Kansas Court Of Appeals Agrees State Board Of Healing Arts Has Broad Subpoena Power

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A 2016 decision issued by the Kansas appeals court discussed the broad authority possessed by the State Board of Healing Arts (“the Board”) to issue subpoenas during investigations. The case discusses important issues relating to the relevance of certain information as well as the Board’s ability to issue subpoenas for that information.  Since a subpoena is a court order, compliance must be made. However, a party upon whom a subpoena has served can move a court to quash the subpoena. Kansas professional licensing attorney Danielle Sanger represents professionals facing disciplinary action. Attorney Sanger vigorously represents her clients to protect their livelihood.

The Board’s authority to issue subpoenas is conferred by statute. Kansas Statute 65-2839a(a) and (b) delineate the extent of the Boards’ authority. The statute gives the Board wide-ranging to review documents, copy documents, compel witnesses to testify, and compel witnesses to produce documents and other physical evidence.  The statute limits the nature of the documents to those related to medical competence, unprofessional conduct, and the physical or mental health of the licensee to safely practice medicine. The licensee subject to the subpoena may file a petition with the Board to revoke the subpoena within five days of receiving the subpoena.  The statute requires that the Board revoke any subpoena that does not relate to any grounds for disciplinary action, is not relevant to the investigation, or fails to describe particularly the items requested.

Courts defer to administrative actions and the agency’s authority to issue subpoenas. Enforcement of subpoenas, under Kansas law, is left to the issuing agency.  Notwithstanding, Kansas courts have jurisdiction to hear motions to quash subpoenas.  Kansas courts take a “relaxed” view toward administrative subpoenas.  A Kansas court will uphold the subpoena unless the subpoena has no relevance to the investigation or is unlawful for some reason. State agencies do not enjoy limitless subpoena power. Accordingly, courts will validate subpoenas if the request is made under the lawful agency action, the demand is not indefinite, and the request is “reasonably relevant to the purpose of the inquiry.” The reviewing court has the authority to quash, modify, or place limitations upon an administrative subpoena.  Licensees must be aware that in 2015 the law changed. A district court may hear a petition to quash a subpoena only after the party exhausts its “administrative remedies.”

Understanding the extent of the Board’s authority is vital to knowing its limitations on issuing subpoenas.  The Kansas Supreme Court stated that the purpose of the Board is to protect the public from harm perpetrated by unqualified, unprofessional, and improper practices. The state has an enormous interest in protecting its people from harm. The Board promotes competent health care practices by ensuring each practicing the healing arts is properly licensed.  The state legislature charged the Board with issuing licenses to competent individuals and revoking licensed of the unqualified. The Board’s authority to license practitioners accompanies the power to investigate complaints. Part of that investigatory power is the power to issue administrative subpoenas.

The issue Board’s authority was an issue in a recent Appeals Court decision. In that case, the Board served a subpoena upon a chiropractor and his employer. A dissatisfied former patient sued the chiropractor in small claims court for negligence. The court entered judgment for the chiropractor. Once judgment entered, the Board received notice of the lawsuit and began an investigation. The Board issued subpoenas for the patient’s records. The chiropractor’s employer filed a petition to quash the subpoena. The employer argued that the chiropractor successfully defended the lawsuit filed by the former patient. Therefore, the chiropractor committed no wrongdoing. The District Court and the Appeals Court disagreed. The Appeals Court held that the subpoena issued by the Board was relevant to investigate the chiropractor for incompetence.

Attorney Sanger Can Help If You Were Served With A Subpoena

Kansas Professional Licensing Attorney Danielle Sanger will fight to protect your practice from intrusion by an administrative agency. Attorney Sanger vigorously defends her clients against allegations of professional misconduct. Call Attorney Sanger today at 785-979-4353 to schedule an appointment and discuss how Attorney Sanger will fight for you.

A Recent Missouri Appellate Decision Denies Licensing Reciprocity

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A 2013 appellate decision issued by the Missouri Court of Appeals examined whether a marital and family therapist licensed in Kansas should receive a license without first taking an examination in Missouri. The case highlights the differences between the Missouri and Kansas requirements for becoming a licensed marital and family therapist in either state. The case also discusses the procedural mechanisms employed in this case. The applicant lost her appeal. Missouri and Kansas professional licensing attorney Danielle Sanger discusses the licensing requirements of each state as well as the procedural problem the applicant faced. Attorney Sanger is an experienced professional licensing attorney practicing in Missouri and Kansas.

