2014 Vermont Statutes
Title 3 - Executive
Chapter 5 - SECRETARY OF STATE
Subchapter 3: PROFESSIONAL REGULATION
§ 129 Powers of boards; discipline process

§ 129. Powers of boards; discipline process

(a) In addition to any other provisions of law, a board may exercise the following powers:

(1) Adopt procedural rules governing the investigatory and disciplinary process.

(2) Issue subpoenas and administer oaths in connection with any authorized hearing, investigation, or disciplinary proceeding. Subpoenas may be issued ex parte by the chair of the board, the Director, or any attorney representing a party. Depositions may be taken after charges upon due notice to all parties without specific authorization by the board.

(3) Issue warnings or reprimands, suspend, revoke, limit, condition, deny, or prevent renewal of licenses, after disciplinary hearings or, in cases requiring emergency action, immediately suspend, as provided by section 814 of this title. In a case involving noncompliance with a statute or rule relating to administrative duties not related to patient, client, or customer care, a board or hearing officer may determine that ordering a monetary civil penalty does not constitute a finding of unprofessional conduct.

(4) Reinstate or deny reinstatement of a license which has been revoked, suspended, limited, or conditioned.

(5) Discipline any licensee or refuse to license any person who has had a license application denied or a license revoked, suspended, limited, conditioned, or otherwise disciplined by a licensing agency in another jurisdiction for conduct which would constitute unprofessional conduct in this State, or has surrendered a license while under investigation for unprofessional conduct.

(6) Notify relevant State, federal, and local agencies and appropriate bodies in other states of the status of any disciplinary case against an applicant or licensee, provided the board has taken disciplinary action or has served a notice of charges against the person.

(7) Refuse to accept the return of a license tendered by the subject of a disciplinary investigation or refuse to allow an applicant who is the subject of a disciplinary investigation to withdraw his or her application without permission of the board.

(8) Adopt rules governing the issuance of licenses to practice, to persons licensed and in good standing to practice in another jurisdiction, that authorize the holder of the license to practice in this State for no more than 10 days or 80 hours in any calendar year upon payment of the required fee.

(9) For good cause shown, waive fees when a license is required to provide services on a pro bono basis or in accordance with standards established by the board by rule.

(10) Issue temporary licenses during a declared state of emergency. The person to be issued a temporary license must be currently licensed, in good standing, and not subject to disciplinary proceedings in any other jurisdiction. The temporary license shall authorize the holder to practice in Vermont until the termination of the declared state of emergency or 90 days, whichever occurs first, as long as the licensee remains in good standing. Fees shall be waived when a license is required to provide services under this subdivision.

(11) Treat as incomplete any license application submitted with a check subsequently returned for insufficient funds.

(12) Waive or modify continuing education requirements for persons on active duty in the U.S. Armed Forces.

(13) Administer a Vermont statutes and rules examination as a condition of licensure, renewal, or reinstatement.

(14) Grant an honorary license to those individuals having demonstrated outstanding service to a profession, at the discretion of the board. An honorary license shall not confer the right or privilege to practice the profession in this State.

(b) A board or the Director, in the case of professions which have advisor appointees, shall receive complaints from any source, or may investigate without receiving a complaint.

(c) A board may assign one or more members of the board to investigate complaints and license applications. These members shall have the assistance of an investigator for the Office and an attorney assigned by the Office of Professional Regulation who shall be responsible for prosecuting disciplinary and licensing cases before the board. In the case of professions which have advisor appointees, the Secretary may designate one or more of the advisor appointees or other licensed or certified members of the profession to assist in the investigation. While acting in this capacity, a board member or advisor appointee shall not sit in adjudication of the case and shall not participate in ex parte communications with other board members regarding the case. A board member whose term of office expires while an investigation is pending may continue through the completion of the case. When a board is unable to assign one or more members to investigate complaints or license applications by reason of disqualification, resignation, vacancy, or necessary absence, the Secretary of State may, at the request of the board, appoint ad hoc members to serve on the board for investigation of that matter only. Ad hoc members shall have the same qualifications as required by law for the absent members.

(d) A board shall notify parties, in writing, of their right to appeal final decisions of the board. A board or the Director shall also notify complainants in writing of the result of any disciplinary investigation made with reference to a complaint brought by them to the board or Director. When a disciplinary investigation results in a stipulation filed with the board, the board or the Director shall provide the complainant with a copy of the stipulation and notice of the stipulation review scheduled before the board. The complainant shall have the right to be heard at the stipulation review.

