Chapter SPS 2

SPS 2.18   Assessment of costs.

SPS 2.20   Extension of time limits in disciplinary actions against physicians.

Ch. SPS 2 Note Note: Chapter RL 2 was renumbered chapter SPS 2 under s. 13.92 (4) (b) 1., Stats., Register November 2011 No. 671.

SPS 2.01 SPS 2.01 Authority. The rules in ch. SPS 2 are adopted pursuant to authority in s. 440.03 (1), Stats., and procedures in ch. 227, Stats.

SPS 2.01 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, May, 1982, No. 317, eff. 6-1-82; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.

SPS 2.02 SPS 2.02 Scope; kinds of proceedings. The rules in this chapter govern procedures in class 2 proceedings, as defined in s. 227.01 (3) (b), Stats., against licensees before the department and all disciplinary authorities attached to the department, except that s. SPS 2.17 applies also to class 1 proceedings, as defined in s. 227.01 (3) (a), Stats.

SPS 2.02 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. Register, May, 1982, No. 317, eff. 6-1-82; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1988, No. 389; am. Register, June, 1992, No. 438, eff. 7-1-92; emerg. am. eff. 11-14-95; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.

SPS 2.03 SPS 2.03 Definitions. In this chapter:

SPS 2.03(1) (1) “Complainant” means the person who signs a complaint.

SPS 2.03(2) (2) “Complaint” means a document which meets the requirements of ss. SPS 2.05 and 2.06.

SPS 2.03(3) (3) “Department” means the department of safety and professional services.

SPS 2.03(4) (4) “Disciplinary authority” means the department or the attached examining board or board having authority to revoke the license of the holder whose conduct is under investigation.

SPS 2.03(5) (5) “Disciplinary proceeding” means a proceeding against one or more licensees in which a disciplinary authority may determine to revoke or suspend a license, to reprimand a licensee, to limit a license, to impose a forfeiture, or to refuse to renew a license because of a violation of law.

SPS 2.03(6) (6) “Division” means the division of legal services and compliance in the department.

SPS 2.03(7) (7) “Informal complaint” means any written information submitted to the division or any disciplinary authority by any person which requests that a disciplinary proceeding be commenced against a licensee or which alleges facts, which if true, warrant discipline.

SPS 2.03(8) (8) “Licensee” means a person, partnership, corporation or association holding any license, permit, certificate or registration granted by a disciplinary authority or having any right to renew a license, permit, certificate or registration granted by a disciplinary authority.

SPS 2.03(9) (9) “Respondent” means the person against whom a disciplinary proceeding has been commenced and who is named as respondent in a complaint.

SPS 2.03(10) (10) “Settlement conference” means a proceeding before a disciplinary authority or its designee conducted according to s. SPS 2.036, in which a conference with one or more licensee is held to attempt to reach a fair disposition of an informal complaint prior to the commencement of a disciplinary proceeding.

SPS 2.03 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (1) and (6), renum. (7) and (8) to be (8) and (9), cr. (7), Register, May, 1982, No. 317, eff. 6-1-82; r. (1), renum. (2) to (4) to be (1) to (3), cr. (4) and (10), am. (5), (7) and (8), Register, June, 1992, No. 438, eff. 7-1-92; correction in (2), (3), (10) made under s. 13.92 (4) (b) 6., 7., Stats., Register November 2011 No. 671; CR 14-019: am. (6) Register August 2014 No. 704, eff. 9-1-14.

SPS 2.035 SPS 2.035 Receiving informal complaints. All informal complaints received shall be referred to the division for filing, screening and, if necessary, investigation. Screening shall be done by the disciplinary authority, or, if the disciplinary authority directs, by a disciplinary authority member or the division. In this section, screening is a preliminary review of complaints to determine whether an investigation is necessary. Considerations in screening include, but are not limited to:

SPS 2.035(1) (1) Whether the person complained against is licensed;

SPS 2.035(2) (2) Whether the violation alleged is a fee dispute;

SPS 2.035(3) (3) Whether the matter alleged, if taken as a whole, is trivial; and

SPS 2.035(4) (4) Whether the matter alleged is a violation of any statute, rule or standard of practice.

SPS 2.035 History History: Cr. Register, May, 1982, No. 317, eff. 6-1-82; am. (intro.) and (3), Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.036 SPS 2.036 Procedure for settlement conferences. At the discretion of the disciplinary authority, a settlement conference may be held prior to the commencement of a disciplinary proceeding, pursuant to the following procedures:

SPS 2.036(1) (1) Selection of informal complaints. The disciplinary authority or its designee may determine that a settlement conference is appropriate during an investigation of an informal complaint if the information gathered during the investigation presents reasonable grounds to believe that a violation of the laws enforced by the disciplinary authority has occurred. Considerations in making the determination may include, but are not limited to:

SPS 2.036(1)(a) (a) Whether the issues arising out of the investigation of the informal complaint are clear, discrete and sufficiently limited to allow for resolution in the informal setting of a settlement conference; and

SPS 2.036(1)(b) (b) Whether the facts of the informal complaint are undisputed or clearly ascertainable from the documents received during investigation by the division.

