When an Accusation is filed against a Registered Nurse in California, usually the nurse’s first reaction is “how can I get this off my record?”  The presence of an Accusation on the Board’s website causes uncomfortable questions at work, it can make getting a new job far more difficult, and the Accusation itself often contains embarrassing, one-sided details that paint the nurse in an unflattering light.  The Board is almost never willing to dismiss an Accusation in settlement, but if the Registered Nurse thinks he or she is innocent of the Board’s charges, his/her remedy is to go to the administrative hearing and force the Board to prove its case.

In 2018, one of our clients was accused of mistreating a patient and using foul language in his presence.  We believed the Board did not have a case against our client, and that the complaining witness was lying about our nurse.  Despite multiple settlement offers, we rejected the Board’s attempts to resolve the case, because we believed that our nurse was innocent.  On the night before the hearing was scheduled, the Board’s attorney called us to dismiss the Accusation against our nurse!  It was a major victory, and our client was relieved and grateful.

How did we achieve such a great result for our client?  First of all, the facts in this particular case were that the client was innocent.  Not every client who comes to us is perfect, and sometimes our job is to deal with mistakes to reach the best possible outcome.  In this case, we were able to fight knowing that our client had done nothing wrong.  Second of all, we were willing to take the case to court.  If we had been afraid or unwilling to risk hearing, we would have settled the case prior to hearing and our client would have been disciplined.  Because our experienced nurse defense attorneys had the experience and the knowledge to proceed with confidence to hearing, the Board decided that the best course of action was to dismiss the case.  This case had been ongoing for six months, and the Board only decided on the very last day to dismiss the case.  Patience and experience are critical to achieving the best possible results.

If you receive an Accusation from the Board of Registered Nursing, seek legal guidance from a qualified California nursing license defense attorney immediately.

Disciplinary cases brought by the California Commission on Teacher Credentialing, or CTC, typically start with a letter inquiring about a criminal conviction or other adverse report.  A teacher will typically respond with a letter of explanation and supporting documents.  After reviewing the response from the teacher, the Committee of Credentials of the California Commission on Teacher Credentialing will issue a Notice of Committee Recommendation.   The Notice of Committee Recommendation will usually propose discipline against the teacher, usually a suspension of the teacher’s teaching credential.  After receiving the Notice of Committee Recommendation, a teacher has 30 calendar days to submit a written request for either reconsideration of the recommendation based upon new and relevant information for the Committee on Credentials, or to request an administrative hearing at the Office of Administrative Hearings before an administrative law judge to defend the teaching credential.

If the discipline proposed by the Notice of Committee Recommendation is not acceptable or unduly harsh, teachers will usually request an administrative hearing to defend their teaching credential.  An administrative hearing at the Office of Administrative Hearings is held before an impartial, neutral administrative law judge.  These hearings are just like a court trial.  A deputy attorney general from the California Department of Justice represents the Commission on Teacher Credentialing.   A court reporter makes a stenographic record of the event.  Exhibits are introduced, witnesses are questioned (including the teacher) and legal arguments are made.  After the hearing, the administrative law judge issues a proposed decision to the Commission on Teacher Credentialing.  In most cases, the proposed decision becomes the final decision.

Until relatively recently, cases brought against teachers by the Commission on Teacher Credentialing were prosecuted by staff attorneys from the CTC.  However, recently the California Department of Justice, Office of the Attorney General, took over these cases.  The Office of the Attorney General has offices across California and brings license discipline cases at the four locations of the Office of Administrative Hearings and at other venues where hearings are held.

At Ray & Bishop, PLC, we handle hundreds of license discipline cases each year, with almost all destined for the Office of Administrative Hearings with the Office of the Attorney General on the other side.  We welcome the opportunity to defend teachers and defend California teaching credentials in these disciplinary cases.

The California Department of Business Oversight (DBO) licenses and regulates California finance lender licenses, or CFLs.  A CFL licensee is subject to regulatory examination.  Under California Finance Code section 22701, the commissioner of DBO may “at any time” investigate the records of a CFL licensee to discover violations.   A licensee is required to give “free access” to the Department’s examiner for purposes of these regulatory examinations.

A California finance lender must comply with the records retention regulations for maintaining books and records for regulatory examination.  Under Title 10 California Code of Regulations section 1950.314.4, each licensee must maintain a loan log to cover every loan made within the prior 36 months.  The loan log must include the application date, borrower name, property address, the loan amount, the loan terms, the identity of the loan officer, and if closed the disposition of the loan.  In addition to the loan log, the CFL licensee must keep mortgage loan documents, books and records (particularly ledgers and financial reports), bank statements and secondary market information (from sold or transferred loans) also for a period of 36 months.  Records may be kept in electronic form.

