This blog will give
health professionals a practical understanding of the rightfully dreaded, summary suspension of a license. A summary suspension is a procedure under the
Administrative Protection Act (APA) where the Department of Licensing &
Regulation (LARA) immediately suspends a health professional’s license without a hearing or the opportunity
for the health professional to defend his or her license.
What are some of the immediate consequences to a health
professional if his or her license is summarily suspended? The health professional is immediately
precluded from practicing in their licensed profession and will be unable to
continue in their employment. If they
are in private practice, the insurance companies will suspend participation and
payments, and the public and colleagues will become aware of the suspension
with the attendant loss of prestige, humiliation and uncertainty—not to mention
having to answer questions on license renewal, insurance, and employment
applications with a “yes” to questions about licensing actions or
suspensions. If the practitioner is
suspended in Michigan and holds licenses in other states, due to pervasive computer technology, those states
will also summarily suspend licenses in their own jurisdiction.
Again the license is suspended before the licensee has an opportunity to correct or rebut
allegations that are relied upon as grounds for suspension. The opportunity for grave injustice is always
there when action occurs before all facts are in.
Decades ago sometimes practitioners might be suspended or
sanctioned in Michigan but just go to Florida and practice there. That is no longer the case and has not been
so for a very long time.
Constitutional Safeguards
Under
Michigan’s APA according to Section 92:
If the agency finds that the public
health, safety, or welfare requires emergency action and incorporates this
finding in its order, summary suspension of a license may be ordered effective
on the date specified in the order or on service of a certified copy of the
order on the licensee, whichever is later and effective during the
proceedings. The proceedings shall be
promptly commenced and determined.
Summary suspension under
this Act is subject to constitutional due process considerations. Under well-established constitutional law, a
citizen does not have a right to a
health profession license. However, once
a citizen has obtained a Michigan
health professional license then the
Constitution protects that license from arbitrary state actions. Before LARA can suspend or revoke a license, a
licensee is entitled to due process.
Due process derives from the “Due Process Clause” of the U.S. and
Michigan Constitution. Due process comes
in many varieties including economic, substantive and procedural due
process. Black’s Law Dictionary defines “due process” as:
The conduct of legal proceedings
according to established rules and principles for the protection and
enforcement of private rights including notice and the right to a fair hearing
before a tribunal with a power to decide the case.
Ordinarily, once you have a physician, pharmacist, nurse’s
license, etc., LARA must accord you substantive due process, including a right
to a hearing before a tribunal, before
your licensed can be sanctioned. Details
and technicalities of hearing rights and duties are contained in the
Administrative Procedures Act—a collection of statutes.
There is one major exception called a “Summary Suspension”
of a license. In a nutshell, a health
professional Board can immediately suspend a health professional’s license when
there is an imminent danger to the public’s health, safety and welfare.
Imminent danger means an
immediate, real threat to the public safety.
Because there is a presumption that a licensee is entitled to
substantive due process before
sanctioning a license and because a suspension of a license is so damaging to
the licensee, the Constitution abhors summary suspension. Summary suspension should be narrowly
construed and rarely done.
An example of facts
justifying a summary suspension would be where a physician or a pharmacist is schizophrenic
and suffering acutely from delusions such that the licensee is incapable of
practicing his profession safely.
Another example would be where a pharmacy is dispensing adulterated or counterfeit
medications.
A summarily suspended
licensee has a right to petition for the dissolution of the summary suspension
and an expedited hearing. Here,
immediate and highly skilled intervention by an attorney is required.
At the Hearing for Dissolution, the sole issue
is whether there is an imminent threat to the public health, safety and
welfare.
Almost invariably, a
Complaint alleging a violation of the statutes and rules governing the
profession accompanies the Order of Summary Suspension. Thus, even if the Order of Summary Suspension
is dissolved at Hearing, there remain the issues of the primary Complaint. However, the client is rightfully relieved
when the Petition is successful because the licensee can practice their
profession while the Complaint is winding its way through the administrative
process. Great skill is often needed
to restore the summarily suspended licensee.
And sometimes the facts are such that the Order should continue.
An automatic
emergency action that results in a Summary Suspension is set forth in MCL
333.16233(5) which provides:
If a licensee or registrant is convicted
of a felony, or a misdemeanor punishable by imprisonment for a maximum term of
two years, or a misdemeanor involving the illegal delivery, possession or use
of a controlled substance, the department shall find that the public health,
safety or welfare requires emergency action and, in accordance with Section 92
of the Administrative Procedures Act of 1969, shall summarily suspend the
licensee’s license or the registrant’s registration.
Read the above paragraph
again carefully. One would think that only a very serious
misdemeanor would trigger a mandatory emergency action against a licensee. Note, a misdemeanor most often carries a
one-year term of imprisonment and a two-year term suggests serious criminal
activity. The little devil in the
details is the conviction no matter how trivial of a misdemeanor involving a
controlled substance. Marijuana is a
controlled substance. This leads to
unfortunate situations wherein what most people consider to be an insignificant
drug possession or use, would lead to the dramatic result of a summary suspension. Most health professionals would draw a large
distinction between heroin and marijuana—particularly where the marijuana use
is unrelated to the offender’s professional life.
An argument is made that
the licensee has violated a criminal statute.
Marijuana is still illegal and is still a controlled substance and
therefore license sanctions should follow.
One can still reach that objective without a summary suspension. There is time
for fact gathering and consideration of mitigating evidence. A strong argument in favor of summary suspension
regarding marijuana would be where the licensee practices while impaired
by marijuana. But the above argument is
moot because the statute reads as it does.
If an exception is to be made, it is up to the legislature.
