HJAR Jan/Feb 2023

LICENSES AND THE LAW THE INVESTIGATION Once a licensing board receives a com- plaint, it may review and dismiss it before ever notifying you that it has received a complaint. The licensing board could deter- mine that it lacks authority (jurisdiction) to even act, or it could determine that the alle- gations, even if true, do not warrant board action. However, some licensing boards review their authority and the claim’s validity only after first launching a formal investiga- tion into the complaint and requesting a response from the licensee. Normally, the board will “serve” you with a copy of the complaint and request your response, using the address on file with the board. But before you do anything in response — contact your liability insurance carrier. Likely, your malpractice policy includes coverage for defending your license. How- ever, most policies require that you promptly notify the insurer in order for you to be enti- tled to coverage. After receiving the complaint, consider the following: • Do not contact the complainant. First, this response makes you look guilty. Second, the board may perceive this as an attempt by you to harass the complainant. • Do not contact the board. Unless for a procedural question (i.e., a request for an extension of time to respond, etc.), you should not contact the board. If you have an attorney to represent you, all communications with the board should go through your attorney. Anything you say to the board could be used against you in the investigation against you. • Do not alter and/or destroy any appli- cable records. No matter how bad the records look, destroying those records looks worse. Similarly, licensees should never make new entries into records — even to simply clarify or supplement them. If necessary, an additional expla- nation can be given in your response to the board. • Stay off of social media. Period. This is the number one place investigators will look for information about you and the allegations against you. • Collect evidence. Start to collect sup- porting documentation and/or evi- dence that supports your defense of the allegations. This can be an ardu- ous process and, therefore, needs to be started immediately. • Get your file. State licensing boards are subject to the Freedom of Infor- mationAct and have to provide licens- ees with information that they have on file for that person. This information may reveal the board’s initial thoughts about the merits of the complaint, or it may reveal what additional infor- mation that the board believes would help it understand the allegations. Thus, if possible, obtain this informa- tion before you file a response. • Respond timely, but with extreme care. Most licensing boards in the state of Arkansas give their licensees 30 days to respond in writing to the complaint against them. As far as the substance of your response goes, consider the following: • Respond professionally. As theArkan- sas State Medical Board has advised, “It is best to avoid inflammatory or accu- satory language and becoming overly defensive. Simply relate your version of the events in question, briefly and succinctly, with as little editorial com- ment or unnecessary derogatory infor- mation as possible, including appro- priate medical records.” 1 This advice applies to all board responses. Main- tain a neutral tone, while firmly argu- ing your defense. • State your credentials. We suggest that you give the board a brief back- ground of your credentials, including how long you have had your profes- sional licenses, what education you obtained before getting your profes- sional license, and a brief description of your employment/professional history. You can also attach a current resume or curriculum vitae to your response. Doing so at the outset allows you to frame yourself to the board as a valuable member of that field. • Respond thoroughly. You may know that the complaint lacks merit, but do not assume that the board does. Address the complaint allegations one by one. It may be helpful to use headings throughout your response. Though your response should be as thorough as possible, keep in mind that anything in it can be used against you in later proceedings. • Reserve all of your arguments. If not careful, you may inadvertently waive future arguments by not including them in your initial response. • Demonstrate remedial actions taken. If you know that you violated your board’s rules or regulations, consider including the actions that you have taken to rehabilitate yourself and/or rectify a questionable situation. In our experience, boards have more respect for licensees who have already taken remedial steps. But be very careful if you choose to respond this way. You must be certain that your actions con- stituted a violation. If you incorrectly state that you have violated the rules, you will unlikely be able to prove your innocence later. • Attach supporting affidavits and relevant documents. • Conclude. End your Complaint with a strongly worded conclusion that illus- trates, concisely, your defenses, as well as your commitment to the profession and your commitment to upholding the standards set out by the board. In addition to requesting your response, the board may hire an investigator. The investigator may interview relevant wit- nesses regarding the allegations in the com- plaint, including you. Importantly, licensees are allowed to have legal representation at every step in this process, including during interviews by the investigator. 22 JAN / FEB 2023 I  HEALTHCARE JOURNAL OF ARKANSAS