Los Angeles Dentist Charged With Fraud for Allegedly Billing Insurance Carriers for Services Not Provided Over 7 Year Period

We have seen an increase in audits of dentists by private insurers. Big data and updated computer systems have made it easier for insurance carriers to flag suspicious billings. 

If intentional billing for services not provided is found, it can be referred for criminal prosecution and/or to the Dental Board. This is one reason to handle audits very carefully and to address any billing errors or other issues in a way that does not create additional problems.

A Los Angeles dentist, Carlos Maria Vallarta Fausto, self-surrendered on a case filed by Los Angeles District Attorney's Office after he was charged with two felony counts of insurance fraud for allegedly charging insurers more than $31,000 in billings for services not performed on patients in his Los Angeles area dental practice between January 1, 2007 and December 31, 2014. Dr. Fausto is presumed innocent and a felony complaint is not evidence. The bail on this case was set at $25,000 and he was released immediately.

After an audit, an insurer filed a complaint against him with the California Department of Insurance which launched its own investigation, which allegedly revealed Dr. Fausto billed multiple insurance companies for dental treatment he did not render to his patients over this seven-year period. The case has also been referred  to the Dental Board of California, which is responsible for licensing dentists in California.

Attorney Commentary: There are several things to note from this case. First, even with a loss amount of $31,000 over a seven-year period, the case was referred criminally. Years ago, low loss amounts were not filed. Prosecutors are getting more aggressive about smaller cases especially where they believe there is "ghost" billing or billing for services not provided.

Second, these allegations are from years ago but the statute of limitation continues to run where the alleged fraud is not discovered.  Thus, even though some of the services were 10 years old (2007), charges were just filed. It takes years for these cases to be investigated and the alleged misconduct stopped in 2014.  The state statute of limitation is 4 years from date of discovery.  

Third, it should be remembered that even if the criminal case is dismissed or won, the dentist will still need to address the Dental Board which has a lower burden of proof and usually waits until the criminal case is concluded. The Dental Board can be very aggressive and the dental license is the tail that wags the dog in this type of case.

Finally, periodic self-audits, compliance and making sure that insurance billing is accurate is good business. When you bill insurance companies or the government, you need to be extra careful. The old saying of it's better to ask forgiveness than permission doesn't work in government or insurance billing.  

Even a $30,000 billing issue over seven years does not always just go away by paying the funds back in today's world.  I have seen cases where repayment upon discovery of erroneous billing helped avoid criminal and Dental Board referrals but these cases need to be handled carefully and with a view of the big picture at 40,000 feet.

Posted by Tracy Green, Esq.

Email: tgreen@greenassoc.com

Office: 213-233-2260

How We Prepare For Your Administrative Hearing & 3 Basic Tips We Give Our Clients to Help Prepare for Hearings

Administrative and Board hearings are similar to trials, but some differences exist in procedure and practice. There is no jury and the administrative law judges (ALJ) must follow statutes, regulations, administrative procedure act (APA), constitutional requirements of due process and consider guidelines from the regulating agency. 

We encourage our clients to understand the administrative rules and procedures that will govern the conduct of the hearing since this is not simply making your "case" to the judge as if it were a jury that decides "guilty" or "not guilty." There are very different standards.

This is one of the reasons that individuals and businesses that represent themselves in pro per have a very difficult time and usually do not do well. Although the paperwork sent out by the agencies indicates that they can represent themselves it is almost universally a bad idea. At a minimum, if a client has financial restrictions and limitations, they should try to work out a payment plan with an attorney or at least pay for a consultation and find out what they need to do to prepare for their case at hearing or settlement.  

What else do you need to know if you are preparing for a State of California administrative hearing? Here are 3 things you need to know. There are many more levels but here are three basic things to know and consider:

First, you must know that if the ALJ reaches a decision that the board or bureau will not approve, that bureau or board does not have to adopt it. It is therefore important as an advocate to suggest a result and create a strong record that the board or bureau at issue will adopt. Otherwise, our client will have to start over again. 

