Medical Board Investigation Criminal.

In California, medical-board proceedings can run on a parallel track to related criminal investigations. In other words, while it may seem like common sense for the board to wait for the criminal charges to be adjudicated, these proceedings can move forward independently. As a result, professional licensure can be suspended or revoked before criminal charges have been filed, or even if they are eventually dismissed. This is because a criminal conviction is not a necessary prerequisite for professional licensing board discipline.

For example, a controlled-substance diversion allegation can trigger a criminal investigation into the unlawful distribution of prescription opioids, while the state medical board initiates a licensing investigation for prescribing practices and physician impairment. The board will not necessarily wait for a criminal plea agreement or verdict.

Similarly, allegations of billing irregularities can trigger both a state-level medical board investigation for professionalism and ethics violations, and a federal investigation for Medicare, Medicaid, or Tricare billing fraud. When these investigations happen at the same time, they require an integrated defense. For example, an admission made to a medical board regarding billing practices may be used to establish intent by federal criminal investigators or prosecutors. In these cases, the underlying charges being investigated by each authority can run parallel, yet both provide different challenges, risks, and potential consequences. This means that a cohesive defense strategy focused on both the civil and criminal aspects of the investigation is required.

Licensing board discipline also does not require a finding of a specific criminal offense. For example, patient harm is not necessary in order to pursue professional discipline, and even if it did occur, it may not be the primary basis of the investigation. In some cases, a physician’s or nurse’s medical board investigation may focus on the risk that a practitioner poses to the public rather than past conduct. When faced with these licensing challenges, an experienced healthcare defense firm can help navigate the unique and often complex administrative processes involved.

Finally, it’s important to keep in mind that administrative licensure proceedings have a much lower standard of proof than criminal prosecutions. While criminal convictions require proof beyond a reasonable doubt, administrative license revocation or suspension only requires “clear and convincing” evidence. Therefore, a licensing board may find grounds for discipline even if a criminal case does not lead to a conviction.

What Must a Physician Do When an Indictment or Conviction Triggers a Board Request for Records?

Physicians in California are required to report felony indictments or informations to their licensing entity. California physicians are also required to report misdemeanor and felony convictions to their licensing entity. These mandatory reporting provisions of the California Business and Professions Code, section 802.1, require physicians to disclose these indictments and convictions within 30 days of the occurrence.

Regarding access to patient records, California medical information and HIPAA privacy rules impose restrictions on the access, use, and disclosure of protected patient information. These rules include strict confidentiality provisions, and their failure can lead to civil, administrative, or criminal penalties.

Law enforcement exceptions to HIPAA, the Privacy Rule’s provisions regarding medical-board requests for records, and California’s medical information privacy laws do not by themselves give a physician’s or nurse’s defense counsel access to all information that may be used in the licensing board’s investigation. They primarily address disclosures to law enforcement and licensing-board personnel; defense access may instead depend on patient authorization, an applicable discovery rule, or a subpoena. As a result, it is essential to work with experienced defense counsel that knows how to request this information, and how to preserve the information if the board doesn’t protect it.

Finally, while not every medical-board investigation involves criminal charges, it may trigger a healthcare license-related complaint investigation by the Texas Medical Board (TMB) or another medical regulatory agency. TMB investigators may contact physicians by letter or telephone. Generally, in response to complaints, they will request records for review.

Summary: Is it Possible to Retain Your License While Facing Criminal Charges for Medical Malpractice?

Yes, it is possible to retain your medical license while facing criminal charges for medical malpractice or other criminal acts. However, the ability to keep your license in these situations is not guaranteed, as boards and other regulators have broad authority to suspend or revoke licenses during criminal proceedings or as a result of criminal misconduct. Effectively, it’s important to take the licensing aspect of your case seriously and work closely with an experienced legal team to protect your medical practice and your license.

Q: Can You Keep Your License Pending Medical Malpractice Charges?

In some cases, it is possible to keep your medical license pending medical malpractice or other criminal charges. However, the medical board or regulatory authority has the discretion to make this determination based on the specific circumstances of the case. When facing criminal charges, healthcare providers must work closely with experienced defense counsel to protect their licenses and their reputations as best as possible.

