Healthcare Practice Protection for Administrative and Regulatory Actions

State and federal governments extensively supervise and regulate healthcare professionals to ensure public health and safety and to promote the delivery of optimum patient care. The following information can help practitioners avoid violating their professional legal and ethical obligations and thereby circumvent complaints to government oversight agencies, which can result in subsequent administrative investigations and possible sanctions.

Professional Licensing Boards

Historically, states have exercised the right to manage the practice of all professions with virtually no federal oversight. Although states have traditionally determined the scope of education and practice parameters for healthcare professionals, statutes and regulatory code provisions now detail the requirements to qualify for licensure and maintain continuing compliance, as well as establish the process to investigate potential violations.

Professional licensing boards (including medical, dental, and nursing) support their state mandates to protect the public through appropriate licensing and discipline of practitioners. In some jurisdictions, the boards have responsibility for other healthcare professionals, such as physician assistants, radiology technicians, licensed midwives, and dental hygienists.

Board Complaints

Healthcare practitioners must follow prevailing standards of care and the rules of professional conduct to avoid consumer complaints and possible administrative investigations by state licensing boards. These administrative oversight proceedings can ultimately result in fines, penalties, and sanctions that may include the loss of the privilege to practice. Adverse findings may also generate reports to the National Practitioner Data Bank, hospital credentialing committees, and third-party payers, including CMS.

State boards investigate many types of professional misconduct complaints, including:

• Quality of care (such as misdiagnosis, inappropriate treatment or medication prescribing, and surgical complications).
• Office practice miscues (for example, failure to sign a death certificate, upcoding to recover reimbursement not supported by the patient records, refusal to provide patient records following an appropriate patient request, and misleading or inappropriate advertising).
• Practitioner impairment (including physical and mental deterioration due to alcohol or drug use).
• Sexual misconduct.
• Unlicensed activity not authorized by the state practice act.

Board Investigations

The investigative process routinely begins with a request for patient records and is frequently accompanied by a subpoena or signed patient authorization for record release. However, healthcare practitioners should be aware that government oversight agencies are statutorily empowered to obtain these materials without patient consent or judicial order. It is imperative that your office staff brings any correspondence from the licensing board to your attention immediately. Written responses to complaints and record requests are usually time sensitive. Failure to comply as required may result in serious adverse consequences and may limit your ability to defend against the allegations. Do not respond on your own. As a first step, contact The Doctors Company for guidance. To assist you with your response, The Doctors Company will appoint an attorney who specializes in licensing issues.

Many practitioners report being approached by an investigator in a public place (often near their office or home) or receiving a call on their mobile phone when they have not provided that phone number to the board. Do not, under any circumstances, discuss or answer any questions from the investigator until you have your assigned legal counsel with you—in person or on the phone. Licensing boards are regulatory compliance agencies that serve as an advocate for consumers, not for clinicians. Do not contact the patient who filed the complaint, and do not dismiss the patient from your practice without the advice of counsel, as this act could be viewed as retaliation against the patient and may be regarded as a further violation of the applicable legislative and regulatory provisions in force in the jurisdiction where you practice.

State boards also investigate criminal convictions following reports received from different sources that include state departments of justice, mandatory self-reporting by licensees, court clerks, and prosecutors pursuant to state statutes. Depending on the jurisdiction’s requirements, a conviction for driving under the influence must ordinarily be reported and may carry significant consequences beyond fines. Additional repercussions might include licensure penalties, sanctions, public reprimand, probation, or license revocation. To help ensure conformity with requirements, it is important to know the applicable laws in your jurisdiction.

Board Disciplinary Actions

The three most common allegations leading to board disciplinary action are gross negligence, repeated negligent acts, and incompetence. 

Gross negligence: Described as an extreme departure from accepted standards of practice, this allegation encompasses a failure to perform basic diagnostic tests; failure to recognize common symptoms; not using accepted, effective treatments or diagnostic procedures; and not referring patients to a specialist when appropriate under the circumstances.

Repeated negligent acts: These are allegations of recurrent actions that depart from care considered usual or typical in a clinical setting that are inconsistent with the community standard. One act of simple negligence is ordinarily not sufficient to trigger an investigation, whereas evidence of repeated acts may be sufficient grounds for board investigation and action, depending upon the severity of the conduct and the extent of patient injury.

Incompetence: These are allegations leveled at practitioners who lack knowledge or perform beyond their training or expertise. It may also include performing a procedure that is either unnecessary or obsolete, or instances when a practitioner did not act appropriately based on a patient’s history and symptoms.

Allegations for disciplinary action against a healthcare professional may also include sexual misconduct. What constitutes sexual misconduct is defined by professional codes of ethics and often state law; however, dating, romantic, or sexual relationships with patients are generally prohibited.

Additional allegations include conviction of a serious crime, substance abuse, dishonesty (such as submitting a false or fraudulent claim for reimbursement), drug law violations or unlawful prescribing, engagement in kickback schemes, illegal referrals, and knowingly allowing an unlicensed person to practice medicine, nursing, or dentistry.

Federal and State Agency Investigations

In recent decades, Congress has enacted sweeping legislation to guarantee national consistency that significantly affects healthcare practices. Statutes of particular importance are HIPAA, HITECH, EMTALA, ADA, the 21st Century Cures Act, and antidiscrimination laws affecting persons with limited English proficiency. Violations of these laws can result in investigations by the Office for Civil Rights with serious fines, sanctions, and penalties.

States, which often have statutes and regulations covering the same areas, may have requirements that are more stringent than the federal provisions. Becoming familiar with these statutes will help you maintain regulatory compliance and avoid investigations by administrative oversight agencies.

Response to Agency Investigations

It is critical to notify us right away if you receive a complaint from a federal or state agency. The Doctors Company will assign legal counsel to support and guide you throughout the process. Our experienced, professional experts will take immediate action. Counsel will promptly request the formal allegations and copies of all discovery conducted by the agency. The attorney will assist you in preparing an aggressive defense, including submitting a preliminary written response. The majority of cases are resolved at this stage without further litigation.

It is imperative that you never talk or meet directly with the federal or state agency investigator without your attorney present. Never discuss any inquiry or complaint with staff, colleagues, or friends. Those conversations are generally discoverable in litigation and may adversely impact your ability to present an effective defense. Even a minor matter can escalate into a major issue. An investigation is a potentially life-altering event, even if the allegations are ultimately resolved in your favor.

We Are Here to Help

As a member of The Doctors Company, you receive MediGuard® regulatory risk coverage as part of your professional liability policy. We are here to help if you need legal representation for administrative actions brought by professional licensing boards, credentialing bodies, professional review organizations, and federal or state agencies, such as CMS and the DEA.

Find more information about reporting claims, or contact Patient Safety and Risk Management at (800) 421-2368 or by email.