A San Diego physician agreed to an interim suspension order by the California Medical Board as reported by the San Diego Tribune in its article that was effective October 31, 2014. The physician admitted that he took photos and videos of female patients using the camera on his smart phone. The patients were unclothed in some of the photos. In addition, the patients alleged inappropriate touching or photographing. This interim suspension order will require the Medical Board to file an Accusation within 30 days but it appears there is also a criminal investigation as well.
Any physician who takes photos of patients whether clothed or not should be careful to obtain proper consent forms, use a camera for office use only where the photos will be HIPAA compliant and that there is a medical reason for the photos or videos.
Posted by Tracy Green, Esq.
Showing posts with label Discipline. Show all posts
Showing posts with label Discipline. Show all posts
Monday, November 17, 2014
Wednesday, December 29, 2010
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?
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/
Tuesday, August 10, 2010
Nursing Board Served Twelve Accusations Against Out-Of-State Nurses - Up To 2,000 California Nurses Expected To Be Be Disciplined In The Future
After a series of scathing articles in the Los Angeles Times, the BRN submitted its entire population of more than 375,000 licensees to see if any had had action taken against their licenses in other states. This process was started in late February 2010. About 3,500 records were returned, and BRN officials estimate as many as 2,000 of them will require action against their
The BRN is not contacting nurses prior to the filing of the Accusations and seeking to discuss the out-of-state discipline first. An Accusation will be the first notice the licensed nurses get of an investigation or a complaint in California. The nurses will simply receive an Accusation by mail.
The charge in the Accusation will be for unprofessional conduct, which, under
If you receive an Accusation, it can be very intimidating and stressful in part because when you read the last page it will indicate that the BRN seeks to revoke the license. This in and of itself should not intimidate the nurse since it is standard language in every Accusation. It allows the BRN jurisdiction to revoke the license if the facts merit it.
It is possible for the nurse to save his or her license. It will take a proactive approach, the filing of a mitigation package and a demonstration of why the discipline was not previously reported. Hiring an experienced administrative law attorney can be very useful since it is difficult for the nurse to handle the legal parts of this process without assistance.
Given that this process has just begun, more Accusations are expected to be filed. Although many of these Accusations could be resolved with settlement agreements saving money and time, the BRN is working hard to show that it is reducing the amount of time it takes to discipline a licensee. Thus, Accusations will be filed and most of these cases will settle. These nurses have already been disciplined in the other state and the only misconduct in California was the discipline in the other state. It is being punished twice for the same offense. One issue that may be important is whether the nurse made any misrepresentations to the BRN when renewing the license.
If you have been disciplined in another state and are no longer practicing in California, you may want to take a proactive approach in researching what you should do with your California license so you are not also disciplined in California.
Each case is different and any nurse affected by Accusations resulting from the Verification Database needs to evaluate his or her position and goals in maintaining a California license and whether a California license is needed for their present or future work. Our firm works hard to personalize each individual licensee before the Board and present a detailed mitigation package in order to obtain the best result possible without going to hearing. If a hearing is needed, then thorough preparation, retention of experts and hard work and expertise is required in order to obtain the best possible result.
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, Los Angeles Nursing Board attorney, and Los Angeles administrative law 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 and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/
Friday, October 9, 2009
RN Prosecuted And Sentenced To Federal Prison For Diverting Controlled Substances From Patients And Using Them For Her Own Benefit
There is an increase in health care professionals being prosecuted criminally for the illegal diversion of drugs. In the past, if a health care professional were found to have diverted controlled substances, he or should would be fired and face disciplinary charges. There is now a trend of the Drug Enforcement Agency becoming involved and filing federal criminal charges.
A case from this summer is an example of the Drug Enforcement Agency (DEA) taking a much tougher stance on those professionals who are addicted to prescription drugs. On July 27, 2009, in federal court in Minneapolis, a Minnesota Registered Nurse, Julie Crystal Fronk, was sentenced to one year in prison and one year of supervised release for obtaining a controlled substance for her own use by fraud while employed as a registered nurse at a home health care agency. In addition, Ms. Fronk was the former assistant head of nursing at the home health agency.
Ms. Fronk's sentence came after she was charged on March 4 and plead guilty on March 23, 2009. According to Ms. Fronk’s plea agreement, she admitted that from May 2008 through July 2008, she knowingly and intentionally obtained Vicodin by misrepresentation, fraud and deception after the pills had been prescribed to others. Ms. Fronk also admitted she failed to dispose of the Vicodin properly. Instead, she admitted acquiring the pills for her own use and benefit.
Ms. Fronk's case had some aggravated facts that triggered prosecution and the seeking of prison time since there were allegations that critically ill patients were harmed due to Ms. Fronk's actions. During sentencing, testimony was taken from a patient representative regarding the theft of Morphine diverted from a patient who was dying and on hospice care. It was alleged that this patient died in unimaginable pain due to the actions of Nurse Fronk.
Attorney Comments: Seeing an addict sentenced to prison is done every day in state and federal courts. When it is a licensed professional who will face discipline of their license there is a type of "double jeopardy" that makes these cases more painful. The government takes the position that Ms. Fronk or other addicted licensed professionals like her are abusing their position of trust as medical professionals by stealing pain medication prescribed for patients and using it for their own personal use. As a nursing board attorney, medical board attorney and attorney for other health care providers, we have handled many cases involving substance abuse by professionals.
The tougher stance by the DEA and other government agencies should be one reason for any addicted professionals to seek help as soon as possible before their addiction causes them to lose their license and/or be prosecuted criminally. The time to take action if before any prosecutions or disciplinary actions are brought. Those of us who work with addicted professionals know that without serious action and intervention, it is a matter of time before the unthinkable happens to them or someone under their care. Health care professionals are at special risk for developing addiction problems due, in part, to the stress on the job and the easy access to controlled substances.
Moreover, diversion programs are no longer as available as they were in the past due to public outcry that the disciplinary boards are allowing addicted professionals to work and endangering the public. In California, for example, the Medical Board eliminated its diversion program.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their 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 including nurses before disciplinary boards. Their website is: http://www.greenassoc.com/
Wednesday, July 29, 2009
California Case Upholds Tenured Teacher's Due Process Rights To A Hearing After Signing Agreement To Resolve Allegations Of Social & Sexual Advances
Score a legal victory for tenured community college teachers and upholding the due process rights given to teachers in the California Education Code! A recent California Court of Appeal decision Farahani v. San Diego Community College Dist., D054087 (4th Dist., July 28, 2009) is a must read for those interested in education and administrative law.
Here is a nutshell of the holding. (A more detailed analysis of the case is set forth below.) At issue in the case were the due process rights granted to community college faculty members in disciplinary matters. In California, Title 3, Division 7, Part 51, Chapter 3 of the Education Code (Chapter 3) governs the employment rights of community college faculty. These rights include the right to notice, opportunity to object, a hearing before an arbitrator or administrative law judge, and a decision by the governing board. (Educ. Code §§ 87669, 87672-87674, & 87678-87680.)
The Fourth District Court of Appeal ruled that a contract executed between a community college district and a faculty member to resolve a disciplinary dispute which purports to waive the faculty member's statutory due process rights is unenforceable.
The Court of Appeal affirmed the trial court's order granting tenured teacher Sam Farahani's petition for writ of mandate to require the San Diego Community College District ("District") to reinstate Mr. Farahani with full back pay, interest and benefits and requiring the District's governing board to determine whether Mr. Farahani should be terminated. In essence, this gave Mr. Farahani the right to a hearing. Thus, he won this battle but will still need to prevail at hearing in order to retain his tenured position.
The decision can be found at the court's website: http://www.courtinfo.ca.gov/opinions/documents/D054087.PDF
If you are reading this article after the above link has expired, a search can be done on the court's general website: http://www.courtinfo.ca.gov/
Facts of Case
The District began to receive complaints from female students and staff in 1994, alleging that Mr. Farahani had made unwanted sexual and social advances. In October 2000, after investigating some of these complaints, the District gave Mr. Farahani a written reprimand advising him that continued misconduct would result in discipline up to and including termination.
On September 20, 2004, the District sent Mr. Farahani written "Notice of Pre-Disciplinary Hearing: Suspension." The notice cited the basis for the recommended one-year suspension without pay as "a continuing pattern of inappropriate behavior toward students and employees over several years." The notice informed Mr. Farahani that he had "the right to respond to the proposed discipline either orally or in writing or both."
As a district faculty member, Mr. Farahani was covered by the collective bargaining agreement between the District's trustees and the American Federation of Teachers Guild, California Federation of Teachers Local 1931 (Union). The collective bargaining agreement provided for a hearing prior to any disciplinary action involving loss of pay.
