One of the common concerns we hear from hardworking people who want to get a license is “I don’t think the Board would take somebody like me.”  These are often young, well-meaning, accomplished people who made a mistake in their late teens or early 20s that turned out to be criminal.  Maybe they drank more than they should, maybe they had a crew of friends that wasn’t career-focused, or maybe they just made a bad decision that led to criminal consequences.  If you are denied a professional license because of your criminal record, the most important question to worry about isn’t “can I get this expunged” or “how much time do I have to wait” or “do I have to disclose this to the agency?”  The most important question is “am I the same person now as I was when I committed the crime?”

For the vast majority of our clients, the answer to that question is “no, of course not.”  They grow up, they get jobs, they get new friends, they stop drinking, they pursue life goals, and they bear nothing in common with the less mature person who committed the crimes on their record.  The challenge is in the proof—how do you prove to the agency that you’re not the same person you were?

That’s where experienced counsel makes all the difference.  A lawyer who’s experienced in licensing law will know exactly how to take all the positive changes you’ve made in your life and present them to a judge or to an agency so that you have the best chance possible of reaching your career goals.  All of those questions we posed above, about expungement or waiting or disclosure, are very important, but they’re only important insofar as they help you prove that you are different.  In fact, most agencies have specific rules that dismissal of a case alone does not prove rehabilitation, notwithstanding the new regulations that were meant to make things easier for people who get their cases expunged.  In the same way, most agencies have specific rules that say “the passage of time alone is not sufficient,” so our clients have to make sure they are spending that time wisely, rehabilitating themselves and gathering evidence to answer the most important question: “Am I the same person?”

If you’re worried that your criminal record will keep you from getting a professional license, consult with an experienced professional license defense attorney.  It’s what we’re here for.

We have successfully saved many RNs in California from license revocation after serious, lengthy Accusations were filed against them.  As a consequence of a pattern of convictions or a serious mistake, RNs often have to serve a period of probation with the Board of Registered Nursing.  The most common length of a probation term is three years.  This can be a serious interruption in a successful nursing career because of the employment approval and the limitations on overtime work.  For nurses who have alcohol-related or drug-related discipline, the conditions are even more arduous and costly, including mandatory drug testing, nurse support groups, and AA meetings, in addition to the standard terms and conditions.

There is good news!  RNs are eligible to file a petition for early termination or modification of probation as early as one year after they go on probation.  For nurses on a three-year term of probation, they can ask the Board to modify their probation and reduce some of the terms after one year from the effective date of the Decision.  That means that a nurse who’s been testing clean for a full year can approach the Board about at least lifting or modifying the alcohol related terms.  He or she could also ask for the ability to work for different agencies or for a nursing registry, get permission to work overtime, or reduce the required supervision to open up more career opportunities.

For nurses who have completed two years of probation, they can ask the Board to terminate probation early.  Even a few months saved off of a three-year term can reap a significant reward, as the earning potential of a nurse who can become a charge nurse or a supervisor can increase dramatically.

Our firm has helped hundreds of nurses navigate probation.  If you are interested in pursuing early termination or modification of probation, contact an experienced license defense attorney right away.

When a licensed professional is targeted by a state agency for an investigation, it can be one of the most stressful episodes of their career.  It’s often unclear what documents have to be turned over, whether or not interviews are “voluntary” or “mandatory,” and what the consequences of the investigation could be.

We have covered the importance of legal counsel for licensed professionals who are going through an investigation in past posts.  Recently, we have seen investigations that appeared to be dormant or inactive suddenly spring to life, either in the form of an investigator asking for more information after six months or more of silence, or in the form of an Accusation filed against a licensee after almost two years of silence from the agency.

What specific lessons can we learn from these lengthy timelines?  For one thing, it is even more important to have an experienced attorney manage an investigation case.  In our office, we keep physical and electronic records for each client active no matter how long the agency has been silent, so that we are prepared in the event of a change of circumstances.  For another, it’s important to remember that an investigator could continue an investigation or conduct an interview at any time, even many months later, so a licensed professional should always be cautious when dealing with an agency.

