December 2001

Representing Health Professionals
Before Licensing Boards

by Lucinda Jesson and Deborah Mande

LUCINDA JESSON is an attorney and mediator in private practice in St. Paul with 18 years' experience practicing law in the public and private sectors. She also serves as an adjunct professor at two Twin Cities-area law schools.

DEBORAH MANDE is an attorney in private practice in St. Paul. She has 20 years' experience in civil litigation including representation of individuals before licensing boards. She is a graduate of the University of New Mexico Law School.

"About five percent of physicians and psychologists … have complaints filed against them each year."

The process begins with the receipt of a complaint by the licensing board. A complaint can be made either orally or in writing and can be submitted by anyone. Upon receipt of a complaint, the board first looks to see if the complaint is jurisdictional; that is, whether the complaint alleges a violation of a statute or rule that the board is empowered to enforce. A complaint about a licensee's personality, for example, typically would be dismissed as nonjurisdictional.

Most licensing boards have at least one complaint committee. Typically, this committee is made up of at least two board members and board staff. The committee evaluates the complaint and decides on the best way to pursue it. Some complaints do not require much investigation at all. With most complaints, however, board staff will subpoena relevant medical records. The subpoena power of the boards to collect this information is broad. Several Minnesota court decisions note that because the boards' investigations are "preliminary fact-finding investigations," full due process is not required.2

Sometimes boards hire a consultant to help the complaint committee assess a particular complaint. Other complaints may be referred to the Office of the Attorney General for a more formal investigation.
About 10 to 15 percent of complaints are referred by the health boards to the Office of the Attorney General (AGO) for a formal "field investigation."3 These investigations generally fall into one (or both) of the following categories: 1) complaints that are viewed as more serious, calling for interviews; and 2) complaints that involve allegations of sexual misconduct or an active chemical dependency problem. In investigations by the AGO, the licensee typically is interviewed after all the documents are acquired and other witnesses are interviewed. If the AGO calls for an interview and you are the licensee's attorney, you should arrange to be present during the interview. While, generally, the best approach is for the licensee (not the lawyer) to answer questions during the interview, you can play a critical role before the interview, gathering information about the scope of the investigation and preparing the licensee to answer the interviewer's questions.

On some occasions, you may become concerned that information provided to the investigator may incriminate your client, the licensee. This issue may arise during an interview and often surfaces in fraud and abuse cases. Keep in mind that most licensing boards mandate, by statute, that the licensee cooperate with an investigation. Generally, licensees cannot escape this requirement based on the constitutional prohibition against compelling self-incrimination. Some practice acts address this by prohibiting the use of such evidence or testimony in a criminal case, but how these provisions would be interpreted by a criminal court is not crystal clear. On the other hand, if a licensee broadly refuses to answer questions based on the 5th Amendment, he likely will face a summary judgment motion and discipline based on what the board will view as unrefuted evidence. In this situation, your ability to line up evidence that supports the client's position, without relying on his testimony, will be critical to protect the client's interests.

Careful attention to document production also is called for. Check the individual practice act in your client's profession as you consider how to handle the identification of patients whose medical records are subpoenaed in an investigation. For example, some practice acts require provision of records to the board even without the patient's written consent, but require the deletion of the patient's name. Another area where careful thought is required is where the board's subpoena calls for the production of documents that may constitute peer review material.

Despite these caveats, as a general matter the best approach during an investigation is to promptly respond to investigative requests by a licensing board. Provide the requested documents. Learn about the parameters of the complaint being investigated. If your client needs to review records before answering a question, tell that to the investigator.

After the investigation is complete, the complaint committee typically chooses one of four alternatives: 1) dismiss the complaint; 2) seek temporary suspension of the licensee; 3) conduct an "informational" or "educational" conference; 4) hold a formal conference.

Because temporary suspensions are rare (and dismissals do not require additional participation by the licensee), most licensees involved in the process face either the informal or the formal conference. The "informal" or "educational" conference typically is between a committee member or a medical coordinator and the licensee. Some boards use these informal conferences to obtain the licensee's response. Others use informational conferences to educate a licensee on a problem that does not rise to the level of requiring disciplinary action. Even in these informational conferences, a licensee is entitled to be represented by an attorney.

If the committee decides that a formal conference is necessary, your client will be notified by a "notice of conference" that explains (usually in detail) the conduct that arguably violates the board's practice act. Typically, your client will be asked to respond in writing to the allegations set out in the notice of conference.

