California License Law Blog

Winning Writs of Administrative Mandamus to Appeal Adverse License Decisions

Fredrick Ray — Thu, 17 May 2012 22:06:32 -0800

After an adverse decision, such as a decision by a Board or Department to revoke a license, a licensee has as little as 30 days to appeal that decision to the Superior Court. This appeal, called a petition for writ of administrative mandamus, seeks a court order commanding the agency to set aside the disciplinary order. These court cases should only be handled by skilled, experienced license law counsel, to maximize the chances of reversing a loss in the administrative courts.

Deciding on the Right Court

Choosing the court to bring the writ petition in is a critical tactical decision. In California, two courts, the Sacramento County Superior Court and Los Angeles County Superior Court, have dedicate courtrooms for writs, and a third, San Francisco Superior Court, has law and motion courtrooms that hear writs. In all other counties, typically, writs are assigned to random civil courtrooms. Filing a petition for writ of administrative mandamus in a courtroom with a judge experienced with such matters increases the likelihood of a thoughtful, well-reasoned and correct decision on the issues. However, there can also be tactical advantages to filing in a local courthouse with a judge who rarely sees such cases.

Filing the Writ Petition In Time

As a general rule, a petition for writ of administrative mandamus must be filed within 30 days of the effective date of the disciplinary decision. This deadline case be extended by requesting the administrative record within 10 days of the effective date of the decision, however, the better practice among attorneys is to follow the shortest deadline to insure the case is not thrown out for being filed too late. We have in the past filed petitions for writ of administrative notice on as little a few days lead time from the deadline, thanks to our efficiency in preparing these documents, however, it is best to retain counsel as quickly as possible.

Staying the Adverse Decision

For some licensees, it is important to persuade the Superior Court judge to stay, or stop, the agency's adverse order disciplining the license from taking effect. Stays, however, can be difficult to obtain, because the judge must be persuaded on somewhat scant evidence and a brief review of legal arguments that the licensee is likely to win the entire case. Also, there should be no concern of possible harm to the public. In cases where an agency altered the proposed decision of the administrative law judge in reaching a final decision, however, the licensee need only show a lack of danger of public harm. It is sometimes also possible to negotiate a stay with the attorney for the agency.

Winning Legal Arguments

The rule for winning a writ is that the petitioner must show that the licensing agency abused its discretion. If the dispute is not over whether the licensee should have been disciplined, but rather the degree of discipline, the licensee must show a manifest, or obvious, abuse of discretion, in the setting of the penalty. The court will review the hearing transcripts, all the evidence, and legal arguments from both sides, to determine if the agency abused its discretion requiring that the Superior Court remedy the situation by setting aside the agency order.

Strong legal arguments include violations of due process, depriving a licensee of a fair hearing; legal errors relating to the statutes or regulations used as the basis for discipline; and factual mistakes that color the outcome of the case. As a practical matter, judges who consider petitions for writ of mandamus can be persuaded by a sympathetic licensee or a heavy-handed agency. A case might also be stronger for the licensee if a hearing was never held, such as in the case of a summary or default order; if a licensee's rights were not fully respected at hearing; or if the agency attorney has improperly influenced the decision-making process to the disadvantage of the licensee.

The essential ingredient for winning a writ of administrative mandamus is hiring an attorney who has handled hundreds of administrative cases, regularly files petitions for writ of mandate, and can spot mistakes and issues to argue for a successful outcome. Some issues are very subtle or difficult to detect. If you or someone you know is considering appealing an adverse license decision, they should contact experienced license defense counsel without delay.

California Board of Registered Nursing Internet Disciplinary Records Policy

Fredrick Ray — Fri, 11 May 2012 22:40:04 -0800

Our law firm has saved the licenses of numerous nurses, even in the face of multiple criminal convictions or allegations of gross negligence. However, we are often asked, “how long will my disciplinary documents will be on the internet?” Clients also wonder how much of their case will be able to be seen, such as whether or not the terms of a settlement or the result of a hearing will be searchable under their license record.

Disciplinary decisions issued by the Office of Administrative Hearings are considered public record, and are displayed by the Board of Registered Nursing (BRN) on their website once they are final. However, the length of time a decision stays on the internet depends on when the action became final and on the seriousness of the disciplinary charge against an RN.

For example, for final decisions upholding a citation or a fine, or for decisions resulting in a public reprimand against a licensee, the BRN displays those documents for three (3) years from the date of completion of the Board’s action. For decisions resulting in a probationary license, the documents stay on the internet for ten (10) years from the date of completion of the Board’s action. Certain decisions, such as those resulting in license surrender or revocation, or citations against an unlicensed individual, stay on the internet indefinitely.

However, figuring out the “date of completion of the Board’s action” can be difficult. For disciplinary decisions issued on or after January 1, 2012, the “date of completion” is considered to be the effective date of the decision; in other words, the date on which the Board’s action became final. For disciplinary decisions issued anytime before January 1, 2012, the three- or ten-year period of internet publication doesn’t begin until January 1, 2012. This can lead to an extended period of retention of discipline documents for nurses disciplined before 2012. For example, an RN who received a probationary decision in 2005 would have his or her decision remain on the internet for ten years, beginning on January 1, 2012.

The Board's recently enacted policy outlined above to limit the retention of records on the internet for probation and reprimand outcomes give those nurses additional future relief from the collateral effects of license discipline. Recognizing the collateral effects of license discipline is another way that our expertise in professional license law delivers superior results for our clients.

Certain Felonies Can Bar MLO Endorsement Applications for Life

Fredrick Ray — Thu, 10 May 2012 21:52:28 -0800

Since the passage of the SAFE Act in 2008 and the subsequently enacted legislation in California, real estate professionals and employees of California finance lenders who want to originate home loans in California must apply for a Mortgage Loan Originator (MLO) endorsement through the Nationwide Mortgage Licensing System & Registry (NMLS).

For licensees and applicants with felony convictions in their background, this requirement can delay the endorsement or even result in a lifetime bar from licensure. Section 10166.05 of the California Business and Professions Code requires applicants to disclose all felony convictions to the Department of Real Estate on their MLO endorsement application. Under section (b)(1), the applicant cannot be convicted of a felony during the seven-year period preceding the date of application. This applies to all felonies, regardless of type of circumstance. As this is an absolute bar, the Department of Real Estate or Department of Corporations must deny an MLO endorsement to any applicant with a felony conviction in the seven years before the date of application.

Section (b)(2) further disqualifies those applicants who have, at any time, committed a felony involving “fraud, dishonesty, a breach of trust, or money laundering.” The distinction between which felonies “involve” these four categories and which do not is critical; if the Department can show that a particular felony committed by an applicant involves fraud or dishonesty, that applicant can never get an MLO certificate. On the other hand, if an applicant can successfully show that his or her conviction did not involve one of the four categories within section (b)(2), the applicant can, with proper disclosures and a showing of rehabilitation, receive the MLO certificate and originate home loans.

