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An Ex-Employee has filed a Dubious Claim with Your Professional Board. Now What?

July 18, 2016 by Art Young

Every medical professional must meet strict criteria for patient care. If there is an allegation of substandard care – whether it proves to be true or false – a board, composed of unbiased and knowledgeable professionals is charged with investigating the actions of the responsible practitioner.  In the case of dentists and orthodontists in Texas, that board is the State Board of Dental Examiners.

The challenging job of investigating substandard medical care is made more difficult for this board when the claim originates from a disgruntled ex-employee because it may not be valid. When this situation occurs, a dental practice owner must make a business decision about retaining legal representation for these administrative proceedings.

Nathanial Martinez, of the Dallas-based law firm of Palter Stokley Sims PLLC, specializes in representing dentists and orthodontists in cases before the State Board of Dental Examiners. As such, he has valuable insights about navigating this often frustrating process.

An Attempt at Retaliation

“In most cases, false accusations made by an employee to a professional board are an attempt at retaliation by the employee as a result of some adverse action taken by the employer,” Martinez noted.  “In the case of a dental practice, this may occur if the managing dentist puts the employee on probation, penalizes them in some other way, or terminates the employee.

“In some cases this report to the professional board can result from a personal affront – either real or imagined – to the employee by the practice owner. However, in most cases, this situation will occur when the employee has been fired and they are unhappy with this termination.”

What to do Before the Claim is Filed

“An owner of a practice must take every claim seriously and conduct a thorough investigation of the claim, even if the owner believes them to be false,” he said. “It is important for dentists to keep detailed records of every patient they see, in accordance with the generally accepted procedures for patient care in their profession.  For dentists and orthodontists, there are standards for maintaining patient records and they must ensure that they are honoring those standards in everything they do.

“If an employee leaves, the practice owner should send a letter to the employee reminding them of their obligation to keep patient records confidential. It is important for the owner of the practice to keep thorough records on every patient they see and the recommendations which are made. It is also important for all staff to be trained appropriately and aware of the standards of care.

“Basically, before any claim is brought to the professional board, the owner of the practice must be able to show and demonstrate clearly that the claim is false,” Martinez said.

Legal Steps to Take

“In the context of the (Texas) State Board of Dental Examiners, when this board receives a complaint they must take it seriously,” Martinez said. “They are required to investigate every claim made.

“When a dentist or orthodontist receives notification of a claim, it is important for them to retain an attorney who should then reach out to the board and immediately advise the board of this representation. I recommend they retain an attorney who has experience in navigating the various procedures of the professional board, because this will allow the practice owner to stay focused on their business. Retaining an attorney will also ensure a timely response to any inquiries by the board. You would be surprised  at how many deadlines a busy dentist might miss simply because he or she has too much on their plate,” he said.

“It’s important to remember that the actions of board are not inherently adversarial. It may ‘feel’ that way because the dentist may be responding to a false complaint which is being filed by a former employee. Unlike a lawsuit, where all parties examine the complaint and charges, complaints filed with a professional board are not typically examined by the practice owner. The professional board is very cautious about the information it discloses to the parties involved with the claim. The objective of the board is to determine whether the standards of care have been met.

“The board is just doing its job,” Martinez noted. “It is conducting an investigation of an allegation. The practice owner must attempt to avoid being defensive, which will go a long way towards getting his name cleared, especially if it is a false claim. If the documentation has been correctly done, the dentist can quickly prove that the claim is false.”

Procedures of a Professional Board are Different

“The procedures of a medical professional board are very different from that of a lawsuit,” Martinez said. “These are all administrative, are governed by the rules of the state board and have their own policies and procedures on how these claims are investigated. These proceedings are all public, but the information received from the dentist is completely confidential because this is patient information.

“It’s important to retain an attorney for this appearance before the board for several reasons. The practice owner needs an attorney who is experienced in dealing with the board and the investigators for the board. These investigators are going to be the ‘eyes and ears’ of the practice owners as the claim moves through the system. This is somewhat of a long process and keeping up with this can be onerous for the dentist. By hiring an experienced attorney, the dentist can continue to focus on his or her business while this process continues.

Criteria for Choosing an Attorney

“There are attorneys, myself included, who specialize in this type of work,” Martinez noted. “We enjoy dealing with administrative boards and this is the type of attorney a practice owner should retain.

“The criteria for choosing an attorney should include someone who has had experience in managing these types of cases before dental or other professional boards. It’s important to remember, the investigators for the board are typically long-term employees, and an attorney with an existing business relationship and professional rapport with them can speed the process along.

“Another important consideration in choosing an attorney for this specialized proceeding is to find a lawyer who will not be confrontational or adversarial with the board. In this type of situation, where the board is just trying conduct an investigation, having an attorney who is cooperative with the board – someone who is doing everything he can do to help discover the facts – will go a long way towards debunking a false claim.

“I can’t stress this enough: the professional board and its investigators are not the ‘bad guys,’” Martinez concluded. “They are just trying to investigate a claim. While the practice owner may feel that this claim made by a former employee is distracting and frankly untrue, he or she still has an obligation to respond and cooperate with the investigation to the best of their ability.”

