What Are My Due Process Rights in Employent Discipline?
Full Question:
Answer:
The answer will depend on the stated polices and the reasons given for any deviations. I suggest you review carefully the terms of any employment contract or employee manual, to determine your rights and obligations, as well as those of the employer. Generally, an employer's disciplinary proceedings are goverened by the standards set forth in employment contracts and internal policies, as and long as such are substantially complied with, due process isn't violated. If there were deviations from the stated guidelines, the answer will depend on the reason given and the harm you suffered to your rights by the deviations. For example, a notice of hearing delivered with 24 hours notice may prejudice your rights, but one with 6 days as opposed to a stated 7 days may not.
Due process requires notice of the conduct sought to be prohibited. It also requires an opprtunity to be heard when a right is denied, and being afforded notice of the opportunity in a manner that makes the opportunity to be heard feasible. If there is further disciplinary action, you may be able to request the patient's records through the discovery process.
For discipline to be final and in effect, a person must either consent to the discipline as voted upon by the board by signing a “Consent Agreement” or if not signed, the person has had an opportunity for a hearing. Hearings are conducted at the Office of Administrative Hearings and the person conducting the Hearing is an Administrative Law Judge who is an attorney.
The Administrative Law Judge recommended “Findings of Fact, Conclusions of Law and Order” and transcripts of the Hearing are reviewed by the Board Members prior to voting on the appropriate disciplinary actions (if any) to be taken. If discipline is determined to appropriate by the majority of the Board Members, a “Board Order” is then the final decision.
The respondent or applicant may file a motion for rehearing or review of the decision if there has been one of the seven caused listed in the Rules that materially affected the individual rights.
I suggest contacting your union representative if you are in a union, or consulting with a local attoreney who can review al lthe facts and documents involved.
For further information, please see:
http://www.azbn.gov/SubstantivePolicies.aspx
http://www.azbn.gov/Documents/discipline/Laws%20and%20Rules%20-%2032-1664.pdf
The following are AZ statutes:
36-441. Health care utilization committees; immunity; exception; definition
A. A person who without malice makes a decision or recommendation as a
member, agent or employee of a health care utilization committee or who
furnishes any records, information or assistance to that committee at its
request is not subject to liability for civil damages or any legal action
in consequence of that action. In any such action, the absence of malice is
presumed. This presumption may be overcome only by a showing of clear and
convincing evidence. This section does not relieve a person of liability
arising from treatment of a patient. For the purposes of this subsection,
"malice" means evil intent and outrageous, oppressive or intolerable
conduct that creates a substantial risk of tremendous harm to others.
B. All proceedings, records and materials prepared in connection with the
activities of a health care utilization committee are confidential and are
not subject to discovery except:
1. In proceedings before the Arizona medical board or the board of
osteopathic examiners.
2. In actions by an individual health care provider against the health
care institution or outpatient surgical center arising from the discipline
or other adverse action taken against the individual as a result of
utilization review.
C. No member of a utilization review committee, person engaged in
assisting the committee or person furnishing information to the committee
may be subpoenaed to testify in a judicial or quasi-judicial proceeding if
the subpoena is based solely on the utilization review committee's
activities.
D. This section does not:
1. Affect a patient's claim to privilege or privacy.
2. Prevent the subpoena of a patient's medical records if they are
otherwise subject to discovery.
3. Restrict the powers and duties of the director pursuant to this
chapter with respect to records and information that are not subject to
this section.
E. In a legal action brought against a hospital or outpatient surgical
center for failure to adequately perform utilization review,
representatives of the facility may testify as to whether there was
utilization review with respect to the subject matter of the litigation.
F. All proceedings, records and materials prepared in connection with
utilization review are confidential and inadmissible as evidence in a court
proceeding.
G. For the purposes of this section, "health care utilization committee"
means a committee established by a hospital or an outpatient surgical
center to review or evaluate the utilization, appropriateness and necessity
of health care services provided by that facility.
36-2402. Health care quality assurance process; immunity
A. The written standards and criteria for a quality assurance process
must be available to all licensed health care providers that conduct or are
subject to a quality assurance process.
B. A health care entity or person that, without malice, provides
information, takes any action or makes any decision or recommendation in
the course of a quality assurance process or that furnishes any records,
information or assistance to a health care entity in the course of a
quality assurance process shall not be subject to liability for civil
damages or any legal action in consequence of such action. Malice shall be
determined by the court and must be based on a finding from clear and
convincing evidence. This section shall not be construed to relieve any
person of liability arising from treatment of a patient.
C. Health care quality assurance review activities conducted by state,
county or local medical, pharmacy and dental associations and societies on
behalf of a health care entity, licensed hospital, outpatient surgical
center, state or federal health program or other health maintenance
organization are immune from civil liability to the same degree as the
facility for which the review activities are conducted.
D. This section applies to a committee consisting of two or more
qualifying community health centers as defined in section 36-2907.06 to
review quality assurance information.
36-2403. Confidentiality; protection from discovery proceedings and
subpoena; exceptions
A. The information considered by any entity or organization acting
pursuant to section 36-2402, subsection C in the course of a quality
assurance process and the records of its actions and proceedings shall be
confidential and are not subject to subpoena or order to produce except as
provided in subsection B of this section and in proceedings before the
appropriate state licensing or certifying agency, or in actions by an
aggrieved licensed health care provider against a health care entity. No
member of a health care entity, its staff or any person assisting or
furnishing information to it or participating in the course of the quality
assurance process may be subpoenaed to testify in any judicial or
quasi-judicial proceeding if such subpoena is based solely on activities
relating to the quality assurance process.
B. This article shall not be construed to affect any patient's claim to
privilege or privacy or to prevent the subpoena of a patient's health care
records if they are otherwise subject to discovery.
C. Information considered by a health care entity and the records of its
actions and proceedings which are used pursuant to subsection A of this
section by a state licensing or certifying agency or in an appeal shall be
kept confidential and shall be subject to the same provisions concerning
discovery and use in legal actions as are the original information and
records in the possession and control of a health care entity.
D. This section applies to a committee consisting of two or more
qualifying community health centers as defined in section 36-2907.06 to
review quality assurance information.