Issue March/ April 2026 April 2026 By Joel Rosen
Health Law Section Review
When federal agents seized the phone records of a Cambridge brothel, they identified 34 men, including several doctors, who had calls. While a licensee’s private conduct has no bearing on the quality of their work, that doesn’t matter in most states if the conduct can be said to undermine public trust in the integrity of the profession. Any criminal conduct can be a basis for discipline by the Board of Registration in Medicine (“the BRM”).
Massachusetts requires doctors to report convictions to the BRM. The mere charge of a crime need only be reported when a license is being renewed. But other states, like Arizona, Maine and New Jersey, require doctors to report any charge of a crime contemporaneously. Boards appreciate candid self-reporting. The names of the implicated physicians had been in the papers, and the BRM would have found out about the doctors’ arraignments anyway. Every state where each doctor was registered dutifully opened a file. All those states had different regulations, and their licensing boards had different degrees of interest in the case. A couple quickly closed the file. Others, not so much.
With the growth of telehealth, doctors increasingly practice in many jurisdictions and find themselves defending multiple license prosecutions at the same time. Here are some practice tips.
1. Get Local Counsel
Every state’s regulatory scheme is a bit different, as is the culture of the licensing board. You can certainly direct your client to the regulations of each jurisdiction, particularly the reporting requirements, but there will also be administrative case law and subregulatory documents that you may not be aware of. You don’t know what you don’t know. Find a practitioner, in every state where you are not licensed, to advise the client and deal with the state’s board. You will be the primary client contact, and those lawyers should understand that you and the client will be making the important decisions. However, any time one of those lawyers communicates with you, the client should be copied and should be advised about what counsel discusses on the phone.
2. Peel Them Off
If your client’s infraction is minor and is not related to the practice of medicine, some boards may quickly close the file without any action. It’s doubtful, for example, that a state where prostitution is legal would be shocked at the conduct here. Keep in mind, however, that discipline imposed by any state will show up on the client’s record at the National Practitioner Data Bank. It will probably have to be reported-even to states that have already closed the file on your case -and may start the disciplinary process running again.
3. Ask Them To Defer
It may not be possible to forum-shop and get the administrative proceeding heard in a favorable state. But there will generally be one case that is moving faster than the others. You can ask the other states to defer until the first state’s proceedings are completed. Administrative efficiency should encourage boards not to waste resources redoing work that another state is already handling. You can argue -relying on analogous federal cases -that it is in everyone’s interest to avoid inconsistent results.
4. Consider The Effect On Insurance Programs
MassHealth excludes providers who have been convicted of “a crime of such a nature that, in the judgment of the MassHealth agency, the participation of such provider will compromise the integrity of MassHealth.” This regulation is subjective. It can be attacked on the grounds that it provides the agency with standardless discretion and is by definition arbitrary and capricious. Also, “a provider must never have been subject to any disciplinary action, sanction, or other limitation or restriction, including, but not limited to, suspension or revocation of a license.” A letter of reprimand, without more, potentially excludes providers. Worse, there is no administrative appeal route. You will have to challenge adverse decisions in a certiorari action.
Under federal regulations, providers are excluded from Medicare, Medicaid and other insurance programs if they have committed insurance fraud or patient abuse. The regulation permits the exclusion of anyone whose license was revoked or surrendered for reasons bearing on competence, professional performance or financial integrity. When the license is restored, the doctor must apply to have the exclusion terminated. It is not automatic. Private health insurance programs also may terminate providers who have been disciplined. (These programs can also terminate a provider who was the subject of an administrative complaint, even if the complaint was dismissed by the government agency.) You should explain this to the licensing board and argue that any discipline should not be considered a restriction on the doctor’s license.
5. What About The VA?
A doctor who is licensed in any state can work for the U.S. Department of Veterans Affairs in any other state. So even if a license is suspended in all but one state, the doctor can work for a VA hospital in his own state. Keep in mind, though, that the VA may take action against the doctor’s privileges based on any state’s discipline.
Joel Rosen is the founding partner of Rosen & Goyal PC. He represents medical professionals in licensure, malpractice, insurance, employment and real estate disputes.