What do I do if I have received a letter notifying me I am under investigation from my licensing board?

Don’t panic. Most licensing boards are legally required to open an investigation upon receipt of a complaint against a licensee (assuming the Board has jurisdiction). ​ Don’t disregard timelines. If you’ve received a letter of investigation you will be directed to respond in writing to the letter within a certain period of time and may also be directed to provide documents or other materials at the same time. Most licensing boards are willing to provide a reasonable extension of time to respond if needed, but don’t let the deadline go by or simply ignore the letter. Try not to be defensive. It’s natural to want to defend yourself against allegations made against you, but the licensing board staff member/investigator is simply trying to gather information about the incident. This is your initial opportunity to provide the licensing board with information regarding the issue in question and to explain your side of things; this is not the time to mount an aggressive defense. ​ Do seek legal assistance as quickly as possible. While you may feel that you can respond to the letter on your own, legal counsel experienced in administrative licensing matters can help ensure that the response letter sent to the licensing board addresses not only all factual issues involved in the case, but legal issues, as well.

The Often-Overlooked Consequences of Licensing Board Actions

A formal administrative action initiated by a licensing board against an individual holding a professional license or certificate may result in the imposition of disciplinary action. Such discipline can range from public reprimands and fines to suspension or revocation of a license/certificate. If discipline is imposed after a hearing or through a negotiated settlement, it is crucial to be aware of potential ancillary consequences of that discipline. ​ Reciprocal Actions Reciprocal actions are just one of the potential issues that can arise after a board has imposed discipline against a licensee or certificate holder. Reciprocal actions are disciplinary actions taken by other boards solely based on the action taken by the initial board. While laws vary, the great majority of professional licensing boards in almost all states have a provision in their statutes or regulations allowing for discipline to be imposed after another state has imposed discipline against one of their licensees. These cases are almost impossible to mount a defense against as typically the only thing needed to prove the secondary case is a copy of the filed order imposing discipline from the initial board. For individuals who hold licenses in multiple states, this can result in a flood of additional disciplinary action, including in some states that will take reciprocal action even if the licensee’s license is lapsed or otherwise inactive. While reciprocal actions are typically based only on the fact that discipline was taken by another board, it is crucial to mitigate the potential for further action by determining whether there is an affirmative duty to report discipline taken before the license renewal period in another state. Some states require that a licensee report within a certain time period, sometimes ten to thirty days, any formal disciplinary imposed in another state. Failure to provide a timely disclosure could result in the other state taking further action for failing to properly disclose. Finally, while reciprocal actions are most frequently associated with actions taken by an out-of-state licensing board, there can be reciprocal action taken by other boards in-state as well. For instance, in Nevada, if a healthcare provider was disciplined by their primary licensing board for an issue pertaining to dangerous drugs or controlled substances, they may find themselves facing action against their state-controlled substance or dispensing registrations. It is vital to understand what the potential consequences may be from another state board when determining the best course of action when faced with pending disciplinary proceedings mitigation that triggers reciprocal actions stemming from the initial action. ​ NPDB The National Practitioner Data Bank (NPDB) is an acronym well known to most physicians. However, many individuals whose professions require a license issued by a state body are unaware that they may be impacted by the NPDB as well. The NPDB, in the simplest terms, is a data bank created by federal law which requires certain entities, such as state licensing boards, medical facilities, state Medicaid fraud units, among a myriad of others, to report certain actions to the NDPB. The regulations governing the NPDB (found at 45 CFR part 60) dictate what entities must report adverse actions and against whom. Disciplinary action taken against a licensee must, in almost all circumstances, is one of the actions which must be reported to the NPDB by a state licensing entity. This includes actions taken against physicians, nurses, marriage and family therapists, opticians, audiologists, dentists, and pharmacists, just to name a very few of the professions subject to NPDB reporting. ​ While the NPDB is not accessible to the general public, health plans, professional associations and medical facilities are among those entities which are entitled to query the database for information related to an individual who may be applying for or renewing facility staff privileges, applying for employment (in certain entities), updating credentials with an insurance carrier, or perhaps applying for a license in another state. Adverse information showing on the NPDB can potentially impact the ability of an individual to obtain credentials or licenses with other entities or maintain those that they may already hold. ​ This is certainly an oversimplification of the NPDB and its potential impacts. However, individuals who do hold licenses to practice their profession should be aware of the potential for a report to be filed with NPDB should their licensing board taken disciplinary action against them. ​ Professional Associations/Specialty Boards In addition to holding the necessary licenses to practice their profession, many individuals hold additional certifications that may be issued by professional associations or specialty boards. Such certifications may be issued by entities such as the member boards of the American Board of Medical Specialties, the American Academy of Nurse Practitioners Certification or the National Board for Certified Counselors as examples. Holding such certifications may be required for employment, to hold credentials at facilities or may be prerequisites to practicing in certain specialty fields within a profession. These organizations all have their own rules and regulations and generally have a disciplinary policy that allows the organization to initiate disciplinary action, which can include revocation of a certificate, against a member/certificate holder. For most of these organizations, certain state licensing board actions are grounds for initiating their own disciplinary process which can have far reaching effects on an individual’s ability to practice their profession. Individuals who hold such certifications should always be aware of whether they are required to report an action taken by a state licensing entity to the certifying organization to avoid additional repercussions. ​ These are only three examples of the unintended consequences of state licensing actions. Individuals who are facing potential action by their licensing board are strongly encouraged to seek legal counsel familiar with these issues to assist in navigating the additional consequences associated with licensing board actions.

