It takes years of sacrifice and hard work to become a registered nurse.  In California, the Board of Registered Nursing is in charge of regulating the nursing profession, and that means scrutinizing every RN application, looking for “causes for denial.”  As professional licensing attorneys, we’ve talked to thousands of nurses and helped hundreds of applicants get licensed even with these issues and more.  Here are the most common reasons prospective nurses get their applications denied:

  1. Committing a Crime

The Board of Registered Nursing is allowed to deny a license if the applicant has been convicted of a crime—that’s in the California Business and Professions Code, at section 480(a).  The crime must be considered “substantially related to the qualifications, functions, and duties” of a registered nurse.  In practicality this means that a crime signifies to the Board that the applicant has demonstrated bad judgment, or struggles with impairment, while a nurse is required to have good judgment and be free of impairment.  The most important factors for applicants with a criminal record to consider are “how long has it been since the crime?” “what have I done to rehabilitate?” and “were drugs or alcohol involved in the crime?”  The Board takes a hard line on convictions involving alcohol and drugs, and for even a single conviction the Board can deny an RN license.  An experienced licensing defense firm can help almost anybody demonstrate rehabilitation, so it is crucial to get an attorney involved if you have a criminal record.

  1. Lying on the Application

Business and Professions Code 480(d) allows the Board to deny a license if an applicant “knowingly makes a false statement of fact” on a license application.  Applicants need to be particularly careful to accurately disclose their criminal record—because they are so worried about possibly being denied for a criminal conviction, some applicants take a hopeful view of expungments or dismissals, hoping that their crime is “no longer on their record.”  A good rule of thumb is that in California, crimes are on your record forever.  Even if they have been dismissed, the application makes very clear that they still need to be disclosed.  There are some exceptions, such as juvenile matters.  An experienced attorney can help determine whether or not adverse events from the criminal justice system have to be disclosed on the application.

  1. Out-of-state Discipline

Not all applicants to the California BRN are first-time nurses. Some very experienced nurses from all over America want to be licensed in California, and they face their own challenges with the Board.  For example, what if a nurse was previously given license probation by the Texas Board of Nursing?  Not only must that discipline be disclosed to California (see problem 2, above), but that discipline could also become grounds for an outright denial in California.

  1. Suspension/Revocation of a Different License

The Board’s power to deny licenses isn’t limited to just acts involving the practice of nursing.  LVNs, Respiratory Care Technicians, and even CNAs who are looking to become RNs all have their own licenses and their own state agency to contend with before they apply to the California BRN.  For example, if the Board of Vocational Nursing disciplines or suspends a licensee, that regulatory action can be a separate ground for the Board of Registered Nursing to use to deny a license to an applicant.

  1. Irregular Behavior During the NCLEX

The California Board of Registered Nursing takes honesty seriously, and is allowed to deny a license for an act “involving dishonesty” no matter whether or not it was criminal in nature.  This provision is used against nurses who have some kind of irregularity during the NCLEX process, even if the alleged “irregularity” is innocent, like a violation of examination rules.  Not only will the RN Board likely consider the event to be dishonest, but the National Council of State Boards of Nursing (NCSBN) will often use the irregularity to prevent a nursing student from taking the examination again.  Since one of the requirements to be a nurse is to pass the examination, a nurse can find themselves with two strikes against their application for just one broken rule during the examination.

If you’re trying to become a Registered Nurse in California but you’ve got one of these problems, contact an experienced licensing defense attorney for help.  The above reasons come entirely from our experience defending licensees and applicants before the Board, and we can use that experience to help you.

Since late 2015, the Medical Board of California and the California Board of Pharmacy have begun to increase enforcement actions and penalties for perceived overprescribing of prescription drugs, particularly opioid drugs such as hydrocodone and oxycodone (Vicodin and OxyContin/Percocet).  High-profile celebrity deaths due to opioid overdose, coupled with rising addiction rates nationwide, have created political pressure on California agencies to do something about prescription drug abuse.  Physicians in California must be particularly careful, because state agencies are carefully reviewing the prescribing practices of physicians, including those in general practice, if there is a suspicion of over-prescribing.  Pharmacists, under the corresponding responsibility rules, face pressure from the Board of Pharmacy to report suspected prescription drug abuse, which may include notifying the Board of the source of prescriptions for suspected drug abusers.  Traditionally, our physician clients think of overprescribing as strictly a question of quantity—if the number of pills is within traditional limits, they reason, then they can’t be accused of prescribing too much.  In addition, responsible physicians often see their patients regularly, and so as long as they don’t prescribe pain medications “in bulk,” so to speak, they assume that they’re not overprescribing.

However, the Medical Board has taken a different view.  For every opioid prescription, Medical Board investigators will be looking specifically for an injury, a diagnosis, or a cause—a specific, charted reason why an opioid medication was necessary.  The Medical Board will also want to know what the long-term plan was to address the diagnosis, injury, or cause.  The longer a patient has been receiving opioids, the more suspicious the treatment will look to a reviewing physician or to an investigator.  The Board will reason that the more frequently a patient visits the facility, the more suspicion the patient should arouse in the physician.  Finally, the Medical Board will want to see referrals—to pain management if the issue is pain only, but also to neurologists, orthopedists, or other specialties depending on the problem.  Without referrals, the Medical Board may assume that the physician is not diligently reviewing the patient’s need for pain medication and will consider that overprescribing.

In late 2016, California Health & Safety Code section 11165.4 came into effect, which requires health care practitioners to “consult the CURES database to review a patient’s controlled substance history before prescribing a Schedule II, Schedule III, or Schedule IV controlled substance” on the first time and a four month intervals thereafter.   Failure to consult with CURES within the parameters of the law can result in referral to the professional’s state licensing board for “appropriate” administrative sanctions.

The enhanced expectations of the Medical Board combined with new rules for checking the CURES report place a heavy burden on physicians to carefully monitor and regulate prescribing practices.  A Medical Board investigator request for patient records which contain schedule II, III or IV controlled substance prescriptions can be a red flag that overprescribing is the target of the investigation.  For help with a California Medical Board overprescribing investigation or disciplinary action, please contact our firm for a consultation.

Our newest associate, Mr. Matthew Truong, recently assisted a client with disclosure of a felony conviction to the Board of Vocational Nursing and Psychiatric Technicians.  The client plead guilty to felony vandalism and misdemeanor battery in late 2016.  Two months later, Mr. Truong helped the client gather mitigation and rehabilitation evidence to present to the Board as part of the client’s responsibility to disclose the criminal convictions to the Board.

Although the client served jail time and was required to report to a probation officer, the LVN Board elected not to pursue disciplinary action against the client.  Mr. Truong’s counsel and presentation to the Board was instrumental in keeping the client free from any professional consequences, and the client remains employed.

Nobody likes to go to court.  For some of our clients, their unpleasant memories of a criminal conviction include multiple court appearances, pleading guilty in front of a judge, endless meetings with a District Attorney and their criminal attorney, thousands of dollars in fines, and sometimes even custody and jail.  For other clients, they have bad memories of civil or family court, with the attendant trial fees and the uncertainty and stress of prolonged litigation.  And, even for those clients with no court history at all, the prospect of “trial” conjures up memories of TV procedurals like Law & Order, where one wrong word could end in tragedy.

The reality of administrative court is very different.  The hearings are conducted in small, private courtrooms that are “open to the public” only in theory—the hearings are not publicly advertised and the rooms themselves are very difficult to access.  The trials are conducted formally, but the rules of evidence are relaxed, and the judge him- or herself usually converses openly with the attorneys on the record.  Witnesses are often treated respectfully, and usually every effort is made to respect the convenience and schedule of those who agree to testify.

Nonetheless, clients usually want to avoid hearing at any cost.  For this reason, some administrative attorneys pride themselves on their ability to settle cases and avoid hearing.  Our firm believes in getting the best possible results for our clients, even if that means taking cases all the way to trial.  Why is this experience important?  If your case could settle, why would you want to go to hearing?

First, because only by going to hearing and knowing how a judge is likely to rule do we know whether or not our clients are getting a good deal.  Sometimes agency counsel insist that they are offering a good deal, when in fact our clients go to court and achieve a better result from a judge.  Sometimes our clients are frustrated by the deals they are offered, when in fact the deal is likely to be better than what would happen in court.  Only an attorney who has significant trial experience can tell the good deals from the bad.

