Ray & Bishop, PLC, has over 20 years of experience (since 2003) in defending insurance agents, insurance agencies, and other insurance licensees before the Department of Insurance, among the longest history of any firm in California. Our deep fund of knowledge in Department of Insurance license defense is among the top firms in California. Besides our long history of effective representation of insurance licenses, why should you hire Ray & Bishop?

The Department of Insurance is Unique

The Department of Insurance is one of a small handful of agencies that handles cases – from complaint to investigation to administrative hearings – completely in house with their own analysts, investigators, and staff attorneys. Most license defense matters in California are investigated by the Department of Consumer Affairs and brought to administrative hearing by the Deputy Attorneys General of the Attorney General’s Office. The Department of Insurance does not have Deputy Attorneys General handle their administrative hearing accusation cases. Settlement authority and approvals are handled entirely with the Department.

The Department of Insurance is headed by an elected state official, the Insurance Commissioner, which means that he is politically accountable directly to the electorate for the outcome of license discipline decisions. This visibility can understandably impact decision making. Over the more than 20 years we have defended insurance licenses as professional license defense attorneys, we have seen the evolution of Department policy and disciplinary priorities.

The administrative structure of the Department of Insurance is dissimilar to all agencies that rely on the Attorney General’s Office for representation. In most other agencies, a Deputy Attorney General must get approvals from the licensing agency (for example, the Medical Board of California). We have worked with this structure at the Department of Insurance for decades.

The Department of Insurance has an extensive investigation apparatus, with over 350 investigators in two main divisions, a fraud division and an investigation division. Complementing the large investigations unit are consumer affairs analysts who handle requests for assistance from consumers. The process and strategy involved in defending insurance licenses can vary depending on the office within the Department of Insurance handling the investigation.

The Insurance Industry Has a Highly Developed Regulatory Structure

As a key financial industry regulator in California, the Department of Insurance has a complex portfolio of licenses. These include insurance brokers (sometimes called insurance producers), insurance agencies, insurance carriers, public adjusters, bail bondsmen, and others.

It is not unusual for a California resident insurance producer to hold multiple state licenses, which are co-managed through nationwide regulatory systems. Attorneys who rarely interact with the mechanisms for applying, renewing, reporting and sharing information through these systems will struggle to defend insurance licensees effectively. We understand how these systems can impact insurance license discipline. Intra-state reporting obligations can have significant impacts on a license holder in California who holds licenses in multiple states.

The Department of Insurance is charged with enforcement of the federal 1033 consent law in California. They also regulate certain insurance products used as investment vehicles. These investment products can overlap with FINRA (formerly NASD) regulatory oversight. Knowledge of these niche areas of the Department of Insurance license practice comes only with time and experience.

There are numerous areas of regulatory focus for the Department of Insurance. These include non-admitted carriers, surplus lines carriers, sellers of vehicle service contracts, and home warranty companies. The Department regulates viatical and life settlement companies. The Department of Insurance regulates health insurance, pet insurance, and bonding companies. An attorney who dabbles in license defense or rarely handles Department of Insurance cases may have no experience in these areas.

Ray & Bishop Knows the Department of Insurance

Due to our long history of defending licensees before the Department of Insurance, our firm has developed an institutional legacy that has earned the respect of state regulatory agencies, in particular the Department of Insurance. While we cannot know every one of the 1,400 or so employees of the California Department of Insurance, we have interacted with hundreds of them. This long history provides insights that lead to effective results.

If you have been contacted by a Department of Insurance investigator or analyst, or have received an Accusation or Statement of Issues, Order or Notice from the Department of Insurance, contact Ray & Bishop at 949-557-4888. See the difference that our knowledge and experience can bring to your Department of Insurance case.

The California Commission on Teacher Credentialing delegates the role of investigating California teacher misconduct and potentially resolving California teacher disciplinary actions to its Committee of Credentials. The Committee of Credentials, or COC, gives credentialed educators an early opportunity to respond to reports of misconduct by sending a Receipt of Information letter. If the information gathered in this initial step supports further investigation and possible discipline or the denial of an application, the Committee of Credentials schedules a Formal Review. The Formal Review is an opportunity for a credential applicant, teacher or other certificated individual, such as a school nurse, school counselor or principal, to appear via telephone or in person to answer questions from the Committee of Credentials. Additional supportive statements and documents can also be submitted to the Committee for its consideration prior to a submission deadline.

