A licensed vocational nurse functioning as a supervisor of other LVNs in a care facility was accused by the facility of failing to report an incident of a patient falling in the facility. With our guidance, the nurse admitted to the DCA investigator that the fall had occurred and it had not been properly reported. We assisted the nurse in presenting evidence of rehabilitation as well as the context for the incident, including the nurse’s working conditions and the impact of a personal trauma on the day of the alleged failure to report. The Department of Consumer Affairs concluded its investigation and sent it to the LVN Board for review. The Board of Vocational Nursing and Psychiatric Technicians elected not to file a disciplinary action, and closed the case with no adverse reporting, disciplinary action, or consequences for our nursing client. This case highlights the importance of having experienced counsel manage all disclosures and information between an accused nurse and the licensing board, since even cases where fault is admitted can end with a dismissal or a lack of discipline.
As part of the State of California’s ongoing battle against the spread of COVID-19, Governor Gavin Newsom announced the formation of the California Health Corps, a measure designed to dramatically expand the health care workforce and staff the additional hospital beds necessary to treat COVID-19 patients. The breadth of the health corps encompasses nearly all professional licensees, including:
– Physicians, including residents
– Nurse practitioners
– Physical assistants
– Nurses (RNs, LVNs, and CNAs), including nursing students
– All behavioral health professionals
– Respiratory therapists
– Paramedics, EMTS, medical assistants, and more
According to the information provided by the state, participants will be paid and given malpractice insurance. Details about deployment are still vague, but the state has indicated that it will try to match the geographic preferences of applicants.
However, the requirements for participation in the Health Corps may exclude professional licensees with any measure of discipline. The state’s guidance so far indicates only that those eligible must “have no negative licensure/certification actions”. It is unclear whether this means currently or historically—in other words, whether probation or a reproval/reprimand from ten years ago would preclude a licensee from joining the Health Corps today, or whether the disciplinary action must be ongoing. It is also unclear what the definition of “actions” is, at this stage. For example, licensees who have been cited previously by a state agency, but informed that the action was not disciplinary, could be eligible or ineligible depending on how this requirement is interpreted.
The final, most pressing question is how the state will interpret the presence of an ongoing disciplinary action, such as an Accusation, or investigation against a licensee. If the state will accept licensees with Accusations as part of the Health Corps, it would be prudent to explore this option immediately if possible.
Right now, California is calling for professionals to register through an online sign up. When licensees follow the online signup, questions are asked about the status of the responder’s license, such as whether or not it is good standing and “free of adverse actions and restrictions”. If you are eligible and interested in signing up for the California Health Corps, you should discuss your options with an experienced licensing attorney to determine how this question should be answered, depending on the facts of your licensing and/or disciplinary history.
This article was written March 31, 2020, and all information contained within may be rendered obsolete by the rapid pace of change in California due to COVID-19.
The worldwide spread of COVID-19 is placing unprecedented stress and demand on California physicians, registered nurses, nurse practitioners, physician assistants, and other medical professionals. However, despite these urgent demands, the administrative disciplinary system continues to investigate claims of unprofessional conduct, and hearings for nurses and doctors are still being scheduled, prepared, and settled, despite the temporary court closure (which we have written about in a separate article).
As doctors and nurses make sacrifices to protect the public interest, it is essential for those nurses and doctors who are under investigation or facing a disciplinary matter to carefully document their workload, conditions, and sacrifices during the pandemic. The burden of caring for an entire state during this crisis is thankless, and doctors and nurses often do so with humility and courage. However, medical professionals facing discipline should take care to do the following:
– Make a detailed log of shifts worked and working conditions
– Establish contact information for their supervisors and colleagues
– Document the presence of, or substitution for (if any), protective equipment
– Carefully monitor their own health during the crisis
All of this information will be relevant when the pandemic subsides, and could be used to positively reflect on the character of a doctor or nurse whose professional fitness is being questioned by a state agency. Additionally, this may be an ideal time to reach a stipulated settlement to allow professionals to continue working without the cloud of license discipline affecting their employment future.
We urge any medical professionals who face a threat to their license to contact experienced professional license defense counsel for assistance.
By order of the Director and Chief of the Office of Administrative Hearings, Zackery P. Morazzini, on March 19, 2020, all hearing rooms at the Office of Administrative Hearings (OAH) locations are closed for business, and no hearings at off-site locations will take place. The order lasts through April 16, 2020. Interim and Temporary Suspension Order hearings are still taking place via telephone, as well as other hearings not directly applicable to professional licensees in California. All other matters were continued by the OAH order.