The biggest lesson for our clients, though, is more fundamental.  Often, as a result of an investigation, our clients learn that a particular aspect of their business or practice either should be or needs to be improved: whether it’s charting, record-keeping, accounting, or any number of professional skills, often we identify business practices that our clients should correct in order to avoid professional discipline.  These changes are important and must be permanent, because the agency never stops watching a licensee after an investigation is opened.  It is no good to make positive changes for six months or for a year and then go back to the old way of doing things, because if the investigator comes calling or an Accusation is filed, those business practices may make the difference between success and failure in an administrative case.

Our firm recently represented an RN in an Accusation matter before the Board of Registered Nursing.  The client had a single conviction for driving with a blood alcohol content of .08 or above, but had been acquitted of a charge of Driving Under the Influence.  The Board was only willing to settle the case for probation for three years with all the drug and alcohol terms, meaning the client would have been required to test for drugs/alcohol, attend AA meetings, attend a nurse support group, and attend rehab.

We took the case in front of a judge at the Office of Administrative Hearings.  Upon a showing of the case facts, a profound expression of responsibility and remorse from the client, and strong documentary evidence, the Administrative Law Judge ordered the client be given a public reproval instead.  A letter went into the client’s file indicating that the client should not have driven with a high BAC.  The client does not have to spend any time on probation, and the client’s successful career as an RN was not interrupted.

This case does not represent a warranty, prediction, or guarantee about your individual matter, as every case is different.  However, it underscores the difference that a quality case presentation can make in preserving and protecting your career.

When our clients face an administrative hearing, one of their most pressing concerns is about witnesses: who do they have to be, where are they going to come from, and what are they supposed to say?  At Ray & Bishop, PLC, we have counseled thousands of clients about their administrative hearings, and we appear at scores of hearings every year, so we have invaluable insight into the hearing process that only comes with experience.  The presence of witnesses at an administrative hearing can often make the difference between success and failure, but not always for the same reasons, and proper witness testimony and preparation is vitally important.

When the focus of a licensee’s disciplinary hearing is rehabilitation, witnesses are often indispensable.  In a case where the agency wants to discipline a licensed professional because of their past convictions, it is no good arguing that the convictions didn’t happen—the agency almost always has certified court records of the convictions and they usually indicate a plea of no contest or guilty.  Instead, the licensee has to show the court that he or she has rehabilitated, in other words, that they’re remorseful, insightful, and different now than they were at the time of the crime.  They do this primarily by testifying for the judge, under the direction of an experienced, articulate attorney who can frame their case in the most positive light possible.  However, even after the licensee says all the right things, a judge still has to decide “how do I know if this person is telling the truth?”

Witnesses can help a judge answer a critical question.  If a licensee says “I help out at my son’s school,” then a witness who knows about that volunteer work (another parent who sees it happen, or a teacher who the licensee assists) can testify about the licensee’s helpful character.  If the licensee says “I don’t drink anymore,” then a witness who knows about the licensee’s drinking habits can testify that the licensee is sober and turns down alcohol at social gatherings.  If the licensee says “I’m always the first one to work and the last one to leave,” then a coworker or supervisor can testify about the licensee’s good work habits.  These witnesses establish a licensee’s credibility.  They help the judge answer the question “is this person telling the truth?” with a resounding “yes.”

Lastly, a word of caution about potential witnesses.  We always counsel our clients that administrative hearings are a matter of public record.  That means that whatever the subject matter of the hearing, the witness who testifies is going to learn about it.  If the witness learns about the subject matter of the hearing for the first time on the day they testify, that could adversely affect their opinion and the opinion of the judge.  A licensee should make sure that his or her witnesses are familiar with their case before they testify.

If you need representation in a professional licensing matter, contact an experienced license defense attorney at Ray & Bishop, PLC immediately.

Nurses who work in late-stage care, either in palliative care or in hospice care, should be aware that all nurses, both registered and licensed vocational nurses, are considered mandatory reporters in California.  Under the Welfare and Institutions Code, anybody who has “full or intermittent” responsibility for patient care in a facility “shall report” anything that “reasonably appears to be abuse.”  The phrase “shall report” means that reporting is mandatory, and any nurses who fail to report what “reasonably appears to be abuse” could be accused of committing unprofessional conduct, especially if they are charged with a crime for failure to report.  The report must be made to either the county health department or to law enforcement.

These code sections apply to all nurses in every facility, but they are especially important for nurses who provide care to the severely or terminally ill, or for nurses who work at nursing homes where their population could suffer from delusions or dementia.  It also illustrates the important of proper and consistent charting when patients bruise easily or can develop skin abrasions or lesions as a result of a medical condition.  In addition, when there is an incident between patients that could “reasonably appear to be abuse,” it must be reported, even if the incident is successfully handled internally.

Licensed nurses should make sure that their facility has a clear policy on mandatory reporting of suspected abuse and that they receive training from their facility regarding where and when to report.  Because the law includes anybody who has “full or intermittent” responsibility, the individual nurses who are connected to the patient, including administrators and supervisors, are all considered reporters.  It would be unwise for a licensed nurse to expect that a mandatory report is being taken care of by someone else or by a supervisor.  An individual nurse can face license discipline for the failure of his or her facility to take proper action.  Be sure that your facility trains you on when and how to file a report, and make sure you carefully monitor your patients for abuse, especially in sensitive populations like those discussed here.

If you are a licensed nurse and you are concerned about your obligations under the law or an incident at your workplace, consider contacting an experienced licensing attorney for a consultation.

Tax preparers and accountants are subject to discipline at the federal level by IRS for misconduct.  When investigating tax practitioners, in conduct cases (possible misconduct other than tax non-compliance), the Internal Revenue Service Office of Professional Responsibility (“OPR”) will typically send a pre-allegation notice letter, which notifies the practitioner of the investigation and invites the practitioner to submit any relevant information.  If the practitioner’s information does not resolve the matter, OPR sends an allegation letter specifying suspected violations of Circular 230 (the rules governing the OPR and IRS representation). 

This allegation letter is not a formal complaint that initiates formal disciplinary proceedings.  Instead, it provides the practitioner with written notice of the facts and laws that will be in the complaint if not resolved at this stage.  The practitioner is then provided the opportunity to dispute the facts, provide additional facts or mitigating circumstances, and to make arguments against the legal points raised in the letter.  The practitioner has three options for presenting this information.  The practitioner can provide the information in writing, they can request a conference (typically via telephone) to present the information, or they can choose to do both- provide a written response and request a conference. When we represent clients before OPR, we recommend doing both, prepare a written response and participate in a conference.  The conferences tend to be more concerned with establishing accurate facts and rehabilitation.  In other words, the focus is often on whether the alleged incident(s) happened and if the issue has been resolved. For example, if the OPR is disciplining for a revoked state license of an accountant or tax preparer, OPR seems to be less interested in why the license was revoked and more interested in whether the license has been reinstated.  If the license has been reinstated or the problem has been otherwise remediated, OPR can be willing to overlook the underlying action in favor of the obvious rehabilitation.

The matter may be resolved at either of these stages (pre-allegation or allegation notice).  The OPR may offer a reprimand, a censure, suspension, or disbarment to resolve the matter.  If a matter is not resolved at these stages, OPR sends the matter to the Office of the Associate Chief Counsel for representation in a formal disciplinary proceeding. 

The Chief Counsel will typically offer the practitioner one more chance to accept discipline (sanction, disbarment, etc) prior to drafting the complaint.  If a resolution is not reached, the Chief Counsel will serve a complaint (it will contain the laws violated and the facts to support those violations).  If the practitioner files a timely answer, the matter will be set for hearing before an administrative law judge (ALJ).  Under federal administrative law, a prehearing conference is set with typically the filing of formal briefs, and then an administrative hearing is conducted before an ALJ.

