Worried about being investigated by your New Jersey professional licensing board (“Board”)? If so, we’ve got good news and bad news for you.
The good news? Most professionals complete their careers without ever being investigated by their Board.
The bad news? Board complaints, at least in New Jersey, are relatively easy to file. Thousands are filed each year. Unlike a civil lawsuit, the complainant does not have to pay a filing fee, does not have to spend money on an “Affidavit of Merit” or hire an attorney. The complaint forms can typically be downloaded from the various Board websites and simply sent in. Therefore, these factors make it much more likely that you will be investigated by your licensing Board than it is you will be sued for malpractice.
Licensing Board’s exist in order to protect the public. Therefore, they take this responsibility seriously. Your obligation as a licensee is to cooperate with the Board. Presented below are a few commonsense steps for your consideration — things to do before the Board’s investigation letter arrives; things to avoid doing when that letter arrives, and things you should do upon receipt of the Board’s investigation letter.
What to Do Before the Board’s Investigation Letter Arrives:
- Review your professional liability policy. Make sure it provides coverage for New Jersey licensing board investigations. In addition, make sure that the amount/terms of such coverage are adequate for your practice. If you don’t have such coverage or the amount/terms are inadequate, talk to your insurer. They will likely be happy to provide you with increased coverage – for a price, of course. And, as always, don’t be afraid to shop around for better coverage or better rates.
- Have a trusted team in place. Long before that dreaded letter from your licensing board arrives, you should have a consultative team of professionals in place. Members of that team would typically include clinicians that know the ins and outs of record keeping, practice techniques, etc. and an attorney that understands the legal, ethical and practical dimensions of your mental health practice.
What Not to Do When the Board’s Investigation Letter Arrives:
- Don’t ignore it: Resist the temptation to ignore the Board’s letter – it won’t just go away. Ignoring it could transform a minor issue into a much more serious one. Remember that one of your obligations as your Board’s licensee is to respond to its’ inquiries in a timely manner.
- Don’t try to handle it yourself: Resist the temptation to respond to the letter yourself. At a minimum, consult with an attorney experienced in working with your licensing Board before doing so. Better yet, let the attorney draft the response with your input and assistance. Don’t simply turn your file or other materials requested by the Board without a thorough review by a legal professional. Additionally, don’t agree to meet with an investigator for the Board or related agency without your legal counsel present.
- Don’t try to contact the complainant: The time to try to explain to, apologize to or argue with the suspected complainant has passed. Trying to contact them may well be construed by the Board as attempted witness tampering, harassment, etc. Doing so can only end badly.
- Don’t mess with the records: Do not alter or add to your notes or other records after you have received the Board’s notice letter. Doing so is unethical and may well be criminal. Better to be faulted for poor record keeping than fraudulent practices.
What to Do After the Board’s Investigation Letter Arrives:
- Contact your professional liability carrier. Giving them timely notice is typically your obligation under the policy and triggers the insurer’s duty to defend you. As a practical matter, the sooner you provide them notice, the sooner an attorney can be retained to defend you.
- Contact your attorney: As stated earlier, you should have an attorney in place that understands your licensure and your practice before a Board letter arrives. Don’t leave this to the last minute. Don’t assume your real estate lawyer or divorce lawyer can handle it. You owe it to yourself (and your livelihood) to be represented by an attorney that has substantial prior experience with your licensing Board and is expert in the legal, ethical and practice issues involved.
- Get organized: Begin assembling the documents requested by the Board. Typically, these will include the entire case file, including clinical notes, billing records, all correspondence (including emails) sent and received; your resume and proof of your having completed the CEU’s required for the last completed licensing cycle. Therefore, assembling them early on and having them ready for your attorney’s review will help him or her help you. Putting together a narrative or timeline of events for your attorney is another effective way to help them help you.
Please note that the foregoing is intended as general information and should not be relied upon as specific legal advice. If you would like a legal consultation with respect to your specific New Jersey licensing Board matter or other legal concern, please contact Attorney David C. Barry at (732) 238-8686.