One of our most common case types is the Board investigation into criminal convictions suffered by licensees.  We are very proud of our track record resulting in the almost all of these cases being closed without any adverse action by the Board.  Only attorneys who regularly handle Board investigations can anticipate the Board’s concerns and proactively prepare in a manner to increase the likelihood that no adverse action will result.

Recent successfully closed Board investigations we have handled have included incidents of severe intoxication, domestic violence and drunk driving.  We approached each situation in a positive fashion, being open and forthright with the Board.  However, our clients were protected from aggressive investigative strategies used by the Board.  We employ firm but respectful intervention strategies, cutting off direct agency access to the licensee as enabled by legal representation, carefully regulating the flow of information, preparing the licensee to be a confident and poised witness if an interview is appropriate to resolve the issue, and preventing missteps that can lead to disastrous consequences.

The Medical Board of California is under increased pressure in 2013, after receiving scrutiny in the press, to be more aggressive and expedient in its investigations.  Past benevolence that sometimes resulted in the physician getting the benefit of the doubt seems to no longer be present.  Deputy Attorneys General are now more than ever paired with investigators to help build a prosecution case from the earliest stages of investigation.  In this hostile environment, seasoned healthcare license defense counsel is critical for the most positive outcome.   

In late 2012, we won a hard fought victory against the Board of Registered Nursing.  A nurse with a stellar 40 year career was accused of forging a prescription.  However, upon closer examination, the evidence showed that the nurse merely recorded a doctor’s verbal order.  The nurse’s only mistakes were to not have confirmed that the doctor wanted the prescription written, and to later add a date to the prescription.

The nurse had been fired by a rival in the hospital administration and was thrown under the bus by the treating physician.  On tough cross examination, we showed that the boss that fired the nurse was prejudiced and therefore not credible.  The doctor, likewise, was not credible, displaying a selective memory and mixing up of facts. 

Although the Board had demanded license probation before hearing, the administrative law judge agreed that probation was unwarranted.  The license was reprimanded and the costs of investigation (that the licensee has to pay after hearing) were cut down by the judge by 75% (by over $15,000.00).   Pursuant to Board policies, the license reprimand will come off the nurse’s license record after three years.

In early 2013 we tried a case involving a criminal conviction suffered by a California insurance producer.  The insurance producer had been convicted of misdemeanor child abuse.  The allegations in the police report, introduced into evidence at hearing, were sensational, alleging multiple acts and a past pattern of wrongdoing.  The Department took the position that it did not want to settle and that the license should be revoked.

At hearing, we introduced evidence of the licensee’s good character, but more importantly, scrutinized the allegations.  When carefully examined, the allegations in the police report did not hold up.  Furthermore, the Department could not make a connection between the conviction and the qualifications of the license sufficient to support discipline.

The administrative law judge dismissed the accusation.  Upon consideration, the Commissioner adopted the decision, making the dismissal final.  The client has a clean license record.

Effective July 1, 2013, a much anticipated change has occurred – the independent entity known as the Department of Real Estate has become a license agency within the Department of Consumer Affairs known as the Bureau of Real Estate.  The purpose of this realignment is to save money as certain functions handled by the Bureau can be shared with other divisions of the Department of Consumer Affairs, including budgeting, administration, investigations, and even some legal services.  Also, some have speculated that this change enables the Department of Consumer Affairs to get its hands on considerable revenue generated by DRE in issuing and renewing licenses and other bureaucratic functions that generate fee income.

Unfortunately, little is known at this point about how the newly formed Bureau will operate differently in the future.  The Department of Real Estate has had its own staff counsel and investigators.  The Department of Consumer Affairs also has investigators, its own legal staff, and for license discipline, contracts with the Office of the Attorney General.  There is anecdotal evidence that staff at the now former DRE has shrunk in the face of this change, without replacements, resulting in a slow down of investigations and litigation.  As the DRE recently adopted rules requiring mandatory reporting of certain adverse events, and in the continued wake of the residential mortgage crisis, it seems that delays will be frustratingly commonplace while the Bureau tries to find its place within DCA as a more streamlined, cost efficient agency.

With almost 400,000 registered nurses and hundreds of thousands of licensed vocational nurses, nurses are the largest group of licensed health care professionals we serve.  At Ray & Bishop, PLC, we provide a variety of services to defend registered nurses and licensed vocational nurses in Orange County, Los Angeles County, Riverside County, and elsewhere statewide.  We also assist nursing school graduates making criminal record disclosures, answering “yes” to a criminal background question, on a nursing license application.

