Advisory Letters

An Advisory Letter, sometimes referred to as a Letter of Concern or Letter of Admonition, is a letter issued by a licensing board that is considered non-disciplinary in nature.  Once the letter is issued, you cannot appeal it.

There are generally two circumstances where an Advisory Letter is issued.  First, the professional may have engaged in activity that could have led to disciplinary action, but there was not enough evidence of the activity.  However, continuation of that activity may result in further Board action and discipline.

Second, the violation may be of a minor or technical nature that is not severe enough to warrant disciplinary action. This may include violations, such as failure to report a change of address or the completion of continuing education.

So, why be concerned about a Letter of Concern?  The answer is that it depends on which Board licenses the professional.  For example, the fact that a nurse received a Letter of Concern will appear on the Nursing Board’s website.  In other words, if a member of the public goes to that website and looks you up, the fact that you received a Letter of Concern is right there for all the world to see.  On the other hand, the Medical Board does not post information about Advisory Letters.  However, if a member of the public calls the Medical Board, the Board will inform the caller that an Advisory Letter has been issued against you.

Finally, a Letter of Concern becomes a permanent part of your licensing record.  If there is ever another complaint lodged against you, the Board will look at the Advisory Letter as a stigma on your record and often will consider your violations as proof that you are not the type of healthcare professional that the Board wants practicing in Arizona.

The difference between receiving a dismissal and an Advisory Letter or Letter of Concern is often based on the way your written responses and your Board interviews are handled.  An attorney can help you prepare for all aspects of a Board investigation and assist you in obtaining as favorable a result as possible.

Accusation of Unprofessional Conduct

A registered nurse (RN) was accused of unprofessional conduct and was instructed to appear for a formal hearing in front of an Administrative Law Judge (ALJ) at the Office of Administrative Hearings (OAH).  The complaint alleged that the RN failed to: (1) properly assess a patient who had fallen from the bed; and (2) use appropriate precautions after the fall, such as C-spine stabilization.  The patient suffered a hip and wrist fracture due to the fall.  The RN had previously been disciplined in another state for unprofessional conduct and had signed a Consent Agreement to save her license.

The RN appeared by telephone at the hearing without making prior arrangements to do so (a very bad idea).  She was completely unfamiliar with the hearing process and never consulted an attorney for advice.  When asked by the ALJ if she wanted to make an opening statement, the RN was unprepared and flustered, resorting to unkind and argumentative comments.  The RN presented no evidence – no documents and no witnesses.  The RN did not ask any questions of the Board’s witnesses.  Her closing statement highlighted her basic lack of knowledge of the issues.

While the ALJ will not rule for about one month, the result is almost certain; the RN will lose.  At a minimum, she will be censured.  Unfortunately, she may lose her license.  It does not matter whether she had a good defense or not – nobody ever heard her side of the story, and nobody ever will.  The RN simply did not know what to do at the hearing. She did not make an opening or a closing statement.  She failed to present relevant evidence and failed to question the Board’s witnesses.  Moreover, she inadvertently acted as a witness against herself.

A hearing at the OAH is like a mini-trial, although a bit less formal.  While the ALJ will frequently give some latitude to healthcare professionals who do not have legal representation, there are limits to what the judge can do.  Unless the healthcare professional is extremely knowledgeable about legal process and procedure or takes the time to learn the rules, the risks of losing the case, even if the professional has a good defense, are very high.  A hearing is a serious matter, and there can be serious, long-term consequences for the professional’s career and livelihood.  The hearing room is no place to go it alone.  You need to have an attorney. 

Healthcare License Renewal Through The Office of Administrative Hearings

A healthcare professional was denied renewal of her license and appealed to the Office of Administrative Hearings (OAH).  In order to win her appeal, the professional had the burden of proof.  In other words, it was the job of the professional to convince the Administrative Law Judge (ALJ) at the hearing that the professional was entitled to have her license reissued.  The professional would win if she could show a “preponderance of the evidence” in her favor.  A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree.

The professional had been denied a license renewal due to multiple DUI convictions, including a conviction even after requesting the hearing.  In order to win at the hearing, the professional had to show that it was more likely than not that she was in control of her drinking problem and that she would not be a danger to the community in practicing her profession.  That was a pretty tall order.

Sadly, the professional represented herself.  She neither understood nor prepared for the hearing.  She did not make any opening statement.  When asked by the ALJ to present her case, she looked baffled.  She did not have any evidence or witnesses.  She was not even going to testify herself until the ALJ pointed out that it was her burden to prove her case that she would lose automatically if she did not say anything in her favor.  She did utter a few words but they had nothing to do with her suitability to resume her professional career.