Thus, if you have a recent felony conviction for fraud, the likelihood of going to a hearing and persuading an ALJ to dismiss the Accusation and impose no discipline would be difficult to achieve. But if it were achieved, it would be very unlikely that the board or bureau will adopt it unless the circumstances are so unusual and the record is well-established. Then you have to go through another hearing. In other words, trying a "Hail Mary" pass.

Second, we are creating a "record" with admissible evidence including administrative hearsay. We want a strong record for a couple of reasons: to have the ALJ adopt the findings we want and to have a record that will allow the board or bureau to adopt it. We push our clients to obtain evidence and expert testimony that they sometimes do not think is important but they do not understand that we want something other than their own testimony just in case the ALJ says our client is "not credible." Preparation is key. In most cases, witness testimony, without more, is not sufficient to prove your case. Exhibits, including documents and other forms of evidence such as expert witness reports, are often necessary.

This is where we seek to be creative when there are challenging facts or why we will seek to introduce a great deal of evidence in the record that can support our suggested level of discipline or findings of no discipline. This is also important for creating a record on appeal.  

Third, we help our clients know the ALJ. We gather information from other advocates about the particular practices of the hearing officer or administrative law judge if we have not previously appeared before him or her. We want to know the following:

How active a role does the ALJ or hearing officer play in taking testimony from witnesses? Some will ask questions or clean up weaknesses in the government's case. Some let you try your case.

How does the ALJ handle exhibits and administrative hearsay introduced by declaration? 

Does the ALJ or hearing officer apply any evidentiary rules? 

Is the hearing officer knowledgeable about the substantive law? 

What is the hearing officer’s attitude toward clients, witnesses, and advocates? 

Should you be prepared for anything unusual about the hearing officer’s conduct during hearings?

Make sure you practice good "Hearing Etiquette." Always arrive at the hearing on time or early. Be polite to the hearing officer and all of the parties. Comport yourself in a professional manner. No eye rolling, head shaking or displays of emotion when the judge or hearing officer is speaking or a witness is testifying. You want to show your professionalism and never compromise your credibility or that of your client by lowering your standards of professionalism or courtesy. And when we are acting professionally, understand that it will help you in the long run. Banging on the table or shouting is just for TV lawyers - an ALJ will stop listening. 

We make good records with witnesses, exhibits and persuasive testimony. We let the facts speak for themselves and that also creates good records on appeal.

For your case, you can call or schedule a complimentary 15 minute consultation. Call 213-233-2260 or email tgreen@greenassoc.com.

Posted by Tracy Green, Esq. 

What NOT To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office - Part 2

This is the second in a series. The first article is entitled "What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1." Read Part 1 and then read this article for greater detail on what NOT to do when there is a government or board investigator asking to interview you, requesting records or when you find out that there is a pending investigation. I'm giving you my experience but remember that this is not a substitute for seeking your own legal advice but can help you understand the process. 


Rule #1: Do NOT take a board investigation lightly but at the same time do NOT panic. You have worked hard to get your license and most probably, your livelihood depends on your practice. Regardless of what you think the merit of the complaint, take it seriously and remember their job is to protect the public, and they can put you on probation, impose discipline on your license, fine you, etc. The board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public. Have your attorney respond respectfully and professionally.

However, at the same time, everybody who has been in a profession long enough is going to be investigated. Talk to some people who have been through this before to get a healthy perspective. In other words, take it seriously but do not panic so that you make stupid mistakes. I have had too many cases where the client handled the board investigator interactions on their own for months and once they made numerous missteps, I was brought in to fix their mistakes.

Rule #2: Do NOT respond to a letter from the board unless you have consulted with an attorney. Even better, have the attorney respond to the board rather than you.

