It is a busy day in a health professional’s practice, the telephone rings, and on the telephone is an investigator from the Nebraska Department of Health and Human Services (“Department”). The investigator requests that the health professional answer a series of questions. The investigator also requests that the health professional produce documents. The health professional knows that failure to cooperate may itself be grounds for discipline of the health professional’s Nebraska license.1 How should the health professional respond to the Department’s inquiry?
The Department is responsible for the investigation of health professionals licensed to practice under Nebraska’s Uniform Licensing Law. An investigation is generally initiated upon receipt of a complaint by the Department. Upon receipt of a complaint, the Department reviews the complaint internally as well as potentially with the applicable medical board or the Nebraska Attorney General’s Office. The complaint will either be dismissed or referred for investigation.
In many cases, a health professional contacts counsel for the first time when a petition for discipline has been or is about to be filed. Oftentimes, this puts the health professional at a significant disadvantage. This article focuses on the period of time between the Department’s decision to initiate an investigation and the ultimate decision to institute disciplinary proceedings.2
Development of a Balanced Factual Record
The best result a health professional can obtain in an investigation is to persuade the Department, applicable medical board and the Attorney General’s Office that no disciplinary action is appropriate. The next best result would be a negotiated settlement under disciplinary terms the health professional believes are fair given the conduct in question. The final option would be to contest the Department’s allegations at a formal hearing and convince the hearing officer and the Department that either no, or a limited, disciplinary action is appropriate.
The key to obtaining a favorable result under any of the above scenarios is the development of a balanced factual record which puts the health professional’s alleged conduct in the best possible light. Unfortunately, at the point a petition for discipline is ready to be filed and a formal hearing scheduled, the factual record is virtually complete from the Department’s perspective. Accordingly, any decision regarding the filing of a petition for discipline will likely be based on the Department’s version of the facts. This can be problematic for a variety of reasons.
First, the health professional has likely been formally and informally interviewed in person and by telephone by the Department investigator. The health professional may not have any notes or other accurate record of the interviews to clarify or question the Department’s version of the facts. The Department, on the other hand, often has detailed notes, and in some cases, transcribed recordings of the interviews.3
Second, during the course of the investigation, the health professional may have produced documents to the Department informally or in response to a subpoena without identifying4 or retaining copies of the produced documents. This leaves the health professional in the dark with respect to which documents the Department and the Attorney General’s Office may be relying upon in connection with any decision to institute disciplinary proceedings against the health professional.
Third, the health professional may have filled out an incident or other report in connection with the incident under investigation. In doing so, the health professional may have given little or no consideration to the impact the responses in such a report may have on a subsequent Department investigation.
Fourth, the health professional may not realize that in some cases a copy of the Department’s investigative report may be obtained, reviewed and discussed with the Attorney General’s Office prior to the filing of any petition for discipline against the health professional.
Finally, in the event a formal hearing becomes inevitable, the health professional must insure that the health professional’s version of the alleged conduct has been fully developed and set out in writing as part of the agency record. Under Nebraska’s Uniform Licensing Law, the Department’s Director of Regulation and Licensure or Chief Medical Officer may issue findings of fact, conclusions of law and disciplinary sanctions based only on a review of the written agency record and independent of any recommendations from the hearing officer.5 Further, any appeal to the state district court pursuant to the Administrative Procedures Act is an extremely limited re-examination by the Court based only on a review of the written agency record.6
During the course of an investigation, a health professional should also keep in mind the following collateral considerations:
1. Professional Liability Insurance: Any applicable professional liability insurance policies should be reviewed for notification requirements.
2. The Health Professional’s Relationship with the Department: As noted above, failure to cooperate with a Department investigation may itself be grounds for discipline. The health professional therefore needs to consider how to maintain full cooperation with the Department (the health professional’s day to day regulator), while at the same time defending any prior conduct that may be called into question by the Department’s investigators.
3. Licensure in Other States. The reporting requirements in any other States where the health professional is licensed should be reviewed for notification and renewal requirements.
4. Criminal Investigation: In the event there is, or may be, a criminal investigation regarding the conduct that is the subject of a Department investigation, the health professional must give careful consideration to any statements the health professional provides to the Department in the event they are subsequently provided to criminal authorities.
5. Civil Litigation: The health professional must also give careful consideration to any statements the health professional provides to the Department in the event such statements become discoverable in any related civil litigation by the Federal Government, State Government or private parties.
6. Controlled Substance Registration Certificate: In any investigation regarding controlled substances, a health professional must consider the effect on the status of any Controlled Substance Registration Certificate, or any renewals thereof.7
Counsel: Pros and Cons
Given the above considerations, a health professional may want to weigh the following factors in any decision whether to consult with counsel once the Department initiates an investigation:
1. Department Requests: Can counsel assist the health professional in truthfully and completely responding to the Department’s requests in a fashion that: (1) puts any alleged conduct by the health professional in the best light, and (2) takes into account related collateral considerations.
2. Counsel as Advocate: Can counsel identify and raise good faith legal or factual issues on behalf of the health professional. If such issues are identified and raised by counsel rather than the health professional, does this prevent the health professional from being viewed as uncooperative. Further, can counsel assist the health professional to insure that the health professional’s version of the alleged conduct has been fully developed and set out in writing as part of the agency record.
3. Coordination With Other States: Can counsel be of assistance in handling issues raised by a health professional’s licensure in multiple States.
4. Joint Defense Arrangements: Can counsel for the health professional work with counsel for other parties targeted in an investigation to share information about the investigation without raising privilege waiver concerns.
5. Cost: Consulting with counsel will obviously increase the out of pocket costs to the health professional in an investigation. The health professional will therefore have to weigh the future benefit of these costs.8
All investigations are unique and may require different levels of counseling. The above considerations should assist the health professional in determining what role counsel should play in an investigation.
1 See, for example, 172 NAC 88-013.5 (physicians); 172 NAC 56-010.11 (dentists); 172 NAC 101-007.03(17) (nurses); and 172 NAC 128-009.9 (pharmacists).
2 The Department’s website provides an excellent overview of the entire disciplinary process, which is beyond the scope of this article. See http://dhhs.ne.gov/publichealth/Documents/discproc.pdf.
3 Under Nebraska law, the investigator may record the investigator’s telephone interviews with the health professional, unbeknownst to the health professional. Neb.Rev.St. § 86-290(2)(b)&(c).
4 Any document produced in an investigation should be stamped with unique sequential numbers in order to identify the source of the document in the event it surfaces later in the investigation as a key document.
5 There is also no requirement that the Department’s Director of Regulation and Licensure or Chief Medical Officer actually attend the formal hearing to see and hear the health professional and other witnesses, view their demeanor and judge their credibility before issuing findings of fact, conclusions of law and disciplinary sanctions.
6 See Buser v. Raymond, 476 F.3d 565 (8th Cir. 2007)(Beam, J. concurring).
7 If a Controlled Substance Registration Certificate is suspended, revoked, or expires during the pendency of an investigation, an informal temporary extension may be obtained from the DEA under certain limited circumstances. DEA reporting requirements regarding missing controlled substances must also be considered.
8 Note, however, that in some cases, professional liability insurance may cover all or a portion of counsel fees.
“This article appeared in the May 2007 issue of The Nebraska Lawyer”.