By Jay D. Reyero, JD, Partner, ByrdAdatto

Board investigations will trigger emotions for any professional, whether they are from medical, nursing or other licensing boards. That's why it pays to be prepared. All it takes is a single complaint for a licensing board to get involved, because every complaint must be treated seriously, no matter how spurious it might seem.

Resulting investigations can greatly vary, depending on your state and the nature of the complaint that has been made. Generally, boards are required to send notice to the provider of the complaint they have received. This notice is often sent with language noting that it is an "informal notice." Some complaints can be dismissed relatively quickly, as the board merely needs to verify that the complaint is baseless. In other cases, a formal investigation might be opened; this can trigger a long and arduous process that takes months or even years to resolve. Getting ahead of the curve is the key to avoiding significant difficulties.

To avoid complaints to the board and prepare for an unanticipated complaint, it pays to make sure your house is in order. In general, boards only investigate complaints if they fall into one of the following categories:

1. Behavior that puts patients at risk of harm;
   
2. Failure to meet the standard of care;
   
3. Practicing outside a practitioner's scope of license; and
   
4. Impairment related to drugs or alcohol.
   

However, even if the compliant does not fall into one of these categories, the board might open an investigation, as they want to dive deeper into an issue to make the person an example.

The Consequences of Board Complaints: Investigations and Settlements

The investigation and settlement processes can be long and difficult. As noted above, it often begins with a notification sent through the mail; this is to see whether further investigations are warranted. These complaints typically begin when an angry person submits a grievance via the board's website, through the mail or on a hotline phone number.

As we said above, in many cases, these complaints can be frivolous. They often are triggered by competitors, dissatisfied patients, former business partners or disgruntled employees. But, even if the complaint comes from someone with a clear bias, it will not stop a notice. It is always best to mitigate any harm from complaints filed in bad faith by reducing the possibility of any potential violation being true.

After you receive notice from the board, you will need to respond by returning the requested information to the board within a set timeframe. Once the initial investigation is complete, the board can either choose to pursue a formal investigation or drop the case entirely. Formal investigations only happen when the board believes there is sufficient evidence of a violation or if it was not provided with enough information.

State boards are granted a wide berth when it comes to formal investigations. They can call witnesses, demand a variety of records, visit practices to perform inspections and examine standards of care. All this happens well before any hearing or trial takes place.

The length of the investigation depends on the state. However, it is common for formal investigations (and the resulting proceedings) to range from months to years in every state. In states such as Texas, many cases last up to 12 months. Meanwhile, in New York or California, some cases can last longer than two years.

Finally, if the investigation ends and the board believes there is good evidence of a violation, the process moves into either the informal or formal settlement stage. An informal settlement is simply an agreement between the licensee and the board to make amends for the violation; it is often no more than a simple court hearing. The formal process, however, is like an administrative trial. Both can be difficult and stressful events, but the formal settlement process will clearly take more time and energy to resolve.

All of this can stem from one single complaint—no matter how small, no matter who it comes from. That is why it is crucial to be ready for a complaint before it happens. Avoiding all the hassle means being prepared from the beginning.

It Pays to Be Prepared: Board Complaints

No one wants to go through a two-year-long board investigation, let alone make a settlement after being found in violation of board rules and regulations. Make sure you take the necessary steps to avoid this possibility. First, take every chance to mitigate the risk of unnecessary complaints—try to create policies and safeguards that keep employees and patients happy. Although this may never be enough in the long run, it is a great place to start.

Keeping your practice compliant is the second step to making sure your practice remains insulated from risk. That way, even if a complaint is made, the investigation will fail to turn up any evidence to corroborate it. And even if a complaint is false, you don't want the board to find evidence of other violations during its investigation.

Finally, if you have already been on the receiving end of a complaint or an investigation, know that it is never too late to seek professional assistance. Staying up to date in a constantly changing regulatory environment can be difficult, but options are available.

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