For example, I represented a Board certified Internist who was treating a patient covered by workers’ compensation insurance for high blood pressure only. The patient had numerous other health issues that were not addressed in the records. The doctor got her advice from other physicians and responded without realizing that her files were poorly documented, failed to show referrals to other specialists and failed to address the gaping problems with treating a patient in the workers’ compensation system who is not covered by any other insurance. I was brought in when the board decided to bring her in for an interview with a medical expert and a Deputy Attorney General. The board investigator was getting ready to recommend filing an Accusation. We became prepared for the meeting by having the doctor sign up for a medical record keeping class, sending a detailed letter addressing the issues in the workers’ compensation system where there was only authority to treat for one condition and how the doctor had changed her policies and procedures to handle documentation of referrals better in the future. Armed with these documents, the interview went well and once the doctor completed the PACE record keeping class, the case was closed. 


Everything you say is “evidence” or an “admission” and can be used against you in a Board proceeding or hearing. Having your attorney proffer this information is a way of getting around this. In some cases, the Board will specifically request that the letter come from you.  Supplemental information, however, can be submitted by the attorney.


One of my sayings is that the person with the biggest stack of papers wins. I like to show the Board that my client is professional and even if things were not handled perfectly, we have done everything to ensure that such an error will not happen in the future and therefore no discipline is needed. The Board gets my client’s CV, recent related continuing education certificates, letters of support, declarations under oath, expert witness report (if needed), etc. Every case is different and we are only limited by our imagination and creativity in finding ways to prove our case. 

Rule #3: Do NOT turn any material or records over to the board without getting legal advice first. While the board is likely to have a right to review the case material related to an investigation, the rules of evidence are quite complex and, at times, confusing. It is best if you let you attorney advise you about what to turn over to the board according to your state law. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended by the board. In addition, you want to ensure that all privacy rights of any patients or clients are protected.

There are cases where auditors or certain inspectors (such as OSHA) are entitled to show up unannounced and request records. In those cases, contact an attorney so you make sure your rights are protected. There are ways to provide records without being interviewed until you have time to determine the status of the investigation and the nature of the complaint.  In addition, you want to ensure that you have a complete record of what has been produced.

Rule #4: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you a clean license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the complaint or accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. 


Most professionals do not know their rights or worry about looking "guilty" if they ask for an attorney and the truth of the matter is that they need an attorney to advise them.

In addition, if I as your lawyer tell the investigator what an amazing professional you are and give examples of what a good person you are, it is advocacy. If you say it, however, it is arrogance. Investigators generally cannot stand arrogance.

Rule #5: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. It is common here in California for the investigator to show up without an advance appointment. Even if the investigator seems friendly, neither talk to them about the case nor release any records without legal representation. The nicer they are, they more you need to be wary since that is an investigative technique commonly used. The best investigators are like used car salesmen, they will come in your office, act chatty, put the feet up on your desk and hope you will say everything before you have had a chance to think about the case, review the records or speak to an attorney.


If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your business attorney will contact them soon. Chatting "informally" with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. Remember that you do not have a witness and you are not as well prepared as they are since they have been investigating the case. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation and you should exercise it in a respectful way.

Rule #6: Do NOT assume that lack of harm to client or patient will end the board inquiry. You must understand that boards often focus on whether you violated any state laws or administrative or professional binding guidelines rather than whether your client was harmed by you or whether there was malpractice. While the element of damages is an essential element in a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed.

Rule #7: Do NOT be in a hurry. Often I have clients that want to get the investigation over so quickly that they insist on meeting the investigator and making assumptions about it too quickly.  I have had clients try to insist that I send letters before I have received a response from the State about any complaints – and later when we receive a letter about the nature of the complaint (in California under Bus. and Prof. Code Section 800(c)) they are glad I made them wait.  In most cases, time is your friend and use the time to help build your case and show the Board the facts. You want to meet deadlines but do not rush and make simple mistakes.


For example, when I say “don’t be in a hurry,” I also mean don’t be in a hurry in making decisions without legal counsel. One of my clients was visited by the DEA and was asked to surrender his DEA license. He was afraid and thought it would help an investigation go away, so he surrendered it and that caused a Medical Board investigation to be opened.

