Appeal Process for Adverse Decisions

I. ADVERSE DECISIONS SUBJECT TO APPEAL

A. Non-Disciplinary Decisions

 

1. Receipt of failing score on clinical examination.

 

2. Denial of request for reasonable accommodation under the Americans with Disabilities Act.

 

3. Denial or revocation of eligibility to sit for an ABO examination.

 

B. Disciplinary Decisions:

 

1. Dishonest or Other Irregular behavior.

 

2. Manufacture or use of fraudulent ABO credentials or other documents falsely indicating ABO certification.

 

3. Legal, regulatory or credentialing action.

 

II. ADVERSE DECISIONS NOT SUBJECT TO APPEAL

 

A. Denial of a request for an extension of time or an exception to an administrative requirement.

 

B. Denial of grievances regarding examination administration absent denial of certification.

 

C. Receipt of a failing score on a written examination.

 

III. INITIAL APPEAL OF ADVERSE NON-DISCIPLINARY DECISIONS

 

A. Adverse non-disciplinary decisions shall be made in the first instance by ABO staff or ABO examiners. An individual who is the subject of an adverse non-disciplinary decision shall promptly be sent written notice thereof. The notice shall state the reason(s) for the decision and shall inform the individual that he or she has the right to seek review by filing a timely written Request for Appeal within 15 days after the date of the notice. This time may be shortened where, in the judgment of the ABO an immediate decision is required.

 

B. The Request for Appeal must contain a statement of why the individual believes that the adverse non-disciplinary decision was improper, must include any supporting documentation that the individual wishes to have considered as part of the appeal, and must be accompanied by an Appeal Fee in the form of a check in the amount of $500.00 made payable to the ABO.

 

C. Absent a properly filed appeal, the adverse non-disciplinary decision shall constitute the final decision of the ABO on the matter. It shall not be subject to further review absent extraordinary circumstances as determined solely by the Executive Committee.

 

D. A properly filed appeal shall be considered initially by a Legal Committee consisting of three current ABO Directors and one former director—none of whom has a personal or professional relationship with the appellant or who otherwise has a conflict of interest.

 

E. The Legal Committee shall consider the Notice of Adverse Decision and the Request for Appeal, including any supporting documentation submitted by the individual or prepared by ABO staff. The Legal Committee also may, at its discretion, request or receive, and review, additional information. The foregoing shall constitute the Appeal Record. Except as otherwise here provided, the appeal shall be conducted in accordance with Section II of Disciplinary Policy and Procedures.

 

F. The Legal Committee may, at its discretion, take one of the following final actions:

 

1. Affirm the Adverse Decision,

 

2. Modify the Adverse Decision, or

 

3. Reverse the Adverse Decision

 

G. The individual shall be notified in writing of the Legal Committee’s action, including the reasons therefor, within 30 business days after the Legal Committee reaches its decision or sooner if required by the circumstances.

 

IV.  APPEAL OF LEGAL COMMITTEE DECISIONS

 

A. An adverse decision of a Legal Committee may be appealed to the Review Panel as set forth below. Appeal of an adverse decision by a Legal Committee must be accompanied by a check in the amount of $500.00 made payable to the ABO.

 

B. An individual who has received notice of an adverse decision by a Legal Committee may appeal the decision to the Review Panel by filing a written Request for Appeal within 15 days after the date of the notice of decision. The decision to grant an Appeal is at the sole discretion of the Review Panel.

 

C. If a Request for Appeal is not received by the ABO within 15 days after the notice of the adverse decision, the Adverse Decision shall constitute the final decision of the ABO on the matter and shall not be subject to appeal absent extraordinary circumstances, as determined solely by the Review Panel, the Executive Committee or the Board of Directors.

 

D. A properly filed Request for Appeal from an adverse decision by a Legal Committee shall be considered by the Review Panel.

 

E. If the Review Panel determines that the appeal should not be heard, the decision of the Review Panel shall be the final decision of the ABO absent extraordinary circumstances as determined by the Board of Directors. The $500 appeal fee shall be refunded.

 

F. If the Review Panel determines that the Appeal should be heard, the Appeal will be heard by the Review Panel no later than 60 calendar days after receipt of the Request for the Appeal.

