FAQs

Disciplinary action can include: a written warning, a reprimand or admonishment, continuing education, monitoring requirements, a monetary fine, testing for illicit drugs or participation in a drug sponsored program (for licenses with chemical dependency issues), and restrictions on your right to practice including probation (for a fixed period), suspension (for a fixed period) or revocation. Based on the types of discipline that a licensing board may impose, it becomes fairly apparent that a cascade of negative effects may flow from a single board complaint. Depending on the violation(s) alleged and the board’s conclusion(s), a licensee’s name, reputation, and livelihood may be destroyed. So the importance of properly responding to a licensing board complaint cannot be overstated.

a. Determination of Proper Insurance Coverage
The first response should be to review your insurance coverage for board complaints to the extent that you have such coverage. This is especially true if you are a healthcare provider (e.g. physician, dentist, licensed professional counselor (LPC), etc.). On first impression, we are human and we are disinclined not overly anxious to broadcast that we are the subject of a board complaint. This is often complicated by the fact that the charges may include serious or embarrassing allegations. With these factors serving as the backdrop, licensees may avoid notifying even those who may help them. We advise that you resist the inclination to do so.

Under most malpractice insurance policies, you have a duty to notify the carrier of any claim or potential claim which might require coverage as soon as practicable. Furthermore, unless you are practicing as a sole practitioner, you are often required by contract, bylaws or organization policy to notify a risk manager or someone within the organization of the claim, no matter how embarrassing or meritless the charge. Failure to provide timely notice of formal complaints to such parties can jeopardize insurance coverage, your employment or ownership interest in an organization, or career. Moreover, the malpractice carrier or entity with which you may be affiliated may provide or pay for assistance, including an experienced attorney(s) to represent you before a licensing board. Therefore, keeping a board complaint secret from these parties is not in your best interest either professionally or economically.

Moreover, if you have insurance coverage, do not make the presumption, erroneously, that the malpractice policy covers complaints to a licensing or regulatory board (i.e., disciplinary or enforcement action). Coverage for board complaints is typically purchased separately from coverage for a lawsuit involving malpractice. Please be sure that you check your policy(ies) carefully and contact your carrier if you have any doubts or questions.

b. Do Not Delay in Contacting Legal Counsel
Regardless of whether you have insurance coverage, you should contact legal counsel. In our experience, the attention and care you pay to your initial response to a complaint is crucial. Failure to consult with and obtain an attorney at all or much later in the process may not necessarily be detrimental in achieving the best outcome for you in all cases, but it cannot be said that that process will be much easier depending how you have responded and/or communicated to the licensing or regulatory board without first obtaining counsel.

It is completely normal and understandable that any person, professional or otherwise, would be rattled upon learning that they are the subject of a complaint. In light of the high emotions from the onset, we believe that consulting with a highly trained and experienced attorney is critical. Based on the cases that we have handled and depending upon the period of time in which we were consulted and hired, our firm believes that consulting a lawyer to review the facts almost immediately will afford a licensee the best chance of having the complaint dismissed without a hearing or resolved on the best possible terms. One needs to remember that the complaint process and ensuing investigation is front-loaded. Accordingly, the attention and care paid to how one’s initial action(s) and response to a complaint is critical.

In our experience, when we are consulted and retained from the beginning, we are able to marshal the facts right from the beginning, including review of charts, records or other relevant documents which ensures that our client’s position is placed in the best possible light. When this occurs we find that more often than not our clients have a higher probability of prevailing without a hearing and at the very least, settlement and/or resolution of the complaint on the best possible terms.

Generally speaking, this area of the law requires an attorney with a background in administrative law since the complaint, ensuing investigation, and any action contemplated by a licensing board affecting one’s license involves an administrative entity whose authority to act is governed and derived by laws and rules specific to that administrative regulatory or licensing board. More importantly, it is advisable to find an attorney familiar with your licensing board’s procedures. We have spent our entire legal career in this area of the law and have also served as in-house counsel to state licensing and regulatory boards. We have appeared at numerous informal mediations, informal settlement conferences (ISCs), complaint/enforcement/disciplinary hearings, and related meetings for a diverse group of professional licensees ranging from health care providers to blue collar individuals, before numerous licensing and regulatory boards. We have unparalleled experience in advocating before administrative law judges (ALJ) in formal, administrative hearings (i.e., contested case hearings) at the State Office of Administrative Hearings (SOAH). We have also litigated complex matters in State District Courts.

