If you're a licensed professional, and you've just been notified that your license is at risk due to a complaint, you're likely dealing with a bit of fear and uncertainty. After all, your license is the key to your livelihood, and you've put in a lot of time, money, and effort to obtain it. What is going to happen? Will your license be suspended or revoked? What can you do to protect your interests?
Not to worry; below, the Lento Law Firm has compiled some of the most commonly asked questions and answers regarding professional license investigations so you can be armed with the information you need in order to move forward.
What can prompt a threat against my professional license?
In the most general terms, your professional license can be put at risk by any incident in which you allegedly violate the professional standards, ethics, rules, or regulations established by the state licensure board and/or the laws of your state. The specifics may vary widely according to the type of license you hold and even the state in which you live. However, the most common license violations fall into one of the following categories:
- Professional misconduct—e.g., gross negligence, incompetence, dishonesty with clients/patients, or other violations of professional standards set by the board.
- Sexual misconduct—sexual harassment of colleagues, employees, patients, or clients, inappropriate romantic relationships with clients, etc.
- Criminal convictions—many state boards issue sanctions or revoke the licenses of people who are convicted of certain crimes.
- Substance abuse—many state boards require license holders to undergo treatment for addictions or face forfeiture of their professional license.
- Fraud—e.g., overbilling patients, defrauding insurance companies, pilfering controlled inventories, etc.
Why am I under investigation with my licensing board?
Most investigations begin with some sort of formal complaint made to the licensing board. A complaint may be made by a client, patient, colleague, insurance company, or any person or facility that has a stake in your performance as a licensed professional. In rarer cases, licensing boards may initiate their own investigations if they have reason to suspect license violations—for example, if a court clerk reports a criminal conviction or arrest that you have not disclosed to the board.
What consequences could I face if the board decides to penalize me?
Every licensure board and every state has different rules regarding sanctions of professional license holders, but most include the following basic list of penalties:
- Formal reprimand/censure. Generally considered the “lightest” sanction for minor offenses, the board may put a formal reprimand on your public record.
- Fines/restitution. The board may impose a monetary fine (sometimes called a civil penalty) on the license holder. In some cases, the board may require restitution of anyone who might have sustained a financial loss due to the person's misconduct.
- Remediation/continuing education. If the board determines the violation occurred due to an educational gap or ignorance, it may require the license holder to take some continuing education courses.
- Mandatory treatment. In cases of substance abuse or addictive behaviors, the board may mandate the license holder to go through a treatment program as a requisite to keeping their license. (This is sometimes referred to as an alternative-to-discipline program.)
- License suspension. The board prohibits the license holder from operating in an official capacity for a specified or indefinite period of time.
- License revocation. The board revokes the license completely, prohibiting any further practice of that profession within the state. (Licenses may sometimes be reinstated after a time, but revocation is considered a permanent remedy.)
If someone files a complaint against me with the board, should I try to resolve the matter with the complainant directly?
No. Once a formal complaint has been filed, your issue is now with the licensing board, not with the complainant directly. Any attempt you make to resolve the matter directly with the complainant may be viewed as further misconduct or an attempt to intimidate/manipulate the complainant. Have no further interaction with the complainant without the advice of a professional license attorney and/or express permission from the licensing board.
What are the stages of the professional license disciplinary process?
Every professional licensing board has a different protocol for addressing complaints, and each state may have specific rules for how the disciplinary process is conducted. However, most professional license and administrative law cases follow a similar path that includes some/all of the following steps:
- Complaint. A formal complaint is made against you to the board—typically by a patient, client, colleague, employer, or company with whom you do business.
- Review. The board reviews the complaint to determine whether it falls within its jurisdiction of discipline.
- Investigation. The board investigates the claim to determine its validity. Investigations usually involve obtaining more information from the complainant and from the respondent (you). Your records may be subpoenaed, and you may be asked to provide written testimony or even appear before the board to answer specific questions in person.
- Formal hearing. If the board determines the complaint has merit and the issue is not dismissed or resolved during the investigation, it may call a formal hearing, either before the board or before an Administrative Law Judge, where both sides will be presented.
- Determination and board action. The board (or judge) makes a determination whether you are guilty of the complaint, and if so, what penalties to impose.
- Appeal. You have the right to appeal an adverse decision before it becomes final.
What happens during an investigation?
When the licensing board investigates a complaint against you, its primary goal is to determine whether the complaint has any merit—in other words, whether there is enough evidence to support the claim. An investigation may take months to complete, during which time the licensing board may do any or all of the following:
- Notify you of the complaint against you
- Reach out to the complainant to give more details about the alleged offense
- Ask you for a written response to the complaint
- Ask you to provide additional information to support your response
- Question possible witnesses (e.g., colleagues, coworkers, friends, or family members of the complainant)
- Send an investigator in person to ask questions and look around
- Request or subpoena any records relevant to the complaint
How do I respond to the board's request for more information?
