Ask Our Lawyer: Responding To and What to Expect in a Licensing Investigation

by Daniel J. Schulte, MSMS Legal Counsel

QUESTION:

I received a letter in the mail from the Bureau of Professional Licensing within the Michigan Department of Licensing and Regulatory Affairs (“LARA”).  It states I am the subject of an investigation by LARA regarding a possible violation of the Michigan Public Health Code (the “Code”).  I am being requested to set up an appointment with an investigator to discuss the possible violations and for the gathering of information.  This has never happened to me before.  Can you explain the process?

ANSWER:

 

This letter is the beginning of what will be a long process.  The Code authorizes LARA to investigate activities related to the practice of a health profession by a licensee.  This typically occurs after LARA receives notice of a potential violation of the Code or allegations that 1 or more grounds for disciplinary action exist.  This could arise due to LARA receiving an allegation (anyone may submit an allegation that a licensee has violated the Code), malpractice settlements, awards or judgements (3 or more in a 5 year period or any number totaling more than $200,000 in a 5 year period) or a failure to renew your license timely, obtain required continuing medical education or other technical violations of the Code.

You should have an attorney represent you in this process.  Your attorney should contact LARA’s investigator and schedule an in-person meeting with you and your attorney to discuss the allegations being investigated, to provide requested documentation, etc.  Deciding exactly what to discuss and what documentation to produce are decisions to be made in consultation with your attorney.  You may produce medical records.  The Code provides that the physician-patient privilege does not apply in an investigation by LARA acting within the scope of its authorization. This provision is generally enforceable under HIPAA.

Following the meeting, the investigator may or may not request that you provide additional documents or other information and may or may not request a follow-up interview with you. LARA may also retain an expert to render a professional opinion regarding whether or not your conduct is consistent with the applicable standard of care or otherwise violates the Code. Once the investigation is complete, the investigator will prepare a written report which will be submitted to the Board of Medicine which will be used by it to determine whether or not there has been a violation of the Code. The time required for LARA to complete its investigation and for the board to make its decision may take up to 4-6 months after your meeting with the investigator.

If the board determines there has been no substantiated violation of the Code you will receive written notice from LARA that its investigation has concluded and the file has been closed.

If the board determines there has been a violation of the Code, LARA will proceed to file an administrative complaint.  If an administrative complaint is filed, you must file an answer within 30 days. You will then have an opportunity to request a compliance conference at which you and your attorney will meet with a representative of the board and attempt to negotiate a settlement.  If no settlement is reached your case will proceed to a hearing before an administrative law judge.  The judge will make determinations of fact and propose a decision to the board.  The board then must decide whether to accept the decision of the administrative law judge.  Sanctions against your license (suspension, revocation, probation, fine, etc.), if any, are imposed only by the board.  The board’s decision can be appealed to the Michigan Court of Appeals.