What to Expect From the BBS: A Guide to the Investigative and Disciplinary Process
Douglas Lee, JD (Former CAMFT Staff Attorney)
Reviewed November, 2017 by Alain Montgomery, JD (CAMFT Paralegal)
In virtually every issue of The Therapist there is a section of the magazine devoted solely to therapists who have been disciplined by the Board of Behavioral Sciences (Board or BBS), or the Board of Psychology. The threat of such discipline, or even the possibility of being under investigation, often strikes fear into the hearts of therapists.
As a licensee or registrant, you have worked hard for your license/registration and livelihood. Regardless of what brought you to the attention of the Board, you do have rights. CAMFT is continuously working to ensure that those rights are protected. The purpose of this article is to shed some light on the investigative and disciplinary processes before the Board.
Initiation of Investigation
One of the responsibilities of the Board is to enforce the Marriage and Family Therapist Act.1 The Disciplinary Guidelines specifically state that the number one priority of the Board is to protect the public from incompetent, unethical or unprofessional practitioners. The primary method for enforcing the Marriage and Family Therapist Act (Act) and protecting the public is to conduct investigations into alleged violations of the Act.
There are four (4) primary methods by which the investigation process by the Board is initiated:
A complaint may be filed directly with the Board. This can be done by a client/patient, a fellow practitioner/licensee, anonymously, or by a third party.
If a licensee has been convicted of a crime, there are mandatory and self-reporting requirements that the Clerk of the Court, law enforcement agency, or licensee must abide by.
The 801 Report
The third method by which the Board can initiate an investigation is what’s called an “801 Report.” An “801 Report” refers to Business and Professions Code (Code) section 801. Section 801, subdivision (b), of the Code, requires that your malpractice insurance provider file a report with the Board of Behavioral Sciences within 30 days following any settlement or arbitration award over $10,000.00 “of a claim or action for damages for death or personal injury caused by that person’s negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services.”
The 805 Report
The fourth method by which the Board can initiate an investigation is what’s called an “805 Report.” An “805 Report” refers to Business and Professions Code section 805. Section 805 of the Code, provides that, if, following a Peer Review, your staff privileges, membership, or employment, is suspended for more than 14 days, an 805 report must be filed with the Board by the Peer Review Committee/Body. This is primarily seen in cases involving licensed physicians and surgeons who work in hospitals with Peer Review Committees, but could present itself in a situation where a therapist is employed in a hospital setting. An example of an 805 report that directly affects CAMFT members is an 805 report filed as a result of a CAMFT Ethics Committee investigation. CAMFT, specifically its Chief Executive Officer, is required to file an 805 report with the Board under any of the following circumstances: (1) When a member’s application is denied or rejected for a disciplinary cause(s) or reason(s); (2) If membership in CAMFT is terminated for a disciplinary cause or reason; (3) If a CAMFT member has his/ her membership restricted; (4) If a CAMFT member resigns during the pendency of an CAMFT Ethics Committee investigation; or, (5) If a CAMFT applicant abandons or withdraws his/her application because of a pending CAMFT Ethics Committee investigation.2
Information Received By the BBS
Regardless of how it got there, the BBS now has information regarding a potential violation of the Act by a licensee. At this juncture, BBS staff will review the information. The Board’s enforcement database is reviewed for any prior complaints or open complaints against the licensee, and a case is opened and assigned to an Enforcement Analyst. The role of the Enforcement Analyst is to act as a fact finder. This role includes contacting the source of the complaint and any witnesses.
Once they have completed their investigation, the Enforcement Analyst can take any of the following steps:
Refer the Case Directly to the California Attorney General’s Office
Although this action will be discussed later, if the information received by the Board warrants, the case will be sent directly to the California Attorney General’s Office for the filing of a Petition for Interim Suspension Order or a Motion Pursuant to Penal Code Section 23.3
Refer the Case to a Subject Matter Expert
Sometimes the information obtained during the investigation will be sent to a subject matter expert. With respect to Marriage and Family Therapist licensees and registrants, the information will be sent to an independent licensed Marriage and Family Therapist who will review the information and prepare a report for the Board. This typically takes place when a licensee’s quality of care and treatment regarding a client/patient is called into question.