Defending Your Occupational License, Without Being Defensive

Receiving a notice that you are under investigation by your occupational licensing board is an extremely stressful event. The initial reaction of many receiving such a notice is to panic that this means the end of their professional career. The good news is most frequently that is not the case. Notices of investigation from an occupational licensing board generally request that the recipient respond to the allegations contained in the notice. While it is of course natural to want to vigorously defend yourself from any allegation, it is critical in responding to a notice of investigation to avoid becoming defensive or overly aggressive in the response. Crucial facts that a board may need to know about the matter often get lost in overzealous responses. Except in those circumstances when a board itself initiates an investigative complaint, boards do not pick and choose who to investigate. For instance, both the governing statutes for the Nevada State Board of Medical Examiners and the Nevada State Board of Nursing provide that those Boards “shall” conduct an investigation when they receive a complaint about a licensee with limited exceptions. When a board receives a complaint against one of its licensees, it has received only one side, and often only a partial bit of the story. A response to a notice of investigation is the license holder’s opportunity to provide the board with their side of things, to dispute or clarify allegations that may have been raised. Implying that the allegations are ridiculous or that the suspected complainant (most times the identity of the complainant is withheld) is vindictive for some reason does not provide the board with the facts. Context is needed to determine whether the allegations raised in the complaint require more formal disciplinary action or whether the investigation may be closed. Before responding to a notice of a board investigation, it’s wise to take a step back and think critically about what information the board needs to truly evaluate the matter. Additionally, it is highly recommended that legal counsel be consulted before submitting any response to a board investigation. Legal counsel experienced in administrative/licensing matters can help identify potential issues that may need to be addressed proactively and pitfalls to avoid. Further, legal counsel can respond to alleged violations of statute and regulation which are typically included in the notice of investigation. Often professional liability policies cover legal costs associated with responding to board matters, with certain restrictions, so it’s good to check your policy to ascertain whether it can help defer all or some legal costs.

What do I do after I've responded to the licensing board's letter of investigation?

Don’t expect a response immediately. While most licensing boards attempt to review investigative cases as quickly as possible, many boards engage in some independent investigation regarding the allegations contained in the complaint which may take some time. Also, there may be several cases that must be reviewed prior to your specific investigative matter.
Upon reviewing the investigative case, most licensing boards (depending on the laws governing the board) will notify you if the matter is being closed or if formal disciplinary action is being initiated in the matter.

What happens if my licensing board initiates formal disciplinary action against me?

