The Board of Registered Nursing accused our client of gross negligence and incompetence in the practice of nursing following alleged failure to obtain or document a specific reading with respect to a patient under her care. To resolve the case, our client was willing to enter into a public letter of reproval, but the Board refused and insisted upon a period of probation. We advised our client not to accept the Board’s offer and instead took the case to hearing. During a three-day proceeding before the Office of Administrative Hearings, the Board presented an expert witness, an investigator, and an eyewitness nurse and doctor from the date of the incident. We presented testimony from three current and former supervisors as to Respondent’s standard of care and level of practice.

Our client, an RN for 40 years, was cleared of all charges and the Accusation was dismissed. The Board’s request for almost $13,000 in costs was denied. Critical to the case was effective cross-examination of the Board’s witnesses, as the eyewitnesses testified largely in support of the nurse’s care on the day in question. The Proposed Decision from the Administrative Law Judge therefore found that the causes for discipline were not met, and recommended the Accusation be dismissed. The BRN upheld the Proposed Decision on review and issued a Final Order clearing the case against our client.  Even when the agency tries to compromise, a skilled, experienced attorney understands when a deal should be accepted or rejected. If your license is under threat of discipline by a state agency, contact an attorney for a case consultation.

Contact Ray & Bishop to defend your registered nurse license against BRN allegations of negligence.

Our firm represented an applicant to the California Department of Insurance who had applied for a Property and Casualty Broker-Agent License for the second time, after previously being denied in 2017.  The applicant had three convictions: two for receiving stolen property, and one for unauthorized use of identity, between 2010 and 2012.  The 2017 application contained a false statement regarding the convictions.  Because of the applicant’s history, CDI refused to offer a settlement, and took the position that the applicant needed to wait even longer before being allowed to produce insurance.

Due to the participation of character references from the applicant’s workplace and strong evidence of rehabilitation, the Proposed Decision from the Administrative Law Judge granted a license with a restriction to obey all laws, and the Department of Insurance adopted the Decision.

Even when the agency refuses to compromise, a skilled, experienced attorney can work with license applicants even with a history of dishonesty or false statements to achieve licensure.  This applicant now works in the insurance agency thanks to their strong case presentation and effective legal arguments.

Ray & Bishop helps Department of Insurance license applicant who have struggled with denials to overcome those hurdles to finally secure licenses.

Our office represented a licensee in 2020 who had earned a license only two years prior, in 2018.  Unfortunately, this client was arrested for DUI just a few months after earning the license, and ultimately pled guilty in 2019.  Having only been licensed for a year at the time of conviction, the client did not realize his reporting duty to the Department of Real Estate and failed to notify the agency of his conviction.  This was the client’s second DUI conviction, having previously been arrested and convicted in 2013.

The Department refused to negotiate with the client and demanded a surrender or a revocation.  Despite the presentation of rehabilitation evidence prior to hearing, no agreement could be reached, and the client’s matter proceeded to an administrative hearing.  The Proposed Decision from the Administrative Law Judge saved the client’s DRE license, granting a license with a restriction, and the Department of Real Estate adopted the Proposed Decision.

Many licensees believe that if the agency decides not to offer a settlement, their licensing case is hopeless, because they are afraid the agency will decide the outcome.  In fact, the Proposed Decision from the Administrative Law Judge is often treated with deference, and on this occasion we were able to save our client’s career.

Ray & Bishop defends licensees facing license revocation before the Department of Real Estate and other state agencies.  See how Ray & Bishop can help defend your California real estate license.

On September 30, 2018, the Governor signed Assembly Bill 2138, which primarily helps many license applicants with criminal records get professional licenses.  AB 2138 took effect on July 1, 2020.

