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.

As of January 1, 2022, an amendment to SB-806, Section 125.3, reimposes the Medical Board of California’s ability to recover costs when investigating and prosecuting licensed physicians facing discipline from the very physicians they are prosecuting.

What is cost recovery?

For the Medical Board of California, cost recovery for pursuing discipline against a physician accused of violating the Medical Practice Act would include all costs incurred from the services provided to the Medical Board through its enforcement team – investigators, experts, attorneys and administrative staff. All cases are sent to the Attorney General’s lawyers, while administrative and investigative teams gather evidence and prepare for administrative hearings.  The Medical Board is required to present evidence of these costs, and recovery only applies if physicians are successfully prosecuted, whether by hearing or by settlement.

The Horns of a Dilemma: Physicians Pushed to Settle with New Cost Recovery Provision Under SB-806

The Medical Board hopes this amendment will encourage physicians to settle cases faster to avoid the cost of administrative hearings.  The Board also intends this will speed up – and perhaps simplify – disciplinary processes.  But paying costs for both sides- the Medical Board’s investigation and disciplinary prosecution – and a physician’s defense – can make the cost of fighting the Board prohibitive.

This puts physicians in a tough spot – especially those who feel that they have been wrongly charged with a violation. If you are a licensed physician, the mounting costs from the Board’s recovery demands can undoubtedly be intimidating. Consult with an experienced attorney Ray and Bishop, PLC to understand your options and the best way to move forward in defending your Medical Board of California physician license discipline matter.

Learn more about Ray and Bishop’s expert strategies for medical license defense.

As we have discussed on our website, Registered Nurses during the pandemic have suffered unprecedented challenges. Even when emergency measures are eased and requirements are relaxed throughout California, hospitals remain ground zero for those suffering from COVID-19, including the highest acuity patients suffering from the most severe reactions to the disease. Nurses in hospitals on every floor, in clinics across the state, and in home health settings are the first line of defense against the terrible effects of the pandemic. RNs who have undertaken the duties of a charge nurse are particularly affected by these challenges, as they are often asked to manage their own patients as well as be responsible for emergent situations of every patient in their wing, floor, or patient care area.

We represented a charge nurse who worked in Labor & Delivery. Although our client was caring for her own  patient at the time, she evaluated an expectant mother after being asked by a bedside nurse, identified signs of possible distress, and so she took her own patient to a private room and called for a physician to help the expectant mother. Managing the needs of two patients at once, our charge nurse completed her required duties for both patients within 30 minutes. Unfortunately, further examination revealed that the situation confronted by the expectant mother was serious, and the pregnancy ended tragically.

The Board of Registered Nursing alleged that our client was grossly negligent and unprofessional for not acting differently during the care of this patient. Through the careful evaluation of the Board’s expert testimony and an expert who reviewed the testimony on our client’s behalf, an Administrative Law Judge concluded that our client’s decisions were appropriate and within the standard of care. The Administrative Law Judge carefully evaluated the duties that our charge nurse had to both patients, and specifically found that our client appropriately and carefully treated both patients. The Accusation was dismissed against our client and the request for thousands of dollars in costs was denied.

The Board of Registered Nursing often attempts to discipline any nurse who is involved in a tragic patient outcome. However, even when the Board makes serious accusations against a nurse, and even when those allegations are supported by “expert” testimony, the credibility of that expert is a matter for an Administrative Law Judge to decide. An experienced administrative health care attorney will evaluate in every case whether expert testimony will be beneficial, and whether the Board’s experts are both familiar with the current standard of practice and apply it fairly and accurately to the nurse’s actions. If you are faced with allegations of negligence, incompetence, or unprofessional conduct, you should seek the assistance of Ray & Bishop, PLC license defense attorneys to navigate the Accusation made against you by the state.

