As a professional license holder, being informed that your board is opening an investigation against you is stressful and unnerving. And then, the investigators show up. What should you do? What should you not do? Here are some answers.
The duty of the board is to protect the public, as well as the integrity and decency of your profession. So, when you get a call from a seemingly friendly investigator asking a few questions and hoping to “clear up some things,” you may be tempted to talk and set things straight. Don't.
Your First Move
Decline (politely) to answer any questions at all. While you may think providing simple answers right away may resolve the matter, even vague or non-committal responses could help the investigator build the case against you.
This rule also holds if the investigator shows up at your office or worksite. Be firm that you will not discuss anything related to the complaint without an attorney present. Even if the investigator is chatty and seems informal, thank them for the visit and take a business card (or get the investigator's name and phone number) with the promise you will circle back around—once you've talked with your lawyer.
Do not assume that your innocence will be quickly acknowledged once you explain things to the board, and the complaint will be dismissed or forgotten. The board will proceed according to its iron-clad, complex protocol once the process is initiated.
That said, even if you think the allegations against you have no merit, do not, under any circumstances, ignore the board's investigation. This will not make it go away.
Hire Capable Legal Counsel
Lawyers who are experienced in license investigations can lead you through the process and help avoid serious mistakes. A knowledgeable attorney can:
- Guide you in your response to a letter from the board, or—better yet—respond on your behalf. Any letter you receive from the board will have a deadline, and it's essential you respond before that date. Reaching out to a lawyer in the first instance will give you and your counsel time to craft an effective response, which in some cases could shut down the whole investigation.
- Work from the premise that the complaint has merit (even if you strongly disagree) and support your case in the context of the very detailed protocol the board must follow in order to fulfill their mandate to protect the public. At every stage, your attorney can respond appropriately.
- Be at your side when you meet with the board investigator. The single biggest threat to your license is trying to explain away the complaint on your own. An attorney will protect your rights and prevent you from unknowingly incriminating yourself.
When looking for a lawyer, make sure you find a professional with direct experience in administrative law and your state's administrative code.
Joseph D. Lento has helped many professionals across a range of fields defend their licenses and livelihoods in the face of board scrutiny. He will work tirelessly to preserve not just your business or practice, but your reputation among your peers.
Communicate With Your Staff
Once you receive a letter from the board regarding a complaint, advise your staff immediately.
You don't need to address the details but be clear that staff must not respond to any inquiries from the investigator or any other representatives from the professional board. That means verbal responses as well as the sharing of any written or digital materials related to the complaint.
Check Your Insurance.
Your malpractice or liability insurance may help you defend against allegations being investigated by boards along with the other standard coverage. In any event, once you become aware you are under investigation, it's often a condition of your policy that you make the insurance company aware as well. Check on your policy as soon as you get a letter from the board.
Board Investigations Differ From Lawsuits
In business claims, the focus is on the standard of care or quality of service delivery—a lack of harm to the client, patient, or customer is the focus. But boards concentrate on whether you have violated any state laws or administrative or professional binding guidelines.
So, while legal actions often turn on evidence of harm, it's not typically a determining factor in a disciplinary action, except in relation to how a penalty may be assessed. In board investigations, it's a lot more about rules and regulations than standard-of-service matters.
The licensing board's chief mandate is to determine whether or not it has jurisdiction over the complaint. They will conduct a preliminary assessment of the allegations to ensure it is the type of complaint they handle and that sufficient evidence exists to potentially support a finding that misconduct took place.
Find Your Experts
Ask other professionals in your field about the top experts on the issues at hand—and others likely to affect your license—and get a sense of whether the point of view that expert typically takes can support your case or not.
Carefully read articles they have written and find their resumes online. Expert testimonies and their reports can be the difference between the end of your practice and a defense that is cohesive, productive, and convincing. Make sure you vet the experts based on very specific expertise that is directly related to your case—choosing the wrong subject matter expert can be devastating to your defense.
Finding the right experts in a timely fashion can go a long way in damage control ahead of any investigative action. They can advise on record keeping, case management, and ethical issues related to your license. A good attorney will have a strong sense of which experts can best support your case.
