- COURT REPORTERS
- AUTOMOTIVE REPAIR
PROFESSIONAL LICENSE ACCUSATIONS
- PROFESSIONAL LICENSE APPEALS
- PROFESSIONAL LICENSE CITATIONS
- PROFESSIONAL LICENSE REVOCATION
- PROFESSIONAL LICENSE SUSPENSION
- PETITIONS FOR REINSTATEMENT
OVERVIEW OF DISCIPLINARY LICENSING ACTIONS
What should I do if an investigator from the state licensing agency contacts me?
Most licensees have never been visited by a state licensing investigator. Without proper guidance, the licensee may essentially lose his or her license before a formal Accusation is even filed.
Complaints against licensees are received by the regulating licensing agency in writing or by telephone. The state licensing agency mails complaint forms and the appropriate release forms to the individual making the complaint. The forms are returned to the agency. Complaints are usually made by clients, patients, former employees or other reporting entities. Examples of reporting entities include law enforcement agencies, which report misdemeanor and felony convictions; other state licensing agencies that have disciplined the licensee in another state; or data banks (e.g., National Practitioners' Data Bank), which report lawsuits that result in judgments or settlements of $30,000.00 or more. However, starting January 1, 1998, any judgment or settlement amount triggers a report.
When contacted by an investigator, you should be both cooperative and defensive. Good legal counsel should be able to help you walk this fine line. Licensees often think that the complaint is without merit, so they do not pay much attention to the investigation. Regardless of whether the complaint has merit, licensees should realize that the investigator gives great credibility to the complaining party. Simply denying any wrongdoing is usually not enough for the investigator to close his or her investigation without further action.
Investigators sometimes lull licensees into a false sense of security. Investigators call licensees for an "informal" conference to learn the licensee's side of the facts, so that the complaint may be cleared up. The informal conference may seem so innocuous that the licensee does not even consider taking an attorney to the conference. When the licensee appears at the conference, he or she learns that an expert consultant hired by the state licensing agency will conduct much of the interview, along with the licensing investigator. The next thing that the licensee notices is that the interview is tape-recorded.
Many licensees, such as physicians, treat the informal conference as they would a peer review meeting. As such, licensees are often overly critical of their care and treatment when reviewing the case in question with the expert consultant. Licensees may agree with an alternate course of treatment that is proposed by the expert consultant. Licensees are later surprised to learn that their own comments are interpreted by the investigator or consultant as admissions of wrongdoing.
A miscommunication may lead the investigator to conclude that the complaint has merit and forward the case to the agency's legal counsel. Having an attorney attend the conference with you reduces the chance that your comments may be misinterpreted. Most investigators allow the licensee to be accompanied by an attorney. The best opportunity to resolve a case favorably comes at the investigative stage. An attorney in licensing cases may craft a settlement proposal that addresses the licensing agency's concerns and resolves the case without the need to proceed with the filing of a formal Accusation. For example, in cases regarding drug abuse allegations, an Accusation is not filed, provided the licensee successfully completes a drug diversion program.
Unless an agreement with the licensing agency is reached, the investigative file may be:
- Closed and the complaint is found to be "unsubstantiated."
- Closed and retained for one year if the complaint is found to be "inconclusive."
- Closed and retained for five years because the complaint is found to have merit, but insufficient evidence to prosecute the licensee.
- Referred to the Office of the Attorney General or to the agency's Legal Division for prosecution.
- Referred for issuance of a citation.
- And/or referred to the local district attorney or other law enforcement agency for criminal prosecution.
What is really at stake if a formal Accusation or Statement of Issues is filed against me by the state licensing agency?
If a case is referred by the investigations unit to the Office of the Attorney General or to the agency's in-house Legal Division, a formal Accusation or Statement of Issues is drafted and filed against the licensee or applicant. An Accusation is a public document containing the specific allegations and grounds for discipline. In the case of an applicant denied licensure, a Statement of Issues containing the grounds for denying the application is filed against the applicant. In most cases, the form of discipline sought is complete revocation of the license, which is often the result when a licensee is not represented by qualified legal counsel familiar with administrative disciplinary proceedings.
The mere filing of an Accusation may have serious repercussions. For example, your liability insurance carrier may cancel or not renew your policy. For physicians, your hospital privileges may be revoked or restricted, or perhaps you may be excluded from membership in Health Maintenance Organizations (HMO) or Preferred Provider Organizations (PPO).
