Here is a recent case which I will use as a case study to discuss when do arrests and charges need to be reported. Although this case uses the Medical Board, the same analysis applies to other licensing agencies even though each agency's rules are slightly different.
On December 30, 2010, the Ventura County District Attorney's Office filed charges against Dr. Barry Lefkovitch of Thousand Oaks, California. Dr. Lefkovitch has been charged with two felony violations of Penal Code Section 289(d) (4), forcible sexual penetration by fraud, perpetrated upon a patient of the defendant and one count of sexual battery.
On December 30, 2010, the Ventura County District Attorney's Office filed charges against Dr. Barry Lefkovitch of Thousand Oaks, California. Dr. Lefkovitch has been charged with two felony violations of Penal Code Section 289(d) (4), forcible sexual penetration by fraud, perpetrated upon a patient of the defendant and one count of sexual battery.
The allegations in the felony complaint are that Dr. Lefkovitch assaulted one of his patients during a routine visit at his medical practice on Dec. 13, 2010. Each charge carries a maximum possible prison term of eight years. The case was investigated by the Ventura County Sheriff's Department.
Dr. Lefkovitch appeared for arraignment on these charges on December 30, at which time the arraignment was continued to February 1, 2011. Dr. Lefkovitch was released on his previously posted $250,000 bail bond with the condition that he not treat female patients without a third person, a medical/health professional, present. This was an interesting term of bail and is much better than the Medical Board seeking to close his practice while charges are pending.
This case is unusual in that the Medical Board of California is working with the investigating agency and participated in the execution of search warrants at Dr. Lefkovitch's home and medical offices.
The charge in Penal Code Section 289(d)(4) requires that the government prove beyond a reasonable doubt that the patient "was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose."
Investigators have publicized the doctor's arrest and filing of criminal charges claiming they "are concerned there may be other patients who have been victims of similar acts by Dr. Lefkovitch and encourage anyone with information" to contact the assigned detective. In such cases, one is always concerned that false claims could be reported by individuals seeking attention. However, law enforcement could use other acts by the doctor to help prove its case even if there were no charges filed.
Using this doctor's case as a case study, when does he have to report to the Board that he has been charged with an offense? Assuming that the Medical Board is not involved, he would not have to report the arrest at this point. Nor would he need to report the filing of a state criminal complaint. He would, however, have to report the charge after a preliminary hearing when he has been held to answer and after a document known as an "Information" is filed in his criminal case. In the majority of state cases, there are no "indictments." However, in federal cases, "indictments" are the norm. Thus, if he had been indicted on a federal felony charge, he would have had to report it within 30 days.
When Do You Have To Inform The Medical Board That You Have Been Arrested Or Charged With A Crime? In this doctor's case, the Medical Board was aware of the investigation from its inception and thus a file has already been opened. In typical criminal cases, the Medical Board is not aware of the filing of criminal charges whether a misdemeanor or felony. When do you need to self-report and how do you do it? What are your options assuming the Board is not aware of your case?
There is a statute that governs the reporting of criminal charges (California Business & Profession Code Section 802.1) to the Medical Board in California. The Medical Board also has a form on which you self report where required. (Click on this link to go to the form.) Have your attorney review the form so you do not make any mistakes or unintentional misrepresentations.
1) If you have been arrested for a misdemeanor, you do not need to report the arrest. However, this means that your main goal should be to get the misdemeanor dismissed so there is no conviction. Physicians and other licensed professionals need to be aware that misdemeanor convictions will result in discipline in today's world. Five or ten years ago it may have been only a public reprimand but the world has changed in this regard. The licensing boards and agencies are under greater public scrutiny and are more aggressive in pursuing discipline even when it is not a "patient or client related" offense. The catch all "moral turpitude" ground is used to justify discipline against the professional.
Case Study On Felony Shoplifting Case Resolved Prior To Preliminary Hearing For example, I recently represented a physician for shoplifting in a state case. Since the loss was over $400 (and she had a prior arrest for shoplifting) it was filed as a felony. Although she was offered a plea involving no jail time and a reduction to a misdemeanor, we aggressively represented the case and negotiated an agreement before any preliminary hearing (which would have triggered the reporting requirement). The plea involved community service, attending a program on shoplifting, payment of fines and the charge was reduced to a traffic infraction. Thus, there were no reporting requirements.