Most state boards require you (often by law) to cooperate with any investigation against your professional license. This is expected as a prerequisite for issuing your license in the first place. Thus, you are expected to provide any information the board requests from you in order to complete its investigation.
That being said, your cooperation does not mean you have to put yourself in an incriminating position. Remember, the board is not there to protect you; it is there to protect the public. That means anything you say or do during an investigation could be used against you, even in an unfair manner. Before responding to any complaint or supplying any information, consult with an experienced professional license attorney who can represent your interests, and make sure your rights are protected.
Sometimes the board may send an investigator to your home or business who demands entrance to ask you questions and possibly look around. You are not required to allow the investigator to enter, no matter how insistent he/she might be—and in fact, doing so could work against you. Instead, we recommend politely declining to allow the investigator to enter and referring him/her to your attorney to answer all questions. This constitutes legal cooperation without forcing you to incriminate yourself.
What happens at the conclusion of the investigation?
Once the board concludes its investigation, it will make a decision whether there is enough evidence to validate the complaint and whether it is necessary to move the case forward. At this point, most boards do one of three things:
- Dismiss the case. If there is insufficient evidence to validate the claim, the board will dismiss it and consider the matter closed.
- Offer to negotiate a Settlement or Consent Decree. The board may reach out directly with a settlement offer to resolve the matter with you without the need to go further.
- Schedule a formal hearing. If the complaint has merit, if the offense is significant, and/or if you fail to reach a settlement with the board, the matter will go to a formal hearing to determine whether a violation occurred and what the penalty should be.
What is a Consent Decree?
Most licensure boards have a mechanism in place to allow for a Consent Decree—basically, a settlement with the licensee to avoid further action. A Consent Decree is a legally binding agreement between the licensee, the board, and the state, in which the licensee agrees to a negotiated plan of action or a prescribed penalty. Consent Decrees are quite common, especially in cases where there is sufficient evidence of a violation—and also because they avoid the added headache and expense of a formal hearing. The Consent Decree also typically provides ample room for negotiating a lesser penalty while maintaining favor with the board. Even if the penalty is suspension or revocation of your license, the chances of reinstatement are better if you agree to it willingly via a Consent Decree.
What happens if the matter goes to a formal hearing?
A professional licensure hearing is similar to a trial but without a jury in attendance. Depending on the state and the rules of engagement, the hearing will take place either before the board directly or before an Administrative Law Judge. Both sides present their cases (usually via an attorney) along with accompanying evidence and witnesses. If the hearing takes place before a judge, the judge will make a ruling, and possibly a recommendation for board action, based on the evidence. The board will then decide whether to accept the judge's decision. If the hearing takes place before the board directly, the board will make its own determination at the conclusion of the hearing.
Why should I hire an attorney to help defend my professional license?
Many professionals in danger of losing their license choose to represent their own interests before the state licensing board, mistakenly believing they can resolve the matter simply by “explaining” the situation. Unfortunately, this usually ends up causing more problems and even more severe penalties because the professional doesn't realize what they say is working against them or because they don't understand how the disciplinary process actually works. As a result, they only hire an attorney (frantically) once the complaint reaches the formal hearing stage—and by that time, the board has usually already galvanized its position, and the professional is coming into the hearing at a serious disadvantage.
The best approach when your professional license is under investigation is to think of it as a legal matter—because that's exactly what it is. Your professional license is a legal agreement with the state and the licensing board, and when a complaint is lodged against you, it constitutes a possible violation of that legal agreement. Since it is a legal matter, you need a legal expert representing you in order to have your best chance at a positive outcome.
What can the attorney do to help me?
An attorney with experience in Administrative Law and professional license defense can skillfully represent your interests as you interact with the licensing board. The attorney can evaluate your case, weigh the evidence, gather evidence and witnesses in your defense, liaise with the board, and defend you directly during the formal hearing if it gets to that stage. At any point along the way, the attorney may also be able to negotiate for a more favorable outcome, whether it's getting the complaint dismissed or getting reduced penalties, possibly avoiding the formal hearing altogether. In short, the sooner you hire a skilled attorney to help defend your license, the better your chances of keeping your license intact.
Don't take chances with your future. When your professional license is threatened by a complaint or investigation, hire an experienced attorney to help. Joseph D. Lento has successfully defended many licensed professionals in New Jersey, Pennsylvania, and New York. He understands how these systems work, and he knows how to position his clients for the best possible outcome. Contact the Lento Law Firm at (888) 535-3686 today to discuss your case and your options.