Legal 123s with ByrdAdatto Tile

Legal 123s with ByrdAdatto (Escaping the Bear Trap – What to do when you step into a board investigation?)

Michael S. Byrd | 7.14.21

As we come out of the pandemic, we are going to step back and look at how the issues we discuss will be impacted in our new normal. In this episode, we share the story of a board certified plastic surgeon who received the dreaded knock on his door from a medical board investigator. Tune in as Michael and Brad share their perspectives on the reality of board investigations in our post-pandemic world.

 

Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.

 

 

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Transcript

Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues, simplified through real client stories and real world experiences. Creating simplicity in three, two, one.

 

Brad: Welcome back to another episode of Legal 123s with ByrdAdatto I’m your host Brad Adatto with my co-host Michael Byrd.

 

Michael: Thank you Bradford. As a business and healthcare law firm, we are often immersed in the heavy details of a particular issue or project. It’s beneficial, if not mandatory to every so often, take a step back and evaluate the bigger picture. This season’s theme, Brad is Zoom Out. Nice sound effect there. We have all been immersed in the life of a global pandemic. We’re going to make sure with each story this season that we step back, look at how the issue we discuss will be impacted in our new normal, whatever that [00:01:00] means.

 

Brad: I think our theme also captures the sentiment of how many of us felt. Zoom meetings, especially in the early days of COVID before we learned how to kind of pivot a little bit.

 

Michael: I was definitely out on Zoom meetings around May of last year. So let’s not talk about video platforms on this episode. Brad, we have had some hilarious conversations over the years about stepping in a bear trap.

 

Brad: Yes. We certainly have. For those not familiar with it. This is a term of this embarrassing situation where you say something or do something that creates an embarrassing situation where you basically stick your whole foot in your mouth moment. And Michael, you and I have known each other for many years so I’m quite certain, you have plenty of examples.

 

Michael: I do, but it becomes more difficult when I want to keep it clean and not too dark. I’ve noticed that as I’ve gotten [00:02:00] older I find myself less susceptible to feeling the effects of these embarrassing moments but I can tap into an awkward bear trap from my teenage years and still feel that pain.

 

Brad: Yeah. I think anyone listening right now is probably thinking about their teenage years and thinking, yes, there are a lot of bear trap moments when you were a teenager.

 

Michael: So like most awkward moments, the story I’m thinking of starts with, I had a crush on a girl and I had somehow mustered up the courage to have a conversation with her.

 

Brad: I can start to feel this awkwardness coming on right now.

 

Michael: I can’t picture you ever having had a hard time mustering up the courage to have a conversation with anyone?

 

Brad: Well, that’s a fair point. I have been known to have great conversations with anyone, including trees.

 

Michael: You know, I’m an introvert. So picture teenage Michael and what that must’ve been like. And I did not know what to talk about so I asked her if she had seen the news story that was all over the local [00:03:00] news about a man in our community who’d been arrested in a big scandal. It was a white collar fraud case and this dude was facing some serious jail time.

 

Brad: Byrd, you’re such a player. She must’ve just melted when you brought up the local news.

 

Michael: Yes, for sure. I mean, what teenager even watches the news?

 

Brad: So other than really, the un-smooth newsy pickup strategy, where was your bad bear trap moment? Because I know it’s coming.

 

Michael: Yeah, she said that that man was her uncle.

 

Brad: Okay. That’s a little awkward. Um, so how fast did you remove your foot from the bear trap or you just had to like saw it off or you just kind of limp away as it just kind of dragged behind you?

 

Michael: Well, yeah. Current me wishes that I would have just rolled with it instead of oh, wow that’s cool. Did he ever steal anything from you? But no, I didn’t. I [00:04:00] sunk and my face turned, you know, about the color of a tomato and I figured out the fastest way to get away and basically never talked to her again after that. So these bear trap moments actually connect to today’s story. We have a lot of clients who are licensed professionals, particularly in the healthcare industry.

 

Brad: Yes, this is all true.

 

Michael: Well, these clients are regulated by state licensing boards and board investigations are often the results of these professionals doing things in their practice that they did not know was even a problem. They are not compliant and had no idea.

 

Brad: Yeah, compliance in a way is like a bear trap for your business. You don’t know that you stepped into a compliance bear trap until it’s too late. And once it’s in, you don’t do anything to remove yourself from it. So I can’t wait to share what’s happening with today’s story.

 

Michael: Our client in this story is a board certified plastic surgeon. He was [00:05:00] trained at the best schools and known as the best of the best in his community. We will call him Dr. All-American.

 

Brad: Love it. I get this picture of hot dogs and apple pie, athletes and state fair.