After the change in the law, a plea of guilty or a verdict of guilty can only be used against a licensee or license applicant as a conviction once a judgment has been entered.  (Business and Professions Code section 7.5)   This is an important change for defendants who get deferred entry of judgment, for example.  In criminal courts, individuals granted deferred entry of judgment enter a plea of guilty, but, once they complete the program, the charges are dismissed.  Before-AB 2138, these guilty pleas could be used as “convictions” to deny license applications and punish licensees while these individuals were in deferred entry of judgment programs.  Further, Business and Professions Code section 480(d) explicitly forbids many licensing agencies from using any criminal dispositions other than misdemeanor or felony convictions to deny a license.  (This also can benefit individuals who enter pretrial diversion and never enter a guilty plea, but still have a pending criminal case.)

Under AB 2138, many convictions are no longer grounds for denial if those convictions have been either expunged, or, even if not expunged, are more than seven years old. (Business and Professions Code section 480)  Further, applicants for most licenses no longer need to answer criminal background questions on the initial license application; the agencies instead rely solely upon fingerprint (Livescan) background checks to determine criminal history.  Note: architects, cosmetology board license applicants, automotive repair dealers and some other applicants, however, still must answer criminal history background questions.  Some of the largest groups affected by these changes have been physicians, nurses, real estate salespersons and brokers, attorneys and CPAs.

There are important exceptions, however, to the purview of AB 2138.  New law changes to the Business and Professions Code only apply to agencies that operate under the Business and Professions Code.  So licenses covered by the Insurance Code (insurance producers, adjusters), the Education Code (teachers), the Financial Code (lenders, DFPI-licensed mortgage loan originators), the Health and Safety Code (child care centers, residential care homes for the elderly, foster care, nursing homes) and others are not affected.

Felony financial crimes of any age committed by fiduciaries, contractors, private investigators, funeral directors or real estate licensees can still be grounds for license denial; also, serious felonies (most violent offenses) and sex offenses of any age may result in license denial.  However, an expungement or certificate of rehabilitation can bar the agency from denying a license based upon those crimes.  Agencies are still free to deny a license due to discipline imposed by other agencies, either inside or outside of California.

There are four big takeaways from the implementation of AB 2138.  First, professionals and aspiring professionals who enter deferred entry of judgment, or DEJ, typically cannot have their guilty plea used against them to discipline or deny a license; a guilty plea alone, without a judgment later entered, is not considered a “conviction”.  Second, many convictions older than seven years can no longer be cause for denial of a license application.  Third, expungement, authorized under Penal Code section 1203.4 and 1203.4a, which once provided little relief for license applicants, is a powerful shield against denial of many licenses.  And fourth, most license applications no longer ask criminal conviction background questions, removing a tremendous source of anxiety and confusion for license applicants.

The provisions of AB 2138 and Business and Professions Code 480 are complicated; there are exceptions and special circumstances not covered in this article.  If your license has been denied due to a criminal conviction, contact Ray & Bishop for assistance.   

California Business and Professions Code section 2310 empowers the Medical Board of California to immediately and without prior notice suspend certain California physician licenses.  Business and Professions Code section 2310 provides that if a California physician’s license in another state is suspended or revoked outright and that action is reported to the National Practitioners Data Bank, and the physician’s primary place of practice is outside of California, the physician’s California license can be immediately suspended.  The suspension stays in place unless overturned by a hearing at the Office of Administrative Hearings, if the out-of-state order of suspension or revocation is overturned on appeal, or if the Medical Board fails to file an Accusation seeking permanent license discipline within 90 days of imposing the suspension.

While this is a powerful statutory tool for the Medical Board to suspend the California licenses of certain out-of-state physicians, the rules are complicated and give rise to a number of potential defenses.  For example, if the out-of-state suspension or outright revocation is imposed solely based upon the discipline of yet another state, or if the physician can show that their primary practice actually has been located in California for at least one year, the suspension can be defeated.  Also, the administrative law judge has the discretion to set aside the suspension.

One complicated aspect of the Section 2310 suspension order is that it requires that the Medical Board of California file an Accusation for permanent discipline within 90 days of issuing the suspension order.  In the case of an out-of-state license that has been revoked outright, the California disciplinary case is rather straightforward as all out-of-state discipline usually has concluded.  However, if the out-of-state action is a suspension order, the out-of-state action may be temporary in nature, and the ultimate fate of the affected out-of-state license may be uncertain.  In this situation, important defenses may arise, such as the denial of due process should the proceedings on the Accusation be unduly delayed.  Furthermore, an out-of-state suspension order does not necessarily lead to permanent out-of-state discipline.  In such a case, the Medical Board of California may find itself prosecuting an Accusation without a proper cause for discipline.