In November 2004, an attorney for the Union presented Mr. Farahani with a proposed Agreement, and told him that the District would suspend him for a year without pay unless he signed it. Among other things, the proposed Agreement provided that Mr. Farahani: (1) accept a reduction of pay equivalent to one month's salary and (2) for a period of 18 months agree to refrain from conduct that constituted sexual harassment, "including any verbal, physical or visual conduct" on campus, and from "personal contacts and/or communications" with students off campus.
Importantly for this case, the proposed Agreement stated that if Mr. Farahani failed to comply with its provisions, he could be "terminated at the Chancellor's discretion, without the issuance of charges under the Education Code or District policies and without right of appeal . . . ." The proposed Agreement also included the following provision: "Farahani waives any and all appeal rights he may otherwise have to challenge the discipline or otherwise pursue any appeal relating to the pre-disciplinary notice."
When encouraging Mr. Farahani to sign the Agreement, the Union attorney told Mr. Farahani that although the Agreement was probably illegal, it would be best to "[g]ive your 18 months and get it over with." Although Mr. Farahani believed that the charges were baseless, he felt "compelled" to sign the Agreement.
While the Agreement was in effect, the District received new complaints about Mr. Farahani from female employees. The chancellor concluded that Mr. Farahani's conduct towards these women "constituted unwanted social advances which could create an uncomfortable work environment and/or conduct which could be considered sexual harassment." She terminated Mr. Farahani effective June 9, 2006, pursuant to the Agreement. The termination letter stated, "Since you are being terminated from employment because of a violation of the [Agreement], you do not have a right of appeal." (Our emphasis added.)
Mr. Farahani wrote members of the District's governing board, requesting reinstatement and an opportunity to meet. He received no response. Mr. Farahani's attorney wrote Carroll on July 14, 2006, demanding Mr. Farahani's reinstatement plus backpay and benefits. The District's response reiterated that "Mr. Farahani was not entitled to the issuance of formal charges or right to appeal his termination under the provisions of the [Agreement]."
Legal Procedural History
Mr. Farahani filed a petition for writ of mandate on March 7, 2007. The trial court issued a peremptory writ directing the District to: (1) reinstate Farahani with full back pay, interest and benefits and (2) require its governing board to determine whether Farahani should be terminated, "all in compliance with the requirements of the Education Code, including appropriate notice and opportunity to be heard." The District appealed.
Legal Analysis
The first paragraph of Education Code section 87485 provides that, except for agreements pertaining to reductions in force, "any contract or agreement, express or implied, made by any employee to waive the benefits of [the statutory rights set forth in Chapter 3] is null and void." The District contended that section 87485 was inapplicable to the Agreement signed by Farahani, which it described as a waiver in response to discipline.
The appellate court concluded that the District interpreted section 87485 too narrowly. Prior decisions had applied section 87485 to bar waiver of statutory classification and tenure rights. (Stryker v. Antelope Valley Community College Dist. (2002) 100 Cal.App.4th 324; Kalina v. San Mateo Community College Dist. (1982) 132 Cal.App.3d 48; Covino v. Governing Board (1977) 76 Cal.App.3d 314.) Each of the above involved the faculty member's waiver of a statutory right set forth in Chapter 3. Disciplinary due process rights also fall within Chapter 3 and thus also fall within the purview of section 87485. Because teachers are public employees and their tenure rights are elaborately regulated by the Education Code which reflects the public policy of the state, such rights cannot be waived by contract.
Nevertheless, the District argued that Mr. Farahani's petition for writ of mandate should have been denied based on three equitable defenses, each of which the appellate court rejected.
First, the District argued that Mr. Farahani's petition was barred by the doctrine of laches (unreasonable delay by Mr. Farahani and prejudice to the District). The District maintained Mr. Farahani's petition was barred by laches because he filed it nine months after his termination and the District had hired his replacement. The court found no delay, in that Mr. Farahani had advised the District one month after his termination that he was challenging denial of a hearing, and no prejudice because the District hired Mr. Farahani's replacement several months after his writ petition was filed.
Second, the District argued that Mr. Farahani acted with "unclean hands," i.e., in bad faith, by signing the Agreement with no intention of performing (given the Union attorney's counsel that the Agreement was probably illegal). The court found the evidence insufficient to suggest that Mr. Farahani signed the Agreement with the intent of not performing.
