Under California criminal law, an individual may withdraw a plea of guilty or nolo contendere (no contest) and enter a plea of not guilty once they have completed probation, or waited a year after a conviction for which no probation was ordered.  This process is referred to as “expungement” or “dismissal” of the conviction.  Expungement is also available to those who served time for their conviction in jail, but not for those who served in state prison.  Only a judge may grant an expungement.

On January 1, 2015, California Assembly Bill 2396 (“AB 2396”) became effective and added language to Business and Professions Code section 480.  Among other things, AB 2396 provides that the California Department of Consumer Affairs cannot deny an individual a professional license solely because of a conviction, if that conviction has been expunged.

AB 2396 applies only to licenses that are regulated by the Department of Consumer Affairs.  This includes the California Board of Registered Nursing, Dental Board, Board of Pharmacy, Physical Therapy Board, Physician Assistant Board, Psychology Board, Board of Behavioral Sciences, Board of Accountancy, and Bureau of Real Estate.  Some licenses that are not regulated by the Department of Consumer Affairs – and thus will not be benefitted by AB 2396 – include those issued by the Department of Insurance and the Department of Social Services.  Additionally, AB 2396 does not affect medical licenses, as they are governed by laws that specifically provide that expunged convictions can serve as the basis for the Medical Board of California’s denial of an application.

There are some other notable limitations on the relief that AB 2396 provides.  For one, federal criminal convictions cannot be expunged, and so they will not qualify for relief.  In addition, under the provisions added by AB 2396, out-of-state convictions will not qualify, even if expunged in that state’s court.

Furthermore, the conduct that formed the basis of a conviction (even if expunged) may independently provide a basis for denial.   As an example, a Board of Registered Nursing applicant with a drunk driving conviction may be denied a license, even if that conviction was expunged, because drunk driving may independently fall under the category of “unprofessional conduct.”  Similarly, a Bureau of Real Estate applicant with a shoplifting conviction, even if expunged, may be denied licensure under the relevant licensing laws that permit denial on the basis of  “dishonest conduct.”

AB 2396 is welcome relief to many applicants whose expunged conviction once had a detrimental effect on their ability to make a livelihood in California.  If you are a student or applicant and you have a conviction on your record, contact our office to see how AB 2396 may benefit you.  

» Read more about California Professional License Defense 

Find us on Google+

Last fall, the Department of Consumer Affairs (DCA) implemented BreEZe, an electronic processing system designed to streamline the licensing process for approximately 37 professional licensing boards, including the California Board of Registered Nursing (BRN). However, the process has not gone well and nursing applicants are experiencing significant delays.

We have received numerous calls recently from applicants experiencing problems such as: the inability to obtain authorization to sit for the NCLEX, delays with application processing and requests for additional information, and long lag times in obtaining licensure.  In addition, several applicants have expressed an inability to reach anyone at the BRN by telephone or email.  Our office has also experienced delays in trying to reach the BRN by telephone.  In fact, at one point, we encountered a voice message at the BRN essentially stating that they are experiencing technical difficulties, receiving and overwhelming number of telephone calls, and told instructed to our call again later – without the ability to leave a message.

Delays at the BRN have numbers of nurses who have completed their training programs waiting on the sidelines to sit for the NCLEX.  Likewise, several nurses who need to retake the NCLEX are unable to obtain authorization to retest.  Further, several nurses who have already taken the exam – some of whom already have job offers – continue to wait anxiously for their licenses.  Meanwhile, the nursing shortage in the State of California continues.

The delay in application processing is especially frustrating for applicants whose applicants  already require additional time to process (i.e., those applicants who had to retake the NCLEX, applicants who disclosed prior convictions on their application, etc.).   We are experiencing an even greater delay in obtaining Statements of Issues and hearings dates for nurses whose applications have been denied.

The situation at the BRN has come to the attention of California State Assembly Member Kristin Olsen.  Assemblymember Olsen has  requested the Joint Legislative Audit Committee to review the policies and procedures at the DCA.  Read more about Assemblymember Olsen’s efforts on behalf of applicants before the Board of Registered Nursing.

Professional licensing attorney Kevin Cauley represents nurses and other healthcare professionals with licensing issues at different stages of the process.  Contact us if you are seeking to appeal the denial of an application, under investigation, need representation at a disciplinary hearing, or need to appeal a negative determination.  We provide each of our clients with hands-on, personalized service and work zealously to protect our clients’ interests.

