A contested disciplinary hearing before a state licensing board, or an administrative law judge assigned to hear the matter, is where the state has to prove the board's investigative finding with evidence that holds up under the rules of that hearing. The license is what is at stake, and a revocation or suspension for reasons bearing on professional competence, professional performance, or financial integrity can also be grounds for an OIG exclusion from federal healthcare programs. Procedure is set state by state, in the medical practice act, related statutes such as the administrative procedure act, and the board's own rules, so it varies by state and by board. This is a different proceeding from the informal interview a board investigator may request earlier in a case, and from a federal administrative hearing convened over a DEA registration, which follows its own federal procedure.
Who Carries the Burden of Proof
In a disciplinary case the burden of proving the violation sits with the state, not the licensee, where the statute says so: Vermont's statute, as the Federation of State Medical Boards quotes it, places the burden of proof in a disciplinary action on the State. The federation describes due process in board hearings as meaning a physician is innocent until proven guilty. What that burden requires differs by state: a Federation of State Medical Boards overview last updated in September 2024 lists 43 boards as exclusively using a preponderance of the evidence standard, 11 as exclusively using the higher clear and convincing evidence standard, including California's medical board, 11 with standards that vary by the nature of the violation, and 2 that use a different standard. Confirm which standard the board applies before the hearing rather than assuming it from another state's case.
How the Investigative File Enters the Record
The investigative file has to be put into the hearing record through witnesses and exhibits. California's Government Code § 11513, for example, takes oral evidence only on oath or affirmation and gives each party, the agency included, the right to call and examine witnesses and to introduce exhibits, so the board's side can call its investigator and offer the records gathered during the investigation, including any obtained by subpoena. Administrative hearings relax the evidence rules of a jury trial; the U.S. Supreme Court held in Richardson v. Perales, a Social Security disability case, that a physician's written report can be received despite being hearsay, and can support a finding against the claimant, when the claimant had the right to subpoena its author and did not use it. Several states still limit how far that goes: California's Government Code § 11513 lets hearsay supplement or explain other evidence but, over a timely objection, bars hearsay alone from supporting a finding unless it would be admissible over objection in a civil action.
Cross-Examination of the Board's Witnesses
The right to cross-examine the investigator and any other witness the board calls is part of the minimum hearing procedure in the 2010 Revised Model State Administrative Procedure Act, which requires the presiding officer to give all parties the opportunity to conduct cross-examination to the extent necessary for full disclosure of all relevant facts and issues. California's Government Code § 11513 gives each party the right to cross-examine opposing witnesses. Cross-examination is also the safeguard the Court leaned on in Richardson v. Perales: the claimant did not ask to subpoena the reporting physicians, and the Court agreed that he was precluded from complaining afterward that he had been denied the rights of confrontation and cross-examination.
The Clinical Witness on Standard of Care
When the charge turns on whether care met the accepted standard, the Pennsylvania State Board of Medicine's statement of policy at 49 Pa. Code § 16.52a shows how one board describes the clinical witness who should testify to it: whenever practicable, the witness should practice in the licensee's specialty and subspecialty, or one with a substantially similar standard of care, and be substantially familiar with the standard of care as of the time of the alleged breach. Where the licensee is board certified, the witness should hold the same or a similar certification. The policy allows exceptions, including for a witness whose active research or full-time teaching gives sufficient current training, experience and knowledge. The North Carolina Medical Board has published its own position statement on medical testimony. The Pennsylvania policy also says nothing in it precludes the Board from drawing on its own clinical knowledge to determine the applicable standard of care, and the 2010 Revised Model State Administrative Procedure Act lets the presiding officer, or the members of a multi-member body hearing the case, use their own experience and technical knowledge in evaluating the evidence.
Resolving the Matter Without a Full Hearing
Not every case runs to a full hearing. A licensee can resolve it earlier by a negotiated consent order, weighing what the order requires giving up and what it lets the licensee keep against the reporting and credentialing consequences that follow it.
The hearing is where the investigator's file has to hold up under cross-examination, and where a clinical witness has to defend the standard of care under oath rather than only in a written report.
Why Early Legal Counsel Is Critical
It is critical that a licensee promptly retain experienced healthcare defense counsel once a disciplinary matter is heading toward a contested hearing. Counsel brought in early can assert the licensee's procedural rights, argue which burden of proof and evidentiary rules apply, advise the licensee during the investigation, before the hearing record is made, and look for a qualified standard-of-care witness before the hearing. Timing matters for objections too: in California, a hearsay objection under Government Code § 11513 is timely if made before submission of the case or on reconsideration.
How Health Law Alliance Can Help
Health Law Alliance's attorneys have handled 5,000+ matters, with 25+ years of experience. If you are facing a contested hearing before a licensing board or an administrative law judge, contact Health Law Alliance's professional license defense attorneys for a free, confidential consultation.