Common Nursing License Defense Situations

The majority of cases the Board of Registered Nursing and the Board of Licensed Vocational Nurses and Psychiatric Technicians file to discipline nurses are for criminal convictions such as drunk driving (DUI), either multiple offenses or involving a high blood alcohol leval, petty theft, drug crimes, and crimes of domestic violence, among others.  In the case of a criminal matter, we are most helpful if we are involved when the criminal matter is pending, or at least before the nurse has to provide a written explanation to the Board.  Our efforts to help explain criminal convictions at an early stage can often result in the case being closed or the imposition of a much minor penalty, such as a small fine.  However, most registered nurses, or RNs, and licensed vocational nurses, or LVNs, come to us when they have received an Accusation.

An Accusation is the Board’s formal complaint against a nurse.  A nurse has only 15 days from when an Accusation is sent out to return the Notice of Defense to the Board or its attorney, the Deputy Attorney General.  After the Accusation is filed, cases can be resolved either by withdrawal of the Accusation, dismissal, a stipulated settlement, or decision after hearing.  Our paramount concern is to save each and every nurse client’s license, and of course to obtain the best resolution possible.  Sometimes, the best resolution only comes from a hearing before an administrative law judge at the Office of Administrative Hearings, since a judge can reduce discipline or even dismiss the case, subject to final Board approval (which usually occurs).

Besides criminal convictions, other cases mostly involve impairment (due to mental illness or addiction), negligence or incompetence.  Impairment cases are rare, and usually triggered by police interactions where severe inebriation, drug abuse or mental illness are observed.  Negligence and incompetence usually arise from employer complaints of incidents where a patient or patients have suffered harm due to medical errors.  Finally, a serious and growing category of cases involve suspected diversion of drugs in a healthcare setting.  We have extensive experience in defending all of these types of cases.

Nurse License Applications and Nursing Board Investigations

A nursing program graduate applying for a license must honestly disclose any criminal convictions on the nurse license application.  The nurse licensing board typically asks for court and police records as well as an explanation from the applicant.  The nurse license applicant can also include other evidence of mitigation (placing the incident in a benign context) and rehabilitation (showing self-improvement since the incident) through the statement.  This information can make the difference of whether a license is granted or denied.

We also represent registered nurses and LVNs who are being investigated by the Boards.  The Board of Registered Nursing has its own staff of field investigators who can conduct interviews and serve subpoenas to seek records and other things.  Most investigations, however, are handled through the mail by staff analysts in Sacramento.  Whether to make statements to the investigator, as well as the approach to take to the investigation, are matters best handled with an experienced attorney.

You Do Not Have to Face the Board Alone

Our law office provides compassionate, economical legal representation to licensed nurses and nurse applicants.  In recent years the nursing boards have been criticized for being lax and inefficient, resulting in much more aggressive investigation, discipline and oversight of nurses, as they try to improve their public protection image.  We are not fearful of these Boards, as they must abide by the law and give each licensee and applicant a fair process based upon the principles of due process and only as necessary to protect the public.

After receiving an order revoking or disciplining a license, there is a less expensive alternative to a direct appeal that a licensee can take just after getting an adverse decision but before attempting an appeal in the courts: a Petition for Reconsideration filed directly with the state agency.  Petitions for Reconsideration are the licensee’s opportunity to request, essentially, that the state agency change its mind about the Decision and impose either lesser discipline or no discipline at all.  Any Petition for Reconsideration should be accompanied by a Request for Stay—a legal request to delay the effect of a Decision to allow an agency time to consider the Petition.  This request, which can be filed by an experienced license defense attorney any time before the effective date of the Decision, is often granted, allowing a licensee precious additional time to work or conclude business before the imposition of discipline.

As a general rule, Petitions for Reconsideration can be most effective when the licensee has not had the opportunity to present a defense of any kind to the allegations against him/her.  For example, if an insurance licensee has had his license summarily revoked due to a felony conviction or loss of another license (a subject we have written about on our blog), the Petition for Reconsideration can represent the licensee’s only opportunity to present mitigation and rehabilitation evidence to a decision-maker at the Department of Insurance.  Even in situations where a licensee has received a default judgment (in other words, failed to assert their right to a hearing or failed to appear at a scheduled hearing, leading to discipline, often revocation), a Petition for Reconsideration can be a cost-effective method of giving the agency a chance to see evidence of a licensee’s good character and fitness for practice.

Even in situations where a hearing has taken place and led to a revocation, a Petition for Reconsideration can help address mistakes that were made at hearing.  Sometimes licensees fail to present mitigation and rehabilitation evidence on their own behalf.  A well-crafted Petition by an experienced licensing attorney can present strong evidence to the agency that a judge or agency never had the chance to consider.  Other times, a judge may justify his or her ruling on the lack of certain evidence that the licensee could have provided.  In these situations, a prompt Petition for Reconsideration can make the difference between revocation and saving a license.