The rules surrounding Section 2310 suspension orders are complex and give rise to sometimes difficult strategic issues.  The attorneys at Ray & Bishop, PLC, are experienced in navigating these issues for California physicians who find themselves served with Section 2310 suspension orders.

Click here to learn more about how Ray & Bishop defends California doctors from disciplinary actions against their California physician licenses.

Mandated Reporting of Sexual Misconduct Allegations against California Licensed Physicians by Healthcare Facilities

The Medical Board of California and other healthcare licensing boards hold licensed physicians and other healthcare licensees to an extremely high standard regarding sexual misconduct allegations. Every day physicians, and other healthcare licensees, who communicate with hundreds of patients each week, face the possibility of patients reporting unprofessional conduct, which can trigger a license investigation and license discipline.

Existing laws require the Medical Board of California, and other licensing boards, to monitor, regulate, and discipline licensed health care practitioners. When licensed physicians face sexual or inappropriate misconduct allegations, the health care facility’s administrative staff or executive member may conduct a peer review. Upon review of the allegation, the facility can choose to take disciplinary action against the licensed practitioner, including denial or revocation of privileges, which must then be reported to the Medical Board of California. The licensing agency is authorized to conduct disciplinary action, including revoking a physician’s license or issuing probation.

However, Senate Bill 425 now requires health care facilities to report any allegation of sexual abuse or misconduct against a licensee by a patient, if the patient or patient’s representative makes the allegation in writing, to the Medical Board of California or relevant licensing agency within 15 days.  This new reporting requirement is found in Business and Professions Code section 805.8.  Failure to report these allegations is punishable by a civil fine of up to $100,000 per violation. This applies to all health care facilities, which now include post-secondary educational institutions and facilities that are contracting a licensed practitioner to care for patients.  Additionally, California licensing agencies are now also required to conduct an investigation of the licensed physician or practitioner. 

Sexual and unprofessional misconduct allegations pose a serious threat to a practitioner or physician’s license, regardless of a licensee’s innocence. Mere allegations – even threadbare complaints – from a discontent patient can pressure the Medical Board other licensing board to take firm measures against a licensed practitioner.  In these sensitive circumstances, healthcare licensees must act quickly and consult an attorney to avoid permanent consequences.

More information about Ray & Bishop’s services for California physicians is available here.

More Practice-Level Guidelines for Physician Assistants

The Physician Assistant Practice Act sets forth supervision requirements for licensed physician assistants (PAs) in California. These requirements set statewide standards for supervision, agreements, and protocols mostly under the delegation of physicians and surgeons.

Signed by Governor Newsom on October 9, 2019, and effective January 1, 2020, Senate Bill 697 relaxes chart review and physician signature requirements allowing decisions to be made at the practice level. All references to “delegation of services agreements” have been changed to “practice agreements”, the most notable change to recognize physician assistants as independent and capable health care workers.

Practice Agreements and Redefining Supervision

Under the new law, the practice agreement can be a collaboration among one or more physicians and one or more physician assistants, offering greater flexibility. This allows one or more physicians, instead of one under the previous law, to have an agreement supervising one or more physician assistants.

The act previously required medical records to identify the physician responsible for supervising the physician assistant, with written guidelines regarding adequate supervision. This established specific and constant supervision over physician assistants. 

SB 697 removed these requirements and instead authorized physicians and surgeons to create their own practice agreement to determine necessary levels of supervision over physician assistants. The practice agreement can establish policies, procedures, and meet any other requirements set forth between these practitioners. If these requirements are met, the physician assistant can perform any medical service authorized by the Physician Assistant Practice Act that they are competent to perform. 

The bill also redefines “supervision” to not require the supervising physician to be physically present. The bill only requires that the physician be available by an electronic communication method at the time the physician assistant examines the patient. “Adequate supervision” will be defined and agreed upon in the practice agreement as well.