Certain felonies are easier to classify than others. A felony conviction for embezzlement, credit card fraud, wire fraud, or money laundering would fall within the literal definition of section (b)(2). Most other felonies, at first glance, might not appear to fall within the definition of section (b)(2). For example, a conviction for murder, although a very serious offense in its own right, would not seem to be a conviction involving “dishonesty” or “fraud.” However, the Department of Real Estate has taken the position that whether or not a felony conviction “involves” dishonesty depends on the facts and circumstances surrounding the conviction. A murder conviction, therefore, might involve dishonesty if it was accomplished by dishonest means or while in the process of a dishonest act.

To illustrate how this distinction can have serious consequences for a potential licensee, imagine a first-time applicant to the Department of Real Estate who, decades ago, was convicted of a serious crime, such as a murder. Imagine that this murder was committed while the applicant was in the process of committing a burglary, such as a “robbery-gone-wrong” or a burglar was surprised by the unexpected return of the occupant of the home. Even if the applicant was never charged with burglary or robbery, the Department could still argue that the murder “involved” dishonesty, and attempt to forever exclude the applicant from originating home loans.

Of course, the crime described in the example above is a serious crime, and the applicant would likely have been severely punished. However, even if this applicant served a very lengthy prison sentence, even if he or she fully complied with the terms of his parole and probation, and even if he or she successfully rehabilitated himself, paid restitution, and restored his reputation within the community, he or she can never restore his or her relationship with the Department if the felony is deemed to have “involved” dishonesty or fraud.

It is also possible to get even felony convictions reduced from felonies to misdemeanors under California Penal Code section 17(b) if the felony is a "wobbler" (can be a felony or misdemeanor) and was not punished by a term served in state prison. Likewise, a felony conviction dismissed through a diversion program or some other court alternative sentencing program might not be a felony conviction for licensing purposes.

If you are a licensee or an applicant to the Department of Real Estate or Department of Corporations with a felony conviction in your background, it is especially important to secure legal representation if you plan to apply for an MLO endorsement. Thorough legal research is necessary to determine whether or not your felony could be categorized as “dishonest” within the meaning of California law, and the results can have lifelong, irreversible effects. We strongly recommend also that you explore any and all avenues for reduction of a felony conviction before making the nationwide disclosure required by the NMLS MLO endorsement application system.

Governor Brown Reinstates the Board of Registered Nursing

Fredrick Ray — Tue, 14 Feb 2012 21:56:38 -0800

Today, February 14, 2012, Governor Brown signed SB 98, reinstating the California Board of Registered Nursing, which had been dissolved by an automatic sunset provision on December 31, 2011. The Board has been authorized to operate until 2016.

Our office had observed an apparent slowdown in the enforcement filings and hearing settings while Board enforcement activity has been in legal limbo. Presumably Board enforcement will now resume normal litigation activity. Since the Board has 100 days to adopt proposed license discipline decisions, and there is no time limitation for license denial decisions, and the Board did not exist for only about 45 days, few if any cases should have jurisdictional problems.

We have observed a trend over the last year of more aggressive action by the Board in terms of disciplining or denying licenses for less serious drunk driving convictions and seeking discipline for dismissed criminal charges. There seems, however, to be no popular concern that the Board is failing in its job to zealously protect the public. With this latest episode finally over, which had to do more with public pensions than questioning the need for this Board, perhaps the Board can moderate its enforcement push to protect the public in a manner that is just and fair for its licensees and license applicants.

Department of Insurance Orders of Summary Denial or Summary Revocation

Fredrick Ray — Mon, 13 Feb 2012 01:14:41 -0800

The California Department of Insurance wields arguably the most powerful licensing law in California, California Insurance Code section 1669. Section 1669, which applies to applicants but also to existing insurance broker licenses through a related statute, empowers the Commissioner to summarily deny or summarily revoke (without a hearing) an insurance broker license for a felony conviction or any Insurance Code misdemeanor conviction, or if the applicant or licensee has had any occupational license (including an insurance broker license) denied, revoked or suspended within the prior five years.

The Department has a practice to make its Order of Summary Denial or Order of Summary Revocation effective immediately or after a short delay, limiting the amount of time a broker or applicant has to weigh their legal options. There are three options in reaction to such an Order: 1) filing a petition for reconsideration, if it can be done before the effective date of the Order, 2) bringing a petition for writ of administrative mandamus in Superior Court usually within 30 days of the effective date of the Order, or 3) reapplying for a denied or lost insurance producer's license at a future date.

The difficulty with this statute is that once someone has let an Order of Summary Denial or Order of Summary Revocation become final, that order in and of itself is cause for future orders of summary denial in response to attempts to get the license back, invoking the previously mentioned five year bar from the date of the latest Order of Summary Denial. The cycle of applications and responsive Summary Denial orders can be broken by counsel, but this usually requires a prepared showing of rehabilitation either with the application disclosure, or in seeking reconsideration.

Our firm has demonstrated success in securing licensing success even in the face of felony convictions, other license revocations, and long strings of license denials. We can break the cycle with proper planning and timely advocacy.

The Sunset of the California Board of Registered Nursing

Fredrick Ray — Wed, 04 Jan 2012 21:13:52 -0800

On January 1, 2012, the California Board of Registered Nursing was dissolved by a sunset provision in its authorizing statute. California licensing boards, by law, must be renewed by legislation periodically. The California Board of Registered Nursing, or BRN, was to expire on January 1, 2012, unless new legislation was enacted, which is typically a routine matter. In October 2011, Governor Brown refused to sign Senate Bill 538, which would have extended the authority of the BRN for another four years. He did this because there were provisions in the bill to authorize the BRN to have its own sworn peace officers as investigators, which would impose further financial burdens on the state by expanding pension liabilities. The BRN currently employs Department of Consumer Affairs (DCA) investigators to handle its investigations.

The last time this happened prominently, in 2008, the Dental Board and Vocational Nursing Board, among others, were sunset. However, the legislature passed emergency legislation to continue those boards as bureaus (with their boards converted to advisory committees) until they could be reauthorized as boards. No such legislation has been enacted to continue the Board of Registered Nursing as a bureau.

In order to continue its licensing and enforcement functions, the Board of Registered Nursing has renamed itself the Registered Nursing Program within the Department of Consumer Affairs. To attempt to solve the sunset problem, the BRN authorized an Interagency Agreement between BRN and DCA before the sunset date to transfer the powers of the BRN to the DCA, which has in turn delegated those powers to the executive officer of the Registered Nursing Program acting on behalf of the DCA. Interestingly, the Interagency Agreement cites no statutes, regulations or case law authorizing this action between the two agencies.

There exists a genuine issue as to whether the newly constituted Registered Nursing Program acts with any lawful authority. It appears that in the coming weeks or months, the legislature should act upon new legislation to reauthorize the BRN without its own investigators. However, troubling jurisdictional questions will cloud all nursing discipline orders issued and other such actions taken in this interim period. Since having come under scrutiny in recent years for being perceived as lax in disciplining nurses, the BRN, having filed thousands of discipline cases, seems to have too many cases in its pipeline to halt license discipline litigation during this period of uncertainty. Under what jurisdictional authority the "program" will act seems to have been left to license lawyers, administrative law judges and perhaps ultimately to the courts to sort out.

