CHAPTER 51
CONTESTED CASES
[Ch 6 renumbered as Ch 51, IAC 9/20/78]
[Prior to 5/18/88, Dental Examiners, Board of[320]]
650—51.1(17A) Scope and applicability. This chapter applies to contested case proceedings conducted by the board of dental examiners.
650—51.2(17A) Definitions. Except where otherwise specifically defined by law:
“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under 1998 Iowa Acts, chapter 1202, section 14.
“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.
“Party” means the state or the respondent.
“Presiding officer” means the board of dental examiners or a panel of the board. In a disciplinary contested case proceeding, the board may request that an administrative law judge make initial rulings on prehearing matters, and assist and advise the board in presiding at the disciplinary contested case hearing.
“Proposed decision” means the hearing panel’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the full board did not preside.
650—51.3(17A) Probable cause. In the event the board finds there is probable cause for taking disciplinary action against a licensee following investigation of a complaint, the board shall order a contested case hearing be commenced by the filing of a statement of charges and notice of hearing.
650—51.4(17A) Legal review. Every statement of charges and notice of hearing prepared by the board shall be reviewed by the office of the attorney general before they are filed.
650—51.5(17A) Time requirements.
	51.5(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).
	51.5(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by rule. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.
650—51.6(17A) Statement of charges and notice of hearing.
	51.6(1) Delivery. Delivery of the statement of charges and notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:
	a. 	Personal service as provided in the Iowa Rules of Civil Procedure; or
	b. 	Restricted certified mail, return receipt requested; or
	c. 	Publication, as provided in the Iowa Rules of Civil Procedure.
	51.6(2) Contents. The statement of charges and notice of hearing shall contain the following information:
	a. 	A statement of the time, place, and nature of the hearing;
	b. 	A statement of the legal authority and jurisdiction under which the hearing is to be held;
	c. 	A reference to the particular sections of the statutes and rules involved;
	d. 	A short and plain statement of the matters asserted. This statement shall contain sufficient detail to give the respondent fair notice of the allegations so the respondent may adequately respond to the charges, and to give the public notice of the matters at issue;
	e. 	Identification of all parties including the name, address and telephone number of the person who will act as advocate for the board or the state and of parties’ counsel where known;
	f. 	Reference to the procedural rules governing conduct of the contested case proceeding;
	g. 	Reference to the procedural rules governing informal settlement;
	h. 	Identification of the board as the presiding officer; and
	i. 	Notification of the time period in which a party may request pursuant to 1998 Iowa Acts, chapter 1202, section 15(1), and rule 51.9(17A) that the presiding officer be an administrative law judge.
650—51.7(17A) Legal representation. Following the filing of the statement of charges and notice of hearing, the office of the attorney general shall be responsible for the legal representation of the public interest in all proceedings before the board.
650—51.8(17A) Presiding officer in a disciplinary contested case. The presiding officer in a disciplinary contested case shall be the board or a panel of the board. However, the board may request that an administrative law judge assist the board with initial rulings on prehearing matters. Decisions of the administrative law judge serving in this capacity are subject to the interlocutory appeal provisions of rule 650—51.25(17A). In addition, an administrative law judge may assist and advise the board in presiding at the contested case hearing.
650—51.9(17A) Presiding officer in a nondisciplinary contested case.
	51.9(1) Any party in a nondisciplinary contested case who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the board.
	51.9(2) The board may deny the request only upon a finding that one or more of the following apply:
	a. 	There is compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.
	b. 	An administrative law judge with the qualifications identified in subrule 51.9(4) is unavailable to hear the case within a reasonable time.
	c. 	The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
	d. 	The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.
	e. 	Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.
	f. 	The request was not timely filed.
	g. 	The request is not consistent with a specified statute.
	51.9(3) The board shall issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of an administrative law judge with the qualifications identified in subrule 51.9(4), the parties shall be notified at least 10 days prior to hearing if a qualified administrative law judge will not be available.