As a general rule, do NOT discuss the complaint with the complainant unless your attorney agrees to let you. The complainant represents tremendous risk to you and you should not discuss the complaint with him or her. You may believe that if you are able to contact the complainant that you may discuss reasonably, rationally or level-headedly and make the complainant see the error of his or her ways and get the complainant to dismiss the complaint. In our experience, this almost never works. Worse, it can lead to damaging evidence being admitted against you. Moreover, it may be portrayed as an attempt to intimidate the complaining party. Again, it bears repeating that under no circumstance should you attempt to discuss the complaint with the person who filed it without first consulting with your attorney and obtaining the proper legal advice.

The caveat here is that every so often communication with the complainant has helped settle a situation. Our firm has been involved with cases where this has occurred. However, we would say that this is the rare exception rather than the norm. Bear in mind that each case is different and must be examined on its own, but in a situation where this may be appropriate, we suggest that such communication be in writing and only upon consulting with your attorney prior to doing so.

Generally, the first person you should contact upon receiving the board complaint is an attorney experienced in handling these types of matters to obtain proper advice and to help you understand your options. We do not recommend that you contact your licensing board to discuss the matter with them, regardless of how trivial the subject matter of the conversation may be, until you have consulted with legal counsel. Many licensees communicate with the licensing board to inquire about something as simple as procedures and usually cannot resist the urge to discuss the substantive matter of the case. For this reason, you should not contact the board until you have consulted with legal counsel.

You also should not ever assume upon receiving a letter announcing the initiation of an investigation, followed by a phone call from an outwardly appearing “friendly” investigator, that you can simply explain the complaint away. Make no mistake that the investigator’s interests are adverse to your interests. The relationship between you and your licensing or regulatory board is an adversarial one. If asked by the licensing board or its investigatory staff, politely decline discussing the matter with them without your attorney present. It is important to know, but once you have retained an attorney, a licensing or regulatory board may not contact you directly in any way or for any purpose. Instead, the board must go through your attorney.

Board complaints can be very emotional and stressful for licensees both professionally and personally. Those who are recipients of board complaints usually turn to those close to them for support, advice, and empathy. This group may include family members, colleagues, peers, professional associations, employers, and/or employees or staff. As a general rule you should refrain from discussing the matter with anyone else that is not your attorney.

Most of us find that discussing these types of issues with those that we are close to is a great source and means of comfort. The compassion, understanding, and empathy shown towards them from those close to them may help reduce or alleviate the stress of the situation. Although we believe that support and empathy are needed in dealing with this difficult period in your professional career, you should be extremely cautious with whom you share this information with. Unwittingly, licensees who receive complaints often confide with their colleague(s), peers, staff, and/or friends/acquaintances not realizing that these individuals may be called upon later as witnesses, and perhaps even adverse witnesses (i.e., witnesses for the licensing or regulatory board). In the instance where these individuals are also licensed professionals, they too may have an obligation under their licensing and regulatory board’s rules to report to the licensing or regulatory board any violation including those that they may have learned through communications with you.

An important reason why one should avoid having conversations with third parties, including potential witnesses, is the potential to damage your defense, and also because these conversations are not protected from disclosure by the attorney-client privilege or some other legally recognized privilege. Put another way, saying the wrong thing or something in the wrong way to anyone (except your attorney) can significantly inhibit your defense and lead to unfavorable consequences. We advocate this not because this is something that you should be embarrassed or ashamed to disclose, but the potential for harm and damage to you and your case does not outweigh any benefit that you may have in disclosing these matters to someone other than your attorney. For these reasons we advise that you speak only with your attorney.

We often encounter licensees who are under the belief that licensing and regulatory boards exist to serve their interests and to protect them and their license. Sadly, this is an unfortunate mistaken belief. The licensing boards exist to protect the consumer and the public. Period. Therefore, we advise against discussing your case with the investigator unless counsel is present. Often, the investigator’s attitude will change during the investigation. More importantly, statements you make at the outset, without adequate reflection and/or thought, can come back to haunt you. Even seemingly innocuous questions posed by the investigator can be a trap for the unwary, especially for those unfamiliar with licensing and regulatory board investigations.

