How Underground Regulations Affect Doctors

Physicians increasingly face medical board investigation for practices that make medical sense to the doctor but which are outside the accepted norm for the medical community. Obvious examples are off label prescriptions, unusual autism treatments and alternative medical treatments.

Less obvious examples are pain management protocols which are notorious for being subjective and variable; unwritten record keeping rules; referrals to outside entities (and back from them); treatment based upon less than full scientific evidence but not quackery and in house physicial therapy, pharmaceutical compounding and other profitable business practices.

. There are written rule which govern this conduct but also a body of generally accepted norms, some of which are evidence based but many of are political and driven by politics more than medicine.

The Medical Board Cannot Have Secret Regulations

The medical board is a state agency. State agencies, are required to adopt regulations through a public hearing process established in the Administrative Procedure Act (APA).

The definition of a regulation is defined in Government Code section 11342.600:

“Regulation means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.”

Hidden under the guise of community standards, standard of care and the expertise of a medical board expert, rules which are secret regulations are often enforced. This is illegal. If you can prove that the state agency used a rule against you when that rule was off the books and established without following the APA, the rule is called an “underground regulation.” State agencies are prohibited from enforcing underground regulations.

Key to most regulations is a public comment period, written submissions by the public and public debate followed by a vote. This ensures some modicum of public notice although in many cases the public input is not given much attention.

Using the “Underground Regulation” rule for Physician Defense

As part of a Medical Board Accusation defense we look at whether the basis for the Accusation includes the application of an underground regulation. If we believe that the board has acted based upon an alleged underground regulation, we can file a petition with the Office of Administrative Law (OAL) to invalidate the Accusation.

This challenge is part of a program that is called the “Chapter Two Unit,” or “CTU,” because OAL’s regulations regarding underground regulations are found in California Code of Regulations, title 1, chapter 2. However, this is not the end of the process. The same objection can be raised before an Administrative Law judge in your case and a denial of OAL petition can be challenged by writ in the Superior Court.

The review process itself is described by the OAL on their website. In overview, here is what happens.

Does the rule constitute a “regulation”. They ask whether this rule is a standard generally applied so that all practitioners are affected. Next they look at the purpose of the rule. Is the rule an interpretation or application a law or obligation administered by the agency ? If both answers are “yes”, the rule appears to be a regulation. They then look to see if a statutory exception exists to adherence with the APA rules (See: (Government Code section 11346), or if a sufficient hearing process took place so that the APA is satisfied. If neither applies the next question is whether this is just a modification of an existing regulation or something truly new. If it is a new area or a substantial modification, you may prevail at the OAH level. Your best chance of prevailing is at the court level.

Let our physicianl lawyer Dr. Mark Ravis and our trial lawyers including the legendary Daniel Horowitz, provide the most sophisticated defense available to you.

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