In South Carolina, certain occupations are regulated by professional and occupational licensing boards. These boards are in turn regulated by the South Carolina Department of Labor Licensing and Regulation (LLR). When complaints are made against doctors, contractors, and other licensed professionals for failing to comply with licensing requirements and standards, LLR investigators are called in to assess whether the claim is substantiated and if so, whether discipline is warranted. LLR investigations and subsequent disciplinary hearings can have serious repercussions for licensed professionals, so if you are being investigated, it is important to retain the services of an experienced professional license defense attorney who can protect your interests and your license.
The LLR regulates over forty different licensing boards, including those that oversee the following types of professionals:
- Medical doctors and nurses;
- Engineers and surveyors;
- Real estate agents;
- Accountants; and
Filing a Complaint
The process of filing of a complaint can be initiated by the following individuals:
- Clients and customers;
- Spouses; and
- Patients and their family members.
Complaints are usually one of two types:
- Complaints against unlicensed individuals; and
- Allegations of misconduct.
Complaints against someone practicing without a license are handled by LLR administrative staff. In the event that the firm or individual is in fact qualified to be licensed, he or she may submit an application. However, he or she will also be required to sign an agreement admitting to unlicensed practice and pay a fine. When the practicing individual or firm is not qualified, he or she is issued an Order to Cease and Desist, which is posted on the Board’s website.
Allegations of Misconduct
If a complaint is based on an allegation of misconduct, the Office of Investigations and Enforcement assigns it to a complaint analyst who then reviews the claims to determine whether a violation of the board’s standards took place.
The most common complaints include allegations of malpractice or incompetence. However, complaints differ depending on the type of service that the professional offers and may also include claims of:
- Negligence or a failure to exercise due care;
- Failure to comply with minimal standards;
- Substance abuse;
- Mental or physical inability;
- Unethical business practices;
- Fraudulent activity;
- Violation of confidentiality;
- Alteration or destruction of medical records; and
- Unlawful administration of drugs.
LLR hearings can also be the result of federal and misdemeanor criminal charges, such as fraud, embezzlement, or drug and alcohol abuse.
If the analyst determines that a complainant does not have a reasonable basis for the allegation, the case is considered closed. However, if the analyst does believe that there is an objective basis for the complaint, the case is transferred to a chief investigator who is charged with reviewing the complaint, determining the important issues, and assigning the case to an investigator.
At this point, both the complainant and the respondent who is accused of misconduct are notified that the case was assigned to an investigator and the respondent is given the opportunity to file a response to the complaint. It is important to obtain the advice of an experienced attorney before filing a response or speaking with an investigator, as either action could influence the outcome of the proceedings.
During his or her investigation, the LLR investigator is permitted to:
- Subpoena witnesses;
- Compel witness attendance; and
- Collect evidence.
Investigators can also require the production of any matter relevant to the investigation, including the existence, description, nature, custody, condition, or location of any of the following:
- Other tangible items; and
- The identity and location of persons deemed to have knowledge of relevant facts or any other matter that could reasonably lead to the discovery of material evidence.
If someone fails to obey a subpoena or answer an investigator’s questions, the investigator is permitted to submit an application to an administrative law judge (ALJ) for an order requiring the person to cooperate.
Internal Review Committee
Investigations can take anywhere from 60 to 180 days to complete and once the investigator has finished gathering evidence and has conducted all necessary interviews, he or she presents the results to an Internal Review Committee (IRC). After receiving the case, the IRC reviews all of the compiled evidence and makes a determination as to whether sufficient evidence of a regulatory violation exists to justify undertaking formal proceedings.
The IRC’s recommendation is then presented to the licensing board, which approves or declines formal action. If approved, the case is forwarded to the Office of Disciplinary Counsel (ODC).
Office of Disciplinary Counsel
At this point, the ODC can respond in one of a number of different ways, including the following:
- The ODC can draft a Consent Agreement (CA), which sets out the agreed facts and sanctions that have been authorized in similar cases. The CA is then presented to the respondent for approval. If the respondent signs and accepts the document, he or she will be required to submit to the terms of the agreement, but won’t be required to attend a hearing.
- Alternatively, the ODC may draft a Memorandum of Agreement (MOA), which also sets out the agreed upon facts and violations, but gives the board the discretion to impose sanctions as it deems appropriate. If the respondent approves the document, he or she must attend a meeting in order to accept sanctions.
- The ODC may choose to draft and serve a formal complaint, after which it prepares, schedules, and conducts a disciplinary hearing. Respondents are given 30 days notice, although this right can be waived if witnesses are available at an earlier date.
Disciplinary hearings are brought by the state and are similar in structure to trials with witnesses testifying under oath. The respondent is permitted to cross-examine the state’s witnesses and can call witnesses of his or her own to offer exculpatory testimony. After all of the evidence has been heard, rulings and sanctions are ordered by:
- The full board;
- A panel of practitioners; or
- A hearing officer.
The consequences of a LLR investigation and subsequent disciplinary hearing can be severe and include:
- A public reprimand;
- Suspension; and
- Revocation of the license.
False allegations of misconduct or neglect can have devastating consequences for a licensed professional, so if you have been accused of malpractice or neglect, it is important to have the advice of an attorney during the entire process, from investigation to disciplinary hearing. Please contact The Michael Jeffcoat Firm by submitting one of our contact forms and a member of our dedicated professional license defense legal team in Lexington and Columbia will help you schedule a free consultation.