You Received a Consumer Complaint from the Office of the Indiana Attorney General, Now What?
The Indiana Professional Licensing Agency (“IPLA”) regulates 40 licensed professions in the State of Indiana, everything from auctioneers to funeral directors. Within that wide group are twenty (20) boards and committees regulating a variety of licensed medical and healthcare professionals. All licensed professionals in Indiana are subject to the rules of the board or committee that issued their license. IPLA is charged with disciplining licensed professionals who are found to have violated the rules, statutes, and/or standards of practice governing their specific profession.
When an individual suspects a license holder has acted unethically, dishonestly, or otherwise violated rules or practice standards, that individual may file a “Consumer Complaint” with IPLA or the Office of the Indiana Attorney General (“OAG”). Regardless of where the Consumer Complaint is filed, it will be directed to the OAG for investigation. If the facts of the Consumer Complaint do not grant the OAG jurisdiction to investigate (for example; if a Consumer Complaint is made against a hospital, facility, or certified professional rather than a license holder), or the facts cannot support a violation even if taken as true, the Consumer Complaint will be closed without investigation and typically without notice to the subject of the Consumer Complaint. In all other cases, the Consumer Complaint will be assigned to a case analyst and/or Deputy Attorney General (“DAG”) for investigation. The OAG, in a prosecutorial role, will investigate the claims and determine whether sufficient information exists to justify filing an administrative complaint with the appropriate licensing board or committee. Of note, the OAG review is not limited to only the allegations of the Consumer Complaint. The OAG may file charges against a professional’s license based on any information obtained in the course of the investigation.
Once an investigation is opened, a copy of the Consumer Complaint is sent to the license holder with an opening letter explaining the investigative process. The license holder then has twenty (20) days to submit a response and any supporting documents. At the conclusion of the investigation, the OAG will determine whether to: (1) close the file; (2) close the file with a warning to the license holder stating their conduct may have fallen below the standards of practice but no charges will be filed due to untimeliness or other reasons; or (3) charge the license holder by filing an administrative complaint.
What immediate steps should you take if you receive a Consumer Complaint letter from the OAG?
1. Evaluate whether you will respond to the request directly or retain legal counsel to assist with your response.
A Consumer Complaint may seem innocuous, or even ridiculous, at first blush. You may not recall the complainant and/or the events alleged in the complaint may be several years old (there is no statute of limitations for filing a Consumer Complaint). However, any Consumer Complaint, if fully adjudicated, could result in revocation or suspension of your license and prohibition from practicing within the state. Although revocations are infrequent, the stakes of each case could potentially be high.
2. Request an enlargement of time in which to file your response.
The opening letter will contain the contact information for the DAG or case analyst who is assigned to your complaint. Contact this person and request an extension of thirty (30) days in which to file your response. The DAG or case analyst will likely be reasonable and grant your first request without objection. It is best to secure the agreement in writing. Even if you believe the response will be simple, the additional time will allow you an opportunity to consider retaining legal counsel and to secure documentation to support your response.
An enlargement of time, however, may not be helpful when the allegations of the Consumer Complaint could warrant a summary suspension. A summary suspension, sometimes called an “emergency suspension”, is a fast track proceeding filed by the OAG when the allegations and early investigation warrant restricting the license holder’s ability to practice while additional investigation occurs. Summary suspensions can be requested when the license holder poses a “clear and immediate danger to the public health and safety.” Ind. Code § 25-1-9-10. A summary suspension could be filed for any violation endangering the public, but summary suspensions are commonly filed in relation to complaints regarding drug diversion, patient abuse, or sexual misconduct.
3. Secure all documents that support your response.
To streamline the Consumer Complaint process, you should provide all beneficial and relevant documents that support your response. Documentation that is protected under the Health Information Portability Accountability Act (“HIPAA”) should be redacted and de-identified before disclosure. If de-identified information could not reasonably be used, you may include a statement in your response explaining that HIPAA protected documentation that supports the response has been secured and will be delivered upon receipt of an administrative subpoena. The OAG is a healthcare oversight agency. As such, disclosure of HIPAA protected documentation is permitted in response to an administrative subpoena from the OAG under 45 C.F.R. 164.512(f)(1)(ii)(C). Original copies of documents should not be provided. You should retain all original documents.
Because the OAG is charged with investigating the allegations set forth in the Consumer Complaint, the OAG must seek out all documentation which would support or disprove the allegations. If you do not provide sufficient documentation supporting your response, the OAG may issue administrative subpoenas for the documents it deems relevant and/or assign the case to an investigator who may visit your place of business to secure documents and possibly interview you, your superiors, and/or your co-workers. However, if you are cooperative up front and provide the OAG with relevant and supportive documents with your initial response, the OAG may be able to complete its investigation and close its file with only the materials you provide.
Medical and healthcare professionals rely on active licensure to practice in their chosen profession. As a medical professional, a Consumer Complaint is a potential threat to your livelihood. These complaints and the subsequent investigative process must be taken seriously. But if you quickly and properly react and respond to a Consumer Complaint letter from the OAG, you can protect the license you worked so hard to obtain.
Please contact the undersigned with questions or to discuss any specific claims.
Author Drake T. Land
Drake T. Land is a litigator practicing in multiple substantive areas. Drake represents employers in defense of employment-related and worker’s compensation claims brought before state and federal courts and administrative agencies. Drake also represents a variety of healthcare providers in the defense of medical malpractice claims and medical licensing complaints, and counsels businesses with litigation matters.
Prior to joining Riley Bennett Egloff, Drake served as a Deputy Attorney General for the State of Indiana, where he prosecuted medical licensing actions before the State Board of Pharmacy, Medical Licensing Board, and State Board of Nursing. While serving as a Deputy Attorney General, he reviewed and prosecuted over one hundred medical licensing cases in all stages of administrative review. Additionally, Drake pursued civil recovery of Medicaid overpayments under the Indiana False Claims Act.
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Posted on Jan, 23 2018, by Drake T. Land