2023 Vermont Statutes › Title 3 - Executive › Chapter 5 - Secretary of State › § 129. Powers of boards or of Director in advisor professions; discipline process

§ 129. Powers of boards or of Director in advisor professions; discipline process
(a) In addition to any other provisions of law, a board or the Director, in the case of professions that have advisor appointees, may exercise the following powers:
(1) Consistent with other law and State policy, develop administrative rules establishing evidence-based standards of practice appropriate to secure and promote the public health, safety, and welfare; open and fair competition within the marketplace for professional services; interstate mobility of professionals; and public confidence in the integrity of professional services.
(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(4) Reinstate or deny reinstatement of a license that has been revoked, suspended, limited, or conditioned.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 that 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)(A) Issue temporary licenses during a declared state of emergency. The person to be issued a temporary license must be:
(i) currently licensed, in good standing, and not subject to disciplinary proceedings in any other jurisdiction; or
(ii) a graduate of an approved education program during a period when licensing examinations are not reasonably available.
(B) 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, provided the licensee remains in good standing, and may be reissued by the board if the declared state of emergency continues longer than 90 days.
(C) 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 or without the personal attestation of the applicant or an authorized officer of an applicant corporation as to the representations therein.
(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 that have advisor appointees, shall receive complaints from any source, or may investigate without receiving a complaint.
(c)(1) Boards and administrative law officers sitting in disciplinary cases shall do so impartially and without ex parte knowledge of the case in controversy.
(2) A State prosecuting attorney assigned by the Office shall be responsible for prosecuting disciplinary cases before boards or administrative law officers.
(3) The Office may assign one or more board members or advisors to assist Office investigators and the prosecutor in relation to the investigation and prosecution of licensing and disciplinary matters. If a board member has served in this capacity, the member shall not participate in ex parte communications with other board members regarding the case and shall not participate in deliberating or deciding the case.
(d) A board or the Director 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)(1) When a board or the Director, in the case of professions that have advisor appointees, intends to deny an application for a license based on the applicant’s past or current unprofessional conduct or based on an ongoing investigation of the applicant, in Vermont or elsewhere, for unprofessional conduct, 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 after the date on which the notice is mailed with the board or the Director for review of the board’s or Director’s preliminary decision.
(A) At the review hearing, the applicant shall bear the burden of proving that the preliminary denial should be reversed and that the license should be granted.
(B) After the hearing, the board or Director shall affirm or reverse the preliminary denial, explaining the reasons therefor in writing.
(2) The decision of a board or the Director, in the case of professions that have advisor appointees, to deny an application for a license based on a finding by the board or the Director that the applicant has not fulfilled the qualifications or met the standards required for licensure shall be a final decision of the board or Director.
(A) Upon such a final decision by the board or the Director, 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 appeal the decision of the board or Director to deny the application by filing a notice of appeal with the Director, who shall assign the case to an appellate officer.
(B) Appeals of decisions by the board or Director to deny an application for licensure based on the qualifications of an applicant shall be conducted in accordance with 3 V.S.A. § 130a. The record in the appeal shall include the applicant’s application for the professional license, the written notice of the decision to deny the application, and any other materials established in rules adopted in accordance with 3 V.S.A. chapter 25.
(f)(1)(A) The Director may appoint a hearing officer, who shall be an attorney admitted to practice in this State, to conduct a hearing that would otherwise be heard by a 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.
(B) When disciplinary charges are pending concurrently against a single individual or entity, in one profession or multiple, the Director is authorized to order that the matters be consolidated in a single proceeding.
(2) In board professions, 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 provisions of section 811 of this title regarding proposals for decision shall not apply to the hearing officer report.
(3) 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 Office legal counsel to grant continuances of scheduled hearings.
(2) Its chair to grant or deny stays pending appeal.
(3) An administrative law officer to convene and conduct prehearing conferences and to preside at hearings for the purpose of making procedural and evidentiary rulings. The board may overrule a ruling by an administrative law officer under this subdivision.
(4) Office staff to grant applications that present no substantial discretionary or factual question and to administer the policies of the board between regular meetings.
(h)(1) 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.
(2)(A) 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.
(B) 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.
(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. The Director may assign Office legal counsel to assist a board in the lawful and orderly conduct of its open meetings and other nondisciplinary business, including making procedural and parliamentary rulings.
(j) 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.
(k)(1) 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.
(2) A board may grant a temporary renewal license pending the completion of the required continuing education.
(l) Unless a disciplinary order expressly provides to the contrary, discipline against any license or credential issued by a regulatory body attached to the Office to an individual or entity shall be applicable as a matter of law to all other licenses issued to that licensee by that regulatory body.
(m) In any proceeding under this section that 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.
(n)(1) A board may designate a hearing panel consisting of less than a quorum of the board to conduct hearings that would otherwise be heard by the full board. A hearing panel shall consist of at least three members, including at least one professional member of the board and at least one public member of the board. No member of the hearing panel shall have been a board member who was assigned, in accordance with subdivision (c)(3) of this section, to assist the Office investigators and prosecutor in relation to the investigation and prosecution of the matter being heard. The Director shall establish by rule the process for designating a hearing panel.
(2) If there is an insufficient number of board members to serve on a hearing panel by reason of disqualification, resignation, vacancy, or necessary absence, the Director may appoint ad hoc members to serve on the hearing panel for that matter only.
(3) If a board is unable to convene in a timely manner to hear a disciplinary matter or to appoint a hearing panel, the Director may designate a hearing panel to hear a matter that would otherwise be heard by the full board. If the Director appoints a hearing panel, the Director shall follow the requirements of subdivisions (1) and (2) of this subsection.
(4) A hearing panel shall be designated solely upon the request and decision of the board or the Director and in accordance with this subsection and rules adopted by the Director in accordance with 3 V.S.A. chapter 25. (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; 2015, No. 38, § 3, eff. May 28, 2015; 2017, No. 48, § 3; 2017, No. 144 (Adj. Sess.), § 5; 2019, No. 91 (Adj. Sess.), § 14, eff. March 30, 2020; 2019, No. 178 (Adj. Sess.), § 4, eff. Oct. 1, 2020; 2021, No. 69, § 3; 2023, No. 77, § 1, eff. June 20, 2023.)