Receiving a board complaint will certainly ruin your day, but it will also be a cloud over your practice for months to come.
Posted in Risk Management on Wednesday, May 11, 2022
In most states, a disciplinary action will be a mark on your professional record for your practice lifetime. Complaints are not public, but disciplinary action by the board will be, affecting your online presence and your ability to be credentialed with insurance companies or obtain insurance for your practice. A significant violation could destroy your reputation and even result in license suspension or revocation.
Some of the most common complaints before the licensing boards include:
- Misleading or deceptive advertising
- Practicing and/or advertising outside the scope of practice
- Sexual misconduct
- Failing to practice within the Standard of Care
- Record keeping violations
- Failing to renew license timely
- Practicing without a valid license
- Failing to timely respond to a record request
- Failing to report criminal convictions/deferred adjudications
- Failing to report an address change
- Not distinguishing health care providers inside a multi-disciplinary practice
- Using testimonials without proper authorization
- Failing to timely respond to board complaints.
The Good, the Bad and The Ugly
Producing Patient Records
By far, one of the most common violations is failing to produce records timely upon patient request. Once you receive authorization from the patient to produce records, you have a certain number of days to comply with the request. Remember, production of records is typically regulated by board rules and HIPAA. Not producing your records can result in disciplinary action with fines from the board, but also a HIPAA investigation and sanctions.
While you may charge a fee for a copy of your records, you may not withhold the records for the nonpayment of a bill. Instruct your staff to inform you when records have been requested. Too often the staff does not respond to the request, without your knowledge, but it is your license that will be disciplined.
Another common violation is not renewing your license on time. It is not just a late fee on a license renewal. It is practicing chiropractic without a license. Insurance carriers monitor board violations and can request refunds of services paid to you when your license was not valid. Keep your continuing education current. It is not a badge of honor to always be behind in your CE. It can ultimately result in revocation of your license.
Unsanitary and Unsafe Office Violations
Unsanitary and unsafe office violations have taken on a whole new meaning during a pandemic. Patients are watching more carefully when/if you wipe down tables and equipment, as well as whether you wear a mask. Understand that some patients are hypersensitive to concerns about Covid.
In the past few years complaints of sexual misconduct have increased significantly. Sexual-based complaints—real or imagined—are the fastest growing complaint nationwide. A large percentage of these complaints are consensual relationships, but consent is not a defense to the rule prohibiting an intimate relationship with a patient. Many states have statutes which make intimate relationships between health care providers and patients a violation of criminal statutes. Everything might be great with your long-term relationship until you break up and start dating someone else, until the board complaint is filed and your license is in jeopardy. The times that you warned the patient that this was “against” the rules does not help the violation. The patient being the aggressor might mitigate the punishment but is not a defense.
The degree of sexual misconduct complaints vary significantly and range from intentional sexual assault, to palpating areas that the patient interprets as sexual but are textbook, side posture adjustments where the doctor “allegedly” has an erection and placing fingers inside underwear and the patient’s vagina, etc. Some recent complaints have come from patients in a prone position. When asked to turn over to their back, they’re tapped on the hip or bottom. Many doctors were taught this technique in school and have done it for years, but patients are saying it is sexual impropriety.
In these cases, it is important to communicate with patients about examinations and treatments. Over explain what you are doing and why. Ask patients if they are uncomfortable or if they want someone in the treatment room with them. Common sense still applies.
There are also a growing number of board complaints which arise from multi-disciplinary practices. Even when the proper formation documents have been drafted and filed with the Secretary of State, you must still distinguish which services are provided by which providers.
Websites, Social Media and Advertising
Websites and other social media are often carelessly drafted so that it appears it is the chiropractor who is performing the out-of-scope services. All advertising and biographical information needs to be very clear about who is providing what services. A web designer might not be aware of your state’s advertising rules, so the doctor is responsible. Most of the complaints can be prevented by proper wording on advertising.
Practicing Outside Your Scope of Practice
You may not order or direct services which are outside your scope. If your state scope of practice prohibits injections or prescriptions, it is a violation to order or instruct a nurse practitioner or other medical personnel to do the injection or prescribe a drug. For instance, you may not tell the medical staff that the patient needs 1cc of lidocaine in the shoulder or a Medrol Dosepak. This is practicing outside your scope of practice even when the medical provider ultimately provides the service.
Advertising violations can also include deceptive or misleading information, as well as superiority advertising. Be familiar with your board rules about advertising. Business cards, flyers, social media, as well as your website are all considered advertising and all rules apply.
What to Do If You Receive a Board Complaint
With the surge in board complaints, it is more important than ever to know the rules and practice within them, but if a complaint is received, contact your malpractice insurance carrier immediately. They are ready to guide and provide you with experienced legal counsel to represent you during the board process, if such coverage applies. You should never address a board complaint without consulting with an attorney.
Over the years, I have heard doctors say, “If I hire an attorney, they will think I am guilty.” I recently asked Texas’ director of compliance her thoughts and she said it was, “the smart thing to do.”
Keep in mind that your initial response is important and paying attention to facts and details is key. Your response should be thorough, factual and objective. It should not contain sarcasm, personal gripes or unprofessional comments. Your response should not violate other rules.
There will be a specific deadline for a response. Not answering in a timely fashion will be another violation of the rules. Most boards will provide extensions if asked. Confirm an extension in writing. If the complaint letter from the licensing board is vague, your attorney can obtain additional information from board investigators.
If the board allows you to appear for an informal conference to discuss the allegations, always appear with legal counsel. While these are “informal” conferences, you will need the guidance an attorney can provide during this process. These conferences are often helpful to both sides in resolving the complaint in a productive manner. A professional attitude and presentation is always a must when appearing in front of board members. More formal proceedings may become necessary and could result in a more trial-like proceeding.
How to Avoid a Board Complaint
- Know and understand the rules. Read them periodically for updates.
- If your licensing board puts out a periodic newsletter, read it thoroughly. Review the board’s website for recent disciplinary actions to see what the hot topics are in your state.
- Attend quality continuing education on ethics and risk management.
- Communicate with your patients.
- Audit your own practice’s record keeping and billing to make sure you and your staff are complying with the rules.
- Have staff meetings to discuss board rules and expectations. Remember the buck stops with you. If a staff member is violating rules, you are the one with the license which will be sanctioned.
About the Author
Michele Quattlebaum has been a shareholder and attorney with Sprott Newsom Quattlebaum Messenger since 2012, focusing her practice on personal injury litigation defense. She has worked in the legal industry for over 40 years and has trial experience in all areas of personal injury and products liability, including chiropractic. She has tried more than 100 cases to verdict and routinely consults with professionals on risk management and employment matters, as well as representing professionals before their respective board of examiners. She was awarded a Doctor of Chiropractic Humanities, Honorary, by Texas Chiropractic College, in Pasadena, Texas.