When a Registered Nurse is accused of misconduct, either by law enforcement or through a hospital complaint, the common “first step” from the Board of Registered Nursing is to send the RN a letter offering the chance to participate in the Board’s Intervention Program.  Previously referred to as the “Diversion program,” the Board of Registered Nursing has a contract with a third-party company, Maximus, who runs the “Intervention Program”.

There are several considerations to be aware of if you receive a letter from the Board of Registered Nursing regarding the Intervention Program.  First of all, the letter stresses, in capital letters, that the program is VOLUNTARY and CONFIDENTIAL.  The voluntary part is true, but only the decision to enter the program is voluntary. Once you enter the Intervention Program, you are required to complete it.  Leaving the program is “voluntary,” but Maximus has the authority to declare a registered nurse to be a “public risk” if she fails to complete the program.  The program is also only “confidential” if you complete it.  Failure to complete diversion/intervention makes the entire process subject to public review if the Board of Registered Nursing files an Accusation.

Second of all, the letter stresses that an investigation “may be ongoing,” but points out that if the nurse completes diversion successfully, he or she won’t be disciplined by the Board of Registered Nursing.  However, completing intervention/diversion successfully requires signing a contract with the third-party provider, Maximus, which requires full compliance with every element of the program.  This can include agreeing to stop working immediately, entering inpatient rehab, mandatory drug and alcohol testing, mandatory group therapy, mandatory meetings, and a time commitment of up to five years in the program.  Obviously, these rehabilitative steps are important for any nurse who struggles with mental illness or addiction.  For a nurse who does not identify as a substance abuser, these steps can be arduous and without profit.  If the requirements of the program are not met, the nurse will be kicked out of the Intervention Program.

The consequences of being kicked out of the Intervention Program are severe.  The nurse can be labeled a public health risk, and that label will be attached to the nurse in any subsequent disciplinary proceeding initiated by the BRN.  In addition, if the nurse is terminated from the Intervention Program, she/he returns to the same position as before the Program was entered—meaning that any investigation that might have been contemplated before the Program will be resumed and completed.

When Intervention or Diversion is offered by the Board of Registered Nursing, is it critical that the nurse evaluate his or her options completely, including consulting with a California nursing license defense attorney to discover the reason the Board is concerned about the nurse, the nurse’s ability to comply with the Program, and the probable consequences to the nurse if an investigation is launched against the license.  Often, the best court of action for our clients is to vigorously defend themselves against an investigation, rather than try to avoid it through entry into an Intervention Program that they may not be suitable to complete.  Our lawyers consult with registered nurses regularly to consider the offer of the Intervention Program.  Contact our nurse license defense lawyers today for a legal consultation regarding a BRN nurse investigation.

In March of 2018, Ray & Bishop won a highly contested Department of Social Services case on behalf of a preschool teacher in Orange County who was accused of conduct inimical and of violating the personal rights of children in her care.  We’ve previously discussed the definitions of “conduct inimical” and “personal rights” on our blog, specifically how important it is to retain experienced counsel when the Department accuses a caregiver of these serious violations.

In this case, a caregiver was videotaped while directing a child to sit still and to pay attention.  The Department used the video as evidence against the teacher, alleging that the client violated the child’s rights by restraining the child and picking up the child and moving the child away from the other children.  This video was introduced at evidence at the caregiver’s administrative proceeding.

Thanks to strong character evidence from our caregiver, and a thorough, effective cross-examination of the Department’s Licensing Program Analyst (LPA), who testified against our client, the Administrative Law Judge found that our client had done nothing wrong, and the Accusation and Exclusion Action against our client were dismissed. This Proposed Decision was adopted by DSS, and our client was officially cleared.

Regular readers of our blog know that on several occasions, we have discussed the legal impact of a Proposed Decision, the agency’s rationale when they decide not to adopt the Proposed Decision, and our clients’ rights when a Proposed Decision is non-adopted.  In this case, our client achieved a far better result than the agency was willing to accept before hearing, but the agency adopted the ALJ’s decision in its entirety.  That’s why hearing experience is important in every administrative matter.

