Professional License Law

Our licensing clients, most often traveling Registered Nurses or Department of Insurance agents who work for multistate companies, sometimes have licenses in more than one state.  They also could be on their way to California to continue their career in our great state.  Either way, licensees who hold licenses in different states have specific, unique problems that need to be addressed by a qualified Nurse Attorney or a Department of Insurance attorney.

When we ask clients about their licensing history, they’ll often tell us something like “Oh, I used to hold a license in Arizona, but I gave it up years ago,” or an advanced practitioner might say “I’m a nurse practitioner now, but I used to be a registered nurse and before that I was a licensed vocational nurse.”  What they don’t realize is that licenses, in most states, never go away.  When you are granted a license by a state agency, that agency has jurisdiction over you forever, regardless of when you got it or whether you renew it.  Keeping a license active allows you to keep using your license to practice, but an inactive or “lapsed” license doesn’t just disappear.  You can’t use it to practice, but the agency that issued it to you can discipline you anytime you violate its laws for the rest of your life—no matter where that violation occurs!

Why does this matter?  Because licensees in California who hold licenses in other states run the risk of “reciprocal discipline”.  Most licensing agencies have laws that define “unprofessional conduct” as “discipline by another licensing agency in any state or territory.”  So if California’s Department of Insurance disciplines a licensee, that licensee could be subject to discipline by California’s Board of Behavioral Sciences.  Or, if Arizona’s State Board of Nursing puts a nurse on probation, that nurse could be disciplined by the California Board of Registered Nursing.  Imagine a traveling nurse who holds licenses in Nevada, Washington, California, and Maine.  If that nurse is disciplined in Maine, Nevada, Washington, and California could all seek discipline, even if the licensee hasn’t practiced in California for 15, 20, or 30 years!  Additionally, most states consider it “unprofessional conduct” for a licensee to fail to report discipline from another agency, so the hypothetical nurse above would be responsible for informing four different state agencies in four different states about one disciplinary action.

The solution to the complex problem of reciprocal discipline is a qualified, experienced professional license defense attorney.  Make sure you have somebody who understands the way licensing agencies think in each state where you hold a license, including California.  Don’t let one potential issue turn into a major headache for your career.

As professional license defense attorneys, we try to negotiate a settlement offer for our clients in every case.  The more options we can provide to our clients, the better, and some clients want to avoid the cost and uncertainty of hearing no matter what.  Sometimes the agency digs in against the client and refuses to settle, but more often than not, we are able to convince the agency to offer settlement terms.  But what if the licensee doesn’t like the terms they’re being offered?  What if the terms involve a disciplinary record that will stick with the client for life?  What if the terms would preclude the client from working at their current job?

We often speak to licensed professionals who are on some form of board or agency probation, and they are unhappy with the terms and conditions.  Sometimes they were told that the settlement offer they received was “the best they could do,” and it would be a waste of time to go to hearing.  In fact, the government attorney will tell us that our clients should settle, and that we won’t do any better at an administrative proceeding.  Every case is different, but just because an agency attorney tells you that you won’t do better in court, it doesn’t mean they’re right.  The Board of Registered Nursing offered two of our clients probation just this year.  Neither client accepted, both went to hearing, and both had their Accusations dismissed by the ALJ and then those dismissals were accepted by the Board.  The Department of Social Services wanted to shut down two licensed day care facilities this year.  The Department refused to entertain settlement, instead demanding license revocation.  However, one, our client, was placed on probation after hearing, and the other client’s matter was dismissed entirely.  The Medical Board of California wanted to place our client’s license on probation, but after fighting for our client at hearing, our physician earned a public reproval instead, preserving the physician’s career as a well-earning, respected practitioner.

In all of these cases, a board or agency counsel insisted to the licensee that only one result was possible.  The truth is, with quality representation and a good case, we can achieve great results, sometimes even better than the best that the board is willing to offer.  In some of our cases, we recommend settlement, and it’s only through our intervention that the board is even willing to offer a settlement.  The only way to know for sure is to consult with an attorney who regularly appears at administrative hearings at the Office of Administrative Hearings.  Don’t be pressured into giving up a license or into taking a settlement offer without first talking to an experienced professional license defense attorney.

After a licensing board has issued an order revoking a license, the very next step to keep the license valid and the licensed practice or business running can be to seek a stay from the agency or from a Superior Court judge.  A “stay” is an order to stop the license revocation order from taking effect.  Stay orders can also be used to stop license probation from starting, or to delay a license suspension.

