Is your attorney capable of a smart pharmacist’s license defense?

Smart legal decisions require an experienced pharmacist’s attorney

Two pharmacists recently retained me after coming to the realization that their former attorneys were not representing them well before the Oregon Board of Pharmacy. In the first case, in an ill-advised move, the pharmacist took his case to hearing and his pharmacist’s license was revoked. This pharmacist retained me soon after he was revoked, and I had worked with him less than 20 minutes before I realized his case never should have been litigated, because revocation was all but certain. This pharmacist’s case should have been settled, and it was capable of settlement, but to know this requires relevant experience. After reviewing key parts of the record, it was further apparent to me that the arguments advanced by the pharmacist’s last lawyer were sure losers, revealing a lack of experience with the Oregon Board of Pharmacy, law, and preferable settlement options. Starting all over, we are now on the path to reinstatement of his license, which also requires an experienced pharmacy Board attorney.

In the second case, unlike first, the pharmacist hired me at the start of the Board of Pharmacy’s investigation because he not satisfied with his lawyer’s ability to answer simple questions, such as the following:

  • In light of the complaint against me, what will the Board of Pharmacy likely do?
  • How will discipline in Oregon affect my pharmacist’s licenses in two other states?
  • How will discipline in Oregon affect my employment, and how do I manage it?

When this pharmacist called me, I quickly answered these questions, and he retained me.

How to tell an experienced Oregon Board of Pharmacy lawyer

An experienced pharmacist attorney can quickly answer many questions, will certainly be able to answer the questions set out above. An experienced pharmacist’s lawyer will also be able to explain the process, from beginning to end – starting with the Board’s first letter notifying you of the complaint and requesting your written statement, to the formal interview process, to the Notice of Proposed Discipline, and the settlement versus litigation options. If your lawyer has any relevant experience at all, he or she will have worked with one or more pharmacy inspectors, and will certainly have worked with the Compliance Director for the Oregon Board of Pharmacy. An experienced pharmacist’s attorney will also demonstrate an understanding of the pharmacy laws applicable to your case before the Oregon Board of Pharmacy. In sum, when you ask questions of your lawyer, what follows should be an easy, informative discussion, and very reassuring, not because it is all good news, but because useful information and options are forthcoming. If useful information and options are not quickly forthcoming, consider consulting other attorneys until your comfort level is satisfied.

 

One way to avoid mandatory exclusion by the Office of the Inspector General (OIG)

42 U.S.C. 1320a-7: The OIG and “mandatory” vs. “permissive” exclusion

In a prior post, I discussed the difference between “mandatory” and “permissive” exclusion under 42 U.S.C. 1320a-7, which allows, and sometimes requires, the Office of the Inspector General (OIG) to exclude physicians, pharmacists and nurses from employments that receive federal funding which is, unfortunately, most healthcare employments. I also suggested that one strategy to avoid mandatory exclusion is for you and your lawyer to carefully consider plea and sentencing options, to avoid the type of conviction that will trigger mandatory exclusion in the first place, a point I will emphasize here.

Never forget that mandatory exclusion applies whenever there has been any one of the following: (1) a conviction of a program-related crime; (2) a conviction relating to patient abuse; (3) a felony conviction relating to health care fraud; or a (4) felony conviction relating to a controlled substance. See 42 U.S.C. 1320a-7(a) (1)-(4). If any one of these convictions is present, and absent a few truly extraordinary circumstances, exclusion is mandatory for the proscribed period of time, often five years, but in some cases ten years, or permanently. Consequently, if you are facing the risk of exclusion, permissive exclusion is preferable over mandatory exclusion because, with permissive exclusion, the periods of exclusion are shorter, and the OIG has discretion over whether, and how long, to exclude you. Indeed, in one recent case involving an Oregon pharmacist, I persuaded the OIG to forego permissive exclusion altogether.