A good rule of thumb for license defense: the earlier you involve an attorney, the most likely you are to succeed.  Nevertheless, if you have suffered an adverse result at hearing, contact one of our experienced license attorneys immediately.  There are immediate steps that you can take to protect your license.

A new troubling trend has recently emerged in the discipline of California health care professionals.  The California Department of Health Care Services, or DHCS, has begun to order some health care licensees, such as registered nurses or occupational therapists,  suspended from participating in the Medi-Cal program if they are placed on  probation by their licensing board, such as the Board of Registered Nursing, due to a criminal conviction.  Previously such exclusion actions had been known to be generally brought only when a license had been revoked.    

 For California health care professionals, accusations against their state license to practice can be costly and time-consuming, with potentially serious consequences to their careers.  However, even after a positive result is achieved in a disciplinary case brought by a state agency, doctors and nurses face an additional obstacle to returning to work: the potential of being prohibited from participating in the Medi-Cal program if they are convicted of a crime “substantially related” to the profession.

In past posts, we have previously covered the effects a criminal conviction can have on a state license.  Most state agencies have a very broad power to discipline a license for almost any kind of misdemeanor or felony conviction, under statutes that define almost every crime as “substantially related to the qualifications, functions, or duties” of the professional career at issue.  Doctors and nurses are no exception: the Medical Board, the Board of Registered Nursing, and the Board of Licensed Vocational Nursing will all aggressively pursue discipline against a licensee who is convicted of a crime.

 Almost all health care professionals provide services that are billed to the Medi-Cal program.  As such, the Department of Health Care Services considers them “providers of service” within the meaning of Welfare and Institutions Code §14123(a).  DHCS has the authority to immediately and indefinitely suspend a provider of service from the Medi-Cal program if the licensee has committed a crime “substantially related” to the practice of his or her profession, regardless of whether or not the licensee has an active license.  The consequences to California professionals can be devastating: even if the licensee is placed on probation or merely given a citation as a consequence of their conviction, they could be immediately and indefinitely suspended from participating in Medi-Cal because of the conviction(s) the led to license discipline.

 Our firm has strategies to deal with licensees who find themselves on the wrong end of a suspension from the Department of Health Care Services.  We also have many years of experience helping licensees deal with the ramifications of criminal convictions.  If you are facing license discipline or you have been suspended from participation in the Medi-Cal program, contact an experienced licensing attorney for a professional consultation.

 

Licensees and license applicants are usually aware that criminal convictions can cause them problems with state agencies.  As we’ve discussed on this blog before, even expunged convictions show up on a rap sheet, and licensing agencies have the statutory authority to require that the conviction be disclosed.  What licensees often don’t realize is that they are always under the microscope of a state agency — even for contact with law enforcement that doesn’t result in a conviction.  For example, even being arrested for a crime can be used to show a lack of fitness for a professional license. 

Licensing agencies have the authority to discipline a license for "unprofessional conduct," which is defined in different places in California law depending on the profession.  For example, for a vocational nurse, the ban on "unprofessional conduct" comes from Business and Professions Code section 2878(a).  Section 2878(a) allows the board to suspend or revoke a license for "Unprofessional conduct, which includes, but is not limited to, the following:" and then further describes acts that would be considered unprofessional. 

The phrase "is not limited to" is what gives the Board almost unlimited discretion in what they consider "unprofessional."  You do not have to be convicted of a crime in order to get in trouble for doing something the Board considers "unprofessional."  If you get arrested for committing a violent act, but a district attorney later decides not to press charges against you, the Board could still attempt to discipline your license based on what you were accused of doing. 

Our firm has already seen investigators, crime lab technicians, police officers, and even eyewitnesses testify against licensees for acts that never led to a criminal conviction of any kind.  Our clients are often shocked at the measures a state agency will take in order to try to prove "unprofessional conduct."  That’s why we pride ourselves on our experience in administrative hearings, making the kind of complex, nuanced legal arguments that are effective against aggressive state agencies and their lawyers, who often are hired from the California Department of Justice. 

For licensees and license applicants, it is important to be aware that if you have had contact with law enforcement in the past, the incident may not be completely behind you.  If you are worried about the potential for an arrest or criminal charge to affect your chances at a state license, contact an experienced license defense attorney.

