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SPS 2.08 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (2), Register, June, 1992, No. 438, eff. 7-1-92; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.
SPS 2.09 SPS 2.09 Answer.
SPS 2.09(1)(1) An answer to a complaint shall state in short and plain terms the defenses to each cause asserted and shall admit or deny the allegations upon which the complainant relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of the allegation, the respondent shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied. The respondent shall make denials as specific denials of designated allegations or paragraphs but if the respondent intends in good faith to deny only a part or a qualification of an allegation, the respondent shall specify so much of it as true and material and shall deny only the remainder.
SPS 2.09(2) (2) The respondent shall set forth affirmatively in the answer any matter constituting an affirmative defense.
SPS 2.09(3) (3) Allegations in a complaint are admitted when not denied in the answer.
SPS 2.09(4) (4) An answer to a complaint shall be filed within 20 days from the date of service of the complaint.
SPS 2.09 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (4), Register, February, 1979, No. 278, eff. 3-1-79; am. (1), (3) and (4), Register, June, 1992, No. 438, eff. 7-1-92.
SPS 2.10 SPS 2.10 Administrative law judge.
SPS 2.10(1) (1)Designation. Disciplinary hearings shall be presided over by an administrative law judge employed by the department unless the disciplinary authority designates otherwise. The administrative law judge shall be an attorney in the department designated by the department general counsel, an employee borrowed from another agency pursuant to s. 20.901, Stats., or a person employed as a special project or limited term employee by the department, except that the administrative law judge may not be an employee in the division.
SPS 2.10(2) (2)Authority. An administrative law judge designated under this section to preside over any disciplinary proceeding has the authority described in s. 227.46 (1), Stats. Unless otherwise directed by a disciplinary authority pursuant to s. 227.46 (3), Stats., an administrative law judge presiding over a disciplinary proceeding shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case.
SPS 2.10(3) (3)Service of proposed decision. Unless otherwise directed by a disciplinary authority, the proposed decision shall be served by the administrative law judge on all parties with a notice providing each party adversely affected by the proposed decision with an opportunity to file with the disciplinary authority objections and written argument with respect to the objections. A party adversely affected by a proposed decision shall have at least 10 days from the date of service of the proposed decision to file objections and argument.
SPS 2.10 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; r. and recr. (1), Register, November, 1986, No. 371, eff. 12-1-86; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1988, No. 389; am. Register, June, 1992, No. 438, eff. 7-1-92.
SPS 2.11 SPS 2.11 Prehearing conference. In any matter pending before the disciplinary authority the complainant and the respondent, or their attorneys, may be directed by the disciplinary authority or administrative law judge to appear at a conference or to participate in a telephone conference to consider the simplification of issues, the necessity or desirability of amendments to the pleadings, the admission of facts or documents which will avoid unnecessary proof and such other matters as may aid in the disposition of the matter.
SPS 2.11 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, June, 1992, No. 438, eff. 1992.
SPS 2.12 SPS 2.12 Settlements. No stipulation or settlement agreement disposing of a complaint or informal complaint shall be effective or binding in any respect until reduced to writing, signed by the respondent and approved by the disciplinary authority.
SPS 2.12 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, June, 1992, No. 438, eff. 7-1-92.
SPS 2.13 SPS 2.13 Discovery. The person prosecuting the complaint and the respondent may, prior to the date set for hearing, obtain discovery by use of the methods described in ch. 804, Stats., for the purposes set forth therein. Protective orders, including orders to terminate or limit examinations, orders compelling discovery, sanctions provided in s. 804.12, Stats., or other remedies as are appropriate for failure to comply with such orders may be made by the presiding officer.
SPS 2.13 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78.
SPS 2.14 SPS 2.14 Default. If the respondent fails to answer as required by s. SPS 2.09 or fails to appear at the hearing at the time fixed therefor, the respondent is in default and the disciplinary authority may make findings and enter an order on the basis of the complaint and other evidence. The disciplinary authority may, for good cause, relieve the respondent from the effect of such findings and permit the respondent to answer and defend at any time before the disciplinary authority enters an order or within a reasonable time thereafter.