Carefully consider your plea options to avoid mandatory exclusion by the OIG under 42 U.S.C. 1320a-7

If your case lends itself to plea negotiations, in order to avoid mandatory exclusion, you and your lawyer will want to avoid agreements to plead to (1) program-related crimes or (2) patient abuse, and, if you agree to plead guilty to (3) health care fraud or (4) a crime relating to a controlled substance, you will want the plea agreement to include an understanding that the conviction should be a misdemeanor conviction, not a felony conviction. These plea agreements can become tricky in a hurry because your lawyer will need to persuade both the prosecutor and the court to accept misdemeanor convictions. Each case is different, presenting unique mitigating factors to present the court in favor of misdemeanor convictions (versus felony convictions), but perhaps one point worth stressing is that a mandatory, five-year period of exclusion, is likely a career-ending event which, in some cases, will be more punishment than the sentencing court intends.

Are you risking mandatory or permissive “exclusion” by the Office of the Inspector General (OIG)?

If you are a physician, pharmacist, or nurse facing significant legal of disciplinary action, both you and your lawyer need to be aware of 42 U.S.C. 1320a-7, which allows, and sometimes requires, that the Office of the Inspector General (OIG) exclude certain individuals and entities from participation in Medicare and State health care programs. For most physicians, pharmacists and nurses, the practical effect of being “excluded” from any employment receiving federal funding is that you are rendered unemployable during the period of exclusion.

Permissive vs. mandatory exclusion by the OIG

Generally speaking, there are two types of exclusion, “permissive exclusion” and “mandatory exclusion.” See 42 U.S.C. 1320a-7(a) & (b). With permissive exclusion, the OIG has discretion whether to exclude the practitioner. The OIG will exercise its discretion based upon the consideration of multiple factors, which means that your lawyer will have an opportunity to plead your case, by presenting mitigating factors to the OIG against being excluded. With mandatory exclusion, however, mitigating factors will not help you. With mandatory exclusion, if any one of the triggering events is present, and absent a few truly extraordinary circumstances, the exclusion is mandatory for the proscribed period of time, often five years, but in some cases ten years, or permanently. Consequently, the first thing your lawyer should do is to determine the type of exclusion you risk – mandatory or permissive.

Factors that trigger mandatory exclusion by the OIG

Mandatory exclusion applies, for example, when any one of the following events occur: (1) a conviction of a program-related crime; (2) a conviction relating to patient abuse; (3) a felony conviction relating to health care fraud; or a (4) felony conviction relating to a controlled substance. See 42 U.S.C. 1320a-7(a) (1)-(4).

Opportunities to avoid mandatory exclusion by the OIG

If you are facing mandatory exclusion, it is important that your lawyer first verify that you belong in a category that triggers mandatory exclusion. Once you verify that you are properly subject to mandatory exclusion, the opportunities to avoid exclusion are few, but they do exist (e.g., vacation of judgment, or reversal of judgment on appeal, or obtaining a sole community provider waiver). If you cannot avoid permanent exclusion, your lawyer’s next task to hold the period of exclusion to its minimum. Remember, the five and ten-year periods of exclusion are the minimum periods of exclusion – the OIG can extend these minimum periods if aggravating factors warrant. Perhaps the best strategy to avoid a mandatory exclusion is to carefully consider your plea and sentencing options and strategies, to avoid the type of conviction that will trigger mandatory exclusion in the first place.

Factors that trigger permissive exclusion by the OIG

Permissive exclusion may be ordered by the OIG when, for example, there is: (1) a conviction relating to fraud; (2) a conviction relating to obstruction of an investigation or audit; (3) a misdemeanor conviction relating to a controlled substance; (4) a license revocation or suspension; (5) exclusion or suspension by another Federal or State health care program; (6) a claim of excessive charges or unnecessary services or failure of certain organizations to furnish medically necessary services; (7) fraud, kickbacks, and other prohibited activities; (8) an entity controlled by a sanctioned or excluded individual; (9) the failure to disclose required information; (10) failure to supply requested information on subcontractors and suppliers; (11) failure to supply payment information; (12) failure to grant immediate access to premises or records; (13) failure to take corrective action; (14) the default on a health education loan or a scholarship obligation; (15) to individuals controlling a sanctioned entity; or (16) making a false statement or misrepresentation of material fact. See 42 U.S.C. 1320a-7(b) (1)-(16).