Q: When Could My License be at Risk?

The medical board or regulatory authority will suspend or revoke your medical license if it has reasonable grounds to believe that patient safety is at risk, or if you have the right of an indictment or conviction. It’s also possible to have your license suspended or revoked if there is sufficient evidence of substantial harm or risk of substantial harm to the public in these cases. Additionally, in some cases, your license may be at risk during the licensing board’s proceedings.

“I am a straight shooter,” Todd Spodek says of his own practice. “I tell clients exactly where their case stands.”

When Can an Administrative Complaint or Accusation Become Public While Criminal Charges Remain Unresolved?

In California, a formal Accusation initiates the administrative hearing process. These administrative proceedings are conducted pursuant to the Administrative Procedure Act (APA), and they are administrative proceedings that closely resemble a court trial and are presided over by an administrative law judge. In this process, defense counsel will have an opportunity to challenge the state’s accusations, and the burden will be on the state to prove that a violation has occurred, and to what extent the violation may warrant disciplinary action.

Similar, but with significant differences, Florida allows for a more flexible administrative hearing process. When a complaint is filed with the Florida Department of Health, the process usually proceeds as follows:

• No Probable Cause Findings, A finding of no probable cause generally keeps the complaint and investigative information confidential, subject to the statutory process for providing additional information. This prevents unnecessary public exposure and avoids the need for professional discipline where it is not warranted.
• Letters of Guidance, Sometimes, a physician or nurse may receive a non-disciplinary letter of guidance (LOG) from the Florida Board of Medicine or nursing board. These letters inform the provider of a potential issue and recommend changes or adjustments to avoid the risk of professional discipline in the future. LOGs do not result in a public record or disciplinary record.
• Administrative Complaints, In cases where the Medical Board or other board finds probable cause to issue an administrative complaint, this becomes a public record 10 days after the probabale-cause determination. This is the case even if the provider has not yet been disciplined or entered into a consent agreement. In these cases, a timely and cohesive defense is necessary to avoid unnecessary public exposure.

At this point, the formal board record may become publicly accessible, and the provider may face further licensing challenges in the future. In these situations, it is critical for your defense counsel to work with the medical board or other board to obtain a favorable result or a settlement agreement that does not result in public disclosure.

Can a Plea, Acquittal, or Conviction Still Affect Hospital Privileges and Other State Licenses?

A plea agreement or deferred adjudication in Texas, if it results in any level of administrative liability or professional license suspension, will almost certainly trigger a state-level licensing investigation. This is true regardless of whether the plea agreement allows the defendant to avoid a criminal record or criminal liability.

Hospital credentialing agreements are usually very broad. These agreements generally require reporting of any pending criminal investigation or licensing board proceedings, and they often give hospitals the ability to unilaterally terminate privileges pending investigations as well. In many cases, the existence of an administrative investigation will lead hospitals to launch their own peer-review investigations or other inquiries.

Additionally, board discipline in one state can have implications for your hospital privileges or your license to practice in other states. Many state medical boards have reciprocity agreements, which mean that any disciplinary action taken by one board can trigger reciprocal discipline in other states. In some cases, a hospital or medical group may also require a physician to report any disciplinary action taken by any state board or any loss of privileges in any hospital or practice.

Finally, an acquittal in a criminal case will not automatically resolve the licensing allegations. While the licensing board has the option to consider an acquittal in its proceedings, it can also independently investigate licensing violations. As a result, it is possible for a physician to be acquitted of criminal charges while still being subject to professional discipline. Similarly, while not all criminal convictions warrant revocation of a professional license, a criminal conviction can be used as evidence in an administrative licensing proceeding.

Ultimately, it is important to approach these cases with an integrated approach that accounts for all potential consequences. At Spodek Law Group, our lawyers work on both sides of this issue. We are available to defend healthcare professionals and companies who have been targeted for criminal investigation or professional licensing discipline. We also provide compliance services to healthcare providers and companies looking to defend themselves against allegations of healthcare billing fraud or other similar allegations. If you have questions about your risk of facing criminal charges, loss of hospital privileges, or other administrative sanctions, we encourage you to contact our experienced attorneys today.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.