Professional Misconduct:

Disciplinary Investigations and Hearings



What To Keep in Mind; Do's & Dont's

Most licensed professionals have never been visited by a state licensing investigator. Without proper guidance, a physician may essentially lose his or her license before a formal accusation is even filed.

Complaints against professionals are received by the regulating licensing agency in writing or by telephone. The state licensing agency (OPMC or Office of Professional Medical Conduct) mails complaint forms and the appropriate release forms to the individual making the complaint. The forms are returned to the agency. Complaints are usually made by clients, patients, former employees or other reporting entities. When contacted by an investigator, you should give the initial impression of being cooperative. Seek legal assistance immediately. Legal counsel should be able to help you walk the fine line of in seeming to cooperate while beginning your defense. Even if you believe that the complaint is without merit, take the investigation seriously. Regardless of whether the complaint has merit, licensees should realize that the investigator gives great credibility to the complaining party. Simply denying any wrongdoing is usually not enough to persuade the investigator to close the case.

Do not be complacent about the investigation or maintain a false sense of security. Investigators call licensees for an "informal" conference to learn the licensee's side of the facts, so that the complaint may be cleared up. The informal conference may seem so innocuous that the licensee does not even consider taking an attorney to the conference. When the licensee appears at the conference, he or she learns that an expert consultant hired by the state licensing agency will conduct much of the interview, along with the licensing investigator. Very often, the interview is tape-recorded.


The Investigation

An investigator from the state board is not to be dismissed as just a representative bureaucrat. As a representative of the state, an investigator has the special task: of protecting the interests of the public as they deem those interests to be best served. If your license, and livelihood, stand in the way of the public interest in their estimation, an investigator has the power to make a determination against you. Do not attempt to endear yourself to the investigative staff. All of the kindness, courtesy and civility you can muster will not deter an investigation if there appears to be wrongdoing. As professionals, the employees of the Board expect you to find the best possible representation; they are not expecting anything else.

It is always best to have a representative with you at every chance you can. Most investigators will allow this, and for those who don't, other than fulfilling a requirement based upon statutory obligations of providing copies of medical records, there is no compulsion to discuss the case with an investigator who wants to meet with you alone.

Going through every document with your own representative well in advance of a scheduled meeting will result in you being the best prepared witness in your own defense. Advance preparation before any meeting with an investigator is a must. This is because miscommunication of your points, uncertainty on your part, or admitting that alternative treatments were not considered could well doom your licensure. Remember, everything that you say to an investigator can, and will be, used against you because an administrative proceeding against your license is - in every thing but name - a criminal charge against you.

Do not criticize your professional conduct or decisions when reviewing the case in question with an investigator. You may however, agree with an alternate course of conduct or treatment that is proposed by the expert consultant. Licensees are sometimes surprised to learn that their own comments are used admissions of wrongdoing used in the final determination. A misstatement may lead the investigator to conclude that the complaint has merit and forward the case to the agency's legal counsel.

You can reduce the chance that your comments may be misinterpreted by having an attorney attend the conference with you. Most investigators allow the licensee to be accompanied by an attorney. The best opportunity to resolve a case favorably comes at the investigative stage. An attorney in licensing cases 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.

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.

    If a 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 is filed against the licensee or applicant. 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, which is often the result when a licensee is not represented by qualified legal counsel familiar with administrative disciplinary proceedings.

    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.

    Once Accused
    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. The agency may:

  • Adopt the 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


  • Generally, 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.


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    Disciplinary Investigations and Hearings



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    After the Accusation

    Since the Accusation and Statement of Issues are public documents, your reputation and standing in your community may also be adversely affected by the mere filing of these documents. For all the above reasons, it is critical that you make every effort to resolve your matter before the filing of an Accusation or Statement of Issues. Representation by a license defense attorney would give you the best opportunity to end the case before it even starts.

    If a 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 the licensee or applicant. 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, which is often the result when a licensee is not represented by qualified legal counsel familiar with administrative disciplinary proceedings.

    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.

    Since the Accusation and Statement of Issues are public documents, your reputation and standing in your community may also be adversely affected by the mere filing of these documents. For all the above reasons, it is critical that you make every effort to resolve your matter before the filing of an Accusation or Statement of Issues. Representation by a license defense attorney would give you the best opportunity to end the case before it even starts.

    The Hearing
    Generally, a Preliminary Conference is scheduled prior to the formal hearing. This pre-hearing conference is a less formal procedure at which the parties review the procedural as well as some legal issues related to the scheduled hearing (such as the number and identity of proposed witnesses, the number of days actually required for the hearing, whether discovery has been exchanged, and any stipulations to legal issues in the case). A Settlement Conference is a legal proceeding at which the parties discuss possible settlement terms with an administrative law judge. If a settlement is reached, the administrative hearing is canceled. Any party may request a pre-hearing and/or settlement conference from the Presiding Administrative Law Judge.

    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. A skilled license defense attorney would be able to assist you in determining whether you should accept a proposed settlement or proceed with a formal hearing.

    If your disagree with the ruling, you may file a Request for Reconsideration with the state agency. Such a request must be filed and a decision must be made by the agency before the effective date of the pending order of discipline.

    If the licensing agency agrees to reconsider its decision, it will stay the pending order of discipline until it makes a decision on your request for reconsideration.

    If your request for reconsideration is denied, the agency's final decision may be appealed via a petition for writ of administrative mandamus. You must show that the agency's disciplinary order was an abuse of discretion. In some cases, you may be able to obtain a stay of the agency's decision while the court considers your writ of administrative mandamus. If the writ is not successful, the licensee may appeal to the court of appeal, then petition the state Supreme Court.

    A careful review of the administrative hearing transcript and exhibits, as well as a good knowledge of administrative law, is extremely important in filing a successful writ or appeal. There are also many procedural requirements, such as filing deadlines, to which you must adhere.

    Consulting an attorney familiar with the process at this stage of the administrative process may lead to the eventual restoration of your professional license.

    After a period of time prescribed by state statute, you may petition the agency to reduce the penalty (e.g., terminate 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 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.