Most licensees have never been visited by a state licensing investigator. If you are not familiar with license disciplinary actions, you may essentially lose your license before a formal Accusation is even filed. When contacted by an investigator, you should be both cooperative and defensive. Licensees often think that the complaint is without merit, so they do not pay much attention to the investigation. Regardless of whether the complaint has merit, you should realize that the investigator usually gives great credibility to the complaining party. Simply denying any wrongdoing is usually not enough for the investigator to close his or her investigation without further action.
False Sense of Security
Investigators sometimes lull licensees into a false sense of security. The investigator may call you for an “informal” conference to learn your side of the facts, so that the matter may be “cleared up.” The informal conference may seem so innocuous that you may not even consider taking an attorney to the conference. When you appear at the conference, you may find that an expert consultant hired by the state licensing agency will conduct much of the interview, along with the licensing investigator. The next thing you notice is that the interview is tape-recorded.
Many licensees, such as physicians, treat the informal conference as they would a peer review meeting. As such, you may be overly critical of your particular care and treatment when reviewing the case in question with the expert consultant. You may agree with an alternate course of treatment that is proposed by the expert consultant. Later you may be surprised to learn that your own comments are interpreted by the investigator or consultant as admissions of wrongdoing.
The best opportunity to resolve a case favorably comes at the investigative stage. An attorney may craft a settlement proposal that addresses the licensing agency’s concerns and resolves the case without the need to proceed with the filing of a formal Accusation. For example, in cases regarding drug abuse allegations, an Accusation is not filed, provided the licensee successfully completes a drug diversion program.
Possible Outcomes of an Investigation
Unless an agreement with the licensing agency is reached, the investigative file may be:
- Closed and the complaint is found to be “unsubstantiated.”
- Closed and retained for one year if the complaint is found to be “inconclusive.”
- Closed and retained for five years because the complaint is found to have merit, but insufficient evidence to prosecute the licensee.
- Referred to the Office of the Attorney General or to the agency’s Legal Division for prosecution.
- Referred for issuance of a citation.
- And/or referred to the local district attorney or other law enforcement agency for criminal prosecution.
What is really at stake?
If your case is referred by the investigations unit to the Office of the Attorney General or to the agency’s in-house Legal Division, a formal Accusation or Statement of Issues is drafted and filed against you. An Accusation is a public document containing the specific allegations and grounds for discipline. In the case of an applicant denied licensure, a Statement of Issues containing the grounds for denying the application is filed against the applicant. In most cases, the form of discipline sought is complete revocation of the license.
The mere filing of an Accusation may have serious repercussions. For example, your liability insurance carrier may cancel or not renew your policy. For physicians, your hospital privileges may be revoked or restricted, or perhaps you may be excluded from membership in Health Maintenance Organizations (HMO) or Preferred Provider Organizations (PPO).
Any other professional license or a future application for a license may be adversely affected. You may also be subject to possible civil liability or criminal liability, depending on how your administrative case is resolved.
Request For a Formal Administrative Hearing
Once an Accusation/Statement of Issues is filed, you have only a short time to request a hearing. With many state licensing agencies, you have only 15 days to file a Notice of Defense. The Notice of Defense is a legal document that informs the licensing agency that you are disputing the allegations and you are requesting a formal hearing. Once the licensing agency’s attorney receives your Notice of Defense, a formal administrative hearing is scheduled. Generally, an administrative hearing is a formal hearing during which testimony is taken under oath before an Administrative Law Judge (ALJ). The ALJ’s decision is proposed to the state agency. In other words, the agency both prosecutes you and makes a decision on the discipline, if any, to impose. The agency may adopt the ALJ’s decision; reject the decision and either schedule another hearing before an ALJ, or schedule another hearing before the actual agency or licensing board members; modify the decision after reviewing the record and receiving additional oral and/or written argument.
Usually, in addition to the right to a hearing, you have the right to counsel (at your own expense), the right to testify on your own behalf, the right to confront and cross-examine witnesses, the right to subpoena witnesses to testify at the hearing, and the right to discovery. Discovery is term used for the documents and physical evidence related to the allegations. A careful review of the discovery and a thorough investigation by your defense team is necessary to prepare your defense. Most administrative licensing cases are resolved without proceeding to a hearing. However, there is a very broad range of settlement terms that need to be considered when negotiating with the agency’s counsel. A creative settlement proposal may lead to a stipulated agreement in a case that would normally go to a costly and time consuming hearing. You may be required to reimburse your state licensing agency for the costs of investigating and prosecuting your case. Such costs may be several thousand dollars, especially if you go through an administrative hearing.
Representation by a licensed defense attorney at all stages of a disciplinary action is highly recommended. Some licensees make the mistake of representing themselves in cases that they consider “minor.” However, these licensees later learn that there are virtually no “minor” cases.
Getting Back Your License
After a period of time prescribed by state statute, you may petition the agency to reduce the penalty on your restricted license (e.g., terminates your probationary license early or delete conditions of probation). If you have had your license revoked, you may file a Petition for Reinstatement showing evidence of rehabilitation. These petitions are personally brought before an administrative law judge and/or the agency’s actual board members. A detailed and professional presentation of the various factors establishing rehabilitation is vital to getting your license back.
Whether you are in the investigative, accusation, or post-discipline stage of the administrative process, you will be opposed by knowledgeable licensing representatives with vast resources at their disposal. You should similarly be armed with a professional license defense team. Proper representation would help ensure that minor cases stay minor and the more serious cases result in a disposition that enables you to continue your professional practice.
Preparing to Meet With a Criminal Defense Attorney
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