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After defending hundreds of health care licensing investigations and disciplinary actions from Boards within the Department of Consumer Affairs over the years, certain things have become very apparent. First, a licensing Board or Department of Consumer Affairs (“DCA”) investigator is not contacting you for praise or accolades – there has been a complaint or an issue they are looking into. Second, due to investigation confidentiality, licensees are responding in the dark, without notice of possible charges. The Board is required to tell a licensee nothing about the complaining party, source of information, or why it is investigating. And third, an investigation is not something a licensee should try to handle without legal counsel.
 
In light of these issues, this article provides guidelines for dealing with the Physical Therapy Board when a Board representative or DCA investigator contacts you as the subject of an investigation.

Sources of Board Complaints and Investigations

Sometimes, how a complaint gets to the Board is obvious, and sometimes it is not. A dispute with a patient, civil litigation or provider dispute can foreseeably find its way to the Board. Also, many health insurers, Medi-Cal or Medicare audits can foreseeably lead to a Board inquiry. In addition, a physical therapist who is convicted of a crime would expect the Board to find out about it and likely has a duty to self-report.[1]
On the other hand, a report can be made without any advance notice or warning. The Board even encourages consumer complaints and makes its Consumer Complaint form readily available on its website.[2]
Examples of surprise complaints and investigations include the following:

  1. DCA investigators show up at a physical therapist’s office and seek charts, licensing records or other documents. This could be from an unknown patient, employee or competitor complaint.
  2. A physical therapist does not bill insurance for treatment, yet a patient submits the bill for reimbursement which launches an audit.
  3. Something from another state license finds its way to the Board.
  4. Another health care provider files a Board complaint without the physical therapist’s knowledge regarding care provided.
  5. The Board utilizes Authorizations for Release of Patient Health information to gather treatment records regarding physical therapy patients.[3] The Board can even obtain one physical therapist’s charts from another provider – without the physical therapist’s knowledge![4]

No matter the cause of the Board investigation, physical therapists need to take all Board contact very seriously and obtain legal help.

Issues of Concern in Board Investigations

There are several things to keep in mind if the Board ever calls, requests information, or worse yet, shows up at a physical therapist’s practice:

  1. The Board has already investigated the case. Before this meeting or contact, the Board’s investigator has conducted a lot of investigating and knows exactly what he or she wants to ask the unsuspecting physical therapist. They have often reviewed patient charts, interviewed your angry competitor or former patient, and formed opinions about the case.
  2. A physical therapist’s statements, orally and in writing, can and will be used against them. Sometimes Board investigators have licensees fill out and sign statements, take interview notes, or ask for written responses. In some cases, they even tape record statements. The risk of this is that the Board will use admissions later in a disciplinary action. Even an outstanding lawyer often cannot escape what a client admitted in writing earlier.
  3. The Board is looking for a violation of the law. If the Board is investigating, it is looking for a violation of the law, usually the Physical Therapy Practice Act which sets forth a number of causes for license discipline. The most significant and frequently occurring of which include: conviction of a crime that is substantially related to the practice of physical therapy, gross negligence, aiding and abetting in the unlawful practice of physical therapy, and fraudulent or dishonest acts related to the practice of physical therapy. These acts are common among licensing boards as causes for discipline.

How to Respond to Contact from the Board

The conundrum with any licensing board investigation is how to protect the licensee’s interests while fulfilling the licensee’s obligation to cooperate. In particular, the Physical Therapy Board deems a refusal to cooperate or lack of response to requests for documents to be unprofessional conduct. In addition, the goal is to cooperate and educate the Board regarding the matter, without admitting things and making the situation worse.
To that end, no licensed professional should interact with a licensing agency while under investigation without preparation and legal advice. The licensee subject of the investigation lacks experience, perspective, and insight on the situation which is often their first encounter with the Board. It is imperative to hire competent legal counsel to assist in such situations when a physical therapist’s profession is at risk.


[1]Title 16, Cal. Code Regs. § 1399.24(d) sets forth what must be self-reported to the Board:

A physical therapist has to report to the Board the following within 30 days: 1). the bringing of an indictment or information charging a felony against the licensee; 2) the arrest of the licensee; 3) the conviction of the licensee, including any verdict of guilty, or pleas of guilty or no contest, of any felony or misdemeanor; 4) any disciplinary action taken by another licensing entity or authority of this state or of another state or an agency of the federal government or the United States military.

[2] See https://www.ptbc.ca.gov/forms/compform.pdf.
[3] See https://www.ptbc.ca.gov/forms/medauth.pdf.
[4] Other times the Board will a present a physical therapist with the Authorizing directly and signed by the patient, thus tipping off the physical therapist that there is a specific patient complaint.