013.01
Decisions, Generally.
Every final decision rendered by the Department shall be in
writing or stated in the record, and shall be accompanied by findings of fact
and conclusions of law. The parties to the proceeding shall be notified of the
decision by certified mail or registered mail, return receipt requested.
Service on the attorney for a party shall be deemed service on the party. The
department may withhold a final decision from public access for a period of
five (5) days from the date the decision is entered or until service is made,
whichever is earliest.
013.01A
Proposed Findings of Fact and Conclusions of Law. The
parties may request opportunity to submit proposed findings of fact and
conclusions of law for the consideration of the Director or other person
authorized to make a final decision in the case. The Director or Hearing
officer may also require that the parties submit proposed findings. The parties
must serve copies of the proposed findings on each other. Either party may
submit written objections to the proposed findings of the other by motion made
within five (5) days of their receipt of the proposal or such other time as the
Director or Hearing Officer may order. Any such objections shall identify the
evidence in support of that party's objection.
013.02
Evaluation of
Evidence.
The Department may utilize its experience, technical
competence, and specialized knowledge in the evaluation of the evidence
presented.
013.03
Sanctions - Considerations.
The following are lists of factors that may be considered in
determining appropriate sanctions in a disciplinary proceeding after guilt has
been established by the record, and when supported by the record. These factors
are not intended to be exclusive, and such other or different factors will be
considered when they are permitted or required by law and as the evidence
supports.
013.03A
Aggravating Factors. The following may be considered
as aggravating factors depending on the facts established by the evidence:
013.03A1 Multiple incidents; however,
uncharged incidents will not be considered;
013.03A2 Multiple victims;
013.03A3 Injury or substantial risk of
serious injury to a person due to the conduct;
013.03A4 Special vulnerability of a victim
due to age, or disability, or abuse of trust;
013.03A5 Prior disciplinary action, or
misconduct while under discipline or in violation of a disciplinary
order.
013.03B
Mitigating Factors. The following may be considered as
mitigating factors as appropriate to the case and established by proper
evidence:
013.03B1 That the conduct neither
caused nor threatened serious harm;
013.03B2 A mental or physical condition that
significantly reduces culpability, if such a condition is not an element of the
violation;
013.03B3 Corrective
efforts initiated by the person charged and related to the conduct charged,
such as changes in practices, policies, behavior, participation in treatment,
training, etc., though consideration will be given to the extent to which such
efforts were voluntary and self-motivated.
013.03B4 A prior record in good
standing;
013.03B5 Contriteness and
willingness to cooperate.
013.03C
Other
Factors. Those factors described in section
010.14E1 of these
regulations with regard to review of settlements may also be considered in
determining appropriate sanctions for purposes of findings after hearing, as
applicable.
013.03D
Actions under 006.01 or 006.02. In disciplinary actions under
006.01 or 006.02, if the Director determines that guilt has been established,
the Director may, at his or her discretion, consult with the board of examiners
for the profession involved concerning sanctions to be imposed or terms and
conditions of sanctions. When the Director does so consult, the licensee,
certificate holder, or registrant shall be provided with the Director's
request, the recommendation of the board and an opportunity to respond in such
manner as the Director determines.
013.04
Decisions; Taxation of
Costs.
All costs of a formal hearing shall be paid by the party or
parties against whom a final decision is rendered. Costs shall be charged as in
ordinary civil actions in the district court.