	51.9(4) An administrative law judge assigned to act as presiding officer in a nondisciplinary contested case shall have a J.D. degree unless waived by the board.
	51.9(5) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer in a nondisciplinary contested case are subject to appeal to the board. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies. Such appeals must be filed within 10 days of the date of the issuance of the challenged ruling, but no later than the time for compliance with the order or the date of hearing, whichever is first.
650—51.10(17A) Disqualification.
	51.10(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
	a. 	Has a personal bias or prejudice concerning a party or a representative of a party;
	b. 	Has personally investigated, prosecuted or advocated, in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;
	c. 	Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;
	d. 	Has acted as counsel to any person who is a private party to that proceeding within the past two years;
	e. 	Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
	f. 	Has a spouse or relative within the third degree of relationship that (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or
	g. 	Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
	51.10(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include:
	a. 	General direction and supervision of assigned investigators;
	b. 	Unsolicited receipt of information which is relayed to assigned investigators;
	c. 	Review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding; or
	d. 	Exposure to factual information while performing other board functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case.
Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202, section 19, and subrules 51.10(3) and 51.23(9).
	51.10(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.
	51.10(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 51.10(1), the party shall file a motion supported by an affidavit pursuant to 1998 Iowa Acts, chapter 1202, section 19(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party. The board shall determine the matter as part of the record in this case.
650—51.11(17A) Consolidation—severance.
	51.11(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where:
	a. 	The matters at issue involve common parties or common questions of fact or law;
	b. 	Consolidation would expedite and simplify consideration of the issues involved; and
	c. 	Consolidation would not adversely affect the rights of any of the parties to those proceedings.
	51.11(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.
650—51.12(17A) Pleadings.
	51.12(1) Pleadings. Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.
	51.12(2) Answer. An answer shall be filed within 20 days of service of the statement of charges and notice of hearing.
	a. 	An answer shall show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the statement of charges. It shall state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim.
	b. 	An answer shall state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any.
	c. 	Any allegation in the statement of charges not denied in the answer is considered admitted.
	51.12(3) Amendment. Amendments to the statement of charges and to an answer may be allowed with the consent of the parties or in the discretion of the presiding officer who may impose terms or grant a continuance.
650—51.13(17A) Service and filing.
	51.13(1) Service—when required. Except where otherwise provided by law, every document filed in a contested case proceeding shall be served upon each of the parties of record to the proceeding, including the assistant attorney general designated as prosecutor for the state or the board, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.
	51.13(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.
	51.13(3) Filing—when required. After the notice of hearing, all documents in a contested case proceeding shall be filed with the board. All documents that are required to be served upon a party shall be filed simultaneously with the board.
	51.13(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the Board of Dental Examiners, 400 S.W. 8th Street, Suite D, Des Moines, Iowa 50309-4687, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.
	51.13(5) Proof of mailing. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

 	I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Board of Dental Examiners, 400 S.W. 8th Street, Suite D, Des Moines, Iowa 50309-4687, and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).	
 	(Date)	(Signature)	
650—51.14(17A) Discovery.
	51.14(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.
	51.14(2) Any motion relating to discovery shall allege that the moving party has previously made a good-faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 51.14(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.
650—51.15(17A,272C) Issuance of subpoenas in a contested case. Pursuant to Iowa Code sections 17A.13(1) and 272C.6(3), the board has the authority to issue subpoenas to compel the attendance of witnesses at depositions or hearing and to compel the production of evidence deemed necessary in connection with a contested case. A subpoena issued by the board in a contested case may seek evidence whether or not it is privileged or confidential under law.
	51.15(1) The executive director or designee may, upon the written request of the licensee or the state, issue a subpoena to compel the attendance of witnesses at depositions or hearing, and to compel the production of books, correspondence, papers, records, and other real evidence deemed necessary in connection with a contested case. A subpoena to produce evidence or to permit inspection may be joined with a subpoena to testify at a deposition or hearing, or may be issued separately. A request for a subpoena of mental health records must confirm that the conditions described in 650—subrule 31.5(1) have been satisfied prior to the issuance of the subpoena.