During the investigation phase, the licensee may be contacted by an Enforcement Analyst. The Enforcement Analyst, usually in a letter, will request that the licensee prepare a written summary of care and treatment for a specific client/patient. Alternatively, the licensee could be asked to respond to a series of questions.4
Refer to Division of Investigation
The Division of Investigation (DOI) is the investigative arm of many of the agencies within of the Department of Consumer Affairs, including the Board of Behavioral Sciences. Investigators employed by DOI are peace officers who carry both a weapon and badge. Typically, the Board will refer the most egregious investigations to DOI. Often times, once the investigation has been referred to DOI, the assigned investigator will request to meet with the licensee and conduct an interview.
At any point during the investigation, the BBS staff may decide to close the investigation without any action being taken.
Being Contacted By the Board
One area of the investigation process that therapists and CAMFT members have some control over is when they are contacted by the Board for more information. As identified above, the Enforcement Analyst may send a letter to the licensee requesting either a summary of the care and treatment of a specific client/patient or the letter may ask for a response to a series of questions.
As with all inquiries from the Board, a call to a CAMFT attorney will likely yield advice to hire an attorney or contact your malpractice insurance provider to see if they will provide you with one. While this is advice that should be followed, a licensee should also be aware of the following when preparing a response, with his or her attorney, to the Board regarding care and treatment of a specific client/patient:
First, get together your records regarding the client/patient. Make a copy, set aside the originals, and only work with the copy in preparing your response. Do not alter the originals.
Second, be aware of the following definitions and any response should take these into account:
- The standard of care or standard of practice for general practitioners is defined as that level of skill, knowledge, and care in diagnosis and treatment ordinarily possessed and exercised by other reasonably careful and prudent therapists in the same or similar circumstances at the time in question;
- Specialists are held to the standard of skill, knowledge, and care ordinarily possessed and exercised by other reasonably careful and prudent specialists in the same or similar circumstances at the time in question;
- Negligence is the failure to use that level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful therapists would use in the same or similar circumstances; and,
- Incompetence is generally defined as an absence of qualification, ability, or fitness to perform a prescribed duty or function.
Third, in formulating a response to the Board’s inquiry, prepare a summary of your care and treatment describing the treatment history, what you treated the client/patient for, and how. When you refer to specific documentation in the records or chart, identify those pages.
Fourth, in responding to each of the allegations in the letter, do so separately. Sometimes you may have to break apart the allegations. Identify the standard of care and provide a detailed description of the standard of care. Explain where the standard of care comes from, specifically citing any references or literature.
Fifth, after you identify the standard of care, you need to apply the facts of what took place to the standard of care/practice. Explain why what you did met the standard of care.
Another aspect of the investigation that a licensee has some control over is the interview. At some point during the investigation phase, especially if your case is referred to the Division of Investigation, you may be contacted by an investigator for an interview. This is typically done near the end of the investigation after all of the documents have been obtained and witnesses interviewed. However, the interview can take place at any time. In complex cases, there can be more than one interview.
The interview itself can be intimidating and frightening. You are entitled to have a legal representative with you and it is generally advised. Interviews will be conducted by an investigator and may be taped/digitally recorded. A Deputy Attorney General from the Attorney General’s Office may also be present. You will be asked to go over your educational and professional background. You should prepare an updated resume or curriculum vitae. You will be asked to provide a summary of care and treatment for the client/patient. Either the investigator or the Deputy Attorney General may ask questions.
Much of the same advice when responding to a written request from the Board also applies during the interview. You should be familiar with your care and treatment of the client/patient, and any applicable standard of care. You should also be able to explain why your care and treatment of the client/patient met the standard of care.
