The filing of a complaint against a professional license is an anxiety provoking situation. Although an allegation of wrongdoing may be unfounded, the filing of a complaint sets into motion an adversarial process.
Many mental health and medical professionals are unfamiliar and uncomfortable with the procedures associated with an adversarial proceeding, especially if it is their belief that they have engaged in no wrongdoing. For this reason, it is advisable to secure legal representation upon receiving notice of a licensing board complaint.
A licensing board complaint is an administrative law proceeding. This type of proceeding involves elements of civil and criminal law. There is no finding of guilt, and there is no award of monetary damages. There are, however, two sides to the case: the Prosecuting Attorney who represents the State, and the Defense Attorney who represents the Respondent (the licensee). If a formal administrative hearing is held, theLicensing Board sits as the trier of fact.
Following a review of the complaint allegations, the case is assigned to aninvestigator. This is a critical stage of the proceedings. All of the information gathered by the investigator will be forwarded to a prosecuting attorney who will determine if the case will be closed or elevated to a formal complaint. For this reason, it is advisable to secure legal representation prior to meeting with or speaking to the investigator. There is no confidentiality between the licensee and the investigator. Any statements made to the investigator are admissible at a formal hearing.
There are procedural and substantive issues related to the defense of a licensing board complaint. Procedural issues are governed by the applicable Rules of Administrative Procedure. Substantive issues are governed by the applicableLicensing Board Rules and Regulations. A working knowledge of these procedural and substantive rules is required to address the complaint allegations in a comprehensive manner.
An analysis of the applicable procedural and substantive rules is vital prior to preparing and submitting a written responseto the complaint. The written responseis not a case study. The written response is not a recitation of the licensee's accomplishments. Rather, the written response is a synthesis of the legal and clinical issues associated with the complaint that will be reviewed by the prosecuting attorney to determine whether the case will beclosed orelevated to a formal complaint.
If the case is closed, there is no record of the complaint. The case does not have to be reported on any renewal applications.
If the case is elevated to a formal complaint, there is no automatic finding of wrongdoing. Rather, the State continues to bear the burden of proving the allegations.
At that stage, a formal hearing can be held in front of the Licensing Board. As the trier of fact, the Board first determines if a violation has occurred. If a violation is found, the Board then determines the sanction.
Depending upon the facts of the case, it may be prudent to negotiate a consent agreement in which there is an agreed upon violation and penalty. This type of disposition will result in a formal finding of discipline, but it reduces the risk of a more severe sanction.
A finding of a violation becomes a permanent mark against the license. There is no right to expunge the record. For this reason, it is prudent to obtain legal representation at theinitiation of the complaint process to insure a rigorous defense to the allegations.
