Know Your Rights Before You Respond to State Board Investigations
Your license to practice is your most valuable possession. Yet many doctors expose their licenses to unnecessary risks by the way in which they respond to state board investigations and disciplinary complaints.
Posted in Risk Management on Monday, June 19, 2017
As a doctor, you have one single asset that is the key to your practice and your livelihood. It's not your office, your equipment, or your staff, but instead, it's a single piece of paper that hangs on your wall. That license represents your ability to practice a chosen profession. It was most difficult to acquire, but is often too easy to lose.
In virtually every state, the state licensing board has the ability to bring disciplinary sanctions against a doctor, based on as little as one simple consumer complaint. Sanctions range from censure and reprimand to fines, probation, suspension or even revocation of the doctor's license.
The Importance of an Unblemished License
Formal disciplinary action entered against a doctor often carries implications far beyond the immediate exposure to his or her license. For instance, a doctor placed on probation may not actually spend any time out of practice. But the record of this action is now public and able to be accessed by anyone seeking this information. However, if the doctor then testifies in a personal injury, workers' compensation or malpractice case, some attorney is going to ask, "Now doctor, isn't it true that you were placed on probation by the state board?"
Whenever that doctor applies for licensure in another state, the application form will inquire, "Has your license ever been subject to professional discipline?" That prior disciplinary action may be the grounds for denial of the license.
More importantly, in instances where the doctor holds licenses in more than one state, any disciplinary action in the first state may be grounds for entry of an Order of Professional Discipline in the other states, and since there has already been a finding of guilt, the secondary actions are difficult to defend. In addition, a disciplinary order entered against a doctor's license will likely cause problems with managed care contracts, hospital staff privileges and possibly the ability to obtain malpractice insurance.
In order to protect your license, you need to know how to best respond to a state board investigation or to a disciplinary action brought against your license.
The process generally begins with a complaint being filed, either by a consumer, another doctor, an insurance company, or in some cases the board itself. The first notice a doctor has is generally a letter of inquiry from the board or the appearance of an investigator at his door.
When the Investigator Shows Up Unexpectedly
The board investigator shows up, demands patient files and, "Just wants to ask you a few questions." All too often, doctors invite the investigator in, answer all of his questions and in the process hang themselves. The doctor wants to be cooperative. After all, if you have nothing to hide, what's the harm?
Answering questions without knowing what specific complaint has been made, and without the advice of counsel, can be very dangerous. That was the mistake made by a doctor who was confronted by a board investigator's inquiries about fraudulent billings. He wanted to be cooperative. The investigator asked who authorized certain billings and the doctor replied, "Well, I did, of course."
The board brought charges for fraudulent billings and the principle issue quickly became whether or not the doctor had actual knowledge of the billings, or whether they were simply clerical mistakes. At trial, he testified that since he had such a busy practice, he didn't actually review the bills, which were handled by his staff. The investigator, of course, testified that the doctor admitted authorizing the billings. The question then comes as to which statement is more credible; his admission to the investigator or his trial testimony given at a time when he was trying to clear his name. As a result, he was found guilty, placed on probation and ordered to reimburse the insurance carrier.
The investigator will usually request the patient's records. Assuming that the investigator has proper authorization, then you should provide the records in a timely fashion. Even a subpoena for records, however, does not entitle the investigator to immediate production. You have a reasonable time to respond (typically a week or two), and time to consult with your attorney.
What is proper authorization? Proper authorization, depending upon the state, generally means that the investigator has either a release of records signed by the patient or a valid subpoena for the records. Most states recognize a doctor-patient privilege and the unauthorized disclosure of patient records, even to an investigator for the state board is improper.
The records you produce should be in response to a specific request and should be limited to those that have been requested. Most state boards do not have the authority to conduct a wholesale investigation, demanding production of multiple patient records or random samplings.
A doctor should never release his only copies of patient records or X-rays. The exception is when law enforcement shows up with a search warrant which entitles them to immediately seize specific records. Search warrants are reserved for the most serious types of cases involving criminal misconduct. The best approach is to offer to have the records copied and forwarded promptly to the investigator with the originals retained in your office.
With respect to answering questions, the doctor has a right to consult with an attorney before answering any questions. The doctor, in some cases, may also have the right not to testify against himself based upon the Fifth Amendment's protection against self-incrimination. As a practical matter, it's extremely difficult to respond to questions until such time as you know the nature and substance of the complaint that has been made.
The investigator may well be on a fishing expedition, looking for a fish with his mouth wide open. If you don't know what the complaint is about, then you can't possibly know which questions are relevant, and which ones are not. Representation by a knowledgeable attorney is important even at this early stage, so you answer only questions which are relevant and properly phrased.
In most instances, the doctor is not legally required to answer an investigator's questions. Attorneys normally, however, will recommend cooperation with the investigation, but by using processes which allow them to better protect the doctor's interests. The ideal posture is to be able to respond, in writing, to specific questions based upon the complaint under investigation. The doctor should suggest that the investigator contact his attorney or that the investigator place his questions in writing whereupon written answers will be provided.
The response to the complaint or to written questions should be prepared after consultation with legal counsel. Generally, the response should come from the attorney and not from the doctor directly. Whereas the doctor's own statements may later be used against him, a response from the attorney is much less likely to be used as evidence against the doctor. The response in any event should not be made until such time as the nature of the complaint is known, the records have been completely reviewed, and the applicable statutes and board rules examined.
The investigator may sometimes attempt to interview your staff. You need to be extremely cautious when this happens. Don't tell your staff not to speak with the investigator. This could be an "obstruction of justice" and a separate charge. Your staff have the right to decide whether to speak to the investigator or not and the right to consult with an attorney before deciding to do so.
Responding to a Letter of Complaint From the Board
As an alternative to an investigator arriving at the office, some boards send a letter to the doctor requesting a response to the complaint being made. Again the doctor, wanting to be a good guy, is often his own worst enemy. Some doctors have even been known to confess a little wrong doing, but indicate that they have made changes in hopes of getting the board to leave them alone.
The confession of any wrongdoing may lead to disciplinary action because the doctor then leaves the board no choice. Once a board has definitive information proving a violation, the board has an obligation to take affirmative actions. Failing to do so, the board may be criticized for protecting doctors, instead of protecting the public.
Again, the best response is through your attorney, addressing the issues raised by the complaint after review of the appropriate records. A cardinal rule for giving testimony is: When you've answered the question, say no more. All too often, the doctor's response, attempting to explain the situation, volunteers unnecessary information, which leads to further inquiry and trouble for the doctor.
Conclusion
The most important document in any disciplinary proceeding is often the very first letter of response to a state board inquiry. If you receive a board complaint, you need to take it seriously, respond promptly and professionally, and consult with qualified counsel right away.
Here are the top suggestions from our law firm:
- Don't answer questions until you know the specifics of the complaint and that are not relevant to the inquiry.
- Don't produce confidential patient records without proper authorization or a valid subpoena.
- Respond promptly and professionally. Any response you make should be concise and carefully planned. Be careful not to raise issues which are not already in question.
- Don't alter records, give false testimony or attempt to interfere with the investigation. Any of these actions is likely to create even greater problems.
- Try to resolve the complaint at the earliest opportunity, but be prepared for a lengthy battle if necessary.
- Don't try to handle this on your own. You have a great deal at stake. Seek advice and assistance of NCMIC who will assign an attorney who is familiar with board complaints and administrative law and procedure.