Seeking a stay is an essential part of asking a licensing agency to reconsider its decision, or asking a Superior Court judge to issue a writ of administrative mandamus setting aside the discipline.  A stay can be requested when a petition for reconsideration is filed with a licensing agency under Government Code section 11521.  A stay for reconsideration is usually short – only 10 days.  A stay for a court to consider a petition for writ of administrative mandamus is usually longer, perhaps several months or more.

The short stay of up to 10 days for a board or agency to reconsider its decision is sometimes easy to get, because it is so short.  The purpose is to give the board or agency head days to decide a petition for reconsideration.  A Superior Court stay can be more difficult to get, because the attorney seeking the stay must usually persuade the court that the licensee is likely to win on appeal and the public interest will not suffer due to the stay.  Although strictly speaking not a part of the law, a judge may also consider the hardship upon the licensee, the effect upon a business, how serious the disciplinary case was, and whether an order short of revocation can adequately protect the public.  This calculation can be complicated, and is best presented by an attorney experienced with writs of administrative mandamus.

A stay can provide a valuable lifeline to remain at a job or in business while a licensee fights harsh or unjust board or agency discipline.  Even if an appeal is ultimately unsuccessful, a stay can provide valuable time to prepare one’s finances or business for the fallout from a license revocation.  A business might be sold or passed to a partner or family member, a past career resuscitated, or a spouse might be given time to get back into the workforce to cushion the blow.  Ray & Bishop, PLC, has won many stays for clients in the very difficult aftermath of an order of license revocation.  Contact us to see if we can help you at www.calicenselaw.com.

The story is a familiar one in our office.  A health care professional comes into the office, furious at their former employer.  The employer called the professional into the hospital personnel office, confronted them with an allegation, and then asks for their resignation.  To give the professional – a registered nurse, physician, respiratory therapist, or other – an extra incentive, the assurance is made: “If you just resign, we won’t report you to the board.”

Months pass.  Perhaps a year or two passes.  Then a letter comes from the board.  Your employer has reported you after all, and an investigation is open.  That assurance amounted to nothing.  Those dirty, rotten …. they lied to me.  Surely the board doesn’t believe them.  They just wanted to get rid of me.

You Can’t Force Your Former Employer to be Silent

Your former employer has a right to report perceived misconduct to the licensing board.  California law provides immunity to persons and entities that make complaints to California licensing boards.  The Civil Code extends legal immunity, and anti-SLAPP provisions in the law may shut down a lawsuit intended to silence a business or individual filing a complaint.  Although the law does not provide unlimited protection, in most scenarios it is extremely unlikely a former employer can be held responsible for a complaint under the libel and slander laws.  Otherwise, no one would ever make a complaint to a licensing board.

The Boards and Even Courts Usually Don’t Care Why a Complaint Was Made

A complaint to a licensing board can be made by a jealous co-worker, a boss who wanted to get rid of you, or even an enemy with an ax to grind.  The board doesn’t care.  If the complaint checks out, it becomes the board’s case, and motivation for making the complaint can become irrelevant.  Dwelling on the bad intent that motivated the original complaint is not a winning defense strategy.

Move Past Bad Blood to be Smart about the Problem 

Anger over the original malicious intent behind a Board complaint makes for a bad case in court.  If behind the complaint there is a serious error, unprofessional conduct or some other actionable cause, the professional license defense attorney must focus on either disproving the allegations or addressing board concerns to avoid or reduce board sanctions.  The bottom line is that complaining about your deceitful employer won’t help in a board discipline hearing.

Ray & Bishop, PLC, can provide effective strategies for dealing with an investigation or disciplinary case by a California healthcare licensing board.  Call us for assistance with your legal problem.

Owning an operating a family child care home is one of the most selfless, difficult licensed professions in California.  Not only do child care providers assume the responsibility for children every day, but they do so under the supervision of a regulatory scheme that rivals the Department of Motor Vehicles in its complexity and bureaucracy.  The agency that regulates family child care homes in California is the Department of Social Services (DSS), and when they seek to discipline a child care home, they draw on an enormous body of codes, rules, and regulations that govern each person who works in a California-licensed day care.  Here are the four most common causes for discipline in our state—we often see all of these causes for discipline in the same accusation.

