United States: Administrative Complaints, Compliance Conferences And Administrative Hearings

What is an administrative complaint?

If an investigation by the Michigan Department of Licensing and Regulatory Affairs (LARA) reveals information that LARA believes warrants a sanction, then LARA will proceed to file an administrative complaint against the healthcare provider. Administrative complaints describe the alleged breach of the applicable standard of care or violation of Michigan law. In the administrative complaint, the healthcare provider is referred to as the "Respondent."

When a healthcare provider receives an administrative complaint, the provider has a limited amount of time to respond in writing to that complaint. The healthcare provider's written response to an administrative complaint will be reviewed by the legal counsel representing LARA, usually an Assistant Attorney General, as well as by the Board Conferee, who essentially serves as a liaison between the state board overseeing the professional and LARA.

A healthcare provider's written response to an administrative complaint by LARA is often a very important document that can make a significant difference in the outcome of the licensing case. Such written response allows the healthcare provider to offer a concise presentation of the facts and issues, and to attach supporting documentation, and to present the professional and the care provided in the most favorable light. A well-written response can help persuade LARA and the state board that the healthcare provider complied with the standard of care and applicable law under the relevant facts and circumstances. An experienced licensing defense attorney can offer valuable assistance in preparing a well-written and well-supported response and can thereby make a significant difference in obtaining the best outcome.

What is a Compliance Conference?

After the written response to an administrative complaint is filed, the next formal step in the process is usually a Compliance Conference. The Assistant Attorney General representing LARA will normally work with legal counsel for the Respondent, in an effort to identify a mutually convenient time and location to hold the Compliance Conference.

The Compliance Conference is a confidential informal meeting between the Respondent and his or her attorney, the Assistant Attorney General representing LARA, and the Board Conferee. The Compliance Conference is often a very important step in the process, and it is designed to give the Respondent face-to-face time with the Board Conferee. This provides the Respondent a flexible opportunity to explain and demonstrate the Respondent's compliance with the standard of care and applicable law, and to discuss any mitigating circumstances.

Before the Compliance Conference, the Board Conferee and Assistant Attorney General will usually formulate initial impressions about the details of the care that was provided and/or about whether there was fault involved, based on reading the written response to the administrative complaint. The time allowed for the Compliance Conference is limited, and therefore it is usually a significant advantage for the Respondent to have retained legal counsel before the Compliance Conference, and to have filed a strong written response to the administrative complaint (before the Compliance Conference, with help from legal counsel), setting forth the facts and discussing the issues and attaching important records.

The Compliance Conference is often a very important event in the administrative process, because it is the time when the case receives a great deal of attention and focus from the Board Conferee. The Assistant Attorney General and Board Conferee will sometimes meet for a few minutes immediately after the Compliance Conference, to formulate and present a proposed offer to resolve the case. If the Board Conferee is convinced from the discussion at the Compliance Conference and the written response to the administrative complaint, that the Respondent has complied with the standard of care and applicable law, then the Assistant Attorney General and Board Conferee will probably recommend to the Board that the administrative complaint be dismissed without any sanction.

If the Board Conferee finds during the Compliance Conference or otherwise believes that the Respondent did not comply with the standard of care or applicable law, then the Assistant Attorney General will usually make a proposal to resolve the case. Such a proposal could include one or more of a range of possible sanctions, including, but not limited to, a monetary fine, continuing education courses, probation, or suspension of the professional's license.

What is an administrative hearing?

If the proposal of the Assistant Attorney General is not accepted by the Respondent after the Compliance Conference, and if the case is not settled in subsequent negotiations, then Respondents have the right to defend the care they provided and their license at a formal administrative hearing. An administrative hearing is presided over by an administrative law judge who makes findings of fact and conclusions of law. The Respondent has the right to appear at the administrative hearing with legal counsel, to present documents, to testify, to call witnesses on his or her behalf, and also to cross-examine witnesses called by LARA.

After an administrative law judge issues his or her written decision, the state board (for the Respondent's profession) has the right to accept or reject the administrative law judge's decision and/or to render a different decision. The Respondent has the right to appeal the decision of the Board to the Michigan Court of Appeals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.