Representing Clients in Occupational Licensure Investigations/Enforcement Actions
By: Christopher D. Carusone
Housed within the Pennsylvania Department of State are 29 professional and occupational licensing boards. These boards’ investigative/enforcement and adjudicative functions are necessarily separate, with the former contained within the Bureau of Enforcement and Investigation and the latter reserved for the Office of Hearing Examiners. This does not include certain professions, such as teachers regulated by other executive agencies or other professionals such as lawyers and judges governed by nonexecutive agencies.
The obvious starting point for representing many licensed professionals is the enabling legislation. These acts—such as the Medical Practice Act and Architects Licensure Law, for example—typically set forth the powers and duties of the governing board, the requirements for licensure, the prohibition against unlicensed activity, procedures for the handling of impaired professionals, and the grounds for the refusal, revocation or suspension of a license. Surprisingly, however, often missing from the statutory text is a detailed description of the standards governing the practice of the profession. Also typically absent from such legislation is a specific definition of “immoral or unprofessional conduct” that is so often the basis for professional discipline. The regulations promulgated by the board are sometimes not much better at filling in these blanks.
Professional associations are the most important source for the standards governing most licensed professions. For example, in one case, I was looking to better understand the degree to which a physician is permitted to use experimental treatments to treat a novel illness. I found the answer in the American Medical Association Code of Medical Ethics Opinion 1.2.11 (ethically sound innovation in medical practice), not the Medical Practice Act or its regulations. Guidelines published by the licensing board and other federal/state governmental organizations can also be a good source of substantive rules governing the conduct of licensed professionals. For example, in my case above, I found that the Pennsylvania Department of Health and the Food & Drug Administration had published guidance regarding certain treatments.
When representing a licensed professional during an investigation, one of the most important things an attorney can do is to conduct their own investigation and lock in the testimony of key witnesses in affidavits before investigators do. For example, in the scenario above, securing the support of the patient’s family or other medical personnel involved in the treatment on key facts favorable to the client was crucial in taking the wind out of the government’s sails. While some client budgets do not allow for this, securing an affidavit from an expert supporting the client’s actions can also be very helpful during the investigatory process. To sum up, in my experience, treating allegations against a licensed professional under investigation as simply an admit/deny exercise (like litigation) is the surest way to prolong the investigation.
Another tip for representing licensed professionals during investigations/enforcement actions is to explore pretrial, diversionary settlement options. In criminal practice, the most common diversionary program is the Accelerated Rehabilitative Disposition (ARD) program, which allows a person accused of a minor crime to serve a period of probation followed by expungement of the person’s record. (As one of the titans of the Pennsylvania criminal defense bar once told me, if he was offered ARD for a crime he could prove that he did not commit, he would take ARD ten times out of ten.). In a licensing context, most legislation governing the conduct of professionals provides for such a program for impaired professionals. However, sometimes such diversionary programs are not as formal. For example, when representing a judge in a matter before the Judicial Conduct Board, I learned about a pilot diversionary program that resulted in the dismissal of all charges against my client, similar to the ARD program.
Finally, if an investigation of a licensed professional results in an enforcement action, it is essential to understand that such proceedings are not ordinarily governed by the same rules applicable to civil or criminal proceedings in courts of record. Rather, these proceedings are governed by the General Rules of Administrative Practice and Procedure at 1 Pa.Code Section 31.1 et seq., subject to any specialized procedures contained in the underlying legislation or published by the specific board/agency involved. These administrative rules sharply diverge from those governing civil/criminal proceedings in many ways, most notably those governing the admissibility of evidence, which tend to be more relaxed in an administrative context.
Reprinted with permission from the April 18, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
