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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 2

Posted on in Professional Licensing Defense

By Attorney Arthur Thexton, Of Counsel

Part 2: How does the Wisconsin Department of Safety and Professional Services Review Complaints?

GavelIn my last blog, I talked about how the Department is organized. This time, we will see how the Department operates on a day-to-day basis, when complaints are received.

All communications which can reasonably be construed as complaints about an entity or person, received by any person in the Department, are routed to the Department's Division of Legal Services and Compliance (formerly the Division of Enforcement), Wis. Adm. Code § SPS 2.035. The Division is composed of an administrator who supervises “teams”: the intake/administrative services team (a supervisor, four intake staff, and three staff who do "probation agent" work with disciplined licensees), and the three prosecution teams, who are overseen by two supervising attorneys: one handles the Medical team (3 prosecutors, two paralegals, and three investigators) and the Business team (2 prosecutors, 1 paralegal, and 4 investigators) while the other handles the Health and Nursing team (4 prosecutors, 1 paralegal, and 3 investigators). There is also a supervisor who supervises all of the investigators; the attorney supervisors oversee the prosecutors and paralegals. The Division serves as the quasi-independent police department and “district attorney” for all of the boards and the Department’s directly regulated occupations. (By comparison, Waukesha County, with its population of 361,000, has 17 prosecutors in the District Attorney’s office, including the DA, plus support staff.) The Division Administrator position was, during the tenure of Gov. Thompson, changed from civil service (classified) to a non-civil service (political appointee) position. All other positions in the Division are in the classified service. The Administrator answers directly to the Secretary.

Communications take many forms, the most common being letters and written complaint forms from members of the public, including other licensees. However, communications include telephone calls, newspaper articles, e-mails, and memos from staff of personal conversations they have had with friends and other informants. It is also now possible to fill out a complaint form directly on the Department’s website. They also include communications and referrals from other agencies, of which the most numerous are from the Commissioner of Insurance and malpractice insurance companies. All payments of all medical malpractice insurance companies are reported to the Commissioner of Insurance, who reports them to the Division. In some cases, such reports are made directly to the Division. Only two boards have rules requiring self-reporting, and these are limited to reporting discipline by other states. All licensees are required to self-report criminal convictions Wis. Stat. § 440.03(13)(am). In 2010, the highest numbers of complaints were received about persons regulated by the Board of Nursing (680, which is an anomaly; the usual number is closer to 450-500), the Medical Examining Board (428), and the Real Estate Examining Board (153). It is important to remember that the overwhelming majority of complaints do not result in discipline: in 2010 the Division of Legal Services and Compliance received 2,501 complaints against 3,369 persons, while the boards and Department issued some 618 disciplinary orders and 165 Administrative Warnings. The complaints against 1,625 persons (so, about half) were closed at screening, without investigation, for a variety of reasons. Regardless of source, all such communications are labeled "informal complaints" and are given a case number by clerical staff on the Intake Team. In most cases, the licensee (who is now referred to as the “respondent” because he is responding to the complaint) receives a copy of the complaint along with a request for the appropriate records, and is asked to respond to the complaint (this is not done in cases involving drug abuse, fraud, sexual misconduct, or other cases where an investigation may be compromised by notifying the licensee of the complaint prematurely). The complaint, records, and response are typically routed to a "screening panel" which consists of two or three members of the relevant board (normally including a public member in addition to one or more professional members), and a prosecuting attorney from the team. This panel will determine whether a case will be opened for investigation or not. It is in this respect that the procedure of prosecution by the Division differs most strongly from a prosecution by a local district attorney. Cases are screened by non-lawyers and a determination is made by them, with prosecuting attorney advice, whether or not to investigate the case, based on seriousness of the allegation, and likelihood that investigation will result in discipline. Frivolous cases, complaints about unregulated activity, and billing disputes, for example, are not investigated. If the case is not to be investigated, it is "closed without investigation" and a letter to that effect is sent to the complainant. Over half of all complaints are closed without investigation at this point. After the screening panel has determined that a case will be investigated, it is routed to the appropriate team. In cases where time appears to be of the essence, there is a process for “bypassing” the screening process, and opening a case without delay; often the same day it is received (for example, cases involving substance abuse, sexual misconduct, or other serious criminal behavior where it appears that harm could result from even a short delay). In such cases, there are also provisions for summarily suspending a license, to remove someone from practice immediately, but these are invoked only a few times each year. Next time, I will talk about the case advisor, a role which is unknown to most, but which is critical from the standpoint of the Department. If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown LLP.

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