If you have not already retained counsel, do so immediately. You should not attempt to defend yourself in a formal disciplinary matter. Every state licensing board has slightly different procedural processes for formal disciplinary matters, but most formal disciplinary complaints are resolved either through a settlement/consent agreement or after a formal hearing is held. Legal counsel can advise you regarding your options for resolution and the risks and benefits of each option.

The Importance of Proper Nursing Documentation

Nurses are under tremendous stress under normal circumstances and during the pandemic that stress has only increased. While the demands placed on nursing staffs have increased, it is critical for nurses to ensure that the accuracy and timeliness of completing charting duties does not decrease. Proper documentation is a critical part of a nurse’s duties and in Nevada a nurse has certain legal obligations related to the creation of a chart record. For instance, the failure to properly document the administration or wastage of a controlled substance may subject a Nevada licensed nurse to potential disciplinary action. The same is true if a nurse’s charting is inaccurate or a record is altered. Chart documentation is not simply a requirement of a nurse’s duties but can also be a proactive way to defend against potential complaints about inappropriate conduct or care raised by an employer, a potential Nevada State Board of Nursing complaint or in a civil malpractice matter. In essence, if it is not in the record, it didn’t happen, regardless of whether that truly is the case. Below are just a few quick pointers to keep in mind regarding documentation. ​ Timeliness: Documentation should always be completed as soon as possible. While nurses are often allowed the opportunity to complete chart notes at the end of their shift, during a busy shift crucial details can be forgotten in the interim between providing care and documenting that care. Documentation related to the administration or wastage of a controlled substance should always be done immediately except in the most emergent circumstances. ​ Accuracy/Completeness: It is imperative that nursing documentation be accurate and contain sufficient detail not only about the care provided to a patient and the administration of medications, but other details as well. Such details include communications with other healthcare providers for the patient or interactions with family members. Try to avoid overusing abbreviations unless they are very commonly used. Remember you are writing not for yourself but other third parties who will utilize your note. ​ Correcting Errors/Amending Records: Under no circumstances should a record ever be altered. If an error has been made or an amendment to the record is required, such an amendment should be done in accordance with facility/practice policy. Electronic record systems often have specific requirements as to how to amend a record, be sure to understand how to properly do so. When in doubt, speak to your charge nurse or director of nursing as to how to correct or amend a patient chart. While proper documentation can be time consuming and arduous work, it is an absolute necessity for both proper patient care and to proactively defend oneself against potential issues in the future.

What do I need to know when renewing my professional license or certification?

Every state occupational licensing board requires a license holder to renew that license on a regular basis. Renewals are typically made every one to two years, depending on the board. The date for that renewal is often different; some boards renew on the license holder’s birthday, some at the end of the calendar year and others on specific dates throughout the year. Here are a few things to keep in mind to when preparing to renew a license or certification:​

1. Know when you need to renew and put it on your calendar. Many boards have moved away from sending reminders to license holders or may send only one reminder. Unfortunately, many license holders miss their deadline for renewal resulting in practicing their profession without a license. This is generally grounds for disciplinary action to be initiated against the license holder.
2. Make proper disclosures. Renewal applications generally will ask for information regarding events that occurred from the last renewal date to the deadline for the upcoming renewal. Be sure to carefully read all questions on a renewal application to determine whether or not a disclosure is required. For instance, a license holder may be asked about investigations or administrative actions taken by other states. An out-of-state board investigation may have been disclosed during the last renewal cycle, but the investigation continued into the new renewal cycle, or administrative action may have been taken in the matter after the last renewal. In such circumstances the out-of-state action most likely will need to be disclosed depending on the language of the questions on the renewal application. Also, don’t assume that an out-of-state investigation that closed with no action doesn’t require disclosure. Again, make sure to read the language of the renewal carefully.
3. Don’t assume your Continuing Education credits won’t be audited. Many licensing boards now simply require a license holder to attest that they have completed the continuing education units required for license renewal. Never attest that you are in compliance unless you truly are. Most boards will randomly audit CEUs and if you have attested to compliance but are short units, you may be deemed to have renewed your license by false or misleading information which could result in the initiation of discipline action.
4. Beware of third-party renewal submission. If you practice your profession in a setting in which a third-party staff member or credentialer is responsible for preparing renewal applications, ensure that individual has all updated information required to submit an accurate renewal application. You will be attesting to the accuracy of the information provided and if there is an omission or incorrect information provided, you will be held responsible.

