Order to Show Cause and the Board Hearing in Massachusetts
An Order to Show Cause means the investigation is over and the Board has filed formal charges. It orders you to appear and show why the Board shouldn’t act against your license. From here, the case runs like a trial, under formal rules of procedure and evidence. Your written answer is due within 21 days of receiving the order, and the record built from this point on is the only record any appeal will have. Call (978) 273-8337.
Hearing experience with a clinician’s understanding.
I’ve been a registered respiratory therapist since 2005 and a registered nurse since 2010. As a respiratory therapist I spent many years at the bedside providing hands-on respiratory care. As a nurse I’ve worked in critical care and the intensive care unit of an acute care hospital, and I’ve held management roles in that setting. Contested Board hearings often turn on clinical records and expert testimony, and my clinical background lets me examine that evidence on its own terms.
— Richard Alan Gaudet, JD, RN, RRT
What an Order to Show Cause is
Under the Standard Adjudicatory Rules, an order to show cause must state the reason for the action, set out in numbered paragraphs the specific facts relied on, and cite the statutes or regulations that authorize it (801 CMR 1.01(6)(a)). At the Board of Medicine the same document is called a Statement of Allegations, which the Board’s rules define as an Order to Show Cause (243 CMR 1.01).
It’s issued by prosecuting counsel on the Board’s behalf, and the proceeding is governed by G.L. c. 30A and 801 CMR 1.01 (for example 261 CMR 4.04(2)(a); 234 CMR 9.04(2)(a); 263 CMR 6.04(2)(a)).
Your answer: due in 21 days
Unless a statute or Board rule sets a different time, you must file a written answer within 21 days of receiving the order (801 CMR 1.01(6)(d)(2)). The answer must:
Give “full, direct and specific answers” to each numbered allegation
Admit, deny, explain, or state that you don’t have enough knowledge to answer (which is treated as a denial)
Include all affirmative defenses you intend to raise
If an allegation is so vague you can’t reasonably answer it, you can move for a more definite statement within the time to answer (801 CMR 1.01(7)(b)).
Documents are filed by email unless the presiding officer orders otherwise, and are treated as filed on the day received during business hours, no later than 5:00 p.m. (801 CMR 1.01(4)(a)). Don’t contact the presiding officer about the case outside the formal process; ex parte communications are prohibited.
Who hears the case
The hearing is run by a presiding officer. Under most health boards’ rules, the Board can designate an administrative hearings counsel to preside (for example 261 CMR 4.04(2)(a)). At the Board of Medicine, the Board can refer the case to a hearing officer (243 CMR 1.03(10)). The presiding officer runs the hearing and writes a recommended decision. The Board itself makes the final decision.
Before the hearing
Settlement talks continue. A consent agreement can still resolve the case at any point before a decision. See Consent agreements.
Pre-hearing conference. The presiding officer can call the parties in to narrow the issues, agree on stipulated facts, limit expert witnesses, and explore settlement. Anything agreed is put in writing and becomes part of the record (801 CMR 1.01(10)(a)).
Discovery (801 CMR 1.01(8)):
Document requests: either side can request documents; responses are due in 30 days.
Interrogatories: written questions, with approval, up to 30 in total; answers are due in 30 days, and none can be served less than 45 days before the hearing without approval.
Depositions are limited: only by agreement, or where a witness can’t appear without substantial hardship, and only for significant testimony not available another way.
Protective orders can protect confidential information, including patient records.
Motions (801 CMR 1.01(7)): the other side has 7 days to respond to a written motion. Key motions include summary decision, where no facts are genuinely in dispute; continuance, for good cause, by written motion at least 3 days before the hearing; and motions to compel discovery, which can lead to facts being established against a side that refuses to comply.
The hearing
The hearing works much like a trial without a jury (801 CMR 1.01(10)):
The Board’s prosecutor goes first. In a case started by an order to show cause, the agency opens and presents its evidence first.
You present your case: documents, your own testimony, fact witnesses, expert witnesses on the standard of care, and character and remediation evidence.
Every witness testifies under oath and can be cross-examined. Subpoenas are available under G.L. c. 30A, § 12.