  1. Conduct Inimical

Conduct inimical is shorthand for “conduct that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility.”  This catch-all definition is not further defined in the law, nor do any cases define it more clearly, but the dictionary definition of “inimical” is “tending to obstruct or harm,” and the Department considers “conduct inimical” to be tantamount to child abuse.  If a licensee is accused of “conduct inimical,” it is practically impossible to save the license if the judge agrees with the Department, so it is vitally important to develop an effective defense to allegations like these.  A licensee is prohibited from striking a child for any reason, including corporal punishment (which is also, see below, a Personal Rights violation), and if the Department can prove abuse, the license is in jeopardy.

However, the Department will also allege that acts that do not constitute child abuse, such as temporary understaffing or overcapacity allegations, constitute “conduct inimical.”  It is important for a child care provider to have effective counsel that can explain and contrast abusive or harmful conduct—conduct that is truly “inimical”—with conduct that merely violates a different regulation.

  1. Personal Rights

Unlike “Conduct Inimical,” which has a short, specific definition and unavoidable consequences, “Personal Rights” violations refer to a long list of rights that each child in the care of a licensed provider has, at all times, in California.  Under the applicable Code of Regulations section, each child shall be:

  • Accorded dignity in his/her personal relationships with staff.
  • Accorded safe, healthful and comfortable accommodations to meet his/her needs.
  • Free from corporal or unusual punishment, infliction of pain, humiliation, ridicule, coercion, threat, or other actions of a punitive nature.
  • Informed of how to contact the Department.
  • Free to attend religious services of his/her choice.
  • Not locked in any room, building or premises.
  • Not placed in any restraining device except a supportive restraint.

These seven subsections cover a broad range of potential misconduct, and they allow Licensing Program Analysts (also called LPAs, the employees of the Department who conduct regulatory visits) to discipline for perceived shortcomings all over the facility.  The regulations obviously prohibit many potentially dangerous conditions within facilities, such as exposed wiring or dangerous chemicals in the presence of children.  They also regulate licensee behavior, making it a violation to treat a child with disrespect or to ridicule or harass children.  But, along with these understandably serious prohibitions, the regulations can also allow the Department to seek discipline for an ungated stairway, or an uncomfortable old chair, or keeping a child in a playpen even when he wants to leave.

Not every Personal Rights violation is equally serious in the judgment of an Administrative Law Judge, and not every Personal Rights violation warrants outright revocation of a license.  If a licensee is accused of a multitude of personal rights violations, knowing what to concede and what to challenge is how he/she can keep the license in the face of discipline by the agency.

  1. Staffing Ratio and Capacity

Staffing ratio (number of providers per child) and Capacity (total number of allowed children) problems can plague a licensee for years before they have any idea that the Department is upset.  In our experience, the most common staffing ratio problems occur when a parent or guardian is late to pick a child up, or when an assistant (perhaps an older school-age child or a part-time employee) has to leave before parents arrive.  For facilities who have regular afternoon clients, schedule overlap can sometimes involve three or four extra children in the facility for a few minutes.  If the LPA shows up that day and observes the overcapacity problem, it will be written up and it will become a part of the licensee’s disciplinary history.

Usually, a staffing problem or a capacity problem on its own will not trigger license discipline.  The Department may appear to “overlook” as many as two or three violations.  However, if a more serious violation is alleged and the Department moves ahead with an Accusation, suddenly every single over-capacity or understaffing allegation is resurrected and finds its way into a long disciplinary pleading, suddenly used as “evidence” that the licensee’s facility is dangerous or non-compliant.

  1. Criminal Convictions and Lack of a Clearance or Exemption

Aside from the conditions of the facility and the ratios discussed above, the Department also requires that every person who is present in the facility, at any time, be properly cleared by the Department.  That means that all relatives who live inside a child care home need to be disclosed to the Department, and it can mean immediate consequences for relatives who are convicted of a crime if they live in the home.  If a worker or relative has a criminal conviction, DSS must grant them a criminal record exemption.  The following situation is very common: a wife and mother of three runs a very successful day care facility inside of her home, where she lives with her husband and one 19-year-old child.  If either the husband or the adult son is convicted of a crime—drug possession, DUI, shoplifting, etc.—the Department of Social Services may insist that the offending person immediately move out of the residence.  Imagine the disruption to a long-term marriage if a husband either has to move out of the residence or the family business has to shut down!  Addressing any contact with the criminal justice system by a licensee or any family member in the home is critical to prevent this kind of disruption.

Ray & Bishop, PLC defends child care centers, centers that provide care for the elderly (RCFE), adult homes, and those who own, work in, and may live with the owners.  If you receive an accusation against your license, we can help.

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 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.

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.

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.