	51.15(2) A request for a subpoena shall include the following information, as applicable, unless the subpoena is requested to compel testimony or documents for rebuttal or impeachment purposes:
	a. 	The name, address and telephone number of the person requesting the subpoena;
	b. 	The name and address of the person to whom the subpoena shall be directed;
	c. 	The date, time, and location at which the person shall be commanded to attend and give testimony;
	d. 	Whether the testimony is requested in connection with a deposition or hearing;
	e. 	A description of the books, papers, records or other real evidence requested;
	f. 	The date, time and location for production, or inspection and copying; and
	g. 	In the case of a subpoena request for mental health records, confirmation that the conditions described in 650—subrule 31.5(1) have been satisfied.
	51.15(3) Each subpoena shall contain, as applicable:
	a. 	The caption of the case;
	b. 	The name, address and telephone number of the person who requested the subpoena;
	c. 	The name and address of the person to whom the subpoena is directed;
	d. 	The date, time, and location at which the person is commanded to appear;
	e. 	Whether the testimony is commanded in connection with a deposition or hearing;
	f. 	A description of the books, papers, records or other real evidence the person is commanded to produce;
	g. 	The date, time and location for production, or inspection and copying;
	h. 	The time within which a motion to quash or modify the subpoena must be filed;
	i. 	The signature, address and telephone number of the executive director or designee;
	j. 	The date of issuance;
	k. 	A return of service which shall be attached to the subpoena.
	51.15(4) Unless a subpoena is requested to compel testimony or documents for rebuttal or impeachment purposes, the executive director or designee shall mail copies of all subpoenas to the parties to the contested case. The person who requested the subpoena is responsible for serving the subpoena upon the subject of the subpoena.
	51.15(5) Any person who is aggrieved or adversely affected by compliance with the subpoena, or any party to the contested case who desires to challenge the subpoena must, within 14 days after service of the subpoena, or before the time specified for compliance if such time is less than 14 days, file with the board a motion to quash or modify the subpoena. The motion shall describe the legal reasons why the subpoena should be quashed or modified, and may be accompanied by legal briefs or factual affidavits.
	51.15(6) Upon receipt of a timely motion to quash or modify a subpoena, the board may request an administrative law judge to hold a hearing and issue a decision, or the board may conduct the hearing and issue a decision. Oral argument may be scheduled at the discretion of the board or administrative law judge. The administrative law judge or the board may quash or modify the subpoena, deny the motion, or issue an appropriate protective order.
	51.15(7) A person aggrieved by a ruling of an administrative law judge who desires to challenge that ruling must appeal the ruling to the board by serving on the board’s executive director, either in person or by certified mail, a notice of appeal within ten days after service of the decision of the administrative law judge.
	51.15(8) If the person contesting the subpoena is not the person under investigation, the board’s decision is final for purposes of judicial review. If the person contesting the subpoena is the person under investigation, the board’s decision is not final for purposes of judicial review until there is a final decision in the contested case.
650—51.16(17A) Motions.
	51.16(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.
	51.16(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.
	51.16(3) The presiding officer may schedule oral argument on any motion.
	51.16(4) Motions pertaining to the hearing must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the board or an order of the presiding officer.
650—51.17(17A) Prehearing conference.
	51.17(1) Any party may request a prehearing conference. Prehearing conferences shall be conducted by the executive director, who may request the assistance of an administrative law judge. A written request for prehearing conference or an order for prehearing conference on the executive director’s own motion shall be filed prior to the contested case hearing, but no later than 20 days prior to the hearing date.
