Sunday, February 12, 2012

What NOT To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office - Part 2

This is the second in a series. The first article is entitled "What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1." Read Part 1 and then read this article for greater detail on what NOT to do when there is a government or board investigator asking to interview you, requesting records or when you find out that there is a pending investigation. I'm giving you my experience but remember that this is not a substitute for seeking your own legal advice but can help you understand the process. 

Rule #1: Do NOT take a board investigation lightly but at the same time do NOT panic. You have worked hard to get your license and most probably, your livelihood depends on your practice. Regardless of what you think the merit of the complaint, take it seriously and remember their job is to protect the public, and they can put you on probation, impose discipline on your license, fine you, etc. The board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public. Have your attorney respond respectfully and professionally.
However, at the same time, everybody who has been in a profession long enough is going to be investigated. Talk to some people who have been through this before to get a healthy perspective. In other words, take it seriously but do not panic so that you make stupid mistakes. I have had too many cases where the client handled the board investigator interactions on their own for months and once they made numerous missteps, I was brought in to fix their mistakes.

Rule #2: Do NOT respond to a letter from the board unless you have consulted with an attorney. Even better, have the attorney respond to the board rather than you.

For example, I represented a Board certified Internist who was treating a patient covered by workers’ compensation insurance for high blood pressure only. The patient had numerous other health issues that were not addressed in the records. The doctor got her advice from other physicians and responded without realizing that her files were poorly documented, failed to show referrals to other specialists and failed to address the gaping problems with treating a patient in the workers’ compensation system who is not covered by any other insurance. I was brought in when the board decided to bring her in for an interview with a medical expert and a Deputy Attorney General. The board investigator was getting ready to recommend filing an Accusation. We became prepared for the meeting by having the doctor sign up for a medical record keeping class, sending a detailed letter addressing the issues in the workers’ compensation system where there was only authority to treat for one condition and how the doctor had changed her policies and procedures to handle documentation of referrals better in the future. Armed with these documents, the interview went well and once the doctor completed the PACE record keeping class, the case was closed. 

Everything you say is “evidence” or an “admission” and can be used against you in a Board proceeding or hearing. Having your attorney proffer this information is a way of getting around this. In some cases, the Board will specifically request that the letter come from you.  Supplemental information, however, can be submitted by the attorney.

One of my sayings is that the person with the biggest stack of papers wins. I like to show the Board that my client is professional and even if things were not handled perfectly, we have done everything to ensure that such an error will not happen in the future and therefore no discipline is needed. The Board gets my client’s CV, recent related continuing education certificates, letters of support, declarations under oath, expert witness report (if needed), etc. Every case is different and we are only limited by our imagination and creativity in finding ways to prove our case. 

Rule #3: Do NOT turn any material or records over to the board without getting legal advice first. While the board is likely to have a right to review the case material related to an investigation, the rules of evidence are quite complex and, at times, confusing. It is best if you let you attorney advise you about what to turn over to the board according to your state law. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended by the board. In addition, you want to ensure that all privacy rights of any patients or clients are protected.

There are cases where auditors or certain inspectors (such as OSHA) are entitled to show up unannounced and request records. In those cases, contact an attorney so you make sure your rights are protected. There are ways to provide records without being interviewed until you have time to determine the status of the investigation and the nature of the complaint.  In addition, you want to ensure that you have a complete record of what has been produced.

Rule #4: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you a clean license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the complaint or accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. 

Most professionals do not know their rights or worry about looking "guilty" if they ask for an attorney and the truth of the matter is that they need an attorney to advise them.
In addition, if I as your lawyer tell the investigator what an amazing professional you are and give examples of what a good person you are, it is advocacy. If you say it, however, it is arrogance. Investigators generally cannot stand arrogance.

Rule #5: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. It is common here in California for the investigator to show up without an advance appointment. Even if the investigator seems friendly, neither talk to them about the case nor release any records without legal representation. The nicer they are, they more you need to be wary since that is an investigative technique commonly used. The best investigators are like used car salesmen, they will come in your office, act chatty, put the feet up on your desk and hope you will say everything before you have had a chance to think about the case, review the records or speak to an attorney.

If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your business attorney will contact them soon. Chatting "informally" with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. Remember that you do not have a witness and you are not as well prepared as they are since they have been investigating the case. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation and you should exercise it in a respectful way.

Rule #6: Do NOT assume that lack of harm to client or patient will end the board inquiry. You must understand that boards often focus on whether you violated any state laws or administrative or professional binding guidelines rather than whether your client was harmed by you or whether there was malpractice. While the element of damages is an essential element in a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed.

Rule #7: Do NOT be in a hurry. Often I have clients that want to get the investigation over so quickly that they insist on meeting the investigator and making assumptions about it too quickly.  I have had clients try to insist that I send letters before I have received a response from the State about any complaints – and later when we receive a letter about the nature of the complaint (in California under Bus. and Prof. Code Section 800(c)) they are glad I made them wait.  In most cases, time is your friend and use the time to help build your case and show the Board the facts. You want to meet deadlines but do not rush and make simple mistakes.

For example, when I say “don’t be in a hurry,” I also mean don’t be in a hurry in making decisions without legal counsel. One of my clients was visited by the DEA and was asked to surrender his DEA license. He was afraid and thought it would help an investigation go away, so he surrendered it and that caused a Medical Board investigation to be opened.

Rule #8: If you speak to investigators, do NOT lie or shade the truth. If you cannot tell the truth, do not speak. It is often a crime to lie to a federal or state agent.
For example, I had a client who ran a billing company charged with a federal felony of obstructing a federal audit which related to the audit of his client. Naturally, he did not consult an attorney before meeting with investigators from the Office of Inspector General (OIG) several times. 

Rule #9: If you are told that you have the “right to remain silent,” do not speak to investigators. This means that there is a criminal investigation. This is the time to exercise your constitutional right to the 5th Amendment until you meet with an attorney.

Example, I had a client who was being investigated for dispensing IUDs that were from Canada and were not FDA approved. The doctor and his office manager confessed on the spot in the meeting. Did this help them? No. Criminal charges were filed. My other clients in similar cases who did not speak were never charged criminally for the same conduct since the authorities did not have a confession.

Rule #10: If you are asked to give a written statement, do NOT do so. The investigators will often write it out for you to “help” you or one of your employees. Take the time to meet with an attorney before you sign any document even if they tell you that you are not the suspect. It is amazing how many cases get started this way.

Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, lose your license, or lose your livelihood.

Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations and hearing attorney.

If you have questions regarding your own case, please call 213-233-2260 or email Ms. Green at to schedule a complimentary 15-minute consultation.


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