Physician Assistant and Drug Administering

Physician assistants were previously required to be physically supervised by a physician and surgeon while administering medication to a patient or in a drug order.

Physician assistants may now administer medication to a patient or drug order in accordance with the practice agreement. The bill also authorizes a physician assistant to order or provide Schedule II or III controlled substances to the treated patient in accordance with the practice agreement or if approved by the treating supervising physician and surgeon. However, physician assistants must first complete a course that covers Schedule II controlled substances based on the standards developed by the licensing board.

While creating a practice agreement is more flexible for physicians and physician assistants within an organized health care system, this can also lead to complications and miscommunication. Organizations must ensure physicians and surgeons create precise practice agreements for physician assistants to have a smooth transition into greater independence. If you are a physician assistant or a supervising physician or surgeon  in need of assistance regarding practice agreements or legal issues within your practice,  contact Ray & Bishop, PLC to consult with one of our experienced medical license defense attorneys.

To see how we can help physician assistants, click here.

The Department of Business Oversight (DBO) changed its name to the Department of Financial Protection and Innovation (DFPI) effective September 29, 2020.  Along with this name change, effective January 1, 2021, the new California Consumer Financial Protection Law (CCFPL) grants the Department of Financial Protection and Innovation new powers to investigate previously unregulated businesses, such as debt collectors, rent to own contracts and other point of sale financing, consumer credit reporting agencies and credit repair agencies.

The Department of Financial Protection and Innovation’s primary role will continue to be the licensing and license regulation of California finance lender licensees (CFLs), California Deferred Deposit lender licenses under the CDTTL (also known as payday lenders), mortgage loan originator licenses (MLOs), state securities law regulations, and the regulation of certain state-chartered financial institutions such as credit unions.

This is the second major name change for this agency.  Until 2013, it was called the California Department of Corporations.  In 2013, the State of California combined the California Department of Corporations and the California Department of Financial Institutions into the Department of Business Oversight.  With the addition of new powers including expanded reach of regulation into fintech areas, this year DBO has been renamed DFPI.

Cases that the Department of Business Oversight has brought as DBO against a licensee before the name change will not be affected by the name change of this license regulator from DBO to DFPI.  However, moving forward, license discipline actions against California finance lenders, California payday lenders, mortgage loan originators and others will be brought by the DFPI.  Common DFPI actions will include cease and desist orders, or C&D orders, notices of intention to revoke a license, accusations and license denials.  DFPI will also carry out regulatory examinations of regulated businesses such as California finance lender licenses.

If you have a legal issue with the DFPI, Ray & Bishop, PLC can help.  For more information, please see the DBO – DFPI page on our website.

Tweaks to C.U.R.E.S. Database Reporting and Access

The Controlled Substance Utilization Review and Evaluation System (C.U.R.E.S.) is a prescription monitoring program maintained by California’s licensed physicians, licensed physician assistants, licensed pharmacies, licensed pharmacists, and any other prescribing California health care professionals. On October 2, 2018, the California Department of Justice (DOJ) certified the mandatory statewide use of the C.U.R.E.S. database, consisting of all DEA Schedule II, III, and IV controlled substance prescriptions dispensed in California. 

California lawmakers amended Assembly Bill 528 to expand on California pharmacy prescription reporting requirements and to increase access to the C.U.R.E.S. database for licensed physicians, pharmacists, and other practitioners who are not even authorized to prescribe or dispense controlled substances.

Tighter C.U.R.E.S. Reporting Requirements

Beginning January 1, 2021, any California licensed dispenser of prescription drugs must report the required information to the C.U.R.E.S. database within one working day after the controlled substance is released to the prescribed patient or the prescribed patient’s representative. The Department of Justice previously allowed California’s pharmacists and other dispensers to report this required information within seven working days. The bill also now requires dispensed Schedule V controlled substances to be reported to C.U.R.E.S. as well.