Opportunities to avoid permissive exclusion by the OIG

With permissive exclusion, the OIG has discretion whether to exclude the physician, pharmacist, or nurse. The OIG will exercise its discretion based upon the consideration of multiple factors, factors that essentially allow the practitioner to plead his or her case against exclusion. Because each case is unique, the factors that are identified and argued on your behalf will depend upon the skill and experience of your lawyer. For example, I represent physicians, pharmacists, and nurses before the OIG, and I recently helped an Oregon pharmacist avoid permissive exclusion by arguing four mitigating themes, that included: (1) the pharmacist’s unusual circumstances; (2) the pharmacist’s inadequate prior legal representation; (3) the pharmacist’s lack of prior legal or disciplinary history; and (4) the appropriateness in this case of Federal deference to State licensing Boards – i.e., the Oregon Board of Pharmacy and the Washington Board of Pharmacy – as sufficient regulators. It was with a sense of relief that we recently received the OIG’s letter explaining that, based upon our explanation of the underlying circumstances, that the OIG was taking no further action, and instead closing its file.

The Oregon pharmacist’s role in preventing prescription drug diversion

The “corresponding responsibility” imposed on Oregon pharmacists

It is a crime is to “knowingly or intentionally” distribute or dispense a controlled substance unless “authorized” by the Controlled Substances Act (CSA). See, 21 U.S.C. § 841(a). Authorization is obtained by “registering” with the Attorney General. See, 21 U.S.C. § 822(a)(2). Persons registered with the Attorney General are authorized to possess, manufacture, distribute, or dispense controlled substances to the extent authorized by their registration. See, 21 U.S.C. § 822 (b). Physicians licensed by a state and registered with the Attorney General are “practitioners” and, as such, they are authorized to prescribe and dispense controlled substances (see, 21 U.S.C. § 829(a)&(b)) in “the course of [their] professional practice.” See, 21 U.S.C. § 802(21); see also, United States v. Moore, 423 U.S. 122, 140 (1975). Similarly, pharmacists licensed by a state and practicing in a pharmacy registered with the Attorney General, are authorized to dispense controlled substances. Giving effect to this federal statutory scheme, the Drug Enforcement Administration (DEA) promulgated a regulation that broadly requires all prescriptions to be issued for a “legitimate medical purpose” and imposes “a corresponding responsibility [on] the pharmacist who fills the prescription.” See 21 CFR § 1306.04(a). A pharmacist’s failure to observe whether a prescription is issued for a legitimate medical purpose can lead to administrative and criminal sanctions.

The difficult task faced by Oregon pharmacists

Compared to the prescribing physician or nurse, a pharmacist’s exposure to a patient is but a brief encounter. For most patients, a visit to a pharmacy is more akin to a sales transaction that a health care event and, should something seem amiss to the dispensing pharmacist, neither the patient nor the patient’s prescribing physician will have much tolerance for questions. Nonetheless, it is in this environment that the Oregon pharmacist is expected to ensure that all prescriptions are issued for a legitimate medical purpose.

The current practice standard: screening for “red flags”

I can assure you from my work defending physicians and pharmacists that screening for red flags is expected of all practitioners. For the pharmacist, however, screening for red flags may be one of the better tools available to detect prescription drug diversion, to ensure that all prescriptions are issued for a legitimate medical purpose. Agreeable or not, screening for red flags is also important because whether a pharmacist screened for red flags will be a consideration for the Oregon Board of Pharmacy and DEA drug diversion investigators whenever there is a suspicion of drug diversion and one or more red flags were present. The Oregon Board of Pharmacy addresses screening for red flags on its website at: http://www.oregon.gov/Pharmacy/pages/index.aspx), and further links to an YouTube educational video: https://www.youtube.com/watch?v=WY9BDgcdxaM&feature=youtu.be:

While screening for red flags to prevent drug diversion has its limits (and its critics, which include patients, prescribing and dispensing practitioners, and pain control advocates who may feel pitted against one another), it is nonetheless the current practice standard against which a pharmacist’s conduct will be measured, and it is therefore important to incorporate this type of scrutiny into the Oregon pharmacist’s day-to-day practice.

 

Reinstatement after surrender or revocation of your DEA Registration

In a prior post (November 26, 2015) I wrote about reinstatement of medical licenses for physicians, pharmacists, and nurses after revocation by (or surrender to) the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board. Today I want to add that in the right circumstances, reinstatement of your DEA Registration by the Drug Enforcement Administration (DEA), is also possible.