As professionals, you all know the importance of deadlines. Deadlines involved with the handling of a board complaint are no less important and arguably more so given what is at stake. When a complaint is filed with a licensing board, the board generally sends a written notice of the complaint to the licensee. In that notice, there almost always is a deadline for the licensee to file a written, narrative response to the allegations and to produce relevant and germane records or documentation (e.g. patient records). Professional licensees are busy people. Gathering the relevant information, obtaining the necessary advice, and preparing an appropriate response are time-consuming activities, most of which cannot be delegated to someone on his or her staff. This problem is further exacerbated because it is human nature to put off dealing with unpleasant activities. As a consequence, the deadline for producing records and filing a response often sneaks up on the licensee before he or she has done what is necessary to prepare a proper defense.

Failure to timely respond can at best harm the licensee’s credibility, and at worst result in sanctions being imposed when they otherwise would not be. On this topic we advise that one should never ignore, fail to respond, or miss the response deadline. Usually additional time is granted if necessary, but one must make such a request with the board, and usually best to do so in writing, and well in advance of the deadline.

First, it is important to find an attorney who has a background in administrative law and whose practice is principally devoted to this area of the law. More often than not, it is highly beneficial to find an attorney who is familiar with your specific licensing board and its rules and procedures since each licensing board operates slightly different from one another. Our firm’s belief is that we cannot be everything to everyone. Although we applaud lawyers or law firms who have a diverse range of practice areas, including in this area of professional license defense, our firm has purposely limited the practice areas so that we can continue to excel at the thing we do best, defending the interests of professional licensees in board matters.

On this topic, each licensing board is governed by statutes and their own rules that they have developed or promulgated. We always advise our clients that they should take the time to read the rules governing their practice; found on our firm’s useful resources link. We also write about on a number of topics about issues affecting licensees and licensing or regulatory boards on our blog.

You should know that many law firms specializing in this practice area will charge you either by the hour or flat fee and may require a retainer. Any arrangement you enter into with an attorney should be in writing. At the Phan Law Firm, P.C. we spend the necessary time to discuss the facts of the case and to go over carefully our billing procedures with you and allow you the necessary time to digest the financial arrangement, our proposed handling of the case (i.e., work-flow plan), and all expectations before you decide on retaining our services and all at no charge. As attorneys, we are bound by the highest forms of ethics and compliance. Our office always advises clients of attorneys’ duties and provides you with a copy of the Texas Lawyer’s Creed which also contains a 1-800 number for you to contact the State Bar of Texas to file a grievance if you believe we acted unethically or inappropriately.

Once you meet with us, you should be prepared to provide us with all pertinent information and documents, and any known grounds for defending the allegations. Do not omit any important or potentially damaging information because you hope it will not come out, because you are embarrassed by it or because you believe that we do not need to know or do not want to know. In order that we can provide the best advice to you, include the good, the bad, and any “ugly” facts which may be relevant, so we are fully informed and not unpleasantly surprised by damaging facts when it is too late to minimize their impact. Any discussion you have with us is held in the utmost and strictest of confidences, even if we are not hired. In some instances and should it become necessary, we may consider retaining a consulting expert so you can get an objective opinion after a full discussion of the matter which would then allow for protection by the attorney-client privilege or work product doctrine.

The Investigative Process Generally

Although the procedures for how each licensing or regulatory board responds to complaints and how investigations are conducted varies with each board, licensees are generally notified from the onset regarding a complaint in writing. Generally speaking, the process is “front loaded.” This means that once a complaint is filed, you will receive a notice letter from your licensing board apprising you of the complaint, the identity of the complainant(s), and the alleged violation(s). The notice letter typically contains a request from you for a written response to the alleged violation(s) with a request to include relevant documentation or records. At this point, the board has likely initiated an investigation against you, seeking records and statements from interested parties and gathering relevant facts. Whether your licensing or regulatory board calls this an “informal” investigation because they may be mindful of the stigma of a “formal” investigation, you should not be lulled into any false sense of security in how they are characterizing their actions. Your licensing or regulatory board may call the initial phase an “informal” investigation or indicate that they are only asking questions and have not started a formal investigation. Regardless of what the action is called, you should take all actions by your board seriously and treat them as a formal complaint.

