In California professional license law, at a contested hearing deciding an accusation or a statement of issues an administrative law judge only has the power to make a proposed decision, not a final decision. The administrative agency – for example, the Medical Board of California or the California Department of Insurance – has delegated the task of hearing the case to an administrative law judge, but retains the ultimate power to make a decision on the case. After an administrative law judge issues a proposed decision, the proposed decision goes to the state agency for adoption. If the state license agency doesn’t agree with the administrative law judge’s decision, there is a non-adoption. Non-adoptions are addressed in the law in California Government Code section 11517(c)(2)(E).
The first question that often comes to mind when we receive an Order of Non-Adoption from a state agency is: Why did they non-adopt? The Order of Non-Adoption often spells out the reason for non-adoption. Usually, the reason for non-adoption is that the state licensing agency – the board, bureau, department or agency deciding the case – does not agree with the terms of discipline in the proposed decision. This can mean the proposed penalty is too light, but it can also mean the penalty is unsuitable for the case in the view of the licensing agency. The administrative law judge might have proposed a penalty that is different than the penalty typically resulting from like cases.
Non-adoption gives the state agency the opportunity to review the record of the administrative hearing to figure out why the judge reached the decision that was proposed. The parties also are given the opportunity to present written arguments, and sometimes even oral arguments, to the decision makers. In the non-adoption process, our experience as professional license defense attorneys is key. At Ray & Bishop, our years of experience as a law firm exclusively devoted to representing professionals before state agencies enables us to intuit the concerns of the state agency and fashion effective arguments for the best possible outcome. Without this important insight, a less experienced attorney may misstep and even anger or alienate the decision makers, aggravating the situation.
Non-adoption is also a critical stage between hearing and appeal. If a licensing agency is likely to come down hard on our client, we can use this stage of the proceedings to raise and preserve crucial issues that might be important later on appeal. Another opportunity in non-adoption can be the chance to negotiate or renegotiate a settlement with a licensing agency, if the agency is open to settlement.
Ray & Bishop, PLC, exclusively represents professionals and businesses before their licensing agencies and regulators. Non-adoption is a complex and confusing process. Let us put our experience and expertise to work to navigate the legal challenges and find the opportunities that may exist in the non-adoption process.