We have extensive experience defending caregivers, teachers, and child care providers before the Department of Social Services.  Contact our firm for a consultation if you face discipline from the DSS.

Our attorney Matt Truong was successful in achieving a restricted license for an insurance producer who had a number of prior convictions, including a felony burglary conviction.   After the client initially applied for his insurance license, his application was summarily denied due to his record.  The California Department of Insurance has the right to summarily deny (without a hearing) an application of a convicted felon.  On client’s behalf his law firm, Ray and Bishop, represented by attorney Matt Truong, petitioned for reconsideration of the summary denial.  Reconsideration was granted.  The Department of Insurance still refused to grant a license, but was willing to allow a hearing with a judge for us to plead the client’s case.

The Department of Insurance was unwilling to settle the case before hearing.  However, at the administrative hearing (trial) our associate attorney Matt Truong was able to persuade the administrative law judge that our client was rehabilitated and possessed the character to obtain an insurance license.  The administrative law judge agreed with Mr. Truong and ordered a restricted license.

This victory was the result of hard work by the client to rebuild his life, be productive, stay out of trouble, and clean up his criminal record through the courts.  The client then needed an advocate to argue his case to an administrative law judge so he could obtain a state license in the insurance industry.  To speak with an experienced insurance license defense lawyer about help with your difficult California Department of Insurance license application case, contact Ray and Bishop, PLC.

 

When an Accusation is filed against a Registered Nurse in California, usually the nurse’s first reaction is “how can I get this off my record?”  The presence of an Accusation on the Board’s website causes uncomfortable questions at work, it can make getting a new job far more difficult, and the Accusation itself often contains embarrassing, one-sided details that paint the nurse in an unflattering light.  The Board is almost never willing to dismiss an Accusation in settlement, but if the Registered Nurse thinks he or she is innocent of the Board’s charges, his/her remedy is to go to the administrative hearing and force the Board to prove its case.

In 2018, one of our clients was accused of mistreating a patient and using foul language in his presence.  We believed the Board did not have a case against our client, and that the complaining witness was lying about our nurse.  Despite multiple settlement offers, we rejected the Board’s attempts to resolve the case, because we believed that our nurse was innocent.  On the night before the hearing was scheduled, the Board’s attorney called us to dismiss the Accusation against our nurse!  It was a major victory, and our client was relieved and grateful.

How did we achieve such a great result for our client?  First of all, the facts in this particular case were that the client was innocent.  Not every client who comes to us is perfect, and sometimes our job is to deal with mistakes to reach the best possible outcome.  In this case, we were able to fight knowing that our client had done nothing wrong.  Second of all, we were willing to take the case to court.  If we had been afraid or unwilling to risk hearing, we would have settled the case prior to hearing and our client would have been disciplined.  Because our experienced nurse defense attorneys had the experience and the knowledge to proceed with confidence to hearing, the Board decided that the best course of action was to dismiss the case.  This case had been ongoing for six months, and the Board only decided on the very last day to dismiss the case.  Patience and experience are critical to achieving the best possible results.

If you receive an Accusation from the Board of Registered Nursing, seek legal guidance from a qualified California nursing license defense attorney immediately.

Disciplinary cases brought by the California Commission on Teacher Credentialing, or CTC, typically start with a letter inquiring about a criminal conviction or other adverse report.  A teacher will typically respond with a letter of explanation and supporting documents.  After reviewing the response from the teacher, the Committee of Credentials of the California Commission on Teacher Credentialing will issue a Notice of Committee Recommendation.   The Notice of Committee Recommendation will usually propose discipline against the teacher, usually a suspension of the teacher’s teaching credential.  After receiving the Notice of Committee Recommendation, a teacher has 30 calendar days to submit a written request for either reconsideration of the recommendation based upon new and relevant information for the Committee on Credentials, or to request an administrative hearing at the Office of Administrative Hearings before an administrative law judge to defend the teaching credential.

