Part One of Frier Levitt’s three-part licensing board investigations video series
A licensing board investigation can begin when a healthcare provider least expects it. A patient complaint, hospital disciplinary action, malpractice settlement, criminal arrest, payor audit, or referral from another government agency can all bring a provider to the attention of a professional licensing board. Even when the underlying allegations are unfounded, how a provider responds to an investigation can have significant consequences for their professional license and practice.
In Part One of this three-part licensing board investigation video series, Partners Guillermo Beades and Alex Keoskey discuss how professional licensing board investigations begin, how investigators operate, and some of the most common mistakes providers make after receiving a complaint, subpoena, or other inquiry.
How Does a Licensing Board Investigation Begin?
One of the most common misconceptions among healthcare professionals is that maintaining a compliant practice means they are unlikely to face a licensing board investigation. In reality, complaints and referrals can come from numerous sources, including patients, former employees, former spouses or business partners, third-party payors, hospitals, malpractice matters, and other state or federal agencies.
Once a complaint reaches a licensing board, the board may be obligated to investigate it regardless of whether the allegations initially appear credible or serious. A provider’s belief that a complaint is frivolous, retaliatory, or simply wrong does not eliminate the obligation to respond.
The scope of the investigation may also extend beyond the original allegation. For example, when a provider submits medical records in response to a patient complaint, the board may identify separate concerns involving documentation, prescribing, informed consent, billing, or other aspects of the provider’s practice. For that reason, responding to a seemingly straightforward complaint without first considering the broader implications can create additional exposure.
The Duty to Cooperate: Ignoring the Board Is Not an Option
Healthcare professionals should take every communication from a licensing board seriously. As discussed during the webinar, New Jersey licensees have a duty to cooperate with licensing board inquiries. At a minimum, that means acknowledging the inquiry and responding within the applicable timeframe or requesting additional time when necessary.
This has become particularly important as the way boards communicate with providers evolves. Initial notices may arrive by email and can be overlooked or caught in spam filters. Subsequent notices may be mailed to the address the board has on file, which can create problems for providers who have changed practices or failed to update their contact information.
Failure to respond can itself become a licensing issue. The New Jersey Board of Medical Examiners has increasingly pursued administrative suspensions when providers fail to respond to repeated requests. The practical takeaway is straightforward: do not ignore a licensing board communication, even when the underlying complaint appears meritless.
Respond Carefully, Not Reactively
Receiving a complaint can be frustrating, particularly when a provider believes the allegations are false or motivated by a personal dispute. But an angry or overly broad response can make the situation worse.
A narrative response should address the allegations thoroughly and in an organized manner while avoiding unnecessary commentary, accusations, or emotional language. Providers should also be cautious about making sweeping denials before understanding what information the board may already possess.
When responding to a complaint, simply providing medical records without additional explanation may not be sufficient. The board may expect a complete response addressing each allegation, including those the provider believes are irrelevant or do not warrant a response.
The same caution applies during interviews. Providers may feel compelled to explain themselves, offer additional information, or persuade an investigator that the matter is simply a misunderstanding. However, cooperation does not necessarily mean providing information beyond what has been requested. Before responding, providers should understand both the question being asked and the scope of the investigation.
Understand the Difference Between an Investigator, Prosecutor, and the Board
Another important distinction is the role of the investigator. Investigators gather facts, conduct interviews, inspect practices, review records, and report their findings. They generally do not make the final decision regarding whether a provider will face disciplinary action or what sanctions may ultimately be imposed.
That distinction matters when an investigator makes statements about what could happen to a provider’s license or suggests that signing a document or voluntarily surrendering a license will quickly resolve the matter. Providers should be extremely cautious about signing a consent order, agreeing to a voluntary surrender, or making other consequential decisions without first obtaining legal advice.
A “temporary” surrender can have significant and lasting consequences. As Beades and Keoskey emphasized during the webinar, providers should fully understand the terms and potential implications before agreeing to surrender a professional license, controlled dangerous substance registration, Drug Enforcement Administration (DEA) registration, or other credential.
