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How to Handle a Complaint from the Board of Registration of Social Workers - Part II

Barry Mintzer February 2, 2009

If the Board believes a social worker’s actions violate law, ethical standards or practice norms, it will refer the case to a prosecutor.  The Board’s intent in doing so is to seek discipline against the social worker’s license.  Discipline can be a reprimand, censure, probation, suspension or revocation, and may include monetary fines.  Whereas the initial complaint discussed in Part I is made by a former client or some other third person, once the matter is referred for prosecution it represents a complaint against the licensee by the Board of Registration.

The Board’s complaint is initiated by an Order to Show Cause (Show Cause) sent to the licensee by registered mail.  The Show Cause orders you “to appear and show cause why the Massachusetts Board of Registration of Social Workers should not suspend, revoke or otherwise take action against your license to practice as a social worker.”  The Show Cause sets forth the Board’s case, stating facts (“You treated Ms. X from 2002-2007; you disclosed confidential information in a letter to the Probate Court”), drawing conclusions based on those facts (“As a result, you violated Ms. X’s legal right to confidentiality”), and stating the legal effect (“You violated 258 CMR 22.01”).

There is no way a social worker can effectively defend himself against the Board’s prosecution without legal representation.  Counsel must file an Answer to the Show Cause within 21 days and should be sure to request an adjudicatory hearing.  Hearings are conducted under the state Administrative Procedures Act, G.L. c. 30A, 10 and 11 and the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 and 1.03. 

An adjudicatory hearing is a full administrative trial, with examination and cross examination of witnesses, expert testimony, legal briefs, motions, etc. While it may seem unfair, the same Board that votes to prosecute you also serves as the judge and jury.  Some lawyers who practice before this and other boards believe prosecuted cases should be moved elsewhere, perhaps to the Division of Administrative Law Appeals.

An administrative trial is expensive.  I strongly recommend purchasing additional defense reimbursement coverage as part of your malpractice policy.  In a case between you and the state, the state has substantially greater resources and having added coverage can even the playing field, giving the social worker added leverage in settlement negotiations between his lawyer and the prosecuting attorney.

The vast majority of prosecuted cases are resolved without a trial, through a document called a consent agreement.  In a typical consent agreement, the social worker admits to some violation of ethics or law or both, and agrees to accept a sanction.  Sanctions can range from reprimand to revocation, and can include a requirement for practice supervision or psychotherapy with a Board approved supervisor or therapist required to make periodic reports to the Board.  Sanctions, such as probation with supervision, can last for several years.  The terms of a consent agreement are negotiable and counsel should not hesitate to seek the best possible terms for a licensee.  While prosecutors are, as a rule, reasonable and flexible and willing to find common ground, the Board in recent years has become more brittle and seemingly inflexible, especially in its unwillingness to take into account the effects of a sanction on a licensee’s business.  For example, a sanction such as probation with supervision will result in managed care companies removing the social worker from their panels, devastating a private practice, a consequence disproportionate to the offense.

A consent agreement is a public record and the admissions in it can have serious legal consequences if the original complainant contemplates further legal action against the social worker.  For this reason, care should be taken around the precise wording of any admission.  If a social worker enters into a consent agreement or, after a hearing, is found guilty, notice of any sanction will be posted on the Board’s website under the licensee’s name and anyone checking your credentials will see that you were disciplined.

If you want to avoid being prosecuted, follow these simple rules:  keep good records, understand and follow the laws of confidentiality, maintain appropriate clinical boundaries, seek consultation from colleagues in difficult cases, and never write a letter to a court or attorney in a disputed custody case.

Be prepared to wait.  The entire process can take a year or longer.  The complaint process has been especially slow in the past year because the Board has been unable to regularly get a quorum to conduct official business.  One social worker recently received notice that his malpractice insurance had been cancelled, even though the Board had not even considered his case, solely because the process was taking so long.

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