Second, the differences between administrative court and civil/criminal court are profound. The arguments, evidence, and case presentation that would work in front of a jury or in a civil matter are in some cases wholly inapplicable to administrative court.  In the worst of cases, we read decisions from ALJs where entire strategies devised by inexperienced attorneys to help their clients end up backfiring and ruining the client’s chance of success.  Knowing what judges want to hear matters, because we can then counsel our client to discuss their matter in the context that will help them convince a judge of what they deserve.

Finally, hearing experience matters because we know how to succeed.  Our attorneys are regularly recognized at the Offices of Administrative Hearings statewide.  Judges ask us about each other, and our reputation for professionalism and success precedes us into every hearing.  We know how to organize our arguments, our evidence, and our witnesses to achieve results, and judges who see our firm name know that we will conduct ourselves with professionalism and courtesy.  That positive impression extends to every aspect of the courtroom, including our clients.

When your license is on the line, you want the attorney with you who knows his audience.  We know what works, and we use that experience to achieve results.

 

In California professional licensing law, a second or greater drunk driving conviction seems to invite certain discipline.  However, in certain circumstances, the Medical Board of California has been known to investigate and discipline physicians for a single drunk driving conviction.  Although there is but a single conviction, the Board invariably seeks to paint the physician as an alcoholic, addict, or abuser of alcohol and drugs.  With this mindset, the Board attempts to impose long periods of probation with draconian conditions.  A probationary license can do damage enough – potential loss of privileges, jeopardizing credentials, problems with insurance carriers, problems with employment and employability, and a cost of about $4,000 a year in probation fees.  But drug and alcohol disciplinary cases typically carry with them mandated medical examinations of the physician, daily call-ins for drug and alcohol testing, frequent and expensive testing in sometimes remote locations, and possible treatment and therapy, commonly for a five year probationary period.

The Medical Board of California can find an even sometimes rather small aggravating fact to use to justify punishing a physician with a single drunk driving conviction.  In 2014, the Medical Board filed an accusation against a physician who was arrested for having a blood alcohol level of 0.10%, just slightly above the legal limit.  The physician was stopped by police when a CHP officer allegedly saw him run a red light.  Although we can only surmise the alleged facts from the accusation document (which I do not post here out of respect to the physician), the aggravating factor in this case in my view was that the physician sent a letter to the board in which he wrote that his conviction “was in no way related to work.”  This statement can be seen as lacking an appreciation for the seriousness of the offense and minimizing the conduct, in other words, showing a failure to take responsibility.  This, in my view, caused the board to lose trust in the physician’s judgment.

There are several keys to successfully defending a physician who is subject to discipline for a single drunk driving conviction.  An evaluation and testimony by a carefully selected expert addictionologist, combined with careful packaging and presentation of the case by an experienced attorney, can remove suspicion of alcoholism or alcohol abuse and allay the board’s public protection concerns.  An attorney should be retained from the time of filing of the 802 report, through the Medical Board investigation, and continuing on to the disciplinary case if one is filed.  The physician’s attorney should fight for the lowest possible penalty provided the evidence supports that outcome.

Business and Professions Code section 2239 empowers the Medical Board of California to discipline a physician for dangerous use of alcoholic beverages or drugs.  The statute provides that conviction of even a misdemeanor offense involving the consumption of alcohol or dangerous drugs “constitutes unprofessional conduct” and that the record of conviction “is conclusive evidence of such unprofessional conduct”.  Such a conviction can be a single drunk driving conviction or even a “wet reckless” conviction.  And if the board can prove the alleged unprofessional conduct based upon evidence, a conviction may not be required at all.

