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.

Be Careful 

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.

A physician client came to Ray & Bishop, PLC, after receiving a Statement of Issues from the California Medical Board alleging that the client had a history of substance abuse and mental health concerns.  The California Medical Board obtained the client’s medical history, and using the medical records from prior hospitals, alleged that the client demonstrated Unprofessional Conduct, Impairment, and Excessive Alcohol Use, under Business and Professions Code sections 2221 and 2234.  The Medical Board offered five years’ probation in settlement, but we took the matter before an Administrative Law Judge at the Office of Administrative Hearings in Oakland, California.  Following the hearing, the ALJ recommended that the client be granted a clear license.  The Medical Board adopted the ALJ’s recommendation and the client now has a clear license to practice in California.

This testimonial does not guarantee success in any other case, nor can it be used to predict the results of any other case.  If you have a licensing problem with the Medical Board of California, you should seek a consultation with a qualified attorney.  The result of your case depends entirely on the specific facts of your case.  However, the results of this case show that sometimes the Medical Board of California will accept the recommendation of an Administrative Law Judge even when it is contrary to their position prior to hearing.  It is important to completely understand your legal rights if you have been denied a license or if a licensing agency has filed an Accusation or a Statement of Issues against you.

Out-of-state discipline is a common basis for California license discipline, under the applicable statutes that allow the Board of Registered Nursing to seek collateral discipline against a licensee who is disciplined or censured by another state’s licensing entity (even when the licensing entity is not necessarily a nursing board). In this case, our client was disciplined four years prior by the New York board of nursing and required to complete probation in that state. Instead, she worked in two other states (including California) and did not return to New York.

The California BRN sought an even more stringent probation against our nurse than the New York board required, but we refused to accept a settlement and argued for no discipline at an administrative hearing. Ultimately, the Administrative Law Judge agreed with our arguments, and the Accusation against our nurse was dismissed.

In a recent contested case against the Physical Therapy Board applicant, the Board’s attorneys insisted that because a ten-year-old theft conviction was not properly disclosed on an application for licensure, our prospective Physical Therapy Aide client did not deserve a license at all. After an administrative hearing where the facts and circumstances of the conviction and the disclosure were discussed in detail, the Administrative Law Judge granted the client an unrestricted license and dismissed the Statement of Issues.

This case was particularly notable for the strength of our client’s witnesses, who attended the hearing and offered sincere, candid testimony about their role in seeing the growth and maturity in our client, particularly in the changes they observed as the client began to sincerely pursue his professional goals. Strong, well-prepared witnesses are critical to the success of an administrative case.

The Board of Registered Nursing sometimes pursues discipline against nurses whose incompetence gravely threatens the health and welfare of the California public. At other times, they pursue discipline against nurses like our client, who was placed on probation in 2016, but failed to realize she was on probation for the first two weeks. Instead of working out the problem and attempting to discern why the mistake took place, the Board elected to file a Petition to Revoke Probation against the licensee and attempt take her out of the workplace altogether. Despite several settlement offers, we persisted in our defense of the client, insisting that anything other than a two-week extension of probation (to account for the first two weeks that she acknowledged missing) would be unacceptable.

After an administrative hearing, the Petition was dismissed altogether, and our client remains on track to finish probation and resume advancing in her RN career. The value of experience coupled with a willingness to advocate on behalf or our clients led to this successful result.

Part of effective license advocacy is realizing that licensed professional work is often done, and done very well, by imperfect people who make mistakes. In this case, our client had been punished severely by the criminal justice system for two occasions where he resorted to corporal punishment with one of his children. However, as a licensed contractor, he used his experience and training as an industrial electrician to provide for his family and serve the public. By presenting a strong case of rehabilitation and honestly discussing the mistakes that led to the convictions, our client was able to save his electrician’s license and continue working.

This was only possible after an administrative hearing, which serves as another reminder that not all cases can be effectively resolved by settlement. In this case, the Contractors State License Board refused to deal with our client at all, but an Administrative Law Judge was convinced that he deserved an opportunity to continue his path of rehabilitation and remain employed.

One of our registered nursing clients suffered a panic attack during an episode of post-partum depression.  Her husband phoned the police to help deescalate the conflict, but it unfortunately led to her arrest on suspicion of domestic violence.  Although the charges were dropped, our client was questioned by the Board, given employment releases to sign, brought into an investigational interview, and even subjected to a mandatory mental health examination under Business and Professions Code section 820.  Although the time and effort spent investigating this matter were financially costly, the nurse was able, with our assistance, to avoid disciplinary charges entirely.  The Board of Registered Nursing closed the investigation.

Remember that as a Registered Nurse, the BRN views its professionalism standards (Business and Professions Code section 2761) as applicable all the time, on the clock and off the clock.  Whether through DUI, alcohol related offenses, suspected domestic violence, or crimes of dishonesty or fraud, the Board will evaluate the specific actions of the nurse regardless of whether the case ends in a conviction.  It’s important to contact an experienced attorney any time a licensed professional has an adverse encounter with law enforcement, so that appropriate steps can be taken at every stage to avoid or mitigate license disciplinary proceedings.

Our registered nurse client was accused of physically assaulting a patient and verbally abusing him while on duty at the client’s hospital.  The problem?  The only evidence of the so-called “assault” came from the patient, who had a history of psychosis and whose complaint was authored by another RN.  No other witnesses had anything negative to say about our client either on the date of the incident or anytime before.  The Board of Registered Nursing (BRN) aggressively pursued a settlement after filing an Accusation against our client.  We refused, even as the settlement offers slowly improved as the trial date approached.  On the eve of trial, the Board of Registered Nursing elected to withdraw the Accusation, and the client was not disciplined.

This case illustrates the importance of having qualified counsel review the facts of your disciplinary matter.  If your case is reviewed by a trustworthy, experienced attorney, he or she will be able to determine whether or not settlement, trial, or withdrawal is the best course of action, in spite of whatever pressure is being applied by the agency.  In this case, our client would have felt pressured to accept a disciplinary outcome without our help, reasoning that it would have been better than the ultimate penalty of revocation had the client gone to trial.  Instead, with our guidance, the Accusation was ultimately withdrawn.