Building a Defense Against California Medical Board Discipline Triggered by Criminal Matters

Fredrick Ray — Sat, 11 Jun 2011 23:30:54 -0800

The California Medical Board mandates the disclosure of felony charges (after an information has been filed in criminal court) and all misdemeanor convictions. Also, through the California Department of Justice or the criminal courts, the Board sometimes is notified of a pending or completed criminal case. Physicians also must answer background change questions (such as, have you been convicted of a crime?) on their license renewal forms. Through one of these channels, the Medical Board typically becomes aware of a pending or completed criminal case that can trigger discipline.

Make Good Decisions from the Start of the Problem

To exercise effective damage control from the early days of the criminal matter, I strongly recommend having a license law attorney on one's legal team. A license law attorney brings a long-term perspective of potential future license consequences that can educate the criminal defense attorney and his client. One of the biggest mistakes that physicians make is to fail to appreciate the serious fallout and lasting career damage that can result from a criminal investigation or prosecution.

Documenting and Preserving Mitigating Information

One often missed step, important for successful handling of potential license problems, is to document and preserve mitigation evidence. Mitigation evidence is evidence that tends to explain or provide a context for the alleged wrongful act to cast it in a more sympathetic, reasonable and understandable light. Examples of mitigation evidence are a tragic life event, something that causes extreme stress such as the death of a parent or child, a bitter divorce, a severe illness, or extreme financial hardship. Without important contextual information, the Board might assume that the criminal matter gives telling insight into the personal flaws of the Board's licensee from which the Board can generalize and make broader assumptions.

Criminal Defense with License Consequences in Mind

Criminal defense lawyers often focus upon the final conviction charge (case outcome) in attempting to minimize adverse effects on a physician's license. This emphasis is too narrow and usually misplaced. If there is any conviction of a felony or misdemeanor, the Board can look through the conviction to the underlying facts. Therefore the contents of the investigative reports, the rulings of the judge on issues such as bail or protective orders, the length and conditions of probation, and negotiated post-conviction relief, are all aspects of the case which have an impact upon whether the Board will seek discipline against a license, and what the disciplinary case outcome might be.

Early and Proactive Rehabilitative Efforts

Another often missed opportunity is the chance to make early and proactive rehabilitative efforts. If the Board decides to discipline a physician's license, once a conviction is proven at hearing, the burden shifts to the licensee to show rehabilitation to enable the Board or administrative law judge to decide what, if any, discipline is appropriate. Rehabilitation evidence is critical because the Board justifies discipline based upon criminal convictions by reasoning that criminal convictions show a character flaw, a lack of judgment, or impairment that endangers the public, depending upon the facts of the case. To the degree that a physician can show the issues in the criminal case have been addressed or resolved by rehabilitative efforts, the justification for discipline may be reduced or removed, resulting in a better discipline case outcome, or perhaps even a case dismissal.

What Types of Cases Trigger Discipline

Unremarkable misdemeanor convictions that do not point to troubling concerns about the licensee are the most likely to not result in license discipline. These would include low blood alcohol drunk driving cases, disturbing the peace based on loud noise or a fight between adults, some types of disorderly conduct, and misdemeanor Vehicle Code cases. Criminal cases that are likely to trigger discipline are ones that point to drug or alcohol abuse, have facts that show or hint at mental illness, any type of theft or fraud, any violent crime, and any sex crime, to name some major categories. Sexual offenses that result in conviction and mandated sex offender registration can trigger immediate license revocation. To make a reasonable assessment of the potential Board reaction to a particular factual scenario, it is best to hire a license defense law firm to review the matter. We offer consultations to review criminal matters to assess them for likely licensing outcomes, to identify mitigation evidence early and to build a rehabilitation case.

Be Honest

It is crucial that a physician never lie to the Medical Board about a criminal case. Direct dishonesty is typically more damaging than the criminal case itself. I strongly recommend that the physician have an attorney review all their communications with the Board before they are sent, if for no other reason than to ensure that the information provided is accurate and that the exchanges are well documented. The early involvement of a license defense attorney can ensure an honest, positive and consistent message that reassures the Medical Board and acts to prevent or minimize license discipline.

Medical Students, Medical Residents and Physician License Applicants

These principles apply to anyone applying to medical school, attending medical school, working in a medical residency, applying for a PTAL (foreign medical school graduate's residency permit) or seeking a California physician's license. The earlier the issue is addressed, the better. If the background problem is so serious that it will jeopardize the physician's licensing process, the problem must be identified early so that the individual can consider options and plan for overcoming impediments to obtaining a full clear physician's license.

The California Office of Administrative Hearings

Fredrick Ray — Sat, 21 May 2011 21:12:40 -0800

In California, the Office of Administrative Hearings (OAH) hears all professional license discipline or denial cases, except for liquor license and attorney discipline hearings. The same administrative court hears cases for such varied occupations as physicians, architects, dentists, insurance brokers and engineers. A panel of about 75 administrative law judges (ALJs), working our of four OAH offices in Sacramento, Oakland, Los Angeles and San Diego, hears thousands of cases each year. Administrative licensing agencies such as the Medical Board of California, the Dental Board of California and the Department of Insurance delegate the job of hearing disciplinary hearings to these judges, while retaining final decision-making authority.

When a licensing agency issues an accusation (the start of a formal disciplinary case) or a statement of issues (a formal license denial case), and the licensee has requested a hearing, the case is typically filed with OAH for adjudication. Once OAH receives the filing, it assumes jurisdiction over the case which continues until the case is settled, the accusation is withdrawn, or a panel judge issues a proposed decision. The presiding judge of a particular OAH office, or an ALJ acting temporarily on her or his behalf, addresses any logistics issues that arise. Before the hearing date itself (the trial to decide the case), a hearing judge is assigned. However, the assigned judge can be changed even shortly before the start of the hearing.

A hearing can be held at one of the courtrooms available at one of OAH's offices, or sometimes in a remote location (typically a borrowed conference room in a state or federal building) for the convenience of the parties or witnesses. Occasionally, a party or witness, complying with applicable rules and with the agreement of the parties, appears by telephone. I have seen an OAH hearing held in a state mental hospital, a federal office building, and even at a prison. As long as a quiet room with adequate seating and tables is available and a court reporter can get to the location, it can be used for an OAH hearing.

OAH is different than any other court in that OAH is a state agency that other state agencies hire to hear their cases. ALJs produce "proposed decisions" that can be adopted, changed or rejected then decided differently by licensing agencies. Although a very high percentage of proposed decisions are adopted as written, occasionally a decision is rewritten or even decided differently by the agency. Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases. Licensing agencies issue disciplinary guidelines to guide ALJs to decide cases consistently on common fact patterns, however, in reality most disciplinary guidelines are not specific enough to provide clear guidance. It is definitely an art for a judge to intuit the wishes of a distant licensing board or agency head to reach a decision consistent with the agency's own thinking.

Having seen hundreds of ALJ decisions adopted or rejected by agencies, patterns tend to form. For agencies particularly that have a high volume of cases or an elected agency head, a higher percentage of decisions seem to be adopted. If many decisions are rejected, the burden of deciding those cases upon the administrative agency would be great. Agencies with relatively few disciplinary cases can review them with greater care and more easily reject or modify those decisions. Also, in the case of some agencies, the agency may prefer to leave the burden of the decision upon the ALJ, who is not subject to political pressure or public scrutiny, rather than to alter the decision to have a greater hand in the decision.

