Dan Artaev is a former Assistant Attorney General for the State of Michigan who represented various State agencies in judicial and administrative proceedings. In private practice, Dan has defended doctors, nurses, physician’s assistants, real estate agents, and others against State of Michigan complaints seeking to sanction or revoke their professional license. If your professional license is at risk, contact Dan today at dan@artaevatlaw.com or 269-930-0254.
The Michigan Bureau of Licensing and Regulatory Affairs (“LARA”) oversees the occupational licensing process in Michigan that is required for about 150 different careers. A license from the State of Michigan is mandatory for doctors, nurses, physician assistants, psychologists, and counselors. But licenses are also required for persons outside the health professions – like real estate agents, accountants, architects, professional engineers, and even cosmetologists and barbers.
Regardless of the license that you hold, it is an essential part of your business and livelihood. So it is distressing when you receive a phone call or a letter announcing an investigation from the State of Michigan. And it is especially traumatic if you receive an official administrative complaint alleging professional misconduct that may result in a suspension or even revocation of your hard-earned license.
If you find yourself being investigated or receive a complaint, you should contact an experienced attorney immediately to represent your interests. In general, until you retain counsel, you will find yourself dealing with representatives from the bureau or board that issued your license. In dealing with these agents, you may feel pressured to admit to misconduct in hopes to reach a quick resolution or settlement of the matter. However, as a licensee, you have certain rights, including rights to defend yourself at an administrative hearing and judicial review of any final agency decision. You should not waive those rights lightly. An attorney can help you put on the best defense possible at any hearing – but also, hiring an attorney allows the attorney to negotiate with the State on your behalf and potentially reach a cost-effective settlement or resolution before you have to go through the time and monetary commitment of a full hearing.
What kind of conduct triggers an investigation and complaint?
An investigation can be triggered when an individual files a complaint with the particular state agency responsible for your license. For example, a patient or a customer or their family member may file a complaint alleging conduct that they deem improper. It does not have to rise to the level of malpractice – it may be something deemed unethical, negligent, or otherwise unprofessional. Or, the federal government or another state agency may be required to notify LARA if a licensee is convicted of certain crimes (such as illegal possession or delivery of a controlled substance). Depending on the nature of the purported misconduct, a mere investigation by another agency or government entity may be sufficient. Needless to say, if you are charged with or convicted of a felony or misdemeanor, expect follow up from LARA regarding your license.
The Investigation.
The next step in the process is the actual investigation. LARA’s investigators work as fact-finders for the government and their job is to interview any witnesses, collect evidence, and compile a report that will then be the basis of any subsequent administrative complaint action. It is likely that an investigator will reach out to you and ask for an interview. However, there is no law that requires you to talk to an investigator – you are free to decline to speak with them, even if they make you feel like you “have to” meet. They are not your friends and they also do not have the authority to dismiss the complaint against you. If you retain an attorney at the investigation stage, the attorney can speak to the investigator on your behalf – to gather information on the nature of the complaint, to sit with you at any interview that you choose to attend, or to deliver a written statement to the investigator in an attempt for early resolution of the matter.
Of course, if you receive an official order or subpoena that requires you to produce documents or appear for testimony, you do have to comply. But while such official orders do happen at the investigation stage, they are relatively rare.
Responding to the Administrative Complaint.
Unless you have reached an early settlement, an investigation will likely result in an administrative complaint. This is a formal pleading – like a court action – filed by LARA against the licensee that alleges certain misconduct, violations of the applicable laws, and seeks sanctions. If you receive an administrative complaint, it is critical that you contact your attorney right away because the law only gives 30 days for a response. Failure to respond in time will result in a “default,” which means that you will be deemed to have admitted the allegations of misconduct, and the complaint will be forwarded to the relevant disciplinary board or committee for a determination of the sanction. A sanction could be a fine, a license suspension, or even revocation of the your license. However, note that your license remains active until a sanction is actually handed down, except in certain extreme circumstances where you receive an order of summary suspension.
If You Receive an Order of Summary Suspension…
You are immediately precluded from engaging in licensed conduct and are treated as if you do not have a license. An order of summary suspension must be justified by some imminent threat or harm to the public. Such a summary suspension is rare, but does happen in some of the more serious cases, such as where a physician is accused of illegal prescriptions or where there is some other ongoing threat to the health and well-being of others.
