Administrative contested case proceedings in Idaho have evolved rapidly over the last few years through the creation of the Office of Administrative Hearings (“OAH”), the rollout of the new Idaho Rules of Administrative Procedure (“IRAP”), and the new updates to the contested case provisions of Idaho’s Administrative Procedure Act. In the context of health professions licensure, OAH’s statutory jurisdiction includes contested cases originating from the Department of Health and Welfare (“DHW”), the Division of Occupational and Professional Licenses (“DOPL”), and the Idaho Military Division.^[i] Irrespective of the originating agency, ensuring and protecting due process in an administrative contested case proceeding is central to the handling of the matter by any of OAH’s administrative law judges (“ALJs”), as it is a fundamental principle underlying American jurisprudence. 

OAH Creation, Expansion, and Current Scope

OAH was created in 2022 in response to a 2016 Office of Performance Evaluations report entitled “Risk of Bias in Administrative Hearings,” which conducted a top-to-bottom review of administrative hearings conducted by agencies across the state of Idaho.^[ii] OAH’s organic statutes broadly charge OAH with presiding over contested cases arising from the appeal of an agency order, as well as permitting OAH to conduct such other mediations, arbitrations, and adjudications as Idaho agencies may request.^[iii]

Broadly speaking, Idaho’s OAH has one of the more expansive case authority provisions of the U.S.’s various central panel agencies. For example, only one of Idaho’s agencies, departments, divisions, boards, and commissions which fall under the purview of Idaho’s Administrative Procedure Act, is specifically excluded from OAH’s purview.^[iv] While not initially included, OAH’s scope expanded on July 1, 2024, to include all contested cases before DHW.^[v] 

OAH’s scope includes matters which must be assigned to OAH and which OAH must handle (the “mandatory” hearings) and matters which agencies may send to OAH, and which OAH may agree to handle (the “permissive” matters).^[vi]  With respect to health profession licensing, matters before DHW and the Military Division are mandatory matters; matters before DOPL are permissive in nature.

Among those three agencies, the variety of licensure matters that OAH may handle is broad. For DHW, those matters may include, for example, licensure of certified family homes and of residential assisted living facilities; for the Military Division, OAH handles licensure of ambulance services, air medical services, and non-transport services. For DOPL, OAH may handle licensure matters from any of its 19 health profession boards, including, for example, the Boards of Nursing, Medicine, Midwifery, Pharmacy, Podiatry, and even Veterinary Medicine.

Due Process, Generally, and in Health Professional Licensure Adjudications

One of the core pillars of the American justice system is due process, a principle that pre-dates the American justice system dating as far back as the Magna Carta.^[vii] As the U.S. Supreme Court has made clear: “the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”^[viii] 

In its modern form, where a member of the public has a dispute with an agency,^[ix] “the minimum constitutional due process requirements for administrative hearings are timely and adequate notice and an opportunity to be heard that is meaningful and appropriate to the nature of the case.”^[x] Hand-in-hand with these core protections, due process also mandates a disinterested decision-maker; as the Idaho Supreme Court has explained: “[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal,”^[xi] and “the participation of a biased decision maker in an agency proceeding is ‘constitutionally unacceptable[.]’”^[xii]

Readers of The Advocate, as licensed professionals themselves, are cognizant of the significant social, financial, and psychological strain that might accompany a loss of a professional license.^[xiii] As such, the need to ensure due process protections in professional licensure disputes should be readily apparent.^[xiv]

In the context of health professional licensure—indeed, any state-controlled professional licensure—due process is critical to ensuring the protection of an individual’s right to practice their chosen profession.^[xv] As the Idaho Supreme Court has recognized, “[s]uspension of issued licenses … involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.”^[xvi]

Additionally, in health professional licensure adjudications in Idaho, not only does the licensing board bear the burden of proof, but such board must also prove its case against the licensee by a clear and convincing standard.^[xvii] However, the mere invocation of “due process” cannot be lip-service;^[xviii] they are, instead, words of action.

The New Rules of Procedure: Which Apply?

