Hearing Process
The purpose of formal hearings, as described in N.C. Gen. Stat. §§ 90-14.1 and 90-14.2, is to provide licensees who are subject to charges (“respondents”) an opportunity to be heard concerning the charges and allegations made against them and to give applicants for licensure (“petitioners”) the opportunity to be heard concerning the Board’s decision to deny their application for licensure. This type of formal proceeding is an adversarial, trial-like proceeding that must be conducted when informal settlement procedures are either not authorized by the Board or fail to resolve the case. Respondents and petitioners are permitted and encouraged to hire legal counsel to advise them during the investigative, licensure, and formal hearing processes.
Formal hearings may be conducted before a quorum or panel of the Board. The presiding officer at the formal hearing is a Board member who is empowered to administer oaths, receive evidence, and regulate the course of the formal hearing. The presiding officer is assisted by independent counsel who is retained to provide advice to the Board concerning contested matters of procedure and evidence.
At a formal hearing related to disciplinary charges, the burden is on the Board to prove the allegations contained in the Notice of Charges by a preponderance of the evidence. When the Board denies a license application, the burden is on the petitioner to satisfy the Board of their qualifications for licensure.
A respondent or petitioner that is the subject of a formal hearing is entitled to the following:
- Written notice indicating the charges made against them or the basis for denial of an application for licensure and the opportunity to heard concerning the charges or licensure denial;
- Notice of a time and place designated by the Board in which a public hearing will be held, not less than 30 days from the date of service of the notice;
- The right to appear personally or to be accompanied and represented by legal counsel;
- To cross examine witnesses and present evidence on their own behalf; and
- To file an answer to the charges within 30 days after the service of the notice of charges.
Once charges or a denial has been issued, the parties may engage in discovery pursuant to N.C. Gen. Stat. § 1A-1, the North Carolina Rules of Civil Procedure. In addition to any written discovery requests, the Board shall provide information obtained during the investigation of the respondent or during the application process of the petitioner with the exception of information that:
- Is subject to attorney-client privilege or attorney work product;
- Would identify an anonymous complainant;
- Will not be offered into evidence by the Board and is related to:
- Advice, opinions, or recommendations of the Board staff, consultants, or agents; or
- Deliberations by the Board and its committees during an investigation.
The inactive status of a respondent’s license does not deprive the Board of the authority to conduct a formal hearing and take appropriate action related to a respondent’s license. Additionally, if a respondent or petitioner fails to appear after notice of a formal hearing has been given or a formal hearing has been requested, the proceedings may go forward without the respondent or petitioner being present.
At a formal hearing, preliminary motions may be made, opening statements summarizing the facts may be given, testimony may be taken by both direct examination and cross-examination of witnesses called on behalf of the Board and the respondent or petitioner, documentation may be offered for the record, and parties may make a closing statement to the Board. All evidence is transcribed by a court reporter to establish a formal record of the proceedings.
At the conclusion of all testimony, the Board will enter into closed session to make findings of fact and conclusions of law and to determine an appropriate disciplinary sanction, if applicable. The decision of the Board is determined by applying the relevant law to the evidence presented in the record. Once a decision has been reached, the Board returns to open session and announces its decision. Sanctions for each violation may be levied separately or in combination, and may include: (1) probation with or without conditions; (2) limitations and conditions on the ability to practice; (3) public reprimand; (4) monetary redress; (5) public letter of concern; (6) requiring the provision of free medical services; (7) requiring satisfactory completion of treatment programs or remedial or educational training; (8) a fine; (9) denial of licensure; (10) annulment of a license; (11) suspension of a license; or (12) revocation of a license.
The Board’s decision, together with the Board’s Findings of Fact and Conclusions of Law, is put into a written Final Order. The Final Order is provided to the respondent or petitioner and is also a public document that is published on the Board’s website.