In addition to the log and the requirement that particular records be maintained, there is a general requirement that a CFL licensee maintain a “record keeping system” to track fees charged by the lender, which include appraisal fees, credit report fees, application fees and other related fees.  The regulation therefore sets forth three forms of recordkeeping for any lender to be created by the lender as loans are made: the loan log, accounting ledgers and related financial records, and a record of charged fees.   The regulation provides some latitude in how the exact records are organized as long as the information required can be made available to the examiner.

The commissioner or his agents may direct a licensee to maintain certain records longer than 36 months.  This may arise, for example, in the case of an investigation into certain activity by a lender.  Examinations can also turn into investigations by Department of Business Oversight corporations counsel, who may use investigative subpoenas for further investigation.  In the event of legal action or legal staff investigation by the Department of Business Oversight, we strongly recommend hiring counsel to represent the CFL licensee.

In California professional license law, at a contested hearing deciding an accusation or a statement of issues an administrative law judge only has the power to make a proposed decision, not a final decision.  The administrative agency – for example, the Medical Board of California or the California Department of Insurance – has delegated the task of hearing the case to an administrative law judge, but retains the ultimate power to make a decision on the case.  After an administrative law judge issues a proposed decision, the proposed decision goes to the state agency for adoption.  If the state license agency doesn’t agree with the administrative law judge’s decision, there is a non-adoption.  Non-adoptions are addressed in the law in California Government Code section 11517(c)(2)(E).

The first question that often comes to mind when we receive an Order of Non-Adoption from a state agency is: Why did they non-adopt?  The Order of Non-Adoption often spells out the reason for non-adoption.  Usually, the reason for non-adoption is that the state licensing agency – the board, bureau, department or agency deciding the case – does not agree with the terms of discipline in the proposed decision.  This can mean the proposed penalty is too light, but it can also mean the penalty is unsuitable for the case in the view of the licensing agency.  The administrative law judge might have proposed a penalty that is different than the penalty typically resulting from like cases.

Non-adoption gives the state agency the opportunity to review the record of the administrative hearing to figure out why the judge reached the decision that was proposed.  The parties also are given the opportunity to present written arguments, and sometimes even oral arguments, to the decision makers.  In the non-adoption process, our experience as professional license defense attorneys is key.  At Ray & Bishop, our years of experience as a law firm exclusively devoted to representing professionals before state agencies enables us to intuit the concerns of the state agency and fashion effective arguments for the best possible outcome.  Without this important insight, a less experienced attorney may misstep and even anger or alienate the decision makers, aggravating the situation.

Non-adoption is also a critical stage between hearing and appeal.  If a licensing agency is likely to come down hard on our client, we can use this stage of the proceedings to raise and preserve crucial issues that might be important later on appeal.  Another opportunity in non-adoption can be the chance to negotiate or renegotiate a settlement with a licensing agency, if the agency is open to settlement.

Ray & Bishop, PLC, exclusively represents professionals and businesses before their licensing agencies and regulators.  Non-adoption is a complex and confusing process.  Let us put our experience and expertise to work to navigate the legal challenges and find the opportunities that may exist in the non-adoption process.

We have successfully represented clients before ethics committees of associations and private boards.  While associations and private boards lack the power to discipline professional and occupational licenses, adverse ethics findings can seriously damage a reputation and a career, and, in some cases, lead later to license discipline.  Private entities typically have by-laws and procedures to safeguard member rights, but may not follow their own rules unless demanded to do so by our experienced administrative attorneys.

In one case, a client was accused by an industry association of unethical behavior and was threatened with having that behavior reported to the client’s employer.  After our intervention and advocacy, the association board reconsidered its position and dropped its plan to contact the employer.  Also, many of the earlier findings of misconduct were either reversed or softened, significantly limiting the damage.

In another case, a national healthcare professional association brought a complaint against a practitioner based upon allegations from the mother of a patient.  Senior Associate Attorney Lindsay Johnson developed a robust defense and rebutted the allegations.  After reviewing our response, the association dismissed the ethics allegations and thanked our attorney for the professional response.

The Bureau of Real Estate Appraisers brought a petition to revoke probation against a Ray & Bishop client who was on probation.  Having given the real estate appraiser a chance already by placing him on probation, when BREA believed that the appraiser had made mistakes on three appraisals and had failed to disclose other license discipline they were in no mood to give another second chance.  The Bureau demanded license revocation.

After a two-day hearing, the administrative law judge agreed with Ray & Bishop Senior Associate Attorney Lindsay Johnson that 75% of the case was unproven and threw three quarters of the case out.  The judge also slashed the cost bill BREA asked be paid, trimming over $20,000 in costs down to a little over $5,000.  As a penalty for what BREA could prove, probation was extended, and the license was saved.