If you bring an attorney with you to the interview, they should, prior to the actual interview, go over your care and treatment of the client/patient with you. Your attorney should also communicate with the Enforcement Analyst to see what, if any, information he/she can get regarding the subject matter of the interview. Lastly, you should be aware that any statements you make during the interview may be used against you later during an Administrative Hearing. Thus, if you do not understand a question, ask for clarification, and make sure to answer the question asked, not the question you want to answer.
Petitions for Interim Order of Suspension
In certain circumstances, the Board may refer an investigation to the California Attorney General’s Office for the filing of a Petition for Interim Order of Suspension or Restriction Order. A review of prior disciplinary actions from the Board shows that this has taken place one (1) time from 2004 to 2010. There have been additional referrals since that time but, due to implementation of the BreEZe system, BBS staff were unable to tell CAMFT how many more referrals have been made in the past three years. In the case referred between 2004 and 2010, the licensee had been convicted of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (b), on two separate occasions, and it had been determined that the licensee had a mental and physical illness affecting competency and ability to practice marriage and family therapy safely.5
Interim Orders of Suspension are identified and described in section 494 of the Business and Professions Code. In short, a licensee can be suspended or have his or her license restricted if both the following circumstances are shown:
- The licentiate has engaged in acts or omissions constituting a violation of this code or has been convicted of a crime substantially related to the licensed activity; and,
- Permitting the licentiate to continue to engage in the licensed activity, or permitting the licentiate to continue in the licensed activity without restrictions, would endanger the public health, safety, or welfare.
There are two types of Petitions that one should be aware of, for Interim Orders of Suspension. The first is a Petition for Interim Order of Suspension without prior notice to the licensee (Ex Parte). This means the acts or omissions are so serious harm will result to the public unless a suspension order is immediately issued. Although no notice is required, the licensee is typically given 24 hours notice and that notice may be by telephone. The Deputy Attorney General may call the licensee 24 hours in advance of the Court hearing and let the licensee know. The Deputy Attorney General may also offer to fax or overnight mail the applicable documents. However, be aware that the law requires no notice to be given.
If a licensee is suspended as a result of Ex Parte proceedings, the licensee is entitled to a second hearing within 20 days. This hearing is referred to a Noticed Hearing or Noticed Petition for Interim Order of Suspension. The licensee will receive formal notice of this hearing within two (2) days if the license has been suspended as a result of Ex Parte proceedings.
The second is the Noticed Petition for Interim Order of Suspension. In this case, the licensee is given at least 15 days’ notice of the hearing on the petition.
What A Licensee Should Expect
Regardless of the type, with prior notice or without, one should expect to receive a copy of the Petition for Interim Order of Suspension, Memorandum of Points and Authorities, and the Exhibits in Support of the Petition for Interim Order of Suspension. These documents are critical and should be reviewed carefully by the licensee and his/her attorney. At the hearing, no witnesses will be presented. An Administrative Law Judge will preside and there will be a court reporter. The Deputy Attorney General who filed the paperwork will be present and will present an argument. The licensee and his or her attorney should also be present.
Within five (5) business days of the hearing, the Administrative Law Judge who heard the petition must issue a decision. If any restriction is imposed on the licensee, an Accusation must be filed within 15 days and the hearing on the Accusation must be held within 30 days after a Notice of Defense is received by the BBS or its representative. The Accusation and Notice of Defense are discussed below.
What A Licensee Can Do
When a licensee receives notice of Interim Order of Suspension proceedings, there are some steps the licensee can take to preserve their rights. The most obvious is obtaining an attorney, either through the licensee’s malpractice insurance provider or other means. The licensee or the licensee’s representative can ask the Deputy Attorney General or the Office of Administrative Hearings to postpone the proceedings so that a proper defense can be prepared. Such a defense may include the filing of a declaration by the licensee or even the filing of a declaration from a hired expert witness if time permits. Additionally, if it appears that the Board’s case is strong and it is likely the licensee is going to be suspended, it is certainly worth arguing to the Administrative Law Judge that a lesser restriction than an outright suspension is warranted. For example, if the allegation is sexual misconduct with female patients, the licensee may argue that he/she should be prohibited from seeing female clients/patients until a decision is issued following the formal hearing on the Accusation.