For self-represented litigants (individuals without an attorney), and inexperienced attorneys as well, a common mistake is to think that OAH proceedings are just informal meetings. Indeed, these are trials that require pre-planning and organization, legal research, questioning of witnesses, objections to evidence, and arguments. The primary "law firm" that prosecutes cases at OAH, the California Department of Justice, has hundreds of well trained Deputy Attorneys General.

OAH decisions are often published on the internet by the particular licensing agency for whom cases have been heard. I strongly advise unrepresented litigants to search out those decisions to review them before deciding to proceed without an attorney. It is not uncommon that administrative decisions are 10, 15, 20 pages or more, discussing a range of factual and legal issues. Reviewing these decisions, the complexity of these administrative proceedings becomes apparent.

First SAFE Act Mortgage Loan Originator Cases Coming

Fredrick Ray — Mon, 28 Mar 2011 19:39:40 -0800

In 2010, all 50 states were required to implement the SAFE Act, with a compliance deadline of December 31, 2010. With the passing of this deadline, individuals acting as Mortgage Loan Originators who are either California Department of Real Estate (DRE) licensed real estate brokers or salespeople, or are employed by a lender licensed by the California Department of Corporations, must complete a 20 hour approved course for the initial application, 8 hours of continuing education for renewal, pass the SAFE MLO test, and undergo a background check. Applicants begin by completing the extensive Nationwide Mortgage Licensing System, or NMLS, application. For anyone coming from a broker-dealer background, this application will look familiar, as it is the equivalent of FINRA's form U-4 or U4. For individuals who are applying to be mortgage loan originators, it is called the MU4 or MU-4.

For those who have passed the coursework and test, challenges may arise in background checks. In addition to a criminal record background check, the SAFE Act requires that all applicants permit their credit to be checked as well. Regulators will be looking for bankruptcies, unsatisfied liens, judgments, and other evidence of prior financial mismanagement. Currently, these cases are reaching the legal departments of the DRE and DOC, and may result in the first litigated administrative MLO endorsement cases.

The SAFE Act contains certain prohibitions for issuance of the endorsement. If an applicant has been ever convicted of a felony involving fraud, dishonesty, breach of trust, or money laundering, they cannot get an MLO endorsement. Also, the SAFE Act bars issuance of an MLO endorsement if someone has been convicted of any felony within the prior seven years. Apparently, individuals who have criminal records, but are not barred from issuance of the MLO endorsement by these rules, will be evaluated on a case-by-case basis, just as they are for any state occupational licenses.

Also, the SAFE Act requires applicants to submit to credit checks to determine if an applicant has demonstrated "financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that applicants will operate honestly, fairly, and effectively". So how bad must your credit be to run afoul of the SAFE Act? No one will exactly know until these cases are litigated. It seems likely that if someone's credit is bad enough, the licensing agency will want to see an explanation of the misfortune that occurred. Clearly, the person whose credit was trashed due to medical bills will do better than a compulsive gambler. Also, credit can be cleaned up. NMLS websites actively encourage applicants to check their credit first and clean up their credit reports before applying.

Review of credit reports by state agencies to make licensing decisions is a new, and uncomfortable area. The poor credit criteria draws a correlation between financial mismanagement and dishonesty that is a difficult analogy. My suspicion is that absent unsatisfied judgments or liens that cast an applicant in an appalling light, this criteria alone, without some prior criminal misconduct, will be a difficult standard to apply to deny the endorsement.

CURES Database Tracks Suspicious Prescription Activity

Fredrick Ray — Thu, 10 Mar 2011 07:47:50 -0800

For about 70 years, the California Department of Justice tracked prescriptions of narcotic medications as a means to detect prescription drug abuse. In 2008, then-Attorney General Jerry Brown set out to modernize the system, which came to be known as CURES, or Controlled Substance Utilization Review and Evaluation System, so that instead of calling or faxing in information requests, physicians and pharmacists could log in and check prescription histories to detect diversion of narcotic drugs through filled prescriptions.

As the CURES system has been modernized, it is also become a widely used tool for the detection of "doctor shopping," excessive prescribing and other strategies whereby both patients abuse prescription drugs and physicians game the system to essentially act as drug dealers from their medical practice. The result of the modernization of the CURES system is apparent in a growing number of high profile cases involving physicians criminally prosecuted and disciplined for excessive prescribing of narcotic medications to drug abusing individuals. CURES has become a law enforcement tool for the Medical Board and police alike to both detect and substantiate perceived drug dealing involving medical practices and pharmacies.

Physicians must therefore be mindful of patients who return for multiple refills of narcotic medications. In these cases, a check of the CURES database through the Department of Justice can detect doctor shopping behavior by a patient. Also, physicians should be aware that excessive prescribing of dangerous drugs outside of practice norms can raise a red flag resulting in a Medical Board investigation and more dire consequences.

Practical Obscurity, Ambient Findability and Reputation Enhancement

Fredrick Ray — Fri, 07 Jan 2011 20:17:43 -0800

Widespread use of the internet by regulatory agencies to post disciplinary actions, causing damage to licensees' reputations and dramatically impacting careers, is a deeply unfortunate reality. Prior to widespread use of the internet, "practical obscurity" kept disciplinary information largely out of the reach of the public, because records were only available by telephonic or written request. "Practical obscurity" has given way to "ambient findability," the ability for anyone with internet access to readily access information. State agencies now post both pending, unproven accusations and disciplinary decisions, indefinitely, and with impunity, in their role to protect the public.

The rise of "ambient findability" has prompted a new service known as "reputation enhancement" or "reputation defense." Simply put, if one cannot remove derogatory information from the internet, but anyone can freely post information, negative or positive, then posting as much neutral or positive information can overwhelm and obscure a negative entry. Although there are services that will flood the internet with positive information to bury negative information, it is also possible to do it by oneself. Indeed, it is imperative that every person regularly check, and take charge of, their internet reputation.

Facebook, My Space, Twitter, online professional directories, and other sites enable one to make numerous free web pages, producing substantial content for search engines. Although time consuming, it is possible to create a significant positive web presence. To the extent that a licensee's name is unique, and therefore easily searched, the greater the "ambient findability." Such licensees should be very vigilant with their internet reputation. Individuals with more ordinary names can be much more difficult to search.

Unfortunately, information on a licensing agency's website itself remains accessible for one who does a basic search and click. In the future, licensees may bring lawsuits to prevent the dissemination of unproven allegations or inaccurate disciplinary information. California's Information Practices Act and other laws could provide relief, particularly when disciplinary information becomes outdated and irrelevant.

Health Care Boards Focus On Supervision and Unlicensed Practice

Fredrick Ray — Sun, 05 Dec 2010 21:40:26 -0800

Health care boards in California are increasingly focusing on supervision issues, which can result in discipline for aiding and abetting unlicensed practice. Two examples of this are a warning recently issued by the Medical Board of California to its licensees, and a recent reversal of a longstanding position by the Physical Therapy Board. Licensees should be aware of a heightened vigilance for inadequate supervision of, and unlicensed practice by, employees of licensees of these boards.

