The ABCO Fair Hearing Procedure (“Hearing Procedure”), as may be amended or replaced from time to time, is the review process established to provide ABCO Fellows and ABCO Applicants with a fair and impartial resolution mechanism for final determination of any and all disputes, claims and/or controversies involving ABCO certification, irrespective of legal theory, including, but not limited to, the breach, termination, enforcement, interpretation and/or validity of any agreement, as well as the determination of the validity, scope and applicability of this Hearing Procedure. The principal use of the Hearing Procedure will be for review of ABCO imposed discpline, including suspension and revocation of ABCO certification and/or Fellow status, and for resolving appeals of denial of certification.

Pursuant to the Hearing Procedure, as set .forth herein, any ABCO Fellow or Applicant denied Fellowship may request a hearing on an applicable dispute or disciplinary action between the Fellow or Applicant and ABCO. If the hearing fails to resolve the matter, then, on election by either party, the matter shall be determined and finally resolved by binding arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. Chs. 1-3, except as otherwise set forth herein. This process is the sole method of resolving any permissible dispute that may arise between an ABCO Fellow and the ABCO.

All records, data and information acquired by, or prepared for, a hearing panel and/or an arbitrator hereunder shall be held in strict confidence, except to the extent necessary to carry out the purposes of any final action(s) and/or decision(s) rendered, and shall not be subject to subpoena or discovery, which limitations shall survive such final action(s) and/or decision(s).

For puposes of this Hearing Procedure, "Fellow" includes any bona fide applicant for ABCO Fellowship and/or certification.

PROCEDURE

1. Notice of Adverse Action and Right of Hearing

Whenever adverse action is taken by ABCO against an ABCO Fellow or Applicant the ABCO shall notify the affected Fellow or Applicant, in writing, of such adverse action and of the Fellow’s right to request a hearing pursuant to this Hearing Procedure. The notice will state:

A. The action(s) taken or proposed to be taken;

B. A brief summary of the basis for the action(s) or proposed action(s);

C. That the Fellow or Applicant may request a hearing;

D. That a hearing must be requested by the Fellow within thirty (30) days of receiving the notice.

E. That the Fellow has the hearing rights and obligations described in this Hearing Procedure;

The notice will be sent first-class U.S. mail, postage prepaid, certified with return receipt requested, to the Fellow’s or Applicant's address as listed with ABCO.

2. Request for Hearing

Whenever a dispute arises from or relates to ABCO Fellowship or application the Fellow or applicant must request a hearing, in accordance with this Hearing Procedure, in writing, within thirty (30) days following the date of receipt of the Notice. The date indicated on the return receipt shall establish the date of receipt of the notice. If a date is not indicated on the return receipt, it shall be presumed that the recipient received the Notice five (5) days from the date of mailing. The request for a hearing must be accompanied by a $600 non-refundable hearing fee.

If a hearing is not requested within the time and in the manner set forth herein or the hearing fee is not paid within the required time, each of the parties shall be deemed to have accepted the adverse action by ABCO which shall become final. There shall be no further right to appeal or to seek other redress, including challenge in court, of the final action and the action shall become effective immediately.

Each party shall pay its own legal fees and expenses for participation in this Hearing process.

3. Notice of Hearing

As soon as is reasonably practicable after receiving a written request for hearing ABCO shall issue a written “Notice of Hearing.” The Notice of Hearing will include the following:

A. The time, date and place of the hearing;

B. Whether the Fellow will appear at the hearing in-person or by telephone;

C. The issues that will be heard at hearing;

D. Notice that the hearing will be held before a hearing panel appointed by the ABCO Board of Directors, and

E. Notice that the Fellow’s right to a hearing will be forfeited if the Fellow fails, without good cause, as determined by the ABCO, to participate in the hearing and respond to questions from the hearing panel.

The notice shall be sent first-class U.S. mail, postage prepaid, certified with return receipt requested, to the Fellow’s address as listed with ABCO.

4. Hearing Panel

The ABCO shall appoint a hearing panel of at least three persons who have the requisite expertise to ensure a fair hearing, and shall specify a Chairperson for the hearing panel. The hearing panel members shall not be in direct economic competition with the affected Fellow, and shall stand to gain no direct financial benefit from the outcome of the hearing. The fact that a hearing panel member is a doctor certified by the ABCO, standing alone, shall not constitute direct economic competition within the meaning of this paragraph. Members of the hearing panel may attend the hearing in-person or by telephone conference.

5. Pre-Hearing Procedure

A. Discovery Requests

Either party may request from the other party, non-privileged documents within its possession, custody or control that are directly relevant to the issues that will be heard at the hearing. No other discovery will be permitted. The request for documents must be made at least thirty (30) days before the Hearing. The party who receives a request for documents from the other party must produce the requested documents or object to their production and state the basis of the objection(s) within fifteen (15) days of receiving the request.

