When a professional licensing board offers a practitioner a consent order, the first question is often whether to accept the discipline or contest the case. This is rarely the most useful inquiry. Counsel should instead determine whether the matter can be resolved on terms that protect the public, satisfy the board, and reduce the professional and collateral consequences for the practitioner.
Negotiating a consent order is often less about “winning” or “losing” and more about identifying the client’s true objectives, understanding what the licensing board needs to resolve the matter, and negotiating terms that are sufficiently protective of the public without unnecessarily restricting the practitioner’s ability to practice.
One important consideration is whether the licensing board’s consent order has unintended consequences. Restrictions on a license can affect clinical privileges, employment, credentialing, payer enrollment, NPDB reporting obligations, licensure in other jurisdictions, and eligibility to hold a compact license.
Start With the End in Mind
A consent order is not simply an alternative to a formal disciplinary hearing. It is a binding disposition of a professional licensing matter, and its language may follow the practitioner for years. Before initiating consent order negotiations, counsel should identify the provider’s objectives. Those may include: avoiding suspension or revocation, maintaining an unrestricted license, limiting the duration of probation or other restrictions, avoiding restrictions that interfere with the practitioner's specialty or practice setting, protecting employment or medical staff privileges, minimizing reporting consequences, avoiding unnecessary findings or admissions, limiting continuing education or remediation requirements, establishing a clear path to termination of probation, preserving the ability to obtain or maintain licensure in other jurisdictions, or to maintain eligibility for compact licensure. All consequences should be considered before the agreement is signed.
Don’t Negotiate the Penalty Before Understanding the Case
The strongest negotiating position begins with a careful assessment of the underlying allegations. Counsel should ask: Even if the allegations are accepted as true, has the practitioner actually violated the board’s statutes or rules? This analysis determines the negotiating posture. If the evidence does not establish a violation, counsel may have a basis to seek dismissal or decline a proposed consent order all together.
If the evidence establishes a violation but there are mitigating circumstances, the negotiation should focus on reducing the severity and duration of discipline.
On the other hand, if the underlying conduct is difficult to defend, the negotiation may instead focus on obtaining a predictable and manageable resolution.
Counsel should fully understand the facts, the rules and regulations allegedly violated, and the board’s evidence before negotiating what discipline is appropriate.
Understand the Board’s Role and Underlying Mission
Negotiating with a licensing board is different from negotiating a private dispute. The board’s statutory charge is to protect the public. Depending on the circumstances, public protection may be satisfied by evidence of remediation, continuing education, monitoring, submission to a professional evaluation and/or competency assessment, restrictions designed to address the underlying risk, or a period of demonstrated compliance.
Once counsel for the licensee fully understands the board’s concern, the negotiation becomes more productive. Instead of arguing only that the proposed discipline is too harsh, counsel can propose an alternative that addresses the board’s public protection concerns with fewer unnecessary or punitive consequences for the practitioner.
Keep in mind that nearly every part of a proposed consent order may be negotiable, including the findings of fact, NPDB reporting code and narrative, cited rule or statutory violations, fines, and sanctions. A proposed order may include factual findings that exceed what is necessary to resolve the complaint. Counsel should review each finding and determine whether it is needed to support the negotiated discipline. If not, counsel may be able to negotiate narrower, softer language that is more acceptable to the provider.
A common mistake in consent order negotiations is focusing only on the penalty. The factual findings and legal conclusions can be just as troubling, if not more so, for the provider. Counsel should carefully review every section of the consent order to negotiate a complete, accurate, and narrowly tailored agreement. Whenever possible, a well-negotiated consent order should include objective, achievable conditions with a clearly defined endpoint.
Practice Restrictions Require Special Attention
Licensing board restrictions can directly conflict with hospital credentialing and privileging requirements. Restrictions that appear narrow in a board order may have much broader practical effects. Counsel should consider whether the proposed language could affect the practitioner’s specialty, procedures, prescribing authority, supervision requirements, call responsibilities, telehealth services, practice locations, facility privileges, or ability to satisfy medical staff bylaws and credentialing criteria.
Before accepting a restriction, counsel should consider: What, exactly, will the practitioner be unable to do on Monday morning after the order takes effect? If the answer is unclear, the language should be negotiated further. Counsel should also discuss any restrictions, supervision obligations, or employer-reporting requirements with the practitioner’s employer to confirm that all conditions in the consent order can be satisfied.
A consent order can provide an effective resolution, but it can also carry costly unintended consequences. Counsel’s goal is not merely to reduce the discipline imposed; it is to negotiate the right resolution.