This order has immediate ramifications for professional licensees and applicants. First, any hearing on or before April 16, 2020 is indefinitely continued. It is very unlikely that a new hearing date will be set without the input of both parties. Therefore, if you are unrepresented at this time, you should be prepared to communicate your availability to opposing counsel as soon as more direction is provided from OAH. You should also take advantage of this opportunity to seek a consultation with an experienced licensing attorney.
Second, for any licensee whose case requires a showing of rehabilitation, the extra time should be put to good use. We have written in a separate article about rehabilitation during the COVID-19 epidemic, but, for example, it would be smart for all licensees to reach out, electronically, to friends and colleagues who can speak to their positive character traits, and generate written letters of support for use in an administrative proceeding.
Third, this is bad news for license applicants who are awaiting a hearing to begin their professional career. However, many state attorneys are still working—the Office of the Attorney General and the Deputy Attorney Generals who pursue administrative denials on behalf of state agencies, as well as the agency staff counsel who represent individual Departments such as the Department of Insurance, Department of Real Estate, or Department of Social Services, are working remotely and still have the authority to reach settlements. This is an ideal time for you and your attorney to pursue an alternative to discipline to settle your matter.
If you face an administrative hearing before the Office of Administrative Hearings, contact an experienced licensing attorney for a consultation immediately.
Editor’s Note: this article was written and posted on March 24, 2020, during the COVID-19 global pandemic. It reflects a state of affairs in California that changes hourly. The information contained may be out of date.
California continues to experience extremely high demand for nurses in critical care settings to response to the COVID-19 outbreak. Nurses who are healthy and able to work are demonstrating courage and heroism daily. However, many nurses are laboring to comply with and complete Board of Registered Nursing (BRN) probation, due to license disciplinary issues from past mistakes. Particularly for nurses who have alcohol-related probation terms, there are serious obstacles to compliance that the BRN has not yet addressed. Specifically, nurses subject to Optional Term 15: Rehabilitation Program, Term 17: Submit to Tests and Samples, and Term 19: Therapy or Counseling Program, are required to complete tasks that the statewide shutdown may render impossible.
Term 15 is a broadly-written probationary requirement that mandates an alcohol program for all licensees who are subject to this term. The requirement of the program itself can be satisfied, typically, by proof of completion of a court-ordered program (such as an alcohol program assigned after a DUI conviction), but the term also mandates ongoing attendance at AA meetings and at a nurse support group. These public meetings are mandatory, but the Board has not published guidance on how these meetings can be conducted in light of the stay-at-home mandate ordered by Governor Gavin Newsom.
As of today’s date (March 24, 2020), the Board appears to be adopting an ad-hoc approach to individual probation cases, depending on the probation monitor. Some probationers are being told to attend meetings online, others have had the AA condition waived. The best practice at this time appears to be to immediately contact the probation monitor for clarification on how to fulfill this requirement.
Term 17: Submit to Tests and Samples, requires that the licensee travel to a collection site and provide an in-person drug screen upon request. It is unclear how these tests will be administered to symptomatic individuals who have been ordered to self-isolate while they recover or wait for COVID-19 test results.
This requirement continues to be enforced, but if a licensee cannot travel, it is recommended that they obtain a written directive from their physician’s office detailing the order to self-isolate.
Term 19: Therapy or Counseling Program, at least has several potential solutions. Many therapists are reaching patients using video-conferencing technology or simple smartphone apps. Proof of counseling must still be provided upon request to the BRN.
If you have been given specific information or directives from a BRN probation monitor that you cannot comply with, contact experienced legal counsel immediately to discuss your situation.
The California Department of Insurance (DOI or CDI) regulates California insurance brokers, insurance adjusters, bail bondsmen, annuity salespeople and others. The California Department of Insurance License Background Bureau processes applications for insurance brokers, agents, adjusters, and bondsmen. The Producer Background Licensing Section investigates and evaluates adverse actions, such as convictions, in applicant’s backgrounds. The Department of Insurance issues the following main types of licenses:
- accident and health agents
- independent adjusters
- public insurance adjusters
- bail agents
- life agents
- life settlement brokers
- personal lines broker-agents
- property and casualty broker-agents
- surplus lines brokers
The Department of Insurance investigates misconduct through three divisions of its Enforcement Branch: its Investigative Division, which has over 90 investigative staff assigned to seven regional offices; the Fraud Division, which has over 275 staff based in nine regional offices; and the Special Investigative Unit Compliance Program, or SIU, which works Special Investigative Units of insurance companies to address reported allegations of insurance fraud.