	51.17(2) The parties at a prehearing conference shall be prepared to discuss the following subjects, and the executive director or administrative law judge may issue appropriate orders concerning:
	a. 	The possibility of settlement.
	b. 	The entry of a scheduling order to include deadlines for completion of discovery.
	c. 	Stipulations of law or fact.
	d. 	Stipulations on the admissibility of exhibits.
	e. 	Submission of expert and other witness lists. Witness lists may be amended subsequent to the prehearing conference within the time limits established by the executive director or administrative law judge at the hearing conference. Any such amendments must be served on all parties. Witnesses not listed on the final witness list may be excluded from testifying unless there was good cause for the failure to include their names.
	f. 	Submission of exhibit lists. Exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the executive director or administrative law judge at the prehearing conference. Exhibits, other than rebuttal exhibits, that are not listed on the final exhibit list may be excluded from admission into evidence unless there was good cause for the failure to include them.
	g. 	Stipulations for waiver of any provision of law.
	h. 	Identification of matters which the parties intend to request be officially noticed.
	i. 	Consideration of any additional matters which will expedite the hearing.
	51.17(3) Prehearing conferences may be conducted by telephone unless otherwise ordered.
650—51.18(17A) Continuances. Unless otherwise provided, applications for continuances shall be filed with the board. In the event the application for continuance is not contested, the executive director shall serve as presiding officer and issue the appropriate order. In the event the application for continuance is contested, the matter shall be heard by the board as presiding officer or may be delegated by the board to an administrative law judge.
	51.18(1) A written application for a continuance shall:
	a. 	Be made at the earliest possible time and no less than five working days before the hearing except in case of unanticipated emergencies;
	b. 	State the specific reasons for the request; and
	c. 	Be signed by the requesting party or the party’s representative.
An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within two days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible.
	51.18(2) In determining whether to grant a continuance, the presiding officer may consider:
	a. 	Prior continuances;
	b. 	The interests of all parties;
	c. 	The public interest;
	d. 	The likelihood of informal settlement;
	e. 	The existence of an emergency;
	f. 	Any objection;
	g. 	Any applicable time requirements;
	h. 	The existence of a conflict in the schedules of counsel, parties, or witnesses;
	i. 	The timeliness of the request; and
	j. 	Other relevant factors.
The presiding officer may require documentation of any grounds for continuance.
650—51.19(17A) Settlements.
	51.19(1) A contested case may be resolved by informal settlement. Settlement negotiations may be initiated at any stage of a contested case by the executive director, prosecuting attorney, the respondent, the board or its designee. Neither the board nor the respondent is required to participate in the informal settlement process. The executive director and chairperson of the board, or the chairperson’s designee(s), shall have authority to negotiate on behalf of the board.
	51.19(2) The full board shall not be involved in negotiation until a written proposed settlement is submitted to the full board for approval, unless both parties waive this prohibition.
	51.19(3) Consent to negotiation by the respondent during informal settlement negotiation constitutes a waiver of notice and opportunity to be heard pursuant to Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202. Thereafter, the prosecuting attorney is authorized to discuss informal settlement with the board chairperson or designee(s).
	51.19(4) Negotiations for a proposed settlement shall be completed at least ten days prior to the hearing date set by the order for hearing. However, after consultation with the board chairperson or designee, the executive director shall have the power to grant additional time for continued negotiations in instances where additional time will likely lead to a satisfactory settlement prior to the hearing date.
	51.19(5) No proposed settlement shall be presented to the board for approval until it is in final, written form signed by the respondent.
	51.19(6) All proposed settlements are subject to approval of a majority of the full board. If the board fails to approve a proposed settlement, it shall be of no force or effect to either party. The proposed settlement shall be binding if approved by the board and signed by both the chairperson or the chairperson’s designee and the respondent.
	51.19(7) A board member who participates in the negotiation of a proposed settlement is not disqualified from participating in the adjudication of the contested case.
	51.19(8) Consent to settlement negotiations by the respondent constitutes a waiver of any objection to the participation in the adjudication of the contested case of any board member who participated in the review of a settlement agreement which was not approved by the board.