 

G. Any member of the Review Panel who participated in prior consideration of the Adverse Decision, or who has a personal or professional relationship with the appellant or otherwise has a conflict of interest, shall not participate in deliberations regarding, or vote on, the matter. If one or more members of the Review Panel is disqualified from acting on a specific appeal pursuant to this subparagraph, the President shall appoint a sitting member of the Board of Directors who does not have a conflict of interest and is not otherwise disqualified to sit on the Review Panel in place of the disqualified member.

 

H. The Review Panel will determine whether a hearing by the appellant may be useful to resolve the issues before it. The Panel shall consider the Appeal Record, the Request for Final Appeal, any information submitted in writing by the appellant, and any information presented by the appellant at a hearing (if a hearing is granted). The Panel also shall receive and review a statement from the Chair of the Legal Committee that took the adverse disciplinary action. The foregoing shall constitute the Final Appeal Record.

 

I. If the Review Panel determines that a hearing on the Final Appeal is not necessary, ABO staff shall notify the appellant (1) of that decision and (2) that the appellant may submit a written statement relating to the matter for the Panel's consideration. Such statement must be submitted no later than 15 calendar days after the date of the notice. The Review Panel shall review the Final Appeal Record and any statement timely submitted by the appellant, and shall determine by majority vote of those members voting, whether to affirm, reverse, or modify the Adverse Decision. If the appellant's statement contains new factual information that was unavailable to the Legal Committee, the matter may be referred back to the Legal Committee for reconsideration. The appellant shall be notified in writing of the decision, including the reasons therefor, within 30 days after the Review Panel reaches its decision.

 

J. If the Review Panel determines that a hearing on the Final Appeal may be useful, it shall set a hearing no later than 60 days after its decision to hold a hearing The Chair of the Legal Committee that took the action shall present the view of the Legal Committee, but shall not participate in deliberations regarding, or vote on, the matter. The hearing will be by telephone unless otherwise determined by the Review Panel.

 

K. If the individual does not receive any notice or notices from ABO related to the disciplinary proceedings due to a failure to notify ABO of a change of address, that lack of notice shall not be considered as a basis for reconsideration or appeal of any decision in the matter.

 

L. Not less than 15 days prior to the scheduled date of the hearing, the ABO shall notify the appellant in writing of the date and time of the hearing. The Notice of Hearing also shall advise the appellant that he or she:

 

1. may participate in the hearing

 

2. may be assisted by legal counsel; and

 

3. may submit a written statement relating to the matter for the Review Panel’s consideration.

 

M. All expenses of the appellant in connection with an appeal shall be borne by the appellant.

 

N. The appellant's written statement of intent to participate in a hearing, stating whether it will be with or without legal counsel, and the appellant's written statement must be received by the ABO no later than 5 days before the scheduled date of the hearing. If counsel will be present, he/she must be identified in the statement. If the Review Panel determines that the appeal raised a question of policy that should be determined by the Board of Directors, it will refer to the Board.

 

O. An appellant who chooses to participate in a hearing shall be given the opportunity to make a statement summarizing his or her position, or to have legal counsel make such a statement. The Review Panel shall not be bound by technical rules of evidence usually employed in legal proceedings, but may consider any evidence it deems appropriate. If the appellant's written or oral statement contains new factual information that was unavailable to the Legal Committee, the Review Panel may refer the matter back to the Legal Committee for reconsideration.

 

P. A record of the proceedings shall be kept. A copy of the hearing record shall be made available to the appellant upon payment by appellant of the cost of reproduction. All expenses incurred by the appellant in connection with the hearing shall be borne by the appellant. If the appellant requests to participate in the hearing, but fails to do so no other opportunity for participation shall be provided.

 

Q. Following the hearing, the Review Panel shall determine by majority vote of those members voting whether to affirm, reverse, or modify the Decision of the Legal Committee. The appellant shall be notified in writing of the decision, including the reasons therefor, within 30 days after the Final Appeal Committee reaches it decision.

 

R. All final decisions of the Review Panel, including the reasons therefor shall be reported to the Board of Directors.

 

S. The decision of the Review Panel shall constitute the final decision of the ABO on the matter and shall not be subject to further appeal absent extraordinary circumstances as determined by the Board of Directors or the Executive Committee.