Key considerations that a DEA Registration lawyer can help you with

I have guided one physician through reinstatement of her DEA Registration after it was revoked and that experience was like most other reinstatement applications. There are numerous issues to consider before reapplying and a licensure lawyer with DEA Registration experience can guide you through the analysis. For example, reinstatement of a DEA Registration is more likely if the DEA Registration was surrendered or revoked through an administrative proceeding (which is a civil proceeding), as opposed to a criminal proceeding. This should come as no surprise.

Also, if your DEA Registration was revoked, it will be necessary to wait-out the proscribed period of time before reapplying, and if your DEA Registration was surrendered, it will be necessary to wait-out the agreed upon period of time (if such an agreement was reached) before applying for reinstatement, and whatever the circumstances that led to the surrender or revocation of your DEA Registration should be addressed too. If you are smart and plan ahead, the wait period can be used to address or correct whatever it was that led to the surrender or revocation of your DEA Registration in the first place.

Be aware that the online application to reinstate your DEA Registration is designed to solicit full disclosure, and you will be required to disclose the history that led to the surrender or revocation of your DEA registration. Explanations will be required too. Explanations should be carefully constructed, well in advance; the moment of your online application is no time for experimenting with answers, phrasings, etc.

Know that because you will have answered “yes” to the disclosure questions, a larger review will be triggered. Your answers and explanations will need to be complete and accurate (but without saying more) to withstand the heightened level of scrutiny that will be imposed. Finally, you should expect to be interviewed by drug diversion agents before your application to reinstate your DEA Registration will be granted or denied. Such interviews are in-person and recorded. These interviews require thoughtful and detailed preparations; this is not a time to casually “show up and see what the questions are.” An experienced DEA attorney will know what concerns the DEA and can help you anticipate the questions and provide complete, accurate, and helpful answers.

A second chance for a DEA Registration is rare – don’t waste it

A second chance to possess a DEA Registration is rare and the process is complex. You will be dealing with administrative law, DEA lawyers, and drug diversion investigators. Do not waste your opportunity for reinstatement. Plan ahead, obtain competent legal advice, and do not delay seeking competent legal advice until you know things are going badly. By then, the common mistakes will have been made and you will have lessened your odds of success.

 

Settling a dispute with your licensing Board

Is settlement possible?

The answer to this question is emphatically “yes.” In fact, most cases that proceed beyond an investigation, to the issuance of a Notice of Proposed Disciplinary Action, are settled. This is true whether you are a nurse, pharmacist, or physician licensed by the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board. Such settlements are known by a different name – a “consent order,” or a “stipulated order,” to name two examples – but these are settlements nonetheless.

How to settle your case

Unlike most settlements,you don’t pay money to settle a disciplinary matter. Instead, you agree to accept “discipline” by your licensing Board. In a case involving a “minor” violation or discrepancy, the settlement may be an agreement to accept a “reprimand.” A reprimand is on the low end of the disciplinary continuum, typically the starting place for discipline, although a reprimand should not be dismissed lightly, a point I stressed in a prior post on September 25, 2015. If a reprimand is not enough, perhaps a fine or short suspension will be necessary to reach settlement. In a more difficult case, you may need to negotiate probation, and perhaps the imposition of practice mentors and monitors. In the worst case, you are left to negotiate surrender of your licensure, and, hopefully a fw key terms of future reinstatement

A smart settlement requires an experienced lawyer and an experienced investigator (the investigator with your licensing Board is most likely experienced, but if not, rest assured, someone else with experience will negotiate on behalf of the Board). The trick to a smart settlement is that both negotiators must be experienced in order to recognize the most likely outcome, whether your case is litigated or settled. The goal of a smart settlement is to get to the “bottom line” quickly sparing cost and grief. Unreasonable expectations on either side with thwart a smart settlement.

Is settlement necessary?

