If an investigator from an administrative agency or criminal agency contacts you or comes to your place of business or requests records in writing, the first step you need to take is contacting an attorney experienced in this area of the law. Tracy Green has given lectures to many professional associations indicating what an individual should do (and not do) when contacted by an investigator or when there is a request for records. Even a one or two hour consultation with an experienced attorney will help you prepare and not make critical mistakes that can harm you later.
An investigator may claim that “you don't need an attorney” and that the interview will only take 10 minutes. Unfortunately, their job is not to protect your rights. They prefer to catch you off-guard before you have had time to prepare or think about the issues. For this reason, they do not usually make appointments. They just “show up” at your office. In addition, they do not usually tape your interviews but have a second person there and they take down “notes” and create a report that is difficult to challenge later.
It is much easier to be proactive and handle the cases properly from the beginning than to defend an Accusation, criminal charges or other sanctions. Good beginnings make good ends.
Let's begin with general points to understand about the process.
7 GENERAL POINTS TO UNDERSTAND ABOUT REQUEST FOR RECORDS OR INTERVIEWS
- The probability of getting a board complaint or being investigated by a state or federal agency or licensing board is increasing for several reasons.First, the longer you practice, the greater chance that you will receive a complaint. Second, there is greater political pressure on the agencies, boards and bureaus in California to be aggressive and harsher on the discipline. Third, common sources of complaints are patients/clients, competitors, insurance companies and disgruntled ex-employees. People are more inclined to complain in today's world especially since it is easy for them to find out how to do it on the Internet and the forms are downloadable.
- It is important to know what is being investigated and the nature of the complaint(s) before there are interviews or responses to records are submitted. An experienced attorney knows how to find out this information in a professional manner that will make you look competent and responsible. For example, I have had numerous cases where a new complaint reactivated an old complaint that my client did not even know existed because it was closed out at the intake level. This is why it is important to know what is being investigated before there are interviews or responses to records. This is also necessary so an overall defense strategy can be implemented.
- If you receive is a request for records or interview, it often means that it has passed the intake process and a case has been opened. One issue is what case is being investigated and who is the target of the investigation. In an administrative case, after the investigation the case will be either closed or it will be forwarded to the Attorney General's Office with a recommendation for filing disciplinary action. The GOAL is to get the case closed or to minimize the allegations that are forwarded to the Attorney General. There is a range of cases ranging from meritless ones to questionable ones to difficult ones. Even with difficult cases, the goal is to have damage control and to determine how to achieve the best result possible even when the facts are not in our client's favor. The investigators have discretion and it may be that we need to help my client produce a package to the investigator showing in various ways how my client is an outstanding professional
- The government investigators or representatives are NOT your friends.They are often very friendly and one of the biggest mistake our clients make is talking to them since they seemed "so nice" or because they were afraid of "making them mad." This is a very unsophisticated approach. Investigators are trained how to minimize in order to obtain more information. There is an easy way not to antagonize the investigator while still having your attorney assert your rights. A good attorney knows how to make you look good while demanding to be present at the interview.
- Be professional and respectful even while exercising all your rights.Now this does NOT mean that we fail to be aggressive in your defense but it means that we do not antagonize the investigator or the government attorneys assigned to the case. As much as you want me to write a nasty letter threatening to sue the State or the Federal authorities, in the beginning I'll recommend instead a letter that focuses on the facts and why this investigation does not have merit. It means that we are cordial -- respecting the power that they can wield over your license -- but we are strong and professional at the same time. The fact is that they know the details of the complaint and we know nothing. This means that we need to learn as much as the investigator to the extent possible before any interview. In addition, the investigator only knows one side of the investigation and we want to educate them as much as possible. I have gotten involved in cases after my client has threatened to sue the government agency or Board, the investigator and that did not help their case. I am aggressive about defending my clients but smart about how to approach the government agencies and its investigators.
- Do NOT take investigations or requests for records lightly even if you are confidant that you did not do anything wrong. For example, assume there is a complaint by a former patient/client that you committed malpractice. The records are clear that there is no malpractice and, in fact, it was a good result. However, a review of the records shows that the recordkeeping is poor or that the billing was improper -- a surgical report is missing, the notes are skimpy, the handwriting is illegible and/or some other required information is not recorded, or there was double billing. You or your company may have been doing business with someone else who broke the law. Be prepared.
- The time to seek advice is before the records are produced or before there is any type of interview.It may be decided that a letter summarizing the facts or reasons why the investigation case should be closed is a good idea. It may also be decided with the help of the attorney that the missing record should be recreated but with a clear indication that the record was unexplainably missing and was recreated in order to give a complete record. Declarations or statements may be obtained from employees or other witnesses but this needs to be done through counsel so no claims can be made of witness tampering, obstruction or other misconduct.
Some of my clients made serious missteps by backdating records, withholding records or sending records to the investigator without reviewing, transcribing or summarizing them. Or they think that if the records are disorganized it will help them. To the contrary, if there are good facts, you want to make the job easier for the investigator and give him or her good reasons to close the case. Often the investigator may be sending the files to an expert witness and you want the expert to be able to read and understand the records, especially if there are good facts. A good summary from your attorney can help that process significantly. The advantage of the letter coming from the attorney is that it is not evidence from you.
Your professional future, the value of avoiding any charges, a clean professional record or license and your rights are of critical importance to our firm. How you initially respond to an investigation or request for records may determine if the case is resolved early, get sanctioned, get charged, get placed on probation, lose your license, or lose your livelihood or liberty.