SPS 2.036(2) (2) Procedures. When the disciplinary authority or its designee has selected an informal complaint for a possible settlement conference, the licensee shall be contacted by the division to determine whether the licensee desires to participate in a settlement conference. A notice of settlement conference and a description of settlement conference procedures, prepared on forms prescribed by the department, shall be sent to all participants in advance of any settlement conference. A settlement conference shall not be held without the consent of the licensee. No agreement reached between the licensee and the disciplinary authority or its designee at a settlement conference which imposes discipline upon the licensee shall be binding until the agreement is reduced to writing, signed by the licensee, and accepted by the disciplinary authority.

SPS 2.036(3) (3) Oral statements at settlement conference. Oral statements made during a settlement conference shall not be introduced into or made part of the record in a disciplinary proceeding.

SPS 2.036 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.037 SPS 2.037 Parties to a disciplinary proceeding. Parties to a disciplinary proceeding are the respondent, the division and the disciplinary authority before which the disciplinary proceeding is heard.

SPS 2.037 History History: Cr. Register, May, 1982, No. 317, eff. 6-1-82; renum. from RL 2.036 and am., Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.04 SPS 2.04 Commencement of disciplinary proceedings. Disciplinary proceedings are commenced when a notice of hearing is filed in the disciplinary authority office or with a designated administrative law judge.

SPS 2.04 History History: Cr. Register, February, 1979, No. 278, eff. 3-1-79; am. Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.05 SPS 2.05 Pleadings to be captioned. All pleadings, notices, orders, and other papers filed in disciplinary proceedings shall be captioned: “BEFORE THE __________” and shall be entitled: “IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST _____________, RESPONDENT.”

SPS 2.05 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78.

SPS 2.06 SPS 2.06 Complaint. A complaint may be made on information and belief and shall contain:

SPS 2.06(1) (1) The name and address of the licensee complained against and the name and address of the complainant;

SPS 2.06(2) (2) A short statement in plain language of the cause for disciplinary action identifying with reasonable particularity the transaction, occurrence or event out of which the cause arises and specifying the statute, rule or other standard alleged to have been violated;

SPS 2.06(3) (3) A request in essentially the following form: “Wherefore, the complainant demands that the disciplinary authority hear evidence relevant to matters alleged in this complaint, determine and impose the discipline warranted, and assess the costs of the proceeding against the respondent;” and,

SPS 2.06(4) (4) The signature of the complainant.

SPS 2.06 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (intro.), (3) and (4), Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.07 SPS 2.07 Notice of hearing.

SPS 2.07(1) (1) A notice of hearing shall be sent to the respondent at least 10 days prior to the hearing, unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 48 hours in advance of the hearing.

SPS 2.07(2) (2) A notice of hearing to the respondent shall be substantially in the form shown in Appendix 1 and signed by a disciplinary authority member or an attorney in the division.

SPS 2.07 History History: Cr. Register, October, 1978, No. 274, eff. 11-1-78; am. (2) (intro.), Register, February, 1979, No. 278, eff. 3-1-79; r. and recr. Register, June, 1992, No. 438, eff. 7-1-92.

SPS 2.08 SPS 2.08 Service and filing of complaint, notice of hearing and other papers.

SPS 2.08(1) (1) The complaint, notice of hearing, all orders and other papers required to be served on a respondent may be served by mailing a copy of the paper to the respondent at the last known address of the respondent or by any procedure described in s. 801.14 (2), Stats. Service by mail is complete upon mailing.

SPS 2.08(2) (2) Any paper required to be filed with a disciplinary authority may be mailed to the disciplinary authority office or, if an administrative law judge has been designated to preside in the matter, to the administrative law judge and shall be deemed filed on the date of the postmark. Materials submitted by personal service and by inter-departmental mail shall be considered filed on the date they are received at the disciplinary authority office or by the administrative law judge. An answer under s. SPS 2.09, motions under s. SPS 2.15, and any other documents required to be filed may be filed and served by facsimile transmission or by electronic mail. For materials transmitted by facsimile, the date received shall determine the date of filing. For materials transmitted by electronic mail, the filing date shall be the date that the electronic mail was sent.

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; CR 14-019: am. (2) Register August 2014 No. 704, eff. 9-1-14.

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 of administration.

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; CR 13-077: am. (1) Register April 2014 No. 700, eff. 5-1-14.

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(5m) (5m) Summary judgement. The parties may use the summary judgment procedure provided in s. 802.08, Stats.

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; CR 14-019: cr. (5m) Register August 2014 No. 704, eff. 9-1-14.

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: