When someone’s license is the subject of a Consumer Complaint filed with the Office of the Indiana Attorney General (“OAG”), his/her legal counsel will have the opportunity to file a written Response.  They may then be left waiting for several months before the OAG issues its final decision.  This article explains the OAG internal processes and continuing investigation which cause that delay. 

There are several licensing sections within the OAG.  Depending on which section is charged with investigating a Consumer Complaint filed against a professional’s license, the Response may be directly reviewed by a Deputy Attorney General (“DAG”) or by a non-attorney case analyst.  The DAG or case analyst must review all documents provided by the Complainant, all allegations in the Consumer Complaint, and all documents and information contained in the Response.  

The DAG or case analyst may also request records or other documentation from your office or other related professionals.  (Be sure to forward any requests for documents or information to legal counsel to review and assist in responding.)  Any request for records, including most medical records, must be made by administrative subpoena.  A request for mental health records must come in the form of a signed Consent to Release of Mental Health and Addiction Records (Indiana State Form 51128).  Because the investigation of a Consumer Complaint is not considered litigation, the case analyst or DAG may attempt to directly contact the subject of the investigation with questions or requests for documents.  Should this happen, it is recommended that the subject advise the case analyst or DAG to direct the communication directly to counsel.

Following review of the Consumer Complaint, Response, and all records, the case analyst or DAG will make a recommendation that the Consumer Complaint be: (1) closed without warning; (2) closed with a warning; or (3) charged as an Administrative Complaint before the State Board regulating the license to practice.  If the case has been investigated by a case analyst, that analyst will transfer the file to a DAG with written recommendations for review and approval.  After the DAG has investigated the case, or approved/revised the case analyst’s recommendations, the DAG will transfer the file to a Supervising Deputy Attorney General (“SDAG”) for final internal review and approval. After the recommendation is accepted by the SDAG, a summary of the claims and defenses are provided to a liaison member of the State Board regulating the license for final approval of the recommended action.  The applicable Board liaison then reviews the summary and issues an opinion agreeing or disagreeing with the OAG recommendations.  The OAG is not bound to follow the Board liaison position, but the OAG rarely chooses to file an Administrative Complaint over the objection of a Board liaison.

Due to the backlog of Consumer Complaints outstanding with the OAG at any time, it may take several months to over a year after a Response is received for the Consumer Complaint to arrive at a final disposition.  Typically, there are no updates from the OAG as this process unfolds, unless the case analyst or DAG requests additional information or documentation.  Legal counsel may periodically request status updates.  

Notice of final case disposition is made by mail via a case closure letter or service of an Administrative Complaint.  Be sure to provide copies of any correspondence from the OAG, the Indiana Professional Licensing Agency, or the State Board regulating the license to counsel.  Even if counsel has provided the OAG with a letter of representation or the Response, a case closure letter or Administrative Complaint is nevertheless served directly on the subject party and may not be received by counsel.

Finally, keep the Consumer Complaint in mind during a subsequent license renewal.  Several licensing boards require licensees to report any complaint made against the licensee on the renewal application.  Failure to report a Consumer Complaint could result in an Administrative Complaint based on licensure fraud.  

© Riley Bennett Egloff LLP

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Posted Sept. 17, 2018