A settlement is never necessary, because a licensee always has a right to a hearing to defend his or her license, unless or until you waive that right, usually as part of your settlement. Even if settlement is not necessary, settlement should always be considered. I had two cases this year in which settlement was earnestly discussed, but ultimately rejected. The investigator proposed settling offering to stipulate to a reprimand in each case. In the end, however, I recommended against a reprimand-settlement after determining that neither of my clients violated any law or practice standard. My clients accepted my recommendation and, in the end, the Board closed both cases without discipline. The two examples show why experience is helpful, if not necessary.

In a more serious case, especially one where you are exposed to revocation of your license, settlement may be your best option, and perhaps the only way to manage risks and control expenses. In the worst of cases, where your licensing Board is pursuing nothing short of revocation, settlement may be your only option if you want to manage risks and ensure that you keep your license.

How to proceed

An experienced licensure lawyer will be necessary, otherwise your decision to settle, to stand firm, or to proceed to hearing, will be more akin to a gamble that an informed decision. An experienced lawyer will be able to evaluate your specific circumstances and make reasoned recommendations. In some cases, an experienced lawyer can strongly recommend when to stand firm, or when to settle. In other cases – the close-call cases – an experienced lawyer can make recommendations in the alternative, enumerating the pros and cons for each recommendation, enabling you to make the best decision in your unique circumstance. In the worst of cases, where your hearing will certainly result in a loss, an experienced lawyer will recognize that inevitability and tell you as much, i.e., that anything gained through settlement will be more than will be gained by taking that case to hearing. An experienced lawyer will guide you through this process.

Reinstatement after surrender or revocation of your state medical license

There is a second chance

This week have I worked with a pharmacist and a nurse, both of whom are taking steps toward reinstatement of their licenses to practice pharmacy and nursing. In the nurse’s case, she surrendered her license just over a year ago. At that time, we negotiated a few key terms of reinstatement as part of a larger settlement.Today her application for reinstatement is pending. In the pharmacist’s case, his revocation was the recent result of taking his case to hearing, and losing. He retained me afterward. Despite his recent revocation, there was an extenuating fact or two and, only months after his revocation, he is taking the first steps necessary toward reinstatement.

Reinstatement after revocation or surrender is possible

Both the nurse and the pharmacist have reason to be hopeful about reinstatement. These are not pie-in-the-sky dreams in either case. In both cases, reinstatement is a very real possibility. On behalf of the nurse, I am working directly with the investigator at the Oregon State Board of nursing that accepted the nurse’s surrender of licensure just over one year ago. Similarly, on behalf of the pharmacist, I am working directly with the individual at the Oregon Board of Pharmacy most closely connected to the pharmacist’s revocation of licensure. These are very real and genuine discussions, with the representatives of each licensing Board being helpful and encouraging.

What you need to know

If you have surrendered your license, or lost your license to revocation, and you want to practice again, there is hope. In the two cases I mention above, the path to reinstatement will require approximately 18 months of earnest work. There are no tricks, and there is no magic, and whatever the circumstances that led to the surrender or revocation of your licensure, those circumstances will need to be fully addressed. Trust with your licensing Board will need to be fully reestablished.

How to get started

After surrender or revocation, your position is too weak and you are too emotionally involved to do this on your own. In the right circumstances, I can approach the licensing Board on your behalf, negotiate a potential reinstatement process, and then guide and represent you throughout that process. Nothing is guaranteed, however, and honest hard work will be required. If either one of us falters in this regard, your chances of reinstatement will be reduced.

Pharmacists: Protect yourself by spreading responsibility

The responsibilities of an Oregon pharmacist are extensive

A pharmacist licensed to practice pharmacy by the Oregon Board of Pharmacy has the duty to use that degree of care, skill, diligence and professional judgment that is exercised by an ordinarily careful pharmacist in the same or similar circumstances. See OAR 855-019-0200. The general responsibilities of a pharmacist are extensive, and there are many opportunities to make a mistake. See, e.g., OAR 855-019-0200(1)-(7) (listing some responsibilities). Moreover, a retail or institutional pharmacy may only only be operated when a pharmacist is physically present in the pharmacy to supervise the pharmacy. See OAR 855-041-1015(1). It should come as no surprise then, that most mistakes or problems will be assigned to the pharmacist on duty when the mistake is made or the problem arises in some damaging way.

