Medical Board Defense

Dan has extensive experience representing physicians and other healthcare providers in administrative actions initiated by licensure boards, such as the New Mexico Medical Board and the Board of Nursing. He advises clients about the investigative process and the pros and cons of entering into settlement agreements before licensure boards issue administrative complaints, typically called Notices of Contemplated Action.

 Dan has defended healthcare providers at formal hearings under the Uniform Licensing Act (ULA) and successfully appealed adverse decisions of licensure boards. He recently pursued an appeal to the New Mexico Supreme Court (NMSC) in one case on behalf of a provider who held approximately 40 medical licenses. One of the questions in the case was whether a provider’s honest mistake on a license renewal application amounted to a “misrepresentation” under the Medical Practice Act (MPA) and NMMB regulations—an issue of first impression in New Mexico. The NMSC quashed certiorari after oral argument, so the question remains unanswered by the judiciary. 

 The case not only raised an issue of first impression under the MPA, but it also fundamentally changed how the NMMB defines an “adverse action” under its regulations. The NMMB now considers reportable adverse actions to encompass nearly any conduct that leads to termination of employment, even non-clinical conduct and conduct that has no bearing on a provider’s clinical privileges. The new regulations are so broad that even certain terminations without cause are reportable adverse actions in New Mexico.

 In another one of Dan’s cases, Dan appealed an adverse decision of the NMMB to the district court on due process grounds. The district court reversed and remanded the case back to the NMMB, finding that the proceeding conducted under the ULA was fundamentally unfair.

 Administrative proceedings under the ULA raise important due process concerns for many reasons. Providers must keep in mind that the administrative body that votes to initiate a prosecution is typically the same administrative body that reviews evidence and issues final disciplinary action. Under these circumstances, providers must think carefully about whether to pursue formal hearings and be mindful of due process considerations during the hearing.

Given Dan’s experience representing clients before administrative boards, he understands the complexities associated with advising providers who hold licenses in multiple jurisdictions. In these types of cases, when providers are faced with reportable adverse actions, they typically face a self-perpetuating cycle of reporting obligations throughout multiple jurisdictions. This situation poses unique challenges and can be difficult to manage without skilled representation.

An adverse action in one state, for example, usually triggers simultaneous reporting obligations in other jurisdictions. Reporting the adverse action in other jurisdictions then causes those jurisdictions to initiate their own investigations or administrative actions, each of which must then be reported again across all other jurisdictions. Without swift intervention, the cycle of administrative investigation and prosecution can continue for months, even years.

If you hold professional licenses in multiple jurisdictions and face the prospect of reporting adverse action in different states, contact Dan to discuss his experience in this area. There are numerous options to consider when thinking through how to stop the cycle of self-perpetuating reportable adverse actions.