Penal Code Section 23
In the event that you are charged with a criminal offense or offenses, and the Executive Officer or the Executive Staff deem such charges serious enough, they may refer your case directly to the Attorney General’s Office for the filing of Penal Code section 23 paperwork.
California Penal Code section 23 is rarely cited in the literature, but is used by the different agencies that make up the California Department of Consumer Affairs, including the Board of Behavioral Sciences. Often times, practitioners learn of Penal Code section 23 when it is too late.6
Penal Code section 23, provides in pertinent part:
“In any criminal proceeding against a person who has been issued a license to engage in a business or profession by a state agency pursuant to the Business and Professions Code or the Education Code, or the Chiropractic Initiative Act, the state agency which issued the license may voluntarily appear to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee.”
CAMFT’s position is that the Board is using Penal Code section 23 as an end around the procedures for obtaining an interim order of suspension. When acting pursuant to Penal Code section 23, the Board has a much easier time suspending licensees than if it acted pursuant to the statutes governing interim orders of suspensions.7
When faced with a criminal charge or charges, and the possibility of a Penal Code section 23 suspension, licensees should be aware of the 2005 case, Gray v. Superior Court (2005) 125 Cal.App.4th 629. In Gray, the Court made it clear that the Board, without notice, evidence or an adequate opportunity to litigate the issues, cannot seek an immediate and indefinite suspension of a licensee simply because criminal charges have been filed. (Id. at p. 640)
Prior to Gray, representatives of the Board, specifically, a Deputy Attorney General, would appear in a bail hearing, unannounced, with a motion in hand, and ask the superior court judge to suspend a licensee facing criminal charges. This is what the Medical Board sought to do in the Gray case. The Court specifically stated: “The statute does not authorize a licensing agency to recommend bail conditions expressly, nor does it authorize a trial court to suspend a professional license upon recommendation of a state licensing agency.” (Gray v. Superior Court, supra, 125 Cal.App.4th 643.) According to the Gray Court, at a minimum, the Board must present some showing that the licensee is an imminent danger to the public in order to impose a suspension order.
Despite the Gray decision and its importance, the BBS and other Boards continue to act as if Gray never took place. In typical Penal Code section 23 paperwork, the only mention of the Gray decision by the Attorney General’s Office is that the court stressed the need for the restriction placed on the license to be reasonable and to comport with due process.
What A Licensee Can Do
If and when a licensee is charged with a criminal offense or offenses, the licensee and his/her attorney should be aware of Penal Code section 23 and the Gray case. If and when Penal Code section 23 paperwork is filed, it would be appropriate to file responsive paperwork citing both Penal Code section 23 and the Gray case. A review of past disciplinary cases from the Board where a licensee was suspended pursuant to Penal Code section 23 reveals that the filings from the Attorney General’s Office are often missing evidence demonstrating that the licensee presents an imminent danger to the public. This should be pointed out. As in the case of an Interim Order of Suspension, it is also possible to argue to the judge that a lesser restriction, other than an outright suspension, is appropriate. Lastly, and most importantly, it is CAMFT’s position that the Board should seek to suspend a license through the available administrative procedures (i.e., the filing of a Petition for Interim Order of Suspension pursuant to Business and Professions Code section 494), and not through Penal Code section 23.
The Administrative Process-Accusations
In the event that the investigation reveals a violation or violations of the Act, it may be referred to the Attorney General’s Office for the filing of an Accusation. Once you have been served with an Accusation, review everything you have received from the Board. The package you received should contain the following documents: Accusation; Statement to Respondent; and, a Notice of Defense. A copy of the Disciplinary Guidelines may also be included, along with proof of service.8
The documents that accompany the Accusation form the Accusation Packet
If you have an attorney, you need to let your attorney know immediately that you have received these documents. If you do not already have an attorney, contact your professional liability insurance provider and get an attorney appointed to represent you.