If she had been convicted of even a misdemeanor, she would have been subject to probation by the Board. The cost of her criminal defense was far less than the money she would have lost had she been placed on probation by the Medical Board since she would have lost many of her insurance contracts and the probation would have been reported on the Medical Board website. This is why we represent the physician in both the criminal and administrative case - so there is unified strategy (and it is more cost efficient for the client).
2) If you have been convicted of a misdemeanor, you are required to report the conviction within 30 days after the conviction.
3) If you are arrested on a felony charge in state court, you do not need to report the charge until after a preliminary hearing has been held (or you agree to waive preliminary hearing) and you are held to answer on an "Information."
4) If you are arrested on a felony charge in federal court after being Indicted, you are required to report the charge within 30 days after the Indictment is filed. If you have agreed to a plea agreement in federal court that involves an "Information" you are required to report within 30 days after the filing of that Information.
Case Study - Felony Charge in State Court: Given the reporting requirements for felony convictions, we seek to be creative while at the same time minimizing the risk to our client's license. For example, in a couple of recent Medi-Cal fraud case where there was billing for services not provided or billing for non-FDA approved devices, we were able to have corporations (rather than the individual physician) plea guilty to the offense before the filing of an Information to avoid physician conviction reporting requirements.
4) If you are convicted on a felony charge in state or federal court, you are required to report the conviction within 30 days after the conviction.
5) If you have not followed the reporting requirements, you will need to report when you renew your license. Remember that even if your conviction has been expunged, you will need to answer "yes" that you have been convicted of a misdemeanor or felony.
I have seen numerous cases where licensees answered "no" to the conviction question for misdemeanors and the "no" answer caused more problems than the "yes" answer would have done in the first place. We work with physicians and licensed professionals to help them answer "yes" and submit a package in the beginning to minimize the damage that can result from a conviction. I cannot repeat enough that these cases need to be handled properly from the beginning. Most of the hard cases we have are where professionals tried to handle it themselves and made a bigger mess of the matter before they hired counsel. Often a lot of damage has been done by that point. Even a two hour consultation can prevent a professional from making a mistake that will ultimately cost them tens of thousands of dollars in lost income.
6) Are there times when physicians do not self-report? What happens then? We have had cases where physicians (or other professionals) know they are going to lose their license due to the conviction and are seeking to work as long as they can before they lose the license. They seek to delay out the process and in those cases, we respect their decisions but advise them of the risks and consequences. We also seek to help them with the damage control since there are many times when even a felony conviction will result in probation, some suspension time but they will be able to keep their license in the long run. Once reporting or discovery of the conviction occurs, we handle the reporting and Board defense. We respect our client's decisions but will push them if we believe a mistake is going to be made that will hurt them in the long run.
Big Picture Analysis - Seek Professional Advice & Remember That When You Must Disclose, Honesty Is The Hallmark of Professionalism: One reason it is often a good idea to at least obtain a consultation with an attorney is that you may not be thinking clearly and you need to see the big picture and what is going to occur in your case over the next few years. Short-term or rash actions can harm you in the future. If you have been convicted of an offense, it is a matter of time before the Board is aware of your conviction and you want to show that you are an honest professional. Dishonesty regarding your offense can harm you and be used as evidence that you are not rehabilitated.
One of the reasons you must be careful is that all the professions (whether physicians, nurses, attorneys, accountants) require a level of honesty that others rely upon. Thus, from the Board's perspective, if you are perceived as dishonest or not forthcoming it makes the Board believe you cannot be trusted and cannot be rehabilitated. Now does this mean that you have to report when not required? No, but if and when you do report, you must be hypervigilent. The old saw that "good beginnings make good endings" is very true here.
Written Explanations Should Be Reviewed By An Experienced Attorney: In addition, you will be asked to provide a written explanation or be interviewed at some point about the offense and you need an objective third party to assist you so that you position yourself for the imposition of the least amount of discipline possible. Do not send your written explanation without an experienced attorney reviewing your explanation and submission.
