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.

Our client, the owner and operator of a family day care, was threatened with license revocation because of a criminal conviction suffered by her husband that occurred at the family home.  The husband plead guilty to domestic violence against our client.  The Department of Social Services, Community Care Licensing, refused to grant the husband a criminal record exemption so that he could be inside the home where the family day care operated, and elected to pursue disciplinary action against the licensee’s day care, even though the husband had already moved out of the home!

To fight this injustice, we had to take the client’s matter to an administrative hearing at the Office of Administrative Hearings, where we argued on behalf of the husband, to earn the exemption to be in the home, and the wife, to keep the day care open.  Both cases were successful — the Accusation was dismissed against the facility, which was allowed to remain open with no interruption and no disciplinary record, and the husband’s criminal record clearance was granted on a probationary basis, allowing him to return home to the facility.

As with all of our cases, this case does not represent a warranty or prediction about your individual case.  However, it does illustrate that even where a state agency refuses to settle a case and seeks discipline against your state license at a hearing, it is possible to have success and vindicate your professional reputation, as long as you make a strong, legally appropriate showing of innocence or rehabilitation.  The Department adopted the judge’s recommendations, and the client is now operating freely.

When a Registered Nurse is accused of misconduct, either by law enforcement or through a hospital complaint, the common “first step” from the Board of Registered Nursing is to send the RN a letter offering the chance to participate in the Board’s Intervention Program.  Previously referred to as the “Diversion program,” the Board of Registered Nursing has a contract with a third-party company, Maximus, who runs the “Intervention Program”.

There are several considerations to be aware of if you receive a letter from the Board of Registered Nursing regarding the Intervention Program.  First of all, the letter stresses, in capital letters, that the program is VOLUNTARY and CONFIDENTIAL.  The voluntary part is true, but only the decision to enter the program is voluntary. Once you enter the Intervention Program, you are required to complete it.  Leaving the program is “voluntary,” but Maximus has the authority to declare a registered nurse to be a “public risk” if she fails to complete the program.  The program is also only “confidential” if you complete it.  Failure to complete diversion/intervention makes the entire process subject to public review if the Board of Registered Nursing files an Accusation.

Second of all, the letter stresses that an investigation “may be ongoing,” but points out that if the nurse completes diversion successfully, he or she won’t be disciplined by the Board of Registered Nursing.  However, completing intervention/diversion successfully requires signing a contract with the third-party provider, Maximus, which requires full compliance with every element of the program.  This can include agreeing to stop working immediately, entering inpatient rehab, mandatory drug and alcohol testing, mandatory group therapy, mandatory meetings, and a time commitment of up to five years in the program.  Obviously, these rehabilitative steps are important for any nurse who struggles with mental illness or addiction.  For a nurse who does not identify as a substance abuser, these steps can be arduous and without profit.  If the requirements of the program are not met, the nurse will be kicked out of the Intervention Program.

The consequences of being kicked out of the Intervention Program are severe.  The nurse can be labeled a public health risk, and that label will be attached to the nurse in any subsequent disciplinary proceeding initiated by the BRN.  In addition, if the nurse is terminated from the Intervention Program, she/he returns to the same position as before the Program was entered—meaning that any investigation that might have been contemplated before the Program will be resumed and completed.

When Intervention or Diversion is offered by the Board of Registered Nursing, is it critical that the nurse evaluate his or her options completely, including consulting with a California nursing license defense attorney to discover the reason the Board is concerned about the nurse, the nurse’s ability to comply with the Program, and the probable consequences to the nurse if an investigation is launched against the license.  Often, the best court of action for our clients is to vigorously defend themselves against an investigation, rather than try to avoid it through entry into an Intervention Program that they may not be suitable to complete.  Our lawyers consult with registered nurses regularly to consider the offer of the Intervention Program.  Contact our nurse license defense lawyers today for a legal consultation regarding a BRN nurse investigation.

In March of 2018, Ray & Bishop won a highly contested Department of Social Services case on behalf of a preschool teacher in Orange County who was accused of conduct inimical and of violating the personal rights of children in her care.  We’ve previously discussed the definitions of “conduct inimical” and “personal rights” on our blog, specifically how important it is to retain experienced counsel when the Department accuses a caregiver of these serious violations.

In this case, a caregiver was videotaped while directing a child to sit still and to pay attention.  The Department used the video as evidence against the teacher, alleging that the client violated the child’s rights by restraining the child and picking up the child and moving the child away from the other children.  This video was introduced at evidence at the caregiver’s administrative proceeding.

Thanks to strong character evidence from our caregiver, and a thorough, effective cross-examination of the Department’s Licensing Program Analyst (LPA), who testified against our client, the Administrative Law Judge found that our client had done nothing wrong, and the Accusation and Exclusion Action against our client were dismissed. This Proposed Decision was adopted by DSS, and our client was officially cleared.

Regular readers of our blog know that on several occasions, we have discussed the legal impact of a Proposed Decision, the agency’s rationale when they decide not to adopt the Proposed Decision, and our clients’ rights when a Proposed Decision is non-adopted.  In this case, our client achieved a far better result than the agency was willing to accept before hearing, but the agency adopted the ALJ’s decision in its entirety.  That’s why hearing experience is important in every administrative matter.

We have extensive experience defending caregivers, teachers, and child care providers before the Department of Social Services.  Contact our firm for a consultation if you face discipline from the DSS.

Our firm was successful in achieving a restricted license for an insurance producer who had a number of prior convictions, including a felony burglary conviction.   After the client initially applied for his insurance license, his application was summarily denied due to his record.  The California Department of Insurance has the right to summarily deny (without a hearing) an application of a convicted felon.  On client’s behalf his law firm, Ray and Bishop, petitioned for reconsideration of the summary denial.  Reconsideration was granted.  The Department of Insurance still refused to grant a license, but was willing to allow a hearing with a judge for us to plead the client’s case.

The Department of Insurance was unwilling to settle the case before hearing.  However, at the administrative hearing (trial) our attorney was able to persuade the administrative law judge that our client was rehabilitated and possessed the character to obtain an insurance license.  The administrative law judge agreed with our attorney and ordered a restricted license.

This victory was the result of hard work by the client to rebuild his life, be productive, stay out of trouble, and clean up his criminal record through the courts.  The client then needed an advocate to argue his case to an administrative law judge so he could obtain a state license in the insurance industry.  To speak with an experienced insurance license defense lawyer about help with your difficult California Department of Insurance license application case, contact Ray and Bishop, PLC.