Finally, the District argued that Mr. Farahani failed to exhaust his administrative remedies under the collective bargaining agreement before filing his writ petition. The court found no merit in the District's contention, because the District had repudiated the administrative procedures.
Attorney Commentary
There are three issues that jump out at us in this case. First, with the cutbacks in education funding, and recent news coverage regarding problem teachers, we can expect an increase in disciplinary actions and attempts by cash-strapped school districts to cut corners in affording statutory due process rights. Schools will use contracts and other means to get tenured teachers to give up their rights.
Second, as troubling as the District's total disregard of Mr. Farahani's due process rights is the advice given by the Union attorney to sign an agreement believed to be illegal in order to settle a disciplinary dispute. While we often encourage clients to negotiate with public agencies or governing boards to resolve disciplinary disputes, illegalities should never form the basis of a settlement agreement.
Third, the underlying allegations of "unwanted sexual and social advances" are every teacher's worst nightmare. These allegations -- even if false and not proven -- can ruin a teacher's career. Even exonerated teachers can lose their careers. It does not help that some students might see a sexual harassment allegation as a lottery ticket and will be represented by contingency counsel that can get a significant settlement from a District.
Teachers, especially high school and college teachers, need to be careful of social situations in which the word of one student can be used to immediately suspend a teacher. Any teacher -- especially male -- should have their own boundaries and social rules to avoid these issues.
If there is any allegation (no matter how small it may seem at the time), the teacher should definitely seek legal advice before giving any statements. Anything you say can be used as evidence and your statements may not be properly recorded or reported. Investigations need to be handled properly at the beginning stage. Do not make the unsophisticated mistake of thinking that "you will look guilty" if you seek representation or have an attorney present during an interview.
In order to avoid problems, here are some common boundary rules to be followed:
--not being alone with a student except for professional reasons (but always with a door open);
--not making any comments regarding appearance;
--not giving out personal email addresses and cell phone numbers (except for professional emergencies);
--not driving alone with a student or having a student stay alone overnight in your home;
--not forming personal attachments that cloud your judgment;
--documenting and discouraging any advances by students;
--involving appropriate third parties if issues with a student arise; and
--using common sense and seeking the advice of trusted peers or professionals if you have any doubt as to how this could look to a third party.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing individuals and companies in administrative and disciplinary proceedings and have represented teachers in those proceedings. They also have a personal interest in representing teachers since
Ms. Green was formerly on the Executive Committee of the PTA for her son's public school. The firm's website is: http://www.greenassoc.com/.
Ms. Green was formerly on the Executive Committee of the PTA for her son's public school. The firm's website is: http://www.greenassoc.com/.
Wednesday, February 18, 2009
Professional License Defense: Discipline Based on Criminal Conviction
California statutes provide authority for its numerous regulatory boards to deny, suspend, or revoke a license based upon a licensee's conduct. A licensee cannot be disciplined merely on grounds of "a lack of good moral character or any similar ground relating to an applicant's character, reputation, personality, or habits." (Cal. Bus. & Prof. Code § 475(c)).
However, a license can be denied, suspended, or revoked on any of the following grounds set forth in Cal. Bus. & Prof. Code § 475(a):
(1) "Knowingly making a false statement of material fact, or knowingly omitting to state a material fact, in an application for a license." [This can include failing to disclose an arrest or conviction in the application.]
(2) "Conviction of a crime." [This includes crimes that were expunged and dismissed after completion of probation.]
(3) "Commission of any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself/herself or another, or substantially injure another." [This can include crimes that were dismissed after being filed but where there was no conviction.]
(4) "Commission of any act which, if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license." [This means commission of any act specifically prohibited of a licentiate by the profession's governing statutes and regulations.]
[The italics are our comments following the actual language of the statute.]
Even though the above language in Section 475(a) can seem very broad, there are some limitations. A licensing board can discipline a licensee's conduct only where there is a "substantial relationship" between to licensee's fitness to practice his or her profession and the licensee's conduct. Hughes v. Board of Architectural Examiners, 17 Cal. 4th 763, 788 (1988).
This does not mean that the conduct must have occurred during the licensee's work. For example, a physician may be disciplined by the Medical Board of California based upon a conviction for tax evasion. Windham v. Board of Medical Quality Assurance, 104 Cal. App. 3d 461 (1980). Even though the conduct arose apart from the physician's practice, the court found there was a substantial relationship between the physician's conduct (dishonest tax reporting) and his professional duties: "there is the relation between doctor and patient. It is unnecessary to describe the extent to which that particular relationship is based on utmost trust and confidence in the doctor's honesty and integrity." Id. at 470.