Formal Review is the process whereby the Committee of Credentials of the California Commission on Teacher Credentialing determines if the information gathered by the Committee constitutes probable cause for adverse action against a credential holder or credential applicant. More importantly, Formal Review results in a recommendation to the CTC to either close the matter with no action, or to discipline the credential holder or applicant by revocation, suspension, denial, public reproval or private admonishment.

Once a credential holder or applicant receives a letter from the Committee of Credentials with the result of the Formal Review, the credential holder or applicant has options. One option is to take no action, in which case any disciplinary action recommended by the Committee of Credentials advances to the California Commission on Teacher Credentialing for final adoption. If a teacher or applicant disagrees with the recommendation, the teacher or applicant can request an administrative hearing before an administrative law judge, and/or petition the Committee of Credentials to reconsider its recommendation.

In essence, accepting the recommendation of the Committee of Credentials settles the CTC disciplinary matter without proceeding to a formal hearing before an administrative law judge. There are advantages and disadvantages to accepting the COC’s recommendation. The main disadvantage is that the misconduct allegations have not received a full and fair hearing, subject to the review of an administrative law judge with testimony from witnesses and a review of all the evidence. However, an advantage in accepting the COC recommendation is that the matter can be expeditiously and economically resolved. At times, the discipline recommended by the COC may be more benign than the outcome after an administrative hearing.

At Ray & Bishop, PLC, we defend teachers and other credential holders before the Committee of Credentials. We understand that for CTC credential holders or applicants facing Formal Review, the Formal Review before the Committee of Credentials may be a critical opportunity to get the best possible outcome from their CTC disciplinary investigation. If you have received a letter from CTC investigating allegations, or have received a Notice of Formal Review, contact our experienced team at Ray & Bishop, PLC.

As part of its review of quality of care cases, the Medical Board of California sends, to the treating physician, a letter requesting a “statement or explanation of the care and treatment provided to the patient”. These response letters are commonly known as “summary of care” letters. Under Business and Professions Code section 2220.08, when a complaint regarding care is reviewed by the Medical Board of California, the review shall include relevant patient records, a “summary of care”, any additional expert testimony or literature provided by the treating physician, and additional facts or information requested by medical expert reviewers.

After the Board has received notification of a judgment in a malpractice action (801 report) or denial, loss or restriction of privileges (805 report), the Medical Board requests medical records. Along with requesting medical records from the care facility, the Medical Board specifically asks the treating physician for an explanation . The typical form letter asks for a written summary within three weeks of the physician’s receipt of the request letter.

Summary of care letters are a critical opportunity for a physician to explain the care provided and to elaborate on the medical judgments made by the physician. It can be very difficult for a medical expert reviewer, reviewing the medical records, to put themselves in the shoes of the treating physician. For example, it is possible that the treating physician’s care and decisions were informed by looking back at the patient’s treatment history, or that consideration was given to available care options at the facility at the time of treatment.

A well written summary of care letter can also make the case for why the physician’s care decisions were reasonable and prudent. Even with complete medical records, the physician may elaborate about the patient encounter to aid the medical expert reviewer in reaching an opinion. Further, not all medical expert reviewers have the same expertise as the treating physician. Therefore, the summary of care letter can provided needed explanation to prevent potential misunderstandings that can arise when the reviewing physician may need additional insights from the treating physician.

If you have received a summary of care request letter, contact Ray & Bishop, PLC for assistance. Our attorneys can be of great assistance in producing a clear, organized and effective summary of care letter. This single step can be crucial in aiding the Medical Board’s expert reviewer to understand why certain decisions were made and explain that those decisions met the standard of care.