Any other professional license or a future application for a license may be adversely affected. You may also be subject to possible civil liability or criminal liability, depending on how your administrative case is resolved.
Since the Accusation and Statement of Issues are public documents, your reputation and standing in your community may also be adversely affected by the mere filing of these documents. For all the above reasons, it is critical that you make every effort to resolve your matter before the filing of an Accusation or Statement of Issues. Representation by a license defense attorney would give you the best opportunity to end the case before it even starts.
Once I request a formal administrative hearing, what should I do next?
Once an Accusation/Statement of Issues is filed, you have only a short time to request a hearing. With many state licensing agencies, you have only 15 days to file a Notice of Defense. The Notice of Defense is a legal document that informs the licensing agency that you are disputing the allegations and you are requesting a formal hearing. Once the licensing agency's attorney receives your Notice of Defense, a formal administrative hearing is scheduled. Generally, an administrative hearing is a formal hearing during which testimony is taken under oath before an Administrative Law Judge (ALJ).
The ALJ's decision is proposed to the state agency. The agency may:
- Adopt the decision
- Reject the decision and either schedule another hearing before an ALJ or schedule another hearing before the actual agency or licensing board members
- Modify the decision after reviewing the record and receiving additional oral and/or written argument Generally, in addition to the right to a hearing, you have the right to counsel (at your own expense), the right to testify on your own behalf, the right to confront and cross-examine witnesses, the right to subpoena witnesses to testify at the hearing, and the right to discovery. Discovery is term used for the documents and physical evidence related to the allegations. A careful review of the discovery and a thorough investigation by your defense team is necessary to prepare your defense.
Generally, hearings scheduled for four or more days trigger a Pre-hearing/Settlement Conference. A Pre-hearing Conference is a legal proceeding at which the parties review the procedural as well as some legal issues related to the scheduled hearing (such as the number and identity of proposed witnesses, the number of days actually required for the hearing, whether discovery has been exchanged, and any stipulations to legal issues in the case). A Settlement Conference is a legal proceeding at which the parties discuss possible settlement terms with an administrative law judge. If a settlement is reached, the administrative hearing is canceled. Any party may request a pre-hearing and/or settlement conference from the Presiding
Administrative Law Judge.
Most administrative licensing cases are resolved without proceeding to a hearing. However, there is a very broad range of settlement terms that need to be considered when negotiating with the agency's counsel. A creative settlement proposal may lead to a stipulated agreement in a case that would normally go to a costly and time-consuming hearing. You may be required to reimburse your state licensing agency for the costs of investigating and prosecuting your case. Such costs may be several thousand dollars, especially if you go through an administrative hearing. A skilled license defense attorney would be able to assist you in determining whether you should accept a proposed settlement or proceed with a formal hearing.
What can I do if I do not agree with the agency's decision?
You may file a Request for Reconsideration with the state agency. Such a request must be filed and a decision must be made by the agency before the effective date of the pending order of discipline. If the licensing agency agrees to reconsider its decision, it will stay the pending order of discipline until it makes a decision on your request for reconsideration.
If your request for reconsideration is denied, the agency's final decision may be appealed via a petition for writ of administrative mandamus. You must show that the agency's disciplinary order was an abuse of discretion. In some cases, you may be able to obtain a stay of the agency's decision while the court considers your writ of administrative mandamus. If the writ is not successful, the licensee may appeal to the court of appeal, then petition the state Supreme Court. However, a recent statute prohibits medical doctors from filing an appeal to the court of appeal; instead they may only take a writ to the court of appeal (the constitutionality of this statute is currently before the California Supreme Court).
A careful review of the administrative hearing transcript and exhibits, as well as a good knowledge of administrative law, is extremely important in filing a successful writ or appeal. There are also many procedural requirements, such as filing deadlines, to which you must adhere. Consulting an attorney familiar with what it takes to prevail at this stage of the administrative process may lead to the eventual restoration of your professional license.
How do I get back my revoked or restricted license?
After a period of time prescribed by state statute, you may petition the agency to reduce the penalty (e.g., terminate your probationary license early or delete conditions of probation). If you have had your license revoked, you may file a Petition for Reinstatement showing evidence of rehabilitation. These petitions are personally brought before an administrative law judge or the agency's actual board members. A detailed and professional presentation of the various factors establishing rehabilitation is vital to getting your license back.
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