Holdings in cases analyzing the "substantial relationship" can appear contradictory. On one hand, a court found that a real estate broker could not be disciplined based upon a conviction distribution of a controlled substance. Brandt v. Fox, 90 Cal. App. 3d 737 (1979). On the other hand, a court found that a real estate broker could properly be disciplined based on a conviction of possessing marijuana for sale. Golde v. Fox, 98 Cal. App. 3d 167 (1979). Some boards analyze what can constitute "moral turpitude" which can be broad in and of itself. Thus, do not assume that a criminal charge that is unrelated to your professional will not matter to the board.
Closer scrutiny of the cases reveals the importance of introducing and creating a record in the disciplinary proceedings showing the licensee in the best possible light. In Brandt, the court found the record demonstrated (a) the licensee's misconduct was isolated and remote in time, (b) the licensee's activity was peripheral to the drug transaction, (c) the licensee was remorseful and had otherwise acted exemplary, (d) and the misconduct was unlikely to recur. Brandt, supra, 90 Cal. App. 3d at 747.
In Golde, the court found that the licensee's conduct was more egregious than that in Brandt (the licensee was caught with 800 pounds of marijuana) and that the licensee had unwisely attempted to rationalize his misconduct as acting "out of friendship and a spirit of adventure." Golde, supra, 98 Cal. App. 3d at 183.
If investigated for or charged with a crime, a licensee would be well-advised to seek the advice of an attorney specializing in professional license defense to minimize potential adverse impacts on their future employment opportunities. For example, if one is charged and there are adverse facts, it may be possible to select a charge for a plea bargain that is less likely to cause discipline problems (for example, selecting a charge that does not have fraud as an element).
If there is a civil case where criminal charges could be filed or complaints to a licensing board could be made, a licensee's approach should be different since there is a form of "double jeopardy" when you have a license. Remember to look at the "big picture" and see all the collateral consequences that can occur to your license or ability to be licensed.
In addition, if you are applying for a license and disclosing your background to the licensing board, look up any old arrests or cases you may have had. Failure to disclose an old DUI or misdemeanor that you thought was not a true "conviction" could cause the agency to refuse to license you on the ground that failed to state a material fact in your application.
This is an outline of the issues to think of where a professional has a prior criminal charge or is facing a charge or claim that has criminal allegations. Each case will be highly dependent on the facts but excellent legal representation can help bring out the more favorable facts and develop a record that will help obtain a more favorable result with a licensing board.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of individuals, businesses and licensed professionals and providers in civil, business, administrative and criminal proceedings.
Sunday, January 25, 2009
Board Complaints And Investigations: FAQ
This is the time to be the most proactive. The earlier you can prevent an investigation from going forward by responding to it intelligently and fully, the better. Once an Accusation or disciplinary charge is filed, it is difficult to unwind it. We find that often charges were filed because the professional did not adequately address the investigation at an early stage.
Each case is different and varies upon the facts. No one strategy works for each case. However, an experienced, objective attorney can help you prevent a complaint from turning into disciplinary charges by mitigating the problem.
One important piece of advice: do not simply produce the file and nothing else. Here are 7 things, among many, that can be done at this early stage:
1. Take the opportunity to ensure the board has full access to all relevant information that will help you.
2. If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case. Have an experienced administrative and licensing attorney or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary proceedings. Remember that everything you do is evidence.
3. If there is significant handwriting in the file, dictate the notes so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.
4. If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.
5. The board can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.
6. Do not alter, backdate, falsify or create any records unless such records are properly created and dated.
7. Once you hire an attorney, have him or her send a letter of representation so the board contacts the attorney and does not show up at your office for a surprise interview.
My licensing board is accusing me of misconduct. What should I do?
A governing board will often state that it is investigating suspected fraud, abuse or other misconduct, but not tell you specifically why. You need to find out the facts supporting the board's complaint or accusation. An experienced attorney can help you immeasurably with this process. Once the board is notified that you have hired an attorney, it is not permitted to contact you directly. The attorney can speak with the agency's investigators to learn the factual basis of the allegations. The attorney can then direct you to take specific steps to protect your license.