Following hearing, the ALJ has 180 days to issue a decision.  Unless appealed to the Secretary of the Treasury, within 30 days, the ALJ’s decision becomes the final decision.

IRS OPR disciplinary matters involve complex federal administrative procedures, and careful preparation and presentation of factual and legal arguments.  Our firm is pleased to offer federal administrative hearing defense as part of our portfolio of licensing and administrative law services.

In 2016, our firm represented a DMV-licensed salesperson who had been convicted of a felony for making a false insurance claim.  With our help, he obtained a reduction of the felony and expugement of the resulting misdemeanor, but he had to defend his salesperson’s license from an Accusation by the DMV in administrative court.  We consulted with this client as well as his business associate, who also had a conviction for the same crime. 

After hiring our firm, we saved the client’s license and his sixteen-year career in the sales industry was saved.  The business associate, convicted of the same crime, represented himself and lost his license.  This case highlighted the importance of strong legal counsel and persuasive mitigation and rehabilitation evidence in licensing cases, and we are tremendously proud of our success in this matter.

This case does not represent a warranty, prediction, or guarantee about your individual matter.

The Controlled Substances Act of 1970 authorizes the Drug Enforcement Administration (DEA) to deny, suspend, or revoke a DEA registration.  However, the Attorney General may limit discipline to the controlled substance or chemical list that is the subject of the discipline.  A DEA registration is required for any health care professional who prescribes or dispenses controlled substances.

The DEA’s disciplinary process works as follows.  First, the DEA will serve an Order to Show Cause or an Immediate Suspension Order upon its registrant, such as a physician, nurse practitioner, dentist or pharmacist.   The order will contain a statement of facts, the legal reason for the discipline, and a time and place for a hearing on the matter.  Despite having a hearing date provided, the registrant still must file a formal request for a hearing within 30 days or they will have waived their right to present their evidence and their case is sent to the DEA Administrator for the final decision.  If the DEA does not receive a formal request for hearing, the outcome is usually revocation of the registration. 

If a hearing is requested, the case is assigned to a federal administrative law judge (ALJ).  The ALJ’s first step is typically to require both parties to file prehearing statements that address the issues that will be raised at hearing and the documents and witnesses that will be presented at hearing.  The prehearing statements are formal pleadings drafted in accordance with the federal Administrative Procedure Act.  These statements are then discussed at a prehearing conference with the ALJ, which can also serve as an opportunity for settlement.  The hearing date is confirmed at that time (typically the hearing date is extended out from the first date listed in the order).

The hearing is held either in person or through video teleconferencing, usually in a venue in a major city in the same area as the registrant.  Following the hearing, both parties are offered the opportunity to file post-hearing briefs, which should also list the proposed factual findings and legal conclusions.  After receiving those briefs, the ALJ will issue a recommended decision.  Both parties receive the decision and are offered the opportunity to file exceptions to the ALJ’s recommendation if they believe it contains errors.  After waiting at least 25 days from when the recommended decision is issued, the ALJ certifies the case record and sends it to the Office of the Administrative for final review.  That record, along with the recommended decision, are reviewed and either adopted or non-adopted by the Administrator.  

We represent healthcare professionals in proceedings before the Drug Enforcement Administration.  If you are facing discipline, we can help with experienced administrative law representation.

We represented an insurance agent in 2016 who was accused by a former partner of diverting premium payments from his clients.  Over a two-day hearing, the Department of Insurance aggressively brought evidence and witnesses against our client alleging that he was dishonest and lacked integrity.

We successfully proved that the client did not divert any funds and demonstrated that his business practices had been corrected.  Instead of revoking the license or even restricting our client’s license at all, the administrative law judge ordered only that he pay a small fine.  His license was otherwise unaffected and he was able to continue operating his successful agency.

This case does not represent a warranty, prediction, or guarantee about your individual matter.