In the instant case, the Missouri State Committee of Marital and Family Therapists (“the Committee”) refused to issue a license to a holder of a Kansas marital and family therapist. The therapist applied to become a Missouri marital and family therapist without taking an examination in Missouri. In Missouri, the Committee will grant a license to an applicant upon satisfying statutorily required conditions. The statute establishes the minimum formal educational requirements such as a master’s degree or doctorate, possess 24 months of post-graduate clinical work, obtain three semester hours of course work in diagnostic systems, and obtain a passing score on the exam.

Missouri has one exception to the examination requirement. A therapist licensed in another state may become licensed in Missouri if all conditions precedent are satisfied.  This is known as “reciprocity.” First, the Committee must be satisfied that the licensing qualifications in the other state are substantially similar to Missouri’s requirements. Second, the applicant must have a current license in the other state. Finally, the applicant must agree to an examination of any disciplinary record of the therapist.

In this case, the Committee denied the application for licensure because the applicant did not take an exam in Missouri. The applicant appealed the decision to the Administrative Hearings Commission (“AHC”). The applicant and the Committee both moved the hearing commissioner to rule in their favor in summary fashion. The facts of the case, the parties believed, were not in dispute. A summary decision is an efficient means to resolve a claim before the AHC, as long as the facts are undisputed. The AHC granted summary decision in the applicant’s favor, ruling that Kansas’ and Missouri’s licensing requirements were substantially similar. The Committee appealed. A court can review the AHC’s decision and will not overturn it unless the decision is incorrect as a matter of law. In other words, a summary decision will be overturned when the AHC is incorrect applying the law to the undisputed facts.

The appeals court ruled that the AHC was wrong a matter of law and overturned their decision. The appeals court performed a thorough analysis of Kansas marital and family therapist licensing requirements and contrasted those with Missouri’s requirements. The appeals court found that Kansas licensing scheme for the particular license the applicant held in Kansas was not sufficiently rigorous to favorably compare to Missouri’s licensing requirements.  Interestingly, Kansas has two designations of marital and family therapists. One designation is a clinical marital and family therapist while the other is known simply as a marital and family therapist, without the clinical designation. The applicant, in this case, did not obtain the clinical designation. Consequently, Kansas law required the applicant to practice under the license of a clinical marital and family therapist or other medical professional permitted to diagnose and treat mental health disorders.

The appeals court held that there exist substantial differences between Missouri and Kansas licensing requirements and therefore the applicant was not entitled to reciprocity. The court pointed out that Kansas’ educational requirements were much less stringent than Missouri’s. Also, the court noted that Missouri requires post-graduate work, whereas Kansas does not. Thus, the applicant failed to meet her burden of proving she qualified for reciprocity.

For Further Information

Missouri and Kansas Professional Licensing Attorney Danielle Sanger is an ardent advocate for professional licensees. Call Attorney Sanger today at 785-979-4353 to schedule your free, no obligation consultation.

 

Missouri Professional Licensing Attorney Explains Appealing Restrictions On A New License

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The Missouri Board of Healing Arts (“the Board”) has the authority to place restrictions on newly issued licenses. The licensee has the right to appeal the Board’s decision to the Administrative Hearings Commission of Missouri (“AHC”). Successfully appealing an adverse decision by the Board will make a tremendous difference in your practice and well as your personal life. If the AHC decides against you, then you may appeal to the Courts of Missouri for relief. Danielle Sanger, an experienced professional licensing attorney in Missouri, explains the process of appealing an adverse decision made by the Board to the Circuit Courts, and then to the Appellate Courts if necessary.

The procedure for imposing discipline by the Board restricting or denying new licenses differs from the imposing discipline of an existing license. Disciplining an existing license is a two-step process. First, the Board determines the appropriate discipline after the AHC determines the facts of the underlying case.  The licensee appeals the Board’s decision to impose discipline to the Circuit Court. The Board may rely upon the same grounds to issue a new license with restrictions as it does when imposing discipline on an existing license.  The Legislature gave the Board discretionary power to deny licenses for various reasons. Those reasons include evidence of bad character, unprofessional conduct, and conviction of a felony, to list a few.

The AHC hears appeals from Board decisions on new licenses. The AHC hears the issue de novo, or anew. The AHC reviews the record from the hearing before the Board. The record contains transcripts of testimony given by the witnesses before the Board as well as properly admitted exhibits. The AHC then decides whether the conditions the Board attached to the license are appropriate based on a new review of the record. The AHC must make findings of fact as well as rulings of law on the issues presented on appeal. The AHC then makes its determination and actually “steps into the shoes” of the Board.  In other words, the AHC exercises the same authority as granted to the Board by the Missouri legislature.  Exercising the same authority necessarily carries with it the discretion afforded the Board by the Legislature.  The AHC does not merely parrot the Board’s decision.  The AHC review is not designed to overturn the Board only if the Board made an error.

