FAQs for Professional License Investigations &/or Disciplinary Matters
“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.
“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 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.
“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.
General Licensing Board Questions
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.
“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 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.
“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.
“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.