Identifying and Investigating Unlicensed Practitioners
Incidents involving unlicensed practitioners are increasing across the United States and Canada, and in many jurisdictions, combating illegal practitioners falls to the regulatory body.This article describes the scope of the problem and explains methods for preventing unlicensed practice and identifying unlicensed practitioners by using investigative techniques.The article also addresses the value of collaborating with other organizations and the need for the resources to investigate unlicensed practitioners.
Describe the scope of the problem with unlicensed practitioners
List strategies to identify and prevent unlicensed practitioners
Explain the value of collaboration among agencies to prevent unlicensed practitioners
The most effective way a governing body ensures that professional services are provided competently and with professional integrity is through licensure. Permission to practice is restricted to those who meet the standards, and the right to practice can be withdrawn from those who breach the standards. Those who have never qualified for a license or have lost their license because of inactivity, incompetence, or miscon- duct expose themselves to prosecution if they engage in practice.
Despite laws prohibiting the practice of a profession by a person who is not licensed or credentialed, anecdotal evidence based on discussions with many jurisdictions suggests that unau- thorized practice cases are proliferating across the United States and Canada. To protect the public from persons not qualified to practice, these laws restrict the use of professional titles, such as “nurse” and “physician.” In most jurisdictions, profession- specific legislation makes unauthorized practice a quasi-crim- inal offense, though criminal charges may be brought in some circumstances. Legislation also provides injunctive relief to stop unauthorized practice. Typically, regulatory boards have jurisdic- tion over licensees charged with professional misconduct but not over nonmembers practicing without a license. As a result, most regulatory boards seek injunctive relief against nonmembers to stop unauthorized practice. In some jurisdictions legislative options are available to bring specific charges against nonmem- bers for using restricted titles, holding out as a licensed prac- titioner, or performing specific acts that are restricted to those who are licensed. For example, in Ontario, most health profes- sion acts make it an offense to use certain titles, hold oneself out as a member, or perform controlled acts such as administering a substance by injection. Charges may be brought against anyone violating these provisions and convictions carry various penalties.
The most concerning issue with illegal practitioners is the performance of controlled acts. Typically, controlled acts are defined within legislation as acts that only appropriately licensed health care professionals may perform, such as perform- ing a procedure below the dermis (e.g., surgery) or administer- ing a substance by injection. The risk of harm is high in cases in which controlled acts are performed and in some cases, persons have been criminally prosecuted for such crimes as assault and aggravated assault. Criminal charges may also be laid in relation to the fraudulent aspects of illegal practice, such as personation, uttering forged documents, and fraud. In cases in which the risk is high or the consequences are catastrophic, regulators need to work with law enforcement agencies to seek criminal prosecution.
Efforts to Stop Illegal Practice
Combating illegal practice typically falls to the regulatory body of the profession. Regulatory agencies have undertaken public relations campaigns to educate the public; they have altered reg- istration procedures to make working in institutions more diffi- cult for unlicensed persons; and they have implemented rigorous investigative efforts to deal with those illegal practitioners who come to their attention. However, the investigative processes can be a drain on an agency’s resources.
In the United States, the states most successful at combat- ing and controlling unauthorized practice have specialized units responsible for identifying, investigating, and prosecuting illegal practitioners. For example,
- Florida Department of Health’s Unlicensed Activity unit investigates and refers for prosecution all unlicensed health care activity complaints and allegations. The unit works with law enforcement and the state attorney to prosecute persons practicing without a license. In many instances, unlicensed activity is a felony offense. Florida’s program is funded by a $5 initial license fee and a $5 license renewal fee (Florida Health, n.d.; Online Sunshine, 2014).
- California has an enforcement unit within its medical board, called the Operation Safe Medicine Unit, which addresses the unlicensed practice of medicine (Aguilar, 2015).
- Nevada has responded to a significant number of illegal sur- geries and other reports of unlicensed health care providers, primarily in the Latino community. The Latino Research Center at the University of Nevada, Reno created a cultural awareness program to produce educational materials and inform the community about the problem. Also, Nevada’s 2-1-1 resource call center takes reports about unlicensed health care activity (“All three claim to be doctors,” n.d.).
