Month: May 2016

More on how to “pass” (or fail) your licensing Board interview

Posted on May 30, 2016 by - Licensure

Whether you are being investigated by the Oregon State Board of Nursing (OSBN), the Oregon Medical Board (OMB), or the Drug Enforcement Administration (DEA), your success during your interview is key to the successful resolution of the investigation.  Today I will share with you the experience of three clients – a nurse, a physician, and a dentist – all of whom went to interview within a 14-day span this month.  Two “passed.”  One “failed.”  Let my tell you why.

The nurse and the Oregon State Board of Nursing (OSBN)

Earlier this year I undertook the representation of a well-qualified and experienced nurse under investigation by the Oregon State Board of Nursing (OSBN).  She went to interview this month.  At one hour and 45 minutes, her interview was long, and seemed even longer with four of us in a room that was too small and too hot.  The interview was led by the OSBN nurse investigator and assisted by an OSBN advanced practice nurse, with my client the focus of attention.

The first hour of the interview was necessary to get at the core issues in this unusually complex case.  The OSBN’s investigator and advanced practice nurse were well prepared (aren’t they always?).  My client was also well prepared, however.

As we passed through the first hour of the interview, I was impressed by the depth of the discussion and by my client’s answers.  I privately marveled at how few members of the public will ever appreciate how carefully the practice of nursing is regulated in Oregon.  My client was subjected to questions for an hour and 45 minutes, by two investigators, and her interview had the tone of a thoughtful discussion.  She passed the test.  The case isn’t over, but my client did a stellar job, and representing her that day was professionally rewarding.

The dentist and the Drug Enforcement Administration (DEA)

I also prepared a dentist for an interview this month before the Drug Enforcement Administration (DEA). In this case, the dentist sought reinstatement of his DEA Registration, earlier surrendered.

In a December 7, 2015 post, I explained that in the right circumstances, reinstatement of a surrendered or revoked DEA Registration is possible.  These can be tough interviews, however, because in cases where a DEA Registration has been surrendered or revoked, there are usually a few “sensitive” issues.  Also, the interviews are conducted by DEA Drug Diversion Agents and, in my experience, there are always two of them.

This interview was nonetheless a success.  By the end of the interview, my client was advised he would have his DEA Registration back in four to six weeks, with a few temporary, common sense restrictions, but nothing that will interfere with his practice.  It doesn’t get much better than that!

The physician and the Oregon Medical Board (OMB)

In the same 14-day span this month, I was hired by a physician but, unfortunately, her interview occurred the week before I was hired, and she went alone, unprepared, and unrepresented.  She “failed.”  Let’s consider what my client was up against.  By the time of her interview at the Oregon Medical Board, the Board’s investigator, the Board’s Investigative Committee’s (IC), and the Board’s expert, had all finished their work.  Counting the Board’s investigator, the Board’s expert, and the four members of the Investigative Committee, six people were prepared to interview my client that day.  If you find yourself facing a Board interview, ask yourself the following questions:

  • What have you done to prepare?
  • Who has given you legal advice?
  • Who has prepared you?

If you cannot answer these simple questions in a reassuring manner (without rationalizations or excuses), you are not ready for your interview.  As I have said many times before, an interview with your licensing Board is no place to show up and see what happens.

The moral of the story

In this case, there is little doubt in my mind that this physician should have passed her interview, had she been ready.  But she wasn’t ready.  Don’t let this happen to you.  An experienced healthcare defense attorney will help you prepare for your interview.

How to “pass” (or fail) your licensing Board interview

Posted on May 21, 2016 by - Licensure

Whether your are a physician, pharmacist, or nurse defending against an investigation by the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing, what I am about to share with you holds true.  At a minimum, you should expect your licensing Board to request (a) your written statement answering the complaint against you, and (b) your appearance at the Board’s office to sit for a recorded interview.  To help my client’s obtain a good interview, I keep the following points in mind while helping them prepare their written statements, and while preparing them for interview.

Know your case and accept responsibility where necessary

Although many Board complaints are full defensible, many others are not, and it is important to know which type of case you have.  While it is professionally rewarding to defend a licensee 100 percent, when a mistake was made, it is often preferable, if not necessary, to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake.  Your licensing Board will respect either approach, so long as we have correctly identified which type of case you have.  An experienced healthcare defense attorney will help you accurately evaluate your case and develop a plan to defend your medical license.

