Providers Should Take Advantage of Early Opportunities to Contest Disciplinary Proceedings

By: Jesse Adam Markos, Esq.
Wachler & Associates, P.C

The Michigan Bureau of Health Care Services (BHCS) has the authority to investigate health care providers to determine whether the Michigan Public Health Code has been violated. Statistics published by the BHCS suggest that it has become increasingly more aggressive in the discipline of providers. More specifically, the BHCS is reluctant to close a case without disciplinary action once an Administrative Complaint has been issued. Of the 1,098 Administrative Complaints filed by the BHCS in fiscal year (FY) 2013, only 108 were closed or dismissed. The increased difficulty of closing a case without disciplinary action once a complaint is issued makes it important for providers facing an investigation to be vigilant and contest allegations at an early stage of the disciplinary proceedings. Recent experience has shown that the best opportunity to have the matter dismissed may be through discussions with the Assistant Attorney General and Board Conferee handling the case before an Administrative Complaint is filed.

By way of background, after an allegation against a provider has been received, the BHCS may be authorized by the relevant licensing board to conduct an investigation. Generally, the provider is asked to meet with a BHCS investigator for an investigative meeting before the BHCS decides to pursue the case. If a violation is believed to exist, the case may be transferred to the Michigan Attorney General’s Office, Health Professionals Division, for drafting of the formal complaint.

Once the Administrative Complaint is filed, the provider has the right to request a Compliance Conference with the Assistant Attorney General and Board Conferee from the licensing board handling the case. The purpose of the Compliance Conference is to allow the licensee to present evidence either demonstrating compliance with the Public Health Code or that the matter does not merit discipline. Afterwards, if the provider and the Assistant Attorney General agree to a proposed settlement, a Consent Order is presented to the Disciplinary Subcommittee of the relevant licensing board for approval. If no resolution is reached, the matter will be referred for formal proceedings with an Administrative Law Judge.

Importantly, an earlier opportunity to counter the allegations may be available. In some cases, providers are able to meet with the Assistant Attorney General and Board Conferee and respond to the allegations before an Administrative Complaint is filed. During these “Pre-Administrative Complaint Compliance Conferences” if the provider can persuade the Assistant Attorney General and Board Conferee that there is no reason for disciplinary action, this can result in a finding that no violation occurred, and the process ends without the need for an Administrative Complaint.

However, once an Administrative Complaint is issued, it becomes difficult for a provider to avoid damage to their reputation and career. As a result, a strong and early defense is necessary and providers should carefully explore all options available to prevent disciplinary action and avoid the resulting professional damage and economic implications. For additional information or assistance, contact a Wachler & Associates attorney at (248) 544-0888

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