As part of its creation, OAH was charged with promulgating the (new) IRAP^[xix], to replace the existing Idaho Rules of Administrative Procedure of the Attorney General (“AG Rules”).^[xx]  Following an extensive negotiated rulemaking process, the new IRAP went into effect on July 1, 2024.^[xxi]

Notably, the statutory provision that initially authorized the Office of the Attorney General to promulgate rules of administrative procedure also expressly authorized agencies to promulgate alternative rules regarding contested cases.^[xxii] However, with the creation of OAH, the statute was updated to provide that the AG Rules (and agency-specific rules written as derivatives of the AG Rules) would no longer be in effect upon creation of the new IRAP promulgated by OAH.^[xxiii]

As of a result of the new IRAP’s implementation on July 1, 2024, a number of agency-specific contested case rules written as derivatives of the prior AG Rules were removed from the IDAPA; those rules remain accessible through the IDAPA 2023 Archive webpage.^[xxiv] Cognizant that agency-specific rules may have been mandated elsewhere, or otherwise address hearing needs specific to that agency, the new IRAP includes Rule 800, which allows ALJs to utilize archived rules and other procedures, such as the archived Department of Health & Welfare contested case rules.^[xxv] OAH also provides links on its website to certain statutes and rules (including archived rules) which may apply to administrative contested case proceedings in conjunction with the new IRAP.^[xxvi]

Due Process Procedures in a Typical Hearing

            A contested case to be handled by OAH is initiated by agency assignment of a new matter to OAH.^[xxvii] This transmittal includes both a standardized case transmittal form (which varies slightly depending on whether the matter is mandatory or permissive), and a ‘hearing packet’, which typically includes the agency action to be addressed (whether, e.g., an order in a DHW proceeding, or a complaint in a DOPL proceeding).

            Once received, OAH sets internal guidelines for the commencement of the case. For mandatory matters, receipt of the transmittal of the case to OAH must be made within one business day; for permissive matters, OAH has three business days.^[xxviii] Once acknowledgment of the assignment has been made by OAH to the transmitting agency, the Chief Administrative Law Judge (“CALJ”) then has one business day to issue a Notice of Assignment, identifying which ALJ has been assigned as the hearing officer in the proceeding.^[xxix]

ALJ selection is typically made via a weighted “wheel,” which utilizes a pre-set order of ALJ assignment (subdivided into separate “wheels” based on whether the case is considered expedited, standard, or complex matter), such that cases are assigned to ALJs on a randomized basis as they are transmitted to OAH. Given the relatively small number of ALJs in Idaho, disqualification without cause by a party is prohibited by statute, thereby preventing manipulation of the ALJ assignment.^[xxx] However, all OAH ALJs are subject to the Idaho Code of Conduct for Administrative Law Judges, ensuring that requests for for-cause disqualifications remain available to parties in contested case proceedings.^[xxxi]

            Once a case is assigned to an ALJ, the ALJ has complete decisional independence in the proceeding.^[xxxii] At the outset of a case, this includes the ALJ’s own determination as whether to set other conferences in advance of the evidentiary hearing, allow discovery, and the parameters of the evidentiary hearing. However, informally, all ALJs are expected to make some kind of ‘first contact’ with the parties in a proceeding within one week after assignment, whether via status conference, scheduling conference, or otherwise.

            At hearing—as always, depending on the needs of the case—an ALJ will typically conduct the proceeding akin to a bench trial. While the Idaho Rules of Evidence do not apply,^[xxxiii] emphasis is placed on development of a record sufficient both for ALJ determination, but also for a final order by an agency and for purposes of judicial review.

To that end, for example, the submission of written evidence is permitted,^[xxxiv] ALJs may inquire directly of witnesses,^[xxxv] and hearings may be conducted, in whole or in part, remotely.^[xxxvi]  Additionally, to remove the potential perception of bias or lack of independence, in-person hearings are typically required to be held in a neutral location, rather than the offices of the agency involved in the dispute.^[xxxvii]

            Cognizant of the adage “justice delayed is justice denied,”^[xxxviii] ALJs are expected to complete contested case proceedings within 6 months of assignment (unless the needs of the case dictate otherwise), and are expected to issue findings of fact and conclusions of law (which ALJs shorthand as “FOFCOLs”) no later than the end of the month following the month in which the hearing was held.^[xxxix]

APA Modernization—Additional Due Process Protections

            During the 2025 legislative session, OAH proposed extensive updates to the existing contested case provisions of Idaho’s Administrative Procedure Act (“APA”), to help modernize its provisions to align both with modern administrative law practice, as well as the provisions of the 2010 Model State Administrative Procedure Act (“2010 MSAPA”).^[xl] Three particular fixes are worth mentioning, as they illustrate improvements to due process protections.