Rule #8: If you speak to investigators, do NOT lie or shade the truth. If you cannot tell the truth, do not speak. It is often a crime to lie to a federal or state agent.

For example, I had a client who ran a billing company charged with a federal felony of obstructing a federal audit which related to the audit of his client. Naturally, he did not consult an attorney before meeting with investigators from the Office of Inspector General (OIG) several times. 

Rule #9: If you are told that you have the “right to remain silent,” do not speak to investigators. This means that there is a criminal investigation. This is the time to exercise your constitutional right to the 5^th Amendment until you meet with an attorney.


Example, I had a client who was being investigated for dispensing IUDs that were from Canada and were not FDA approved. The doctor and his office manager confessed on the spot in the meeting. Did this help them? No. Criminal charges were filed. My other clients in similar cases who did not speak were never charged criminally for the same conduct since the authorities did not have a confession.

Rule #10: If you are asked to give a written statement, do NOT do so. The investigators will often write it out for you to “help” you or one of your employees. Take the time to meet with an attorney before you sign any document even if they tell you that you are not the suspect. It is amazing how many cases get started this way.


Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, lose your license, or lose your livelihood.


Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations and hearing attorney.

If you have questions regarding your own case, please call 213-233-2260 or email Ms. Green at tgreen@greenassoc.com to schedule a complimentary 15-minute consultation.

What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1

If a board investigator from an administrative agency a criminal investigator contacts you or comes to your place of business or requests records in writing, the first step you need to take is contacting an attorney experienced in this area of the law. Tracy Green has given lectures to many professional associations indicating what an individual should do (and not do) when contacted by an investigator or when there is a request for records. Even a one or two hour consultation will help you prepare and not make critical mistakes that can harm you later.

A board representative may claim to have your best interests in mind and may tell you that “you don’t need an attorney.” Unfortunately, their job is not to protect your rights. They prefer to catch you off-guard before you have had time to prepare or think about the issues. For this reason, they do not usually make appointments. They just “show up” at your office.  In addition, they do not usually tape your interviews but have a second person there and they take down “notes” and create a report that is difficult to challenge later. 

It is much easier to be proactive and handle the cases properly from the beginning than to defend an Accusation or other proposed charges. Good beginnings make good ends.

Let's begin with general points to understand about the process. This is Part 1. Look for upcoming articles on this topic.

7 GENERAL POINTS TO UNDERSTAND 

ABOUT REQUEST FOR RECORDS OR INTERVIEWS

1.  The probability of getting a board complaint or being investigated by a state licensing board is increasing for several reasons. First, the longer you practice, the greater chance that you will receive a complaint. Second, there is greater political pressure on the boards and bureaus in California to be aggressive and harsher on the discipline. Third, common sources of complaints are patients/clients, competitors, insurance companies and disgruntled ex-employees. People are more inclined to complain in today's world especially since it is easy for them to find out how to do it on the Internet and the forms are downloadable. 

2.  It is important to know what is being investigated and the nature of the complaint(s) before there are interviews or responses to records are submitted. An experienced attorney knows how to find out this information in a professional manner that will make you look competent and responsible.

For example, I have had numerous cases where a new complaint reactivated an old complaint that my client did not even know existed because it was closed out at the intake level. This is why it is important to know what is being investigated before there are interviews or responses to records. This is also necessary so an overall defense strategy can be implemented. 

