When DHHS Comes Calling – Lamson Dugan & Murray LLP

Every licensed health care provider dreads receiving that certified letter with the return address, “Nebraska Department of Health and Human Services, Investigations Division.”  Opening the letter doesn’t help matters:  “Dear sir or madam, we are gathering information regarding a complaint that has been made against you.  The complaint alleges that you blah, blah, blah.  Please provide your written response to this office no later than 14 days after receipt of this letter.”

Great.  Now what?  Here are some suggestions:

1. Don’t panic.  You are still at the complaint review stage of proceedings.  What this means is that the Department is gathering information and deciding whether to open a formal investigation.  Of the 2,111 complaints received by DHHS in 2011, formal investigations were only opened in 882, or 42%.  A satisfactory response to the complaint can still head things off at the pass.
2.  Notify your insurance carrier.  Most insurance carriers provide limited coverage for DHHS investigations.  They may pay for an attorney and expenses up to a limited amount.  You should take advantage of this service, and the sooner the better.
3. Get an attorney.  Whether your insurance company provides one to you or not, you will want to have an attorney involved from the very beginning of the process.  They can work with DHHS to extend your deadline for responding, can help gather information to formulate a response, and can draft a complete and persuasive response to the complaint.  Depending on the severity of the complaint, they may recommend retaining an independent expert to review the case and provide an expert opinion supporting your care.  They can coordinate a powerful defense while you continue to practice your profession.
4. DON’T put the letter on the pile on your desk, only to pick it up again on day 13 and scribble a response.  All of these complaints must be taken seriously and dealt with expeditiously.

Even if DHHS decides to open a formal investigation, all is not lost.  An investigator will be assigned to the case and will contact you for further information and to schedule an interview.  You will definitely want an attorney to help you prepare for this interview and to attend the interview with you.

Once the investigation is complete, it is presented to the Professional Board governing your particular profession.  The Board reviews the investigation and makes a recommendation to the Attorney General’s office regarding further action.  This can be anything from a recommendation of no further action to a recommendation of temporary immediate suspension with a Petition for Discipline to seek revocation.

While the Attorney General’s office generally follows the recommendation of the Board, it is ultimately up to them to determine the appropriate course of action.  If the Attorney General’s office files a Petition for Disciplinary Action, you have a right to a contested case hearing before a hearing officer.  The result of that contested case hearing can be appealed to the District Court of Lancaster County, and, from there, to the Nebraska Court of Appeals and Nebraska Supreme Court.

As you can see, receipt of that initial letter can be the first step in a long and trying process.  But it doesn’t have to be.  Take the appropriate steps to respond at the outset, and you will increase your odds of shortening the process.