 

Michael: Yes. Dr. All-American had been in practice 30 plus years and everything he does is centered on patient safety.

 

Brad: I remember when Dr. All-American first hired us, if I remember correctly, it was not all coming out roses at that moment.

 

Michael: We were hired to help him develop the strategy to defend a medical board investigation.

 

Brad: Okay. Michael, let’s pause here just for a minute. I know in a lot of our prior episodes at different points, we’ve talked about investigations, but we didn’t spend that much time about what happens when you receive that first inquiry or the letter.

 

Michael: For sure. Yeah. So let’s talk about how they even start, right. And so the most common way [00:06:00] is a letter arrives in the mail and it’s one of your favorite terms you may use the word, informal investigation. Tell me what informal means.

 

Brad: Informal means its formal.

 

Michael: Okay, fair enough. And so you get a letter and they basically are seeking information typically as a first step. And in some circumstances…

 

Brad: Rarely

 

Michael: Say that again.

 

Brad: Rarely

 

Michael: Yeah, there’s someone that actually knocks on the door. An investigator. And so, you know, those tend to also start with seeking investigation and they almost all start in one of three ways. A patients turned them in, their competitor’s turned them in, or an employee.

 

Brad: Yeah. And once these investigations start, so in this particular subject, you know, we pretty much skip the letter. The board goes [00:07:00] into this fat gathering mode and eventually there may be some type of hearing and that’s exactly what happened with Dr. All-American.

 

Michael: Yeah. He was in a jurisdiction where he actually got the dreaded knock on the door instead of the letter. So it really was a fire drill when we got the phone call because it was like, you know, insert four-letter word. We’ve got an investigator that just walked out the door and then entire office is freaking out.

 

Brad: That doesn’t ever go well when someone comes to the door, the initials behind their names.

 

Michael: Yeah. And here a competitor had turned the practice in for allegedly having the wrong type of people, performing treatments at the practice. And what’s crazy is that this competitor was not even a plastic surgeon. So it was someone who our client wouldn’t actually view as a competitor. [00:08:00] And the medical board had left a long list of documents that they wanted.

 

Brad: Yeah, it was super confusing for Dr. All-American because this person who had been accused of not having a proper scope of practice had been with his practice for 25 years had been providing incredible patient care within those particular procedures. However, unfortunately as often with his life the law had changed in the last 25 years. I know it’s hard to believe. And the provider was actually not allowed to perform the treatments that she was providing, which means Michael, Dr. All-American was non-compliant.

 

Michael: Yeah. And let’s be clear. I mean, this is a common. What’s common in practices is you have the surgeon and the surgeon is operating, and then you have staff of various providers of various backgrounds that are performing treatments. And [00:09:00] so it can be anywhere from a physician assistant to a nurse practitioner, to a licensed vocational nurse to estheticians, to sometimes even non-licensed individuals. And it gets super tricky, varies state by state and then even within the states it gets super tricky. So here, Dr. All-American was obviously peeved when he learned that this competitor in quotes was the one who had called the medical board. Here he is, he’s a well-known respected plastic surgeon with great patient outcomes. The person who accused of being non-compliant and who was non-compliant had great patient outcomes. He was respected by his peers and it was based on some noninvasive services provided his office and he’d been reported, as I said, by a non-physician to the medical board. [00:10:00]

 

Brad: So our loyal listeners, Michael probably heard in this diatribe that you were trying to explain, you use that term non-invasive. Those who listen know that triggers me because our audience probably at this point can tell us Michael, non-invasive that actually means medical procedure. And unfortunately, still to this day, there are people when they think of non-invasive they don’t really understand it. And unfortunately, like in many states, this still requires that the physician meets certain applicable rules. The fact that unfortunately, in this case some non-plastic surgeon or non-physician competitor air quotes reported his practice doesn’t take away at all from the sting or his frustrations that he’s going to be investigated.

 

Michael: Yeah, it’s done. And to make matters worse, what happened here is what we call a technical violation in our terms. That means that you have an alleged compliance violation or a [00:11:00] compliance violation, but no patient has actually been hurt or injured. In fact his patients, all of them had had great outcomes from this provider. And generally it’s easier to defend a situation when there’s a technical violation, though don’t be lulled into thinking that this can’t have serious concerns.

 

Brad: Yeah for sure. And we’ve talked about this, I mean, a lot of times with a technical violation, you’re hoping to just get a hand slap, but you know, that hand slap may take hours and hours of your time. It could cost tens of thousand dollars in fees just to try and defend it. You may still have to be required to continue education. So that’s a good day. Further once the medical board does open your door, you know, we’ve talked about, this can be like Pandora’s Box. They can attempt to find other violations. In fact, Michael, in season three on our dumpster fires, we had a preventable death to your practice episode where a technical violation turned out to be a much more gruesome situation once they kind of further went into the [00:12:00] investigation.