Any discovery dispute and/or the validity of any objection shall be resolved by the Chair of the Hearing Panel, in his/her sole discretion, who may allow, deny, or limit discovery, and may require the party requesting discovery to pay the reasonable legal fees and expenses of the responding party. In resolving a discovery dispute, the Chair of the Hearing Panel shall be guided by the following considerations:

a) The relevance of the information and the burden of producing it;

b) Whether the information would violate the protected peer review privilege or the attorney- client privilege;

c) Whether the information is confidential or refers to individually identifiable doctors other than the affected Fellow; and

d) Whether there is other good cause for the information to be produced.

All information exchanged between the parties shall be treated by the receiving party as strictly confidential, may be used solely in and for the purposes of the Hearing and may not be disclosed to any third party except, and subject to, such limitations as may be imposed by the Chair of the Hearing Panel: (i) to that party’s counselor representative or consultants for the hearing, or (ii) to witnesses at the hearing. Upon conclusion of the dispute resolution process as provided herein, any and all confidential information, including all copies, shall be returned to the producing party following conclusion of the dispute resolution process; provided, however, this obligation shall not apply to the hearing panel or its counsel.

B. Pre-Hearing Document Exchange

Each party shall produce to the other party, at least twenty (20) business days prior to the hearing or within ten (10) business days of receiving a request for it from the other party, whichever is later, each document it intends to offer as evidence at the hearing. The Chair of the Hearing Panel, in his/her sole discretion, may refuse to admit any document not exchanged in compliance with this section or grant a continuance of the hearing.

C. Witness Lists

At least twenty (20) business days prior to the hearing, the parties shall exchange a written list of the names and addresses of the individuals, if any, they intend to call as witnesses at the hearing. The party who lists a witness shall be responsible for costs and producing that witness at the hearing. The witness list shall be timely amended, with written explanation, when newly discovered witnesses are identified. A failure to comply with this requirement is good cause for the Chair of the Hearing Panel, in his/her sole discretion, to postpone the hearing or prohibit such witness(es) from testifying or producing evidence.

In the event either party intends to offer testimony from an expert witness at the hearing, that party shall notify the other party, in writing, not less than thirty (30) business days in advance of the hearing date. The notice shall include the name, address, curriculum vitae of the expert, and a written report describing the expert’s opinions, the basis for them and any evidence the expert will offer or rely on at the hearing. The other party shall have twenty (20) days to name a rebuttal expert and produce a rebuttal report that shall include the expert’s opinions, the basis for them and any evidence the expert will offer or rely on at the hearing.

6. Failure to Participate in the Hearing

If the Fellow fails to participate in or respond to questions from the hearing panel without good cause (as determined by the Chair of the Hearing Panel, in his/her sole discretion), the Fellow shall automatically forfeit the right to a hearing, the issues to be heard shall be deemed finally resolved against that party and, any adverse action(s) by ABCO that were at issue in the hearing shall become the final action(s) of ABCO. There shall be no right to appeal or other redress, including challenge in court, of this final action.

7. Conduct of the Hearing

Special Rules. At the hearing, the Chair of the Hearing Panel will advise the parties of any special or additional rules and/or procedures to be followed during the proceeding. The Chair of the Hearing Panel, in his/her sole discretion, shall determine the relevance and admissibility of all evidence to be offered and may exclude any such evidence deemed to be inadmissible or cumulative. If the parties agree, or the Chair of the Hearing Panel directs, documents or other evidence may be submitted after the hearing in the manner and within the time directed by the Chair of the Hearing Panel.

Legal Counsel. Each party may be represented by legal counselor other representative of the party’s choice. Each party shall bear its own legal fees and all expenses.

Hearing Management. The Chair of the Hearing Panel, in his/her sole discretion, shall manage the hearing to facilitate determination of the facts and the issues to be heard, including without limitation, setting reasonable limits on the participation of counselor a representative for a party during the hearing.

Party Rights. Unless the Chair of the Hearing Panel determines otherwise, during the hearing, each party:

1. May offer an opening statement and closing argument; and

2. May examine and cross examine witnesses and introduce evidence in its case in chief and in rebuttal.

Following the hearing, the Chair of the Hearing Panel, in his or her sole discretion, may permit the parties to submit written arguments about the issues before the hearing panel. Any such written arguments shall be limited and submitted as directed by the Chair of the Hearing Panel.

Scope of Evidence. The rules of law relating to the examination of witnesses and presentation of evidence in court shall not apply to any hearing conducted hereunder. No evidence shall be admitted unless it is directly relevant to an issue and is the sort of evidence which responsible persons are accustomed to rely upon in the conduct of serious affairs. The Chair of the Hearing Panel may admit evidence, consider and resolve any issues if the hearing panel reasonably determines that doing so will not unfairly surprise or prejudice an objecting party.

