By: Teresa Ayling
DISCLAIMER: These suggestions are not meant as legal advice. They are general in nature and may not be helpful in your case, and could be counterproductive in some situations. It is best to seek legal advice for your particular situation. This memorandum anticipates some question that might arise when a health professional believes he or she might have been reported to a licensing Board. It does not deal with questions that come up after the professional receives a communication from a Board.
I have been put on a performance improvement plan by my employer. Will I be reported to my Board?
It depends on the reason for the employment discipline. Not everything that can lead to employment discipline will necessarily lead to a report to the Board. To learn more about the reasons for licensing actions, you can take a look at your professions practice act and regulations on your Board’s web site, or consult an attorney.
May I continue to work after I have been reported to my disciplinary Board?
A licensed professional may continue to work during the pendency of a disciplinary action unless specifically prohibited from doing so. In some circumstances, Boards have the power to suspend a license pending disciplinary action, but typically use it sparingly. You will receive a very specific notice if your right to practice is suspended pending disciplinary action. If this occurs, you should promptly seek legal advice. It is a very serious matter.
Should I report myself to the Board?
You should review your practice act to determine whether self-report is required. Even if a self-report is not required, if you are certain that a report has been made by someone else, you might want to consider a self-report to get a chance to tell your side of the story up front. In the alternative, you might consider a voluntary report to and participation in HPSP (see next question).
Are there any alternatives to a self-report to the Board?
If you are a health professional suffering from a physical illness, mental health problem, or chemical dependence problem, you might want to voluntarily self-report to the Health Professionals Service Program (HPSP). HPSP is a diversion program which monitors health professionals to determine whether they are able to practice safely. It is a rigorous program, and the health professional must be committed to abiding by the agreement entered into with HPSP. If you do not do so, HPSP will report to the Board, and you will go through the disciplinary process. Check the HPSP web site or talk to an attorney for more information.
After how much time can I be sure the Board is not going to come after me?
The Boards prioritize matters, and how quickly they get to yours will depend on a number of factors which can range from when the Board receives the report, the seriousness of the offense, potential danger to the public, how much time the Board takes to investigate and prepare paperwork, whether you have been before the Board on prior allegations, staffing levels of the Board, other business before the Board, and other matters. You might hear from the Board quickly, but it could also be nine months to a year or longer before you hear anything.
Be sure your professional Board has your current address, and if you are going to be away for any length of time, have a trusted person check your mail for you while you are gone. There often is a very short length of time to respond to a Board inquiry, typically a matter of days.
Should I collect documents from my previous employers?
There are some documents you can collect, and some you must not. For example, do not take patient medical records. Doing so violates your duty of patient confidentiality, HIPPA, and the Minnesota Health Records Act.
Do not destroy any documents. It will be held against you if you do.
Do write a letter to your past employers asking for a copy of your personnel record. Do so even if you think your prior reviews might be bad. The Boards often get past employment records and ask you about them. Having the records will help you prepare. You certainly do not want to say you were never disciplined before, only to find out later that there are numerous written warnings in your file you forgot about or did not know about.
Do save performance reviews, complimentary notes, emails, and cards given to you. Also save copies of correspondence or documents from your employer about any allegations of wrongdoing or potential employment discipline.
Can I throw this stuff away?
Do not destroy any documents, recordings, electronic matter, or other materials if you think that some sort of disciplinary action or other legal action might occur. If you do so, it will be presumed that the material was unfavorable to you.
I made a mistake. Is there anything I can do to improve my situation?
Usually there is, even in situations where there is a negative patient outcome. You can engage in appropriate remedial action or education on your own. For example:
- Nurses and doctors who make medication errors, documentation errors, or have problems learning a new computer system can purchase a book, find a training program, or participate in an on-line education program to improve their knowledge or skills.
A therapist or psychologist who is questioned about professional boundaries might do some reading and education, and consult with an expert on boundary issues. If the employer will pay for the training, that is great, but you may have to finance it on your own.
Obtaining additional education will not only be good for you (because you will have more skill and confidence), but your employer will be impressed by your initiative, and if the matter comes before the Board, the panel will have more confidence that you can safely practice if you have taken these steps. Keep paper evidence of the education you have undertaken.
An occupational or physical therapist with anxiety or depression interfering with his or her work has options too. If you have a health problem that is interfering with your ability to do your job, get medical care and talk to your doctor (and attorney) about asking for appropriate reasonable accommodations under the Americans with Disabilities Act.
Remember that you also might be able to take a full or partial medical leave of absence from your job under the Family Medical Leave Act, Americans with Disabilities Act or the Minnesota Human Rights Act if your psychologist or doctor advises you to do so, to get the care or treatment you need. You might be able to tap into sick pay or disability insurance, or even social security disability, depending on your available coverage and the nature and extent of your illness. Continuing to practice when it is unsafe to the public because of illness, untreated chemical dependence, or other factors will reflect badly on you and may be a licensing violation. Taking the initiative to get the medical care or other help you need, and returning to work when you and your doctor believe that you can again practice safely will reflect positively. Contact your attorney for advice on what types of leave may be available to you, and the process for requesting a leave from your employer in a way that is most beneficial to you.
Caregivers and families of military personnel are sometimes at risk of making errors on the job, whether through worry or fatigue. There are laws in place that may help some employees retain their jobs, while taking a leave of absence to assist close family members.
- If you conclude the job you have is not a good fit for you, seek adjustments and/or look for a job that is a better fit.
I am worried that I will forget what happened by the time I hear from the Board.
You should prepare a chronology or other notes about events or allegation for your attorney. Preparing such notes for your attorney may preserve their confidential nature. However, keep in mind that such notes might be discovered by the Board or an adverse party in a malpractice action, so keep to the bare facts, and do not use the notes to express your feelings. Facts that are helpful include what happened, where it happened, date and time, and who else witnessed or was involved. Use initials or other indicators such as “Patient A,” rather than patient names in your chronology. Take further precautions by keeping in a place no one else has access to so that confidentiality is preserved.
I have not been working, but hope to go back soon. Should I pay my renewal fees now, or wait until I get a job?
Pay your renewal fees on time. If your license lapses while a matter is pending, you might not be allowed to renew until the complaint to the Board is resolved.
What can I expect to receive from the Board?
The first communication from the Board usually arrives in the mail, although it can be more dramatic, like a sheriff arriving at your workplace with a subpoena for records. The later approach is rare however, and usually occurs when the professional under investigation owns the business. (When you are an employee, the Board can collect data from your employer or former employer without your knowledge.) When you receive that first communication, you should decide whether you want legal help to respond. If you are going to retain a lawyer, it is best to utilize the services of the lawyer from the start, including helping you with any written responses.
At what stage should I consult with a lawyer?
It can be helpful to consult with a lawyer at the first point in time that you believe there might be a report, so that you can get some advice on what proactive steps you could take should a report actually occur.
As a former registered nurse, Teresa Ayling enjoys working with health professionals, and brings to the table an understanding of some of the challenges faced by nurses, physicians, psychologists, and others in the health care field.