Negotiating Consent Order Settlements

Board Policy 

Re: Negotiation of and Execution of Documents Which Resolve Complaints

September 3, 2024

After the Investigative Committee has met with the optometrist who is the subject of the investigation (and with his/her attorney if the optometrist retains an attorney), whether in a pre-hearing conference or otherwise, to discuss the allegations and the optometrist’s response to those allegations, the Committee will decide on the appropriate resolution of the matter. If the Committee determines that no probable cause exists to continue the investigation or otherwise determines that no action need be taken against the optometrist, the Board Executive Director or the Board attorney will promptly inform the licensee (or any attorney representing the licensee) in writing of such determination. 

If the Committee determines that further action is indicated, the Board attorney will then promptly communicate to the optometrist or his/her attorney the terms of the proposed resolution that it is willing to recommend to the Board for approval. Absent good cause, the Board attorney will inform the optometrist or his/her attorney of the general terms of the proposed resolution within 5 business days of the Committee making such determination.  

In determining the terms of such proposed resolution, the Committee will consider among other things the nature and extent of the issue or violation; what the patient records and any other relevant documentation shows and does not show; any extenuating circumstances; any prior matters with similar legal and/or factual issues (i.e., “precedent”); and what the Committee thinks the Board likely would impose as discipline after a full disciplinary hearing. The Committee’s presumption is that any proposed quasi-disciplinary measure (e.g., private or public reprimands or letters of concern) or disciplinary measure (e.g., suspension, probation, revocation) is not a starting place for negotiation, but rather should be considered the Committee’s considered determination of the appropriate action for approval by the Board and not subject to negotiation.  However, terms of the proposed resolution other than discipline can be negotiated.

Recent disciplinary investigations have involved long (and in the opinion of the Investigative Committee members involved, perhaps much too long) periods of negotiation after the terms of the proposed resolution or a proposed consent order has been presented to the licensee or the licensee’s attorney.  Hereafter, each Investigative Committee will consider that a clock starts when the Investigative Committee sends the parties involved in the investigation both written notice of the general terms of the proposed resolution and a proposed draft consent order. Absent good cause, any negotiations regarding the general terms of the proposed resolution must be concluded within 10 business days from the receipt of those terms by the optometrist or any retained attorney. Assuming the optometrist indicates agreement upon such terms, any negotiations regarding the final and specific terms of the proposed formal consent order must be completed within 15 business days of the receipt of the proposed consent order by the optometrist or any retained attorney. Absent good cause, if the consent order has not been executed by the optometrist at the conclusion of the 15 day period, Board counsel shall withdraw the offer of the proposed consent order and the Board will promptly issue notice of a disciplinary hearing.

G. S. 90-121(a2) provides that the Board may require a licensee to reimburse the Board for “disciplinary costs.” The Board attorney will track his fees and expenses associated with any disciplinary matter from the initial investigation through the conclusion of the matter.  If the matter results in any action other than a dismissal of the investigation, the fees and expenses incurred by the Board attorney and any expenses attributable directly to the disciplinary matter incurred by the Board (including but not limited to per diem for the Board member serving on the investigative committee for the matter, fees for service of process, fees for investigators, consultants, and expert witnesses, and fees and expenses incurred in discovery or in connection with a hearing) and such fees and expenses in the discretion of the Board shall be assessed against the licensee for reimbursement under the terms of any letter of concern, letter of reprimand, order, or other document by which the investigation is concluded. 

Should negotiating a settlement, relative to the settlements listed above, get bogged down or become contentious, the Investigative Committee can decide to file a “notice of a hearing” which can in itself move the negotiations along. 

Any deviation to this policy must be based on good cause and agreed to by all members of the Investigative Committee.