IF YOU ARE BEING INVESTIGATED BY THE OFFICE OF PROFESSIONAL DISCIPLINE, WHAT ROLE DOES THE INFORMAL SETTLEMENT CONFERENCE, ISC, PLAY?

The Office of Professional Discipline, OPD, is the branch of the Department of Education that investigates and prosecutes medical licensees other than physicians and physician assistants. So, if you are a Registered Nurse, a Nurse Practitioner, a Podiatrist, a Psychologist, or other licensed health care provider, be very worried if you receive a letter from OPD stating that your practice is being investigated. Any investigation by OPD can seriously damage your career or, in the worst case, terminate your career by the revocation of your license.

The way this plays out is that OPD does its investigation, including having an Interview with you. After gathering the facts, the case is then reviewed by a Board member who recommends a resolution. That resolution might be that the case is simply closed with no action taken or that you should be charged with some type of disciplinary penalty. If the matter is to be disciplinary, you, or your attorney, will be contacted by an OPD prosecutor. You will be asked if you want to agree to the penalty and sign a Consent Agreement, and if not, then you will have to go to a formal Hearing where the end result might be far worse than the original offer of resolution.

However, there is an interim step that is built into the process at OPD, and that is called an Informal Settlement Conference, ISC. This is a method to try to resolve the matter before scheduling a Hearing. The way it works is that you and your attorney attend the Conference along with the OPD prosecutor, an OPD facilitator, and a Board member. The ISC is not recorded and nothing that you say there can be used against you if you end up at a Hearing. Also, the previous offer of resolution is taken off the table and the idea is to see if another type of resolution can be reached to avoid a Hearing. You must understand that the new offer from OPD might actually be worse than the original offer, or it might be substantially better.

The format is that the facilitator gives a presentation of the rules governing the ISC and it is always stated that the origination terms of resolution by OPD are “off the table”, and that the new offer might be better or worse. Then the prosecutor briefly states the facts of the case against you and states what the original offer of settlement was. The case then goes to you, the licensee.

It is now time for you to present your side of the story and you can include letters of support on your behalf, CME Certificates of Completion, or anything else you think might be helpful. I have basically two ways of presenting my client’s case. One way is that I ask questions of my client and he/she answers those questions. Another way is that I give the entire presentation myself on behalf of the client. I do this in cases where my client feels that he/she simply is too emotional to adequately set forth our position.

When we are finished with our presentation, the Board member then asks questions directly of the licensee. This is where preparation by the attorney and the client hopefully is helpful. What I mean is that, prior to attending this Conference, I spend a great amount of time with my client going over possible questions and the answers to those questions which will attempt to put the matter in the best light for the client. It is important that the client be respectful during the questioning by the Board member and that the answers given must be responsive to the questions. That is, it is not favorable at all to appear to be evasive when talking with the Board member. After all, this Board member will be deciding your fate, so it is important that you comport yourself in a professional manner.

After this back and forth is completed, you and your lawyer are put in a virtual room by yourselves and the facilitator and the Board member meet privately to decide what the OPD position will be. This process, in my experience, takes about five to ten minutes. You and your lawyer then rejoin the Conference and the facilitator announces the new OPD offer. You are told that you have a week or two to decide if you want to accept this new offer or go to a formal Hearing.

I have found, overall, this ISC process to be of value from the licensee’s point of view. OPD wants to end as many cases as possible as fast as possible so there is an incentive to make an offer that will be accepted. In those cases the ISC offered resolution is often better for the licensee. However, sometimes the Board member decides that the new offer should be less favorable to the licensee, but there is no way to predict that in advance.

In sum, you and your attorney must be aware of this settlement mechanism and decide if you want to use the ISC to obtain a better result and put the case in the closed file. These investigations are extremely stressful and it is for the most part better to resolve the case and avoid a Hearing, the result of which is extremely unpredictable.

Please feel free to contact me with any questions on this subject matter.