All regulatory bodies can take certain preventive steps to make engaging in illegal practice more difficult:
- Eliminate license cards and certificates after issuing the initial certificate to prevent forgeries. Require employers to check with the licensing body regarding a person’s license status.
- Publish the names of persons successfully prosecuted for illegal practice violations.
- Educate prospective employers regarding their obligations and the process for checking the status of a license.
- Educate the public on illegal practitioners and describe how to identify them.
- Issue a press release on all successful prosecutions.
Identifying Unlicensed Practitioners
Unlicensed practice occurs in all jurisdictions and in all health care settings, including acute care, long-term care, private offices, and community care. Understanding some common tactics of unlicensed practitioners can help identify them. See Table 1 for examples of cases demonstrating the scope of illegal practice.
To practice illegally, a person typically needs to obtain creden- tials. This need is less of a problem for the perpetrator when organizations fail to properly check credentials of prospective employees. In many cases, physicians and dentists who hire nurses simply take their word regarding the status of their licenses. Frequently, these illegal practitioners go undetected for long periods of time; they are often described as “the best nurses.” One theory is they are afraid of getting caught, so they keep their heads down, do whatever they are asked, and main- tain a friendly demeanor. They also avoid detection by refraining from any work requiring technical knowledge.
If a person cannot obtain the needed credentials in his or her name, he or she may try to assume the name of someone who has legitimate credentials. These cases require investigators to determine the true identity of the person. This illegal practice can go undetected for a long period of time.
Unlicensed Nursing Practice
Unlicensed practice can happen almost anywhere. Below are just a few examples of illegal nursing practice.
- A nursing agency operated with several unlicensed per- sons who were practicing as nurses in nursing homes. Some had previously attempted to be licensed but failed. The agency owner guaranteed the nursing homes that everyone assigned had a background check and was li- censed as a registered nurse or registered practical nurse.The illegal practitioners were charged under the nursing act and the agency owner was charged with mul- tiple counts of fraud.
- A man posed as an experienced, licensed RN, using false resumes and fraudulent references. He secured various positions as a director of care in retirement homes. Dur- ing an undercover operation, he was interviewed for a job, posing as a nurse. Subsequent prosecution led to over $100,000 in fines and 2 years’ probation.
- A former nurse who lost her registration after a disciplin- ary hearing stole the identity of a relative who was a re- tired nurse. Using the false identity, she obtained a li- cense and practiced nursing. She was investigated, and through a joint effort by the nursing regulatory board and the local police, she was charged with several counts of fraud and personation.
- A woman went to school to become an RN but failed af- ter 3 months.The next year, she went to school to be- come a registered practical nurse but failed after 2 months. She then forged a nursing registration card and got a job at a teaching hospital working in the dialysis unit. She worked for 2 years before the hospital noticed that something about her credentials was amiss.This person was described as one of the best nurses in the unit.
- A woman whose nursing registration was revoked 6 years prior obtained registration in three other jurisdic- tions by forging a form used by her parent jurisdiction confirming she was licensed. She submitted the form to three other provincial jurisdictions in Canada. She was prosecuted and fined and put on 2 years probation.
Fabricated Experience and References
There are companies that provide fake backgrounds and refer- ences to suit anything a buyer wants. They even provide tele- phone numbers to be given to potential employers, so when an employer calls for a reference, the response is positive and con- vincing. This makes the regulatory board the last line of defense. People can easily fake almost anything except an actual creden- tial from a regulatory body or licensing board.
Many illegal practitioners practice in their own ethnic commu- nity. This poses two challenges: infiltrating the community to get evidence and obtaining the cooperation of the community. Patrons frequently know that their practitioner is not licensed, but low cost and convenience prevent them from taking action against the practitioner.
Complicit Agencies and Employers
Agencies and employers sometimes act as accomplices to illegal activity. Examples of such activity include the following:
- Agencies claiming to have performed background screening and credential assessment when they have not. This fraudu- lent activity allows the agency to pay an unlicensed person a fraction of what a licensed practitioner would be paid.
- A previously licensed professional who lost his or her creden- tials, possibly through a disciplinary revocation, opening his or her own agency.
Agency owners using the license numbers of legitimate prac- titioners to bill insurance providers, even though the licensed professional did not provide the service.
