PROTECTING YOURSELF IN A BOARD INVESTIGATION Presenter:Sreenu Dandamudi, Commissioner Administrative Hearing Commission 2010 – Present General Counsel State Board of Registration for the Healing Arts 2006 – 2010

COMPLAINTS Board of Healing Arts receives 900 – 1,500 complaints each year

SOURCE OF COMPLAINTS Consumers (normally patients or relatives of patients) Hospitals Other Government Agencies (normally BNDD, US Attorney, other states’ boards) Licensees (normally on renewal applications) Malpractice Claims (Department of Insurance)

INVESTIGATIVE PROCESS Complaint Received (All complaints are investigated in some manner.) Complaint Review Committee Case assigned to investigator or staff physician Licensee Notified (Except in cases involving fraud or sexual misconduct.) - § , RSMo Investigation completed/Report Submitted Reviewed by Chief Investigator/Chief Medical Officer Reviewed by Board

SUMMARY OF ACTIONS BOARD MAY TAKE Close Case Request Further Investigation Direct Medical Staff Interview Letter of Concern (Private Communication between Board & Licensee) Probable Cause Hearing - Competency Automatic Revocation Hearing (Felony Conviction or Revocation in another state) Offer settlement agreement or file formal Complaint with AHC resulting in (§ ): Warn, Censure, Reprimand (NPDB vs. Private Reprimand) Probation (Up to 10 yrs) Restriction (Can be indefinite) Suspension (Up to 3 yrs) Revocation (Up to 7 yrs) Require PT/PTA to undergo care of a physician Require continuing education

MALPRACTICE The Board reviews approximately 800 malpractice claims each year. At the Board of Healing Arts, “malpractice” means cases referred by the Director of the Department of Insurance pursuant to §§ and 125, RSMo.

Malpractice Process § , RSMo requires the Board to investigate all malpractice claims received pursuant to §§ and 125, RSMo. Process requires Board to obtain copy of medical records of patient from PT or PT’s employer.

Mandatory Reporting § , RSMo requires hospitals, nursing homes, and ambulatory surgical centers to report to the appropriate health care professional licensing authority any disciplinary action or voluntary resignation of any health care provider against whom any complaints or reports have been made which might have led to disciplinary action.

Mandatory Reporting (Cont.) Reports must be submitted within 15 days of the final disciplinary action and shall contain the following information: Name, address and phone number of person making the report; Name, address and phone number of the person who is the subject of the report; Brief description of the facts which gave rise to the issuance of the report, including the dates of occurrence deemed to necessitate the filing of the report; If court action is involved and known to the reporting agent, the identity of the court, including the date of filing and the docket number of the action.

Mandatory Reporting (Cont.) There is no liability on the part of, and no cause of action of any nature shall arise against, any entity required to report under this section, or any of their agents or employees for any action taken in good faith and without malice in carrying out the provisions of this section. This report must be made to the Board in addition to the report to the National Practitioner Data Bank

Frequent Causes for Discipline (§ , RSMo) Controlled substance or alcohol abuse Convicted of crime involving fraud, dishonesty, violence, moral turpitude Discipline in another state Complete list found in the statute.

Board Investigator Calls… Now What? Stay Calm… Normally the investigator will call first to schedule a meeting During that call, ask the investigator: The purpose of the meeting That he or she bring the Board’s entire file on you (be clear that you mean everything, not simply the purpose of the current enquiry) Request additional time to set up a meeting to determine whether you would like to obtain an attorney ALWAYS call back or have your attorney call back – NEVER blow off the investigator!

WEIGHING YOUR OPTIONS Poor documentation (continuing education) Poor documentation (patient records) Quality of Care Impairment or Mental Health

Continuing Education No need for an attorney. Gather your documents and provide them to the investigator. If you are short of continuing education, explain you made a mistake and request more time. (If this is legitimate, you should hopefully receive a “letter of concern” and more time.) If you purposely misled the Board in your renewal application, APOLOGIZE. Don’t say anything else because the Board has heard it all before. If sincere, you should hopefully receive a public reprimand and more time.

Patient Records This might be part of a separate civil case Even if you are not the subject of the separate civil case, you might be brought in. Regardless, the Board received this complaint from somewhere that litigation is occurring or may potentially occur. GET AN ATTORNEY (ankle theory)

Quality of Care Again, outside civil litigation might be a potential. Normally, during the investigation, you may be called in to meet with one of the Board’s staff physicians or the PT Advisory Commission. You will go in and think you will simply explain your side of the story and everything will be fine. Mistakes you will make: Speak too much – comes across as covering up the truth Speak casually, as if with friends, and accidentally get your facts wrong – comes across as lying Be taken aback by the Board’s responses and lose your temper GET AN ATTORNEY!

Impairment or Mental Health If true, be proactive – Contact the Board for assistance. They may allow you to enter a treatment program in confidence (normally MSMA or MAOPS programs). If false, you need to explain your story to the Board, either the investigator or the PT Advisory Commission. Again, the same issues with speaking to the Board in the Quality of Care section apply here. Mistakes you will make: Speak too much – comes across as covering up the truth Speak casually, as if with friends, and accidentally get your facts wrong – comes across as lying Be taken aback by the Board’s responses and lose your temper GET AN ATTORNEY!

Choosing the Right Attorney Understanding An attorney that understands everyone makes mistakes. You must feel comfortable and able to communicate effectively with your attorney. Knowledgeable Knows federal and state controlled substance laws (DEA and BNDD) inside and out. Knows federal and state licensing laws inside and out. Example of inactive physician license (§ ) “A person whose license is inactive or who has discontinued his or her practice because of retirement shall not practice his or her profession within this state, but shall be allowed to practice his or her profession on himself or herself or on his or her immediate family…”

Choosing the Right Att’y (Cont’d) Calm Demeanor The “TV-style” aggressive attorney merely irritates judges and opposing counsel. Attorneys with a calm demeanor are respected and get better results. Provides Realistic Expectations Does not promise earth shattering “TV-style” victories Understands the Board’s processes and law and realistically knows your best solution (never a guarantee) Thorough An attorney that makes sloppy mistakes in his or her written work will not be respected or taken seriously by opposing counsel during settlement negotiations or by a judge during litigation