carey. We truly appreciate you and your time and expertise today.

Speaker 1: 19:52

Yes, absolutely, and thank you to our viewers for tuning in to Know your Regulator. Please subscribe, share, follow us for more insights on protecting your license and, until next time, stay inspired and continue engaging with your regulatory agency. Know your Regulator the podcast that inspires you to engage.