The Department of Real Estate takes criminal convictions that occur in connection with a real estate license very seriously. We represented a client in one such licensee, where a misunderstanding regarding the nature of a visit to a property resulted in the licensee pleading to a misdemeanor that occurred on the property. As a consequence, the license was revoked by the Department of Real Estate.

However, less than two years later, we assisted the client to prepare a petition for reinstatement to the Department. Through continuing education, strong letters of support, and a commitment to pursuing the rehabilitative steps outlined in the Regulations of the Real Estate Commissioner, we were able to prove to the Commissioner’s satisfaction that the client was ready and able to return to transacting real estate. Our showing was sufficient to allow this client to resume practice without restriction, so a full and clear license has been returned to the client.

The California Department of Insurance has the power to summarily revoke a licensee who is convicted of a felony. A “summary revocation” does not allow the client to present a defense—the revocation is done as a matter of law following a felony conviction. We were hired on behalf of a California licensee who suffered a previous conviction for manslaughter and driving under the influence, and whose license had been revoked by CDI.

About five years after the convictions, the client sought to be reinstated by the Department of Insurance, and filed a new license application, disclosing the previous convictions. Unfortunately, the Department retains the power indefinitely to refuse to issue a license if a client has been convicted of a felony, so the Department sent our client an Order of Summary Denial.

Because of our experience in assisting insurance producers and agents, we know that even a summarily denied application has an avenue for relief: the Petition for Reconsideration. We prepared and filed a lengthy Petition for Reconsideration to the Department, asking that the license denial be set aside. With extensive legal research supporting our legal arguments on behalf of the client, and because of the client’s genuine commitment to rehabilitation during the five years of non-licensure, the Department agreed with our Petition. The Department was willing to issue this client a restricted license and the client was able to immediately transact insurance.

If you face license discipline or license denial, consult an experienced attorney to evaluate your options. Not every remedy is available before every agency in every case, but there are times when strong legal arguments can persuade an agency like the California Department of Insurance, even when they have no legal obligation to provide a neutral hearing to consider those arguments.

As a massive public agency with 320,000 licensed agents in California, the Department of Insurance (DOI or CDI) has an extensive infrastructure for the investigation and discipline of insurance producers. As is often true of financial industry regulators, there are marked trends in investigations and discipline in certain areas of public concern.

“Affinity Group” Discount Cases

The Department of Insurance has seen numerous affinity group discount cases reported by insurance carriers against terminated insurance producers. An example of an affinity group discount would be, for example, a student discount, a veteran’s discount, or an educator discount. Agents may apply affinity group discounts without valid proof of eligibility. Some affinity group cases resulted in premium savings for consumers and losses for carriers. Other, more egregious cases, have involved the forgery of eligibility documents, which could open consumers to allegations of fraud and identity theft. Although affinity group discount cases often result in no alleged consumer harm, CDI may characterize these cases as a theft of premiums from the carrier.

Illegal Vehicle Extended Warranty and Home Protection Warranty Sales

The Department of Insurance has strict regulatory requirements for vehicle service contracts (VSCs) sold in California. As for home protection warranties, there are only 14 CDI-licensed home protection warranty companies doing business in California. In California, vehicle service contracts (VSCs) may only be sold by a DMV licensed car dealer. However, in the case of home protection warranties and vehicle service contracts, out-of-state companies sometimes unlawfully sell these products over the internet. Since these companies may operate lawfully in other states, a small number of sales to California consumers may be the result of an unintentional error by the warranty company. However, some entities intentionally target the California market due to its size, risking regulatory punishment. As to these companies, CDI will typically file a Cease and Desist Order to stop sales to consumers, seek fines of $5,000.00 per day of illegal sales in California, and ask for restitution to California consumers.