SPS 2.14 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, June, 1992, No. 438, eff. 7-1-92; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.
SPS 2.15 SPS 2.15 Conduct of hearing.
SPS 2.15(1)(1)Presiding officer. The hearing shall be presided over by a member of the disciplinary authority or an administrative law judge designated pursuant to s. SPS 2.10.
SPS 2.15(2) (2)Record. A stenographic, electronic or other record shall be made of all hearings in which the testimony of witnesses is offered as evidence.
SPS 2.15(3) (3)Evidence. The complainant and the respondent shall have the right to appear in person or by counsel, to call, examine, and cross-examine witnesses and to introduce evidence into the record.
SPS 2.15(4) (4)Briefs. The presiding officer may require the filing of briefs.
SPS 2.15(5) (5)Motions. All motions, except those made at hearing, shall be in writing, filed with the presiding officer and a copy served upon the opposing party not later than 5 days before the time specified for hearing the motion.
SPS 2.15(6) (6)Adjournments. The presiding officer may, for good cause, grant continuances, adjournments and extensions of time.
SPS 2.15(7) (7)Subpoenas.
SPS 2.15(7)(a)(a) Subpoenas for the attendance of any witness at a hearing in the proceeding may be issued in accordance with s. 885.01, Stats. Service shall be made in the manner provided in s. 805.07 (5), Stats. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.
SPS 2.15(7)(b) (b) A presiding officer may issue protective orders according to the provision the provisions of s. 805.07, Stats.
SPS 2.15(8) (8)Location of hearing. All hearings shall be held at the offices of the department of safety and professional services in Madison unless the presiding officer determines that the health or safety of a witness or of a party or an emergency requires that a hearing be held elsewhere.
SPS 2.15 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (1), (5) and (6), cr. (8), Register, June, 1992, No. 438, eff. 7-1-92; correction in (1), (8) made under s. 13.92 (4) (b) 6., 7., Stats., Register November 2011 No. 671.
SPS 2.16 SPS 2.16 Witness fees and costs. Witnesses subpoenaed at the request of the division or the disciplinary authority shall be entitled to compensation from the state for attendance and travel as provided in ch. 885, Stats.
SPS 2.16 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, June, 1992, No. 438, eff. 7-1-92.
SPS 2.17 SPS 2.17 Transcription fees.
SPS 2.17(1)(1) The fee charged for a transcript of a proceeding under this chapter shall be computed by the person or reporting service preparing the transcript on the following basis:
SPS 2.17(1)(a) (a) If the transcript is prepared by a reporting service, the fee charged for an original transcription and for copies shall be the amount identified in the state operational purchasing bulletin which identifies the reporting service and its fees.
SPS 2.17(1)(b) (b) If a transcript is prepared by the department, the department shall charge a transcription fee of $1.75 per page and a copying charge of $.25 per page. If 2 or more persons request a transcript, the department shall charge each requester a copying fee of $.25 per page, but may divide the transcript fee equitably among the requesters. If the department has prepared a written transcript for its own use prior to the time a request is made, the department shall assume the transcription fee, but shall charge a copying fee of $.25 per page.
SPS 2.17(2) (2) A person who is without means and who requires a transcript for appeal or other reasonable purposes shall be furnished with a transcript without charge upon the filing of a petition of indigency signed under oath.
SPS 2.17 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (1) Register, May, 1982, No. 317, eff. 6-1-82; r. and recr. Register, June, 1992, No. 438, eff. 7-1-92; am. (1) (b), Register, August, 1993, No. 452, eff. 9-1-93.
SPS 2.18 SPS 2.18 Assessment of costs.
SPS 2.18(1)(1) The proposed decision of an administrative law judge following hearing shall include a recommendation whether all or part of the costs of the proceeding shall be assessed against the respondent.