This is an important early step and mistakes made here can harm your Board case. So often I see that professionals get defensive, are worried about the impact of the conviction and write in a manner that will hurt them. By rewriting their letters and submitting a lot of evidence regarding rehabilitation at the same time (letters of support and proof of rehabilitation) it can make a huge difference on how the case is handled from the beginning.
For Non-Physicians: If you are a licensed professional other than a physician, you need to research the rules applicable to your Board or Bureau since each agency's rules are somewhat different. The one consistency is that do not misrepresent any fact in your reporting since that can be a separate ground for discipline. However, the same principles and thinking apply to everyone here. Some boards do not have a form for reporting while others do. Contact an attorney for advice or at a minimum research the website for your applicable licensing agency or call the agency to find out the applicable rules.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
The charge in Penal Code Section 289(d)(4) requires that the government prove beyond a reasonable doubt that the patient "was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose."
Investigators have publicized the doctor's arrest and filing of criminal charges claiming they "are concerned there may be other patients who have been victims of similar acts by Dr. Lefkovitch and encourage anyone with information" to contact the assigned detective. In such cases, one is always concerned that false claims could be reported by individuals seeking attention. However, law enforcement could use other acts by the doctor to help prove its case even if there were no charges filed.
Using this doctor's case as a case study, when does he have to report to the Board that he has been charged with an offense? Assuming that the Medical Board is not involved, he would not have to report the arrest at this point. Nor would he need to report the filing of a state criminal complaint. He would, however, have to report the charge after a preliminary hearing when he has been held to answer and after a document known as an "Information" is filed in his criminal case. In the majority of state cases, there are no "indictments." However, in federal cases, "indictments" are the norm. Thus, if he had been indicted on a federal felony charge, he would have had to report it within 30 days.
When Do You Have To Inform The Medical Board That You Have Been Arrested Or Charged With A Crime? In this doctor's case, the Medical Board was aware of the investigation from its inception and thus a file has already been opened. In typical criminal cases, the Medical Board is not aware of the filing of criminal charges whether a misdemeanor or felony. When do you need to self-report and how do you do it? What are your options assuming the Board is not aware of your case?
There is a statute that governs the reporting of criminal charges (California Business & Profession Code Section 802.1) to the Medical Board in California. The Medical Board also has a form on which you self report where required. (Click on this link to go to the form.) Have your attorney review the form so you do not make any mistakes or unintentional misrepresentations.
1) If you have been arrested for a misdemeanor, you do not need to report the arrest. However, this means that your main goal should be to get the misdemeanor dismissed so there is no conviction. Physicians and other licensed professionals need to be aware that misdemeanor convictions will result in discipline in today's world. Five or ten years ago it may have been only a public reprimand but the world has changed in this regard. The licensing boards and agencies are under greater public scrutiny and are more aggressive in pursuing discipline even when it is not a "patient or client related" offense. The catch all "moral turpitude" ground is used to justify discipline against the professional.
Case Study On Felony Shoplifting Case Resolved Prior To Preliminary Hearing For example, I recently represented a physician for shoplifting in a state case. Since the loss was over $400 (and she had a prior arrest for shoplifting) it was filed as a felony. Although she was offered a plea involving no jail time and a reduction to a misdemeanor, we aggressively represented the case and negotiated an agreement before any preliminary hearing (which would have triggered the reporting requirement). The plea involved community service, attending a program on shoplifting, payment of fines and the charge was reduced to a traffic infraction. Thus, there were no reporting requirements.
If she had been convicted of even a misdemeanor, she would have been subject to probation by the Board. The cost of her criminal defense was far less than the money she would have lost had she been placed on probation by the Medical Board since she would have lost many of her insurance contracts and the probation would have been reported on the Medical Board website. This is why we represent the physician in both the criminal and administrative case - so there is unified strategy (and it is more cost efficient for the client).
2) If you have been convicted of a misdemeanor, you are required to report the conviction within 30 days after the conviction.
3) If you are arrested on a felony charge in state court, you do not need to report the charge until after a preliminary hearing has been held (or you agree to waive preliminary hearing) and you are held to answer on an "Information."
