This is the time to be the most proactive. The earlier you can prevent an investigation from going forward by responding to it intelligently and fully, the better. Once an Accusation or disciplinary charge is filed, it is difficult to unwind it. We find that often charges were filed because the professional did not adequately address the investigation at an early stage.
Each case is different and varies upon the facts. No one strategy works for each case. However, an experienced, objective attorney can help you prevent a complaint from turning into disciplinary charges by mitigating the problem.
One important piece of advice: do not simply produce the file and nothing else. Here are 7 things, among many, that can be done at this early stage:
1. Take the opportunity to ensure the board has full access to all relevant information that will help you.
2. If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case. Have an experienced administrative and licensing attorney or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary proceedings. Remember that everything you do is evidence.
3. If there is significant handwriting in the file, dictate the notes so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.
4. If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.
5. The board can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.
6. Do not alter, backdate, falsify or create any records unless such records are properly created and dated.
7. Once you hire an attorney, have him or her send a letter of representation so the board contacts the attorney and does not show up at your office for a surprise interview.
My licensing board is accusing me of misconduct. What should I do?
A governing board will often state that it is investigating suspected fraud, abuse or other misconduct, but not tell you specifically why. You need to find out the facts supporting the board's complaint or accusation. An experienced attorney can help you immeasurably with this process. Once the board is notified that you have hired an attorney, it is not permitted to contact you directly. The attorney can speak with the agency's investigators to learn the factual basis of the allegations. The attorney can then direct you to take specific steps to protect your license.
Why can't I (or shouldn't I) talk to the licensing board myself?
You do not need an attorney to communicate with your licensing board, but it is an excellent idea. An attorney can speak on your behalf and obtain information without making any admissions that might hurt you. Anything you say to a board, even though it may seem innocent, might be used against you later. In addition, it is difficult for you to be objective and create an intelligent and forward thinking strategy. Everything you say is evidence and investigators can catch you off guard before you are fully prepared and then later use those statements against you if you testify differently at a hearing or during a formal interview.
I already spoke to the licensing board. Is it too late to hire an attorney?
No. Licensing boards do not always act quickly. An attorney can help you find out what the board is intending to do. The attorney may be able to help you submit additional information or documents for the board to consider. The attorney may also be able to negotiate a settlement that would allow you to keep your license.
The licensing board has presented me with a proposed disciplinary order. Do I have to sign it?
No. You can reject it and try to negotiate other terms. If you and the licensing board cannot agree on terms, the board will likely bring formal disciplinary proceedings.
Having an attorney advise you is important. Attorneys who specialize in administrative law understand both the board's concerns and the nature of your profession. This insight often enables them to negotiate settlements that satisfy the board's need for oversight as well as your need to maintain profitability.
A settlement enables you to avoid formal disciplinary proceedings. When a settlement is not possible, you want representation by an attorney who is familiar with procedural rules as well as the laws and regulations governing your profession.
I have an administrative hearing scheduled before a licensing board or regulatory agency. Do I need an attorney?
You are not required to have legal counsel, but it is an excellent idea. The agency will be represented by an attorney and, in fact, you will be at a disadvantage without one.
Many procedural and evidentiary rules must be followed in presenting a defense. Even if you feel you have a good defense, you might not be permitted to present it if you don't follow the rules. An attorney who specializes in administrative proceedings will be able to present your defense in the proper manner.
I have been charged with or convicted of a crime. Will this affect my license?
There is a BIG difference between being charged and being convicted. If you are arrested and the case is dismissed due to lack of evidence, it is less likely to affect your license. If you are convicted of a crime, it will depend on the type of charge, how long ago it was and other factors. Your rehabilitation will also be a factor.
Many regulatory agencies require that you report a criminal charge or conviction, even if it seems unrelated to your practice. Certain charges or convictions may result in the suspension or revocation of your license. This is one reason why it is critical to coordinate any criminal defense with an attorney specializing in administrative law and board defense at the earliest possible stage.
An attorney specializing in administrative law will help you determine the reporting requirements relevant to your profession. If reporting is required, the attorney will help you present the facts in the best light possible. If you fail to report, this can be considered unprofessional conduct and can be used against you later. Honesty is the hallmark of professionalism and a subsequent dishonesty (or even lack of forthrightness) while you are defending your criminal charge can harm your professional license. If you have negative facts in your criminal case, you can win your criminal case and still face discipline from your board in many circumstances. We advise a global strategy that looks forward to the next several years and includes all criminal, civil, and administrative consequences.
Can I apply for a license if I have a criminal record?
Yes, you can. The factors will be the nature of the charge, how long ago the conviction was and the proof of your rehabilitation which we help establish with records, letters and other documentary proof.
An attorney skilled in licensing law can help you submit evidence of your character and rehabilitation, so as to present your application in the best light possible. In short, you will need to have a thorough application, numerous support letters, and significant documentation to explain the charges and why you have changed and what you have done to warrant you being granted a professional license. It helps to have an objective attorney who can help you build the best administrative record possible.
I want to avoid problems with my licensing board. How can I make sure I operate my business in compliance with the law?
Many professionals retain a law firm to review their business structure and office policies to ensure they are in compliance with the laws and regulations governing their business. An attorney skilled in administrative law will have knowledge of the common pitfalls for your particular business and can show you where your practice might be vulnerable to administrative scrutiny. The attorney can assist in educating your staff about the law relevant to your practice through in-office presentations or the preparation of formal office policy and procedure handbooks. It is also common for professionals to retain a law firm on an ongoing basis for a monthly fee to have access to an attorney to questions as they arise.
Posted by Tracy Green, Esq.
Any questions or comments should be directed to tgreen@greenassoc.com.
Tracy Green is a principal at Green and Associates and they focus their practice on the representation of professionals, particularly health care professionals including individual physicians, corporate providers and group practices. Green and Associates' website is: http://www.greenassoc.com/