If the discipline proposed by the Notice of Committee Recommendation is not acceptable or unduly harsh, teachers will usually request an administrative hearing to defend their teaching credential.  An administrative hearing at the Office of Administrative Hearings is held before an impartial, neutral administrative law judge.  These hearings are just like a court trial.  A deputy attorney general from the California Department of Justice represents the Commission on Teacher Credentialing.   A court reporter makes a stenographic record of the event.  Exhibits are introduced, witnesses are questioned (including the teacher) and legal arguments are made.  After the hearing, the administrative law judge issues a proposed decision to the Commission on Teacher Credentialing.  In most cases, the proposed decision becomes the final decision.

Until relatively recently, cases brought against teachers by the Commission on Teacher Credentialing were prosecuted by staff attorneys from the CTC.  However, recently the California Department of Justice, Office of the Attorney General, took over these cases.  The Office of the Attorney General has offices across California and brings license discipline cases at the four locations of the Office of Administrative Hearings and at other venues where hearings are held.

At Ray & Bishop, PLC, we handle hundreds of license discipline cases each year, with almost all destined for the Office of Administrative Hearings with the Office of the Attorney General on the other side.  We welcome the opportunity to defend teachers and defend California teaching credentials in these disciplinary cases.

The California Department of Business Oversight (DBO) licenses and regulates California finance lender licenses, or CFLs.  A CFL licensee is subject to regulatory examination.  Under California Finance Code section 22701, the commissioner of DBO may “at any time” investigate the records of a CFL licensee to discover violations.   A licensee is required to give “free access” to the Department’s examiner for purposes of these regulatory examinations.

A California finance lender must comply with the records retention regulations for maintaining books and records for regulatory examination.  Under Title 10 California Code of Regulations section 1950.314.4, each licensee must maintain a loan log to cover every loan made within the prior 36 months.  The loan log must include the application date, borrower name, property address, the loan amount, the loan terms, the identity of the loan officer, and if closed the disposition of the loan.  In addition to the loan log, the CFL licensee must keep mortgage loan documents, books and records (particularly ledgers and financial reports), bank statements and secondary market information (from sold or transferred loans) also for a period of 36 months.  Records may be kept in electronic form.

In addition to the log and the requirement that particular records be maintained, there is a general requirement that a CFL licensee maintain a “record keeping system” to track fees charged by the lender, which include appraisal fees, credit report fees, application fees and other related fees.  The regulation therefore sets forth three forms of recordkeeping for any lender to be created by the lender as loans are made: the loan log, accounting ledgers and related financial records, and a record of charged fees.   The regulation provides some latitude in how the exact records are organized as long as the information required can be made available to the examiner.

The commissioner or his agents may direct a licensee to maintain certain records longer than 36 months.  This may arise, for example, in the case of an investigation into certain activity by a lender.  Examinations can also turn into investigations by Department of Business Oversight corporations counsel, who may use investigative subpoenas for further investigation.  In the event of legal action or legal staff investigation by the Department of Business Oversight, we strongly recommend hiring counsel to represent the CFL licensee.

In California professional license law, at a contested hearing deciding an accusation or a statement of issues an administrative law judge only has the power to make a proposed decision, not a final decision.  The administrative agency – for example, the Medical Board of California or the California Department of Insurance – has delegated the task of hearing the case to an administrative law judge, but retains the ultimate power to make a decision on the case.  After an administrative law judge issues a proposed decision, the proposed decision goes to the state agency for adoption.  If the state license agency doesn’t agree with the administrative law judge’s decision, there is a non-adoption.  Non-adoptions are addressed in the law in California Government Code section 11517(c)(2)(E).

The first question that often comes to mind when we receive an Order of Non-Adoption from a state agency is: Why did they non-adopt?  The Order of Non-Adoption often spells out the reason for non-adoption.  Usually, the reason for non-adoption is that the state licensing agency – the board, bureau, department or agency deciding the case – does not agree with the terms of discipline in the proposed decision.  This can mean the proposed penalty is too light, but it can also mean the penalty is unsuitable for the case in the view of the licensing agency.  The administrative law judge might have proposed a penalty that is different than the penalty typically resulting from like cases.