The California Medical Board receives about 10,000 complaints per year, resulting in the opening of about 1,000 investigations. The Medical Board’s Central Complaint Unit, or CCU, receives, initially screens and routes all complaints. Complaints that may identify a violation of the California Medical Practice Act, which can include gross negligence, misconduct, criminal convictions, other license discipline, or competency issues, are referred onward to the DCA Division of Investigation Health Quality Investigation Unit (DCA HQIU) or to the Board’s Complaint Investigation Office, or CIO. DCA HQIU is comprised of sworn peace officers, who can carry a firearm, make arrests, and enforce laws. The Medical Board’s Complaint Investigation Office is staffed by analysts and non-sworn investigators.

Cases involving allegations of quality of care violations, such as gross negligence, multiple instances of negligence, or recordkeeping violations, may be reviewed by a medical consultant. The Medical Board of California has expert medical reviewers and District Medical Consultants. These physicians typical review medical records obtained from care providers to determine if the standard of care was not met, warranting further investigation by the Board. Further review can include a Board interview of the physician who is the subject of the investigation and additional review of the case by medical experts.

Medical Board of California investigations may be triggered by mandatory reporting. An “805 Report” is a report made to the Medical Board of California required by California Business and Professions Code section 805. 805 reports are made by peer review bodies, primarily medical or professional staff of health care facilities. An 805 reports is required if a physician’s staff privileges are denied, terminated or revoked, or restricted for a total of 30 days or more, for a disciplinary cause or reason. Since an 805 report identifies a medical disciplinary cause or reason, the Medical Board of California investigates such reports in order to possibly bring an accusation for quality of care violations, misconduct, impairment, or another cause.

Medical Board investigations of a physician’s quality of care may be first revealed by a Medical Board request for patient records to a provider, such as a hospital, clinic or individual physician. Under Business and Professions Code section 2225.5, a physician who does not turn over patient records to the California Medical Board within 15 days of receiving a request from the Board with a patient written authorization, shall be assessed a fine of $1,000.00 per day the production is late up to $10,000.00, unless the delay is excused for good cause. Unfortunately, if medical records are requested from a hospital or former employer, the physician may not receive notice that the Board has requested records and therefore is examining the patient records.

Another Medical Board mandated report is the Criminal Action Reporting Form, or the “802.1 Report“. Physicians are required to report the filing of an “information” (a criminal complaint document in court) or indictment charging a felony, or a conviction for a misdemeanor or a felony, within 30 days. These reporting requirements extend to allopathic physicians, osteopaths, podiatrists and physician assistants under Business and Professions Code section 802.1. Once an 802.1 report is sent to the Medical Board, the Board typically sends a confirming letter and refers the report of a criminal filing or conviction to investigations. After a Board investigator obtains court and police documents, the investigator will typically contact the physician in person, by phone or by mail, to set up an interview. In certain cases, such as suspected drug abuse or mental impairment, investigators may show up unannounced at a physician’s workplace or home to ask questions, request a drug and alcohol test, or to ask a physician to voluntarily submit to medical and/or psychiatric examinations.

If asked by the Medical Board, a physician has the obligation to sit for an investigation interview within 30 days of being notified of the request. This rule is found in Business and Professions Code section 2234(g), which gives the Board authority to punish as unprofessional conduct the failure to sit for an interview within 30 days of notification. The physician can and should bring an attorney to an investigator interview. Interviews are usually recorded. Relevant documents may be shown to the physician during the interview. Interviews may be held with one or more investigators, accompanied by a medical expert reviewer physician, and even attended by a Deputy Attorney General.

Once an investigation if is completed, which is often after an interview has concluded, the investigator may send a letter to the investigated physician either closing the investigation or indicating that the case has been referred to the Attorney General’s office for possibly disciplinary action. If the investigation has revealed cause for discipline, the Board may serve the physician with an accusation.

Our team of attorneys at Ray & Bishop, PLC, has a deep fund of knowledge and experience, and extensive experience, in defending physicians before the Medical Board of California. A Medical Board investigation is a critical stage which can determine whether a Medical Board case leads to discipline or is closed without action. Contact Ray & Bishop, PLC, to see how we can assist you with your Medical Board of California investigation.