Be wary, share the problem, and implement corrections

Although a practicing pharmacist will always be responsible for meeting professional standards, be wary of accepting responsibility for institutional problems, or the problems of others. If workload is too high to avoid medication or dispensing errors, or if technicians or cashiers are exceeding the lawful scope of their respective roles, or whatever the problem may be, expose and share the problem. Be proactive. Find and implement solutions. Otherwise, you may be assuming sole responsibility for problems and mistakes that will no doubt occur under your supervision.

Do not become isolated; report upstream; seek help

If problems are not easily corrected, do not sit of the problem. Do not become isolated with the problem. Instead, report the problem upstream. A friendly email spotting a potential problem and asking for help is a good place to start. Proposing a solution is even better. The worst thing you can do, however, is to become isolated and do nothing, all the while being responsible for an unsafe practice that will eventually result in a problem that is reported to the Oregon Board of Pharmacy. When that happens, blaming the pace of workplace, or the staff, or the corporate management, will not get you very far if you failed to address the problem you spotted on your watch, while you were supervising the pharmacy.

Report the problem to others licensed by Oregon Board of Pharmacy

Each pharmacy must have one pharmacist-in-charge employed on a regular basis at each location who shall be responsible for the daily operation of the pharmacy. See OAR 855-041-1010(1). Share the problem with your pharmacist-in-charge. If you are the pharmacist-in-charge, report up to management and ownership. Remember, the pharmacy is also licensed by the Oregon Board of Pharmacy, and the pharmacy must ensure that it is in compliance with all state and federal laws and rules governing the practice of pharmacy and that all controlled substance records and inventories are maintained in conformance with the keeping and inventory requirements of federal law and board rules. See OAR 855-041-1010(2). If you instead choose to “sit” on a problem until it results in a complaint to the Oregon Board of Pharmacy – because your believe you lack the authority to correct the problem, or your believe that management “won’t do anything” – then the problem will be your problem alone, when the Oregon Board of Pharmacy becomes involved. Don’t let this happen to you.

When all else fails

If you genuinely believe you have no one to report to that will help you, then the problem is truly yours to resolve. At this point, you will be best served to consult a pharmacy inspector, or an experienced attorney, for guidance. An experienced licensure attorney can contact the Board of Pharmacy looking for solutions, without disclosing your name. In the rare event that you are left with no other alternative than to report your pharmacy to the Oregon Board of Pharmacy, an experienced licensure attorney can make the report for you, in the most constructive fashion. The alternative is to sit on a ticking time bomb. Don’t do it.

When facing serious discipline, do not assume your license in another state is safe

In a prior post on August 30, 2015, I cautioned against applying for a new license in a second state before an investigation in your home state is concluded. The reason was simple. Once you are disciplined by one state licensing Board, the licensing Boards in the other states in which you are licensed will likely follow suit by opening a second investigation, often imposing some form of discipline, or even mirror-image discipline, sometimes called “reciprocal discipline.” Knowing this, it is almost always a mistake to apply for a new license in another state while a current investigation and potential for discipline is pending against you in your home state. It just leads to another investigation in a state you have never practiced. Don’t risk it, unless there are extenuating circumstances and the consequences are fully understood. This practical advice applies whether you are licensed as a physician, pharmacist, or nurse, facing discipline by the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing.

Today’s warning

Today I have a different warning: If you are facing serious discipline by your home state licensing Board, do not simply assume that your license in another state is safe. Here’s why: Once you are disciplined by your home state, you will likely have an obligation to report that discipline to all other licensing Boards in all other states in which you are licensed. Even if you fail to self-report your discipline to the other state licensing Boards, your discipline may be reported to a national data bank, and the other state licensing Boards will learn of your discipline through the national data bank. So, I repeat myself: If you are facing serious discipline by your home state licensing Board, do not simply assume that your license in another state is safe, and this practical advice applies whether you are licensed as a pharmacist, physician, or nurse, facing discipline by the Oregon Board of Pharmacy, the Oregon Medical Board, or the Oregon State Board of Nursing.