The Accusation is comprised of four parts:
- The first is the “Parties.” This section identifies the Executive Officer and the Deputy Attorney General who is representing the Executive Officer. The Executive Officer is referred to as “complainant.” It also identifies you and your address of record. You are now referred to as “respondent.”
- The second is referred to as the “Jurisdiction” section. This section will contain the statutes that apply to your case. They may be cited in full or in part. Typically, at the end of this section, cost recovery statutes, such as Business and Professions Code section 125.3 will be included.9
- The third is the “Charging” section. This section will contain the allegations and the factual basis for those allegations. With respect to the factual basis for the allegations, not much is required. The Accusation is required to put you on notice, not include every detail.
- The fourth is the “Conclusion” or “Prayer.” Typically, this section will include a demand that the license be revoked, if the license is not revoked then respondent is to be placed on probation, pay cost recovery and the costs for probation monitoring if placed on probation, and be ordered to comply with various terms and conditions.
One of the key items to be addressed upon receipt of the Accusation and Accusation Packet is the Notice of Defense. Whether or not you have an attorney, this document must be filled out and sent back within 15 days to the Deputy Attorney General who is handling your case. There is a box that you can check if you are not currently represented. The failure to return this form within 15 days may result in the filing of Default paperwork in which your license will be revoked without a hearing. 10
Once the Notice of Defense is filed, you or your attorney should expect to receive a call or letter from the Deputy Attorney General handling your case. He or she will ask you for dates for either the actual Administrative Hearing or a Telephonic Trial Setting Conference. In some cases, a Settlement Conference will be scheduled. In other cases, the Deputy Attorney General may present you with some settlement options. Your attorney can also initiate this call on your behalf.
What A Licensee Can Do
Probably the single most important thing a licensee can do upon receipt of an Accusation and the hiring of an attorney is to request a copy of the discovery. This should be done at the time the Notice of Defense is filed. You may have to pay for a copy. The discovery typically will contain an Investigation Report, a copy of the written complaint that initiated the investigation, the client/patient records obtained during the investigation, the expert report(s) and curriculum vitae(s), and any other documents obtained during the investigation.
Once you obtain a copy of the discovery, you can begin to deconstruct, with your attorney, the Accusation filed and the case against you. Using the definitions set forth previously regarding standard of care, negligence and incompetence, you can identify areas where the Board’s expert may be incorrect. You can also rebut the Board’s expert or allegations in the Accusation by citing specific instances in the client/patient records or applicable literature that support your position.
In addition to reviewing the discovery and formulating a rebuttal to the Board’s expert opinion, you and/or your attorney may want to hire your own expert. You should also review the Board’s Disciplinary Guidelines to get an idea of the discipline you are facing.
Approximately 90 percent of all cases are settled. Thus, you and/or your attorney may want to discuss settlement options. Typically, the Board is bound by its Disciplinary Guidelines in settling cases. However, there may be reasons that justify a departure from the Disciplinary Guidelines. You and/or your attorney will want to present those reasons to the Deputy Attorney General.
In the event that you and/or your attorney are unable to reach a settlement with the Board, an Administrative Hearing on the Accusation will be held. An Administrative Hearing is not like a trial on television. There is no jury and the hearings usually take place in tiny courtrooms. Rarely is there anyone in the audience. An Administrative Law Judge presides over the hearing. There is a court reporter. The Deputy Attorney General trying the case will be there, as will you and/or your attorney.1111
In most cases, the burden of proof at an Administrative Hearing is on the Deputy Attorney General who is representing the complainant, the Executive Officer.12
Unlike criminal and civil courts, the burden is clear and convincing evidence. Criminal courts require proof beyond a reasonable doubt and civil courts require proof by a preponderance of the evidence. The point being, Administrative Law Judges recognize that the burden on the Deputy Attorney General is great and requires clear and convincing evidence before imposing any type of discipline.13
Just because a Deputy Attorney General files an Accusation and says in Court that something is true, it does not make it true. The Deputy Attorney General must present credible evidence by way of expert or percipient witnesses.