A Subpoena Is Not the Same as a Warrant
Subpoenas can create significant confusion for providers, particularly when an investigator arrives unexpectedly at a medical practice requesting immediate access to records.
The scope and source of the subpoena matter. A subpoena issued as part of a licensing board investigation is different from a warrant issued in connection with a criminal investigation, and subpoenas from government agencies may raise different considerations than subpoenas issued in private civil litigation.
Providers should avoid making assumptions about what they are required to produce or refusing to comply based on a misunderstanding of the Health Insurance Portability and Accountability Act (HIPAA). For example, certain government and regulatory agencies may obtain records without a patient’s HIPAA authorization, while requests from private parties present different considerations.
Counsel may also be able to communicate with the Deputy Attorney General or investigator regarding the timing and scope of a subpoena response. Understanding what the subpoena actually requires before producing records can help providers meet their obligations without unnecessarily expanding the production.
One Licensing Board Investigation Can Quickly Become Several
A licensing matter may not remain confined to the licensing board.
Payor audits, Centers for Medicare & Medicaid Services (CMS) or Medicaid investigations, allegations of fraud, hospital disciplinary actions, and investigations by federal or state agencies can result in referrals to professional boards. A provider can therefore find themselves facing multiple investigations arising from the same underlying conduct.
This becomes particularly significant when an administrative or regulatory investigation overlaps with a potential criminal investigation. The obligations and rights that apply in each proceeding can differ, making coordination of the provider’s response critical.
Providers should also recognize that a licensing board proceeding is not the same as traditional civil litigation. Unlike a malpractice case, where opposing parties present their positions to a neutral judge or jury, the administrative process places substantial investigative and decision-making authority with the licensing board itself. That difference should inform how providers approach the matter from the outset.
Common Mistakes During a Board Investigation
Several recurring mistakes can increase the risk associated with an otherwise manageable licensing matter. These include ignoring a complaint because it appears frivolous, responding to only some of the allegations, sending records without an accompanying explanation, volunteering information investigators did not request, assuming an informal conversation with board members will resolve the matter, or signing documents before understanding their consequences.
Even a complaint involving the wrong provider may still require a response once the board has opened its investigation. There have been matters in which a complainant acknowledged identifying the wrong healthcare professional, yet the provider was still required to respond because the investigation had already been initiated.
The broader lesson is that providers should not treat a board inquiry as an informal peer-to-peer conversation. It is a regulatory process that can affect a professional license and, ultimately, a provider’s ability to practice.
Early Legal Guidance Can Shape the Course of an Investigation
The earliest stages of a licensing board investigation can have significant consequences. Counsel experienced in healthcare regulatory and professional licensing matters can help determine the scope of the board’s request, review records before they are produced, prepare an appropriate narrative response, communicate with investigators or prosecuting attorneys, and advise providers before interviews or hearings.
Providers should also review their professional liability insurance policies when a board investigation arises. Some malpractice insurance policies may provide coverage for legal fees associated with professional licensing matters.
Above all, a licensing board complaint should not be overlooked simply because the provider believes the allegations are minor. Boards may have authority to impose restrictions that affect prescribing, patient interactions, practice conditions, and other aspects of professional practice even when a matter does not result in the loss of a license.
How Frier Levitt Can Help
Frier Levitt represents physicians and other licensed healthcare professionals in professional licensing board investigations, administrative proceedings, audits, and related healthcare regulatory and enforcement matters. Our attorneys assist providers from the earliest stages of an investigation, including responding to complaints and subpoenas, preparing for investigator interviews, addressing multi-agency investigations, and defending providers in licensing board proceedings. If you find yourself facing any of these situations or have any questions about the process, contact Frier Levitt to speak with one of our attorneys.
In Parts 2 and 3 of this webinar series, we’ll take a look at what happens as a board investigation progresses, including Preliminary Evaluation Committee (PEC) hearings, other board proceedings, potential summary suspensions, and the steps providers can take to protect their licenses throughout the process.