Check on Your Board's Statute of Limitations
Determine the timeline—or ask your lawyer—about when the board must file its formal accusation after it discovers the alleged act or omission that is the basis for the disciplinary action, or the years that follow from the date the alleged act or omission that is the basis for disciplinary action occurred. Remember that there are different degrees of seriousness in misconduct, so check carefully based on the allegations in the complaint.
Remember the Importance of Record Keeping
Keeping meticulous records—including documentation of your client- and customer-facing procedures and your formal approach to professionally- and ethically-sensitive situations—can be a powerful response to a complaint. Showing that you've thought through the way you handle your practice demonstrates that you utilize best practices in every case.
Do not turn over any client-related materials to the board without the benefit of legal advice. The board does have a right to review the case material related to an investigation. But the rules of evidence are complex and often confusing to anyone not intimately familiar with the nuances of the state law. Letting go of records without understanding the potential consequences can present you with even more serious charges than the board might have sought otherwise.
Remember, it's not the crime; it's the coverup. Do not alter any of your records to make things look better in retrospect—no termination notes, amended customer orders, case summaries, or anything at all after the fact. This will quickly be figured out by an experienced investigator, who will then have reasonable suspicion that you really do have something to hide.
Guidelines for Best Practices in Record-Keeping
- Store hard copy records in a safe, locked place to reasonably protect them from theft, intrusion, fire, earthquake, water damage, and unauthorized access.
- Rigorously use passwords, virus protection, firewall, and access log. Back up your files regularly and store your backup in a secure location off-site.
- Enter relevant and meaningful information in the case records—detail meaningful client and collateral contacts, including important phone calls. Include the date and type of services provided, fees, charges, payments, balances, and copies of third-party billing.
- Ensure records include basic demographic information, fee agreement, and case management plan.
- Before service starts, provide clients and customers with information on limitations of confidentiality, fees, third-party billing, client's rights, and cancellation policies.
- Provide regular updates to clients on case progress or project milestones.
- Records should reflect your competence and decision-making ability, capacity to weigh available options, the rationale for your course of action, and knowledge of professionally, ethically, and legally relevant matters.
- Do not copy and paste the same notes for multiple meetings. Repeating verbiage for session after session is likely not to reflect well on your competency and sincerity should you be investigated by your licensing board.
- If you are using a checklist, include detailed notes to provide context on what was discussed in the meeting.
- Make certain to carefully and specifically document key incidents in the relationship, phone calls of importance, emergencies, complaints via text or email, consultations, referrals, contact with customers or anyone related to the services rendered.
- Summarize why the business or care relationship ended. This one is key. Provide information on who initiated the termination of the professional relationship and for what reason, and what was or was not achieved. If necessary, add follow-up information and referrals.
- Keep your records as long as the board mandates. Carefully consider requirements and codes of conduct and ethics from your particular board, along with other relevant regulations. Typically, there are no strict legal requirements to maintain any records beyond the required time. However, professionals must consider the potential need for records in the future, as well as the possible risk of maintaining outdated or obsolete records for long periods of time.
- Stick to the facts only. Because no records are immune from disclosure, don't include irrelevant details that can cause unnecessary harm for clients or others should they be disclosed or become public.
- Keep documentation regarding ethical considerations for:
- Gifts from clients
- Highly personal self-disclosures from clients
- Recordings of meetings and virtual meetings
- Any meetings outside the office, such as home visits, attending personal events for the client, and lunches, dinners, etc.
Do Not Contact the Client Who Filed the Complaint
As tempting as it might be, don't make the mistake of contacting the client and trying to set the record straight or convince the client to withdraw the allegations. Whether you intend it or not, it could be construed by the board as harassment—especially if you tell the client that his or her allegations contain information with the potential to discredit your professional record.
Any inkling of an impending investigation is a cue to find a lawyer who is experienced in defending professionals against board scrutiny. If you think your professional board might be looking into your practice, call attorney Joseph D. Lento and the Lento Law Firm today at 888.535.3686, or reach out online.