Receiving an administrative complaint can be very scary. You opened the mail and now you realize that your license is in jeopardy, your job may be in jeopardy, and your professional reputation may be impacted. What you do in the next few days will greatly impact your professional future and your ability to provide for yourself and your family.
We are dedicated to assisting health professionals and work aggressively to protect the licenses of our clients. Several of our attorneys practice professional licensing defense full-time and have several tips to help you protect your medical license, nursing license or other professional license.
The U.S. Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976) ruled that prior to the deprivation of a property right, a licensee (you) should be afforded “due process” under the Fourteenth Amendment of the U.S. Constitution. Due process is defined as notice and an opportunity to be heard. Professional licenses are statutorily protected property interests and thus require due process before they can be revoked. An administrative complaint satisfies the “notice” requirement of due process. The administrative complaint puts you on notice that the board believes there is probable cause that a violation of your professional code (public health code for health professionals) has been committed. See sample of an administrative complaint here – Sample Administrative Complaint
In Florida, administrative complaints against doctors, nurses and other health professionals, are filed by the Florida Department of Health (DOH) on behalf of the boards (i.e., Board of Medicine, Board of Nursing, Board of Pharmacy, etc.). Hearings regarding the administrative complaint are held before your professional board or a judge with the Department of Administrative hearings (DOAH), depending on the type of hearing you elect.
In Michigan, administrative complaints are filed by the Department of Licensing and Regulatory Affairs (LARA) Bureau of Professional Licensing, on behalf of the professional boards. Similar to Florida, hearings in Michigan are held either before an administrative law judge or your professional board depending on the type of hearing you elect
Receiving an administrative complaint is similar to being sued, in that a response is required—or else you waive any defenses to the allegations set-forth in the administrative complaint, and you will be defaulted. Failure to submit a timely written response will result in the complaint being transmitted directly to the Board’s disciplinary subcommittee for final sanction determination. Health professionals should be aware that attempting to answer the complaint yourself could significantly impact your chances of getting the complaint dismissed or obtaining a reasonable settlement. A response must be worded carefully to preserve important issues in your case but still be responsive to the allegations in the complaint. When responding to an administrative complaint, attorneys should investigate the issue, gather vital records (employment files, medical records etc.) to ensure that responses are truthful and accurate, and aid in the defense of the administrative complaint. See sample response here – Sample Response to an Administrative Complaint
You should first seek the advice of an attorney prior to deciding to draft a response on your own. At Chapman Law Group, we offer free consultations to anyone facing an administrative complaint who is seeking assistance. As previously stated, representing yourself in an administrative complaint generally does not yield good results. An assistant attorney general or corporation counsel will be representing the State and will often have significant experience in dealing with administrative complaints and experience in gaining sanctions against health professionals who choose to represent themselves. Likewise, the professional Boards’ primary duty is to protect the public, and they are very experienced in disciplinary proceedings. You must fully present your argument in the best possible light to show that you are safe to practice and are not a danger to the public. You will be outmatched and ineffective in defending yourself against the Board or State without the advice of a seasoned administrative law attorney. While there may be no validity to the complaint, the risk of potential damage to your license and livelihood far outweigh the cost of hiring an attorney. Often an experienced professional licensing / administrative law attorney can help achieve a dismissal or greatly reduce sanctions.
In Florida, when the Florida Department of Health (DOH) files and administrative complaint against a doctor, nurse or other health professional seeking to take action against their license, an Election of Rights form will accompany the copy of the complaint that is mailed to you. The form notifies the licensee of the right to a hearing and affords the licensee the option to select either an informal hearing or a formal hearing. Informal hearings are held before the professional board (i.e. Board of Medicine, Board of Nursing, Board of Pharmacy, etc.), whereas formal hearings are held before an administrative law judge. The primary difference between the two types of hearings is that informal hearings cannot determine facts. Therefore, informal hearings are primarily elected when the licensee does not dispute the facts alleged in the complaint but wishes to ask the board for mercy (e.g. settlement, suspension, sanctions, etc.). Informal hearings, also known as board hearings, are not the best option for most as there is usually a dispute between the parties regarding the facts alleged. Formal hearings are used when the facts are in dispute and the licensee seeks justice (e.g. dismissal).
After your attorney responds to the administrative complaint, he will have the option of electing to request a “compliance conference” with a “board conferee.” This simply means that settlement negotiations will begin with an informal meeting with a member of the board’s disciplinary subcommittee. This person has authority to extend an offer on behalf of the board for consideration at a “compliance conference.” Representation at a “compliance conference” is vital because this may be your only chance to get the board to dismiss your case or offer you an acceptable settlement prior to a formal administrative hearing. It is important to note that if you reach an agreement at a compliance conference, the board’s disciplinary subcommittee must still vote to accept the agreement between you and the conferee, which is called a “consent agreement.”
Yes, a formal administrative hearing should always be requested in response to an administrative complaint. An administrative hearing satisfies the “opportunity to be heard” requirement mentioned in Matthews v. Eldridge. If you do not exercise your right to a formal administrative hearing, the board will be permitted to view your complaint and the evidence against you gathered by state investigators as true, and you will lose the right to test the allegations at a formal hearing before an administrative law judge.
Seek the advice and assistance of a seasoned and knowledgeable attorney devoted to representing health professionals facing administrative complaints. Chapman Law Group has over 25 years’ experience representing licensed health professionals. Several of our attorneys practice professional licensing defense full-time and are very experienced in helping health professionals maintain their licenses. Chapman Law Group also has criminal law attorneys who can assist clients with cases that originated from a conviction or violation of a criminal statute.
Our goal is not only to protect the licenses of our clients, but also to reduce the damage that the allegations cause to their licenses, careers and reputations. Please contact our attorneys immediately if you received an administrative complaint. We would be honored to help protect your license and limit the damage from an administrative complaint.