            First, Idaho’s APA permits agencies to take emergency action “in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate agency action.”^[xli] In the context of a healthcare license, this might be the emergent suspension of a license.^[xlii] The statute then broadly directs that “the agency shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.”^[xliii]

However, no actual time limitation was provided to guide agencies as to when that post-order process should be completed. To reinforce the necessity of promptly completing the process, the emergency order statute was amended to ensure that the emergency order would expire on its own terms after 120 days, or upon further action by the agency, whichever occurs first.^[xliv] This ensures that the post-order hearing process does not languish to the detriment of the license-holder.

            Second, the pre-amendment APA provided for default in administrative contested cases at any juncture during a proceeding.^[xlv] For longer, more complex proceedings—such as licensure matters—where multiple conferences might be held in advance of the final prehearing conference and hearing, this created a risk that a party could be defaulted for missing even a short status conference. To eliminate that risk and focusing more on the key events in a contested case proceeding—the prehearing conference and the hearing—the default process was updated and split off into its own new statute.^[xlvi]

Notably, this statute deviates from the 2010 MSAPA, providing more ‘breathing room’ in the event of a potential default; where the 2010 MSAPA directs a default be immediately entered, with the opportunity to seek to vacate the default order on a showing of good cause, Idaho’s default statute maintains a process of first notifying the parties of a proposed default order, and a party’s request for it not be entered upon a motion simply explaining the grounds why it should not be entered.^[xlvii] This ensures that parties have the opportunity to participate in an administrative contested case and have the record developed, rather than imposing an aggressive “gotcha” approach more akin to defaults in civil litigation in court.

            Finally, while the pre-amendment APA contemplated the use of subpoenas in administrative contested case proceedings,^[xlviii] the APA was otherwise silent on the process of issuing subpoenas and, importantly, their enforcement. While certain agencies had their own separate statutes regarding the use of subpoenas,^[xlix] there was a need to address ways for parties to seek, dispute, and enforce subpoenas in any administrative contested case proceeding (if not otherwise addressed in the agency’s own statutes).

Rather than reinvent the wheel, OAH referred to existing statutory language in other non-OAH administrative proceedings, such as the Idaho Industrial Commission^[l] and PERSI,^[li] which statutes provided some language from which to model a standard subpoena provision in the APA. The end-product was placed within its own (new) separate statutory section in the APA.^[lii] This ensures that parties in an administrative contested case have the ability to secure needed evidence, which further advances the ability of ALJs to elicit the needed record for determination.

A Few Words About AI

The rapid rise of the use of artificial intelligence (“AI”)—and its intersection with due process concerns in the context of administrative hearings—warrants a brief additional note.  OAH approaches the use of AI from two vantage points: use by ALJs and use by parties appearing before it. Ensuring proper due process in each and every case before an OAH ALJ dictates the approach for each.

            First, OAH ALJs are not permitted to use generative AI in the preparation of orders.  Given the current state of AI, as well as the need to assess things beyond the reach of AI (e.g., witness credibility), best practices mandate human decision-making, even at the drafting stage. This prohibition is expressly made by OAH guidelines,^[liii] and is further addressed in the current Idaho Code of Conduct for Administrative Law Judges.^[liv]

            Second, the use of AI by parties in proceedings before OAH ALJs is not prohibited. Instead, an ALJ—at any juncture in the case—can direct parties to disclose that AI has been used and that the product has been reviewed by a human.^[lv] This gives parties the tools to fully participate in proceedings while still preserving the spirit of due process guarantees.

            The “everything, everywhere, all at once” rise of AI will certainly implicate new and difficult due process questions as the technology further develops, but OAH’s current approach ensures that due process rights for participating parties are protected.

Final Thoughts

In the short time that has passed since its creation, OAH has taken concrete steps to improve Idaho’s administrative contested case processes, including due process protections for those involved in such proceedings. This effort, however, should not be unilateral; Idaho’s attorneys should also endeavor to ensure that the aspirational goals of due process are fulfilled whenever possible, whether in individual proceedings or with respect to the system as a whole.^[lvi] Even where it may be neither popular nor expedient, due process is a critically important component of the American justice system, whether in administrative contested case proceedings (such as healthcare professional licensure disputes) or otherwise.

Bryan Nickels is the appointed Chief Administrative Law Judge for the State of Idaho. Prior to his appointment, he was in private civil litigation practice for 20 years. Bonus facts if you’re reading this bio: he’s an Army brat, a double-Vandal, and published in paleodemography.  The opinions expressed in this article are his alone and not the views of the Office of Administrative Hearings.

[i]  Idaho Code § 46-910(4).

