The Doctor’s Advocate | Second Quarter 2022
An Ounce of Prevention

Practice Protection for Administrative and Regulatory Actions

Richard F. Cahill, JD, Vice President and Associate General Counsel, and Kathleen Stillwell, MPA/HSA, RN, Senior Patient Safety Risk Manager, The Doctors Company

State and federal governments have expanded supervision of healthcare professionals to ensure public health and safety. The following information can help in preventing practice regulatory violations and subsequent investigations.

Professional Licensing Boards

Historically, states have exercised the right to regulate 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 administrative code sections now detail the requirements to qualify for licensure, maintain continuing compliance, and 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 exercise due diligence and follow the rules of professional conduct to avoid consumer complaints and subsequent investigations by state licensing boards. Investigations can ultimately result in fines, penalties, and administrative sanctions that may include the loss of the privilege to practice.

State boards investigate many types of professional misconduct complaints that include quality of care (such as misdiagnosis, inappropriate treatment or medication prescribing, and surgical complications), office practice (examples: failure to sign a death certificate, refusal to provide medical records, and misleading or inappropriate advertising), provider impairment (including physical and mental deterioration due to alcohol or drug use), sexual misconduct, and unlicensed activity.

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. Ensure that your office staff brings any correspondence from the licensing board to your attention immediately. Responses to complaints and record requests are time sensitive. 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.

State boards also investigate criminal convictions following reports received from different sources that include state departments of justice, mandatory self-reporting by licensees, and court clerks or prosecutors pursuant to state statute. 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 follow: 

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 the 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 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 that significantly affects healthcare practices. Violations of these laws can result in investigations by the Office for Civil Rights with serious fines, sanctions, and penalties. Statutes of particular importance are: HIPAA, HITECH, EMTALA, ADA, the 21st Century Cures Act, and antidiscrimination laws affecting persons with limited English proficiency. 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. 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 agency investigator without your attorney present, and do not discuss any inquiry with staff, colleagues, or friends. 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

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.

Complimentary Online Continuing Education

The information in this article can help healthcare professionals prevent regulatory and licensing board violations and subsequent investigations. Answer the questions in our new on-demand activity, Administrative and Regulatory Actions: Protecting Your Practice, to earn complimentary CME and CE credits.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.