 

Michael: Oh yeah. That’s the extreme example of what a worst case outcome can be for a technical violation. So here, Brad, I started to ask the practice for their SOP standard operating procedures, their written protocols, or other documentation to get a sense if there was going to be additional technical violations. We’re looking to see what exactly was in Pandora’s Box and Brad, guess what happened?

 

Brad: Pandora’s Box has been opened. We found out that unfortunately, this was not the first of many technical issues. I may start to dig even more.

 

Michael: Dr. All-American had stepped into the proverbial compliance bear trap. So let’s go into a commercial break and on the other side, talk about the steps to take when an investigation starts.

 

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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto. My cohost Michael Byrd is still with me. Michael, you know, this season’s theme is Zoom Out. There’s a lot to unpack from Dr. All-American’s story. As part of our Zoom Out theme, let’s all take a big collective step back and let’s talk about the big picture of these various investigations and the outcomes.

 

Michael: Yeah, there are nuances among the [00:14:00] different professional boards and among the boards from state to state. The commonality with all of them is this focus on patient safety.

 

Brad: Sure.

 

Michael: If a patient’s hurt, the stakes are higher. If the issue is technical, like we talked about before the break, but it does directly threaten patient safety, the stakes are still going to be pretty high. If the issue is technical, but does not directly threatened patient safety, the stakes tend to be lower. The problem is that it gets super gray and hard to know which is which, and how board’s going to view things because it’s really easy to extrapolate a rule and see how that could ultimately harm the patient.

 

Brad: Yeah and we have talked about this before, Michael. A lot of our clients, they want it to be the whole black and white concept and unfortunately, especially with medical board rules and state rules, there’s a lot of gray [00:15:00] in this area and you have to be really careful about how gray are you. Charcoal gray. And of course, we like to keep our clients as compliant as possible. And in this particular case, Dr. All-American was kind of that middle ground. He was, you know, because of the investigation, because this particular person may have been going outside their license to treat patients, but the patients themselves, as we were talking about, were still having good outcomes. But still, patient’s safety, higher risk.

 

Michael: Yep, exactly. The second commonality among the boards is that they all tend to be overworked, understaffed, and frankly overwhelmed. They’re often dismissing thousands of cases in the earliest stages just to get to the ones that will be investigated. And they’re looking at all types of issues from substance abuse to standard of care, to compliance type [00:16:00] questions.

 

Brad: This is why it’s so critical to understand ultimately the board, they’re humans and they have so many cases in any given month. And so your strategy should be to meet them at the point where they’re okay with what your actions are and that you’ve made it really simple for them to see, hey there’s nothing here to be seen. And although there may have been a technical violation, well, we’re pretty good. So move on.

 

Michael: Yeah. I mean, it’s a huge part of what we do is when we’re helping clients across the country we will routinely probably more often than not have local counsel involved because we want people who know the board and know kind of their temperament so that we can tweak our strategy to accomplish what you just mentioned, meeting them where they are. And it gets tricky because of this whole understaffed and overwhelmed thing. There [00:17:00] tends to be a lot of turnover. I know in Texas where we actually will go to the board cases ourselves, we find that the people change all the time. So really ultimately Brad, I mean the strategy, it has to be simple and it has to be authentic.

 

Brad: Absolutely. So Michael, what did we do here?

 

Michael: Hard work. So Dr. All-American as a first step we helped him get up to speed on the various boundaries for the providers in his practice. I mean, he’d been in practice for 30 plus years focused on patient safety, but the reality is he isn’t looking at the laws. But he realized here that the laws matter obviously. And he was frankly, you know, scared by this whole situation. He was ready to get on top of it and he had made some new hires over the years. He had shifted [00:18:00] roles around and with these law changes we started re-shifting the rolls around and he made actually some new hires so that the people lined up with the compliance rules.

 

Brad: Yeah, exactly. And you know this is a great scenario of when you’re practicing for many years, it’s time to. You know, this goes back to compliance is never stagnant concept is he had to overhaul all of his policies and procedures. I remember there was an entire process of cleaning up a lot of different things and it took a lot of time and effort, almost 12 months, but conceptually once Dr. All-American realized he had an issue, he jumped in, with both feet as we talked about, he turned into it and he was ready to do the corrective action to right the ship and most importantly, to prove that he is a compliant individual.

 

Michael: Definitely. I mean, from a strategy [00:19:00] perspective ByrdAdatto helped build the theme, the messaging, and then helped implement all of these compliance steps that would create that authenticity when they actually showed up to the board hearing. And we worked with local counsel and his state, as I mentioned earlier, they were familiar with the board itself for the procedural steps and the conducting the actual board investigation with Dr. All-American. The investigation was dragging on for several reasons and that allowed Dr. All-American sometime to get his house in order.