What is the process for Nevada State Board of Pharmacy Controlled Substance Registrations?

Nevada is one of several states that require prescribing practitioners (physicians, physician assistants, nurse practitioners) to obtain a state issued controlled substance registration in addition to a DEA registration prior to prescribing controlled substances in the state. The application is filed with the Nevada State Board of Pharmacy. While the application is very brief, practitioners who are required to answer affirmatively to any of the background questions on the application regarding prior criminal or administrative actions, may be required to make a personal appearance before the Board at a regularly scheduled meeting prior to considering whether to grant the registration. Practitioners should also be aware that any supporting documentation submitted with an application are considered public documents under current law. Practitioners should seek legal counsel should they have any questions prior to submitting a controlled substance registration application.

Disclosures of Sealed/Expunged Criminal Actions

If you have ever had records related to a conviction or even an arrest sealed or expunged in any state prior to applying for a license from a Nevada occupational licensing board, do not assume that you do not need to disclose that information in your application. Several licensing boards in Nevada specifically request an applicant to disclose arrests or convictions that were previously expunged or sealed while other boards simply request full disclosure of an individual’s criminal background. Nevada licensing boards require that fingerprints be submitted during the application process for background checks through the FBI. These background checks may show criminal actions that an individual has sealed or expunged in the applicable state but which have not been expunged from FBI records. The failure to disclose these actions can often cause the applicant significant difficulties including the possibility of the denial of the license. Always consult legal counsel prior to submitting an application for an occupational license if you have criminal records that have been sealed or expunged.

Do I need to notify my licensing board if I was recently arrested or convicted for a misdemeanor?

You will typically be required to make a disclosure to your licensing board regarding an arrest or conviction, however when such a disclosure is made is dependent upon the statutes and regulations governing your licensing board. You may be required to report the arrest/conviction to your licensing board within a certain period or time or may be able to make the disclosure at the time of your next license/registration/certification renewal. Failure to make a timely disclosure can result in a licensing board initiating formal disciplinary action.

Disclosures in General

Every state licensing board specifies certain events/occurrences that must be reported to the board within a specified period of time or disclosed on a renewal application. Such events include a professional malpractice claim being filed in court, loss or change of hospital privileges, loss of professional liability insurance, etc. Be aware of disclosures your licensing board requires and when. Legal counsel can help in determining what and when disclosures must be made and can assist in drafting appropriate disclosure statements.

I was notified that I need to appear before a licensing board before they will issue a license, what should I expect and should I have counsel?

Licensing boards are required to notify you of the reason why they want to meet with you, but often will reserve the right to ask you about other matters that may come up during your board appearance. You should fully review your license application and any supporting documents prior to the meeting and should have a copy of your application and attachments with you at the time of the meeting. While counsel is not always necessary at such appearances, it is advisable to consult with legal counsel prior to such an appearance. The denial of a license for a professional license/registration can have far reaching consequences and often there is limited, if any, ability to appeal or request reconsideration of a denial so proper preparation and representation, when necessary, is absolutely required.

Informed Consent Documentation for Pain Prescriptions

Prescribing practitioners in Nevada are readily aware of the significant legal changes that were enacted after the 2017 Nevada legislative session regarding the requirements for prescribing controlled substances for the treatment of pain. Additional changes were made in 2019, including addition requirements for documenting a patient’s informed consent before prescribing a new controlled substance prescription for pain. NRS 639.23912 previously directed practitioners to discuss items such as the risks and benefits of the treatment, proper use of the prescription, alternative treatments, etc. with the patient. The 2019 changes now require a practitioner to also document in the patient’s chart that a discussion with the patient occurred covering the required informed consent factors and that the patient gave informed consent to initiate the prescription. If a written informed consent was provided, that should be included in the patient’s chart; but be aware, simply having the required prescription medication agreement (pain management contract) in the patient’s chart does not satisfy the informed consent documentation requirement.