Why can't I (or shouldn't I) talk to the licensing board myself?
You do not need an attorney to communicate with your licensing board, but it is an excellent idea. An attorney can speak on your behalf and obtain information without making any admissions that might hurt you. Anything you say to a board, even though it may seem innocent, might be used against you later. In addition, it is difficult for you to be objective and create an intelligent and forward thinking strategy. Everything you say is evidence and investigators can catch you off guard before you are fully prepared and then later use those statements against you if you testify differently at a hearing or during a formal interview.
I already spoke to the licensing board. Is it too late to hire an attorney?
No. Licensing boards do not always act quickly. An attorney can help you find out what the board is intending to do. The attorney may be able to help you submit additional information or documents for the board to consider. The attorney may also be able to negotiate a settlement that would allow you to keep your license.
The licensing board has presented me with a proposed disciplinary order. Do I have to sign it?
No. You can reject it and try to negotiate other terms. If you and the licensing board cannot agree on terms, the board will likely bring formal disciplinary proceedings.
Having an attorney advise you is important. Attorneys who specialize in administrative law understand both the board's concerns and the nature of your profession. This insight often enables them to negotiate settlements that satisfy the board's need for oversight as well as your need to maintain profitability.
A settlement enables you to avoid formal disciplinary proceedings. When a settlement is not possible, you want representation by an attorney who is familiar with procedural rules as well as the laws and regulations governing your profession.
I have an administrative hearing scheduled before a licensing board or regulatory agency. Do I need an attorney?
You are not required to have legal counsel, but it is an excellent idea. The agency will be represented by an attorney and, in fact, you will be at a disadvantage without one.
Many procedural and evidentiary rules must be followed in presenting a defense. Even if you feel you have a good defense, you might not be permitted to present it if you don't follow the rules. An attorney who specializes in administrative proceedings will be able to present your defense in the proper manner.
I have been charged with or convicted of a crime. Will this affect my license?
There is a BIG difference between being charged and being convicted. If you are arrested and the case is dismissed due to lack of evidence, it is less likely to affect your license. If you are convicted of a crime, it will depend on the type of charge, how long ago it was and other factors. Your rehabilitation will also be a factor.
Many regulatory agencies require that you report a criminal charge or conviction, even if it seems unrelated to your practice. Certain charges or convictions may result in the suspension or revocation of your license. This is one reason why it is critical to coordinate any criminal defense with an attorney specializing in administrative law and board defense at the earliest possible stage.
An attorney specializing in administrative law will help you determine the reporting requirements relevant to your profession. If reporting is required, the attorney will help you present the facts in the best light possible. If you fail to report, this can be considered unprofessional conduct and can be used against you later. Honesty is the hallmark of professionalism and a subsequent dishonesty (or even lack of forthrightness) while you are defending your criminal charge can harm your professional license. If you have negative facts in your criminal case, you can win your criminal case and still face discipline from your board in many circumstances. We advise a global strategy that looks forward to the next several years and includes all criminal, civil, and administrative consequences.
Can I apply for a license if I have a criminal record?
Yes, you can. The factors will be the nature of the charge, how long ago the conviction was and the proof of your rehabilitation which we help establish with records, letters and other documentary proof.
An attorney skilled in licensing law can help you submit evidence of your character and rehabilitation, so as to present your application in the best light possible. In short, you will need to have a thorough application, numerous support letters, and significant documentation to explain the charges and why you have changed and what you have done to warrant you being granted a professional license. It helps to have an objective attorney who can help you build the best administrative record possible.
I want to avoid problems with my licensing board. How can I make sure I operate my business in compliance with the law?
Many professionals retain a law firm to review their business structure and office policies to ensure they are in compliance with the laws and regulations governing their business. An attorney skilled in administrative law will have knowledge of the common pitfalls for your particular business and can show you where your practice might be vulnerable to administrative scrutiny. The attorney can assist in educating your staff about the law relevant to your practice through in-office presentations or the preparation of formal office policy and procedure handbooks. It is also common for professionals to retain a law firm on an ongoing basis for a monthly fee to have access to an attorney to questions as they arise.
Posted by Tracy Green, Esq.
Any questions or comments should be directed to tgreen@greenassoc.com.
Tracy Green is a principal at Green and Associates and they focus their practice on the representation of professionals, particularly health care professionals including individual physicians, corporate providers and group practices. Green and Associates' website is: http://www.greenassoc.com/
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