A Word About Boards
Every long term care facility hires licensed personnel: nurses, physical therapists, occupational therapists, administrators, dieticians, and others. One or another of North Carolina’s licensing boards has jurisdiction over these professionals. Experts say a complaint to a licensing board is more likely than a malpractice lawsuit, so it’s worth your time to think about these boards.
And a Word About Complaints
Most complaints to boards come from patients or their families. Most of the remainder come from health care professionals. The lesson here is to treat your patients and your colleagues well.
North Carolina law gives each board lots of authority to investigate licensees. Professional ethics, practice standards, and clinical competence are all within its purview. More and more, complaints about quality of care are coming before licensing boards.
If a Board Investigates or Charges You
If you are under investigation, contact your insurance carrier immediately. There are two reasons. First, some professional liability policies provide coverage or partial coverage for defense against complaints before a board. (If your policy does not, you should consider getting coverage.) Second, failure to properly report a complaint to your insurer can jeopardize your malpractice coverage under the policy.
Next, do all you can to manage the board’s impression of you. Assure the board that you intend to cooperate, and maintain a professional demeanor at all times. But also inform the board if you need more time to respond. A board will give you the time you reasonably need to answer the investigation or complaint.
Think carefully and broadly about the board’s allegations in its charges and investigation. Be sure you understand what bothers the board. If you miss the board’s point, you look like you are ducking its questions.
Hire an experienced attorney immediately. Ask any lawyer some key questions before you hire him or her. Does this lawyer do board cases? Does this lawyer do cases with your particular board? How would this lawyer approach your case?
After you hire a lawyer, he or she should be present at every interview or telephone conversation with the board or its investigator. He or she should help you write any letter you send to the board.
If you need consultants or experts, have your attorney hire them at your expense. If your lawyer hires them, their work will ordinarily be privileged and confidential. If you hire them directly, their work may not be protected.
Be careful when talking to your colleagues. These conversations will not be confidential or privileged.
Remember that licensing board investigations may lead to malpractice claims or criminal prosecutions. The attorney who represents you before the board can help you avoid collateral damage in civil or criminal court.
Some Things to Remember as You Respond
Your credibility is the most important element in your defense. Never alter your records or misrepresent information. Once a case becomes a matter of your personal honesty, you are in serious danger.
Investigations and hearings are adversarial. They are very different from most things you will have seen in your profession. The board will be fair and professional, but it is up to you to defend yourself.
Most licensing board matters settle. Ask your attorney if settlement is an option in your case. Even if settlement talks fail, they will help you understand the board’s concerns.
If a settlement offered to you is unacceptable, request a hearing. Don’t fear presenting your case to the board.
It’s best to avoid trouble. Be familiar with the standards your licensing board applies to your profession. These standards, often stated in regulations, are the yardstick against which you will be measured by the board.
To find the standards, check your licensing board’s website. It may contain interpretive rulings, position statements, or other official board guidance that will help you understand your obligations and may provide important defenses or exceptions applicable in your case. Some boards also offer technical assistance or industry guidance services that can help you understand your obligations and potentially avoid complaints to the board in the first place. Other boards are less helpful and say they cannot give advice.
Former board members may help you understand how the board feels about particular issues. Some are available as paid consultants. Others will talk to you informally and point you in the right direction. It never hurts to ask.
Finally, if you have a serious question about a matter that might concern a board, whether it is billing, or treatment, or a social relationship with a former patient, or services to family members, or professional behavior in the workplace, or anything else, once you start to look for the answer, dig until you find it. It looks bad in hindsight if you spotted an issue and then never bothered to find the solution.
We hope you never face a board investigation, but if you do, take the initiative, protect your credibility, try to settle, and don’t be afraid to go to hearing if you have to.
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