Annuity Sales to Senior Citizen Consumers

The sales of annuities to consumers 65 years of age or older is strictly regulated by the California Department of Insurance. Violations commonly occur when an agent recommends to a consumer aged 65 or older that they replace an annuity unnecessarily, thereby incurring a surrender charge to the consumer and generating commissions for the agent. Unnecessary replacement of annuities for senior consumers carries a penalty of $1,000.00 for each violation on the part of an agent ($10,000.00 if it is the carrier), and if there is a pattern of such conduct, the fine can rise to between $5,000.00 and $50,000.00 per instance for an agent, and between $30,000.00 and $300,000.00 per violation for a carrier. There are also specific regulations covering the solicitation of senior consumers for the purchase of annuities.

Ray & Bishop, PLC, represents insurance industry agents, brokerages and companies in matters both complex and routine. Our long and extensive experience in insurance regulatory matters shows in the results for our clients.

Physicians who have lost their Medical Board license or find themselves on probation are often legally entitled to petition for license reinstatement or relief from license probation, under Business and Professions Code section 2307. This process is accessible to unrepresented parties through a petition, with instructions, available online. It is preferable, however, to hire an experienced licensing and regulatory law firm such as Ray & Bishop, PLC, to handle such matters. Below are some important aspects of Medical Board petitions for penalty relief – early termination of probation, relief from conditions of probation, and reinstatement of a revoked license.

These Cases Are Usually Not Settled – They Go through Formal Hearing

While there is no prohibition against Board settlement of a petition for penalty relief, these cases are usually decided by an Administrative Law Judge at a formal hearing. In the case of many other licensing agencies, penalty relief petitions may be heard by a board itself at a board meeting (usually in a 20 or 30 minute time slot), but in the Medical Board’s case, these matters are fully litigated. The Administrative Law Judge issues a proposed decision after hearing, which must be adopted by the Medical Board. If the Board decides to non-adopt the proposed decision, the non-adoption proceeds to a panel of the Medical Board for consideration of written and oral arguments.

Each Petition for Penalty Relief is Investigated by a Board Investigator

All of the contents of the Petition for Penalty Relief, the attachments, and the background of the physician or former physician, are thoroughly investigated by a Medical Board of California investigator. The investigation typically involves an interview of the petitioner (the physician or former physician); interviews of individuals who write letters in support of the petition; investigation of the authenticity of all supporting documents; and a thorough background check of the physician or former physician. These investigations can be quite invasive. For example, the Board investigator may check the C.U.R.E.S. report of the petitioner to look for evidence of disability or mental illness.

Not Every Physician or Former Physician Is Eligible for Penalty Relief

Petitions for Penalty Relief can only be filed after certain waiting periods, and if certain conditions are met. For example, a physician whose license was revoked can only petition after three years have passed since the revocation or surrender of the license, however, in certain specific conditions a two year waiting period may apply. For early termination of probation or relief from conditions of probation, the waiting period depends upon the length of Board probation. And a physician or former physician who is on criminal probation, on criminal parole, or under investigation by the Board may be denied penalty relief without a hearing.

The Legislative, Political and Public Policy Landscape for Penalty Relief Petitions is Always Shifting

Pending in the California Legislature is Assembly Bill 1636, which would prohibit the reinstatement of licenses of physicians who have been disciplined for sexual misconduct or were required to register as a sex offender. This legislation comes on the heels of significant media criticism of the Medical Board for perceived leniency in the discipline of California physicians. Such crosscurrents can be difficult to navigate for individuals and less experienced attorneys who lack insight into the Board’s policy judgments based upon the current regulatory environment and public concerns.

Ray & Bishop, PLC, has a deep fund of knowledge Continue Reading Medical Board of California Petitions for Penalty Relief

Nurses from other states sometimes take travel assignments at facilities across California, especially since the demand for nurses has risen sharply due to the COVID-19 pandemic. However, the California Board of Registered Nursing retains the ability to discipline the California BRN license for nurses even when they are disciplined for conduct outside of California against the nursing license in their home state.