Consulting with the C.U.R.E.S. Database

Authorized health care licensees will only be required to review a California patient’s controlled substance history through the CURES database at least once every six months. Previously, the law required licensed practitioners and licensed pharmacists to consult with the C.U.R.E.S. database once every four months. Additional review and documentation are now required for a health care practitioner who receives the C.U.R.E.S. database information from another authorized user.

Increased Access to C.U.R.E.S. Information

Initially, only health care practitioners with a DEA registration, such as physicians and pharmacists authorized to prescribe and dispense controlled substances, could request and obtain approval to access information in the C.U.R.E.S. database. This bill will now permit licensed physicians, surgeons, and other practitioners without a DEA registration to request and obtain approval to access information in the C.U.R.E.S. database.

While patients and licensed health care practitioners must await approval to access the C.U.R.E.S. database, the Medical Board of California has unlimited and immediate access to these database records. Under these new measures and stricter reporting requirements, the C.U.R.E.S. database will be an even more powerful tool to monitor licensed physicians, nurse practitioners, pharmacists, and other authorized prescribing practitioners.  If you are a medical professional under investigation or concerned about your license, contact Ray & Bishop, PLC for assistance.

 

Senate Bill (SB) 798 has made changes to postgraduate training and licensing requirements for all residents applying for a Physician’s and Surgeon’s Certificate with the Medical Board of California, effective January 1, 2020.  Previously, the Medical Board of California (MBC) only required international medical graduates (IMGs) to obtain a Postgraduate Training Authorization Letter (PTAL) to apply for residency and to train in California. SB 798 revisions no longer require international applicants to obtain a PTAL. Effective 2020, all domestic and international medical graduates must acquire a Postgraduate Training License (PTL) to train in California.

New California Physician Training Requirements

For a license applicant to qualify for a full physician’s license in California, the Medical Board of California previously required US medical graduates to complete 12 months of postgraduate training and for international medical graduates to complete 24 months of postgraduate training. All California physician license applicants must now complete 36 months of accredited postgraduate training at a residency program accredited by the Accreditation Council for Graduate Medical Education (AGME), Royal College of Physicians and Surgeons of Canada (RCPSC), or College of Family Physicians of Canada (CFPC).  Trainees must complete at least 24 consecutive months of physician training within the same program – within the first 36 months – to be eligible for a California Medical Board Physician’s and Surgeon’s license.

Critical Requirements and Timeline for Obtaining the Postgraduate Training License

  • PTL license applicants must obtain the Postgraduate Training License within 180 days of enrollment in the accredited program in California. License applicants are encouraged to submit the Postgraduate Training License application immediately upon acceptance into the program.
  • The Postgraduate Training License remains valid for 90 days after completing a 36-month training program. Within the 90 days, trainees must apply for a full and unrestricted California physician’s license to continue practicing medicine in California. Physician trainees must cease all clinical activities upon completing training until they obtain the unrestricted license.
  • To be eligible for a Postgraduate Training License, applicants must have graduated from a Medical Board of California approved medical school and have successfully completed at least Steps 1 and 2CK of the USMLE Exams.
  • For current residents in training, the deadline to obtain a Postgraduate Training License in 2020 has been extended to August 31, 2020 from the previous June 30, 2020 deadline.

To be eligible for a Postgraduate Training License in California, a license applicant’s medical school education must meet specific requirements set forth by the Medical Board of California. License applicants need to provide transcripts and certifications, and complete various application forms to provide extensive personal and educational information. The Postgraduate Training License Application and the Physician’s License Application forms request detailed explanations for an applicant’s personal and professional activities following medical school graduation, any leaves of absence during training, disciplinary history, practice impairments, and other “unusual circumstances.”

If you are a current or potential resident facing a possible denial of the Postgraduate Training License application or the full Physician’s License application, or you are concerned about a license denial due to an adverse event disclosure, contact Ray & Bishop for a consultation with one of our experienced physician license defense attorneys.

Related Post: Understanding the “Unusual Circumstances” Background Questions on the Medical Board of California License Application

Click here for more information about how the license defense lawyers at Ray & Bishop defend medical doctors and physician license applicants.