Sometimes the law allows for court challenges before the administrative remedies are exhausted. These challenges include instances where: (i) the agency exceeds its powers and subject matter jurisdiction; (ii) when the administrative remedies are futile or do not exist (iii) where the agency acts under an unconstitutional statute or acts unconstitutionally to deprive the healthcare practitioner of a constitutionally protected right; (iv) where the agency acts in derogation of its own regulation or the statutes which empower it to act; (v) where the agency uses the regulatory adjudicative process to bypass the mandatory rule making process; (vi) where the agency engages in bad faith disciplinary prosecutions to intimidate or harass the licensee for practicing in a certain manner which is otherwise legal under the relevant regulatory scheme or to intimidate the licensee from exercising a constitutionally protected right. In each one of the foregoing instances, depending on the facts of each case, the healthcare practitioner can bypass the administrative process and challenge the agency action in Court before he/she is subjected to the process.

Examples of court challenges which precede administrative actions or seek to stay ongoing administrative proceedings include:

  1. Fourth Amendment challenges to administrative subpoenas based on various grounds including: (i) lack of relevancy of the documents being subpoenaed to the subject matter of the investigation; (ii) overbroad subpoenas seeking voluminous documentation which are unrelated to the subject matter of the investigation; (iii) defective investigative subpoenas issued in contravention of the statutes and/or regulations which empower the agency to issue the subpoenas; (iv) use of subpoenas “instanter” in lieu of warrants signed by a judge seeking the immediate production of document on demand; (v) the subpoena does not give the healthcare practitioner adequate time to challenge the same in court. The foregoing challenges to investigative subpoenas are constitutional challenges. If the subpoena fails, the agency does not collect the records which it needs to make a case against the healthcare practitioner. If the subpoena is adjudicated unconstitutional and illegal, by separate application, the healthcare practitioner can ask the court to direct the agency to return all of the records which it seized pursuant to the illegal subpoena.
  2. Challenges to the agency’s subject matter jurisdiction or the agency’s acting beyond its powers and scope vested in it by state or federal statutes. As a general proposition, administrative regulatory agencies are statutory creatures and not constitutional courts of general jurisdiction. The powers and subject matter jurisdiction of an administrative agency is derived from the statutory enabling powers given to the agency by either Congress for federal agencies or the state legislature in the case of state agencies. An agency cannot expand its powers and subject matter jurisdiction beyond those contained in the enabling statute. Thus, where the regulatory agency conducts or seeks to conduct an inquiry or a proceedings which is beyond its powers and subject matter jurisdiction, court challenges before the administrative process is exhausted are permitted.
  3. Challenges to agency action where the agency action violates a health care practitioner’s constitutionally protected rights and the practitioner is seeking injunctive relief under the federal civil rights statute 42 USC Sec. 1983 to prevent ongoing and future violation of the constitution.
  4. Challenges to agency action where the agency is acting under an unconstitutional statute. These challenges come in parallel with a collateral attack on the constitutionality of the statute in question under the state or federal uniform declaratory judgment acts. The challenges are also accompanied by motions for injunctive relief.
  5. Challenges to agency action where the administrative remedies are futile or non- existent. For example, for example, statutes which empower the agency to adjudicate its own subpoena are unconstitutional. Similarly, a regulatory agency does not have any powers or subject matter jurisdiction to declare a statutory provision unconstitutional. Therefore, asking the health care practitioner to ask the regulatory agency to engage in such adjudication is futile.
  6. Challenges to the constitutionality of a statute under which the agency acts or it is seeking to act. Such challenges can only be brought in court.
  7. Challenges to the adjudication of a case where the adjudicating tribunal is biased. The right of an impartial adjudication by an impartial adjudicator is a due process right safeguarded by the Fourteenth Amendment of the US Constitution. These issues come up where one of the adjudicators or more have a proven financial interest in the outcome of the proceeding or is biased against the healthcare practitioner is such a manner that the adjudicator’s participation in the process offends notions of fair play and impartiality. The procedure in such cases is to first ask the biased adjudicator to recuse him/herself in the proceedings. If he/she refuses, asking the licensee to go through the entire administrative process which is biased is unconstitutional, is an exercise of futility which the courts will intervene to prevent.
  8. Bad faith prosecutions are administrative disciplinary prosecutions brought by the regulatory agencies either to: (a) intimidate and harass a licensee from practicing his/her vocation in a certain manner which is otherwise legal but disfavored by some members of the agency for financial reasons or philosophical reasons; (b) a prosecution brought to prevent the exercise of a licensee’s constitutional right. Examples of harassment bad faith prosecutions are ones brought with no hope of wining an adverse decision against the licensee – for example in cases where statutory provisions specifically allow the modality or treatment imparted by the healthcare practitioner. Another example of bad faith prosecutions aimed at deterring the exercise of a constitutional right is where a healthcare practitioner appears on YouTube or TV or any media or writes a book regarding a controversial subjects such as: (i) anti vaccinations pros and cons whereby the practitioner merely talks about his opinions against vaccinations; (ii) treatment of persistent Lyme with long term antibiotics where the practitioner does not engage in such modality.
    For example, opinions expressed by the practitioner in open media as opposed to discussions of the benefits of a particular treatment or abstaining form providing such treatment as part of the practitioner’s practice, are subject to the protections of the First Amendment. Actions for bad faith prosecutions can be brought either in state or federal courts. Federal courts will not abstain from enjoining bad faith prosecutions because there is a fundamental due process right to be free from bad faith prosecutions.
  9. Where an agency acts in derogation of its own regulations, and where the licensee’s substantive rights are affected by such action which contravenes the agency’s own regulation, the action of the agency is void and subject to judicial adjudication. My firm assists healthcare practitioners in commencing and maintaining court challenges where appropriate, in order to vindicate and prevent the further violation of constitutional rights and in order to further prevent actions taken by the regulatory agencies which are unconstitutional and illegal.