The California Department of Real Estate (DRE) conducts investigations of real estate brokers and salespeople, typically in response to consumer complaints about real estate transactions. DRE analysts and investigators conduct investigations, while DRE auditors conduct audits of licensees’ bank accounts and financial records.

A real estate broker or salesperson will usually find out about a Department of Real Estate investigation by receiving a letter or email from a Department of Real Estate investigator asking for information about a specific transaction or transactions. Most often, the investigator will mail or email an investigation letter. Typically an investigation letter may include the following components:

  • a description of the real estate property involved,
  • if the investigator does not already have the transaction file, a request for the transaction file under Business and Professions Code section 10148,
  • specific questions about the transaction, and
  • a request for a written chronological narrative (also called a timeline) about the transaction.

A DRE audit, in contrast, usually begins with a phone call or an email from an auditor to schedule an entrance conference. Department of Real Estate audits are always conducted with Real Estate brokers (not salespersons). A DRE audit entrance conference is the initial meeting with the auditor. Once an audit entrance conference is scheduled, the auditor sends the real estate broker a form RE 4501 letter that outlines the parameters of the audit. Audits typically review trust accounts, such as property management accounts or broker escrow accounts.

Real estate brokers and salespersons who receive investigation letters would be wise to retain experienced legal counsel to respond to DRE. The information gathered in a DRE investigation can determine whether a disciplinary case, commonly known as an accusation, is brought. An experienced licensing attorney can identify the legal issues involved in the investigation to effectively respond to the investigator.

Real estate brokerage audits are complicated and intrusive experiences. DRE auditors follow a pre-defined process to examine the records of a real estate brokerage for compliance issues. An attorney experienced in audits can help the broker identify and correct compliance problems, protect the rights of the real estate broker, and can bring in needed forensic expertise to identify trust account problems.

Ray & Bishop, PLC, is experienced in defending real estate brokers in DRE audits and investigations, and represents real estate salespersons in DRE investigations. If you have received notice of a DRE investigation or audit, contact us to see if we can assist you with your legal issue.

Each year, about 150 California physicians lose their license to practice medicine due to surrender or revocation. However, only about 10 percent, 15 or so, attempt to reinstate their medical license through a petition for reinstatement. Reinstating a surrendered or revoked California medical license is not a lost cause. With proper preparation, organization, patience, persistence and the help of an experienced attorney, a California medical license can be reinstated.

California Law Enables Reinstatement of a Lost Medical License in Most Cases

A physician can petition for reinstatement once three years have passed from the effective date of a license surrender or revocation. If the reason for revocation was physical or mental illness, the waiting period is shorter, just one year. Also, if the order of surrender or revocation specifies a short period, that shorter period applies.

There are a few limitations: a physician asking for reinstatement cannot be under sentence for any criminal offense (including being on probation), no accusation or petition to revoke probation can be pending against the physician, and the physician cannot have lost their license due to certain sexual misconduct. Business and Professions Code section 2307 contains the details.

Preparation for a Petition for License Reinstatement Can Start at Any Time

Petitions for Reinstatement require that the physician petitioner must have two letters of recommendation from other physicians, show evidence or rehabilitation, and complete necessary paperwork. The key is rehabilitation. Regardless of when the window of eligibility opens to file the petition for reinstatement, taking appropriate steps to accomplish and document personal and positive growth, to rehabilitate, and to maintain and enhance medical knowledge and skill should start right away and be ongoing. Consulting with our experienced attorneys can show the way for laying the groundwork for a successful petition.

Petitioners Get a Hearing Before an Impartial Judge

Petitions for reinstatement of a California medical license are heard by administrative law judges at the California Office of Administrative Hearings (OAH). The assigned OAH judge makes a proposed decision which then must be adopted by the Medical Board of California. The administrative judge works for an independent California agency and must provide a fair hearing for the petitioner. While a fair hearing does not guarantee success, it means that despite the difficult history a physician may have with the Board, a physician has a fair chance to meet their burden of proof to regain their California medical license.

