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How to Handle a Complaint from the Social Work Board of Registration - Part I
FOCUS July 10, 2008
Recently, a social worker had her license placed on two years probation with supervision by the Board of Registration of Social Workers because she failed to keep records. As a result of this sanction, she was dropped from managed care panels and her practice was substantially impacted. The record of her probation is now posted on the Board’s website, available for anyone to see, presumably forever. Notice of the sanction was also sent to the Health Care Integrity Protection Data Bank – a HIPAA creation – a national data bank trolled by third party payers and other state licensing authorities. A sanction by the Board will damage your reputation and can devastate your practice, even if your offense seems disproportionate to such an outcome. Another social worker faces a similar sanction now because, in 2003, he filed a 51A a few days later than the reporting statute requires, where he knew another professional had already filed.
No practicing social worker is immune from a complaint. It does not matter that you are a good practitioner or that you have practiced for 20 years without a complaint. It can – and does – happen to anyone. Sometimes complaints are justified, for example for a boundary violation or unprofessional behavior. Often complaints are completely without merit. Clinicians working with children of divorced parents are particularly at risk. I have handled over three hundred such complaints and can report that the vast majority of complaints are without significant merit and are dismissed. But I must also report that many social workers misunderstand the complaint process and end up having a problem that could have been avoided.
When a complaint is filed against you, regardless of how frivolous you make think it is, your professional reputation and economic well being are at stake. While you may think the complaint process will be a clinical conversation among your professional colleagues on the Board, it is nothing of the sort.
A complaint may be filed by anyone, but most are filed by current or former clients or a parent of a minor client. There is no end to the reasons a complaint may be filed: poor clinical outcome, a boundary violation, sexual misconduct, fee disputes, dual relationships, HIPAA violations, breach of confidentiality, or other alleged violations of the Code of Ethics. Complaints can be filed and indeed are filed for no good reason. Although the mere filing of a complaint is not evidence of guilt, the process can feel stacked against, as the burden is on you to prove your innocence. The most important point in this article is this: the complaint process is a legal process, not a social work process. This poorly understood fact sometimes lulls social workers into defending themselves in the belief, “I did not do anything wrong!” This is akin to defending yourself in court when you are arrested – wrongly or rightly – for driving under the influence or tax fraud. Most social workers who go through the complaint process believe it to be one of the most trying experiences of their professional lives. The process can seem biased against the social worker and the Board can at times seem unreasonable. This is because the Board is a consumer protection organization, designed to protect the public from perceived professional misconduct. The Board tends to view cases with the full clarity of hindsight. The Board can occasionally forget that a poor clinical outcome in a case is not an ethical failure, and you can find yourself having to defend your clinical approach years later. There is no statute of limitations and the Board does not screen cases out. Recently, for example, a former client filed a serious charge against a social worker ten years after the termination of treatment.
Initially, the complaint process appears simple enough. You receive a certified letter from the Office of Investigations of the Division of Professional Licensure stating that a named person has filed a complaint. The letter will enclose a copy of the complaint and will instruct you to respond in writing, usually within thirty days. Typically, the letter asks you to send a copy of the client’s file. It cannot be overstated that good records, those that include signed informed consents, dates of events, notes of telephone calls, a treatment plan, significant events in the therapy and any consultations with colleagues, can make the difference between a dismissal and a prosecution. I am continually amazed how many social workers do not keep adequate records. Clinical records should be kept in the manner prescribed by the Board in its regulations. Good records can save your career.
Often the social worker will feel outraged - “I have done nothing wrong” – and call the investigator to say so. Don’t. The investigator is not your friend. He or she works for the Division of Professional Licensure and is, by way on analogy, a detective. Anything you say can and will be used against you.
Every social worker in private practice has malpractice insurance. Your policy comes with $5,000 of defense reimbursement coverage and for a small additional premium, you can substantially increase this coverage. I highly recommend it. It can be the best professional investment of your career.
The written response to the complaint is the most important part of your defense. A good answer must be responsive, logical, and professional in tone. It must marshal the facts and characterize events in the most favorable light. There is substantial strategy in knowing what to say and what not to say. For example, where the complaint is filed by a client, the social worker should try not to give the appearance of blaming the client. Never provide more information than necessary. Never admit you made a mistake unless there is no other option. Admissions can and will be used against you. Instead of saying, “I guess I really mishandled this case,” you can say, “In retrospect, I can see there might have been other ways to handle the situation, but at the time my approach seemed clinically sound.”
The response does not necessarily have to come from the social worker. In cases with legal defenses, the letter should come from counsel. For example, a complaint filed by a parent of a minor client alleging the parent did not consent to the disclosure of information to a third party, could be defended by stating the fifteen year old client was able to consent under the “Mature Minor Rule,” If a complaint is filed by someone other than your client, legal counsel can state, “The complaint was not filed by the client and the social worker does not have legal permission to provide information.”
A case can be dismissed on the strength of the written answer. Sometimes, however, the Board may ask the social worker to attend an "investigative conference" during which the social worker must defend her actions. While the complainant and the social worker will not be in the room at the same time, the Board will meet with the complainant shortly before the social worker's meeting. It is critical for the social worker to work with her attorney to prepare for the investigative conference. The hearing is "informal" in the sense that no final legal action arises from it, but the Board is evaluating your skills and taking your measure as a practitioner. While a poor clinical outcome is not in itself an ethical offense, it can seem the Board does not always distinguish between the two at the investigative conference.
A social worker should be thoroughly prepared substantively, tactically, and emotionally for the investigative conference. It is helpful to engage in practice sessions to become comfortable verbalizing the themes from the written response. You should also practice responding to anticipated questions. Questions are not always limited to the complaint, however, and the social worker or counsel, if present, should feel free to speak up if a particular question is unclear or not relevant to the complaint.
If the Board believes there has been a violation of law, ethical standards or practice norms, it will refer your case to a prosecutor. This means the Board wants to sanction you, regardless of whether you think it is fair or warranted. This part of the process will be discussed in Part II of this article.