You have spent months or even years, of long-hours striving toward your goal of becoming a licensed health care professional in the State of Wisconsin, but you just received a notice from the Wisconsin Department of Safety and Professional Services (“DSPS”) that a complaint has been filed against you. Now what?
It is often a long and arduous journey to becoming a licensed physician, nurse, therapist or any other licensed health care professional in the State of Wisconsin. We wish every patient was satisfied with their care and treatment, but sometimes patients leave unhappy, angry and confused. It may be their diagnosis, the manner in which they felt they were treated or simply a litigious nature that drives many patients to file a complaint with the licensing board or its legal wing, the Department of Safety and Professional Services.
In this article, you can learn more about the DSPS, its handling process of complaints filed against Wisconsin licensed professionals, as well as resources available to you before engaging in formal litigation. Although this article will focus on licensed health care professionals, the department’s handling process generally parallels across other Wisconsin licensed industries. Leib Knott Gaynor, LLC specializes in defending health care providers in matters brought by the DSPS. Do not feel isolated nor take it likely if a complaint is filed against you. Instead, turn to legal professionals for help.
WHAT IS THE DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES?
Wisconsin’s Department of Safety and Professional Services (“DSPS”) is the sole governing body1 responsible for ensuring safe and competent practice of many licensed professionals, and most health care professionals, in this state.2 The DSPS provides compliance services for the DSPS’s various boards and direct-licensed professionals. The department also provides administrative services to the state occupational regulatory authorities in such areas as evaluating and establishing new professional licensing programs, creating routine procedures for legal proceedings, and adjusting policies in response to public needs. The department is organized into five divisions: Industry Services, Legal Services and Compliance, Management Services, Policy Development and Professional Credential Processing. It is the Division of Legal Services and Compliance (“DLSC”) that receives and processes complaints.
The DSPS licenses and regulates more than 200 different types of credentials. As the regulatory body of these professions, the DSPS has a process by which clients, patients, employers, competitors or complete strangers can file a complaint against a regulated professional, which if investigated and proven to be a violation could lead to professional discipline of the licensee.
Bad news: Anyone can file a complaint about anyone licensed at any time. Sometimes complaints can even be made anonymously. Each year, the DSPS receives approximately 3,000 complaints3 and the department is required to investigate each of them.4 Although the filing process differs slightly between agencies, generally, a person filing a complaint does not need to do much more than fill out a form or make a phone call to initiate an inquiry. Furthermore, there is no fee with filing a complaint.
Good news: Licensing complaints are common. It can be difficult not to panic if or when you are named in a formal complaint and it needs to be taken seriously. However, if you receive a notice of a complaint, try not to react emotionally or hastily. Yes, you are required to respond and fully cooperate with the investigation, but you do not need to answer right away, and you do not need to tackle the investigation alone. Consulting with an experienced attorney so your response can be answered thoroughly and objectively, without overburdening the investigator with information that is unnecessary and may not even help, can be very beneficial. Notably, hiring an attorney is not interpreted as an admission of guilt or wrongdoing. Rather, it is a sign that you are taking things seriously.
So, what actually is the DSPS’s case handling process?
DSPS CASE HANDLING PROCESS
I. Step 1: The Intake Stage
First is the Intake Stage. During this first stage, complaints are considered informal, received by the DLSC and processed.6 Individuals making a complaint can do so anonymously or by identifying themselves. Upon intake of these informal complaints, the division is then administratively tasked with screening the informal complaint. Per the applicable administrative code, considerations in screening include: (1) whether the person complained against is licensed; (2) whether the violation alleged is a fee dispute; (3) whether the matter alleged, if taken as a whole, is trivial; and (4) whether the matter alleged is a violation of any statute, rule or standard of practice.7 As it pertains to health care professionals, the screening process appears to be quite laissez faire. Our clients receive complaints ranging from the most serious of alleged care violations, such as operating on the wrong limb, to the most mundane, like waiting 15 extra minutes for the scheduled appointment. As such, it is unclear the extent of what screening, if any, truly goes into the estimated 3,000 complaints filed each year. Notably, when these informal complaints are received by the DLSC, there is no automatic formal “licensing board” action against the professional.
Next, copies of the complaint and related information are subsequently sent to the licensee for an opportunity to respond. When providing the complaint and related information, the licensee will receive a boiler-plate email from a DLSC representative. Don’t panic, this correspondence is not a formal action; rather, it is merely a notice letter of inquiry.
On its face, this notice can be intimidating. The correspondence begins by stating, “The Division is reviewing the enclosed complaint against your <Insert Profession Here> license.” In addition, it states that the respondent is required to provide, within two weeks, a detailed written response, including any additional documentation or other information believed to be relevant. This correspondence from the DLSC further states that the information provided will be reviewed by a Department attorney and/or screening panel, which includes members of the Board. Failure to respond may result in disciplinary action. Understandably, these matter-of-factly stated broad stroke requests can seem overwhelming, daunting, and even career ending.
Thus, because this is a legal process, working with an experienced advocate upon receiving notice of a complaint is crucial. Your legal advocate can help you navigate obtaining an extension to respond, accumulating the necessary documents/information, and help focus the inquiry scope to the allegations identified in the complaint. Sloppy or hurriedly drafted responses may inadvertently expand the scope of the probe beyond the limited issues identified in the complaint.
