Are We Ready To Take Enforcement Action? What Documents and Other Evidence Are Essential to Prevail? An In-Depth Look

This webinar recording will provide a discussion of the myriad factors an agency should consider in determining whether revocation, suspension or other adverse action is appropriate at a given point in time. Among those factors are the accumulation of regulatory violations in a "pattern" case, the seriousness of an event in a "single incident" case, the need to "send a message" to the regulated community, the impact of enforcement on the clients or patients of the licensee, considerations when a single licensee operates multiple facilities, the disclosure of the identity of reporters of violations, the impact on enforcement of witnesses who have disappeared, retired or who are otherwise not cooperative, and opposition to enforcement by other public and private agencies.

The webinar recording will also cover the selection and preparation of documents and other physical evidence which will support enforcement. Issues to be discussed will include the confidentiality of certain agency records and negotiation of confidentiality agreeements with the licensee, allowable redactions from certain records, anticipated "hearsay" objections to documents, the need to authenticate certain records and other physical evidence, and the problem of reading records at the hearing versus providing spontaneous testimony. Mr. Akin will discuss some of the important issues an agency should consider before taking enforcement action in the form of license denial or revocation. Some of the subjects to be covered include familiarization with the legal and regulatory framework governing enforcement actions; assessment of case facts in conjunction with the valid bases for enforcement; matching case facts to the selected grounds for enforcement; consideration of regulatory history in revocation cases; factors to consider in the decision to suspend or revoke; special considerations in denial cases such as consistency, agency discretion, and reliance on registry databases; consultation with and preparation of agency legal counsel; in-depth case preparation, including enforcement team meetings, preparation of witnesses, consideration of the application (or non-application) of legal rules of evidence such as the "hearsay" rule and the "business records exception" to the rule, preparation of exhibits, and the possible need for "rebuttal" witnesses; whether a case calls for the testimony of an "expert", and the preparation of the expert; special considerations when the agency is not represented by counsel but the applicant/licensee does have legal representation; procedural pitfalls in preparing for hearings; advance knowledge about the hearing officer in the case; physical preparation of an effective hearing room.

Biographical Statement - Roger A. Akin, Esq.

Mr. Akin has practiced law since 1977. He attended Syracuse University and the University of Maryland Law School. He began his practice as a Deputy Attorney General in the Delaware Department of Justice. In that capacity he served as the State Child Abuse Prosecutor, general counsel to the Department of Social Services, and then general counsel to the Delaware State Board of Education and Department of Public Instruction. He chaired the Legal Section of the National Association of State Boards of Education. He entered into private practice in 1982. Since 1990 Mr. Akin has been the hearing officer in virtually all child care licensing proceedings in Delaware. Since 2000 Mr. Akin has also served as an independent hearing officer in over 700 child abuse and neglect hearings. He is a civil case arbitrator and a trained court mediator. His wife is a middle school guidance counselor, his daughter a newspaper editor, and his son a culinary school student.

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