 

As of 2012, the Department of Real Estate now requires its licensed brokers and real estate salespersons to report certain “adverse events” to the Department.  Business and Professions Code §10186.2 requires a licensee to make a report, in writing, within 30 days if any of the following occur:

–         A licensee is charged with a felony, either through an indictment or an information.  (Indictments are formal charges brought by a grand jury; an information is like a complaint but filed after a preliminary hearing);

–         A licensee is convicted of a felony or a misdemeanor or any kind; or

–         A disciplinary action is taken by any state or federal licensing agency.

It is important for licensees to be aware of their obligations under this new law.  For example, a “conviction” for a felony or misdemeanor must be promptly reported by the licensee; he or she cannot wait until license renewal to inform DRE.  Also, “convicted” means not just a jury verdict, but any plea of guilty or no contest (“nolo contendere”).

Because licensed professionals often hold multiple licenses in several states, they must be aware that any professional discipline, to any license, must now be reported immediately to DRE.  It may be necessary to seek legal advice to determine whether an action by a state board or department outside of California constitutes a “disciplinary action” within the meaning of DRE’s reporting requirement.

Failure to disclose any of the above adverse events can have serious consequences – the Department can seek complete revocation of a license for any violation of its regulations, no matter how minor.  For more information about the new law, or if you have questions about whether or not you have suffered an adverse event within the meaning of the law, contact our firm at (949) 557-4888.  We have helped many licensed real estate salespersons and brokers keep their licenses after suffering criminal convictions, and we also help applicants get salespersons and brokers licenses even with criminal convictions in their background.

 

 

When licensed professional or a license applicant receives notice that a hearing will be held to consider their matter, many first ask themselves: “Can I effectively represent myself in a license defense hearing?  Do I really need to hire a lawyer?”  Even applicants with criminal charges that they do not contest, who hired a criminal defense attorney just to negotiate a plea, will think twice before hiring an experienced license defense attorney.  Perhaps the description of the proceeding as a “hearing” masks the adversarial nature of the process, lulling some licensees into a sense that the matter will be informal and will not require professional representation.  Elsewhere on our blog, we discuss the nature of OAH proceedings and what to expect.

Clients who appear “in pro per” (a shorthand version of “in propria persona,” a Latin phrase meaning “for one’s self”) face several obstacles to successfully defending accusations against their license.  Even as highly-trained lawyers, we would never represent ourselves in any proceeding.  Some are more obvious than others, but a short list of the dangers of appearing in pro per are as follows:

– Lawyers spend years learning the distinction between admissible evidence and inadmissible evidence.  Without this knowledge, a layperson is likely to let every piece of evidence offered by the state agency be considered for all purposes.  This can be very damaging to a license defense case.  For example, although the rules of evidence are relaxed in administrative proceedings, it is important to limit the use of hearsay evidence, so that the state agency must prove their allegations.

– Effective testimony must be prepared and packaged carefully.  A licensee must speak coherently about only the relevant aspects of their case, often for an hour or more in one sitting.  An experienced attorney shoulders this burden for the licensee by evaluating the case, preparing the questions, and asking the questions of the licensee so that only the most helpful information is shared with the administrative law judge.  Testifying in the narrative fashion – in other words, without an attorney and without questions — requires doing all of those tasks simultaneously, without making harmful admissions.  Many licensees and applicants lose their case by testifying ineffectively on their own behalf.

– Similarly, without knowing exactly what evidence is helpful and relevant, it is very difficult for an untrained licensee to conduct effective witness examinations.  Often, the complaining state agency brings witnesses to establish elements of their case.  Those witnesses must be probed for bias and inaccurate testimony, and that must be done according to the California Rules of Evidence.  In addition, witness examinations must be prepared for all character witnesses.  Attorneys are trained to conduct witness examinations that benefit their clients without revealing harmful information.

– Finally, and most importantly, an experienced license defense attorney knows the legal arguments that support applicants and licensees.  Only attorneys who have seen multiple cases from start to finish can accurately judge the strength of a state agency’s case.  State agencies use a variety of complex statutory language to justify disciplinary allegations against licensees.  Experienced counsel know exactly how to respond to these allegations, including precedent cases that are helpful for the licensee, specific factual evidence that combats the allegations of the state agency, and the appropriate, applicable mitigation and rehabilitation evidence that will protect the career of the accused client.  Without this experience and knowledge, administrative law judges often side with agency counsel and revoke the professional license at stake.

Further, a qualified attorney helps a licensee resolve the potential conflict between arguing passionately for the license and taking full responsibility for undisputed grounds for discipline, usually prior criminal convictions or other license discipline.  When an attorney is present, the client can be remorseful and the attorney can fight for the license.  When the client represents him or herself, he or she is forced to try to wear both hats—and either the case is weakened because the client doesn’t appear remorseful, or the client doesn’t know how to forcefully articulate why they deserve a license.