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Section 34: Hearing and Appellate Review Procedures for Termination of a Residency Appointment

I. Right to Hearing and Appellate Review

These procedures apply only to the termination of a residency appointment during the annual position agreement period. A resident whose appointment is terminated during the annual position agreement period shall be entitled to a hearing before the Residency Review Committee. The Residency Review Committee shall be an ad hoc committee appointed by the Associate Dean for Graduate Medical Education, or the Dean's designee, and shall consist of the Associate Dean or the Dean's designee, one department Chair, one faculty member other than a department Chair, and two (2) residents. The Associate Dean for Graduate Medical Education, or the Dean's designee, shall serve as Chairperson of the Residency Review Committee. A quorum shall be three members, one of whom must be a resident.

II. Initiation of Hearing

  1. The Chairperson of the Residency Review Committee shall give the resident against whom a termination action has been taken written notification of the action by certified or registered mail, return receipt requested, or by hand delivery. The notice shall:
    1. Advise the resident of the action taken;
    2. Advise the resident of the grounds upon which the action is based;
    3. Advise the resident of the right to a hearing;
    4. Specify the number of days (not less than 30) following the date of receipt of notice within which a request for a hearing must be submitted;
    5. State that failure to request a hearing within a specified time period shall constitute a waiver of the right to a hearing and to appellate review of the matter;
    6. Advise the resident that he/she has the right to representation by counsel; to have a record made of the proceedings; to call, examine, and cross-examine witnesses; to present evidence; and to submit a written statement at the close of the hearing; and
    7. State that upon receipt of a timely hearing request, the resident shall be notified of the date, time and place of the hearing.
  2. A resident shall have no more than thirty (30) calendar days following the receipt of the notice of termination to file a written request for hearing. The request must be delivered to the Associate Dean for Graduate Medical Education either by hand delivery or by certified or registered mail. Failure to request a hearing within the specified time period shall constitute a waiver of the right to a hearing and to appellate review of the matter.

III. Hearing Prerequisites

  1. Within seven (7) calendar days after receipt of a timely hearing request from a Resident entitled to a hearing, the Associate Dean for Graduate Medical Education, or the Dean's designee, shall schedule a hearing and shall give written notice to the resident of the time, place and date scheduled. The hearing shall be scheduled not less than thirty (30) calendar days from the date of receipt of a timely request for hearing. The notice of hearing shall state in concise language the grounds for the termination of the Resident, a list of specific or representative charts being questioned, and/or the other reasons or subject matter forming the basis for the adverse action which is the subject of the hearing, and shall provide a list of witnesses (if any) expected to testify at the hearing in support of the adverse action. This list may be supplemented at any time prior to three (3) business days prior to the hearing date.
  2. No staff member who participated in the residency termination shall serve as a member of the hearing committee.

IV. Hearing Procedures

  1. The personal presence of the resident who requested the hearing shall be required. If the resident fails, without good cause, to appear and proceed at the hearing, the resident shall be considered to have waived all rights hereunder in the same manner and with the same consequences provided above in connection with failure to request a hearing.
  2. The Chairperson of the Residency Review Committee shall be the Presiding Officer of the hearing. The Presiding Officer shall maintain decorum and assure that all participants in the hearing have a reasonable opportunity to present relevant oral and documentary evidence. The Presiding Officer shall determine the order of the proceedings and shall make rulings on procedure and the evidence to be considered.
  3. The hearing provided for in these procedures is for the purpose of resolving matters bearing on professional competency and conduct of the resident in the residency training program. Nevertheless, the affected resident, the department or entity involved, and/or the Committee shall be entitled to representation by an attorney or other person of their choice at any hearing held pursuant to these procedures. Likewise, the resident, the department or entity involved, and/or the Committee shall have the right to use legal counsel in preparing for the initial hearing or for appellate review.
  4. During the hearing, each of the parties shall have the following rights: to call and examine witnesses, to present exhibits, to cross-examine any witness on any matter relevant to the issue, and to rebut any evidence. If the resident who requested the hearing does not testify, he or she may be called and examined by any member of the Committee or by the representative of the department or entity whose action prompted the hearing.
  5. The hearing need not be conducted according to rules of law relating to examination of witnesses or receipt of evidence. Any matters deemed relevant by the Presiding Officer may be admitted regardless of the admissibility of this evidence in a court of law. Evidence merely cumulative or not so deemed relevant may be excluded. Each party shall, prior to, during, or at the close of the hearing, be entitled to submit memoranda concerning any issue, and these memoranda shall become a part of the hearing record. The Presiding Officer may, but shall not be required to, order that oral evidence be taken only on oath or affirmation administered by any person designated by the Presiding Officer and entitled to notarize documents in the State of Georgia. The hearing shall be tape-recorded or, at the discretion of the Presiding Officer, be reported by a qualified court reporter. Copies of the tape recording or transcript may be obtained by the Resident upon payment of any reasonable charges associated with the preparation thereof.
  6. The department recommending the residency termination shall have the initial obligation to present evidence in support of the termination showing that the termination action has been taken in the reasonable belief that it furthers the quality of health care or that the resident's conduct or actions were otherwise unacceptable. The resident then shall have the burden of supporting the challenge to the termination by showing that the evidence presented lacks any substantial factual basis or that such basis or the conclusions drawn there from is arbitrary, unreasonable, or capricious.
  7. A quorum of the Committee must be present throughout the hearing and deliberations. If the Presiding Officer determines that a Committee member was absent from a substantial portion of the proceedings, that member shall not participate in the deliberations or the decision of the Committee.
  8. Requests for postponement of a hearing shall be granted by the Committee Chairperson only upon a showing of good cause and only if the request for postponement is made as soon as reasonably practicable.
  9. The Committee may recess the hearing and reconvene without additional notice for the convenience of the participants or to obtain new or additional evidence or consultation. Upon conclusion of the presentation of oral and written evidence, the hearing shall be closed. The Committee shall thereafter, at a time convenient to the members, conduct its deliberations. Deliberations shall not be recorded. Unless the Committee upholds the termination by a majority vote, the resident shall be reinstated. Upon conclusion of Committee deliberations, the Presiding Officer shall declare the hearing finally adjourned.

