Ignore the Form – File a Special Notice of Defense

Professional licensees and healthcare-related licensees in the state of California can have discipline imposed on their licenses for misconduct. The “misconduct” for which license discipline is under the vague and amorphous “substantially-related to the profession” standard that is not the subject of this blog entry.
When these licensees face discipline, it is usually their first impression of the system of administrating license discipline from their licensing authority. They are confronted by a large packet of information, containing a voluminous statements of rights, the charging document (i.e. Accusation or Statement of Issues), controlling statutory or regulatory authority, a request for discovery, and, lastly, a form Notice of Defense. The form Notice of Defense is a way for the licensee to quickly and easily deny all allegations and request a hearing.
While the form does serve a helpful purpose, it also leads to a somewhat devious result. Whether intentionally or not, the form encourages the licensee merely to deny the allegations contained in the charging document. And by the way that it is written, does not provide the licensee with a mechanism for asserting affirmative defenses against the allegations. Affirmative defenses–often associated with civil litigation–are appropriate in the administrative, professional licensing law ¬†forum. However, they are waived if not asserted at the time of filing your response to the charging document.

Special Notice of Defense

A Special Notice of Defense is basically filing your own Notice of Defense and Request for Hearing. Literally, do not submit the form. Rather, solely use the form as a guide of what, at a minimum, you need to assert in order to properly raise the Special Notice of Defense. And, in addition, including additional defenses beyond mere denial.
The value of the special notice of defense is that it lays the foundation for the licensee to go on the offensive, not only demanding that the department provide evidence supporting its allegations but also raising potential shields to its allegations. For example, it can provide the basis for the licensee to seek an immediate dismissal of the allegations if the department has failed to follow specified legal requirements in bringing the action (e.g. no jurisdiction, failure to state a cause of discipline, vague and ambiguous, failure of due process, unreasonable delay, etc.). This is particularly advantageous in cases where the licensee just plain disagrees with the licensing authority that it did anything wrong.
While rarely granted, this practice permits you to pursue a demurrer or motion to strike. Such filing may compel the department to re-think its action and either amend, providing more facts to justify its position, or voluntarily strike some causes for discipline.
Furthermore, asserting the Special Notice of Defense encourages the Office of Administrative Hearings to set a pre-hearing and settlement conference prior to the hearing. This is advantageous as it provides a mechanism for a third party to exert pressure on both sides to strike a settlement agreement as opposed to taking the matter to a contested hearing.

Not Always Advantageous

Nevertheless, there are times where merely submitting the Notice of Defense form does make sense. For example, in cases where the licensee did something clearly wrong and violation of the underlying professional or healthcare practice act, then going on offensive is probably more harmful than anything. Rather, efforts need to be made to focus on falling on ones sword, and pursuing evidence of rehabilitation, mitigation, and good character. Similarly, if a licensee is not in a position for a rock-em-sock-em adversarial hearing and would rather stipulate to a settlement, then asserting affirmative defenses could enrage the other side.
However, in most cases where there is a dispute, preparing your own Special Notice of Defense is preferable to filing the Notice of Defense form. So, licensees should keep that in mind in the unofrtunate