As one of California’s leading law firms representing licensed professionals and healthcare professionals throughout the State, Simas & Associates, Ltd. has and does represent physicians, accountants, contractors, veterinarians, and many other licensed professionals in hundreds of investigations throughout our many years of practice. Because this issue arises frequently, this blog is to describe an investigation from a Department of Consumer Affairs (“DCA”) licensing board so egregious that it must be reported here.
And while our firm prides itself on or ability to professionally handle such investigations and interact with investigators from all types of Government agencies and departments, the names of everyone involved have been changed “to protect the innocent” and to respect our cooperative and professional relationships we maintain with DCA licensing boards.
Susan the “Licensed Practitioner”
Let’s call her Susan – has had a license to practice as a “practitioner” before the Practitioner Board for approximately 20 years. As many licensed professionals, Susan has had a past disciplinary action regarding a discrepancy in her billing about which a consumer complaint and the Board responded. Susan dutifully complied with the terms of the prior case, including a brief probationary period, and, at the time of the investigation of which this blog addresses, had a free and clear practitioner’s license. Sometime in about 2013, the Practitioner Board decided that it wanted to see Susan’s billing and some of her client/patient files. Susan obliged and sent this information. At that time, Susan did not believe (and had no idea) that she could have benefited from legal counsel given the Practitioner Board’s seemingly simple and straight forward request.
The Practitioner Board asked for a couple more rounds of documents based upon two consumer complaints – one stemming from timely submission of paperwork on behalf of a client/patient and the other stemming from a transmission of a client/patient file and information to a subsequent practitioner. Certainly, on its face, this investigation at this juncture seemed very innocuous to Susan.
Nearly a year into the investigation, and after Susan fulfilled her obligations as a licensed practitioner and submitted information the Practitioner Board requested, they insisted on meeting with her. While not all boards meet with licensees when they conduct investigations, such meetings are usually the result of many months of investigation and the board closing in on a conclusion in its process. Given this looming meeting, Susan immediately retained Simas & Associates, Ltd. to assist her in this matter.[1]
The Investigative Meeting
As is common, Simas & Associates, Ltd. entered the case, contacted the investigators and scheduled a meeting. The Practitioner Board insisted on meeting at our client’s office. One investigator had been on the case but the other one was new to the case.
The investigators arrived at the meeting in Susan’s conference room. They had wanted the meeting at her office of course so they could review additional files and information as requested. And as is the case in most investigations, our plan was to cooperate with the investigators and try to explain to them what happened.[2]
Within moments of sitting down, without any pleasantries, one investigator – let’s call him Tom – barked a demand for background materials on a couple of the files that Susan had previously sent. Of course this was a complete surprise as Susan was told by the prior investigator that she had what she needed and did not need the specific information Tom was now demanding. Tom then stood up, slamming his hands on the table, stating “This investigation is over.” Tom threatened to leave and take the other investigator with him.
The other investigator, Sally, looked puzzled by Tom’s behavior and, as we discovered later, had a number of her own questions for Susan. While this is not the only time in over 14 years this has happened to Simas & Associates, Ltd., it is still very rare. Nevertheless, we remained mindful of our obligation to cooperate with the investigator and educate them to avoid severe disciplinary action. So we assured Tom we would provide this information and could prove that his predecessor had told Susan he did not need it. We then proceeded to interview with Sally and answer her questions regarding the client/patient files and compile the list of additional information needed.
At the end of the meeting there were about a dozen additional items the investigators had requested. Then their letter came seeking almost 24 items including 12 above and beyond what was discussed. It became clear that they were out to get Susan and find anything wrong that they could. They even turned their sights towards her business structure, organization, ownership, and supervision of staff which have nothing to do with the alleged consumer complaints in the case.
The Moral of the Story
Of course drama makes for a good story. But the moral of this story is that the lines of communication must be maintained when a DCA board, bureau or agency is investigating a licensee. Except in a case where a licensee has committed misconduct that will certainly be grounds for discipline such as a conviction, gross negligence, etc., the best hope in thwarting serious license discipline is to educate the investigator regarding the facts of the case. Not only does the investigator turn over his or her report to the board’s enforcement branch, he or she turns over all of the evidence submitted as well.
In addition, this scenario captures the exact reason why it is important for any licensed professional to have an experienced attorney with them at any encounter, audit, board interview, meeting, interaction with a DCA or other Government investigator. Had Simas & Associates, Ltd. not been present at this meeting, the meeting would have concluded and most certainly allegations of failure to cooperate in the investigation would have prevailed.
While every investigation and scenario is different and should be evaluated by legal counsel, this is another example of why you never handle an investigation or respond to an investigator on your own.
[1] There are a myriad of reasons a licensee should retain legal counsel for such an investigation. Several of the main ones include having someone there with a different outside perspective to assist you, keeping the investigators in check, advising the licensee of his or her rights should that issue arise, and even assisting a licensee in asserting his or her right under the Fifth Amendment not to incriminate himself or herself. While we advise clients that such an investigation can be stressful and that the investigating board is not looking to tell you what a wonderful licensee you are, the purpose of this blog is to show how utterly out of hand board investigators can be.
[2] This strategy was proper given the issues in this case and is not always the proper approach.