California Public Policy Encourages Second Chances

California licensing agencies may seem strict and harsh when it comes to regulating and disciplining licensees, including physicians. However, California law has a long established policy of giving second chances – from criminal diversion and expungements, and appeals of license denials, to the ability to reinstate a license lost for almost any reason. Through a bringing a petition for reinstatement or sometimes by simply allowing reapplication, every California licensing agency has a mechanism for regaining almost any lost license.

Opportunities to Reinstate are Few and Therefore Require Maximum Effort

Once the eligibility window opens to petition for medical license reinstatement, the process from filing the petition to final decision can take as long as two years. If the petition is unsuccessful, there is a two year waiting period before a new petition can be filed, which then could take another two years for adjudication. Due to these processing and waiting periods, steps must be carefully taken to increase the chances of success of any petition. A successful petition for medical license reinstatement stands out as a tremendous victory. Regaining a lost medical license is a proud accomplishment that can bring closure to a period of personal struggle and loss.

Ray & Bishop, PLC, advocates for physicians licensed by the California Medical Board. Our advocacy includes the effective and skillful representation of physicians seeking license reinstatement.

The California Commission on Teacher Credentialing (CTC) follows a multi-step process to investigate and discipline teachers. This process, while arduous, provides early opportunities for a teacher to possibly resolve CTC matters with no discipline or reduced discipline. A teacher who has received a notice of investigation from CTC should bring in legal counsel and make the utmost of these early opportunities. For serious cases that cannot be resolved early on, the teacher should understand and appreciate the full legal process provided by law that includes the opportunity for a fair hearing before an impartial judge.

CTC Learns of an Adverse Event

The first step in a CTC case is when the CTC receives a report of an adverse event. Adverse events most often are:

  • A report to CTC from a school or school district that a teacher has been disciplined or dismissed by the school; or
  • A report to CTC from the Department of Justice that the teacher has suffered a criminal arrest or a criminal conviction.

When CTC receives such reports, a file is opened and additional information may be gathered from the school, court or complaining witnesses. This internal investigation may take some time (months), as CTC, like many agencies, often gathers information at this stage by email and/or mail.

CTC Sends Teacher a “Receipt of Information Letter”

Typically the first notice a teacher receives that CTC is investigating them is a letter from CTC captioned “PERSONAL AND CONFIDENTIAL”. The first line of the letter opens by saying “[t]he California Commission on Teacher Credentialing (Commission) is in receipt of information requiring an investigation of your fitness to hold a credential.” The letter continues with a brief description of the information received by the Commission. The letter will ask for a response within 30 days of the letter, requests supporting documents, and includes a specified deadline date. The letter also offers the teacher the opportunity to request a copy of the information received by CTC.

This letter is also a cover letter for other documents. CTC may include a copy of a letter sent to the employer school, school district or other complaining party asking them for more information. CTC also includes in its letter a “RESPONSE FORM” with instructions for the teacher’s response and a list of other items that might be enclosed with the response, such as letters of recommendation. CTC asks that the response letter from the teacher be signed under penalty of perjury.

We tend to see three problems at this stage. The first problem is that the teacher has not kept their mailing address current with CTC, so this notice from CTC never reaches the teacher. CTC usually will not track down the teacher to deliver this letter, it will just move on in the process without getting crucial input from the teacher.

The second problem is that the teacher fails to hire legal counsel and therefore misses the opportunity to put their best foot forward with CTC. Statements and documents sent or not sent to CTC can complicate and aggravate the teacher’s disciplinary case at later stages.

The third problem is the teacher fails to request documents from CTC. An attorney can make this request and then review the information that CTC possesses. The attorney can determine CTC’s concerns and how to best address those concerns in responsive documents.

Teachers should note that at this early stage, the CTC Committee of Credentials reviews documents from any source but does not hold a public hearing or allow participation. A decision whether to proceed to formal review, the next step in the process, is made without a hearing. The teacher’s channel of communication with CTC is in writing and through other documentation, such as letters of recommendation or submitted supporting documents.