Be well prepared for your licensing Board interview

If you do not know what the issues are, or what the likely questions will be, you are not prepared for your interview.  It is that simple.  Please know that an interview with your licensing Board is no place to show up and see what happens.  If this is your approach, you will fail.  In sharp contrast, an experienced healthcare defense attorney will identify the controlling legal issues and the questions you can expect to be asked during your recorded interview.  Please also know that your investigator will be well prepared to interview you and, by the time of your interview, your investigator will have drawn tentative conclusions about your case.  Some of the questions you will be asked will be well thought out in advance and, in those cases where your written statement was misleading, some of the questions will be pointed, and you will likely face a series of questions intended to expose your lack of candor.  Do not let this happen to you. An experienced healthcare defense attorney will help you avoid this trap.

Do not attempt to mislead your licensing Board

You are taking a huge risk if you attempt to mislead your licensing Board, either in your written statement, or while answering questions during your recorded interview.  Your licensing Board has resources, and it will conduct a background check.  One or more investigators will investigate your background, and the investigators are very skilled at what they do.  If, for example, you had a bad experience in another state, especially one involving a similar issue giving rise to your current licensing Board investigation, you should expect the out-of-state incident to be discovered and investigated by your licensing Board.  Please know that any effort to mislead your licensing Board about the prior out-of-state incident will almost certainly be exposed and, when this happens, you will have lost your credibility with your licensing Board.  Do not let this happen to you.  The better approach is to know when to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake.  This is delicate work, requiring the assistance of an experienced health care defense attorney, to ensure you are adequately defended.

Conclusion

In sum, to ensure a good interview, you need to accurately evaluate your case, you need to be well prepared, and you need to be candid when answering questions, all the while defending yourself and protecting your license.  This is difficult work, and it requires the assistance of an experienced healthcare defense attorney to do it well.

Caution: Do not represent yourself before your licensing Board

Posted on May 15, 2016 by - Licensure

I have written about this subject before, but the situation keeps reoccurring, and the “lesson” keeps repeating itself, so I will repeat myself:  Do not represent yourself when you are under investigation by your licensing Board.  Here are three recent examples of what can go wrong:

Example #1 – A pharmacist before the Oregon Board of Pharmacy

The first case involves an investigation by the Oregon Board of Pharmacy.  In this case, the pharmacist met the standard of care expected of a pharmacist when presented with a suspect prescription. Unfortunately, the pharmacist was so focused on the mistakes made by others that he (1) declined to provide the Board with a written statement and (2) appeared for his recorded interview prepared to talk about the mistakes of others, and little else.  The recorded interview went poorly, and the Board of Pharmacy issued a Notice of Proposed Disciplinary Action, threatening significant discipline, including probation and loss of pharmacist-in-charge (PIC).  The pharmacist hired me soon thereafter.  After completing my review, I find that the pharmacist had a near-perfect explanation (or defense) but, without the benefit of experienced legal advice, he failed to present that explanation when it mattered most.

Example #2 – A physician before the Oregon Medical Board

The second case involves an investigation by the Oregon Medical Board.  In response to the Board’s request, the physician submitted a written statement that was too short given the subject matter of the Board’s concerns.  The physician also appeared for her recorded interview before the Investigative Committee (IC) without adequate preparations.  The physician hired me after the Board requested that she consent to (1) an Interim Stipulated Order (ISO) significantly restricting her practice, and (2), an Order for Evaluation subjecting her to an expensive, out-of-state assessment, of her ability to practice medicine.  Although the Board’s requests may reflect poorly on the physician, with the benefit of my experience, I do not see the Board’s action as an accurate assessment of the situation, because I know the physician was unrepresented by legal counsel, and under prepared when it mattered most, i.e., when she submitted her written statement and when she attended her IC interview.

Example #3 – A nurse before the Oregon State Board of Nursing

The third case involves an investigation by the Oregon State Board of Nursing (OSBN).  In this case, the Board of Nursing made several offers to settle the case but, without the benefit of experienced legal counsel, the nurse failed to appreciate that the Board’s settlement attempts were offered in an effort to avoid discipline.  After several failed attempts to reach a compromise, the Board lost patience and voted to discipline the nurse, at which point, the nurse hired me.  Even the simplest of cases can become difficult when the parties are polarized against one another.

The lesson: Do not represent yourself before your licensing Board

The three cases summarized above, involve three different licensing Boards, and three different situations where things went poorly for the licensee.  In the first and second cases, the licensing Board sought serious discipline, and in the third case, the licensing Board sought minor discipline. The first case should have been easily defended and the third case should have been easily settled, while the second case needed to be developed and defended.  All three cases, however, have one thing in common:  The licensee mistakenly decided to proceed alone, without legal representation and, in each case, the licensee came to regret that decision.  Do not make this mistake. If you are a licensed healthcare provider facing an investigation by your licensing Board, I urge you to seek legal counsel from an experienced healthcare defense attorney at the first opportunity.