Investigation Strategies and Challenges
An investigation of unlicensed practice begins with determining the evidence needed to prove the offense. In most cases, the goal is to obtain evidence of one or more of the following:
- A person is holding himself or herself out as qualified to practice.
- A person is using a protected title or designation.
- A person is performing controlled acts limited to licensed professionals.
Investigators may search in a number of places for evidence. For example, advertising is the first avenue used to hold one- self out as a practitioner of just about anything. The investigator can search for evidence in such places as business directory ads, Internet ads, signage, and business cards or brochures. Holding oneself out as a practitioner also includes making statements that cause a reasonable person to believe the perpetrator is qualified to practice.
Coworkers, clients, and employers typically can help determine what information the perpetrator shared with them. Obtaining the cooperation of employers and coworkers to aid the investigation can also be a challenge. Many are reluctant. Employers may be afraid they will be prosecuted for employing an offender. Coworkers may fear retaliation. Thus, gaining the cooperation of witnesses can be a sensitive matter.
Health record documentation is also good evidence that the person held himself or herself out as a licensed practitioner. Such documentation is often a good place to look for the use of title evidence because offenders typically sign forms or docu- ments with a title such as “Jane Doe, RN.”
Documents in the public domain are easy to obtain, but health records or records from insurance companies require some form of authority, such as summons powers, a search warrant, or the consent of the person to whom the health records pertain. For regulators, consent is often the only recourse. If regulators have the ability to obtain a search warrant, they still need enough evidence to support the request for it. This too can be a challenge because the preliminary investigation may alert the offender and lead to efforts to tamper with or destroy evidence.
Obtaining the Cooperation of Third Parties
Several strategies may be used to manage the challenges of obtain- ing the cooperation of third parties. The investigator may try using other agencies to apply pressure; for example, a physician who does not want to disclose records may be told that the medi- cal regulatory body or licensing board will be advised that he or she is not cooperating. In most cases, the professional will have an obligation to cooperate or face consequences. Hearing this from one’s own licensing board will often initiate cooperation.
Sometimes, an insurance company can be used to pro- vide pressure. For example, a former nurse who started her own agency may have clients submitting insurance claims stating that a nurse provided care. These claims would be false, and the insurance company may pull the coverage or threaten to recover previous payments. This possibility may force some cooperation from the clients. The approach may sound harsh, but it is not as harsh as the potential harm caused by allowing untrained, unli- censed people to provide care.
Some people simply need reassurance before cooperating. Calming their fear of being in trouble can help. For example, many physicians hire unlicensed nurses because of poor man- agement and not as a deliberate attempt to hire an unlicensed person. Advising such a physician that from the regulatory per- spective, he or she is a victim, not an offender, can help obtain cooperation. Appealing to a person’s sense of ethics may also be a good strategy. For example, the investigator may say, “Whether you knew it or not, you helped this person do something illegal; now is your opportunity to make it right.”
Educating the public about identifying illegal practitio- ners can also be a useful strategy. (See Table 2.)
Using Surveillance and Undercover Operations
Surveillance is another investigative approach. In some cases, an investigator may receive a tip that a person is practicing ille- gally but may not be told where or when. Surveillance of that person will help determine the location of his or her practice. When an investigator knows the location but cannot get inside to observe—for example, when a person practices dentistry in the basement of his home—surveillance may help determine the flow of clients to and from the location. Investigators can record license plate numbers and possibly obtain the names of clients for follow-up later in the investigation. License plate numbers and clients’ names may help the investigator obtain reasonable and probable grounds to justify a search warrant, so entry can be made and records obtained. Surveillance is not an investigative step commonly undertaken by regulators, so they should retain the services of someone with experience.
Undercover operations are another excellent method of gathering evidence of illegal practice. Investigators may adopt any number of roles, such as clients, nursing recruiters, or even utility-service providers. Determining where people work can be a challenge. However, making phone calls posing as a potential client or a delivery service with a package can help.
Social media searches are often a gold mine of informa- tion. Many people provide information on social media with- out realizing it. One of the best aspects of social media is the pictures people post. Many do not realize the photographs are geo-tagged, so the date and time a picture was taken are avail- able. Sometimes, people post enough information that their most common locations, typically work and home, can be tracked. These geographic locations are then superimposed on a map, dramatically narrowing the search.