	51.19(9) A provision for payment of the actual costs or a $300 quarterly fee to cover the board’s expenses associated with monitoring a licensee’s or registrant’s compliance with the settlement agreement may be included in the settlement agreement. Actual costs include mileage, meals, travel expenses, hourly investigative time, and all incidental expenses associated with monitoring compliance. Monitoring costs shall be considered repayment receipts as defined in Iowa Code section 8.2.
[ARC 8369B, IAB 12/16/09, effective 1/20/10]
650—51.20(17A) Hearing procedures.
	51.20(1) A hearing may be conducted before the board or a panel of not less than three members of the board at least two of whom are licensed by the board.
	51.20(2) Hearings by the dental hygiene committee. In the event the licensee who is the subject of the contested case is a dental hygienist, the hearing shall be held before the dental hygiene committee, which shall constitute a panel of the board. The dental hygiene committee may in its discretion recommend to the board that the hearing be held instead before a panel of the board or full board.
	51.20(3) When, in the opinion of a majority of the board, it is desirable to obtain specialists within an area of practice when holding disciplinary hearings, the board may appoint a panel of three specialists who are not board members to make findings of fact and to report to the board. Such findings shall not include any recommendation for or against licensee discipline.
	51.20(4) The presiding officer shall have the authority to administer oaths, to admit or exclude testimony or other evidence, and to rule on all motions and objections. The presiding officer may request that an administrative law judge perform any of these functions, and may be assisted and advised by an administrative law judge.
	51.20(5) All objections shall be timely made and stated on the record.
	51.20(6) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Any party may be represented by an attorney at their own expense.
	51.20(7) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.
	51.20(8) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.
	51.20(9) Witnesses may be sequestered during the hearing.
	51.20(10) The presiding officer shall have authority to grant immunity from disciplinary action to a witness as provided by Iowa Code section 272C.6(3).
	51.20(11) The presiding officer shall conduct the hearing in the following manner:
	a. 	The presiding officer shall give an opening statement briefly describing the nature of the proceedings;
	b. 	The parties shall be given an opportunity to present opening statements;
	c. 	Parties shall present their cases in the sequence determined by the presiding officer;
	d. 	Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross-examination. The presiding officer may limit questioning in a manner consistent with law;
	e. 	When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.
	51.20(12) The board members and administrative law judge have the right to question a witness. Examination of witnesses by board members is subject to properly raised objections.
	51.20(13) The hearing shall be open to the public unless the licensee requests that the hearing be closed.
650—51.21(17A) Evidence.
	51.21(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
	51.21(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.
	51.21(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.
	51.21(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.
All exhibits admitted into evidence shall be appropriately marked and be made part of the record.
	51.21(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.
	51.21(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.
650—51.22(17A) Default.
	51.22(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
	51.22(2) Where appropriate and not contrary to law, any party may move for default against a party who has failed to appear after proper service.
	51.22(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final board action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 650—51.26(17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.
	51.22(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.
	51.22(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.
	51.22(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 236.
	51.22(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 650—51.25(17A).
	51.22(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.
	51.22(9) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effective immediately, subject to a request for stay under rule 650—51.28(17A).
650—51.23(17A) Ex parte communication.
	51.23(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. Nothing in this provision is intended to preclude board members from communicating with other board members or members of the board staff, other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 51.10(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties, as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.
	51.23(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending before the board.
	51.23(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.
	51.23(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 650—51.13(17A) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.
	51.23(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.
	51.23(6) The executive director may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating under rule 650—51.10(17A).
	51.23(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 650—51.18(17A).
	51.23(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified.
If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order.
If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.
	51.23(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment, unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.
	51.23(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, suspension or revocation of the privilege to practice before the board. Violation of ex parte communication prohibitions by board personnel shall be reported to the board and its executive director for possible sanctions including censure, suspension, dismissal, or other disciplinary action.
650—51.24(17A) Recording costs. Upon request, the board shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.