[ii] Available at https://legislature.idaho.gov/ope/reports/r1602/ (last retrieved October 1, 2025).  This report proposed, as one option to address any then-public perception of bias by Idaho agencies presiding over contested cases, the creation of a so-called “central panel” agency – that is, a stand-alone, independent agency housing administrative law judges.  As of the writing of this article, Idaho is the 30^th jurisdiction in the U.S. to adopt a central panel model.

[iii] See generally, Idaho Code § 67-5280.

[iv] See Idaho Code § 67-5280(4).

[v] See Idaho Code § 67-5286 (effective July 1, 2022).

[vi] See Idaho Code § 67-5280(2), compare (a) with (b).

[vii] See U.S. Const. amends. V & XIV, § 1; cf. Idaho Const. art. I, §§ 13 & 18; accord Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004)(J. Scalia, dissenting)(“The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.”)

[viii] Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951).

[ix] See, e.g., YNG Martyr, 50K (Black 17 Media 2023)(discussing disagreement with the IRS over the timeliness of submission of a tax payment).

[x] Hawkins v. Idaho Transportation Dep’t, 161 Idaho 173, 177 (Ct. App. 2016).

[xi] In re Idaho Dep’t of Water Res. Amended Final Ord. Creating Water Dist. No. 170, 148 Idaho 200, 208 (2009).

[xii] Williams v. Idaho State Bd. of Real Est. Appraisers, 157 Idaho 496, 505 (2014).

[xiii] “[N]ow I’m locked out, got nowhere to go[.]”  Lola Young, Not Like That Anymore, on I’m Only ******* Myself (Day One Music 2025); accord PUP, Hallways, on Who Will Look After the Dogs? (Little Dipper/Rise 2025)(“’Cause when one door closes/It might never open/There might be no other doors”).

[xiv] See Lu Ranching Co. v. United States, 138 Idaho 606, 608 (2003); accord Poppy, new way out, on Negative Spaces (Sumerian 2024)(“Poppy!”).

[xv] Cooper v. Board of Professional Discipline of the Idaho State Bd. of Med., 134 Idaho 449, 454 (2000)(“The holder of a professional license has a valuable property right protected by the safeguards of due process.”).

[xvi] See Kuna Boxing Club, Inc. v. Idaho Lottery Comm’n, 149 Idaho 94, 101 (2009).

[xvii] Peckham v. Idaho State Bd. of Dentistry, 154 Idaho 846, 852 (2013)(“It is the Board’s burden to prove its case by clear and convincing evidence, rather than the accused’s burden to prove his innocence.”); accord also Cooper, 134 Idaho at 456 n.3 (“The proper burden of proof in physician discipline proceedings, as in attorney discipline cases, is clear and convincing evidence.”).

[xviii] See, e.g.,  Mattstagraham, Caffeine, on Yellow Paint (I Surrender Records 2025)(“The crux to every mantra is they’re empty without action.”).

[xix] IDAPA 62.01.01.

[xx] Former IDAPA 04.11.01.

[xxi] See IDAPA 62.01.01.

[xxii] See Idaho Code § 67-5206(2)(effective July 1, 2024).

[xxiii] See Idaho Code § 67-5206(3)(effective July 1, 2025).

[xxiv] Available at https://adminrules.idaho.gov/rules/2023%20Archive/ (last retrieved October 1, 2025).

[xxv] See IDAPA 62.01.01.800; accord, OAH General Order No. 1, available at https://oah.idaho.gov/wp-content/uploads/2024/05/General-Order-No.-1.pdf (last retrieved October 1, 2025).

[xxvi] See https://oah.idaho.gov/statutes-and-rules/ (last retrieved October 1, 2025).

[xxvii] See https://oah.idaho.gov/agencies/ (last retrieved October 1, 2025).

[xxviii] OAH Policy Manual (December 31, 2024), Policy 22-6, available at https://oah.idaho.gov/wp-content/uploads/2025/05/Policies-Manual-2024.pdf (last retrieved October 1, 2025).

[xxix] Id.; accord, Idaho Code § 67-5282(1)(d).

[xxx] Idaho Code § 67-5252(5).  Similarly, Idaho state agencies are expressly forbidden by statute from attempting to influence the selection of a particular ALJ to serve as a hearing officer.  See Idaho Code §67-5284.

[xxxi] See https://oah.idaho.gov/wp-content/uploads/2025/08/Code-of-Conduct-8.1.25-Final.pdf (last retrieved October 1, 2025).

[xxxii] Idaho Code § 67-5282(1)(g).

[xxxiii] See Idaho Code § 67-5251.