(e) When a board or the Director, in the case of professions which have advisor appointees, intends to deny an application for a license, the board or Director shall send the applicant written notice of the decision by certified mail. The notice shall include a statement of the reasons for the action and shall advise the applicant that the applicant may file a petition within 30 days of the date on which the notice is mailed with the board or the Director for review of its or his or her preliminary decision. At the hearing, the applicant shall bear the burden of proving that the preliminary denial should be reversed and that the license should be granted. After the hearing, the board or Director shall affirm or reverse the preliminary denial, explaining the reasons therefor in writing.

(f) A board may appoint a hearing officer, who shall be an attorney admitted to practice in this State, to conduct a hearing which would otherwise be heard by the board. A hearing officer appointed under this subsection may administer oaths and exercise the powers of the board properly incidental to the conduct of the hearing. When a hearing is conducted by a hearing officer, the officer shall report findings of fact and conclusions of law to the board. The report shall be made within 60 days of the conclusion of the hearing unless the board grants an extension. The board may take additional evidence and may accept, reject, or modify the findings and conclusions of the hearing officer. Judgment on the findings shall be rendered by the board.

(g) A board may authorize any of the following:

(1) Its chair or legal counsel to grant continuances of scheduled hearings.

(2) Its chair to grant or deny stays pending appeal.

(3) Its chair or legal counsel to convene and conduct prehearing conferences.

(4) Its legal counsel to preside at hearings for the purpose of making procedural and evidentiary rulings. The board may overrule a ruling by legal counsel under this subdivision.

(h) A board member, hearing officer, or administrative law officer having a personal or pecuniary interest or the appearance of a personal or pecuniary interest in the outcome of any board decision shall not participate in deciding the matter. A board member, hearing officer, or administrative law officer whose disqualification is sought shall either disqualify himself or herself or, without ruling on the request for disqualification, refer the request to the Secretary of State, who shall rule on the request. The ruling of the Secretary of State on a request for disqualification shall be final and shall be subject to review only upon appeal of a final order of a board under section 130a of this title or of an administrative law officer under subsection (j) of this section. When a board is unable to convene a quorum by reason of disqualification, resignation, vacancy, or necessary absence, the Secretary of State shall appoint ad hoc members to serve on the board for that matter only, after consulting with the chair of the board involved. Ad hoc members shall have the same qualifications as required by law for the absent members.

(i) A board may consult with the Attorney General or an attorney assigned by the Office of Professional Regulation for the proper conduct of its affairs.

(j) Notwithstanding the provisions of section 130a of this title, hearings involving denials of licensure or disciplinary matters concerning persons in professions that have advisor appointees shall be heard by an administrative law officer appointed by the Secretary of State. A party aggrieved by a final decision of an administrative law officer may appeal to the Superior Court in Washington County which shall review the matter on the basis of the record created before the administrative law officer.

(k) Whenever completion of certain continuing education requirements is a condition of renewal, the board may require the applicant to develop and complete a specific corrective action plan, to be completed within 90 days.

( l ) A board may grant a temporary renewal license pending the completion of the required continuing education.

(m) In any proceeding under this section which addresses an applicant's or licensee's alleged sexual misconduct, evidence of the sexual history of the victim of the alleged sexual misconduct shall neither be subject to discovery nor be admitted into evidence. Neither opinion evidence of nor evidence of the reputation of the victim's sexual conduct shall be admitted. (Added 1989, No. 250 (Adj. Sess.), § 1; amended 1991, No. 167 (Adj. Sess.), § 63; 1993, No. 102, § 3; 1993, No. 103, § 3; 1993, No. 222 (Adj. Sess.), § 19; 1995, No. 126 (Adj. Sess.), § 2; 1995, No. 138 (Adj. Sess.), § 13, eff. May 1, 1996; 1995, No. 171 (Adj. Sess.), § 9, eff. May 15, 1996; 1997, No. 40, § 4; 1997, No. 145 (Adj. Sess.), § 2; 1999, No. 52, § 2; 1999, No. 133 (Adj. Sess.), § 2; 2001, No. 129 (Adj. Sess.), § 2, eff. June 13, 2002; 2001, No. 151 (Adj. Sess.), § 1, eff. June 27, 2002; 2003, No. 66, § 85; 2005, No. 27, § 4; 2005, No. 148 (Adj. Sess.), § 3; 2007, No. 29, § 1; 2007, No. 163 (Adj. Sess.), § 3; 2009, No. 35, § 1; 2009, No. 103 (Adj. Sess.), § 3; 2011, No. 66, § 2, eff. June 1, 2011; 2011, No. 116 (Adj. Sess.), § 4.)