II. Step 2: The Investigation Stage.
After the licensee submits a response, the next step in the case handling process is the Investigation Stage.8 During this stage, the assigned DLSC investigator and an attorney develop an investigative plan. Investigative staff are tasked with gathering the necessary information and to make contact with identified witnesses as needed. Your response and accompanying materials submitted are included in the accumulation and consideration of information. On issues requiring professional expertise, a Board member is consulted. The results of the investigation are then provided to and discussed with the case advisor.
The Investigation Stage occurs entirely behind closed doors. The licensee does not participate in the Investigation Stage beyond providing a response, or additional information if required. This Investigation Stage may take a long time, which can be very frustrating. Notably, when the licensee provides their initial response, the investigator does not indicate when they anticipate to come to a decision. The licensee may not hear from the investigator for several months, or even longer.
During the investigation, the investigator may request additional information, or ask the licensee to answer questions. The investigator may also ask the person who filed the complaint for their response, and then you may be given another opportunity to reply. This back-and-forth may occur numerous times.
Upon conclusion of the investigation, the agency has several options. Often, after receiving and reviewing the response by the licensee, the agency finds insufficient evidence of a violation. In these instances, the files are closed. However, cases appearing to warrant professional discipline proceed to the next stage for legal action.
III. Step 3: The Legal Action Stage
If the Investigation Stage finds a violation, the file proceeds to the Legal Action Stage. Here, DLSC compliance attorneys review the results of the investigation and pursue disciplinary action when appropriate. Cases may resolve by means of stipulated agreements, informal settlement conferences, or administrative warnings. In matters involving professional expertise, case advisors will be asked for assistance and for their opinion, where appropriate for case resolution.
In some circumstances, the matter may be resolved through non-disciplinary action such as an administrative warning or remedial education. However, if the licensee’s alleged misconduct cannot be corrected with a non-disciplinary option, or if the misconduct is common enough that all licensees within the profession must be alerted to its substandard nature, formal discipline may be warranted.9
IV. Step 4: The Hearing Stage
The fourth and final stage of the DSPS process is the Hearing Stage. This stage is a formal legal procedure10 and results if no satisfactory resolution is available at the Legal Action Stage. The DLSC attorney litigates the case before an administrative law judge.11 The administrative law judge, therefore, is designated to prepare a proposed decision, including findings of fact, conclusions of law, order and opinion.12 Additionally, the administrative law judge is tasked with providing a recommendation whether all or part of the costs of the proceeding shall be assessed against the responding licensee.13
This administrative law judge then issues a proposed decision, which is subsequently reviewed by the credentialing board or department.14 If a violation is found, discipline may be imposed. Disciplinary orders may include, but are not limited to, the following:
- Reprimand – a public warning of the licensee for a violation.
- Limitation of License – Imposes conditions and requirements upon the
credential and/or restrictions on the scope of the practice.
- Suspension – Completely and absolutely withdraws and withholds for a period
of time all rights, privileges, and authority previously conferred by the credential.
- Revocation – To completely and absolutely terminate the credential and all
rights, privileges, and authority previously conferred by the credential.
The licensee is entitled to be present and to have legal representation. With an official reprimand, revocation, suspension or limitation of your professional credentials as a possible outcome, enlisting experience legal advocates is essential.
If disciplinary action results, the licensee still has recourse to appeal through the traditional Wisconsin judicial system.15
Although being on the receiving end of a DSPS complaint is relatively common for health care professionals, it should not be viewed as career ending. However, responding thoughtfully should not be taken lightly. Working with an experienced advocate who knows your profession and the law can make all the difference in this legal process.
This article is not intended to substitute for the legal advice and assistance of counsel. If you receive notice of a complaint filed with the DSPS, contact any of the experienced attorneys at LKG to advocate on your behalf.
- Authority of the DSPS derives from Wis. Stat. Ch. 440.03.
- The Wisconsin Department of Health Services (“DHS”) regulates a few other professionals who work in the health care field, as well as many health care facilities.
- WI Dept. of Safety & Prof. Svs., https://dsps.wi.gov/Pages/SelfService/FileAComplaint.aspx.
- Wis. Admin. Code § SPS 2.035.
- WI Dept. of Safety & Prof. Svs., https://dsps.wi.gov/Pages/SelfService/CaseHandling.aspx.
- See Wis. Admin Code SPS § 2.035.
- Wis. Admin Code SPS § 2.035(1) – (4)
- See, e.g., Wis. Stat. 440.03(3m), (3q), (5).
- Wis. Admin. Code §§ SPS 2.06-2.09, 2.13
- Wis. Admin. Code §SPS 2.15
- Wis. Admin. Code §§ SPS 2.10(1), 2.15.
- Wis. Admin. Code § SPS 2.10(2).
- Wis. Admin. Code § SPS 2.18(1).
- Wis. Admin. Code § SPS 2.10(2).
- Wis. Stat. 227.52, et seq.; See Tetra Tech EC, Inc. v. WI DOR, 2018 WI 75, ¶3, 382 Wis. 2d 496, 511, 914 N.W.2d 21, 28.