DOI investigative and fraud units work with the DOI Legal Department and district attorneys offices to pursue civil, administrative and criminal cases arising from investigations. Civil cases can involve injunctions to close businesses, and seeking restitution, fines and penalties. The Department of Insurance uses administrative cases to seek punishment against brokers, agents and others through license restriction, license suspension, license revocation, cease and desist orders and bar orders under Insurance Code section 1748.5. Criminal cases involve misdemeanor and felony prosecutions sought by each county’s district attorney.
At Ray & Bishop, PLC, we defend Department of Insurance brokers and agents, including any individual or business licensee, in administrative proceedings. Administrative actions include:
- summary order of revocation
- summary order of denial
- 1033 consent application appeals
- order of immediate suspension pursuant to section 1748.5
- order to cease and desist
- statement of issues
- special notice of defense
California Department of Insurance licensing is unique in a number of ways. First, the elected state official, the Insurance Commissioner, heads the Department of Insurance, unlike most state licensing boards, bureaus or agencies which have an appointed governing body. The accountability of the agency head to the voters makes DOI very responsive to consumer complaints and susceptible to political and public pressure. Second, the Department of Insurance has extremely broad discretion to discipline its licensees. Insurance Code section 1668 (which applies to license applications), which is also applied to existing licensees under Insurance Code section 1738, permits the Department to revoke, suspend, restrict or deny a license based upon vague grounds such as a license being “against the public interest” or if the applicant or licensee is “not of good business reputation” or “lacking in integrity”. Third, in certain cases, particularly involving felony convictions or a history of prior license revocation or denial, the Department can discipline or deny a license without a hearing (although there are other remedies for this situation). Fourth, DOI investigations may work extensively with industry (insurance companies) and the criminal justice system to enforce the insurance laws.
Ray & Bishop, PLC, offers defense unique solutions to insurance license applicants and license holders. Our extensive experience with very serious disciplinary matters, with an emphasis on solutions for DOI-specific administrative processes such as summary denials, summary license revocations, 1033 consent appeals and 1748.5 bar order appeals, makes us uniquely experienced and qualified for these very serious matters. We have extensive experience with insurance-carrier initiated broker complaints, insurance carrier internal broker appeals, and multi-agency broker investigations. Our portfolio of successful disciplinary outcomes include saving licenses or achieving licenses after felony convictions, successful appeals by writ of administrative mandamus, and resolution of seven-figure monetary fine and recovery actions for a fraction of the money sought by DOI.
We believe that Ray & Bishop, PLC, stands alone as the experienced and authoritative law firm defending brokers, brokerages, agents and entities in the commercial and retail insurance industry in California.
California’s Controlled Substance Utilization Review and Evaluation System, or C.U.R.E.S. (CURES) for short, is a prescription monitoring program aggregating DEA Schedule II, II and IV prescriptions. Maintained by the California Department of Justice and primarily used by physicians, podiatrists, dentists, physician assistants, optometrists, nurse practitioners, pharmacies and pharmacists, C.U.R.E.S. represents a massive, relatively unguarded and unprotected healthcare database.
The C.U.R.E.S. 2.0 medication database was certified as ready for statewide use on April 2, 2018. Six months later, starting October 2, 2018, all California physicians and other prescribing health care professionals were mandated by California Medical Board rules to consult C.U.R.E.S. C.U.R.E.S. must be consulted the first time a patient is prescribed a controlled substance and at least once every four months if a controlled substance prescription continues as part of a patient’s treatment plan. If a patient is admitted to certain healthcare facilities, or receiving a short course of medication for emergency or surgical care, a physician may not be required to consult C.U.R.E.S. The rules regarding the mandatory requirement to consult cures are found in California Health and Safety Code section 11165.4.
Any patient who wishes to access their C.U.R.E.S. report may do so by filing a C.U.R.E.S. Information Practices Act Request Form with the California Department of Justice. If a patient detects an error in the C.U.R.E.S. report, they must contact the reporting pharmacy. Only the reporting pharmacy for the original prescription may correct the prescription with the California Department of Justice.