The Medical Board of California brought an accusation against our doctor client for a 0.11% blood alcohol level drunk driving conviction.  The Medical Board cited the fact that the physician admitted to the police officer that he was on call in demanding harsh punishment.  In settlement negotiations, the Board’s minimum offer was a five year probation that would have been devastating to the physician’s career.

At hearing the judge agreed with attorney Fred Ray that the facts did not warrant probation.  The physician was driving home after having wine at a family gathering on a Saturday night, other physicians were available to take the hospital calls, and alcoholism and alcohol abuse were ruled out by an expert brought in by the firm.  The judge agreed that probation was an unduly harsh and unnecessary punishment for the physician in light of all the evidence and argument at hearing.    A panel of the Medical Board heard arguments after non-adoption of the hearing decision and agreed with our position, giving the physician only a public reprimand with no further penalties.

For help with a California Medical Board  accusation or disciplinary action, contact our experienced physician license defense attorneys for a consultation today.

A client of Ray and Bishop was denied a teaching credential due to criminal convictions related to academic dishonesty and theft that happened while he was in college.   We disagreed with the Committee’s recommendation because the convictions were over eight years old and no longer relevant to the person the applicant had become.  We therefore demanded a hearing before an administrative law judge.  The CTC refused to offer settlement, so the matter had to go to hearing.

At the administrative hearing, the administrative law judge agreed with our arguments that the applicant had shown rehabilitation and good character.  The administrative law judge therefore proposed that the teacher applicant be granted a clear credential.  The California Commissioner on Teacher Credentialing reviewed the decision and voted to adopt the proposed decision, granting the teacher a clear teaching credential.

In 2017, Ray & Bishop won stay orders in three Superior Court cases, stopping license revocations while our we fought appeals in Superior Court.  Two stays were granted in Board of Registered Nursing cases, permitting the nurses to work with clear licenses while we fought their appeals.  A third stay was granted in a Bureau of Real Estate case, enabling the broker to transact real estate with a clear license while we fought on in court.  The appeal process is a petition for writ of administrative mandamus.  A writ of administrative mandamus, or administrative mandate, can result in an agency decision being overturned.  The Superior Court can order the administrative agency, such as the Board of Registered Nursing, to reverse its decision and not revoke a license.

In most cases a Superior Court judge will only grant a stay order if the judge is convinced that the licensee will prevail on the merits of the appeal.  In other words, a stay order can be a strong early indication that the licensee will win on appeal.  Stay orders can be very difficult to win, because in almost all cases the Attorney General vigorously fights against a stay order being granted.  In all appeal proceedings, all state agencies are represented by the Attorney General from the California Department of Justice.  Petitions for writs of administrative mandamus are typically brought in Sacramento County Superior Court.

The California Medical Board received 8,679 complaints in fiscal year 2015-16 according to its latest comprehensive enforcement activity report.  During that same period, 299 accusations were filed by the Medical Board of California.  Medical license defense cases came from complaints overwhelmingly from the public, but also from complaints from license and professional groups and other governmental agencies.  Physician license defense cases in that period resulted in 120 cases of license probation, 129 cases where the physician’s license was revoked or surrendered, and 62 public reprimands.  Unfortunately, statistically most medical license defense cases in California ended with loss of a license or probation.  This illustrates the importance of an experienced and effective California physician license defense attorney.

Our attorneys that defend medical licenses are seeing a spike in the number of cases involving opioid abuse by patients.  As lawyers who defend medical licenses on a daily basis, were are seeing more and more medical licenses being disciplined due to the proactive approach taken by the Medical Board of California to investigate licenses of doctors who are targeted for improper prescribing practices based upon their CURES reports.  Attorneys who defend Medical Board licenses are also seeing cases that stem from the California Department of Public Health reporting of opioid-related deaths to the Medical Board, as well as information from pharmaceutical companies that may point to physician prescribing problems.  Accusations against California medical licenses are also being triggered by investigator review of websites and news articles to find complaints and adverse incidents involving physicians.  Our attorneys are keenly aware of these issues in medical license defense cases.

Opioid abuse-related cases are typically brought under Business and Professions Code sections 2234 (referring to gross negligence, repeated negligent acts and incompetence), Business and Professions Code section 2242, prescribing dangerous drugs without an appropriate prior examination and a medical indication, and Business and Professions Code section 2241, prescribing prescription drugs to an addict for a purpose other than addiction treatment.

As is apparent from the number of complaints versus the number of accusations filed, it can be possible to resolve a Medical Board physician license investigation and defend the physician’s license at the investigation stage with effective attorney representation.  However, to successfully defend a physician’s license, the medical license defense attorney must draw upon expert opinion, experience, legal research, and knowledge of remediation measures.  At Ray & Bishop, PLC, we do expect to defend an increasing number of medical license accusations due to opioid abuse cases this year and beyond.