This information is not intended as legal advice. If your dental practice has been notified of a claim filed by a former employee before the State Board of Dental Examiners and you are considering retention of legal representation, contact us for more information.

Filed Under: News/Press Tagged With: Attorney at Law, Dental practices, False claims from ex-employees, Legal representation before professional boards, Nathanial Martinez, Orthodontists, Palter Stokley Sims PLLC, Strategies for dealing with professional boards, Texas State Board of Dental Examiners

Why Apartment Owners in Dallas are Crying ‘Foul’ on Changes in the Code of Ordinances

June 20, 2016 by Art Young

Navigating the labyrinth of the code of ordinances of a large, politically diverse municipality can be challenging. Just ask the owners of apartment complexes in Dallas, Texas. The managers and owners of multi-family real estate in the ninth largest city in the United States face even greater challenges in the form of recent recommendations from the City Council’s Housing Committee.

The Housing Committee conducted hearings among constituents regarding the standards of apartments in the Dallas and later made recommendations to the city’s professional staff on a wide range of issues. In spite of the staff’s opposition, these recommendations were sent to the entire Council for debate.

Some of these recommendations, which were opposed by The Apartment Association of Greater Dallas the trade association for apartment owners in the city, would lead to dramatic increases in the cost of maintenance of apartment complexes.  Ironically, these expenses would most likely be passed on to apartment renters, hurting many of the people they were designed to help.

The Dallas Code of Ordinances

Kimberly

Kimberly Sims is a member in the Dallas-based law firm Palter Stokley Sims PLLC, and she represents landlords and managers in landlord/tenant disputes. Recently, she offered insights on the city’s proposed Code of Ordinances for Minimum Housing Standards and the implications in dealing with this code.

“These are the standards by which multi-family complex owners must comply in the managing and maintenance of their properties,” she said.

What does Sims think about the recent recommendations presented by the Housing committee of the council?

“In the broad scheme of things, everyone wants people who live in apartment complexes to be treated well,” she said. “We also want them to have remedies when the standards are not met and we want all owners to follow these standards.  But I’m not convinced that we need to specifically dictate all of the standards – down to the minutia –  in order to ensure that.”

“There will always be outliers in any industry – on the one side the great apartment owners who treat their tenants in the same way they treat their family members — and then – on the other — those owners who won’t follow any standards even if told by ordinance to do so. The latter causes these specific requirements to be put in place even though they are the ones who need to be regulated but likely also the ones who won’t follow them.

“As with all things in law, there is a pendulum,” she noted. “And the pendulum appears to be swinging towards forcing landlords to adhere to stricter policies. Because of the costs associated with these policies and the impractical nature of some of them, these recommendations should be modified.”

Some Recommendations are Misguided

“Several of the proposed provisions stand out as burdensome and impractical,” Sims said. “For example, the requirement that HVAC units in every apartment cool to a minimum of 80 degrees.  This may seem to be reasonable. However, these apartments are in Texas and we all know that it’s hard to get AC down to 80 when it’s 108 outside.

“Most air-conditioning systems – even in single-family dwellings – cannot cool more than 20 degrees from the outside temperature.  So why do we expect landlords to be able to make that happen?” she asked.

“If this is included in the ordinance, and the cooling requirement is not met, what happens? If an apartment owner has 180 units and the inspector (inspections are provided for in the ordinance) finds the cooling requirement is not being met on a hot summer day, does the owner have to immediately replace all 180 units? This is not practical.

“The standards in these proposals will also lead to excessive costs,” she said.  “This means that owners are either not going to comply because they can’t comply for the entire complex at one time, or they risk fines being assessed against them.

“The real concern, on both sides of these issues is ‘what happens as a result of these restrictive ordinances,” she asked. “Are the increases in costs for meeting these standards passed on to the tenant? The likely result is yes. There is a strong probability that these recommendations, if passed, will result in higher rents for the very people they were passed to help.”

Input of Apartment Owners

There is some availability for apartment owners to provide input as to the proposed ordinances. Sims explains.

“There was a request for the city for input from management companies and owners of apartment complexes and that has been supplied by these groups,” she said. “Hopefully, that will result in modifications to these ordinances that are more reasonable.

“There is also an effort on the part of management companies and owners to clarify the process of inspections. For example, how often will these inspections occur? Will the city inspect owners who have had more violations in the past more frequently?

“An apartment owner is less likely to be inspected if his complex has less tenant complaints,” she noted. “As a practical matter, it is important for the landlord to be one of those who is complying, to the best of its ability. For example, if you can’t replace every air-conditioner and every water heater in your complex, you can set a schedule for replacing the faulty ones.

“Most importantly, as a practical matter, owners must try to stay off the city’s radar,” she said. “An apartment complex that is cited will be re-inspected, perhaps multiple times.”

If you have legal questions about landlord/tenant matters, contact Kimberly Sims. The phone number is 214.888.3110.

Filed Under: News/Press Tagged With: City of Dallas apartment ordinances, Code enforcement for apartments in Dallas, Housing Committee of Dallas City Council, Kimberly Sims, Palter Stokley Sims PLLC, Recommendations of Housing Committee City of Dallas, The Apartment Association of Greater Dallas

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