V. Hearing Committee Report and Further Action

Within ten (10) calendar days after the final adjournment of the hearing, the Residency Review Committee shall make a written report of its findings and decision on the matter and the Chairperson of the Committee shall send a copy of the findings and decision to the Resident and the department involved.

VI. Initiation of Appeal

  1. A resident shall have seven (7) calendar days following receipt of the notice of an adverse decision of the Committee to file a written request for appellate review. The request shall be delivered to the Dean of the Emory University School of Medicine, by hand or by certified or registered mail, return receipt requested. Likewise, in the event of a ruling favorable to the resident, the department initiating the termination shall have seven (7) calendar days following receipt of notice of the ruling to file a written request for appellate review. The department's written request for appellate review shall be delivered to the Dean by hand.
  2. If the resident or the department fails to request appellate review within the time period and in the manner specified above, any right to review the Resident or department might otherwise have had shall be deemed waived.
  3. Upon receipt of a written request for appellate review from the resident or department, the Dean shall schedule appellate review which shall occur not less than fourteen (14) calendar days nor more than thirty (30) calendar days after receipt of the request. Irrespective of whether appellate review is initiated by a resident or a department, at least seven (7) calendar days prior to the appellate review, the Dean shall send, by hand, or by certified or registered mail, to the resident and Chairperson of the Department, written notice of the time, place and date of the review. The time scheduled for the appellate review may be changed for good cause by the Dean. All appellate review shall be conducted by the Dean, or the Dean's designee, alone, or if the Dean so desires, by a duly appointed ad hoc advisory appellate review committee, appointed by the Dean, consisting of no less than two (2) faculty members and one Resident. If a committee is appointed, the Dean shall be a member of the committee and shall serve as Chairperson or shall designate a member to serve as Chairperson.

VII. Appellate Review Procedure

  1. Proceedings by the Dean or by the ad hoc advisory appellate review committee shall include, but not be limited to, consideration of the record of the hearing before the Residency Review Committee, that Committee's findings, and subsequent actions thereon. The Dean, or the committee, shall also consider any written statements that are submitted. Such review shall be for the purpose of determining whether the adverse decision against the Resident or the department was made in accordance with these procedures and not arbitrarily or capriciously.
  2. As part of the request for appellate review, the resident or Chairperson of the department seeking review shall submit a written statement detailing the findings of fact, conclusions and procedural matters with which the resident or department disagrees and reasons for such disagreement. This written statement should cover any matters raised at any step of the hearing process, and Legal counsel may assist in its preparation. Prior to the appellate review, a written statement in reply may be submitted by the Chairperson of the department, where review is sought by a resident, or by the resident, where the department seeks review. The Dean shall provide a copy of the statements to the opposing parties.
  3. The Dean or the ad hoc advisory appellate review committee shall allow the parties and their attorneys, if any, to appear personally and make oral statements in favor of their positions. Any party or representative so appearing shall be required to answer questions asked by the Dean or any member of the Committee.
  4. The Dean or the Chairperson appointed by the Dean, shall be the Presiding Officer and shall determine the order of procedure during the review, make all required rulings, and maintain decorum.
  5. New or additional matters of evidence, not raised or presented during the original hearing or in the hearing report, and not otherwise reflected in the record, shall be introduced at the appellate review only at the discretion of the Dean, or the appointed Chairperson, following an explanation by the party requesting the consideration of such matter or evidence as to why it was not presented earlier.
  6. The appellate review shall not be deemed to be concluded until all the procedural steps provided above have been completed or waived.

VIII. Final Decision

  1. Within fourteen (14) calendar days after the conclusion of the appellate review, the Committee, or the Dean, if acting without an advisory committee, shall deliberate and make a final decision in the matter, and shall send written notice thereof to the department or other entity involved and to the affected Resident.
  2. Notwithstanding any other provision of these procedures, no resident shall be entitled to more than one hearing and one appellate review of the same matter.

IX. Reinstatement

Compensation and fringe benefits shall terminate as of the date on which the termination decision is made. Where a resident is reinstated by virtue of proceedings hereunder, the resident shall receive all back pay to which the resident would have been entitled but for the termination action and shall be reinstated to all fringe benefit programs, unless the resident elects to waive reinstatement. In such event, the resident shall receive the equivalent of back pay from the date of the termination decision until the date on which notice of the outcome of the hearing, if there is no appellate review, or if appellate review is sent to the resident, less any amounts received by the resident in a training program at another institution, and shall be deemed to have resigned from the Residency Program.