In one case, an OB-GYN was visited by a Medical Board investigator and asked to interview him about a patient who alleged a sexual touching. Investigator told him he didn't need an attorney. Sexual allegations are the MOST difficult to get rejects on if they get filed. OB-GYN called me and I spoke to the Board investigator, explained that I am his health care law attorney and I want to be present at the interview. Investigator told me "if it were me, I'd want an attorney present." Before the interview, I made reasonable demands to find out which patients were going to be at issue in the interview so we could ensure that proper releases had been signed and we could review the files beforehand. Turns out that in prior years there were two prior sexual touching complaints that had been closed out at the intake level but my client did not even know about them. All three complaints were completely false: one was complaining about a clitoral examination when the patient had elephantitis of the vagina and was at risk for tumors which was explained to her; another was complaining about having a woman with fibrous breasts sit up and lay down during the breast exam; and the other was equally absurd. Before the interview, all files were reviewed, a summary of each patient's treatment was provided, statements were obtained by staff from those that were present during the examinations, and the doctor was prepared to answer the questions without being offended, upset or too emotional. The investigator was also presented with the OB-GYN's policies and procedures for examining all women with a chaperone present. The case was closed after the interview and presentation of records. 

3.  If  you receive is a request for records or interview, it means that it has passed the intake process and a case has been opened.  That case will be either closed or it will be forwarded to the Attorney General's Office with a recommendation for filing disciplinary action. The GOAL is to get the case closed or to minimize the allegations that are forwarded to the Attorney General.  There is a range of cases ranging from meritless ones to questionable ones to difficult ones. Even with difficult cases, the goal is to have damage control and to determine how to achieve the best result possible even when the facts are not in my client's favor. The investigators have discretion and it may be that I need to help my client build good facts showing in various ways how my client is an outstanding professional

4.  The board or government representatives are NOT your friends. They are often very friendly and one of the biggest mistake my clients make is talking to them since they seemed "so nice" or because they were afraid of "making them mad." This is a very unsophisticated approach. Investigators are trained how to minimize in order to obtain more information. Just imagine that there is an Accusation filed and we are going to hearing, but you tell me "well, Tracy, I think the investigator liked me at the interview." There is a very easy way not to antagonize the investigator and have your attorney assert your rights. A good attorney knows how to make you look good while asking to be present at the interview. 

5. Be professional and respectful even while exercising all your rights. Now this does NOT mean that we fail to be aggressive in your defense but it means that we do not antagonize the investigator or Deputy Attorney General. As much as you want me to write a nasty letter threatening to sue the State, in the beginning I'll recommend instead a letter that focuses on the facts and why this investigation does not have merit. 


It means that we are very cordial -- respecting the power that they can wield over your license -- but we are strong and professional at the same time. The fact is that they know the details of the complaint and we know nothing. This means that we need to learn as much as the investigator to the extent possible before any interview. In addition, the investigator only knows one side of the investigation and we want to educate them as much as possible. I have gotten involved in cases after my client has threatened to sue the Board, the invetigator and that did not help their case. I am aggressive about defending my clients but smart about how to approach the Board and the investigators.  

6. Do NOT take investigations or requests for records lightly even if you are confidant that you did not do anything wrong. For example, assume there is a complaint by a former patient/client that you committed malpractice. The records are clear that there is no malpractice and, in fact, it was a good result. However, a review of the records shows that the recordkeeping is poor -- a surgical report is missing, the notes are skimpy, the handwriting is illegible and/or some other required information is not recorded. 

7.  The time to seek advice is before the records are produced or before there is any type of interview. It may be decided that a letter summarizing the treatment or client history is a good idea. It may also be decided with the help of the attorney that the missing record should be recreated but with a clear indication that the record was unexplainably missing and was recreated in order to give a complete record. Declarations or statements may be obtained from employees or other witnesses.

Some of my clients made serious missteps by backdating records or sending less than ideal records to the investigator without transcribing or summarizing them. Or they think that if the records are disorganized it will help them. To the contrary, if there are good facts, you want to make the job easier for the investigator and give him or her good reasons to close the case. Often the investigator may be sending the files to an expert witness and you want the expert to be able to read and understand the records, especially if there are good facts. A good summary from your attorney can help that process significantly. The advantage of the letter coming from the attorney is that it is not evidence from you.    

Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, get placed on probation, lose your license, or lose your livelihood. Now that all discipline is on the website, sanctions can adversely affect insurance plans, client/patient confidence and your reputation.


