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Aug 21, 2017

How Should I Respond to My Licensing Board When I Have Received a Complaint Outlining Allegations of Wrongdoing and a Request for a Written Response.

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There is perhaps nothing worse than receiving mail from one’s licensing board and being informed that that individual’s licensing board has received a complaint and has instituted an investigation regarding alleged wrongdoing.  More often than not, the letter contains the allegation(s), notifying the licensee of the basis for the investigation.  Most importantly, the licensing board makes a request for a response or explanation to the allegation(s), requesting that a response be made and returned to the licensing board within a predetermined period of time (time calculated usually from the date of the licensing board’s letter usually rather than the date that the licensee may have received the letter).  Because most, if not all, licensing boards make it a violation for failing to respond to or cooperate with a board complaint, one cannot simply ignore the complaint letter.  Additionally, some licensing boards also make additional requests for information from its licensee.  Some licensing boards make the request with the initial notice letter and some make the request at a later point in the investigatory process.  One such board that makes an additional request for information and at the same time of its initial notice letter is the Texas Board of Nursing ("BON").  In addition to the notice letter specifying a complaint, the BON also includes a separate form that is entitled, “Statistical Data Questionnaire.”  This questionnaire asks the licensee under investigation seven questions.  These questions include:

  1. How many years of experience (i.e., med/surg, pediatric, OB, etc) have you had in your current nursing practice?
  2. At the time of the incident, how many days in a row had you worked?
  3. At the time you received a notice from the Board of Nursing for this reported incident, how long had you worked for your current employer/s?
  4. Have you ever been formally counseled by this or any previous employers for nursing practice issues?
  5. Have you ever been terminated or asked to resign in lieu of termination due to nursing practice issues?
  6. If you have ever been licensed to practice nursing in any other jurisdiction, complete the following [Jurisdiction; RN or LVN/LPN; Date of licensure; Status of license; Has licensed ever been disciplined?
  7. At the time of the incident(s), list all degrees (nursing and non-nursing) held and the date obtained.

So what should you do if faced with this scenario?  First, one must carefully and thoughtfully consider the potential to make matters worse with respect to making any statements (e.g., admissions) that may be adverse to one’s situation and/or making statements that allow for the expansion of the scope of the investigation against the licensee.  Implicit in this concern is the realization that licensing boards have the authority to expand the scope and focus of its original inquiry.  Thus, licensing boards are not resigned to merely the allegation(s) that it originally noticed a licensee.  Keeping this in mind, one should be aware, for example, that if the underlying allegation(s) does not involve a practice situation that would call into question a nurse’s fitness why would it be necessary for the BON to know “how many days in a row [you] had . . . worked?”  The only possible reasons for soliciting an answer to this question are to bolster its own case against the licensee (i.e., through an admission or through the use of a licensee’s statement to establish an aggravating factor(s)) or to expose the licensee to another violation (e.g., accepting an assignment when the acceptance could be reasonably expected to result in unsafe or ineffective client care).  Given that most licensees may already be in high stress, one’s natural inclination is to answer these questions without much thought and reflection as to the consequences of doing so.  Answering questions without proper legal counsel may subject a licensee to additional allegations of wrongdoing because making damaging statements without proper counsel's assistance may weaken or even cripple their case.  Because these questions on a questionnaire are designed, in my opinion, as a trap for the uninitiated, it is highly advisable to contact experienced, skilled counsel and hire counsel when faced with such a notice of allegation letter.  In this particular area, finding a specialized administrative law attorney (regardless of where that attorney may be physically located) is more important than finding an attorney that may happen to also be residing in the same city or town as you may be.    

Critical in this decision, given the multitude of attorneys that one can find with a few simple clicks from one's computer or phone, is to speak and visit with an attorney who specializes in administrative law.  Critically, that attorney should have experience representing other licensees before that respective licensing board.  In this regard, I highly advise that a licensee contact as many attorneys as they can and ask that attorney questions regarding how that attorney approaches handling of these matters.  One should look at it a job interview with the licensee as the one doing the hiring.  In today's information age, consumers are in the best position to research and discern which attorney and/or firm may be best to assist them.  Certainly, a firm's website is a good starting point from which to formulate questions to ask that prospective attorney.   Based on my own experiences, I am continually amazed in speaking with clients how fear and, to a certain extent, naivete, work in conjunction, driving the initial decisions that clients make with respect to hiring an attorney (or the decision to not hire one altogether).  Sadly, I have spoken to many individuals who have regretted hiring their first attorney as they often lament that they have not been provided with answers to even the most basic of questions or that they have not been provided with any updates from their attorney.  A good attorney will not be put off in answering questions regarding handling and will be able to provide a candid overview regarding approach and the overall defense process (which is very different from providing solicited legal advice without the benefit of an attorney-client relationship).  When deciding on hiring counsel and pondering whether or not you may need an attorney during this process, one should keep in mind that it is not coincidental that the current Board’s notice letters no longer contain any reference to the fact that its licensees are free to hire legal counsel if they so desire.  Certainly nurses or any other licensee are well within their rights to contact and hire an attorney to help them shepherd through the complaint process; one that has the potential to be daunting.