California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

California physicians must self-report criminal actions to the Medical Board of California.  This mandatory reporting occurs independent of license renewal, although similar disclosure is also required on the license renewal form.  Since license renewals ask for adverse information disclosure, basic compliance is relatively easy.  [However, written explanations that usually must accompany a renewal or an application are best submitted only after review by a license law attorney.]  Complying with mandatory reporting laws benefits the licensee by acting in a required but also responsible fashion, and also avoids a possible sanction, such as a citation and fine, for failure to report an adverse action.

All California physicians must disclose all criminal convictions and the bringing of felony charges against them, by criminal complaint or indictment, within 30 days of the occurrence.  The mechanism for reporting criminal actions is the 802 report, available online from the Medical Board of California’s website.  The form primarily asks for information that enables Board enforcement personnel to conduct an independent investigation of the criminal action.  Failure to report can be grounds for discipline against a physician, although, typically, formal discipline is only sought for failure to disclose in conjunction with other grounds for discipline.  Failure to report in and of itself will typically only be cited for a fine of $1,000.00 or less.  Although I have never seen it done, failure to submit a mandatory criminal action report can constitute a crime punishable by a fine up to $5,000.

I strongly urge my physician clients to submit their 802 report, accurately completed and in a timely manner.  If the form is late, I recommend sending it anyway.  There are several benefits to submitting the 802 report. First, under a related reporting law, the criminal court clerk must also report physician criminal actions to the Medical Board.  Therefore, it is better to be proactive and candid with the Medical Board if the Board will independently discover the criminal action anyway.  Second, the positive impression made by proactive disclosure can mitigate or even prevent discipline (in a close case) against the licensee.  Third, providing information to the Medical Board ensures that the information will be accurate.   

Physicians are typically fearful of making a report of a criminal action to the Board.  I completely understand and sympathize with this fear.  This fear, paired with the hope that the Board will never discover the criminal action, is the typical reason a physician would choose to not report a criminal action.  However, it is much more likely that the Board will eventually discover the criminal action.  The non-reporting may very well be viewed by Board enforcement as concealment or dishonesty.  This violates the trust between the licensee and agency.  If there is a close question as to whether the criminal action should trigger an accusation, Board enforcement staff, unhappy with the non-disclosure, may lean towards formal discipline. 

Finally, I would like to say a word about Board disclosure advice from criminal defense attorneys.  A licensee charged with or convicted of a crime may be advised by their criminal defense attorney to make no statements to anyone including their licensing agency.  However, a professional license is not a right, it is a privilege, and licensees do not enjoy the same rights vis-à-vis their licenses as citizens do concerning their liberty and property.  A felony charge, even if frivolous, must be disclosed.  Any misdemeanor conviction, even if it is to be expunged, must be disclosed.  If one deviates from compliance with these rules upon the advice of an attorney, I would get that advice in writing at a minimum, to cite it in the future as a defense, if necessary.    

An appropriate demeanor, including honesty and taking appropriate responsibility, can be crucial to achieving a favorable result with the Medical Board.  Prompt compliance with the Board’s disclosure rules is an important first step.

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Years of experience have taught me that there is a rule of diminishing returns in licensing law.  In general, the earlier in the development of a problem that I intervene, the more effective I can be in limiting damage to a license or license application.  Two examples of this principle transpired in the last 24 hours at the office, when two different criminal defense attorneys called me for advice on how to be resolve criminal cases for their professional clients to minimize license discipline.  A simple 15 minute conversation today can yield a greater benefit than 150 hours of work on an appeal years in the future.

This particular issue cuts to the heart of licensing law.  Clients contact our firm seeking solutions to their licensing problems.  Typically, the further along their case is, the more difficult the task of containing the damage to their license and reputation can be.  For this reason, a client who has been previously denied a license (after going through the entire process from application to decision after hearing) may hire us even before their very first communication with the licensing agency, to insure that every step is taken to maximize success.

The first critical point in a licensing matter is that first communication with the licensing agency - either a mandated disclosure or response to an agency inquiry.  If that opportunity to say and do the right things is missed, the next critical point is at receipt of an accusation or application denial.  At that point, there still is typically ample time to take rehabilitative actions and identify mitigating evidence that can change the result of an administrative hearing.  As the administrative hearing approaches, though, for many licensees or license applicants, opportunities begin to be lost, then this process accelerates.

Once the administrative hearing is concluded, the die begins to be cast.  Unfortunately, it is often only after the licensee or applicant walks out of their hearing, or worse yet receives an adverse result in the mail, that the hardest lessons of diminishing returns are revealed.

Licensing agencies and courts are generally quite deferential to the hearing decision of an administrative law judge.  Once an administrative law judge has decided the case, and the agency has adopted that decision,the remaining legal options generally are ask for reconsideration, petition the Superior Court for a writ, or wait reinstatement after rehabilitation.  However, in administrative law, as in all law and litigation, second chances can be hard to come by.  As a general principle, the integrity of our state license discipline apparatus depends upon agencies typically making decisions that conclude cases and withstand challenges.  This begs the question of what, if anything, can be done in the latter stages of administrative litigation.

As a general rule, post-decision case reversals depend upon either new, "game changing" evidence, or an identified legal mistake made by the agency or judge.  Most potential appeals that come into the office would be argued as "abuse of discretion," which can be described as patent unfairness in the imposition of and degree of discipline.  Unfortunately, true abuse of discretion occurs very rarely.  Courts are loathe to second-guess agencies and administrative judges. 

The lesson for licensees and license applicants is that pro-active, positive action at the earliest possible stage of the licensing matter can make a big difference in the outcome of an administrative hearing.  It is crucial that the licensee or license applicant communicates information and demonstrates a demeanor that is honest, remorseful for past mistakes, and humbly and energetically seeks to right the wrongs of the past.  To be certain, some serious license discipline or application denial cases must be litigated to conclusion or through appeal.   Negative assumptions can cause an attorney to miss issues for reversal, and thus should be avoided.  However, clients must recognize early on the depth of their dilemma, and after receiving an adverse decision, must then think carefully about the risk benefit analysis involved in pursuing a license appeal.

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