The Medical Board of California issued a warning in its newsletter against the use of unlicensed international medical school graduates in medical practices to perform certain treatments. This follows a line of advisories cautioning physicians to limit or refrain from using aides, assistants or nurses to perform certain cosmetic procedures. The difficulty with this area of regulatory compliance is that as new technology emerges and procedures develop, the rules of what certain subordinate licensed personnel or unlicensed personnel can do is often a matter of expert opinion and internal board policy. A good rule of thumb is that the supervising practitioner and the licensed subordinate should both check with their licensing agencies to insure a specific procedure falls within the scope of their respective licenses. A health care professional using any unlicensed personnel for participation in patient treatment, regardless of their skill level, may be doing so at great risk. Physicians have been cautioned to take special care to not enter into business with, or be employed by, unlicensed individuals who exercise some degree of control over patient treatment.

The Physical Therapy Board also has struggled with issues of unlicensed practice as well as improper role reversals between physical therapists and physical therapist assistants. The PT Board recently reversed its longstanding position that a corporation not owned by physical therapists could provide physical therapy services, provided that the corporation was not owned by physical therapist assistants who worked in the corporation as PTAs. The Physical Therapy Board now takes the position that physical therapists must incorporate, if at all, as professional corporations solely owned by physical therapists. The former rule was a reflection of the market reality that physical therapists often have worked in organizations owned by other health care professionals or business savvy physical therapy assistants. This rule reversal, unfortunately, leaves many unanswered questions about potential license discipline when professionals from different health care disciplines go into business together, a practice which, the new rules demonstrate, remains highly disfavored.

New Fingerprint Requirement for Renewing California Nurses

Fredrick Ray — Sun, 22 Aug 2010 14:16:37 -0800

Thousands of California nurses who were initially licensed before1990 are facing the additional renewal requirement of submitting to a Livescan fingerprint check. For some licensees with criminal convictions in their backgrounds, this check may lead to license discipline. There are steps a licensee can take to prepare for this requirement and what it may bring.

Prior to 1990, the California Board of Registered Nursing did not have its licensees submit to fingerprinting at the time of application. Indeed, the Board did not even ask about a licensee’s background. In 1990, the Board began asking for fingerprints, but still did not ask about an applicant’s background. Only after adverse publicity did the Board begin to ask for both fingerprints and background information from license applicants and for background information on renewals. The Board is now in the process of identifying and disciplining perhaps thousands of nurses with criminal records that were previously undetected.

Livescan fingerprinting has replaced fingerprint cards as a way for licensing agencies to conduct background checks. An applicant goes to a Livescan location, submits a Livescan request form, and places their fingers on a platen glass that scans their fingerprints. This information is transmitted to the California Department of Justice and the Federal Bureau of Investigation for California and nationwide criminal record checks. The information from the records check usually reaches the Board in about two weeks.

If you suspect that you may have an arrest or conviction on your criminal record, you can do your own Livescan and have the results sent to you. The California Department of Justice has a webpage with instructions for getting your California “rap” sheet through the Livescan process. The Federal Bureau of Investigation, or FBI, also will supply you with a reference copy of your federal “rap” sheet (which would encompass federal cases and out of state cases). The FBI has instructions on its website. However, the FBI will require you to send in old-fashioned fingerprints, taken usually at your local law enforcement agency.

It is particularly useful to find out exactly what will appear on your “rap” sheet if you are unclear whether a past law enforcement contact resulted in a conviction. You may also be unclear whether an out-of-state case (particularly a minor matter that may not have resulted in a conviction) is on your federal “rap” sheet, since some states have alternative methods of handling cases that do not result in conviction. Also, there is sometimes confusion over whether a matter that occurred near one’s 18^th birthday resulted in an adult conviction as opposed to a juvenile court finding. Finally, government agencies do make mistakes, and although rare, I have seen convictions erroneously placed on one’s “rap” sheet, most commonly when two relatives share the same or a similar name.

If you have a conviction that pre-dates your last renewal, you typically will not need to disclose it on your renewal, since the renewal question typically only asks for convictions since the last renewal. Therefore, if you know you have older convictions that will come to light from the Livescan, there are steps you can take in anticipation of possible discipline.

First, a key question is whether you will be disciplined. The nursing board has no statute of limitations, and there is no cutoff date before which convictions will be ignored. In all likelihood, in deciding whether to seek discipline, Board enforcement will balance several factors, including the severity of the conviction(s), the number of convictions, any pattern of behavior shown by the convictions, and the public protection implications of the convictions. Our firm can analyze your particular situation to provide an evaluation of how likely the agency may be to discipline.

My first advice to a licensee who anticipates license discipline is to make good use of one’s clean, clear and valid license. A single, stable and supportive employer, who would even stand by you when a discipline case is pending, can be critical for one’s license and career to survive license discipline. Registry work, home health care, and other itinerant or temporary work, is frowned on by the Board, and can be problematic in settlement, at hearing or during probation. Also, a history of temporary positions provides a less compelling case for past problem-free performance. If you think your employer will show you the door as soon as derogatory information hits the Board’s website, it may be time to look for a new employer.

Second, a clean record can be used to apply for licenses in other jurisdictions, as well as for certifications or other professional credentials. If you had intended to apply for a license in another state that may be unconcerned with a very old criminal conviction, but might be troubled by a fresh Board accusation, it may be time to move on that application. It is usually easier to hang onto a license in the face of license discipline from another state than to apply for a license with an already tarnished record.

Third, anticipating license discipline should trigger personal and financial planning for the possible storm ahead. Some licensees are fired as soon as an employer learns of a pending accusation, even if the license remains valid and unrestricted. There are costs in a license discipline, not only legal fees, but also the Board’s investigation and prosecution costs, which the Board can recoup at the imposition of discipline. I am not advocating turning one’s life upside down out of fear and speculation, but conservative financial and personal planning is usually a prudent step.

Fourth, and most importantly, if your criminal convictions speak to a problem that remains unaddressed, such as drug or alcohol addiction or mental health problems, start on your rehabilitation immediately. Seek out a program or counseling. Also, collect documentation of any personal improvement efforts you have made and show your life progress, including certificates of completion, achievement awards, thank you and recommendation letters, positive evaluations and reviews.

By replacing fear and ignorance with planning and information, you can survive and even take something positive away from a Board background check.

Disclosure of Criminal Actions by California Physicians

Fredrick Ray — Sun, 23 May 2010 00:33:28 -0800

California physicians must self-report criminal actions to the Medical Board of California. This mandatory reporting occurs independent of license renewal, although similar disclosure is also required on the license renewal form. Since license renewals ask for adverse information disclosure, basic compliance is relatively easy. [However, written explanations that usually must accompany a renewal or an application are best submitted only after review by a license law attorney.] Complying with mandatory reporting laws benefits the licensee by acting in a required but also responsible fashion, and also avoids a possible sanction, such as a citation and fine, for failure to report an adverse action.

All California physicians must disclose all criminal convictions and the bringing of felony charges against them, by criminal complaint or indictment, within 30 days of the occurrence. The mechanism for reporting criminal actions is the 802 report, available online from the Medical Board of California’s website. The form primarily asks for information that enables Board enforcement personnel to conduct an independent investigation of the criminal action. Failure to report can be grounds for discipline against a physician, although, typically, formal discipline is only sought for failure to disclose in conjunction with other grounds for discipline. Failure to report in and of itself will typically only be cited for a fine of $1,000.00 or less. Although I have never seen it done, failure to submit a mandatory criminal action report can constitute a crime punishable by a fine up to $5,000.

