Licensing Board Complaints: A Top Risk for APCs

Despite being exposed to many of the same malpractice risks as physicians, advanced practice clinicians (APCs) are often not as well insured. When APCs are employed, their employers’ coverage may miss important risks, coverage limits may be too low, or the limits of liability may be inadequate because they are shared between the APC and partner physicians.

Licensing board complaints are one common gap in employers’ coverage. A single board complaint can take several years and tens of thousands of dollars to resolve—and a board complaint places an APC’s license and reputation at risk. A review of National Practitioner Data Bank (NPDB) statistics by The Doctors Company found that APCs are as likely to face a licensing board complaint as a malpractice lawsuit.

How Licensing Boards and Complaints Work

Professional licensing boards (including medical, dental, and nursing) are state-level governing agencies tasked with protecting public safety through appropriate licensing and discipline of practitioners, ensuring practitioners are providing competent and safe care and are maintaining continued compliance with licensure requirements.

Complaints to the board can come from patients, coworkers, or random audits of the practice environment. Nearly half of board complaints are filed by employers, who are required to report certain incidents. But anyone in the public who sees or has knowledge of conduct that may violate board laws or rules or related state or federal law may report the alleged violation.

Board investigations 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 NPDB, hospital credentialing committees, and third-party payers, including CMS.

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

• Quality of care lapses (such as misdiagnosis, inappropriate treatment or medication prescribing, or 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, or misleading or inappropriate advertising).
• Practitioner impairment (including physical and mental deterioration due to alcohol or drug use).
• Sexual misconduct.
• Retaliation by disgruntled patients.
• Unlicensed activity not authorized by the state practice act.
• Inadequate physician supervision/collaboration agreements.

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, APCs should be aware that government oversight agencies are statutorily empowered to obtain these materials without patient consent or judicial order. 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.

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. Never speak with a caller on the phone. Request written questions on agency letterhead.

Why Insurance Coverage Is Vital for Board Complaints

From the moment you receive a request for records or notice of board complaint, it’s vital to contact your professional liability insurer, who will mobilize to ensure you are represented fairly and your rights are protected.

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.

Maintaining personal malpractice insurance is crucial to ensure you have access to this advocacy and defense during board investigations, even if you also have organizational coverage. Your organizational coverage may have shared limits that are too low, or it may prioritize the interests of your employer over your interests.

Supplemental, or excess, malpractice insurance is a policy APCs can use to boost and complement employer coverage. When you have your own supplemental coverage and you face a claim, your two insurance carriers coordinate to protect you. Having your own coverage gives you peace of mind and protects you from licensing board actions by providing your own legal counsel and adequate funds for your defense.

Coverage from The Doctors Company automatically includes MediGuard® regulatory risk coverage, which provides legal representation for administrative actions brought by Medicare/Medicaid, state medical boards, credentialing bodies, professional standards review organizations, federal agencies (such as the DEA), and inquiries related to the Emergency Medical Treatment and Labor Act (EMTALA), up to $25,000.