CTC Sends the Teacher a Notice of Formal Review

Most CTC teacher investigations proceed to formal review. After the Committee of Credentials conducts the informal review, the matter may be deemed so minor it will not result in any discipline and should be closed. However, as to most matters, a teacher will receive a second letter that on the to top right bears the words “RE: Notice of Formal Review”. The purpose of formal review is to determine if there is probable cause to recommend discipline of a teacher, and if probable cause is found, then to recommend what discipline (such as a suspension of a certain number of days). This letter says that the teacher’s matter will be considered by the CTC Committee of Credentials at one of its three-day meetings in Sacramento. The CTC Notice of Formal Review usually contains certain important opportunities for a teacher:

  • Another opportunity to request the CTC’s investigation documents, including those documents gathered during the informal review;
  • the option to appear before the CTC Committee of Credentials on the telephone or in person to answer their questions and make a statement;
  • the option to have an attorney also appear, in which case the attorney can also make a statement; and
  • the option to submit another or further written explanation and other supporting documentation showing mitigation or rehabilitation to the CTC Committee of Credentials.

Formal review is the teacher’s crucial opportunity to persuade the CTC to close the case or impose only a modest penalty. Some cases are too serious to be closed or resolved for a lesser penalty such as a short suspension. However, CTC has a strong incentive to clear its caseload of less serious cases before those cases enter administrative litigation. It is up to the teacher and the teacher’s attorney to provide CTC with key information to help CTC see the full picture and reach a fair conclusion.

Once a matter has moved to formal review, the stakes are higher. CTC no longer provides a separate form with instructions, and little information about how to participate and what to do is provided in the notice letter. If a teacher either failed to receive notice of the informal review, failed to respond to that letter, or responded ineffectively, formal review becomes a crucial opportunity to make their case for dismissal or a lower penalty. As is apparent in the Notice of Formal Review letter, CTC is starting to move more decisively and the process is more adversarial. At this point a teacher may start to understandably feel overwhelmed by the process.

The Formal Review Hearing

A teacher may appear at formal review in-person or over the telephone. Although we lack exact statistics, since formal review went 100% remote (telephonic) during the pandemic, appearing by telephone now seems to be the rule, and appearing in-person the exception. Committee members themselves may participate by phone, so an in-person appearance at the CTC office in Sacramento may actually result in limited or no face-to-face contact with Committee members. Since formal reviews tend to be brief and telephonic proceedings are well established, we usually recommend participation by telephone.

Committee members have an opportunity to directly ask questions of the teacher. Questioning can range from brief to extensive. Preparation with an attorney can help the teacher anticipate the CTC’s topics of concern. The CTC uses special legal factors to assess whether discipline is appropriate and to what degree. Preparation can help the teacher provide accurate information and clear explanations. A prepared teacher will be less likely to be nervous, get flustered, or make a bad impression. An attorney can also make a statement that sets forth key facts and considerations to strengthen the teacher’s case.

Formal Review Hearing Result – The Notice of Committee Recommendation

In the wake of the formal review, the Commission on Teacher Credentialing sends a letter with the subject line “RE: Notice of Committee Recommendation”. This letter marks the end of the Committee of Credentials review of the matter. The letter, in its first paragraph, informs the teacher of the Committee’s recommendation to the CTC – whether to close the matter or to impose discipline. If discipline is recommended, the exact discipline is spelled out. The Commission, the governing body of CTC itself, holds the power to make the final determination, subject to important rights the teacher has to seek reconsideration and court review.

This notice advises a teacher of two very important rights that are waived if not preserved by teacher action within 30 days:

  • The right to ask the CTC to reconsider adopting the recommended discipline of the teacher’s credential before the recommended discipline becomes final; and
  • the right to have an administrative hearing before an administrative law judge.

Reconsideration is, simply put, an opportunity to present CTC with information or arguments that might change its mind. Logically, reconsideration should involve new and different information or arguments, instead of rehashing information and arguments already considered by the Committee. Therefore, it may not be worth the time, effort and legal fees to seek reconsideration if there is no new or different information to present to the CTC to change its mind. An attorney should make this analysis and advise the teacher whether to seek reconsideration.