650—51.25(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the executive director, administrative law judge, or hearing panel. In determining whether to do so, the board shall consider:
	1.	The extent to which its granting the interlocutory appeal would expedite final resolution of the case; and
	2.	The extent to which review of that interlocutory order by the board at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy.
Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.
650—51.26(17A) Proposed and final decision.
	51.26(1) When a quorum of the board presides over the reception of the evidence at the hearing, the decision is a final decision.
	51.26(2) When a panel of three specialists presides over the hearing, the panel shall issue a proposed decision which shall include proposed findings of fact but shall not include conclusions of law. A proposed decision of a hearing panel of specialists, together with a transcript of the proceedings and exhibits presented, shall be reviewed by the board within 30 days of the date the proposed decision was issued. The parties shall have the opportunity to submit briefs and arguments to the board. The decision of the board is a final decision.
	51.26(3) When a panel of three board members or the dental hygiene committee presides over the hearing, the panel shall issue a proposed decision which shall include proposed findings of fact, conclusions of law, and order. A proposed decision, together with a transcript of the proceedings and the exhibits presented, shall be reviewed by the board within 30 days of the date the proposed decision was issued. A proposed decision of a board hearing panel becomes a final decision without further proceedings unless appealed in accordance with the following provisions:
	a. 	The board may review a proposed decision on its own motion by serving a notice of appeal on the parties within 30 days after issuance of the proposed decision.
	b. 	A proposed decision may be appealed to the board by either party by serving on the executive director, either in person or by certified mail, a notice of appeal within 30 days after service of the proposed decision on the appealing party.
	c. 	Following receipt of a notice of appeal, the board shall enter an order establishing a schedule for submission of briefs and oral argument. The parties shall serve their briefs on the board and shall furnish an additional copy to each party by first-class mail.
	d. 	Oral argument shall be heard by the board unless waived by both parties. The time granted each party for oral argument shall be established by the board.
	e. 	The record on appeal shall be the entire record made before the hearing panel or administrative law judge. Costs associated with the appeal shall be paid by the appealing party.
	51.26(4) At no time prior to the release of the final decision by the board shall a proposed decision be made public or distributed to any person other than the parties.
	51.26(5) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that:
	a. 	The evidence is material; and
	b. 	The evidence arose after completion of the original hearing; or
	c. 	Good cause exists for failure to present the evidence at the original hearing; and
	d. 	The party has not waived the right to present the additional evidence.
A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The board may remand a case to the hearing panel for further hearing or may itself preside at the taking of additional evidence.
650—51.27(17A) Applications for rehearing.
	51.27(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.
	51.27(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the board decision on the existing record and whether, on the basis of the grounds enumerated in subrule 51.27(5), the applicant requests an opportunity to submit additional evidence.
	51.27(3) Time of filing. The application shall be filed with the board within 20 days after issuance of the final decision.
	51.27(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein.
	51.27(5) Additional evidence. A request that additional evidence be considered on rehearing shall be governed by subrule 51.26(5).
	51.27(6) Disposition. Any application for a rehearing shall be deemed denied unless the board grants the application within 20 days after its filing.
650—51.28(17A) Stays of board actions.
	51.28(1) When available. Any party to a contested case proceeding may petition the board for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the board or pending judicial review. The petition shall state the reasons justifying a stay or other temporary remedy.
	51.28(2) When granted. In determining whether to grant a stay, the board shall consider the factors listed in 1998 Iowa Acts, chapter 1202, section 23(5c). The board shall not grant a stay in any case in which the district court would be expressly prohibited by statute from granting a stay.
650—51.29(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable.
650—51.30(17A) Emergency adjudicative proceedings.
	51.30(1) To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare, and consistent with the Constitution and other provisions of law, the board may issue a written order in compliance with 1998 Iowa Acts, chapter 1202, section 21, to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the board by emergency adjudicative order. Before issuing an emergency adjudicative order the board shall consider factors including, but not limited to, the following:
	a. 	Whether there has been a sufficient factual investigation to ensure that the board is proceeding on the basis of reliable information;
	b. 	Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;
	c. 	Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;
	d. 	Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and
	e. 	Whether the specific action contemplated by the board is necessary to avoid the immediate danger.
