Protect your License, Protect your Livelihood Recent Supreme Court Decision Offers Lessons to Professionals Facing Investigation or Disciplinary Action by Licensing Board

In New Hampshire, physicians, architects, engineers and many other professionals are regulated by administrative licensing boards. For those professionals, a state-issued license represents their livelihood. Any threat to that license, be it a board investigation, or worse yet, a disciplinary proceeding, must be taken very seriously. The Appeal of Boulard, a recent decision by the Supreme Court of New Hampshire, clarifies important legal principles that affect any professional facing investigation or disciplinary action. The decision also demonstrates why professionals should obtain legal counsel as soon as they receive notice of an investigation or complaint.

The Boulard case involved the New Hampshire Board of Dental Examiners. That board – like most other licensing boards in New Hampshire – is a creation of statute. In other words, the legislature passed a law that created the board and defined its authority. Most licensing boards are given the authority to adopt rules that govern each licensee’s professional practice, conduct investigations of possible misconduct by licensed individuals, conduct disciplinary proceedings and take disciplinary action against their professional licensees subject to their authority. Licensing boards are generally given great latitude in conducting investigations and imposing discipline. For instance, the New Hampshire Board of Dental Examiners is permitted to conduct formal or informal investigations with or without prior notification to licensee. Those investigations can include unannounced inspections of the licensee’s practice location – and the Board can retain counsel, dental advisors or other investigators to assist.

Like most boards, the Board of Dental Examiners can conduct adjudicatory hearings, based on its own initiative or a written complaint received from a private person, to determine whether the licensed professional who is the subject of the hearing has committed professional misconduct. Hearings are generally open to the public and are conducted much like a trial – each party can call its own witnesses, cross-examine the other party’s witnesses and give opening and closing statements and present his/its side of the story. The Board investigator and in some cases the Attorney General’s office, prosecute the matter on behalf of the Board. Licensed professionals defending against a complaint are entitled to, and should be represented by counsel. If the Board concludes that the defending licensee has committed professional misconduct, it has the authority to issue an order imposing disciplinary action, which may be in the form of reprimand, fines and license limitation, suspension or revocation. Boards also generally have the authority to enter settlement agreements with the licensee, in lieu of a hearing. If the board does issue an order after a hearing, the licensee has the right to appeal to the Supreme Court of New Hampshire. This is what happened in the Boulard matter.

In Boulard, the New Hampshire Board of Dental Examiners (“Board”) received a complaint from the former employee of a dentist with a Board-issued anesthesia permit, alleging that, among other things, the dentist was unequipped to handle a sedation emergency. In response to the complaint, the Board sent two investigators – one from the Board, one from the New Hampshire Department of Justice – to conduct an unannounced investigation. Neither investigator was trained in sedation. The investigators concluded that the dentist did not have the proper equipment and medication.  In response, the Board temporarily suspended the dentist’s sedation permit and held a hearing to determine if the dentist had committed professional misconduct. Less than a month later, and at the dentist’s request, the Board commenced a second investigation. This time, the investigation was conducted by a standing committee established by the Board. Unlike the first investigation, the committee’s investigation was carried out by licensed dentists that held sedation permits after notice to the defending dentist. The committee’s evaluation gave the dentist a passing grade for moderate sedation, contingent upon the dentist acquiring required medication, equipment and staff certifications.

Eventually, the Board deliberated sanctions it might impose, based on the results of the hearing. It had not received and thus did not consider the results of the second, committee-led investigation. Even so, the Board issued an order stating that the dentist had committed professional misconduct. The order also indefinitely suspended the dentist’s sedation permit until the Board could review all information regarding sedation at his facility and complete its investigation of other issues raised in the complaint. In response, the dentist asked the Board to reconsider its decision in light of the favorable results of the second investigation. The Board did so, but in a subsequent order confirmed that the dentist committed professional misconduct, and again indefinitely suspended his permit until the Board had reviewed the other issues raised in the complaint. The dentist appealed the Board’s decision to the Supreme Court of New Hampshire. That court affirmed the Board’s imposition of an indefinite suspension for certain professional misconduct, but refused to uphold the Board’s decision to not reinstate the dentist’s permit until it had completed its investigation into the other issues raised in the complaint.

The Boulard decision sets forth a handful of legal principles that are of critical importance to any professional under investigation by a licensing board. First, the court affirmed the Board’s decision to impose an indefinite suspension (until certain conditions are met) in response to its finding that he committed professional misconduct. However, court found improper the Board’s decision to not reinstate the dentist’s permit until it had received and reviewed information concerning other practice issues that the Board was investigating. The court reasoned that the Board had statutory authority to conduct investigations – and to suspend a permit where it found professional misconduct – but held that the mere fact that it is conducting an investigation did not, without more, justify suspension of the dentist’s permit. Professionals governed by similar statutes, like the dentist, generally cannot be subject to actions against their license by their licensing board pending an investigation.

The Boulard court also made various holdings that reaffirm the Board’s wide discretion in deciding disciplinary actions. For example, the court held that the Board had a reasonable basis for concluding that the dentist committed professional conduct, despite not adopting the passing grade given by the committee conducting the second evaluation. In other words, the Board, as the decision-maker, had no obligation to accept the recommendations of a committee it appointed to investigate potential misconduct. Similarly, the court rejected the argument that the Board lacked expertise to evaluate the dentist’s conduct. According to the court, the sedation-related violations found by the Board were not so complex to bar the Board from deciding without the aid of expert testimony – even though not all members of the Board were trained in sedation. This means decisions about a professional’s license may be the hands of one or more board members that are not trained in the particular expertise at issue. Finally, the Boulardcourt reaffirmed that a licensing board’s finding of fact in a disciplinary proceeding is presumed to be lawful and reasonable – and that presumption may be overcome only by showing that there was no evidence whatsoever from which the board could draw the conclusion it made. In other words, the Supreme Court will not disturb a licensing board’s decision unless that decision was without any supporting evidence at all. It is therefore critical that a licensee present his or her best case at the board hearing stage, because the Supreme Court will not re-litigate the matter. In sum, New Hampshire’s licensing boards are generally composed of competent, dedicated professionals who both serve their profession and protect the public. As demonstrated in Boulard, such boards have great latitude in deciding matters that affect a professional’s livelihood. Accordingly, a professional facing an investigation or disciplinary proceeding should consult with counsel early in the process to avoid a board decision that could jeopardize his or her livelihood.