Member Article

Over the past few weeks, the investigation of sexual misconduct cases by the State Medical Board of Ohio (“Board”) has continued to make headlines across Ohio. Due to an increased public outcry as a result of the recent media attention, as well as the previous revelations of the Board’s handling of the Dr. Richard Strauss case, physicians and other providers regulated by the Board should be extremely cautious in following the Board’s rules and practices related to professional boundaries.  But, what happens if the Board’s investigation of a professional boundary complaint results in a proposal to discipline your medical license?  In short, ignoring the Board is not a reasonable option if you would like to try to maintain your medical license.

The Board’s General Disciplinary Process

In 2022, the Board received 6,365 complaints and one can only wonder if this number will go up in light of the growing public scrutiny of the Board.[i] Approximately 35% of these complaints were closed without investigation and another 48% were closed after an investigation was performed by the Board.  Nonetheless, investigations are often costly and can cause anxiety and hardship even if the Board’s inquiry is closed without formal discipline. Further, with 17% of complaints received by the Board leading to disciplinary action, licensees and applicants should be aware of the applicable procedures that the Board must follow in the event they receive a call from a Board investigator, or worse, a letter from the Board proposing to discipline your license. 

At the outset, the Board must outline the factual and legal allegations that serve as the basis of the proposed disciplinary action. These allegations can be found in a document that is formally titled a Notice of Opportunity for Hearing (“Notice”). Licensees and applicants should be aware that Notices are sent by certified U.S. Mail to the person’s address of record with the Board.[ii] Stated otherwise, there are no electronic notifications such as email or text message notifying licensees or applicants that a Notice has been issued and as such, licensees or applicants must ensure that their current address is on file with the Board.

After the Board issues a Notice, the licensee or applicant has 30 days from the date the Notice was mailed to request a hearing. Importantly, if the licensee or applicant does not request a hearing within the stated timeframe, the Board will move forward with the disciplinary case in a fashion similar to a default judgement in which the licensee or applicant will be prohibited from introducing any evidence to refute the Board’s allegations. 

If a hearing is requested, it will be scheduled before an attorney hearing examiner hired by the Board to oversee the proceeding; Board Members do not attend the administrative hearing and, in fact, have little to no involvement in the matter until it is time for rendering final judgment. Depending on the Board’s hearing schedule and the complexity of the allegations, the hearing could be scheduled several months to even a year after the Notice was issued.  Prior to the hearing, the Board will provide the licensee or applicant with the evidence it intends to introduce at hearing and the licensee or applicant must similarly provide any evidence that will be utilized at hearing to the Board as well. The Board only has to share evidence it intends to introduce at the hearing. The Board does not have to turn over a copy of its entire investigative file, nor exculpatory evidence. 

Although hearings can be conducted with the submission of only written evidence, most licensees or applicants move forward with an in-person hearing with live testimony before the hearing examiner.  At the hearing, both the Board and the licensee or applicant can introduce evidence, question witnesses, and argue about the appropriate resolution of the case. Unlike a criminal case where the defendant has the right to remain silent and not testify, no such constitutional protections are offered in the Board’s hearing process, and licensees and applicants should prepare to be questioned by attorneys for the Board.

After the hearing concludes, the hearing examiner will prepare a report and recommendation that summarizes any evidence and testimony that was admitted into the hearing record. The hearing examiner will also outline a suggested punishment, or sanction, based on his or her review of the case. Both the Board’s attorneys and the licensee or applicant are permitted to file objections to the hearing examiner’s report and recommendation.

The matter will then be scheduled for the full Board to consider at one of its monthly public meetings.  At the meeting, the licensee or applicant and the Board’s legal counsel can provide a five-minute statement to the Board, at which time the full Board renders a final decision in its public session.  Notably, the Board is in no way bound to follow the report and recommendation.  Licensees or applicants do have the ability to appeal the Board’s final decision.

Alternatively, a licensee or applicant can attempt to negotiate a consent agreement with the Board’s counsel that will resolve the case prior to hearing. Usually, the Board will offer proposed settlement terms upon the request of licensee’s or applicant’s counsel. The settlement terms can be negotiated, but licensees and applicants should be cognizant that the Board can be hesitant to significantly deviate from its initial settlement proposal and/or the Board’s disciplinary guidelines.[iii] At the same time, one wonders whether the recent media attention related to the Board’s handling of sexual misconduct cases will further reduce the amount of cases that are resolved via settlement agreement. Finally, a licensee still must request a hearing even if he or she wishes to engage in settlement negotiations.

Questions?

Licensees or applicants who are subject to the disciplinary process should immediately contact an attorney.  An attorney will serve as a point of contact in negotiating with the Board and helping a licensee or applicant navigate this lengthy and difficult to comprehend process. Dinsmore and Shohl can help. We are counselors and advisors experienced at guiding applicants and licensees through all phases of the disciplinary process from pre-investigation through disciplinary hearings and appeals. Contact Beth Collis, Dan Zinsmaster, Greg Tapocsi, or LaTawnda Moore for further information.

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[i]https://www.med.ohio.gov/Portals/0/Publications/Annual%20Reports/SMBO%20FY22%20Annual%20Report.pdf?ver=auBCENaQ5Dq0OovI2MK8TA%3d%3d×tamp=1659624754179.

[ii] Pursuant to Ohio Revised Code Chapter 4731.281, Board licensees shall give written notice to the Board of any change of principal practice address or residence address within 30 days of change.

[iii] https://www.med.ohio.gov/Portals/0/Disciplinary%20%20Fining%20Guidelines%20eff%2001-08-2020.pdf?ver=0hdnKgMzKVoMsrc1AjWQnw%3d%3d.

 

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