When The Board Comes Knocking
How To Respond To A Licensing Board Investigation
And Protect Your License, Professional Career, And Livelihood
How you initially respond to a state licensing board investigation may determine
if you get sanctioned, lose your license, or lose your livelihood.
By Ofer Zur, Ph.D.
Table Of Contents
- The probability of being investigated by a state licensing board is generally relatively small. Still, the probability of a board investigation of a practice is approximately five times that of being sued.
- Many board complaints are never investigated. If the board decides that the complaint has no merit or decides not to investigate for other reasons, you may not know that a complaint was ever levied against you.
- Obviously, licensing boards have a lot of power-authority over licensed psychologists, MFTs, psychiatrists, social workers, counselors, nurses, etc.
- Remember, the duty of the boards is to protect the public and regulate the profession. When operated with integrity and decency, they serve an important and valuable function in society.
- While the board may be friendly and even helpful, they are not your friends; they are friends of the public and the consumers of mental health services.
- Boards mostly respond to complains by clients. Initially they do not know your story, all they know is what the client alleged.
What To Do Today – Before you are being investigated:
Make sure that your malpractice insurance includes coverage for investigation by boards as well as the standard malpractice coverage. APA Insurance Trust, American Professional Agency, CPH & Associates, and other carriers offer such coverage. If you do not have such coverage, request it. If your carrier does not offer such coverage, I highly suggest that you switch to a carrier that does. This is very important because such coverage enables you to effectively respond to board investigation and defend yourself, while not on your precious dime.
Preempt board inquiry by consulting with experts on difficult cases before the board comes knocking on your door. You can do a lot of damage control and reduce risk by consulting with experts prior to learning about a board investigation. Consult with experts about your treatment plan, record keeping, and other clinical and ethical issues so you are on solid ground if the board does knock on your door. (See Dr. Zur’s consulting services.)
Keep good records including documentation of your treatment plans and ethical decision-making regarding clinically and ethically complicated situations. (See online course on Record Keeping.) Remember, at the early and important stages, it is not your patient’s word against your word, it is your patient’s word against your record.
Don’ts: Twelve Rules of What Not To Do When You Hear from the Board:
Rule #1: Do NOT ever take a board investigation lightly. You have worked hard to get your license and most probably, your livelihood depends on your practice. Obviously, they can take your license away and threaten your livelihood.
Rule #2: Do NOT ignore a board investigation. Regardless of what you think the merit of the case is, take it seriously and remember their job is to protect the public, and they can take your license away, fine you, turn you over to the DA, or put you on probation.
Rule #3: Do NOT assume that your innocence will soon be acknowledged. Never assume the complaint lacks merit, and that as soon as you explain to the board, it will be dismissed or forgotten. The board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public. Have your attorney respond respectfully and professionally.
Rule #4: Do NOT respond to a letter from the board unless you have consulted with an attorney. Even better, have the attorney respond to the board rather than you.
Rule #5. Do NOT contact the client who files the board complaint. Do not make the mistake of contacting the client and trying to sort things out or attempt to persuade him/her to withdraw their licensing board complaint. Any contact with the client after you get notified that he/she has filed a complaint can be easily viewed as an attempt to intimidate or harass the client. This is especially true if you try to tell the client that his/her file includes damaging, embarrassing or discrediting information.
Rule #6: Do NOT turn any material or clinical records over to the board without getting legal advice first. While the board is likely to have a right to review the case material related to an investigation, the rules of evidence are quite complex and, at times, confusing. It is best if you let your attorney advise you about what to turn over to the board according to your state law. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended by the board.
Rule #7: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you your license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. Most therapists do not know their rights and need an attorney to advise them.
Rule #8: Do NOT alter the records or create new documents in the record. Never alter records and do not create new documents that are dated retroactively. Do not attempt to re-create a nice clean or pristine record as they are likely to be viewed as unrealistic and fake. Do not add termination notes, treatment summaries or anything new to existing records. Altering records is unethical and can get you into (more) trouble. As one of the best California metal health defense attorneys, Mr. Brandt Caudill, J.D. reminds us, “the cover-up is worst than the crime.”
Rule #9: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. Even if the investigator seems friendly, informal, and chatty, neither talk to them about the case nor release any records without legal representation. If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your attorney will contact them soon. Chatting “informally” with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. It can cost you your license. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation.