[xxxiv] Id.

[xxxv] IDAPA 62.01.01.508.

[xxxvi] IDAPA 62.01.01.501.

[xxxvii] OAH Policy Manual (December 31, 2024), Policy 22-5, available at https://oah.idaho.gov/wp-content/uploads/2025/05/Policies-Manual-2024.pdf (last retrieved October 1, 2025); see also Charly Bliss, Back There Now, on Forever (Lucky Number Music 2024)(“Set foot in the lobby, And I knew that I was in for hell.”)

[xxxviii] William Ewart Gladstone, Member of Parliament for South Lancashire, “Imperial Parliament. [House of Commons.—Monday, March 16. State of Ireland.]” in The Daily News (17 March 1868), page 2, column 6 (“But above all, if we be just men, we shall go forward in the name of truth and right, and bear this in mind, that when the case is ripe and the hour has come, justice delayed is justice denied.”), available at https://www.newspapers.com/article/daily-news-justice-delayed/78425549/ (last retrieved October 1, 2025); accord, e.g., Not Enough Space, Waiting 4 U, on Weaponize Your Rage (Thriller Records 2025)(“So done waiting for you to make your mind up[.]”).

[xxxix] So, for example, if a hearing is held September 15, the expectation would be that – again, unless the needs of the case dictate otherwise – the presiding ALJ will issue the FOFCOLs no later than October 31.

[xl] See HB9a (2025) and HB36 (2025), available at https://legislature.idaho.gov/sessioninfo/2025/legislation/ (last retrieved October 1, 2025).

[xli] Idaho Code § 67-5247(1); in the context of health-related licensure, the Idaho Supreme Court has emphasized that “[w]here an emergency situation exists which threatens the public safety and where the individual interest is of lesser importance, an official body can take summary action pending a later hearing.”  Van Orden v. State, Dep’t of Health & Welfare, 102 Idaho 663, 667 (1981)  In the health care context, the Idaho Supreme Court has generally recognized that the financial interest of the license-holder is secondary to the general welfare of impacted citizens.  Id.

[xlii] Accord, e.g., IDAPA 24.34.01.300.05 (Board of Nursing)(“Emergency Action”); IDAPA 24.31.01.300.01 (Board of Dentistry)(“Suspension, Revocation or Restriction of Sedation Permit”).

[xliii] Idaho Code § 67-5247(4).

[xliv] Idaho Code § 67-5247(6)(“No order issued pursuant to this section shall be effective for longer than one hundred twenty (120) days or until the effective date of any final order issued following the proceedings described in subsection (4) of this section, whichever is earlier.”).

[xlv] See Idaho Code § 67-5242(4)(effective July 1, 2024).

[xlvi] Idaho Code § 67-5242A.

[xlvii] Id.; see also 2010 MSAPA, available at https://www.uniformlaws.org/viewdocument/final-act-10?CommunityKey=f184fb0c-5e31-4c6d-8228-7f2b0112fa42&tab=librarydocuments (last retrieved October 1, 2025).

[xlviii] See, e.g., Idaho Code § 67-5206(1)(f) & § 67-5283(1)(e).

[xlix] See, e.g., Idaho Code § 39-107(3) (Department of Environmental Quality), § 54-2412(2)(Board of Drinking Water and Wastewater Professionals), and § 54-5315(2)(Liquefied Petroleum Gas Safety Board).

[l] Idaho Code § 72-1339.

[li] Idaho Code § 59-1305(7)(b).

[lii] Idaho Code § 67-5251A.

[liii] Guidelines for Administrative Law Judges Regarding the Use of Artificial Intelligence, September 24, 2025, available at https://oah.idaho.gov/wp-content/uploads/2025/09/OAH-AI-Guidelines.pdf (last retrieved October 1, 2025).

[liv] See https://oah.idaho.gov/wp-content/uploads/2025/08/Code-of-Conduct-8.1.25-Final.pdf (last retrieved October 1, 2025).

[lv] OAH Policy Manual (December 31, 2024), Policy 23-12, available at https://oah.idaho.gov/wp-content/uploads/2025/05/Policies-Manual-2024.pdf, (last retrieved October 1, 2025).

[lvi] See My Chemical Romance, SING, on Danger Days: The True Lives of the Fabulous Killjoys (Reprise Records 2010)(“And use your voice every single time you open up your mouth.”); accord Tyler Childers, Way of the Triune God, on Can I Take My Hounds to Heaven? (Hickman Holler 2022)(“Go up, tell it on the mountain[.]”).