For experienced legal assistance with a drunk driving conviction that must be reported, has become a Medical Board of California investigation, or has resulted in an accusation, call Ray & Bishop, PLC at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal advertisement

 

Recently we shared our insight about the professional consequences of getting a DUI for a California registered nurse.  We wanted to share with you some recent feedback we received from a registered nurse who had the same struggles we discussed in our article:

From February 13, 2017:

“I am an RN who was convicted of two DUIs. Upon receiving my accusation from the BRN, working with Mr. Bishop helped relieve much of the stress that I created for myself. He was in constant communication and always responded to e-mails and phone calls in a very timely manner. He took time to thoroughly explain the process to me and helped me understand what to expect. The other gentlemen in his office were also incredibly pleasant to work with (thank you Mo and Andrew!). I feared possible revocation while Mr. Bishop was strongly confident that I would be granted probation. Not only was I fortunate enough to receive probation, but Mr. Bishop managed to settle my case before hearing. Mr. Bishop helped make a terrible situation much more manageable. I highly recommend him to anyone faced with a similar situation.”

Of course, this wonderful testimonial does not constitute a guarantee, warranty, or prediction about your matter.  Every case is different, and the outcome of your legal matter depends on the facts of your case.  Nevertheless, if you are an RN struggling with a licensing issue, we encourage you to contact us to discuss how we can help protect your license.  If you need assistance with a license matter, call us at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal Advertisement

In June 2014, Commission on Teacher Credentialing (CTC) received a report from the Division of Professional Practices (DPP) regarding the processing of its disciplinary cases.   In response to a growing backlog of disciplinary cases referred to the Attorney General’s office for disciplinary prosecution, additional funding was granted to the CTC for more efficient processing of cases.  In 2016, as a backlog of almost 300 cases choked the system, CTC increased fees and directed additional funds to the Attorney General’s Office.  That effort has resulted in additional hiring at the Attorney General’s office, and in turn numerous new disciplinary cases against teachers and appeals of credential denials reaching the hearing process.

As the DPP report found, most CTC disciplinary cases involve crimes against children, sex crimes, and crimes involving alcohol and drugs.   The CTC disciplinary process is a two-step process.  The criminal conviction or complaint initially goes before the CTC for informal review, at which time an explanation from the teacher or teaching license applicant, usually offered in writing, is considered.  An attorney can be very helpful in crafting a response to the CTC.  If the explanation is found to be reasonable, and the case is not too serious, sanctions may range from no action at all to a short suspension.  More serious cases can result in a recommendation of revocation of the credential.  In any case where the penalty is unacceptable or revocation is recommended, we strongly recommend that the teacher request an administrative hearing.  In almost all cases, the teacher will continue to hold a valid credential while the disciplinary case is pending.

Ray & Bishop, PLC, vigorously defends California professional licenseholders accused of misconduct.  If your credential is at risk, call 949-557-4888 for our help or visit our website at www.calicenselaw.com.  Legal advertisement.

Our firm just received a decision from the fourth consecutive disciplinary case against a physician by the Medical Board of California.  The physician was already on probation, and in two prior cases, the physician’s probation had been extended.  The Board accused the physician of misconduct while on probation, and forced the physician to make statements because he was on probation.  Since the standard of proof is much lower to discipline someone on probation – probation can be violated on a showing of only a preponderance of the evidence – the Medical Board of California filed a petition to revoke probation in addition to an accusation.

However, fortunately for the physician, an administrative law judge agreed with our arguments that the Medical Board of California did not meet its burden of proof and dismissed the disciplinary case.   The physician’s license was saved.

This case result does not constitute a guaranty, warranty or prediction of the outcome of any other license discipline case.  Every case is unique.  For more information about how we can fight to save your license, call Ray & Bishop, PLC at 949-557-4888, or find more information at www.calicenselaw.com.  Legal advertisement.

California licensing agencies can issue a default decision against a licensee who has no idea their license was even in trouble.  If you’ve moved and failed to notify your licensing agency about your new address, have trouble getting your mail, or have someone else handling your mail, the first time you learn your license is in trouble might be after your license has been revoked.  But there is something you can do about it.

In California, when an accusation is filed against a licensee (starting a formal discipline case), for almost all cases the licensee must file a document called a notice of defense within 15 days of being served with (sent) the accusation in order to request a hearing and avoid default.  If the licensee fails to preserve their right to a hearing within 15 days of service, the state agency can proceed to discipline the license right away without a hearing.  That almost always means a license revocation done by default.