Confidential Process. Due to the confidential nature of the dispute resolution process (i) the doctor may not bring spectators or other individuals to the hearing who are not acting in a representative or testimonial capacity, (ii) the Chair of the Hearing Panel shall have the sole right and discretion to exclude any person(s) from all or any part of the hearing, except for a party or a party’s attorney or designated representative and (iii) no record of the proceedings shall be made except as provided herein.

Record. A party at its own expense, and the hearing panel (at the parties shared expense), may arrange for a record of the proceeding to be kept by an independent certified court reporter, so long as the Chair of the Hearing Panel is notified by the arranging party not less than ten (10) days in advance of the hearing, and the certified court reporter sits in the presence of the hearing panel. If such a record is made, a copy of the transcript shall be made timely available to each of the other parties, including the Chair of the Hearing Panel (or designee), on payment by the requesting party of the court reporter’s fee. No other record of the proceeding of any kind may be made by any party, except for the peer review privileged and protected note's, information, materials and decision(s) of the hearing panel or designee.

Protected Process. The Fair Hearing Procedure a peer review privileged and protected process. All records, data and information acquired by or prepared for the hearing panel shall be held in strict confidence, except to the extent necessary to carry out the purposes of any final action or decision, and shall not be subject to subpoena and/or discovery, which limitations shall survive such final action or decision.

Adjournment and Conclusion. The Chair of the Hearing Panel may adjourn and reconvene the hearing at the convenience of the participants without special notice, and shall close the hearing upon determining that the record is complete. The hearing panel shall, thereafter, conduct its deliberations and render its decision. During deliberations, should the hearing panel determine it is necessary to clarify or take additional testimony, the Chair of the Hearing Panel, in sole discretion, may re-open the hearing for such purpose(s). Final adjournment shall not occur until the hearing panel has completed its deliberations.

Within fifteen (15) business days after adjournment of the hearing the hearing panel shall issue to the parties (i) a reasoned decision (or dismissal of the matter for cause) resolving the dispute, and/or (ii) notice of the right to request arbitration. The mailing will be sent to the doctor by first class mail, postage prepaid, certified with return receipt requested. Subject to the right of either party to request arbitration under this Fair Hearing Procedure, the decision of the hearing panel shall be final and there shall be no further right to appeal the decision to ABCO’s Board of Directors or any other form of redress, including challenge in court.

8. Arbitration

A. Request for Arbitration.

Either party may request arbitration of any issues that were the subject of the hearing, in writing, within thirty (30) days following the date of receiving the hearing panel’s decision. The date indicated on the return receipt shall establish the date of decision receipt. If a date is not indicated on the return receipt, it shall be is presumed that the recipient received the decision five (5) days from the date of mailing.

If arbitration is not requested within the time and in the manner set forth herein, each of the parties shall be deemed to have accepted the decision of the hearing panel, which shall become the final action of ABCO. There shall be no further right to appeal under this Fair Hearing Procedure or to seek other redress, including challenge in court, of the final action and the action shall become effective immediately.

The “Request for Arbitration” must include a written statement describing the specific basis for the dispute and each issue that the requesting party wants set for arbitration.

Each party shall pay its own legal fees and expenses, and shall pay an equal share of the legal fees and all expenses incurred by the arbitrator.

B. Notice of Arbitration

As soon as is reasonably practicable after receiving a written Request for Arbitration, and subject to any applicable state required meeting or mediation requirements, ABCO shall issue a written “Notice of Scheduled Arbitration.” The notice shall be sent first-class U.S. mail, postage prepaid, certified with return receipt requested, to the doctor's address as listed with ABCO.

C. Arbitrator Selection

On receipt of a compliant Request for Arbitration, ABCO shall provide to the Fellow a list of no less than three (3) potential neutral arbitrators. None of the listed potential arbitrators shall be in direct economic competition with the doctor, and shall stand to gain no direct financial benefit from the outcome of the arbitration. The arbitrator shall attend the arbitration in- person.

Following receipt of the list of potential arbitrators the Fellow shall have five (5) business days within which to select one of the arbitrators from the list provided and so notify ABCO of his or her selection. If the Fellow fails to timely select an arbitrator from the list ABCO shall then select the arbitrator.  

The ABCO Board of Directors, or its designee, shall thereafter notify the Fellow of the selected arbitrator. Except as provided herein, neither party may communicate with the selected arbitrator on an ex parte basis.

