Professionals are subject to the laws and rules governing their respective professions. Complaints from clients, patients, or other professionals may lead to disciplinary action against your professional license. In some cases, disciplinary proceedings may lead to an administrative hearing at the State Office of Administrative Hearings (SOAH). After a hearing before an administrative law judge (ALJ) at SOAH, the ALJ may issue a Proposal for Decision (PFD) in your case. Having a professional license defense attorney on your side can make a significant difference in the overall outcome of your case.
Understanding the Proposal for Decision
In many types of professional disciplinary proceedings, contested cases go to the SOAH for administrative hearings. For example, cases are contested if the licensing agency and the license holder cannot reach an agreement to resolve a complaint. Formal disciplinary proceedings then result in the transfer of the case to SOAH for further proceedings.
However, in most cases, the administrative law judge (ALJ) who conducts the hearing does not decide whether the license holder committed the alleged violation or, if so, what sanction the agency should assess for the violation. Instead, the ALJ issues a Proposal for Decision (PFD), typically within 60 days of the hearing, although this deadline may be shorter or longer in some cases. The PFD generally contains the ALJ’s findings of fact and conclusions of law from the administrative hearing.
Challenging the PFD
Under 1 Tex. Admin. Code 155.507, the ALJ must submit the PFD to the referring licensing agency and both parties. If the parties disagree with the PFD, they may submit exceptions to the PFD to the ALJ and the agency within 15 days unless other rules apply by statute. Replies to the exceptions are due within 15 days of filing. The ALJ may change the times for filing exceptions or replies to exceptions by the parties’ agreement or for good cause shown.
The ALJ will review all exceptions and replies and consider whether to make any amendments to the PFD. The ALJ will notify the referring agency and all parties if it recommends any amendments.
Agency Decisions
In most professional licensing cases, the PFD goes to the referring licensing agency for review. Ultimately, it will be up to that licensing board or agency to accept, modify, remand for further findings, or reject the PFD. The findings of fact and conclusions of law are presumptively binding on the agency, so if the agency disregards those findings and/or conclusions, they must state their reasons for doing so in writing. However, the same presumption does not apply to the sanction recommended by the ALJ. As a result, a licensing board may impose a sanction that the ALJ did not recommend.
The licensing board’s authority to take action regarding the PFD may differ according to statute. When an ALJ must submit a PFD to a licensing agency for approval, the agency ultimately must approve the PFD and issue the final order. That final order may consist of a finding of no violation and dismissal or a finding of a violation with an accompanying sanction.
For example, under 22 Tex. Admin. Code §519.72(c), the Texas State Board of Public Accountancy may change or modify a finding of fact or conclusion of law made by the ALJ or vacate or modify an order issued by the ALJ if it determines that:
- The ALJ did not properly apply or interpret applicable law, agency rules, written policies provided to the ALJ with a written statement of applicable rules or policies, or prior administrative decisions;
- A prior administrative decision on which the ALJ relied is incorrect or should be changed; or
- A technical error in a finding of fact should be changed.
Furthermore, under §519.72(d), “if the board modifies, amends, or changes the ALJ’s recommended order, an order shall be prepared reflecting the board’s changes and the board’s specific reason and legal basis for the changes.” This section also explicitly gives the Board the authority to make the final decision in assessing discipline.
Some licensing agencies permit the parties to present final arguments concerning the PFD at the meeting at which they consider the PFD. In that case, the license holder can attend and make arguments about why the agency should or should not accept the PFD as issued or modified.
For instance, in disciplinary proceedings before the Texas Department of Licensing and Regulation (TDLR), 16 Tex. Admin. Code §60.308 states that PFDs shall be brought before the Commission of Licensing and Regulation of TDLR for consideration at its meeting. The parties may attend the meeting and make final arguments to the Commission about the disposition of the case. The Commission then issues a final order concerning the case, in which it may adopt, amend, or reject the ALJ’s PFD.
Challenging Agency Decisions
You generally can challenge an agency’s professional licensing or disciplinary decision by filing suit in Travis County District Court. In most cases, you must first file a motion for rehearing as a prerequisite to filing suit. However, these rights vary according to the statutes concerning each professional license.
We Will Stand Up for Your Rights and Fight for Your License
You can count on the experienced professional license defense lawyers at Bertolino LLP, to defend you when you receive notice of disciplinary action against your license. We will investigate the circumstances that led to your disciplinary proceedings and devise the best strategy for your case. In addition, we will work to clear your name and ensure your professional license remains intact. Call us at (512) 515-9518 or contact us online.
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