Identity theft adds another level of complexity to inves- tigations. Typically, interviewing known associates of a person being investigated is the best starting point. Again, social media searches can help. With any investigation, one piece of infor- mation leads to the next. As information comes in, the inves- tigator begins learning where the suspect works, how he or she is committing fraud, and who is cooperating with him or her. Background searches can lead to such information. For example, in some jurisdictions, investigators have access to department of transportation searches, so they can determine the name of the person who owns a license plate. With that information, the investigator can obtain the person’s address, perform a lien search, and obtain the owner’s mortgage information. If a person is posing as Jane Doe and all evidence from the search shows that her name is Nancy Smith, the investigator has unveiled valuable information regarding identify theft. Investigators must use all available resources and strategies to manage investigations.
Collaborating With Other Organizations
Creating memorandums of understanding (or simply stated, agreements) with other organizations helps with jurisdictional issues. These organizations may be other regulatory agencies or police departments in one’s jurisdiction or across state or pro- vincial lines. A memorandum of understanding outlines what can be shared among agencies under what circumstances. For example, a regulator and a police department might agree to share statements taken from witnesses in order to prevent having two statements taken and risk the potential for inconsistencies in the statements, which could jeopardize both the regulatory and criminal cases. This type of sharing can streamline interagency cooperation. Memorandums of understanding can be beneficial; for example, when someone is working illegally in two states, the agencies can share the information gathered from their respective investigations and avoid duplication and excess use of resources. In such cases, there may be an option for two regulatory boards to work together and combine their resources.
Educating the Public
Educate the public about identifying illegal practitioners by offering the following tips.
- Look for a registration certificate or license hanging on the wall in the office or place of practice. If you do not see one, ask yourself why.
- Be cautious when a person suggests that he or she offers an “alternative” or something “nobody else can provide.” Both the treatment and the qualifications of the practitioner may be in question.
- Check whether your practitioner advertises or relies primarily on word of mouth? If you see little advertising and were referred by a friend, be suspicious.
- If the practice location is in the basement of a home, a common room in a condo, or the living room of a person’s apartment, be suspicious.
- If professionals in the same field accept insurance but your practitioner does not accept insurance, cannot process insurance claims, or deals only in cash, ask yourself why.
- Be wary of a practitioner who wants to charge a flat fee up front for future treatments or visits.This method is common among illegal practitioners.
- If the practitioner will not give you a receipt for payment right away, be suspicious.
- Check receipts or correspondence to ensure they have the name of the person who treated you. Many illegal practitioners steal the identities of people who are licensed or registered.
- Check receipts to ensure they include a registration or license number. If not, be suspicious.
- When persons advertise themselves as “medically trained” or having “received training in…”, they may be trying to avoid the fact they are not qualified to practice in the United States or Canada.
For many agencies, resource limitations are an issue, and policy decisions must be made. Members of regulatory boards see them- selves primarily as regulators of their profession. They are less inclined—and less prepared—to deal with persons who are not members of their profession. However, as the gatekeepers of the profession and protectors of the public, regulators have an obli- gation to deal with this issue, particularly given that in most jurisdictions no other agency takes the responsibility. Therefore, regulatory boards need to look at their resources and determine how they will address unlicensed practice from both prevention and enforcement perspectives, using the tools at their disposal: licensure, education, prevention, investigation, and collaboration.
Dean Benard, RN, BA, LL.M, C. Med, is President, Benard + Associates, Waterloo, Ontario, Canada.
Aguilar, C. V. (2015, March 23). Jury trial scheduled to begin for man accused of practicing medicine without a license on chronically ill patients. The DOI Page. Retrieved from https://thedoipage.word- press.com/category/operation-safe-medicine-unit/
All three claim to be doctors…Only one of them really is. (n.d.). ¡No a los médicos clandestinos! Retrieved from www.unr.edu/latinocenter/medi- cosclandestinos/index.html
Florida Health. (n.d.). Investigate complaints. Retrieved from www.flori- dahealth.gov/licensing-and-regulation/enforcement/report-unli- censed-activity/investigate-complaints.html
Online Sunshine. (2014). The 2014 Florida statutes. Retrieved from www. leg.state.fl.us/Statutes/index.cfm?App_mode=Display_ Statute&Search_String=&URL=0400-0499/0455/Sec- tions/0455.2281.html