C.U.R.E.S. as an Investigative Tool
California state health care licensing agencies, such as the Medical Board of California, are authorized to use C.U.R.E.S. as an investigation tool. In everyday practice, this means the Medical Board can access patient and provider records without getting a required signed release under H.I.P.A.A. The Medical Board has used this tool to get a foothold in suspected overprescribing cases – to identify patients who can then be the subject of disciplinary actions. Medical Board investigators can mine C.U.R.E.S. for evidence of physician mental health issues, drug abuse or alcohol abuse. For example, the presence in a prescription history of Antabuse (disulfiram) or Revia (naltrexone), which address cravings for alcohol or drugs, or antipsychotic drugs such as Abilify (aripiprazole) or Seroquel (quetiapine) would lead investigators to dig for evidence of physician mental illness.
Additionally, the Medical Board of California has launched its “Death Certificate Project” to investigate patient deaths to detect overprescribing of controlled substances. Public death records, combined with use of the C.U.R.E.S. reports, provide Division of Investigation investigators with powerful new tools to seek out physician and other prescribers as disciplinary targets.
Board investigations of health care licensees such as physicians and nurse practitioners are serious matters that can lead to license probation and license revocation. Hiring an attorney is an important step for a physician or other healthcare practitioner to defend their license and livelihood.
The Department of Consumer Affairs, or DCA, is a California state government department that is the umbrella organization over almost all California state licensing agencies, from the Medical Board of California to the California Board of Accountancy. If a California licensing agency receives a complaint or notice of alleged unprofessional conduct alleged to have been committed by a licensee, those investigations are often referred to the Department of Consumer Affairs Division of Investigation, also know as DOI. Investigation subjects can include medical malpractice, drug and alcohol abuse, mental health issues, employer or co-worker complaints, complaints from patients and clients, felony and misdemeanor convictions, and other misconduct issues.
Health Quality Investigation Unit
The Department of Consumer Affairs consists of four internal divisions, or units, two of which investigate California professional licensees and licensed businesses. The Health Quality Investigation Unit, or HQIU, carries out investigations for the Medical Board of California, the Physician Assistant Board and the Board of Podiatric Medicine. Until 2014, California Medical Board, Physician Assistant Board and Podiatric Medicine Board cases were carried out investigators directly hired by the Medical Board of California, however, they were reassigned under the DCA DOI.
HQIU has 13 field offices throughout California, including Division of Investigation offices in Cerritos, Fresno, Rancho Cucamonga, Sacramento, San Dimas, Tustin and Valencia. Medical doctors and physician assistants can sometimes be confused when an investigation letter, medical records request or phone call comes from the Department of Consumer Affairs Division of Investigation, Health Quality Investigation Unit, because the Medical Board is not the named agency. However, the Medical Board of California, Physicians Assistant Board and Board of Podiatric Medicine are all boards under the Department of Consumer Affairs. The Division of Investigation, therefore, is a component of the same agency.
Investigation and Enforcement Unit
Another important division of the Department of Consumer Affairs Division of Investigation is the Investigation and Enforcement Unit, or IEU. The IEU investigates cases for agencies such as the Board of Accountancy, the Osteopathic Medical Board, the Board of Pharmacy, the Physical Therapy Board, the Board of Psychology, the Board of Registered Nursing (BRN), the Board for Professional Engineers, Land Surveyors, and Geologists, the Respiratory Care Board, the Speech-Language Pathology Board and the Veterinary Medical Board, among others. IEU also carries out investigations for bureaus, committees, and commissions such as the Bureau for Private Postsecondary Education, the Bureau of Real Estate Appraisers and the Bureau of Security and Investigative Services.
The DCA Investigation and Enforcement Unit has eight offices, including Chatsworth, Hayward, Lakewood, Ontario and San Diego. DCA IEU also has a Cannabis Enforcement Unit based in Sacramento. Many of these agencies, such as BRN, have their own in-house investigators (who generally investigate less serious matters). In-house investigators may be based at the agency offices or in the field (in the case or the Board of Registered Nursing). DCA DOI investigators are typically sworn peace officers (the same as police) with the power to arrest, execute warrants and may be able to testify to hearsay in preliminary hearings. Other agency investigators and analysts are typically not sworn peace officers, and subsequently, they usually investigate less serious license discipline matters.