SPS 2.18(2) (2) If a respondent objects to the recommendation of an administrative law judge that costs be assessed, objections to the assessment of costs shall be filed, along with any other objections to the proposed decision, within the time established for filing of objections.
SPS 2.18(3) (3) The disciplinary authority's final decision and order imposing discipline in a disciplinary proceeding shall include a determination whether all or part of the costs of the proceeding shall be assessed against the respondent.
SPS 2.18(4) (4) When costs are imposed, the division and the administrative law judge shall file supporting affidavits showing costs incurred within 15 days of the date of the final decision and order. The respondent shall file any objection to the affidavits within 30 days of the date of the final decision and order. The disciplinary authority shall review any objections, along with the affidavits, and affirm or modify its order without a hearing.
SPS 2.18 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.
SPS 2.20 SPS 2.20 Extension of time limits in disciplinary actions against physicians.
SPS 2.20(1) (1)Authority and purpose. The rules in this section are adopted under the authority of ss. 15.08 (5) (b), 227.11 (2) and 448.02 (3) (cm), Stats., to govern the extension of time limits in disciplinary actions against physicians.
SPS 2.20(2) (2)Computing time limits. In computing time limits under s. 448.02 (3) (cm), Stats., the date of initiating an investigation shall be the date of the decision to commence an investigation of an informal complaint following the screening of the informal complaint under s. SPS 2.035, except that if the decision to commence an investigation of an informal complaint is made more than 45 days after the date of receipt of the informal complaint in the division, or if no screening of the informal complaint is conducted, the time for initiating an investigation shall commence 45 days after the date of receipt of the informal complaint in the division. The date that the medical examining board initiates a disciplinary action shall be the date that a disciplinary proceeding is commenced under s. SPS 2.04.
SPS 2.20(3) (3)Procedure for requesting an extension of time. The medical examining board or the division on behalf of the medical examining board shall make a written request for an extension of time under s. 448.02 (3) (cm), Stats., to the secretary of the department of safety and professional services and shall state all of the following:
SPS 2.20(3)(a) (a) The nature of the investigation and the date of initiating the investigation.
SPS 2.20(3)(b) (b) The number of days the medical examining board requires as an extension in order to determine whether a physician is guilty of unprofessional conduct or negligence in treatment and to initiate disciplinary action.
SPS 2.20(3)(c) (c) The reasons why the medical examining board has not made a decision within the time specified under s. 448.02 (3) (cm), Stats.
SPS 2.20(4) (4)Factors to be considered. In deciding whether to grant or deny a specified extension of time for the medical examining board to determine whether a physician is guilty of unprofessional conduct or negligence in treatment, the secretary of the department of safety and professional services shall consider the information set forth in the request and at least the following factors:
SPS 2.20(4)(a) (a) The nature and complexity of the investigation including the cause of any delays encountered during the investigation.
SPS 2.20(4)(b) (b) Whether delays encountered during the screening of the complaint or the complaint handling process were caused in whole or part by the fact that record custodians, witnesses, or persons investigated did not make a timely response to requests for records or other evidence.
SPS 2.20(4)(c) (c) Whether civil or criminal litigation relating to the matter investigated caused any delay in the investigation.
SPS 2.20(4)(d) (d) The quality and complexity of evidence available to the medical examining board.
SPS 2.20(4)(e) (e) The extent to which the physician will be prejudiced by an extension of time.
SPS 2.20(4)(f) (f) The potential harm to the public if the investigation is terminated without a determination of whether the physician complained about is guilty of unprofessional conduct or negligence in treatment.
SPS 2.20(5) (5)Approve or deny an extension. The secretary of the department of safety and professional services shall approve or deny a request for an extension within 20 days of receipt. A request not approved within 20 days shall be deemed denied.
SPS 2.20 History History: CR 02-103: cr. Register March 2004 No. 579, eff. 4-1-04; correction in (2), (3) (intro.), (4) (intro.), (5) made under s. 13.92 (4) (b) 6., 7., Stats., Register November 2011 No. 671.
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