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 administrative law attorney, licensing attorney, and board and bureau investigations 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 providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Alert To California Professionals And Licencees: Potential License Denial Or Suspension For Failure To Pay California Taxes Starting In July 2012

Effective July 1, 2012, ALL of the licensing boards in California (Medical Board, Board of Psychology, State Bar, Dental Board, Contractors Board, Veterinary Board,  Accountancy Board, Optometry Board, Pharmacy Board, Board for Professional Engineers, etc.) are required to deny an application for licensure and to suspend the license/certificate/registration of any applicant or licensee who has outstanding tax obligations due to the Franchise Tax Board (FTB) or the State Board of Equalization (BOE) and appears on either the FTB or BOE's certified lists of top 500 tax delinquencies over $100,000. This is pursuant to legislation AB 1424, Perea, Chapter 455, Statutes of 2011.

Once it has been determined that an applicant or a licensee is on a certified list, the applicant or licensee has 90 days from the issuance of a preliminary notice of suspension to either satisfy all outstanding tax obligations or enter into a payment installment program with the FTB or BOE. Any such person who fails to come into compliance will have his/her license denied or suspended until the Medical Board of California receives a release from the FTB or BOE. The form for requesting a release will be included with the preliminary notice of suspension.

The law prohibits the Boards from refunding any money paid for the issuance or renewal of a license where the license is denied or suspended as required by AB 1424.

The FTB and BOE are currently expanding the certified lists from 250 to 500, but you can check if you are currently on the FTB's certified list at: www.ftb.ca.gov/individuals/txdlnqnt.shtml or the BOE's certified list at: www.boe.ca.gov/cgi-bin/deliq.cgi. If you believe you are on either list in error, please call the FTB at (866) 418-3702 or the BOE at (916) 445-5167.   

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 California licensing 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/

Do I Need To Disclose Convictions That Have Been Expunged In Professional License Or Government Applications?

Here is a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings.

Question 1: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past but it was expunged.  Do I need to disclose it?

Answer to Question 1:  The short answer is "YES." The failure to disclose expunged convictions gets more applicants into trouble with Boards and Bureaus (and results in probably as many denials of licenses) than the disclosing of the conviction does since it allows the Board or Bureau to deny your application on the ground that you "made a false statement" on your application.  The hallmark of professionalism is honesty so if they see you any false statement, it is a huge problem and claiming you did not understand that you had to disclose the expunged conviction is not persuasive after the fact.

In fact, it is not only "expunged" convictions you will probably have to disclose but also other kinds of arrests that resulted in diversion or deferred entry of judgment.  It is necessary to read the application carefully and the definition of "conviction."

And long answer is that "Yes, you disclose but you want to disclose it in the best manner possible." A well written statement of explanation and mitigation package submitted to the Board or Bureau can make a huge difference in how your application is treated.

Remember, an expungement does not:

• Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal. Thus, when the agency does a background check it will come up.
  
• Allow you to omit the conviction from applications for government-issued licenses.
• Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 
• Seal the court case file from public inspection. The court file remains public record.

I am often hired to help physicians, lawyers, nurses and other professionals submit written explanations and packages of prior convictions. It is often necessary where my clients speak English as a second language and also do not understand culturally how to present this type of information in the best light possible. You need to take full responsibility for your actions, be accurate and honest and at the same time explain how something like this will not ever happen again.

It is better if I am involved from the beginning but often I get hired after the application has been denied and we need to file an appeal. The old saw that "good beginnings make good endings" applies here and even educated clients need an objective person to know how to write for the Board or Bureau.

There is usually some aspect of shame, embarrassment or emotion involved (especially when the conviction is old or was unfair) that can cause the applicant to not take it as seriously as it should. Or it is assumed that because the conviction is over 10 years' old, it will not be used to deny a license or application.

The California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

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, an experienced California board attorney, administrative attorney, and California licensing attorney with more than 20 years' experience. 

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 professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

California Physician Charged With Sexual Crime Against A Patient: When Do Physicians & Other Licensed Professionals Have To Report Criminal Charges Or Convictions To Their Board?