Non-adoption gives the state agency the opportunity to review the record of the administrative hearing to figure out why the judge reached the decision that was proposed.  The parties also are given the opportunity to present written arguments, and sometimes even oral arguments, to the decision makers.  In the non-adoption process, our experience as professional license defense attorneys is key.  At Ray & Bishop, our years of experience as a law firm exclusively devoted to representing professionals before state agencies enables us to intuit the concerns of the state agency and fashion effective arguments for the best possible outcome.  Without this important insight, a less experienced attorney may misstep and even anger or alienate the decision makers, aggravating the situation.

Non-adoption is also a critical stage between hearing and appeal.  If a licensing agency is likely to come down hard on our client, we can use this stage of the proceedings to raise and preserve crucial issues that might be important later on appeal.  Another opportunity in non-adoption can be the chance to negotiate or renegotiate a settlement with a licensing agency, if the agency is open to settlement.

Ray & Bishop, PLC, exclusively represents professionals and businesses before their licensing agencies and regulators.  Non-adoption is a complex and confusing process.  Let us put our experience and expertise to work to navigate the legal challenges and find the opportunities that may exist in the non-adoption process.

We have successfully represented clients before ethics committees of associations and private boards.  While associations and private boards lack the power to discipline professional and occupational licenses, adverse ethics findings can seriously damage a reputation and a career, and, in some cases, lead later to license discipline.  Private entities typically have by-laws and procedures to safeguard member rights, but may not follow their own rules unless demanded to do so by our experienced administrative attorneys.

In one case, a client was accused by an industry association of unethical behavior and was threatened with having that behavior reported to the client’s employer.  After our intervention and advocacy, the association board reconsidered its position and dropped its plan to contact the employer.  Also, many of the earlier findings of misconduct were either reversed or softened, significantly limiting the damage.

In another case, a national healthcare professional association brought a complaint against a practitioner based upon allegations from the mother of a patient.  Senior Associate Attorney Lindsay Johnson developed a robust defense and rebutted the allegations.  After reviewing our response, the association dismissed the ethics allegations and thanked our attorney for the professional response.

The Bureau of Real Estate Appraisers brought a petition to revoke probation against a Ray & Bishop client who was on probation.  Having given the real estate appraiser a chance already by placing him on probation, when BREA believed that the appraiser had made mistakes on three appraisals and had failed to disclose other license discipline they were in no mood to give another second chance.  The Bureau demanded license revocation.

After a two-day hearing, the administrative law judge agreed with Ray & Bishop Senior Associate Attorney Lindsay Johnson that 75% of the case was unproven and threw three quarters of the case out.  The judge also slashed the cost bill BREA asked be paid, trimming over $20,000 in costs down to a little over $5,000.  As a penalty for what BREA could prove, probation was extended, and the license was saved.

The Medical Board of California brought an accusation against our doctor client for a 0.11% blood alcohol level drunk driving conviction.  The Medical Board cited the fact that the physician admitted to the police officer that he was on call in demanding harsh punishment.  In settlement negotiations, the Board’s minimum offer was a five year probation that would have been devastating to the physician’s career.

At hearing the judge agreed with attorney Fred Ray that the facts did not warrant probation.  The physician was driving home after having wine at a family gathering on a Saturday night, other physicians were available to take the hospital calls, and alcoholism and alcohol abuse were ruled out by an expert brought in by the firm.  The judge agreed that probation was an unduly harsh and unnecessary punishment for the physician in light of all the evidence and argument at hearing.    A panel of the Medical Board heard arguments after non-adoption of the hearing decision and agreed with our position, giving the physician only a public reprimand with no further penalties.

For help with a California Medical Board  accusation or disciplinary action, contact our experienced physician license defense attorneys for a consultation today.