Because a summary suspension is an extreme measure, the law allows a licensee to request an expedited hearing on the whether the summary suspension is justified. This is a separate process from the full administrative hearing and focuses solely on whether the license should continue to be suspended pending the full administrative hearing.
The Compliance Conference.
After you or your attorney file an answer to the administrative complaint, you have the right to a compliance conference. A compliance conference offers a chance at early resolution of the matter before you spend too much time and money defending against LARA’s allegations. Before COVID, the compliance conferences were in-person meetings, usually at the Office of the Attorney General in Lansing. However, right now these meetings are conducted remotely via telephone or via Zoom.
The licensee usually attends with his or her attorney. LARA is represented by an Assistant Attorney General assigned to the case and a “conferee,” which is a person who represents the particular licensing board at issue. Usually, the conferee is a member of the licensed profession themselves, so they are familiar with the particular standards of conduct and the professional nuances of the job. The conference is informal and none of the conversation that takes place is admissible at any subsequent proceeding – in other words, it is a chance to talk freely, and try to reach a viable settlement.
If a settlement is achieved at the conference, it is formalized through a proposed consent order. In this order, the parties stipulate to certain facts that they can agree on, agree that those facts form a basis for imposing discipline, and the conferee then recommends the consent order be adopted by the relevant licensing board. If the board does approve, the order is signed and resolves the matter. The licensee then must comply with any stipulated sanctions, such as payment of a fine, taking continuing education classes, a suspension from practice, drug testing, or anything else that may be imposed. More often than not, the settlement is compromise that results in less severe sanctions than would otherwise be imposed and also achieves finality for the licensee, allowing them to keep their license and continue working in their profession.
The Administrative Hearing.
If settlement discussions are unsuccessful, the parties proceed to an administrative hearing. An administrative hearing is a lot like a court trial, except that there is no jury, and there are slightly different procedural rules. Before the administrative hearing, the parties do have the opportunity to take discovery (meaning subpoena witnesses and documents) and file motions.
The hearing itself takes place in one of the local government buildings – usually in Grand Rapids, Lansing, or Detroit. An administrative law judge (“ALJ”) presides over the hearing and the hearing is recorded for future transcription. Witnesses provide testimony, documents are admitted into evidence, and the parties make arguments for the record.
After the conclusion of the hearing, the administrative judge usually allows the parties some time to write and file closing briefs summarizing the evidence and their positions. After that, the administrative judge usually takes about 90 days (depending on the length of the hearing) to issue a “proposal for decision.” This is a lengthy document summarizing the evidence, applying the legal standard, and recommending a decision.
The parties then have the opportunity to file exceptions to the proposal (meaning objections), after which the recommendation is considered by the director of the licensing bureau at issue. It is a little bit strange that the director of the same licensing bureau that is a party to the case reviews the decision, but that is how the administrative law process works. The director can accept, reject, or modify the proposal for decision, after which it becomes a final order.
And a final order may be appealed to the court system.
Appealing the Administrative Order.
A party dissatisfied with the order has the right to appeal. Depending on the nature of the case, there may be different deadlines applicable to the appeal. Also, while in most circumstances the appeal goes to the circuit court, in rare instances the law requires a direct appeal to the Court of Appeals. All the more reason to hire an attorney to guide you through this complex process.
Whatever the appropriate court, the parties have the opportunity to submit appellate briefs, summarizing the case and pointing out the errors. But the court will not second guess the ALJ’s discretionary rulings or make new findings of fact (except in rare special circumstances) – instead, the court will conduct a deferential review of the record to determine whether the ALJ made a legal mistake or whether the decision is unsupported by evidence. In other words, it is difficult to prevail on appeal if you have already lost at the lower level. And while you may continue to appeal to the higher courts, the chances of a favorable decision grow slimmer, the higher up that you go.
Hire an Attorney!
Although this guide may seem lengthy, it is a still only a cursory examination of the administrative licensing sanction process here in the State of Michigan. It is a complicated landscape and an experienced attorney is worthwhile, especially when your professional license is at stake. Do not forget that you do have rights to a hearing and due process, and you should take care to protect those rights.
Contact attorney Dan Artaev today for a consultation regarding a State investigation or administrative complaint against your processional license.
Disclaimer: This guide is for general informational and promotional purposes only. Nothing herein constitutes legal advice. Every licensing case is unique and any action you take with respect to your license should only be done after consultation with a qualified professional about your specific circumstances.
© 2020 Artaev at Law PLLC. All rights reserved.