 

Brad: Yeah. And that’s huge, but the idea was that he wanted to know at the end of the day, we want to tell this investigator, hey, this is your poster child for compliance in this state. And the first step with a technical violation violation was going to be taken seriously, but that he actually because he took it so seriously, he fixed that problem. And then Dr. American just started crushing it all across the board after [00:20:00] that.

 

Michael: Totally agree. And the good news was that in reality, in his practice, he was the gold standard for patient safety. I mean, we didn’t have a patient problem here. In fact it was quite the opposite. And so there may have been some technical violations, but the education and training that went into the treatment of patients was excellent.

 

Brad: Yeah. And this helped because we were basically making the policy lines up with what he was doing already. And so it was there, it just wasn’t a good written protocol. And as mentioned, he had to do some staffing adjustments and role adjustments that went pretty well. So the investigation progressed and eventually was set for a Zoom hearing. Yeah. Nothing like investigations or court hearings during the middle of a pandemic.

 

Michael: Yeah this actually was a challenge. You know, our next goal was to help Dr. All-American connect with the board and show them what [00:21:00] he’d been up to and convey the idea that he is the gold standard for compliance. And this is tricky over Zoom, as opposed to in person.

 

Brad: Yeah, Dr. All-American is a very personal and down to earth guy, I mean he is a Dr. All-American, and yet he has to air this credibility that we want to come across, that doesn’t come across in a rude way. And we had to deal with this and the Zoom element.

 

Michael: Yeah. I wish we had a magic answer for how to deal with Zoom, but we don’t. I mean, the main focus was on being prepared and being authentic. And I’ll just say this, you know this, we tell clients this, the boards can smell fake a mile away.

 

Brad: Absolutely. And Michael, the board loves it when you show up though, and you’re pointing your finger in their face and you’re yelling and telling them to go F themselves that’s…oh, wait a minute. No the opposite now. Never-mind can [00:22:00] we cut that out?

 

Michael: Yeah. This is not the, you can’t handle the truth. This is not the issue.

 

Brad: Yeah. So for our audience who’ve been our loyal listeners, they want to know Michael, Zoom hearing, what was the outcome?

 

Michael: Case dismissed. Boom. Awesome. We were so happy for Dr. All-American. He just took this so seriously and was so invested in the process. And so it was a great outcome. So Brad, let’s hit the pause button again and in line with our theme Zoom out as we come out of the pandemic. What do you see happening with board investigations in our post pandemic world? I’ll let you answer and then I’ll share my thoughts before we wrap it up.

 

Brad: Yeah, I guess the first thing to let everyone know is unfortunately or fortunately, however you want to look at it, board investigations are still happening pandemic or otherwise. And as we noted they will be happening via Zoom or however else they want to have them. And [00:23:00] based on the volume of investigations, at least that we’re seeing come across our desks in a given month, it appears that the pandemic has reinvigorated the boards to confirm that their licensees are acting in compliant ways. Technically or otherwise, because obviously patient safety is important to them. And I would add the other piece that we’re definitely seeing across the board is the increase of medical providers using telemedicine and they’re using their FaceTime or Zoom or whatever type of app they can. And unfortunately, again, this is opening medical providers to new ways of being noncompliant, basically stepping into these virtual bear traps and never seeing it until it’s way too late. Maybe we should do an entire episode on telemedicine.

 

Michael: I feel like you’re alluding to something. Brad,

 

Brad: Maybe a foreshadow? Well, Michael, what are your thoughts about zooming out?

 

Michael: Well, as you know, [00:24:00] the flowers start blooming, the birds start chirping and this new world of people, maybe even not wearing masks out in public, and going to public places happen, we need to pause and kind of try to meet the business people where they are and acknowledge that everyone and we, as a small business, know this as well has been in survival mode for well over a year now. And so what does that mean? Well, it means that they’re focusing attention on keeping the lights on, you know, taking care of patients if you’re a medical practice and your employees. And you’re probably not focusing on the paperwork, the technical compliance steps. We have seen that. And as things are emerging and we started having conversations, we’re seeing that because compliance is not stagnant [00:25:00] that everyone hit their own survival button for a year and there’s some cleanup to do. And so it raises the risk that if you get the random letter or the random knock on the door that they also are going to be in that bear trap. And they may have that same tomato face that I had back in my teenage years.

 

Brad: Join us next Wednesday for the next exciting episode. COVID-19 where are we now?

 

Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe. Make sure to give us a five-star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute [00:26:00] legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.

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