Settling a dispute with your licensing Board

Is settlement possible?

The answer to this question is emphatically “yes.” In fact, most cases that proceed beyond an investigation, to the issuance of a Notice of Proposed Disciplinary Action, are settled. This is true whether you are a nurse, pharmacist, or physician licensed by the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board. Such settlements are known by a different name – a “consent order,” or a “stipulated order,” to name two examples – but these are settlements nonetheless.

How to settle your case

Unlike most settlements,you don’t pay money to settle a disciplinary matter. Instead, you agree to accept “discipline” by your licensing Board. In a case involving a “minor” violation or discrepancy, the settlement may be an agreement to accept a “reprimand.” A reprimand is on the low end of the disciplinary continuum, typically the starting place for discipline, although a reprimand should not be dismissed lightly, a point I stressed in a prior post on September 25, 2015. If a reprimand is not enough, perhaps a fine or short suspension will be necessary to reach settlement. In a more difficult case, you may need to negotiate probation, and perhaps the imposition of practice mentors and monitors. In the worst case, you are left to negotiate surrender of your licensure, and, hopefully a fw key terms of future reinstatement

A smart settlement requires an experienced lawyer and an experienced investigator (the investigator with your licensing Board is most likely experienced, but if not, rest assured, someone else with experience will negotiate on behalf of the Board). The trick to a smart settlement is that both negotiators must be experienced in order to recognize the most likely outcome, whether your case is litigated or settled. The goal of a smart settlement is to get to the “bottom line” quickly sparing cost and grief. Unreasonable expectations on either side with thwart a smart settlement.

Is settlement necessary?

A settlement is never necessary, because a licensee always has a right to a hearing to defend his or her license, unless or until you waive that right, usually as part of your settlement. Even if settlement is not necessary, settlement should always be considered. I had two cases this year in which settlement was earnestly discussed, but ultimately rejected. The investigator proposed settling offering to stipulate to a reprimand in each case. In the end, however, I recommended against a reprimand-settlement after determining that neither of my clients violated any law or practice standard. My clients accepted my recommendation and, in the end, the Board closed both cases without discipline. The two examples show why experience is helpful, if not necessary.

In a more serious case, especially one where you are exposed to revocation of your license, settlement may be your best option, and perhaps the only way to manage risks and control expenses. In the worst of cases, where your licensing Board is pursuing nothing short of revocation, settlement may be your only option if you want to manage risks and ensure that you keep your license.

How to proceed

An experienced licensure lawyer will be necessary, otherwise your decision to settle, to stand firm, or to proceed to hearing, will be more akin to a gamble that an informed decision. An experienced lawyer will be able to evaluate your specific circumstances and make reasoned recommendations. In some cases, an experienced lawyer can strongly recommend when to stand firm, or when to settle. In other cases – the close-call cases – an experienced lawyer can make recommendations in the alternative, enumerating the pros and cons for each recommendation, enabling you to make the best decision in your unique circumstance. In the worst of cases, where your hearing will certainly result in a loss, an experienced lawyer will recognize that inevitability and tell you as much, i.e., that anything gained through settlement will be more than will be gained by taking that case to hearing. An experienced lawyer will guide you through this process.