4) If you are arrested on a felony charge in federal court after being Indicted, you are required to report the charge within 30 days after the Indictment is filed. If you have agreed to a plea agreement in federal court that involves an "Information" you are required to report within 30 days after the filing of that Information.
Case Study - Felony Charge in State Court: Given the reporting requirements for felony convictions, we seek to be creative while at the same time minimizing the risk to our client's license. For example, in a couple of recent Medi-Cal fraud case where there was billing for services not provided or billing for non-FDA approved devices, we were able to have corporations (rather than the individual physician) plea guilty to the offense before the filing of an Information to avoid physician conviction reporting requirements.
4) If you are convicted on a felony charge in state or federal court, you are required to report the conviction within 30 days after the conviction.
5) If you have not followed the reporting requirements, you will need to report when you renew your license. Remember that even if your conviction has been expunged, you will need to answer "yes" that you have been convicted of a misdemeanor or felony.
I have seen numerous cases where licensees answered "no" to the conviction question for misdemeanors and the "no" answer caused more problems than the "yes" answer would have done in the first place. We work with physicians and licensed professionals to help them answer "yes" and submit a package in the beginning to minimize the damage that can result from a conviction. I cannot repeat enough that these cases need to be handled properly from the beginning. Most of the hard cases we have are where professionals tried to handle it themselves and made a bigger mess of the matter before they hired counsel. Often a lot of damage has been done by that point. Even a two hour consultation can prevent a professional from making a mistake that will ultimately cost them tens of thousands of dollars in lost income.
6) Are there times when physicians do not self-report? What happens then? We have had cases where physicians (or other professionals) know they are going to lose their license due to the conviction and are seeking to work as long as they can before they lose the license. They seek to delay out the process and in those cases, we respect their decisions but advise them of the risks and consequences. We also seek to help them with the damage control since there are many times when even a felony conviction will result in probation, some suspension time but they will be able to keep their license in the long run. Once reporting or discovery of the conviction occurs, we handle the reporting and Board defense. We respect our client's decisions but will push them if we believe a mistake is going to be made that will hurt them in the long run.
Big Picture Analysis - Seek Professional Advice & Remember That When You Must Disclose, Honesty Is The Hallmark of Professionalism: One reason it is often a good idea to at least obtain a consultation with an attorney is that you may not be thinking clearly and you need to see the big picture and what is going to occur in your case over the next few years. Short-term or rash actions can harm you in the future. If you have been convicted of an offense, it is a matter of time before the Board is aware of your conviction and you want to show that you are an honest professional. Dishonesty regarding your offense can harm you and be used as evidence that you are not rehabilitated.
One of the reasons you must be careful is that all the professions (whether physicians, nurses, attorneys, accountants) require a level of honesty that others rely upon. Thus, from the Board's perspective, if you are perceived as dishonest or not forthcoming it makes the Board believe you cannot be trusted and cannot be rehabilitated. Now does this mean that you have to report when not required? No, but if and when you do report, you must be hypervigilent. The old saw that "good beginnings make good endings" is very true here.
Written Explanations Should Be Reviewed By An Experienced Attorney: In addition, you will be asked to provide a written explanation or be interviewed at some point about the offense and you need an objective third party to assist you so that you position yourself for the imposition of the least amount of discipline possible. Do not send your written explanation without an experienced attorney reviewing your explanation and submission.
This is an important early step and mistakes made here can harm your Board case. So often I see that professionals get defensive, are worried about the impact of the conviction and write in a manner that will hurt them. By rewriting their letters and submitting a lot of evidence regarding rehabilitation at the same time (letters of support and proof of rehabilitation) it can make a huge difference on how the case is handled from the beginning.
For Non-Physicians: If you are a licensed professional other than a physician, you need to research the rules applicable to your Board or Bureau since each agency's rules are somewhat different. The one consistency is that do not misrepresent any fact in your reporting since that can be a separate ground for discipline. However, the same principles and thinking apply to everyone here. Some boards do not have a form for reporting while others do. Contact an attorney for advice or at a minimum research the website for your applicable licensing agency or call the agency to find out the applicable rules.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Any questions or comments should be directed to Tracy Green, a very experienced California board attorney, administrative attorney, and litigation attorney at tgreen@greenassoc.com.
The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/