	51.30(2) Issuance of order.
	a. 	An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the board’s decision to take immediate action. The order is a public record.
	b. 	The written emergency adjudicative order shall be immediately delivered to the person who is required to comply with the order by utilizing one or more of the following procedures:
	(1)	Personal delivery;
	(2)	Certified mail, return receipt requested, to the last address on file with the board;
	(3)	Certified mail to the last address on file with the board; or
	(4)	Fax. Fax may be used as the sole method of delivery if the person required to comply with the order has filed a written request that board orders be sent by fax and has provided a fax number for that purpose.
	c. 	To the degree practicable, the board shall select the procedure for providing written notice that best ensures prompt, reliable delivery.
	51.30(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order issues, the board shall make reasonable immediate efforts to contact by telephone the persons who are required to comply with the order.
	51.30(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the board shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.
Issuance of a written emergency adjudicative order shall include notification of the date on which board proceedings are scheduled for completion. After issuance of an emergency adjudicative order, continuance of further board proceedings to a later date will be granted only in compelling circumstances upon application in writing, unless the person who is required to comply with the order is the party requesting the continuance.
650—51.31(153) Judicial review. Judicial review of the board’s decision may be sought in accordance with the terms of Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code section 153.33(4)“g” and “h.”
650—51.32(17A) Notification of decision. All parties to a contested case shall be promptly furnished with a copy of any decision or order either by personal delivery or by certified or first-class mailing. Delivery or first-class mailing of any decision or order to an attorney of record in a contested case hearing shall constitute notification of the respondent. Service by mail is complete upon mailing.
650—51.33(17A) Publicizing disciplinary action.
	51.33(1) Final decisions of the board relating to licensee discipline shall be transmitted to the appropriate state and national professional associations and news media, which may include a newspaper(s) of general circulation, and to other news media, person or organization upon request.
	51.33(2) The board shall notify other boards of dentistry in states where the respondent is also licensed of disciplinary action taken against the Iowa licensee.
	51.33(3) The board shall notify the American Association of Dental Examiners of disciplinary action taken against an Iowa licensee.
	51.33(4) The board shall, in accordance with federal law, notify the National Practitioners Data Bank of disciplinary action taken against an Iowa licensee.
650—51.34(153) Reinstatement.
	51.34(1) Any person whose license has been revoked or suspended by the board may apply to the board for reinstatement in accordance with the terms of the order of revocation or suspension.
	51.34(2) If the order of revocation or suspension did not establish terms upon which reinstatement might occur, or if the license was voluntarily surrendered pursuant to disciplinary action, an initial application for reinstatement may not be made until one year has elapsed from the date of the final order.
	51.34(3) All proceedings for reinstatement shall be initiated by the respondent, who shall file with the board an application for the reinstatement of the license. All proceedings upon the petition for reinstatement shall be subject to the same rules of procedure as other disciplinary matters before the board.
	51.34(4) An application for reinstatement shall allege facts which, if established, will be sufficient to enable the board to determine that the basis for the revocation or suspension no longer exists and that it will be in the public interest for the license to be reinstated. The burden of proof to establish such facts shall be on the respondent.
	51.34(5) An application for reinstatement may include a request for a hearing on the issues raised on the application or any other information furnished to the board. The hearing on an application for reinstatement shall be a contested case proceeding within the meaning of Iowa Code section 17A.2(2).
	51.34(6) The order to grant or deny reinstatement shall include findings of fact and conclusions of law. If reinstatement is granted, terms and conditions of licensure may be imposed. Such terms and conditions may include restrictions on the licensee’s practice. This order will be published as provided for in rule 650—51.33(153).
	51.34(7) A person whose license to practice dentistry or dental hygiene was revoked or suspended must successfully complete the examination required at the time of reinstatement for dental or dental hygiene licensure. The board may in its discretion require remedial training in addition to or in lieu of the examination requirements.