Work for the best result, but plan for the worst result

As I write this, I can think of one individual who lost his license in a revocation proceeding all the while thinking he could move to a nearby state in which he was licensed. It is, unfortunately, never that simple when a health care provider’s medical license is revoked or surrendered. And never forget that some serious offenses, the type of offenses that may lead to the surrender or revocation of your license to practice medicine, pharmacy or nursing, may result in your being excluded – i.e., federal exclusion by the Office of the Inspector General, or “OIG” – from participation in any employment that receives federal subsidies, reimbursement, or payment, which is most of the employments available to you as a physician, pharmacist, or nurse.

Be conservative to avoid surprises

This is important: Whenever you consent to discipline in one state, analyze the impact of that discipline on licenses you hold in other states. Always assume that similar discipline will follow in all other states in which you are licensed until you know otherwise. Be smart, make decisions and plan accordingly. And do not forget to consider the risk of federal exclusion by the OIG. In sum, you may be able to practice in another state after surrendering or being revoked elsewhere, but do the hard work first, and do not rely upon assumptions. An experienced licensing Board attorney can guide you through the analysis.

Do license applications cause a sinking feeling in the pit of your stomach?

If you are a physician, pharmacist, or nurse applying for a new license, or submitting a renewal application on an existing license, you have faced the “disclosure questions” that can be troublesome for some to answer. If you have recently hit the “submit” button, and experienced a sinking feeling in the pit of your stomach, you know what I am talking about.

Avoiding mistakes in the first place – one example

A common example is the arrest, stop, or conviction for driving under the influence of intoxicants – or a DUII. You must read the disclosure questions carefully, and just because you answered “no” in one state does not mean you will be able to answer “no” in all states in which you are licensed, or seek a new license. For example, a physician licensed in California, Oregon, and Washington, filing online renewal applications, will face different questions in each state and, depending on the facts of the DUII, may not need to disclose the traffic stop in Californian or Washington, but will almost always be required to disclose the traffic stop in Oregon. It all comes down to the specific facts of your case and how each state’s disclosure questions are worded and, with respect to this example, the Oregon Board of Medicine asks the tougher question. To avoid mistakes, it is necessary to read the disclosure questions very carefully, and to answer each question accurately. If you have a doubt, or experience that sinking feeling in the pit of your stomach, stop, and consult an experienced licensure lawyer immediately.

Too late? – Correct your mistake by filing an amended application

If you are a physician, pharmacists or nurse, and you have recently answered “no” to a disclosure question that required a “yes” answer, if you take quick action, it is not too late to amend your license application, to correct your mistake. I recently represented a out-of-state nurse that found herself in such a position. She had a minor criminal history incurred while she was young, before she was a nurse. She very much wanted an Oregon nurse’s license, and she did not want to make a mistake that would risk her license application, but the moment she submitted her online application to the Oregon State Board of Nursing, she feared she has acted too quickly, and that sinking feeling in the pit of her stomach set in. She called me, and I quickly called the Oregon State Board of Nursing, to ask that the Board hold off and wait for our amended application. Together we reviewed her application for completeness, and determined a small amount of information should be supplemented, and we quickly furnished it to the Board of Nursing, supplementing, or amending, her previous application. The Board of Nursing responding favorably, and she is now an Oregon registered nurse.

What not to do

I am aware of one case involving an out-of-state pharmacist that never disclosed a decades-old drunk driving arrest, and another case involving a Certified Nursing Assistant (CNA) that never disclosed a decades-old disorderly conduct arrest. Their failure to disclose in other states went undetected for numerous renewal periods, creating a false sense of comfort, until the pharmacist and the nurse each applied for licenses in Oregon, with the Oregon Board of Pharmacy and the Oregon State Board of Nursing, and their failure to disclose was caught.

For whatever reason, an old incident that should have been disclosed in each case, but was not, and was never caught elsewhere, was caught in Oregon. I don’t know if this was due to constant improvements in search engines and data banks, or if the background checks in Oregon are more rigorous, but it matters not – if disclosure was required, and the failure to disclosure is caught, you have a problem.

Medical licensing Boards see the failure to disclose as a veracity problem, not a mistake, and oftentimes the failure to disclose is worse than the underlying problem that required disclosure in the first place. Do not make this mistake. Take proactive steps to correct your application before the mistake is discovered. Please know that once the mistake is caught by your licensing Board, it is no longer considered a mistake. You now have a larger problem.