The Missouri courts are permitted to hear the case only after the agency made its final decision. The applicant must exhaust all administrative remedies before resorting to the courts for relief. Missouri law places restrictions on the circuit court’s authority when deciding AHC appeals. The petitioner must file for relief no greater than 30 days after the final decision by the AHC. A judge alone must hear the case; the parties are not entitled to a jury. The judge limits review to constitutional compliance, whether the Board exceeded statutory authority, whether the Board’s decision was supported by competent evidence, the hearing was unfair, whether the Board’s decision was arbitrary and capricious, or whether the Board abused its discretion when making its ruling.

The party aggrieved by the circuit court’s decision may file a further appeal. The appellate court reviews the Board’s action and not the circuit court’s decision. The issue the appeals court must address is very straightforward: whether the entire record supports the Board’s decision with substantial and competent evidence. The Board’s decision must be against the overwhelming weight of the evidence if the appellate court will overturn the agency’s decision.

Experienced Advocate Fighting For You Every Step Of The Way

Missouri Professional Licensing Attorney Danielle Sanger is an experienced and zealous advocate for licensees facing discipline. Call Attorney Sanger today at 785-979-4353 to schedule your free consultation. Attorney Sanger will fight to protect you and your livelihood. Call today.

Are Professional Licensing Decisions Presumptively Valid In Kansas?

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A professional licensee aggrieved by licensing boards may seek redress of those wrongs in Kansas courts. State statutes limit a court’s authority to hear appeals from administrative agencies such as licensing boards.  The court is permitted to inquire into a very narrow scope of well-defined issues. A reviewing court does not re-try the case. Rather, the court looks for errors of law in the agency decisions or crafts a decision that is well beyond the weight of the evidence. Experienced, savvy, and skilled professional licensing attorneys know how to use the law to their client’s advantage. Kansas professional licensing attorney Danielle Sanger uses her knowledge of the law and skilfully applies it to the benefit of her clients facing discipline on their professional license.

Kansas state statute 77-621 controls the scope of review for a court hearing an appeal from an administrative agency. At the outset, 77-621 states that the burden of proof and persuasion is on the party aggrieved by the agency’s decision.  Consequently, the licensee must produce evidence to show that the agency decision was invalid and convince the court that the agency was wrong in making its decision.

The statute permits the court to revoke the agency’s decision in limited circumstances.  The court may overturn agency action if the law, rule, or regulation the agency applied in making its decision is unconstitutional on its face or the law as applied is unconstitutional.  The court has the authority to overturn an agency decision if the agency acted beyond its jurisdictional limitations.  Additionally, the court has the authority to overturn an agency’s decision if the agency erroneously applied the law or misinterpreted the law. Agency action may be overturned if the agency failed to follow appropriate procedure or the procedure it follow was unlawful.  Furthermore, the court will overturn agency action if the persons making the decision did not constitute a proper decision-making body or its members were subject to disqualification. Agency action will be overturned if the agency relies on a fact in evidence that was not proved to be “substantial” in light of the entire record of evidence.  The court cannot re-weigh the evidence or engage in a de novo (meaning “anew”) review. Lastly, the court will overturn agency action if agency action was unreasonable, arbitrary or capricious. The standard of review that a court applies when reviewing agency decisions is well-settled. The court may not substitute its judgment for that of the agency.

An appellate court has jurisdiction to hear an appeal from the lower court’s ruling on an agency decision.  The appeals court reviews the district court action to be certain that the court followed the command of 77-621. Next, the appellate court reviews the record of the agency bearing in mind the same scope of review as that of the lower court.  The appeals court determines whether the statute, rule, or regulation supporting the agency’s decision is constitutional. The appeals court begins its review from the premise that it must interpret the law as intended by the legislature. Words are given their ordinary meanings, and the court tries to interpret the law so the interpretation does not create unreasonable results.  The appellate court cannot, like the lower courts, weigh the credibility of the witnesses or evaluating conflicting evidence. Those tasks are left up to the agency to determine. However, courts will give some deference to the agency’s interpretation of the relevant law and will not overturn its interpretation unless the agency was erroneous as a matter of law.

For Further Information

Kansas Professional Licensing Attorney Danielle Sanger vigorously defends professionals who face discipline on their licenses. Attorney Sanger is a knowledgeable and zealous advocate who will fight to protect your rights. Call Attorney Sanger today at 785-979-4353 to schedule your no-obligation, free consultation.