 

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. 

 
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. 

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/

L.A. Times Article On Illinois Physician Program For Sexual Misconduct Treatment Comes Under Attack. What Do We Do In California For Licensees With Substance Abuse And Sexual Boundary Issues?

In California, if there is a complaint made about a physician that alleges any type of "sexual misconduct," the California Medical Board handles those cases with a presumption that the physician is guilty until proven innocent. The incendiary nature of such an allegation makes it difficult for the Board to refuse to file unproven allegations and often physicians are forced into disciplinary hearings since the Board is reluctant to dismiss weak charges on its own.

The Los Angeles Times ran an article on December 29, 2010 entitled "Doctor misconduct cases monitored in secrecy" regarding a program in Illinois. The article writes about criticisms of the Illinois Professionals Health Program which operates a diversion program for physicians involving alcohol and drug abuse and now sexual misconduct allegations. The article quotes certain opinions that such programs shield physicians and that patients should know about these allegations.

California Does Not Have A Diversion Program
In California, physicians have not been eligible for diversion in lieu of discipline where there are substance abuse allegations since 2008. California does not have any program for the diversion or monitoring of physicians with sexual misconduct allegations where there is also no discipline filed against the physician.

Physicians Can Enroll In Treatment Programs Confidentially Before Disciplinary Charges Are Filed
In California, if a physician has a substance abuse or sexual boundary issue, he or she is free to participate in any treatment program on their own which will remain completely confidential. There is no duty to report the enrollment to the Medical Board. However, if the Board received a complaint that the physician has a substance abuse or sexual boundary problem, the Board investigates the matter to determine if sufficient evidence is found to proceed to disciplinary action.

Most Disciplinary Charges Arising From Substance Abuse Arise From Arrests And Convictions
In our practice, we see most discipline filings relating to substance abuse arising from misdemeanor convictions (such as driving under the influence or wet reckless) and felony arrests and convictions. Physicians (and other health care providers) are required upon renewal to disclose their misdemeanor and felony convictions.

As for arrests, physicians are not required to report a misdemeanor arrest but as for a felony arrest, they must report a felony indictment or a felony information (meaning that in a state criminal case the case has gone through preliminary hearing and the physician has been held to answer).  This means that if a doctor in California is arrested on felony charges, he or she does not need to report until held to answer after a preliminary hearing and an "Information" is filed. We have had cases where a physician was arrested on felony charges and we were able to have the charges dismissed before or at preliminary hearing which did not trigger any self-reporting requirements. Failure to report can be an additional ground for discipline.

Even though self-reporting is not required in felony cases until the Information is filed after a preliminary hearing, there is the risk that the city attorney or deputy district attorneys' office could notify the Board.  Prosecutors in criminal cases are required to notify the Medical Board (and Chiropractic, Osteopathic, Podiatric and "other allied health board") of any felony filings against a licensee upon obtaining information that the defendant is a licensee of that board.   California Business and Profession Code Sections 803.1. Thus, licensee must always be prepared for Board scrutiny where there has been an arrest. 

Reporting also occurs since court clerks are required to report misdemeanor and felony convictions of any persons licensed by the Medical Board and other Boards (Chiropractic, Dental, Osteopathic, Acupuncture, Nursing, Vocational Nursing, Optometry, Veterinary, Pharmacy, Speech-Audiology, Hearing Aid Dispensers, Respiratory Care, Behavioral Science).  California Business and Profession Code Sections 803.1 and 803.5.

Conclusion
Physicians and other licensees can expect that in California, disciplinary charges will be filed in lieu of any type of diversion program. Even where diversion programs exist (such as in nursing), the trend is to file disciplinary charges, place the licensee on probation and then require diversion. The Boards are very attuned to the political climate that they not be perceived as protecting physicians or other licensees and that the process be open to the public.

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 health care attorney, administrative attorney, and California Medical Board attorney.

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/