I strongly urge my physician clients to submit their 802 report, accurately completed and in a timely manner. If the form is late, I recommend sending it anyway. There are several benefits to submitting the 802 report. First, under a related reporting law, the criminal court clerk must also report physician criminal actions to the Medical Board. Therefore, it is better to be proactive and candid with the Medical Board if the Board will independently discover the criminal action anyway. Second, the positive impression made by proactive disclosure can mitigate or even prevent discipline (in a close case) against the licensee. Third, providing information to the Medical Board ensures that the information will be accurate.

Physicians are typically fearful of making a report of a criminal action to the Board. I completely understand and sympathize with this fear. This fear, paired with the hope that the Board will never discover the criminal action, is the typical reason a physician would choose to not report a criminal action. However, it is much more likely that the Board will eventually discover the criminal action. The non-reporting may very well be viewed by Board enforcement as concealment or dishonesty. This violates the trust between the licensee and agency. If there is a close question as to whether the criminal action should trigger an accusation, Board enforcement staff, unhappy with the non-disclosure, may lean towards formal discipline.

Finally, I would like to say a word about Board disclosure advice from criminal defense attorneys. A licensee charged with or convicted of a crime may be advised by their criminal defense attorney to make no statements to anyone including their licensing agency. However, a professional license is not a right, it is a privilege, and licensees do not enjoy the same rights vis-à-vis their licenses as citizens do concerning their liberty and property. A felony charge, even if frivolous, must be disclosed. Any misdemeanor conviction, even if it is to be expunged, must be disclosed. If one deviates from compliance with these rules upon the advice of an attorney, I would get that advice in writing at a minimum, to cite it in the future as a defense, if necessary.

An appropriate demeanor, including honesty and taking appropriate responsibility, can be crucial to achieving a favorable result with the Medical Board. Prompt compliance with the Board’s disclosure rules is an important first step.

The Rule of Diminishing Returns in License Law

Fredrick Ray — Wed, 19 May 2010 21:38:32 -0800

Years of experience have taught me that there is a rule of diminishing returns in licensing law. In general, the earlier in the development of a problem that I intervene, the more effective I can be in limiting damage to a license or license application. Two examples of this principle transpired in the last 24 hours at the office, when two different criminal defense attorneys called me for advice on how to be resolve criminal cases for their professional clients to minimize license discipline. A simple 15 minute conversation today can yield a greater benefit than 150 hours of work on an appeal years in the future.

This particular issue cuts to the heart of licensing law. Clients contact our firm seeking solutions to their licensing problems. Typically, the further along their case is, the more difficult the task of containing the damage to their license and reputation can be. For this reason, a client who has been previously denied a license (after going through the entire process from application to decision after hearing) may hire us even before their very first communication with the licensing agency, to insure that every step is taken to maximize success.

The first critical point in a licensing matter is that first communication with the licensing agency - either a mandated disclosure or response to an agency inquiry. If that opportunity to say and do the right things is missed, the next critical point is at receipt of an accusation or application denial. At that point, there still is typically ample time to take rehabilitative actions and identify mitigating evidence that can change the result of an administrative hearing. As the administrative hearing approaches, though, for many licensees or license applicants, opportunities begin to be lost, then this process accelerates.

Once the administrative hearing is concluded, the die begins to be cast. Unfortunately, it is often only after the licensee or applicant walks out of their hearing, or worse yet receives an adverse result in the mail, that the hardest lessons of diminishing returns are revealed.

Licensing agencies and courts are generally quite deferential to the hearing decision of an administrative law judge. Once an administrative law judge has decided the case, and the agency has adopted that decision,the remaining legal options generally are ask for reconsideration, petition the Superior Court for a writ, or wait reinstatement after rehabilitation. However, in administrative law, as in all law and litigation, second chances can be hard to come by. As a general principle, the integrity of our state license discipline apparatus depends upon agencies typically making decisions that conclude cases and withstand challenges. This begs the question of what, if anything, can be done in the latter stages of administrative litigation.

As a general rule, post-decision case reversals depend upon either new, "game changing" evidence, or an identified legal mistake made by the agency or judge. Most potential appeals that come into the office would be argued as "abuse of discretion," which can be described as patent unfairness in the imposition of and degree of discipline. Unfortunately, true abuse of discretion occurs very rarely. Courts are loathe to second-guess agencies and administrative judges.

The lesson for licensees and license applicants is that pro-active, positive action at the earliest possible stage of the licensing matter can make a big difference in the outcome of an administrative hearing. It is crucial that the licensee or license applicant communicates information and demonstrates a demeanor that is honest, remorseful for past mistakes, and humbly and energetically seeks to right the wrongs of the past. To be certain, some serious license discipline or application denial cases must be litigated to conclusion or through appeal. Negative assumptions can cause an attorney to miss issues for reversal, and thus should be avoided. However, clients must recognize early on the depth of their dilemma, and after receiving an adverse decision, must then think carefully about the risk benefit analysis involved in pursuing a license appeal.

No Statute of Limitations Means the Nursing Board's "Wayback Machine" Has No Limit

Fredrick Ray — Mon, 25 Jan 2010 22:57:45 -0800

As a child I used to watch the Rocky and Bullwinkle Show. The brilliant talking dog, Mr. Peabody, and his pet boy Sherman would travel back in time to an important historical event and interact with historical figures. They would use the WABAC machine, pronounced "wayback." Mr. Peabody would use the trip to teach Sherman (and the audience) a little about the historical event. Remarkably, the historical figures spoke perfect English and thought nothing of a talking dog. Time travel is impossible, of course, for we are all grounded in the present. Except, possibly, for the recently criticized California Board of Registered Nursing, which seems to be increasingly backward-looking.

The California Board of Registered Nursing, coming under intense criticism recently, has beefed up the scrutiny of its licensees, including requiring thousands of nurses to answer certain background questions or submit to fingerprinting for the first time. It is also, apparently, reviewing cases that it earlier had decided not to pursue. Using its own version of the "wayback machine," the Board appears to be revisiting some reports of unprofessional conduct or negligence of its licensees. The Board appears to be taking a second look at older cases involving alleged negligence or misconduct that it may have earlier closed or set aside without taking action. Importantly, the Board of Registered Nursing has no statute of limitations for bringing allegations. Negligence allegations from five to ten years ago can be used to seek discipline against a licensee, even if the matter was previously closed, and very old misdemeanor criminal records can be raised against nurses who have unblemished work records despite their youthful indiscretions.

The lack of a statute of limitations creates a nightmare for nurses and also, in my view, a dilemma for the Board. Licensees may be asked to defend against allegations arising from events that have faded from memory or are based upon old incomplete records. Allegations are sometimes so old that there is a legitimate question as to how relevant they may be concerning nurses in 2010 whose performance in recent years has been exemplary. Without having a door close on old discipline allegations, nurses are tormented by issues that remain unresolved and can easily resurface despite the passage of years. However, if the Board, despite not being restricted by a statute of limitations, ignores older malpractice cases or overlooked criminal records, it can open itself up to criticism in the press of being a weak and ineffective regulator.