» Read more about the Board of Registered Nursing

Another lawsuit—litigated this time all the way up to the U.S. Supreme Court—demonstrating why it is imperative to obtain legal advice before entering into a Physician Provider Contract or Agreement with an Insurance Company.

Read about the lawsuit on American Medical News »

Are negative online reviews harming your medical practice or professional reputation? Unbeknownst to you, there may be information about you or your practice online.

Kevin Cauley, P.C. assists healthcare providers defend against hostile online reviews and develop efficient and compliant social media strategies. Your professional license and good name are your livelihood and in today’s world, reputation management for licensed professionals is critical.

Health Leaders Media has some useful tips.

California lawmakers are considering a bill (SB 304) that would strip the Medical Board of California’s ability to investigate alleged physician wrongdoing and impose penalties. Instead, the Attorney General’s Office would be responsible for investigating physician misconduct and the Medical Board would deal primarily with licensing issues for doctors.  This would have a significant impact on the management of physician complaints in California.

Lawmakers introduced this bill in response to recent attention in the media concerning certain physicians’ prescribing of narcotic pain killers.  One thing is fairly certain whether the bill passes or not: the Medical Board of California will ramp up its enforcement efforts.

Read more about Medical Board of California Investigations and Disciplinary Actions »

DEA Investigation Triggers

by Kevin Cauley on September 7, 2013

The Drug Enforcement Administration (DEA) was formed with the primary purpose of enforcing the Controlled Substances Act (CSA).  The DEA investigates doctors, nurses, veterinarians, dentists, and other medical registrants who are authorized to dispense controlled substances for potential violations involving these drugs. Several different events can trigger an investigation by the DEA Office of Diversion Control.

The DEA receives information from confidential reports and letters, state licensing board determinations, and other state and federal agency actions.  The DEA also engages in audits of medical ordering practices seeking discrepancies in the ordering patterns of certain drugs.  The agency monitors reports of unusual patterns in patient deaths or other statistical anomalies.

There are several events that may prompt an investigation and possible action against the holder of a DEA registration:

  • The individual in question has falsified an application;
  • The registrant is charged with or convicted of a felony involving a controlled substance or a List I chemical (chemicals that have been identified as important to the manufacture of controlled substances);
  • The registrant has had a state license suspended, revoked, or denied;
  • The registrant has acted in such a manner that would make his or her registration with the DEA incompatible with public interest; or
  • The registrant has been excluded from participation in Medicaid or Medicare programs.

Frequently, the actions that bring one of these infractions to the attention of the DEA are through whistleblower reports or notifications from regulatory bodies.  Mandatory reporting on drug losses pursuant to a DEA Form 106 may trigger an investigation into the individuals who had access to the controlled substances. Another factor that may trigger an investigation into all parties associated with a practice or dispensing organization is multiple overdose deaths for patients of that particular entity.  Distributors of controlled substances also are required by law to report suspicious orders submitted by those practices and dispensing entities that they supply.  As the DEA is taking swift and severe actions to enforce those laws and punish the offenders, more and more reporting is likely.

The DEA also monitors the use of the DEA registration number, which is intended to be used solely for the confirmation of DEA registration necessary for the dispensing of controlled substances.  Use of this registration number in a manner inconsistent with historical or statistical use may cause the DEA to take a closer look at the activities of the registrant.

Read more about DEA Investigations & Administrative Actions »

Healthcare reform is currently at the forefront of both the Federal and State governments’ agendas. In an effort to curtail government spending on federal healthcare programs, the government has stepped up enforcement by increasing provider audits in order to collect payments it feels were erroneously paid to healthcare providers. Healthcare providers and facilities, especially those located in Los Angeles, have reported a surge in audit notices from Recovery Audit Contractors (RAC) working for the Center for Medicare and Medicaid Services (CMS).

Adverse healthcare audits of providers and facilities can result in a civil recoupment action to collect payments alleged to be erroneous or a criminal fraud prosecution.

Common recoupment and fraud allegations include:

▪   Up-coding medical services rendered

▪   Fraudulent billing for medical services

▪   Improper billing of medical services rendered

▪   Double billing/overbilling for medications or medical equipment

▪   Providing unnecessary medical treatment

▪   False claims submitted

Kevin Cauley, P.C. defends healthcare providers in Medicare audits and Medi-Cal audits, CMS RAC audits, recoupment actions and appeals, and white collar criminal prosecutions.

Read more about Medicare Audit, Appeal & Fraud Defense »