Holders of California professional and occupation licenses, and owners of California licensed businesses, should hire an attorney before responding to, speaking with, writing to, being interviewed by or signing a document for a Department of Consumer Affairs Division of Investigation investigator. An investigation by a DCA DOI investigator can lead to serious license discipline, license revocation, or even criminal prosecution. However, appropriately approached, an investigation can become an opportunity to clear up misunderstandings or present contrary evidence or a different perspective. Effective and skilled representation can lead to a closure of the investigation and an end to the matter without license discipline, such as an accusation, or other adverse outcome.
A state licensing agency has the power to appear in criminal court to ask the judge to suspend a defendant’s license while the criminal case is pending, as a condition of bail. This request is made under Penal Code section 23, usually at the first court appearance (the arraignment) or early in the criminal prosecution process. Typically it is a Deputy Attorney General from the California Department of Justice who appears for an agency, and that agency is often the Medical Board of California or another healthcare licensing agency. Also, under Penal Code section 23, the state agency can appear at sentencing to ask the Superior Court judge to suspend the defendant’s license as a condition of probation.
The main published court of appeal case in this area of law is Naidu v. Superior Court, which sets forth the procedure for bringing and opposing these positions. Ray & Bishop is the firm that argued the Naidu case before the Fourth District Court of Appeal to oppose the license suspension of the defendants in that case. Under the Naidu case, the state agency cannot merely ask for the license to be suspended without proof – as state agencies have done for years. The decision holds that the agency must produce evidence that the defendant is “dangerous if allowed to maintain their license.” This evidence should be presented in a hearing, and may include both testimony and documents. The Naidu decision affords critical due process to defendants who hold occupational licenses. Furthermore, at an early stage of proceedings when the Penal Code section 23 motion is brought, the criminal defense attorney may not have even had the opportunity to review discovery (the evidence that the prosecutor intends to use against the defendant).
Loss of a Penal Code section 23 hearing, resulting in a license suspension, can be a critical blow to a licensed professional. The indefinite suspension of an occupational license while criminal proceedings are pending can permanently damage a career, result in the loss of a job or closing of a business, and puts undue pressure on a defendant to quickly settle the criminal case, possibly for an inferior offer or when the matter should have gone to trial. The suspension of a license in criminal court can also make it much more difficult to successfully save the license later in an administrative hearing with the licensing agency.
Ray & Bishop, PLC, has unparalleled expertise regarding the Penal Code section 23 request for suspension issue. If you are facing a Penal Code section 23 petition and want to maximize the chances of saving your professional license, contact Ray & Bishop for a consultation. We can appear alongside your criminal defense attorney to provide an aggressive defense against the Deputy Attorney General’s request for license suspension in criminal court.
The Board of Registered Nursing in California pursues discipline in almost every case where a Registered Nurse suffers a conviction for Driving Under the Influence. The Board is authorized to place a nurse on a minimum of three years’ probation for a single DUI, as the Board’s Recommended Guidelines for Disciplinary Orders and Conditions of Probation call for the minimum discipline to be probation terms designed to ensure that the licensee does not consume alcohol. These probation terms are enforced by a Probation Monitor, who requires AA or 12-step meetings, nurse support groups, random drug and alcohol testing, as well as limitations on overtime and employment approval. These terms can be devastating to an RN’s career, but they are the common consequence of DUI convictions, no matter the BAC or the circumstances.
One of our clients came to us after the Board requested to interview him in connection with his DUI arrest and conviction. Following a lengthy interview conducted by the Board’s investigation unit, the client was served with an Accusation and the Board of Registered Nursing sought to discipline his license. The Board’s offer was three years of probation under the terms described above. Following an administrative hearing, where the client presented character witnesses, work evaluations, and substantial rehabilitation evidence, the Administrative Law Judge recommended that the client be publicly reproved under Business and Professions Code section 495. The Board accepted this recommendation, and the client avoided probation and any of the terms described above.
Although this case shows that it is possible, depending on the circumstances, to avoid costly, career-damaging probation, the results of this case do not constitute a prediction or warranty about what might happen to you. No lawyer can offer you a guarantee of success. If you are a registered nurse and you are facing an Accusation or any administrative investigation before the Department of Consumer Affairs, you should contact an attorney to discuss your case.