An administrative hearing, on the other hand, is an opportunity to have the case reviewed by an impartial administrative law judge. If an administrative hearing is sought, CTC is represented by an attorney from the Office of the Attorney General. There are two potential ways to resolve the case. The first is to negotiate a settlement with CTC’s attorney, the deputy attorney general. The second is to have the case heard in front of a new fact finder, an impartial judge, to seek a better outcome. In almost all cases, a teacher who requests an administrative hearing remains credentialed and free of discipline until the administrative hearing process concludes, which can easily take from eight months to over one year. An administrative hearing provides for live testimony from both the CTC side and the defense side, allowing for a far more detailed exploration of the facts of the case. Unlike the formal review which provides for a limited questions posed to the teacher and a short statement from the teacher and attorney, at administrative hearing the teacher gets to explain all of the circumstances of the event or events that triggered the disciplinary case.

Ray & Bishop, PLC, has a deep fund of knowledge in successfully defending teachers from CTC discipline at each stage of the investigation and credential discipline process. If you receive notice from the CTC that there is an investigation of your California teaching credential underway, contact us for legal assistance.

California State Assembly Bill 1954 (AB 1954) has added a new law, California Business and Professions Code section 2228.5, which shields California physicians from Medical Board punishment for providing medical treatment to patients who merely test positive for THC or report medical cannabis use. Prior to the enactment of this new law, some physicians treating pain have denied treatment to patients who report using marijuana or test positive for marijuana by regarding such patients as ones who use illicit drugs and therefore have a substance use disorder.

The Medical Board of California has seemingly contradictory published guidance cautioning physicians against rendering pain care to such patients. Physicians have understandably reacted to a trend of increasing Board punishment of physicians for claimed missteps in providing pain treatment by denying care to such patients. Experts retained by the Medical Board of California may opine that a patient who tests positive for marijuana metabolites should be denied pain treatment because such a patient is using an illicit drug, actively abusing drugs, or is drug seeking. As such, a physician’s license to practice medicine may be placed in jeopardy by treating the pain of a patient who uses marijuana.

The new law further provides that a physician shall not automatically deny treatment to a patient who uses marijuana, unless the use of marijuana is “medically significant”. “Medically significant” factors that permit a physician to deny treatment include situations where the physician’s treatment would harm the patient if used in conjunction with THC or medical cannabis, the treatment would be ineffective, or the treatment is not clinically inappropriate.

Ray & Bishop, PLC, defends physicians who are accused of misconduct due to patient pain management care. If you are the subject of an investigation or accusation from the Medical Board due to medical care, contact Ray & Bishop for assistance.

California physicians recently arrested for crimes receive a letter from the Medical Board of California that begins “[t]he Medical Board of California has received notification from the Department of Justice of your arrest on [date] by the [name] police department ….”. This letter, captioned “PERSONAL & CONFIDENTIAL”, sternly reminds physicians of their obligation under Business and Professions Code Section 802.1 to report misdemeanor and felony convictions, and the bringing of a felony indictment or information. In the final paragraph, in bold, the letter states “[t]he Board is requesting a written explanation of the events surrounding the incident” with a deadline provided.

A physician or surgeon receiving such a letter could easily be led to believe that the quoted law requires the physician to provide a written explanation of the events surrounding their arrest as a part of their reporting duty. However, there is no such requirement. Furthermore, a physician who provides a written explanation may give up important rights. Let me explain.

Under California law, as a general principle, a licensing agency may not discipline a valid, clear license for a mere arrest. Under Business and Professions Code sections 7.5 and 490, a licensing board can discipline for a criminal conviction only once there has been a plea or verdict of guilty or a conviction following a plea of nolo contendere, and only after the time for appeal has elapsed, the conviction has been affirmed on appeal, or an order granting probation has been made.

Further, once a licensee has been arrested and is subject to potential prosecution for a crime, a licensee has a Fifth Amendment right to not make incriminating statements, such as a written explanation to the Medical Board would include. Although most criminal matters end in a conviction based on a plea bargain, not all do. Statements made to the Medical Board could end up in a prosecutor’s hands as a confession to be used against the licensee.

