AZ DHS is putting your settlement agreement on the web
Recently, the Arizona Department of Health Services Bureau of Residential Licensing (“DHS”) has started including hyperlinks to the full text of Enforcement documents signed by Licensees on its Care Check website. This includes the Notice of Enforcement letter and Civil Penalties table that are generally mailed to a licensee after they receive an inspection report indicating that the matter has been referred to the Enforcement Team. Settlement Agreements executed following an Informal Settlement Conference are also available via hyperlink.
If a licensee receives an Enforcement Letter with a civil penalty assessed (via email), it can either: 1) initial and sign where indicated and return the letter to DHS according to instructions on page 1 of the packet, or 2) refuse to sign, and wait for a Notice of Civil Penalty to arrive via certified mail, which will also advise the licensee of its rights to appeal the penalty to the Office of Administrative Hearings and Appeals.
If the licensee signs the letter, a copy of it will be scanned and made available via hyperlink on the AZ Care Check website. This is a new practice. Perhaps the Department was receiving too many Public Records Requests? One potential outcome is that the Agency’s activity will be more open to public scrutiny. Another outcome will be that independent business owner’s decisions to avoid contesting DHS’ decisions and simply accept the penalty will be open to public scrutiny as well. DHS controls the wording of the “Department’s Concerns,” and “violations” indicated on these documents. And despite the language on the Enforcement Notification of Rights page, many licensees feel compelled to sign and return the Enforcement packet out of fear of what might happen if they do not comply with the instructions and highlighting showing them where to initial and sign.
If the licensee refuses to sign the Notice of Enforcement documentation and requests an Administrative Law Judge Hearing, they also have a right to request an Informal Settlement Conference with DHS in an attempt to resolve the alleged deficiencies. If the parties come to agreement as a result of the Settlement Conference, DHS will expect the licensee to sign a formal settlement agreement, and that document will then be scanned and posted in its entirety on the AZ Care Check site.
If the parties do not come to agreement at the Informal Settlement Conference and an Administrative Law Judge (“ALJ”) hearing is conducted, the licensee must either represent themselves or hire legal counsel to represent them. Because this is a judicial proceeding, a consultant or friend cannot represent the licensee at the ALJ hearing. That can result in expenses that exceed the amount of the penalty, making it a Catch-22 for the licensee to contest what they may feel is an unjust penalty.
Whether this new “hyperlink” publication practice amounts to: (a) a substantive policy in violation of the rulemaking requirements of the Arizona Administrative Procedure Act, or (b) simply an internal management action that does not directly or indirectly affect the due process rights of the licensee, such that it is excepted from rule-making requirements, is subject to interpretation. However, what is clear is that this is the practice currently being followed by DHS. So if you are a licensee and you receive a Notice of Enforcement, be aware that DHS will post it publicly if you sign it, although they won’t necessarily advise you of that.
Look for more weekly blog posts on topics of interest to Arizona Assisted Living and Behavioral Health operators. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions! Write to info@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.