Here Comes Your Licensing Board October 8, 2024 Alert, General Carlson & Jayakumar 0 This article is reprinted with permission from the newsletter of Carlson & Jayakumar, LLP, Attorneys at Law Here Comes Your Licensing Board Today's newsletter provides licensees with an overview of what California's licensing boards are doing in the realm of enforcement. Then we turn to what you need to do if you are the subject of a complaint, investigation, or Accusation. Our numbers are drawn from the 2023 Annual Reports from the Medical Board of California (MBC) and Board of Chiropractic Examiners (BCE), although other licensees can learn trends relevant to their disciplines as well. Disciplinary Actions: By the Numbers The MBC received over 9,200 complaints—down from over 11,000 in Fiscal Year 2018-19. The public made over 6,000 of those complaints—most for gross negligence, incompetence, or unprofessional conduct. Over 200 complaints came from physicians who were arrested or convicted for other crimes. Other governmental agencies made the next highest number of complaints at nearly 1,400. The MBC averages over 180 days from receiving a complaint and referring it for prosecution or closing the matter. If sent for prosecution, the matter is typically handled by the Attorney General of California who files an Accusation on the MBC's behalf. Sometimes it results in a citation, and for a limited number of cases, it is referred for criminal prosecution or a civil lawsuit. On average, from the investigation's conclusion to formal discipline being issued, it takes 1,331 days—adding the investigation time, the process from complaint to discipline averages over four years. For the Accusations, nearly half result in probation, but over a quarter end in license surrender and revocation. Of the 326 final outcomes from Accusations, only three resulted in "Other Decisions," which could include a ruling in the licensee's favor. The BCE received 434 complaints, 350 of which were referred for investigation and 52 involved the Board being notified of the chiropractor's conviction or arrest. The BCE opened some 400 investigations, which averaged around 340 days to complete. Eight were for criminal or civil actions. Of the others, as with MBC actions, the Attorney General represented the Board and filed an accusation. Most Accusations ended in probation, but a significant number ended in license surrender or revocation. None ended in favor of the licensee. It averaged 1,034 days for the BCE to impose discipline after the case began. So, as with the MBC cases, it is, on average, a four-year process from start to finish. A process that can be expensive, anxiety producing, and disruptive to one's practice. Where Complaints Come From As noted, most complaints are filed by the public and generally come from the Boards' online submission portals. Prosecutors, the Department of Justice, and court clerks also report convictions and felony charges. Plus, licensees themselves must self-report certain criminal violations. All can trigger an investigation, often followed by an Accusation. In addition to the above-mentioned topics for complaints, the other most common issues involve sexual misconduct, substance-abuse issues, malpractice cases, dishonest and fraudulent claims, illegal referrals and kickbacks, and unlicensed-practice issues. What To Do Upon receipt of a call or letter from your Board, you should immediately get legal representation. Check with your malpractice carrier as you may already have supplemental coverage for license-defense matters as part of your policy (if you don't already, you should look into it.) Some policies also provide coverage for attorney's fees in insurance-audit matters. You will want someone familiar with handling Board investigations and Accusations—the latter are essentially like civil lawsuits, but where your license is on the line. As Abraham Lincoln reminded us: "A man who is his own lawyer has a fool for a client." Generally, regardless of how baseless, vindictive, or mistaken a doctor feels an investigation is, they should communicate with the Board—and anyone else—only through their counsel at this point. There have been instances when patients make complaints about one thing, when the real issue was a billing dispute—using the Board investigation as leverage. There have been others when the initial issues seem patently absurd, but an inartful physician response leads to a bigger issue. Thus, when dealing with any phase of a licensing matter, do not go it alone. Yet many practitioners initially react by thinking if any attorney responds to the Board's investigation, it will "look like I did something wrong." What's wrong with this is this way of thinking. The Board (or, for that matter, the insurance company in an audit case) will actually think you are taking the matter seriously. And investigators often know the attorneys in the field and can work better with them, as they've had prior cases together. This facilitates the process to the licensee's benefit. Plus, the licensee can often avoid being "the bad guy" if a problem arises, because the attorney is. The attorney will help organize the material needed for a comprehensive response to the investigation—often knowing what the investigator will really be interested in and what will just confuse the issues. Clarity and organization in the investigation response is critical as getting the investigator to understand the doctor's position is the best chance to avoid the Accusation—once it is filed it is much harder to have the matter dropped. In terms of the overall process, the Board will initially review the complaint received and then, likely, investigate it. As noted, the investigation stage is critical for achieving an early resolution. If not, the Attorney General will file an Accusation. The Hearing This will lead, ultimately, to a hearing that serves as a trial on the issues. It is not before a jury or Superior Court judge, but rather an Administrative Law Judge, who will make findings of fact and a recommendation to the Board regarding discipline. Discipline is typically revocation, suspension, or probation—or a combination thereof. Before and during the hearing, the Board typically relies on an expert witness to explain to the judge what was done incorrectly and why discipline is warranted. A licensee and the lawyer—and likely their own expert—need to present a strong rebuttal to the Board's expert's report and testimony. In addition, the doctor's team will need to prepare and bring in its own witnesses and present the documents clearly showing why no violation of law or regulation occurred. This phase operates very much like a civil bench trial. There is no jury, and the evidentiary rules are relaxed—but the entire proceeding should be handled by a lawyer, not the licensee. But the licensee still must stay very much involved, particularly assisting the lawyer with the organization of the factual details, timeline, and documents. Once discipline is adopted by the Board the lawsuit-like proceeding typically ends—unless there's an appeal. Of note, the Board, not the judge, controls the final disciplinary decision. It is possible for the judge to rule entirely in the doctor's favor and have the Board modify the recommendation and issue discipline nonetheless. Plus, the Board stays involved (other than revocation cases) to monitor and ensure compliance with the disciplinary terms, as with probation. This may include paying investigation costs, restitution, taking continuing-education classes, having a practice monitor, having audits, etc. If the terms of probation are violated, automatic loss of license may follow. Conclusion As the numbers show, licensing boards receive and review thousands of complaints every year. Most come from members of the public. Some are legitimate, some are baseless, some are payback for a patient-physician dispute, and some snowball into other issues. The investigation phase needs to be taken seriously, dealt with promptly, and handled by an attorney. The Board will not perceive guilt because you have representation. It will see you are taking the matter—and the threat to your license—seriously. This phase is your best chance to get the matter dropped without further legal proceedings. Organizing a clear, concise, and forceful defense, supported by credible experts, is critical. But even then, the most common result—again, based on the Boards' own statistics— is probation. Thus, by far, the best response to any inquiry from a licensing board involves a timely, serious, and factually compelling response to any inquiry you receive. Best, Keith W. Carlson and Nima A. Jalali Comments are closed.