The Board of Registered Nursing is charged with protecting the public from incompetent, impaired and dishonest nurses. The Board's mandate is not to punish for misconduct, because perceived misconduct is only important to the extent that such conduct raises legitimate concerns about the safety of permitting a nurse to practice. A statute of limitations not only protects licensees from having to defend against unreasonably stale allegations when important evidence may have been lost, destroyed or forgotten. A statute of limitations also creates a temporal "frame" (like a window frame) stretching from present to recent past into which some current, relevant matters fall, and from which older, less relevant matters are excluded.

Unflattering press articles over the last year have raised the legitimate concern that the Board of Registered Nursing has historically taken too long to investigate and litigate nurse discipline cases. Such delays would have been legally prevented by a statute of limitations due to palpable consequences for delays. However, now that the Board has aggressively moved to cut its backlog of cases, it is no longer in danger of losing disciplinary cases due to unreasonable delay. A statute of limitations to protect licensees is needed now, more than ever.

Separation of Powers in Licensing Law: Are My Prosecutor and Judge the Same Person?

Fredrick Ray — Sun, 17 Jan 2010 00:36:29 -0800

An area most often misunderstood in the regulation of the professions is the separation of powers. To put it simply, the difference between the people or person who seeks to discipline a licensee, and the people or person who decides whether or not to discipline the licensee. We usually refer to these "people" collectively as "the Board" or "the Department." Sometimes we call some of them "the Attorney General." These non-specific labels are misleading and mask the true nature of the system.

In the criminal justice system, when we violate the law we are arrested by a police officer or investigated by a detective. The police officer or detective puts together the evidence and walks it into the District Attorney's office. The D.A. decides whether to file the case, and if he does, he takes it to the court to file the case and (sometimes) to a judge to get a warrant. The judge later acts as referee of the case (between the accused and the prosecutor). If the case is not resolved by agreement of the prosecutor and defendant, then a jury decides guilt or innocence, and the judge imposes a sentence. Therefore, the independent district attorney, elected judge and selected jury all act as checks upon the power of the police, to ensure the fair and lawful handling of cases.

In licensing law, the licensing agency typically is comprised of two distinct "entities." On the one hand, there is the administrative staff, which includes enforcement staff, that acts like the police. The administrative staff may have its own lawyers, who work for enforcement staff, or may contract with the Attorney General's office for legal representation. In California, boards and bureaus typically hire the Attorney General's office, while Departments (such as real estate or insurance) have their own in-house lawyers. Lawyers who represent licensing agencies typically have less independence than a criminal prosecutor. The criminal prosecutor can freely reject cases, but the licensing agency attorney is not usually free to make that decision, but instead must persuade their client (like in the private sector) that a case lacks merit.

The second entity that makes up the licensing agency is the decision-maker, which is a board or an agency head. The decision-maker should have no foreknowledge of a disciplinary matter until it is brought to them for a decision, just as an impartial jury should have no foreknowledge of a criminal matter. Due to the volume of cases and complexity of legal issues, the decision-maker may have their own in-house adviser attorneys to help analyze cases or, in the case of a sole decision maker, lieutenants (also usually high ranking lawyers) who can aid in making decisions. In most cases, decision-makers are too busy to hear cases themselves, so they delegate the job of hearing cases to administrative law judges, who make proposed decisions. The administrative law judges must prepare detailed proposed decisions to give the decision-makers sufficient information to comfortably adopt most decisions.

Therefore, the licensing agency has a sort of dual personality. For example, the Medical Board has within it administrative staff including enforcement staff. The enforcement apparatus of the Medical Board of California has considerable resources. With a large staff in Sacramento and twelve district offices, enforcement staff includes analysts and investigators in the field who identify and build cases against physicians. This enforcement work is done with no direct supervision by or knowledge of the Medical Board itself, a 15 member group that meets about 4-6 times per year to make decisions, including decisions on disciplinary matters. Board enforcement staff hires and pays the Department of Justice to provide it with Deputy Attorney Generals to represent it in legal matters. Only once a case has been litigated until a proposed decision is reached does that case then come before the Medical Board to make a final decision. The formal structure used by the Medical Board is based upon a separation of powers: enforcement staff is a type of executive (with an executive director above all administrative staff) and the decision-making Board is a form of judiciary, like a judge or jury.

This structure often leads licensees and their attorneys to conclude that administrative courts are "kangaroo courts." After all, the "complainant" who brings a case, which may be the executive director of an agency or the head of enforcement, is typically the trusted and well-liked employee of the agency head or board that ultimately decides a case. Although an administrative law judge is impartial, his or her proposed decision can be voided by the agency head or board and replaced with a decision more to the agency head's or board's liking. Although there is some truth in these observations, the reality is more complex.

Due to the high volume of cases, administrative agency heads or boards must, as a practical matter, agree with the decisions of administrative law judges almost all of the time, because the reweighing of evidence required to render a new and different decision taxes the limited resources of the decision-maker. Also, the Superior Court and Appellate Court are an important check on licensing agencies to ensure they act in a reasonable, deliberate and lawful fashion. But perhaps most importantly, licensing agencies must carefully balance public protection with the interests of the licensees the agencies regulate. Although public protection is the stated mission of licensing agencies, an overzealous regulator can cripple the industry it regulates or create unintended results, such as driving significant numbers of individuals to work without licenses.

What I have learned in handling hundreds of licensing matters is that the administrative arena has many traps for unwitting attorneys. Lawyers accustomed to the impartiality and significant due process protections of Superior Court often fail to understand who the decision makers are and how decisions are made in license discipline litigation. Administrative law requires a "Goldilocks" approach. If the lawyer is too aggressive or enjoys early success based upon exploiting legal technicalities or hiding the ball, the administrative process has a way of catching up to and extinguishing such successes through the ultimate power of the agency head or board. If a lawyer is too passive, concluding that the whole system is rigged and there is no way to win, important opportunities to influence the decision-makers will be lost and the lawyer's fatalism will breed failure. Attorneys must be thoughtful, prepared, persuasive and proactive, but also honest, forthright and determined, to achieve the best results in license cases

Understanding Your Rights as a Licensee Facing Discipline

Fredrick Ray — Thu, 19 Nov 2009 21:53:42 -0800

New clients sometimes call the firm to ask " what are my rights?" in a license discipline or license denial case. The answer to this question goes to the heart of the complexities of representing clients in professional licensing cases.

When I see that a client is struggling with the concept of their constitutional protections, I usually ask them to envision a continuum (like a time line), with criminal cases at one end and at the other end licensing cases, and in the middle civil cases for money damages. The criminal end symbolizes the greatest constitutional protections, the licensing or administrative end represents the fewest protections. I then talk about three major case types in exemplifying the rights involved in each.

Starting with the greatest protections, a criminal defendant enjoys the strongest rights because their liberty is at stake. A criminal defendant has the absolute right of presumed innocence, and can only be found guilty beyond a reasonable doubt by a unanimous vote of twelve unbiased peers. The criminal defendant can remain silent throughout the trial. The defendant is guaranteed an effective defense, which for someone indigent can mean a free lawyer and even a free investigator. These are some of the rights involved.