Rule #10: Do NOT assume that lack of harm to client or patient will end the board inquiry.You must understand that boards often focus on whether you operated below the standard of care or not rather than on harm. They are more concerned about whether you violated any state laws or administrative or professional binding guidelines than whether your client was harmed by your treatment. While the element of harm is a crucial part of a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed. In other words, the question about harm is much more relevant to civil malpractice suits than to licensing board investigations.
Rule #11: Do NOT talk indiscriminately to anyone who would listen. Blubbering your distress, outrage, worries, and concerns to anyone who would listen can do more harm than good. Beware, sometimes what you say can be held against you. Of course, you can talk to your attorney, consultant, and spouse. Beyond that, consult with your attorney about whom you can talk to and what you can say.
Rule #12: Do NOT even think about trying to sue the person who complained against you. Such an attempt to sue can easily be viewed as an attempt to intimidate or harass the complainant.
Do’s: What To Do When You Hear From The Board About Being Investigated:
Recommendation #1: Contact your malpractice insurance carrier as soon as you hear from the board that you are being investigated. It is the smart thing to do and is often required by your policy.
Recommendation #2: Contact a knowledgeable attorney immediately who has direct experience in administrative law and with your state’s administrative code. Preferably, contact an attorney who has dealt with your board many times before on similar issues. When it comes to licensing boards, not any attorney will do. Get recommendations from your state professional organizations or from experts in the field.
Recommendation #3: Help your attorney identify top expert/s. Ask professionals and psychotherapists you know who are the top experts on the issues at hand and whether a certain expert’s stance on the issue is likely to help you or not. Go online and search for experts by carefully reading their actual books and articles and reviewing their CVs and credentials. Expert testimonies and reports can mean the difference between a devastating blow to your practice and livelihood and a defense that is coherent, effective, and convincing. Hiring a weak, uninformed, or unhelpful expert can be devastating to your case. Choose an expert who has an expertise in the specific issues that you are dealing with. Differentiate between custody, dual relationships, touch, BPD, etc. Not all experts are made equal.
Recommendation #4: Be active in your defense. Help your attorney understand the nature and context of the case and your thinking at the time. Help your attorney locate articles, books, and experts.
Recommendation #5: Prepare for the long run focus on self-care. Being under investigation is highly stressful. It also can take a long time to resolve. Be strategic and active in managing your stress and creating a support system. Do not share or associate with people who make you feel worse rather than better (some people thrive on the misery of others). Manage your stress by eating well, exercising, practicing thought stopping and relaxation, praying, hiking, engaging in pleasurable activities, etc. Seek professional support from experts.
Additional Recommendations & Notes:
- Consult with expert/s on difficult cases before the board comes knocking on your door. You can do a lot of damage control and reduce risk by consulting with experts prior to learning about a board investigation. Consult with experts about your treatment plan, record keeping, and other clinical and ethical issues so you are on solid ground if the board does knock on your door.
- Be extra careful with custody issues and borderline clients.
- Learn how to conduct ethical risk management. (See online course on Risk Management.)
- A note on the statute of limitations: In California, the licensing board that regulates MFTs, LCSWs, and LPCCs ordinarily must file its formal Accusation within three years from the date the board discovers the alleged act or omission that is the basis for the disciplinary action, or within seven years from the date the alleged act or omission that is the basis for disciplinary action occurred, whichever occurs first. The seven year period of time is extended to ten years if the matter involves sexual misconduct with the patient. See also Therapy Never Includes Sexual Behavior brochure.
Relevant Online Courses:
- Risk Management Guidelines
- Record Keeping Guidelines
- The Trust (APAIT)
- Donner, M. B. (2004) Licensing Board Complaints: Protecting Psychologists and the Public
- Levine, B. L., & Cooper, K. Due Process in Professional Misconduct Investigations in New Hampshire: Why You Don’t Have the Right to Not Incriminate Yourself
- 4 Things Not to Do at a Medical Board Hearing – Medscape Today Article
- Shapiro, D., Manosevitz, M., Peterson, M., Walker, L., & Williams, M. (2008). Surviving a Licensing Complaint: What to Do, What Not to Do. Zeig, Tucker and Theisen Publishers.
- Shapiro D., & Smith S. (anticipated publication 2009). Malpractice Law for Psychologists. A.P.A. Books.
- Thomas, J. T. (2005). Licensing Board Complaints: Minimizing the Impact on the Psychologist’s Defense and Clinical Practice. Professional Psychology: Research and Practice, 36(4), 426-433.
- Williams, M.H. (2001). The question of psychologists’ maltreatment by state licensing boards: Overcoming denial and seeking remedies. Professional Psychology: Research and Practice, 32, 341-344.