For some licensees the most disturbing aspect of the Administrative Hearing is learning that the Deputy Attorney General has a right to call the licensee as a witness should he/she choose not to testify. In criminal law, there is a right to not be compelled to testify against oneself. In the licensing context, no such right exists.14
In fact, at the conclusion of the Deputy Attorney General’s case, meaning after all witnesses have testified and the evidence has been presented, the Deputy Attorney General will likely say the following: “Your Honor, at this time, Complainant rests subject to the introduction of exhibits and the right to call respondent as a witness should he/she choose not to testify.”
After all the evidence has been presented and the parties have discussed the admission of exhibits with the Court, both attorneys will be asked to present closing arguments. The licensee may be asked by the Court to make a statement as to whether he or she would have done anything differently. This is the licensee’s chance to show that he or she has learned from this process and from any mistakes. Any licensee appearing before an Administrative Law Judge should be prepared to make such a statement.
What Can A Licensee Do
When faced with the prospect of an Administrative Hearing, some licensees prefer to let their attorneys do all the work. However, for those who prefer a more hands on approach, there are several things a licensee can do to prepare one’s self for the Administrative Hearing.
Certainly, a licensee should be readily familiar with their records regarding the client/patient. The licensee should also know the applicable standard(s) of care. If you were interviewed during the investigation, you should request a copy of the interview tape and possibly have a transcript made, if one has not already been made. It is important to be aware of any statements you previously made. If they are different than what you testify to at the Administrative Hearing, be ready to explain why. Any licensee faced with an Administrative Hearing should meet with his/her attorney to prepare and review the evidence.
During the Administrative Hearing, take copious notes during all live testimony. Doing so will enable you to help your attorney during breaks. For example, if a witness testifies to something that is incorrect based on the record, make a note and share this with your attorney during a break. Additionally, since you will be present during the testimony of the Board’s expert witness, you can get a firsthand account of the issues he/she identifies with your care and treatment of the client/patient. Be ready to address those issues when you testify.
One other thing a licensee can do during the Administrative Hearing is observe the conduct of the Administrative Law Judge. Some Administrative Law Judges are more active than others. At times, Administrative Law Judges have been known to ask questions of witnesses. By observing the conduct of the Administrative Law Judge, the licensee can get a sense of his or her concern(s).
Post Administrative Hearing
Many licensees are surprised to learn that the Administrative Law Judge does not issue a final decision or ruling at the end of the hearing. Following the submission of the case by the attorneys, the Administrative Law Judge typically has 30 days to issue a proposed decision to the Board for consideration.15
The Board, at a closed meeting, will then decide whether to adopt, reject, or modify the Administrative Law Judge’s decision. There have been instances where the Board has rewritten the entire decision and imposed completely different discipline than that recommended by the Administrative Law Judge.
The above process, involving both the Administrative Law Judge and the Board, is entirely confidential. Neither the licensee nor the Deputy Attorney General are involved. Both learn of the decision from the Board at the same time.
At some point, the Board will issue a decision. In the event that discipline is imposed upon a licensee, the licensee may request reconsideration or appeal to Superior Court.
No licensee looks forward to being the subject of a Board investigation or being the recipient of an Accusation. Certainly it is a trying time for anyone under investigation or facing charges. Any member who is the subject of an investigation or who has had an Accusation filed against him/her should take steps to obtain legal counsel. Hopefully this article serves as an educational tool for CAMFT members that will enable them to make their interactions with legal counsel more fruitful.
1 Cal. Bus. & Prof. Code, section 4980.34
2As far as this article is concerned, a distinction must be drawn between the Executive Officer and the Board.
The Executive Officer and his or her staff handle complaints. They make many of the key decisions that will be discussed in this article. The Executive Officer can issue citations and determine fines, but cannot impose discipline on licensees. They do, however, make settlement offers in disciplinary proceedings. If and when an Accusation or other charging document is filed, it will be signed by the Executive Officer or by someone on behalf of the Executive Officer.