In a civil case, typically a defendant must be found liable by a preponderance of the evidence (basically, more than 50 percent). A defendant is entitled to a jury of his peers, but a unanimous decision is not required. Numerous procedures, including discovery (exchanging information through asking for documents and answers to questions, and taking depositions) and summary judgment motions (to get a case that lacks merit dismissed) are available to the defendant.

In a licensing case, there is no jury. The neutral judge who hears the case only makes a proposed decision, which then goes to the licensing agency for adoption, non-adoption or modification. In other words, the licensing agency board or agency head (without a board) makes the final decision. The licensee has no right to remain silent, meaning they must testify at their trial. There is nothing to prevent an agency from bringing even a meritless case against the licensee and to press the matter to hearing. And, in most cases, a licensee can be made to pay reimbursement to the licensing agency for its attorneys fees and investigation costs.

The rights, or lack of rights, of a licensee in a disciplinary hearing, is often shocking to hear the first time. However, there are reasons why licensees have fewer rights. First, a professional license is a privilege, not a right. Second, the protection of the public against incompetent, impaired or dishonest licensees is paramount for a licensing agency. And third, a licensee issued by a licensing agency is neither a fundamental freedom nor the personal property of the licensee. It is a grant of permission predicated upon education, experience, exams, payment of fees, and meeting qualifications.

The striking difference in rights between criminal, civil and licensing matters may lead one to ask, can a license discipline case be fought and won? The answer is yes. Despite the relatively few rights that a licensee has, a skilled attorney can contain the damage from a license discipline action and even win cases. The key is understanding that the administrative discipline process is a system which is somewhat predictable. A licensing attorney must usually work with, and sometimes within the system, to avoid loss of license or severe discipline. Finally, the client must be willing to take steps, sometimes extraordinary steps, to reassure their licensing agency that they are safe and competent to work in their profession.

Should You Cooperate with the Board Investigator?

Fredrick Ray — Fri, 13 Nov 2009 23:56:36 -0800

One of our most frequent issues at the firm is clients calling who have become the subject of a California licensing board investigation. Investigations are handled primarily two ways, either by an enforcement analyst or technician inside a licensing agency's offices, or in the field by outside investigators who work for either the board itself (such as the Medical and Dental Boards) or the Department of Consumer Affairs (all other boards).

If an investigation can be completed from the desk of a board employee in Sacramento, the questioning of a licensee usually consists of a letter asking for a written response. Such investigations can broadly be placed into two categories: requests for documents and information concerning a criminal conviction or discipline against another license held by the licensee, or, minor investigations which might be closed with the receipt of a satisfactory written response. A licensee should have all such written communications reviewed by an attorney. A response concerning a consumer complaint should be consistent with the complete case file. A reply to a board concerning a criminal conviction or other license discipline must be consistent with the available records concerning the incident and penalty. Inconsistent statements may be interpreted as dishonesty. Also, be cautious, there is always the possibility that a rather benign inquiry from a licensing agency may be a prelude to an in-depth investigation.

A much more complicated question is the extent to which a licensee should cooperate with an investigator in the field (such as a Medical Board Investigator or a Department of Consumer Affairs Investigator) who is investigating allegations of wrongdoing against that licensee. We generally follow these principles when clients face investigation: First, do not sign a release for your personal records, particularly medical records, except upon the advice of an attorney. Preservation of confidentiality is paramount. Would you freely seek medical or psychiatric treatment if you knew that a stranger, possibly seeking to damage your livelihood, would one day pour through your personal records? The decision to sign a release must be very carefully made. Second, never submit to drug testing at an interview. The taking of one's body fluids is a similar invasion of privacy, and body fluids can be tested in a variety of ways. Third, all communications with an investigator must be through a lawyer or with a lawyer present. Only the presence of a lawyer at an interview can ensure that the interview is accurately reported on later, the investigator will not act improperly, and can ensure that the licensee can decline to answer questions or to leave when he or she wants without pressure or intimidation. Fourth, we counsel against signed statements - investigators sometimes prepare statements for a quick signature by the licensee, which may contain in them very harmful admissions.

Having cautioned clients about the many possible traps in a board field investigation, we still counsel that the client should be cooperative, Examining the difference between a police investigation and a licensing agency investigation is instructive to explain why. The difference between an investigation by a board investigator concerning possible board discipline and a police investigator in a criminal investigation is that a state licensing agency has much broader powers to punish, using a much lower standard of proof, than the police investigator can through the D.A. and the courts. Therefore, while a citizen who exercises his rights against self incrimination may shield himself from prosecution successfully, a licensee will rarely if ever deter a licensing agency from seeking and imposing discipline through non-cooperation if the licensing agency believes its licensee is incompetent, impaired or has committed serious misconduct. Licensing agency investigations arise from concerns for public safety. Therefore, the licensee should look at the investigation as an opportunity to reassure the licensing agency that the licensee is competent and safe to practice. Finally, above all, be honest. Betraying the trust of the licensing agency can be seen as worse than the conduct that triggered the investigation in the first place.

The Domino Effect of License Discipline

Fredrick Ray — Sat, 31 Oct 2009 00:52:49 -0800

A phenomenon we observe in our law firm every day is the Domino Effect of license discipline. Simply put, discipline against one's license, a license denial, or a criminal conviction, can in turn result in discipline against out of state licenses, other agency licenses, and affect employment, memberships, clearances and registrations. The clearest illustration of this effect is concerning a physician.

Let's say that a physician does his residency in the state of Florida, where he gets his license, then moves back to California, where he applies for a license. However, after he got the Florida license, but before the California application, he was convicted of drug possession. As a result of the conviction, California denies his license application. That license denial becomes a public record. Florida becomes aware of the license denial in California, leading Florida to discovery of the drug conviction, and then Florida takes away the physician's license as well. The physician appeals the California license denial, but in the process, that appeal opens a case that results in a press release or email blast concerning the physician. If the physician wins the appeal but obtains, for example, a probationary license, his license record will show, indefinitely, the cloud over his license by showing that the license was granted on probation and even may offer a link to the disciplinary documents. A license denial followed by probation will then likely have to be disclosed whenever the physician applies for other state licenses, for acceptance to a health insurance plan, for membership in referral services, for hospital privileges, and the list goes on.

Predicting the Domino Effect of license discipline can be less like predicting the fall of dominoes and more like predicting chess moves. It is very difficult to predict how some entities - such as other states' licensing boards or insurance companies - will react to negative licensing information. The one overriding lesson of the Domino Effect is that a clean disciplinary record is a highly valuable possession. One should, as a general rule, secure as many desired licenses, memberships or privileges before one is foreseeably tainted by a criminal conviction, license discipline or another reportable event. In most cases, an indvidual enjoys due process rights with an existing license that may not be present when a license application has been turned down.

The worst part of the Domino Effect is the pernicioius manner in which negative public records available over the internet can damage one's career and reputation. Most licensing agencies will make derogatory information available on a license record, in a website listing of disciplinary actions and even in an agency newsletter. Thusfar licensing agencies see it as their duty to publicize one's license discipline on the websites and in their publications. It remains to be seen if the law will curb these practices by requiring that old or irrelevant disciplinary cases be stricken from a licensing agency's website.