Licensing boards are administrative agencies acting pursuant to administrative law

In the past several years I have been approached by three physicians wanting to sue the Oregon Medical Board in a “real court,” usually meaning a state trial court. All three physicians were angry or frustrated, and all three were dismissive of the Oregon Medical Board’s authority and power. Earlier this year a pharmacist asked me if the Oregon Board of Pharmacy “can really do that?” The pharmacist seemed doubtful that the Board of Pharmacy had that kind of power over his license. All four licensees were frustrated by the strict sanctions threatened by their State licensing Boards.

The range of sanctions

In three of the four cases, the licensing Board was threatening substantial probation and/or revocation, which is at the “heavy end” on the sanction continuum. Sanctions include, for example, being reprimanded; being temporarily suspended, indefinitely suspended, or permanently suspended; or having your license revoked. Sanctions further include fines, continuing education, recurrent training, the imposition of a mentor and/or a monitor, and periods of probation (three to five years is not uncommon). One or more sanctions may be imposed in combination, as each individual case warrants, or the licensing Board sees fit.

The answer is “yes, for the most part, the Board really can do that”

The answer is “yes,” state licensing boards, whether it be the Oregon State Board of Nursing, Oregon Board of Pharmacy, or Oregon Medical Board, are all acting pursuant to State law and, when they are acting within the scope of their enabling legislation (legal authority), they really can do that. The scope of each Board’s legal authority is established by the Legislative Assembly in Salem, which passes statutes to create and empower each of the State licensing Boards. State law also includes the Oregon Administrative Rules (OARs) promulgated by each of the licensing Boards in the furtherance of their mission.

Exceptions

There are some exceptions. For example, if a State licensing Board is acting outside of its scope of its power (the agency’s enabling legislation), then the Board’s action may be challenged on that ground. Similarly, if you contest your case all the way to hearing and lose, you may appeal, seeking judicial review by the Oregon Court of Appeals, but you will not prevail unless you establish that your Board committed legal error, or took action that is not supported by “substantial evidence.” Neither type of challenge is a good bet, and it is not the place to start in any event.

Be smart – do not delay taking action

If you are prudent, you will not stake your case on state court legal challenges and appeals. Your first, best, and least expensive opportunity is to work directly with your State licensing Board. Get involved from the start. Unfortunately, too many licensees wait too long to obtain legal advice – until shortly before or after being interviewed by field investigators or licensing boards, or worse, after receiving written findings and proposed sanctions, i.e., a notice of proposed disciplinary action. At this point, your licensing Board has reached conclusions about your practice and your opportunity to participate and influence proposed findings and sanctions has been greatly lost. But even at this late date, there is still important work to do. For example, the next step may be to negotiate a settlement, or to proceed to an administrative hearing. No matter what you do, however, you will need legal counsel.