Once the governmental regulatory action is on its way, there are only two ways out of it: (a) a hearing and an ultimate determination on the merits; (b) pre action settlement negotiations and an agreed order disposing of all of the issues which are the subject matter of the regulatory action.
A final agreed order signed by the agency head is tantamount to a final order of a court. It is not appealable, it is final and may impose conditions and limitations on the licensee’s ability to practice his/her profession.
Many health care practitioners 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 or an ongoing administrative proceeding 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 subsequent 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 and any other healthcare practitioners who are licensed in multiple states have to worry about the reciprocal disciplinary statutes which are present in every other state where they are licensed. Specifically, once a consent order is entered into in one state, the healthcare practitioner 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.
Any criminal conviction or plea, and often civil settlements will result in action against the practitioner’s license.
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 multidimensional and comprehensive legal analysis taking into consideration all of the above referenced factors while negotiating and supervising the implementation of consent agreements.