Healthcare providers familiar with the multi-layered bureaucracy within the American healthcare system know it can be exceedingly difficult to navigate this intricate and heavily regulated industry. Healthcare laws, regulations, and guidelines continue to expand in both scope and complexity each year.
However, few areas of healthcare law are more daunting than the regulatory structure surrounding state healthcare licensing boards (“Boards”). The scope of regulatory power held by these Boards, the role of state government attorneys who counsel and prosecute Board actions, and the relationship between state regulatory agencies and administrative law can be difficult to grasp and varies state by state. Defending healthcare providers in Board matters requires a firm grasp of a variety of interconnected areas of healthcare, including, at minimum, the practice of medicine, employment law, professional medical ethics, and administrative law. Equally crucial is an understanding of the structure, authority, and powers of the Boards, along with state laws and regulations that often bolster the Boards’ powers of investigation and prosecution.
Perhaps most important in defending healthcare providers in Board matters is a healthcare attorney’s thorough familiarity with the intricate web of mandatory regulatory reporting. When Boards, hospitals, law enforcement, regulatory agencies, and other authorities invoke disciplinary actions against healthcare providers, such adverse actions may be subject to mandatory reporting requirements. Those reports can affect licensure and a provider’s livelihood, leading to denials of clinical privileges, denial or revocation of controlled dangerous substance (CDS) prescribing privileges, and loss of status as an approved provider for health insurers, including Medicare and other government payors.
As the sole regulatory authority that establishes qualifications for medical licenses, as well as standards for the practice of medicine in each of the fifty states, the Boards act not only as a primary credentialing agent for medical providers, but as a self-regulating authority that acts as disciplinarian for all licensed healthcare providers. At any time, a physician, nurse, pharmacist, or dentist licensed by a state Board may suffer a temporary or permanent loss of their license to practice, based upon a myriad of issues. The underlying actions brought by state Boards may stem from quality of care, impairment, or misconduct and may not even be limited to allegations stemming from that practitioner’s practice of healthcare. As an example, the Boards have broad authority to investigate any arrest, criminal allegation, or conviction of a practitioner that occurs outside of their healthcare practice. When that occurs, a healthcare provider may find themselves navigating through a procedural thicket of multiple law enforcement and regulatory actions at once. This makes the hiring of appropriate legal counsel even more crucial.
Not a Civil or Criminal Matter
The most common misconception healthcare practitioners make when confronting licensing board actions involves the belief that the matter will ultimately be decided by a neutral party, as is the case with medical malpractice claims or criminal indictments. Board actions, however, do not bear any comparison to either civil or criminal actions.
For one, both criminal and civil complaints end up being resolved by a judge or jury, a third party with no personal interest in the underlying facts or outcome. With Board actions, although a Board’s complaint can be tried in a plenary hearing before an administrative law judge (ALJ), that ALJ’s interim decision acts only as a recommendation. In keeping with state administrative law procedure, the final decision belongs to the Board, as the self-regulating state agency. This means the same entity that brings allegations against the healthcare provider will make the ultimate decision, diluting the bargaining leverage normally enjoyed by a healthcare provider in civil or criminal claims. Unlike civil matters, in which two parties negotiate from equal bargaining positions before a neutral judge, the deck is stacked in favor of the state Board and their attorney by virtue of the fact the board is, in a sense, both judge and prosecutor.
In addition, in most states, a board can levy their own administrative fees incurred from investigating and prosecuting their case against the healthcare professional, in addition to statutory or regulatory penalties. While losing a case against the board is dispiriting, having to pay their legal and investigative fees as well renders it even more discouraging. For all these reasons, it is important to understand that there is much more at stake in a Board action than a lawsuit or criminal charge, as only a Board action will directly jeopardize a healthcare provider’s ability to practice and maintain their livelihood.
“Staying Out of Trouble” is Not Enough
Another widely held but false belief within the healthcare profession is that if a licensed healthcare professional is ethical, intelligent, responsible, hard-working, treats their patients with respect, and stays up to date with compliance and quality of care obligations, they will always stay out of trouble. Unfortunately, this is not necessarily the case. Although Boards act as watchdogs for healthcare providers who fail to live up to professional standards, like criminal prosecutors, the Boards rely almost exclusively on tips from the public at large.
The Board’s investigation can only begin when it receives information from an outside source. The source is usually a disgruntled ex-patient, colleague, spouse, competing hospital medical staff member, or business partner who may have personal animus toward the licensed provider for reasons that have little to do with the underlying complaint. Moreover, while the healthcare provider can respond to the complaint in hopes of having it dismissed, the Board retains authority to review the underlying medical records and scrutinize every area of the provider’s practice, including, but not limited to charting, prescribing, compliance with continuing education requirements, etc. In sum, a provider must never assume that he or she is free and clear of any action by the Board simply because they are “staying out of trouble.”
The National Practitioner Data Bank
The Healthcare Quality Improvement Act of 1986 (HCQIA) included a provision establishing a National Practitioner Data Bank (NPDB) as a clearinghouse for reporting all adverse actions against licensed healthcare providers stemming from any source. Such reports include Board actions, hospital peer review actions, malpractice payments from settlement or satisfaction of a claim or judgment, exclusions or prohibitions from the Medicare and Medicaid programs, and professional review actions involving competency or conduct by professional societies. The NPDB acts as a primary credentialing mechanism for all healthcare entities seeking to hire healthcare practitioners and allows those entities access to doctors’ disciplinary records before onboarding these prospective hires. As an example, if a physician’s or dentist’s hospital privileges are limited, suspended, or revoked by the medical staff for a period of more than 30 days, the hospital must report it to the NPDB, an important consideration when a medical staff member is facing a disciplinary proceeding invoked by a hospital’s medical staff.
As with all Board investigations or actions, willingness to compromise and negotiate is key to resolution, keeping in mind that a report to the NPDB is permanent. Staying up to date on current law and regulation, as well as current disciplinary actions against healthcare practitioners in your state (through review of your state’s licensing board website) is key to ensuring that your healthcare license is not in jeopardy.
How Frier Levitt Can Help
Keeping a knowledgeable healthcare attorney on call is also a good compliance measure. While there is no guarantee that you will never be investigated by a licensing board, good compliance and risk management practices will lower those odds considerably. Frier Levitt’s team of experienced healthcare attorneys can provide the legal support needed to safeguard your career.
Frier Levitt provides strategic, industry-focused legal counsel tailored to your needs. Contact our team today to learn how we can help you.
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