Investigated by the Department of Health or Facing Licensure Discipline? You Have Options.

Licensure Investigation: How and Why?

The Department of Health in the state where a provider is licensed has a duty to investigate valid complaints against healthcare providers. Complaints against healthcare providers can be made anonymously, and most states, like the Tennessee Department of Health, have an landing page on their websites that makes it easy to file a complaint. If the complaint is frivolous, such as “This doctor is a jerk,” the complaint will be reviewed and likely dismissed by staff at the Department of Health without further inquiry. If the complaint is more serious, such as “This doctor is overprescribing narcotics to his patients,” then the complaint will likely be investigated further.

Once a complaint has been deemed serious enough for investigation, a Department of Health investigator will be assigned to make an inquiry into the complaint. This will likely begin with a telephone call or letter addressed to the health care provider who the complaint is about. If an investigator from the Department of Health contacts you, you have the right to be represented by counsel. At this point, most healthcare providers will be very upset, concerned, and frustrated to find out a complaint has been filed against their license. As such, retaining counsel who can represent them with stoicism throughout the investigation will likely result in less stressful and more productive interactions with the Department of Health through the investigation.

The Investigation Has Concluded: Now What?

Typically after meeting with an investigator, the Department of Health will inform a healthcare provider about the outcome of the investigation within 3-9 months. The outcome of the investigation is one of the following: (1) the complaint is dismissed; (2) the healthcare provider is sent a letter of concern or a letter of warning, and the case is closed; or (3) the Department of Health chooses to pursue formal disciplinary action. This formal discipline will be communicated to a healthcare provider in the form of a letter setting forth what the Department of Health determined in the course of their investigation (sometimes referred to as a 4-5-320(c) letter) with an attached “Consent Order” for the healthcare provider to sign and return to the Department of Health within a set number of days.

If you have not yet hired counsel, I recommend hiring an attorney to represent you through the negotiation of any consent order. Most consent orders are negotiable, and even if the proposed disciplinary action seems acceptable to you, your attorney can review the facts in the order to ensure that you are not admitting to any violation of criminal or civil law that would open you up to additional liability.

Hiring An Attorney: Who To Look for, How To Find Them, and Does It Really Make a Difference?

When seeking an advocate to assist you through the investigation and/or discipline of your health care license, it’s important to seek out an attorney with expertise in this area. Just as you wouldn’t hire a dermatologist to perform brain surgery, don’t hire your divorce attorney, or estate planning lawyer to represent you in an administrative action (unless he or she also happens to have a great deal of expertise in administrative law).

How do you find someone experienced in administrative law before your regulatory board (such as The Board of Medical Examiners or The Board of Nursing)? First, you can start by checking with your statewide professional association (for example, the Tennessee Medical Association or Tennessee Nurses Association). Generally most professional associations maintain a list of attorneys for referral. Second, you can independently do your own research by asking other healthcare providers you know, as well as researching online. Third, you may even be able to get a name of an attorney for referral from the administrative staff of your state regulatory board, or the attorney representing the Department of Health. And finally, if you are recently out of medical or nursing school, your professors or mentors from school may be a good source of referral to an experienced administrative attorney.

Having your license investigated or disciplined is generally the most stressful experience of a healthcare professional’s career. Having a competent advocate who can guide you through the regulatory maze, let you know what to expect, and advocate on your behalf makes the process less stressful and invasive in your personal life, and permits you to make informed decisions about how best to proceed.

Bottom line: Licensure investigation or discipline is a highly stressful process, and it’s beneficial to have an advocate guiding and counseling you through the process. If you have any questions or comments, as always, feel free to reach out to me at [email protected]