The Licensing Board, represented by a highly experienced Assistant Attorney General, presented a concise and informative case.  Using documentary evidence and the testimony of the Board investigator, the Assistant Attorney General proved the numerous DUI’s and demonstrated that the professional lacked a commitment to sobriety.

While the ALJ has one month to render a decision in this case, there is little doubt that the professional will not regain her license.  Even if she had an excellent case for license renewal, she still would have lost because she neither understood the hearing process nor what it takes to win a licensing case.  When your license to practice your profession is on the line, there is no substitute for a competent attorney who understands your case and can present it effectively and convincingly.

When a Board Complaint Allegation is Deemed

A complaint was filed against a pharmacy intern. The intern was given 30 days to respond in writing.  Sadly, the pharmacy intern ignored the complaint and did not file a response.  The assistant attorney general moved to have all the allegations against the intern “deemed.”  The Board approved the motion, the allegations were deemed, and the intern lost his license.  

What does it mean to be deemed?  Why can failure to respond to a complaint destroy a person’s career?

When an allegation is deemed, it is considered to be true.  In other words, if a professional does not respond to a Board complaint, the state will file a motion to deem the allegations, i.e., to have the allegations accepted as true.  If the Board passes the motion, everything in the complaint will be held to be true, regardless of whether it is true or not.  It sounds complication but it is actually very simple.  If someone accuses you of doing something, unless you respond, everyone will assume that the accusation is true.  There is no need to prove the accusation.  Just your failure to respond is sufficient proof.

A professional must respond to a complaint.  You cannot hide from it; it will not go away.  Your failure to refute the allegations in the complaint is the same as admitting that the allegations are true.  Unless you are not concerned about your keeping your license and career, you must respond to the complaint.  An attorney can often be helpful in crafting a response that is both truthful and helpful to your cause.

Prescription Drug Board Complaints & Citations

One of the most fertile grounds for complaints to the Medical or Osteopathic Boards relates to the prescription of controlled substances, particularly opiates.  The Osteopathic Board recently took up two such cases.

In the first case, the doctor was cited for not obtaining a pharmacy audit and not taken action after being notified that the patient was using multiple pharmacies to obtain narcotics.  The doctor had prescribed a prodigious number of controlled substances to the patient and failed to recognize the signs of drug abuse.  Ultimately, the doctor received a Decree of Censure (severe discipline) and was ordered to complete an in-depth and costly continuing education program.

In the second case, a patient died from acute methadone and morphine intoxication.  The doctor had prescribed a large amount of opioids without doing a pharmacy audit, initiating a controlled substance contract with the patient, reviewing old records, or obtaining a pain management consultation. This doctor also received a Decree of Censure. She lost her privilege to prescribe controlled substances for two years.  In both cases, these Decrees of Censure will become part of the doctor’s permanent record.  They will be reported to the National Practitioner Data Bank.  Every time these doctors apply for medical malpractice insurance coverage, hospital privileges, or insurance panels, they will have to disclose these Decrees of Censure.  There will be higher rates and loss of opportunities.

Boards are looking at pain management through a critically focused lens.  Based on my experience as both an attorney and physician, I suggest that primary care practitioners think very hard before committing to the management of patients with chronic pain.  Personally, I would not do it.  If I were a primary care physician, I would refer these patients to pain management specialists.  If you do decide to engage in pain management, you must adopt a working scheme so that proper monitoring does not slip through the cracks.  These policies and procedures may include pain contracts, pharmacy audits, limits on quantities of medication, confirmatory consultations, and urine drug screens.

Since cases involving the prescription of narcotics are likely to be complex and may result in severe discipline, these cases should always be managed in conjunction with an attorney.  Your professional license will very likely be on the line.

Misdiagnosis of an Eye Condition

An optometrist received a complaint alleging misdiagnosis of an eye condition.  The doctor did not respond to the complaint.  Her reason for not responding was that she had changed practices, had forgotten to notify the Board of her change of address, and had never received a copy of the complaint.  After reviewing the medical aspects of the complaint, the Board concluded that treatment met the standard of care.  Nonetheless, the doctor received a Letter of Concern for both failing to notify the Board of a change of practice address as required by law and for failing to respond to the complaint.

According to the laws governing the most healthcare professions, a practitioner is required to provide the Board with a written response to a complaint within 20 or 30 days after the complaint is mailed to the practitioner.  A professional is also required to notify the Board within 10 days of any change in residential address, mailing address, office location, or office telephone number.  If the doctor had complied with this regulation, the Board would have dismissed the complaint.

No matter how minor or serious the complaint is against you, failing to answer it will only make it worse.  The Board will cite you for two separate violations – what you did wrong and your failure to answer the complaint.  Penalties are usually cumulative.  So, always answer the complaint in a timely manner.  An attorney can help you answer a complaint in an honest but most favorable way.  The answer itself may be the difference between a dismissal and discipline.