COURT CHALLENGES TO ACTIONS OF REGULATORY AGENCIES; INJUNCTIONS, RESTRAINING ORDERS AND DECLARATORY JUDGMENTS.

While servicing the legal needs of alternative, complementary and advanced medicine and dentistry practitioners, it became quite clear that in order to avoid severe disciplinary actions against a professional’s license, the professional had to take a pro active rather than a defensive/passive position against state authorities. It is quite transparent that in most cases where the alternative, complementary and advanced medicine and dentistry practitioners simply succumbed to the administrative disciplinary process and forums which accused the practitioner of practicing medicine and/or dentistry beyond the scope of their license or outside some undisclosed “standard of care” the outcome was preordained. The practitioners ultimately either lost their licenses or their practice was severely limited by the imposition of the disciplinary sanctions. Most importantly, in several states including New York, it is quite clear that, with very few exceptions, where the practitioner abided by the administrative rules, and had the hearing adjudicated on the merits in the administrative forum, there was slim or no chance of having outcome reversed on appeal. To the contrary, the intermediate administrative appellate tribunals imposed stricter sanctions than the hearing panel did, while the appellate courts repeatedly refused to interfere with the findings on the merits of the administrative officials. The appellate tribunals are clearly not the places where the qualifications and merits of the testimony of the state experts can be challenged.

Recognizing that defending alternative and holistic medicine and dentistry in administrative tribunals was a losing battle and, the alternative, complementary and holistic medical and dental community was in dire need of a new legal approach designed to save the practitioner’s livelihood. That approach had to involve the intervention of the state and federal courts in the process before the practitioner wound up at the mercy of the administrative officials.

Under my legal guidance and representation, several practitioners whom I represented and still represent, successfully challenged the actions of the investigative and prosecuting authorities in state and federal courts, thereby bypassing the administrative process altogether. On behalf of health care and dentistry practitioners I have brought administrative state officials before state and federal courts seeking injunctions, restraining orders and declaratory judgments. The injunctions sought to stop the administrative prosecutions and abusive/intimidating and illegal investigatory based upon constitutional due process challenges. While the initial results varied from case to case, the benefit of this legal approach became apparent. The practitioner’s case was taken out of the administrative forums, different attorneys form the respective State Attorney generals’ offices were assigned in court and the practitioners ultimately held on to their livelihoods and licenses with little or no consequences stemming from the initial license prosecution. In certain cases the charges were dismissed altogether with prejudice and the proceedings were stopped.

Each case is different and legal approaches must be assessed on a case by case basis. Court challenges to the administrative process may or may not apply in certain cases. However, where court challenges to the administrative process does apply and administrative actions can be challenged in court on procedural and legal grounds, the benefits of this approach outweigh the alternative to “playing by administrative” ad hoc impromptu rules which are fabricated by the state officials as they prosecute the practitioner.
The benefit of challenging the state and federal authorities in state and federal courts rather than in their own administrative tribunals is multi faceted: (1) the court intervention places an immediate impartial actor, namely the judge, between the state officials and the health care practitioners; (2) the court challenge takes the disciplinary proceedings out of the ad hoc administrative forums and out of the hands of the administrative prosecutors and investigators altogether; (3) different legal players are now the practitioner’s opposition, namely the Attorney General’s division which instead of prosecuting, has to defend the state’s action; (4) even if unsuccessful at the initial stages in court, the civil action against the state still continues and the practitioner can get discovery which otherwise may not be available in the administrative forums; (5) in case of an adverse decision in the lower court, the same is immediately appealable to the intermediate and highest court of appeals of the respective state where the practitioner is located without the need to wait for the administrative tribunal’s conclusion of the hearing and determination on the merits.

As a general rule, courts are reluctant to get involved once the administrative proceedings start. Overall the law favors the conclusion of the administrative process. However, courts do get involved in cases where a practitioner’s substantive and procedural due process has been violated by officials who overstep their authority and violate the law. Moreover, where the practitioner presents questions of law rather than questions of fact, the courts are more likely to get involved to ensure that the practitioner’s legal rights are not being violated. Finally, certain states such as New York, have specific statutory provisions for direct challenge to administrative authorities where the officials overstep their bounds, act in derogation of the law and in excess of their jurisdiction.

Determining ripe legal grounds for court challenges entails the detailed complex reading and interpretation of entangled webs of statutes and regulations of the particular state where the practitioner. There is no boilerplate recipe for such actions and each situation is fact and law unique. Based upon my past success, I provide these unique legal services to health care practitioners country wide. As a highly skilled professional, I read and analyze the pertinent statutory schemes and regulations in every state where my clients are based. I file applications for injunctions and court challenges to administrative officials who act outside the scope of the law and their own powers.
I performed this type of work in New York, Connecticut and Massachusetts with ultimate successful results for my clients. While each case is different and presents an array of facts and the necessity for application of different provisions of the laws of different states, the fact that this legal option of side stepping the administrative process is available to the alternative/complementary health care practitioner is a general revelation to the medical and dental community as a whole.

The rationale and legal basis behind these court challenges are rooted in complex constitutional due process and state procedural challenges.

My practice offers complex court challenges against procedurally and unconstitutionally defective actions of state and/or federal regulatory authorities against medical and dentistry practitioners country wide.


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