Most physical therapists will hopefully never need the information in this article. But even a successful, kind, caring, and skilled practitioner sometimes cannot avoid the dreaded Physical Therapy Board complaint or investigation.
In talking to hundreds of health care providers, including physical therapists, over the years, the most surprising issue to them is how a seemingly small patient or other issue can “snowball” into a full-blown license investigation. While a criminal conviction or a civil malpractice judgment are apparent triggers for Board inquiry, a family member complaint, mistaken insurance pre-bill, or angry competitor, ex-employee, or colleague are not obvious triggers.
There are three general rules when dealing with licensing investigations and disciplinary actions from Boards within the Department of Consumer Affairs (“DCA”):
- 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.
- 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 aBoard 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 or audit can foreseeably find its way to the Board. Credentialing bodies and employers such has hospitals, health plans, and networks, often report issues and complaints they receive. And the Board even has mandated requirements for physical therapists to “self-report” within 30 days the following:
- The bringing of an indictment or information charging a felony against the licensee.
- The arrest of the licensee.
- The conviction of the licensee, including any verdict of guilty, or pleas of guilty or no contest, of any felony or misdemeanor.
- 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.
- Any report required to be made pursuant to Business and Professions Code section 802 regarding settlements, judgments, or arbitration awards.
The majority of complaints though come as a great surprise to our clients and can be made without any advance notice or warning. And the Board even encourages consumer complaints and makes its Consumer Complaint form readily available on its website.
Examples of surprise complaints and investigations include the following:
- DCA investigators show up unannounced at a physical therapist’s office, with their physical therapist experts and seek charts, licensing records, or other documents. This could be from an unknown patient, employee, or competitor complaint.
- A physical therapist does not bill insurance for treatment, yet a patient submits the bill for reimbursement which launches an audit or inquiry into the services provided.
- Board action or issue from another state license finds its way to the Board.
- Another health care provider files a Board complaint without the physical therapist’s knowledge regarding care provided.
- A family member of the patient is unhappy that a modality is not covered by the patient’s insurance and files a Board complaint.
- A colleague’s or employer’s charts are reviewed by the Board or its expert and an investigation commences against the charting physical therapist.
- A health care provider in the chain of care of a patient has a complaint or her charts reviewed and this leads to an inquiry or investigation of a treating physical therapist.
The Board also provides on its website the Authorization for Release of Patient Health information to gather treatment records regarding physical therapy patients. So the Board can even obtain a physical therapist’s charts from another provider –without the physical therapist’s knowledge!
Because Board investigations are confidential, no matter the cause of the Board investigation, physical therapists need to take all Board contact very seriously and obtain legal help as soon as possible.
The Investigation Conundrum
For nearly all licensed health care providers, any investigation presents a conundrum –do I respond and how much do I tell the Board? The answer is “it depends.”
In rare cases, we may advise someone to not respond or provide very little information, but in a majority of cases, a thoughtful planned response is helpful to the licensee. Educating the Board can convince the Board to close the investigation, but doing so without a plan paves the road to license discipline.
So while you usually must respond, 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:
- 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.
- 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 on in a disciplinary action. And even an outstanding lawyer often cannot escape what a client admitted in writing earlier.
- 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.
- The Board is looking at your charts. If the investigation involves patient care, the Board has looked or is looking in detail at your charts for violations. If something is not in the chart such as a plan of care or a physician’s diagnosis, the Board assumes it never happened.
How to Respond to Contact from the Board
The goal of any licensing board investigation is to get the matter closed or to minimize the harm to our licensee-client. To achieve this, we must balance 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 significant 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.
Many times, the Board will just ask for records or charts and the physical therapist is inclined to simply give them to the Board. But that is not the end of it—there is an underlying complaint or issue that caused the Board’s request that must be addressed in a more thorough response. And sometimes, if a care issue is obvious, it is time to hire an expert to review our client’s charts to further educate the Board and start defending the case.
The Dreaded Interview
The most fear-inducing component of a Board investigation is when the investigator seeks to interview the subject of the complaint. Depending on the case, we may have gleaned an understanding of the issues or we may still be I the dark. But the most significant risk of an interview is that the possible areas of inquiry are boundless and uncomfortable:
- Questions about any patient care for which the physical therapist could not prepare
- Questions about drug and alcohol use, including requiring the licensee to provide a urine sample during the interview
- Mental and physical health issues
- Review of charts –on the spot –without preparation
- Questions about criminal history
- It can be tape recorded to use against you later
Because the interview is often the last stage of the investigation, the investigator has done his or her homework by this time and formed opinions about the care, the complaint, and the case. And given that the Board can subpoena records, information, and licensees for interviews, it is very difficult to avoid attending one. Thus, a physical therapist should never attend such an interview without detailed preparation and legal counsel present with them.
Investigations as a Path to License Discipline
The best way to avoid license discipline, is to aggressively and strategically respond to and defend an investigation. The earlier a licensee hires legal counsel to start responding, the better chances the licensee has of closing or minimizing the impact of the investigation and any forthcoming discipline. Even a physical therapist who has a patient care issue or charting issues, has time to correct the problems by the time any discipline arrives simply by engaging in and defending the investigation. And defending the investigation can result in much lesser discipline, or even a Citation instead of an Accusation.
Once the Board issues license discipline, or even a Citation, they become public records. So, we cannot underemphasize the need to tackle any response to the Board’s inquiry or investigation with diligence, preparation, and with the assistance of experience attorneys. For questions regarding this article or assistance with a Board matter, please call us at 888.999.0008.
It is imperative to hire competent legal counsel to assist in such situations when a physical therapist’s profession is at risk.
Steven L. Simas is the founder of the Health Care and Administrative Law firm of Simas & Associates, Ltd., in Sacramento, San Luis Obispo, San Jose, and San Diego, California.
firm has proudly served as legal counsel to the California Physical Therapy
Association since 2004. Mr. Simas
practices in the areas of Healthcare Regulation, Professional Licensing and
Regulation and Employment Law. He can be
reached at firstname.lastname@example.org or at
888.999.0008. For further information and resources please consult the firm’s
website at www.simasgovlaw.com.
Title 16, Cal. Code Regs. § 1399.24(d).
 See http://www.ptbc.ca.gov/forms/medauth.pdf.
 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.
 In a case of possible drug diversion or criminal charges, we may advise a client to assert Fifth Amendment Rights.