The Board does not handle complaints and is not involved in investigations. The Board, as defined in Business and Professions Code section 4990, is composed of two (2) state licensed clinical social workers, one (1) state licensed educational psychologist, two (2) state licensed marriage and family therapists, one (1) state licensed professional clinical counselor and seven (7) public members. Those members, in a Board meeting, are the ones who impose discipline on licensees and registrants.
Additionally, the Board must adopt any settlement agreement that is reached between the parties. They are not, however, involved in any aspect of the investigations.
3 Similarly, the Act provides that in certain circumstances, and when warranted, the Board may seek an injunction in Superior Court to prohibit certain conduct. (See Bus. & Prof. Code section 4983.1).
4 In a separate article available to CAMFT members, “What is the Potential for Recourse Against a Therapist?” CAMFT's former Executive Director Mary Riemersma, writes, “In addition, the Board will usually attach a “Release of Information for Complaints,” signed by the patient, authorizing the therapist to respond to the Board’s inquiry. Therapists should be cautious to verify, prior to responding, that each individual who participated in the therapy has signed appropriate “releases.” Additionally, “Therapists are encouraged to seek consultation from respected clinical and legal resources, including CAMFT, prior to sending their response to the BBS.”
5 See In the Matter of the Accusation Against: Gust L. Hatjes, Ph.D., Case No. DP-2004-435.
6 To CAMFT's knowledge, Penal Code section 23 has been used by the Board on six (6) occasions over the past five (5) years. The criminal charges faced by licensees at the time included kidnapping, making terrorists threats, assault with a firearm, battery, vandalism, and billing fraud.
7 Once a licensee is suspended by a Superior Court judge in a criminal proceeding pursuant to Penal Code section 23, there is no time frame in which the Board must file an Accusation or allow the licensee a hearing to contest the allegations. The suspension is indefinite and the Board can wait until the criminal proceedings are final. Contrast this to Interim Order of Suspension proceedings whereby the Board must file an Accusation within fifteen (15) days and provide the licensee a formal administrative hearing within thirty (30) days.
8 The Boards are required to serve you by certified mail at your address of record. If you have moved, or otherwise changed your address of record, without letting the Board know, it is not an adequate defense to say that you never received the Accusation and Accusation Packet.
9 Business and Professions Code section 125.3, subdivision (a), provides, “Except as otherwise provided by law, in any order issued in resolution of a disciplinary proceeding before any board within the department or before the Osteopathic Medical Board, upon request of the entity bringing the proceeding, may request the administrative law judge to direct a licentiate found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case.” All licensees should be aware of the impact of Cost Recovery when contesting an Accusation and settling a case.
10 See Cal. Gov. Code, section 11520
11 Note that unlike in a criminal case, there is no right to legal representation in an administrative hearing. The Boards will not pay for you to have an attorney. You can have one, but you must provide the attorney and pay for it. In some instances, your employer or malpractice insurance provider will provide the attorney.
12 In cases where an individual is seeking reinstatement or licensure, the burden is on the individual. Nonetheless, the Administrative Law Judge may ask the Deputy Attorney General to present the complainant’s case first.
13 The standard of proof in an administrative action seeking to suspend or revoke a health care professional’s certificate is “clear and convincing evidence.” (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) A preponderance of the evidence requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. Clear and convincing evidence requires a finding of high probability, or evidence so clear as to leave no substantial doubt; sufficiently strong evidence to commend the unhesitating assent of every reasonable mind. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594.)
14 Government Code section 11513, subdivision (b), states in pertinent part: “If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination.”
15 The rule is 30 days, however, there is no sanction if the Administrative Law Judge takes longer than 30 days. Additionally, once the Administrative Law Judge makes a recommendation to the Board, the Board has 100 days to act on that recommendation. (See Cal. Gov. Code, section 11517.)