The conference is similar to a hearing. The complaint committee members and the board's attorney and board staff usually attend, as would you and your client. A conference may serve several purposes. These include further investigation, education of the licensee, negotiation, and conciliation. Typically, the conference opens with a statement by the committee chair about conference procedures. Committee members then usually question the licensee about the allegations found in the notice of conference. Sometimes, board staff or the attorney for the board ask questions as well. Committee members assess not only the licensee's factual responses, but also her credibility. At the end of the conference, the committee has several choices. Typically, the licensee will be excused while the committee discusses these alternatives. The committee may decide to dismiss the complaint, continue to gather information (which may mean another conference at a later date), or negotiate a resolution. The licensee will often be called back into the conference and told the committee's decision. If the committee decides to seek a negotiated "stipulation and order" for disciplinary action, the committee chair usually will share with the licensee the type of discipline that is sought (e.g., reprimand, suspension) and ask the complaint committee's attorney to draft the proposed stipulation and forward it to the licensee.4

If the committee either seeks a temporary suspension of a licensee or cannot agree on a stipulation, the committee may decide to recommend discipline to the board. If this occurs, a contested case hearing is held to determine whether disciplinary action is proper.

After the initial formal conference, the committee generally will present a recommended resolution. The proposed stipulation and order not only will spell out the disciplinary action sought, it will also describe the underlying conduct. The rationale behind the factual specificity is that, given the confidentiality of the complaint process, this ensures accountability. With the facts on the record, there is less likelihood that the board (which is predominately composed of other health professionals) is sweeping misconduct "under the rug." The factual detail, however, is unusual in settlement documents and likely to take attorneys new to the area by surprise.

It is unlikely that the proposed stipulation and order will indicate any flexibility on the part of the complaint committee. Typically, however, the committee's position is not written in stone. It is possible to successfully negotiate with the committee, but it is important to be prepared. In your negotiations, keep the following matters in mind:

Identify the board's underlying concern. It is important to understand what issues or behaviors concern the board. (Although you are negotiating with the committee, the board, who may not always accept the compliant committee's recommendation, must approve any resolution.) Many professionals, when faced with an investigation by the licensing board, assume that their competency to perform their profession is being questioned. However, boards are also concerned about financial wrongdoing, insurance fraud, substance abuse, and boundary issues. The board's primary concern may be that your client (a technically proficient professional) not abuse her position.

Understand what constitutes "discipline." Corrective action agreements, for example, are not "discipline" and not reported to the various professional data banks. Discipline includes revocation or suspension of a license or placing limitations or conditions on a license. Limitations may include having your client's practice supervised or the areas of practice restricted. Conditions typically include additional course work and testing. The board may also require that a civil penalty or fine be paid. Finally, note that a reprimand also constitutes "discipline." If disciplinary action is taken, the respondent is almost always required to reimburse the board for costs associated with the proceedings, including attorneys fees. (The amount of these costs, however, may be subject to negotiation.)

Determine if your client is eligible for referral to the Health Professionals Services Program (HPSP). HPSP was created as an alternative to the disciplinary process. It is an early intervention and monitoring program for health professionals who have an illness that may result in their inability to practice with reasonable skill and safety. It permits these health care practitioners to fulfill their professional reporting requirements by enrolling with HPSP to document the effective management of their chemical health, medical condition, or psychiatric illness. While this program is voluntary, a board may require an impaired practitioner to enroll to avoid disciplinary action.

Review other cases. Determine what types of discipline were imposed in cases with facts similar to those of your client. Boards try to be consistent in their disciplinary procedures. Knowledge of decisions in other cases will give you an idea about whether or not your position is reasonable. It also may provide leverage during negotiations.

Research implications of discipline beyond licensure. For example, if your client agrees to a formal reprimand for over-charging a patient, how will this affect his ability to qualify as a Medicare or HMO provider? Are there possible criminal implications? If your client is disciplined for negligence, what exposure might he have for a malpractice claim?

Negotiate the facts where possible. Determine whether there is a basis for negotiating the "facts" that the committee wants your client to admit. If your client may face potential malpractice actions, this will be particularly important.

Examine the costs of contesting the matter. If your settlement negotiations fail, the case will go to a contested case hearing. The contested case hearing is conducted before an administrative law judge (ALJ) employed by the Minnesota Office of Administrative Hearings. These hearings often involve extensive expert testimony and can spread across several months. After the hearing the ALJ makes a recommendation to the full board as to whether a violation of statutes or rules occurred. The board may accept the ALJ's recommendations either in whole or in part. It is the board that ultimately decides whether or not to impose discipline. The board's decision can then be appealed to the Court of Appeals. While the costs of these proceedings are significant, remember that the committee should also factor in these costs.

Consider mediation. Often it is also helpful to conduct the negotiations with the help of a trained mediator. Private mediators can serve this role, as can several of the ALJs with experience in this area.

1. See Office of the Legislative Auditor, Occupational Regulation, A Program Evaluation Report, (January 1999), Table 3.3 at p. 64.
2. See Humenasky v. Minnesota Bd. of Medical Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994).
3. Occupational Regulation at p. 66.
4. The committee may also propose a "corrective action agreement". This agreement typically calls for additional training and education. It is intended for two sets of cases. In the first set, the committee identifies practice problems that do not warrant disciplinary action. In the second set of cases, the committee identifies concerns but the evidence is insufficient to sustain disciplinary action. The corrective action agreement is a written, public document between the committee and the licensee.