Lastly, some arrests never result in criminal case filings. If a criminal case is never filed, a conviction will never result which could subsequently be the basis of license discipline. However, a written explanation of criminal conduct could impel the Medical Board to investigate a licensee to seek out other grounds for discipline.

In some rare cases, it could be advisable or even advantageous to provide a written response to the Medical Board. Any letter from the Medical Board should not be completely ignored. The best course of action is to consult with an attorney to determine what the law requires and what the best response would be, then either the attorney or licensee can respond accordingly. At Ray & Bishop, PLC, our team of license defense attorneys have a deep fund of experience in handling Medical Board of California investigations. Contact us for a consultation if you have receive an email or correspondence from the Medical Board of California.

Investigators, with More Resources, Dig for Evidence of Abuse, Impairment, Health Issues and Errors Beyond Received Complaints

According to the Medical Board of California’s 2022 Sunset Review, the Medical Board of California conducted nearly 10,000 investigations in its 2021-2022 fiscal year. According to the report, during the pandemic the Board struggled with investigations. The Board had previously relied on a paper-based system that could not accommodate remote work and staffing issues.

However, the Sunset Review report plus anecdotal evidence suggests that the Board has adapted to working remotely and handling digital documents, and it has filled in staffing gaps. As the Medical Board investigation units come out of the pandemic, there appears to be more bandwidth for the Board to thoroughly and aggressively investigate complaints. In the Sunset Review, the Board identified changes made and planned to increase investigation efficiency. These changes include eliminating restricting investigations from a particular geographic area to a particular office (allowing statewide sharing of resources), increasing early review of cases by in-house medical experts, sharing more documents via email and the cloud, and increasing staff.

The Medical Board in the Media’s Crosshairs

In 2021, the Medical Board of California was the subject of a series of unflattering articles about their oversight of physicians in the California media, such as a July 2021 Los Angeles Times’ article entitled “How California Medical Board Keeps Negligent Doctors in Business”. This media attention amplified the complaints of critics that the California Medical Board, in the critics’ view, had been too lenient on doctors. This attention, quickly triggered legislative action, including increased license fees, new licensing requirements, and reinstatement of Board cost recovery for investigation costs.

A History of Aggressive Investigative Practices

For some time, California Medical Board investigators have shown no reluctance to mine a physician’s personal HIPAA protected medical information for evidence of impairment or disability upon which to build a case. CURES prescribing information regarding the prescriptions prescribed to a physician can lead Medical Board investigators to seek a physician’s personal medical, psychiatric or psychological treatment records. Investigators may show up unannounced at a physician’s workplace or home hoping to extract information or make unflattering observations in an unguarded moment. In interviews, Medical Board investigators ask questions about a physician’s health, ailments, and alcohol and drug use.

Mandatory Psychiatric and Medical Examinations

Data points from these aggressive investigative techniques can lead Medical Board investigators to request that the Medical Board issue an order for a psychiatric or medical examination of a doctor under Business and Professions Code section 820. If a physician refuses to undergo this examination, to be conducted by a Board-selected physician, that refusal alone empowers the Medical Board to seek suspension or revocation of a physician’s license.

Looking for Physician Shortcomings Beyond the Initial Case

Even in cases where impairment or disability are not suspected, the Medical Board may search for grounds for discipline beyond the four corners of a complaint or report originally received. For example, the CURES report may reveal prescribing patterns that may give rise to suspicions of overprescribing or prescribing without a good faith examination. An unannounced visit to a medical practice may cause the Board to suspect that a physician is not properly supervising other staff such as registered nurses or is not keeping proper medical records. Further, visits by Medical Board of California investigators can cause great alarm among employers and facility administrators, resulting in turn in greater scrutiny of a physician.

If you are contacted by a Medical Board of California investigator, you can contact Ray & Bishop, PLC for assistance. Ray & Bishop’s attorneys have extensive experience in defending California physicians in investigations and against Board accusations and license denials.