Object when a ruling is made. Formal exceptions aren’t needed, but you must state your objection and grounds at the time, or in writing within 3 days if you had no chance to object (801 CMR 1.01(10)(k)(3)).
The hearing is recorded, and transcripts are available at the requesting party’s cost.
Written closings. The presiding officer may call for briefs and proposed findings of fact.
In sexual misconduct cases before the Psychologists Board, special rules apply: the patient’s consent is not a defense, other sexual history is inadmissible, and the hearing can be closed during the patient’s testimony (251 CMR 1.10(6)(f)).
The decision
The presiding officer issues a decision. When the Board decides on the record, it is a tentative decision.
You have 30 days to file written objections, with a brief, and the other side has 20 days to respond. You can request oral argument with your objections (801 CMR 1.01(11)(c)(1)).
The Board issues the final decision. It can adopt, modify or send the decision back for more findings, but it must explain any rejection and can’t overturn the presiding officer’s credibility findings about witnesses who testified in person (801 CMR 1.01(11)(c)(2)).
If the Board doesn’t act within 180 days of the tentative decision, the presiding officer’s decision becomes final (801 CMR 1.01(11)(c)(3)).
The Board can act against your license only if it finds that one or more grounds for discipline exist. The possible sanctions range from stayed probation and reprimand to probation, suspension and revocation; each board page lists its own.
Reconsideration and appeal
Reconsideration: before the appeal deadline, you can ask the Board to reconsider for a clerical or mechanical error, or a significant factor it overlooked. A motion for reconsideration tolls the time to appeal (801 CMR 1.01(7)(l); G.L. c. 30A, § 14(1)).
Appeal: a licensee whose license is suspended, revoked or cancelled can generally petition the Supreme Judicial Court under G.L. c. 112, § 64. The court reviews the hearing record under G.L. c. 30A, § 14(7), without a new trial. The appeal can only be as strong as the record built at the hearing.
How to prepare
Calendar the 21-day answer deadline the day the order arrives.
Answer every numbered paragraph specifically, and list every affirmative defense.
Request the Board’s file and serve targeted discovery early; interrogatories can’t be served within 45 days of the hearing without approval.
Line up experts on the standard of care, and witnesses who can speak to your practice and character.
Document remediation: courses, practice changes, evaluations, treatment, supervisor letters.
Keep negotiating. Many cases settle after discovery shows each side the strengths of the other’s case.
Build the record for appeal: offer the evidence, make the objections, and file objections to the tentative decision on time.
Received an Order to Show Cause or Statement of Allegations?
Call or text (978) 273-8337, or send a message. I defend licensed professionals at Board hearings across Massachusetts, in person in Middleton or by video.
Frequently asked questions
How long do I have to answer an Order to Show Cause? Within 21 days of receiving it, unless a statute or Board rule sets a different time (801 CMR 1.01(6)(d)(2)). The answer must respond specifically to each numbered allegation and include all affirmative defenses.
Who decides my case? A presiding officer runs the hearing and issues a recommended decision, but the Board makes the final decision. The Board can’t overturn the presiding officer’s credibility findings about witnesses who testified in person.
Can I still settle after an Order to Show Cause? Yes. A consent agreement can resolve the case at any point before a decision, and the presiding officer may explore settlement at a pre-hearing conference.
Can I see the Board’s evidence before the hearing? Yes, through discovery. You can request documents, serve interrogatories with approval, and in limited circumstances take depositions under 801 CMR 1.01(8).
What if I disagree with the hearing officer’s decision? You have 30 days to file written objections to a tentative decision before the Board issues its final decision. After that, you can seek reconsideration or, for a suspension or revocation, generally appeal to the Supreme Judicial Court.
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, and an experienced administrative law practitioner who represents licensed professionals in board investigations, responses and hearings. He has been a respiratory therapist since 2005 and a registered nurse since 2010, including in critical care. He earned his J.D. in 2020 and was admitted to the Massachusetts bar in January 2021 and to the U.S. District Court for the District of Massachusetts in 2021. He is a member of the Massachusetts Bar Association. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