However, there is relief available from default.  If you act within seven days of when the default decision was served (which usually means seven days from when the agency sent it, not when it arrived), under Government Code section 11520 you can ask the agency to set aside the default.  This motion is best done by an attorney, but it has to be done quickly.  The attorney files a motion and a notice of defense.  If you have a good excuse for not filing the notice of defense, the agency will usually reinstate the license and let you defend the license discipline case.  If the motion is unsuccessful, there can be other options, like asking for reconsideration or filing an appeal in Superior Court (called a writ petition), but those options are more complicated and can be much more expensive.

There is a second type of default – one that the licensee usually knows about.  That’s when a licensee files a notice of defense, but fails to show up at their administrative hearing.  In that case, there is also window of time to ask to set aside the default before a proposed decision is issued.  If you let that time pass, then you have to try the seven day motion or other legal options.

A surprise default, or realizing you didn’t show up at your hearing, is about the worst feeling a licensee can have.  Call the attorneys at Ray & Bishop at 949-557-4888 for immediate help.  For more information, our website is www.calicenselaw.com.

It only takes a split-second of bad judgment for a registered nurse to get behind the wheel of a car after consuming some alcohol, but the professional consequences can be severe and last a lifetime.  Any nurse with a DUI arrest can attest to the painful, humiliating consequences of being dragged before a judge and accused of the crime.  Harsh fines, mandatory classes, and driving restrictions can be handed down in court.  But the true professional consequences often spring up months or even a year or more after the arrest and conviction.  The California Board of Registered Nursing (BRN) has stiffened penalties and adopted stricter enforcement measures against nurses who are accused of a DUI, sometimes even if the nurse is not even convicted.  If you are a nurse in this situation, read on to find out what could happen to you, and how qualified, experienced counsel can help.

BRN usually makes contact with a nurse involved in a DUI either immediately after the arrest or soon after the conviction.  The Board may get involved because the California Department of Justice has notified the BRN of an arrest or of a conviction.  Nurses have an obligation to report criminal convictions to BRN, so self-reporting can also trigger Board inquiries and action.

In reaction to a report of a DUI arrest or conviction, the Board’s first step is sometimes to offer the nurse entry into its “confidential diversion program,” a third-party program designed to help addicted professionals get clean from drugs or alcohol.  Nurses will often get a form letter from the Diversion Program, signed by an analyst or sometimes just from the “Program” generally, indicating that the Board has been made aware that the nurse suffered a criminal incident involving drugs or alcohol.  While the decision to enter diversion is a personal one and cannot be made by an attorney or a third party, one can see from the program description on the BRN website that diversion is meant for addicted professionals.  It is often a poor fit for nurses who do not struggle with addiction, and the decision to enter diversion should be made after careful consideration.  Also, although diversion can avert Board discipline, failure in diversion can lead to discipline after a torturous path of scrutiny at intake, addiction treatment, suspension from work, and harsh oversight.

If a nurse declines diversion, the Board usually reappears a few months later—sometimes before the conviction, sometimes after—with a letter requesting the nurse to provide a litany of documents, including certified court records and police records, along with an explanation of what happened.  The timing of this letter is critical.  If a nurse has not yet been convicted or plead to any crime, then he or she must carefully consider how to balance their Fifth Amendment right to remain silent against the Board’s request.  This is where the involvement of a licensing attorney, sometimes with input from criminal defense counsel, can make an important difference.

Assuming a conviction results from the arrest, the conviction must now be reported to the Board of Registered Nursing and explained in detail.  Strong evidence of rehabilitation should be gathered and presented to the Board at this stage, and an experienced licensing attorney will know the Board’s reporting requirements and the most helpful evidence to include with a nurse’s letter of explanation.

Whether the Board ultimately files an Accusation—a formal disciplinary charge against the nurse—depends on a few factors.  Recently, the Board has been filing Accusations on single DUI convictions at all blood alcohol content levels, after evaluation of the circumstances of the intoxication and arrest and other factors.  For multiple alcohol-related convictions, the Board will almost always file a case even if many years pass between incidents.  If you are a nurse who receives an Accusation, it is vital that you get representation immediately.  Your license is at stake, and your future employment could depend on the type of conditions attached to your license as a result of Board discipline.