D. Pre-Arbitration Procedure

Except upon order of the arbitrator upon a showing of good cause, the arbitration shall be based upon the same documentary evidence and/or witnesses offered at the initial hearing. No new documents or witnesses not offered shall be permitted at the arbitration, and no new discovery shall be undertaken or required.

E. Failure to Attend and Participate in Arbitration

If the Fellow fails to attend and respond to questions during the arbitration, without good cause (as determined by the arbitrator, in his/her sole discretion), the Fellow shall automatically forfeit the right to arbitration, the issues to be heard shall be deemed finally resolved against that party and, any adverse action(s) by ABCO that were at issue in the hearing shall become the final action(s) of ABCO. There shall be no right to appeal or other redress, including challenge in court, of this final action.

F. Conduct of the Hearing

Special Rules. At the arbitration, the arbitrator will advise the parties of any special or additional rules and/or procedures to be followed during the proceeding. The arbitrator, in his/her sole discretion, shall determine the relevance and admissibility of all evidence to be offered and may exclude any such evidence deemed to be inadmissible or cumulative. If the parties agree, or the arbitrator directs, documents or other evidence may be submitted after the arbitration in the manner and within the time directed by the arbitrator.

Attendance/Response. The Fellow shall attend the arbitration in-person and respond to questions.

Legal Counsel. Each party may be represented by legal counselor other representative of the party’s choice. Each party shall bear its own legal fees and all expenses. The fee of counsel for the arbitrator shall be shared and paid equally by ABCO and the doctor.

Hearing Management. The arbitrator, in his/her sole discretion, shall manage the arbitration to facilitate determination of the facts and the issues to be heard, including without limitation, setting reasonable limits on the participation of counsel or a representative for a party during the arbitration.

Party Rights. Unless the arbitrator determines otherwise, during the arbitration, each party:

a) May offer an opening statement and closing argument; and

b) May examine and cross examine witnesses and introduce evidence in its case in chief and in rebuttal.

Following the arbitration, the arbitrator, in his/her sole discretion, may permit the parties to submit written arguments about the issues subject to the arbitration. Any such written arguments shall be limited and submitted as directed by the arbitrator.

Scope of Evidence. The rules of law relating to the examination of witnesses and presentation of evidence in court shall not apply to any arbitration conducted hereunder. No evidence shall be admitted unless it is directly relevant to an issue and is the sort of evidence which responsible persons are accustomed to rely upon in the conduct of serious affairs. The arbitrator may admit evidence, consider and resolve any issues if the arbitrator reasonably determines that doing so will not unfairly surprise or prejudice an objecting party.

Confidential Process. Due to the confidential nature of the dispute resolution process (i) the Fellow may not bring spectators or other individuals to the arbitration who are not acting in a representative or testimonial capacity, (ii) the arbitrator shall have the sole right and discretion to exclude any person(s) from all or any part of the arbitration, except for a party or a party’s attorney or designated representative and (iii) no record of the proceedings shall be made except as provided herein.

Protected Process. The arbitration is a peer review privileged and protected process. All records, data and information acquired by or prepared for the Arbitration shall be held in strict confidence, except to the extent necessary to carry out the purposes of any final action or decision, and shall not be subject to subpoena and/or discovery, which limitations shall survive such final action or decision.

Adjournment and Conclusion. The arbitrator may adjourn and reconvene the arbitration at the convenience of the participants without special notice, and shall close the arbitration upon determining that the record is complete. The arbitrator shall, thereafter, deliberate and render his/her decision. During deliberation, should the arbitrator determine it is necessary to clarify or take additional testimony, the arbitrator, in his/her sole discretion, may re-open the arbitration for such purpose(s). Final adjournment shall not occur until the arbitrator has completed his/her deliberation.

Within fifteen (15) business days after the arbitration the arbitrator shall issue to the parties a reasoned decision (or dismissal of the matter for cause) resolving the dispute and send it to the parties by first class mail, postage prepaid, certified with return receipt requested. The arbitrator may in the decision allocate between the parties all or part of the costs of the arbitration, including, without limitation, the fees and costs of the arbitrator and legal counsel to the arbitrator, as well as the reasonable attorney’s fees and costs of the prevailing party. The decision of the arbitrator shall be final. There shall be no further right to appeal the decision to ABCO’s Board of Directors or any other form of redress, including challenge in court. Judgment on the Award may be entered in any court having proper jurisdiction.

G. Venue/Applicable Law. Any arbitration shall take place and occur in Los Angeles County, California. To the extent allowable so as not to invalidate application of the Federal Arbitration Act, arbitrations hereunder shall be governed by the laws of the State of California.

COMPLIANCE WITH LAWS

ABCO may amend, revise and/or replace any or all of the procedures, rights, duties and/or responsibilities set forth in this Fair Hearing Policy at any time and for any reason or purpose, including, but not limited to, compliance with applicable law.