How Do I Respond to the Administrative Complaint?
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.
Should I Consult With an Attorney?
YES! 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.
What Type of Hearing Should I Elect?
Florida Informal Hearings (Board Hearings)
In Florida, when the Florida Department of Health (DOH) files an 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).
Michigan Informal Hearings (Compliance Conference and a Board Conferee)
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.”
More about Florida and Michigan Board of Medicine hearings
More about Florida and Michigan Board of Nursing hearings
Should I Request a Formal Administrative Hearing?
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.
- Suspension or revocation of license
Potential Collateral Consequences if Final Action Taken