— The attorneys at Simas & Associates, Ltd. have recently received a number of inquiries from licensed health professionals - doctors, surgeons, veterinarians, nurses, etc. - who were on the cusp of partaking in an investigatory interview with a Department of Consumer Affairs analyst without legal representation. And their collective response has been, "no way."
"No licensee should agree to, schedule, and - for heaven's sake - participate in an investigatory interview without legal representation," explained Steven L. Simas, owner of Simas & Associates, Ltd., one of California's leading administrative law firms. "It may seem innocuous or formulaic to the licensee - especially one with no prior license discipline. However, there is always more than meets the eye.
Before this meeting, the DCA analyst - hired to be the underlying licensing board’s investigator - has already conducted the vast majority of their investigating. "They likely already have evidence that proves some form of misconduct or violation of the practice act," continued Simas. "As a result, they have a sore spot that they plan to attack and exploit, in hopes of drawing admissions from the licensee, as well as engaging in a fishing expedition identifying additional 'counts' of that particular violation and exploring other types of potential misconduct."
So, the analyst knows exactly what he or she wants to ask the unsuspecting physician. And they tape record the responses.
"This is done for the same reason it is done in litigation," explained Simas. "It is to lock the licensee in. And in case, after receiving counsel and obtaining an attorney, they cannot change their answer without losing some credibility down the road."
In addition, be prepared to be drug/alcohol tested.
"Not all cases will involve a drug test," confirmed Simas. "But when the investigation involves controlled substances, incompetence, or strange behavior by the underlying licensee, the analyst may suspect that the licensee is abusing drugs or alcohol. The best way to confirm this is to test the unsuspecting licensee, who has already agreed to the interview." And if the licensee refuses, it, again attacks their credibility and may, in of itself, be a violation (i.e. refusing to assist the Board in their investigation).
So, what does an attorney offer?
"Knowledge. Experience," explained Simas. "We have been there. We have sat in these interviews and know how the analyst operates. As such, if we are retained we will immediately reschedule any interview. We will also demand to know the nature of the investigation through a Business & Professions Code, section 800(c) request. And then we will check underlying evidence and maybe consult with independent, third party experts
. We may ask our client to voluntarily submit to 4-8 weeks of randomized drug and alcohol testing. Finally, we will identify a comprehensive and diverse list of evidence of rehabilitation, mitigation, and character
that we will want the licensee to build or obtain."
"Then, and only after submitting all of our own investigatory work," Simas continued, "will we agree to sit down and be interviewed by the Board's investigator."
For more information on Simas & Associates, Ltd. and its professional licensing
and healthcare licensing
practice areas, please visit our website at www.simasgovlaw.com