Health professionals are committed to caring for patients with expertise, compassion, and integrity. However, in the heavily regulated healthcare field, those professionals can sometimes find themselves navigating not just the medical challenges of their patients but licensing issues of their own as well. Licensing issues can arise unexpectedly, and, when they do, they can cause tremendous stress and uncertainty.
As an attorney with years of experience handling professional licensing matters for health professionals, I have witnessed firsthand how professional licensing investigations and Administrative Complaints can disrupt health professionals’ careers and their ability to provide patient care. Let’s explore how to navigate the disciplinary process in Michigan so that you can know what to expect if you are ever faced with a threat to your license.
Understanding the Disciplinary Process
In Michigan, the disciplinary process for the more than 400,000 licensed health professionals is overseen by the Department of Licensing and Regulatory Affairs (LARA) Bureau of Professional Licensing (BPL). This process is designed to uphold professional standards and protect public health while, at the same time, ensuring fair treatment for health professionals.
While each case is unique, there are some common themes in the types of actions or omissions that give rise to investigations and Administrative Complaints in the healthcare field. Being aware of these can help health professionals take steps to prevent potential issues that can lead to investigations and Administrative Complaints. Some of the most common involve allegations related to negligence, incompetence, professional misconduct, professional boundaries, lack of good moral character, controlled substances, substance use disorder, impairment, misdemeanor and/or felony criminal convictions, advertising, practice outside the scope of a license, documentation and recordkeeping, and Michigan Automated Prescription System (MAPS) reports.
The Initial Filing of a Complaint
Complaints can be filed by just about anyone: current or former patients, supervisors, subordinates, professional colleagues, and even the licensees themselves. These complaints are taken very seriously by the BPL and will be investigated. You may not even know that you are the subject of a complaint until you have been contacted by the BPL as part of its investigation.
The Investigation Phase
The BPL will conduct a thorough investigation once it has received a complaint and will assign one or more investigators (known as “Regulation Agents”) to the professional licensing investigation matter. It is frequently during the investigation phase that licensees first become aware that one or more allegations have been made against them. Unfortunately, many health professionals are unaware that they have the right to have the assistance of an attorney during the investigation phase. These unrepresented health professionals frequently make statements to the investigators without the guidance of an attorney, and I have seen instances where those statements have ultimately been used to provide the foundation for an Administrative Complaint to be filed against them.
At the conclusion of the investigation, an Investigation Report will be forwarded to the Disciplinary Subcommittee (DSC) of the board that governs that particular profession. If one or more violations of Michigan’s Public Health Code have been substantiated, an Administrative Complaint may be authorized. Thankfully, not all professional licensing investigations result in the filing of an Administrative Complaint, which is why having experienced legal representation behind you is so important during the investigation phase.
Responding to an Administrative Complaint
If the BPL issues an Administrative Complaint against you, you must respond in writing within 30 days from the date that you received the Administrative Complaint. Failure to respond in writing within 30 days will result in the Administrative Complaint being forwarded to the DSC for imposition of a sanction without any input from you.
You will be presented with 3 different options. You may (1) request a settlement, (2) request a compliance conference, or (3) request a formal administrative hearing on the merits of the Administrative Complaint.
It is important to prepare a timely and thoughtful response. This is a critical stage where legal representation is critical. A well-prepared Answer to Administrative Complaint can isolate the disputed issues and mitigate the severity of the situation.
The Compliance Conference
If you request a compliance conference, you will have the opportunity to present mitigating information and your side of the story in an informal setting, and an attorney may prepare you for the compliance conference and represent you at the compliance conference. Following the compliance conference, a proposed Consent Order and Stipulation may be prepared to resolve the Administrative Complaint, and it may be revised during the negotiation process that’s sometimes follows the compliance conference. The Administrative Complaint may also be dismissed by the BPL. However, if the Administrative Complaint is not resolved with a Consent Order and Stipulation or dismissed altogether, the matter will proceed to a formal administrative hearing on the merits of the Administrative Complaint.
The Formal Administrative Hearing on the Merits of the Administrative Complaint
If you proceed to a formal administrative hearing on the merits of the Administrative Complaint, it is essential to understand what this entails. The hearing is similar to a bench trial in court with opening statements, closing arguments, the formal testimony of witnesses under oath, and the admission of exhibits. You will have an opportunity to testify and to share your side of the story in a formal setting. The hearing will be held before an Administrative Law Judge (ALJ), but the ALJ cannot make a decision at the hearing. Instead, the ALJ will issue a Proposal for Decision (PFD). Exceptions to the PFD may be filed by the parties, and the PFD is then forwarded to the DSC for its consideration. The DSC will then issue a Final Order.
A merits hearing may be the only way to obtain the result that you need to continue practicing your chosen profession. However, proceeding to a hearing is a decision that should not be made lightly, and careful preparation in collaboration with legal counsel, including the gathering and analysis of evidence and the preparation of any witnesses, is key.
If it has been found that you pose an immediate threat to the public health, safety, or welfare, your Administrative Complaint may be accompanied by a separate document called an Order of Summary Suspension. If you receive an Order of Summary Suspension, you must stop practicing your health profession immediately and cannot practice again until the summary suspension has been dissolved.
There is more than one way to dissolve a summary suspension. If a Petition for Dissolution of Summary Suspension is filed, an emergency hearing will be scheduled before an administrative law judge (ALJ). If the ALJ determines that there is insufficient evidence that you pose an immediate threat to the public health, safety, or welfare that requires a continuation of the summary suspension, the ALJ shall dissolve the summary suspension. A summary suspension can also be dissolved by a Consent Order and Stipulation at the end of the Administrative Complaint resolution process or by a Final Order following a formal hearing on the merits of the Administrative Complaint.
Possible Outcomes and Sanctions
A disciplinary action may conclude with a complete dismissal of the Administrative Complaint against you. However, if one or more violations of the Public Health Code have been substantiated, sanctions must be imposed. License sanctions can vary widely depending on the severity of the Public Health Code violation and, pursuant to MCL 333.16226, may include reprimand, fine, probation, restitution, limitation, suspension, revocation, and even permanent revocation.
The Appeal Process
If you disagree with the Final Order, you may appeal it to the Michigan Court of Appeals. The appeal process is complex and requires a strategic approach. Consider the grounds for appeal carefully and consult with an experienced attorney to evaluate the feasibility and potential benefits of an appeal.
Preventative Measures and Best Practices
When it comes to professional licensing, an ounce of prevention is always better than a pound of cure. Adhering to ethical practices, engaging in continuous professional development, and staying informed about regulatory changes can help prevent complaints. A proactive approach to professional conduct is always your best defense.
Facing a professional licensing investigation or an Administrative Complaint can be a very stressful experience for any health professional, but understanding the process and having an experienced attorney by your side can make a significant difference.
This guide serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.
Fraser Trebilcock Shareholder Robert J. Andretz is an experienced professional licensing attorney with years of experience successfully defending doctors, nurses, and other licensed health professionals across the state of Michigan in professional licensing matters, including professional licensing investigations and Administrative Complaint matters. You can reach him at 517.377.0854 or firstname.lastname@example.org.