One such travel nurse came to us after another state issued a reprimand against this nurse’s license for issues related to documentation of work performance while this nurse was attempting to obtain a Nurse Practitioner certification outside California. The nurse successfully achieved licensure as an NP in the home state, but was subject to a reprimand for the errors. Even though the nurse was not an NP in California, the BRN reviewed these documentation mistakes, reviewed the out of state discipline, and filed an Accusation against the client’s California license. They claimed the nurse must, according to the Model Disciplinary Guidelines, face a minimum discipline of three years’ probation in California and pay costs of more than $4,000 for the costs of prosecuting the matter against the nurse’s license.

We found the Board’s position to be totally unreasonable, and took the case to an administrative hearing before the Office of Administrative Hearings in San Diego. At hearing, the administrative law judge ruled that the nurse deserved only the discipline commensurate to what was ordered in the client’s home state, and reprimanded the client in California. The costs of prosecution were reduced by 90% to only $500. Our representation not only saved this client from probation which would have required her to relocate to California to work full time, but also saved her almost $4,000 in costs that would have been due to the Board of Registered Nursing.

It is important to remember that the Board’s Disciplinary Guidelines description of the “minimum” and “maximum” discipline is advisory and does not carry the force of law. An experienced administrative health care attorney will know when a strong case can be made that the guidelines, as applied, would not serve the principles of public protection that the Board is required to follow.

Alcohol related convictions are among the most serious violations a medical professional can commit, because they call into question both the judgment of the licensee and the safety of patients, in the judgment of California state agencies such as the Medical Board of California, the Board of Registered Nursing, and the Board of Behavioral Sciences. Licensees who commit even one alcohol-related offense can expect a strong push from the agency for probation with terms designed to address substance abuse, such as mandatory testing, alcohol related education, and monitored therapy.

In certain cases, state agencies will try to revoke a license outright and be unwilling to settle, such as when they perceive a pattern of concerning behavior. Multiple DUI convictions will often lead to license revocation.

In 2021, we were privileged to represent an excellent AMFT licensee with the Board of Behavioral Sciences, who despite excellent work evaluations and a track record of candor and excellent performance at their workplace, had suffered two DUI convictions within the span of 18 months. The Board insisted on license revocation. Thanks to the client’s deep commitment to recovery, including AA meetings, voluntary workplace disclosure, and a willingness to accept probationary terms, we were able to convince an Administrative Law Judge to allow the client to continue practicing.

The Board fought this Proposed Decision and issued a non-adoption. However, we successfully reached an agreement with the Board even after the non-adoption to allow the client to practice. We later learned that the client had persevered and obtained a license as a full-fledged MFT.

We are honored to represent the hard-working medical professionals in California, including therapists and associates, even if they have made mistakes that raise concerns with a state agency. Working together to address those concerns, we were able to help this client achieve their professional goals, and we look forward to their continued success.

The Department of Real Estate accused a licensee of fraud, dishonest dealing, and dishonesty after the client failed to report a 2019 conviction for a misdemeanor violation of a Labor Code statute. The licensee had also been convicted of crimes twice before. Alleging a pattern of dishonest behavior, the DRE refused to offer the client a settlement and took the matter to hearing.

At hearing, the Administrative Law Judge rules that the client had not demonstrated dishonesty, and that his conviction stemmed from his failure to secure appropriate insurance for his business. The judge dismissed all allegations related to fraud, dishonesty, or a pattern of dishonest dealing. The judge also ruled that the client had satisfied many of the Department’s criteria for rehabilitation, despite the fact that the conviction was only two years old at the time of the hearing.

Despite the Department’s insistence that the licensee be prevented from practice, the license holder was placed on restriction but allowed to continue transacting real estate in California. This case illustrates the importance of fully evaluating the Department’s criteria for rehabilitation to establish the strongest possible defense, even when the Department’s charges are based on criminal convictions. A strong rehabilitation and mitigation defense can protect licensees even when they face multiple convictions against an inflexible agency.

Ray & Bishop defends real estate broker and real estate salesperson licenses against all allegations of misconduct.