NEGOTIATIONS OF SETTLEMENT/CONSENT AGREEMENTS.

Many health care practitioners and dentists unfortunately and tragically misunderstand that an opening offer made by the state officials to settle the disciplinary matter before a hearing with a consent order or a settlement agreement is in their best interest. In a majority of the cases those beliefs are patently erroneous.

The initial offer made by state regulatory officials to end an inquiry with a Consent Order and Agreement should be looked upon with a critical eye. In most instances, the consent orders are used as a springboard for immediate license revocation, further disciplinary action and endless audits of the practice by the state authorities. Consent Orders are indeed an efficient way to settle state disputes, however they have to be reached upon terms most favorable to the practitioner. At the initial stages the offers of Consent Orders which are favorable to the practitioner are rare. Entering into such Consent Orders on terms favorable to the state authorities can ultimately cost the practitioner his/her license. Knowing when to accept and/or reject a consent agreement is crucial in avoiding further prosecutions and subsequent summary suspensions.

Moreover, physicians who are licensed in multiple states have to worry about the “cascading effect”. Specifically, once a consent order is entered into one state, the physician/dentist has usually
thirty days to report it to the authorities of the other state where the physician is licensed. That usually triggers a separate inquiry and investigation by the state where the initial consent order was reported. Consequently, when entering into a consent order in one state, the attorney representing the practitioner necessarily has to consider the consequences that such consent order may have on the practitioner in another state where the practitioner also holds a license If the physician fails to self report, that constitutes new grounds for discipline in the state where the consent order was not reported. Since a consent order is a disciplinary matter and is reported by the state regulatory agencies to the national Practitioner’s Data Base, eventually, the authorities in the states where the practitioner is licensed inevitably catch up.

Consequently, if at the preliminary stages a consent order is offered by the State authorities, the same has to be carefully considered on a multi dimensional legal level by a multi state experienced attorney who possesses unique knowledge and expertise with these type of issues. That attorney’s analysis and understanding of the intertwining statutory and regulatory webs of the states where the health practitioner is licensed are of paramount importance in reaching an advantageous consent agreement which does not harm the health practitioner later. Similarly the attorney’s understanding of the laws and regulations of the state where the health practitioner’s license is being disciplined is of paramount importance to the reaching of a fair agreement. The substance of the agreement should have a minimum impact upon the practitioner’s license and livelihood in other states where the practitioner holds a license. If the proposed agreement cannot be negotiated on terms which are advantageous to the practitioner and which avoid further prosecutions and summary license suspension, then I always suggest alternative legal approaches including but not limited to court intervention.

In appropriate circumstances and where legally feasible, my practice is involved in the negotiation and conclusion of consent agreements for our clients either before, during and after the commencement of the administrative proceedings. I have also negotiated and implemented beneficial consent agreements during the pendency of court litigation. My practice performs multi

dimensional and comprehensive legal analysis taking into consideration all of the above referenced factors while negotiating and supervising the implementation of consent agreements.


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