Meeting with the Licensing Board

Many boards today are overwhelmed with the number of complaints that they are required to handle and with limited resources borne from budgetary constraints and restrictions, their ability to perform an expeditious or even thorough investigation may often be lacking. Thus, it is not atypical to see many of these cases stretch for several months if not longer. Once the board has completed its investigation, some boards may allow you the opportunity to appear in person before them to respond to the charges. These may be termed or called hearings (e.g., complaints committee hearing), meetings or conferences (e.g. informal settlement conferences (ISCs)). These committees or panels are often composed of a limited number of members from the board (oftentimes a mixture of licensed professionals and public members) with the remainder comprised of the staff members; usually the investigator(s) and/or Director of Enforcement/Discipline, Executive Director.

You should know that you are always allowed the opportunity to appear before the board with counsel present. You should also know that the board’s attorney(s) are usually present. We have yet to see a case in which counsel for the boards were not present at these meetings, hearings or conferences. At this meeting, the licensing or regulatory board attempts to determine if violation(s) have occurred and to recommend appropriate disciplinary action if they believe that violations occurred. The complaining party (i.e., complainant) is invited to attend and may or may not be present. Although licensing or regulatory boards often refer to these gatherings as “informal” they are anything but. We advise our clients to treat these meetings seriously and to regard them as “formal” proceedings similar to appearing in a courtroom before a judge. At the conclusion of this meeting, a recommendation will be made regarding action that the board wishes to enact, either disciplinary action or dismissal. Any recommendation made at that meeting is subject to the licensee’s agreement to that recommendation. If the licensee accepts the recommendation, a written agreed order is prepared and circulated for signature by the licensee and then presented to the full board for approval and ratification. If the licensee rejects the recommendation, he or she has several options still available to him or her.

Formal Administrative Hearings Before the State Office of Administrative Hearings (SOAH)

The most common option if the licensee does not accept the recommendation regarding discipline is to request a formal, administrative hearing before an impartial administrative law judge (ALJ) at the State Office of Administrative Hearings (SOAH). This is similar to a trial in state district court except there are no juries, only the interested parties and the ALJ. Evidence is presented to the ALJ who rules on the evidence and listens to testimony. At the conclusion of the hearing, the ALJ will take a period of time to review the matter and eventually issue a proposal for decision (PFD). A PFD is the ALJ’s recommendation as to what action should occur in that matter (i.e., whether violations occurred; what disciplinary measure, if any, should be handed out). The PFD is then presented for consideration before the full board to either accept or reject. If the licensee is still dissatisfied at this point, he or she may file a lawsuit in state district court (Travis County).

The short answer is no. Generally, you can discuss with an attorney whatever records the board orders you to produce without client consent. Generally, records may be shared with the attorney to the degree necessary to defend the claim.

Compliance is always crucial when dealing with licensing or regulatory boards. However, having said that, one must recognize that there may be issues (e.g., HIPAA’s federal privacy rules and state privacy laws) involved in revealing confidential client or patient information to third parties. It is always advisable to speak with your attorney about what is being requested of you and how you should respond. Care must be taken to ensure that if patient records or charts are requested that a waiver of confidentiality exists, either through the patient/client or the Board, to protect your interests and lessen any exposure that you may have for additional action, either from the board or in a civil or criminal action from the affected parties whose confidential information is being released without their permission or consent.

As a caveat, one should be aware that just because there is a waiver of confidentiality when the complaint is filed does not in and of itself mean other clients or patients discussed in the case have waived confidentiality. For example, child custody cases.

Yes, our office provides assistance and counsels in this area. There are a number of reasons or factors for the denial of a license by a state licensing or regulatory board and any board denying an individual a license or denying the renewal of a license must follow applicable statutes and their own rules. An example would be an individual with a criminal background. There have been recent changes in the Texas Occupations Code related to those with criminal histories that have affected the authority of boards to deny applicants and discipline licensees. An individual or licensee who is confronted with this situation is afforded the opportunity to a hearing and one should contact our firm to discuss options.