650—51.35(272C) Disciplinary hearings—fees and costs.
	51.35(1) Definitions. As used in this chapter in relation to a formal disciplinary action filed by the board against a licensee:
“Deposition” means the testimony of a person pursuant to subpoena or at the request of the state of Iowa taken in a setting other than a hearing.
“Expenses” means costs incurred by persons appearing pursuant to subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa in a hearing or other official proceeding and shall include mileage reimbursement at the rate specified in Iowa Code section 70A.9 or, if commercial air or ground transportation is used, the actual cost of transportation to and from the proceeding. Also included are actual costs incurred for meals and necessary lodging.
“Medical examination fees” means actual costs incurred by the board in a physical, mental, chemical abuse, or other impairment-related examination or evaluation of a licensee when the examination or evaluation is conducted pursuant to an order of the board.
“Transcript” means a printed verbatim reproduction of everything said on the record during a hearing or other official proceeding.
“Witness fees” means compensation paid by the board to persons appearing pursuant to subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa. For the purposes of this rule, compensation shall be the same as outlined in Iowa Code section 622.69 or 622.72 as the case may be.
	51.35(2) The board may charge a fee not to exceed $75 for conducting a disciplinary hearing which results in disciplinary action taken against the licensee by the board. In addition to the fee, the board may recover from the licensee costs for the following procedures and personnel:
	a. 	Transcript.
	b. 	Witness fees and expenses.
	c. 	Depositions.
	d. 	Medical examination fees incurred relating to a person licensed under Iowa Code chapter 147.
	51.35(3) Fees and costs assessed by the board pursuant to subrule 51.35(2) shall be calculated by the board’s executive director and shall be entered as part of the board’s final disciplinary order. The board’s final disciplinary order shall specify the time period in which the fees and costs shall be paid by the licensee.
	51.35(4) Fees and costs collected by the board pursuant to subrule 51.35(2) shall be allocated to the expenditure category of the board in which the hearing costs were incurred. The fees and costs shall be considered repayment receipts as defined in Iowa Code section 8.2.
	51.35(5) Failure of a licensee to pay the fees and costs assessed herein in the time specified in the board’s final disciplinary order shall constitute a violation of a lawful order of the board.
These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code sections 272C.5 and 272C.6.
[Filed 10/23/68]
[Filed 8/23/78, Notice 6/28/78—published 9/20/78, effective l0/25/78]
[Filed 3/18/82, Notice 2/3/82—published 4/14/82, effective 5/l9/82]
[Filed 12/14/84, Notice 10/10/84—published 1/2/85, effective 2/6/85]
[Filed 3/20/86, Notice 9/11/85—published 4/9/86, effective 5/14/86]
[Filed 8/5/87, Notice 4/8/87—published 8/26/87, effective 9/30/87]
[Filed 4/28/88, Notice 3/23/88—published 5/18/88, effective 6/22/88]◊
[Filed 7/30/93, Notice 6/9/93—published 8/18/93, effective 9/22/93]
[Filed 10/17/97, Notice 8/13/97—published 11/5/97, effective 12/10/97]
[Filed 1/22/99, Notice 11/18/98—published 2/10/99, effective 3/17/99]
[Filed 4/29/99, Notice 3/24/99—published 5/19/99, effective 6/23/99]
[Filed emergency 1/21/00—published 2/9/00, effective 1/21/00]
[Filed 1/18/02, Notice 11/14/01—published 2/6/02, effective 3/13/02]
[Filed 7/1/04, Notice 5/12/04—published 7/21/04, effective 8/25/04]
[Filed 8/31/04, Notice 7/21/04—published 9/29/04, effective 11/3/04]
[Filed ARC 8369B (Notice ARC 8044B, IAB 8/12/09), IAB 12/16/09, effective 1/20/10]
◊	Two or more ARCs