Tag: Oregon State Board of Nursing

Two “red flags” when interviewing a licensing lawyer to defend your medical license

Posted on June 10, 2016 by - Licensure

Red flag #1: Blaming the licensing Board’s investigator

Earlier this year, a practitioner hired me as her second lawyer, and I took over the representation of her case.  Later, after much of our work had been completed, she expressed surprise at how helpful the investigator had been.  When I asked her why she was surprised, she explained that her first lawyer blamed the investigator, saying something like, “Oh, you have Jane Doe for an investigator, you’re in trouble.”  That was unfortunate.  I have worked with the same investigator and find her easy to work with. More importantly, I regularly represent nurses, pharmacists and physicians before the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board, and there has never been a reason to blame the investigator.  It is my opinion that if a lawyer you interview blames the investigator, keep interviewing lawyers until you find one that works well with investigators.  Your interests will be better served in the short and long run.

Red flag #2: Utilizing a litigious approach with an investigator

Last year I had a chance to ask an investigator what she thought of the relatively small group of lawyers that routinely appear before her licensing Board.  I was surprised to learn that some used a tough approach, keeping communications short, and often implying that a contested case hearing (litigation) would be necessary when, in fact, they seldom are.  Needless to say, these lawyers, due to their uncooperative reputations, were not favored by the investigators.  As my record will demonstrate, I am willing to advance tough litigation in defense of physicians, pharmacists, and nurses, but litigation must be reserved for the right circumstances.

More importantly, consider the disadvantage you may suffer because of your lawyer’s “tough talk.”  For example, throughout the course of a licensing Board’s investigation, much information must be exchanged, and any alleged practice discrepancy prompting the complaint against you must be carefully evaluated.  Consider also that you will most likely be interviewed by the investigator, and much of the work of the interview can be accomplished between your lawyer and the investigator, sparing you much grief.  Whatever the cause of the complaint, solutions must be negotiated.  Ultimately, the investigator will write the summary of your case, including recommendations, that will become the basis of the Board’s decision against your medical license.  For all these reasons, it is my opinion that a cooperative and professional relationship between your lawyer and your licensing Board’s investigator will lead to the most efficient and complete exchange of information, and the best resolution of your case.  Along the way, you will be better informed too.

Do not dismiss the power of your licensing Board

Posted on June 8, 2016 by - Licensure

I have won significant federal court litigation defending health care providers, including physicians and pharmacists.  Knowing this, a health care provider growing weary of defending against his or her licensing Board will occasionally ask why I can’t do more in his or her case.  For example, one physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and one nurse asked whether I could obtain a Temporary Restraining Order (TRO) against the Oregon State Board of Nursing.  The answer is almost always “no.”  Let me explain why.

The 50 states regulate medical licensing and practice standards

In our State-Federal scheme of government, the power to regulate medical practice and licensing is reserved to the 50 states.  Admittedly, there is federal “overlay,” but still, when it comes to ensuring safe medical practice through the licensing of physicians, pharmacists, nurses, that role and power belongs to the states.

The 50 states exercise their “power” through state agencies

You may recall from civics classes that state and federal power is spread across three branches of government, the Legislative, the Judicial, and the Executive branches.  The Executive branch of state government is headed by the Governor, and the bulk of any state’s work is accomplished through a multitude of state agencies belonging to the executive branch.

Your licensing Board is a state agency

Whether you are a physician, pharmacist, or nurse, your licensing Board is a state agency, specifically empowered to ensure the safe practice of your profession (public safety) and the competency of each individual practitioner.

What you need to know: Respect your licensing Board

So, when the physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and the nurse asked whether I could obtain a TRO against the Oregon State Board of Nursing, you now know why the answer was “no.”  Even when the complaint against you is wrong, or the licensing Board is wrong, the licensing Board is nonetheless fulfilling its role as a state agency regulating your profession.  It is true that in some cases there may be an appeal to a state court (this happens occasionally) and, in the exceedingly rare case, an argument for a restraining order from a trial court (this has happened only once in my career), but this is not where you start.  You start with the agency – i.e., your state licensing Board – because your state licensing Board is not only empowered to regulate your profession, it has the most power to do so, and your interests will be best served by taking that power seriously.

More on how to “pass” (or fail) your licensing Board interview

Posted on May 30, 2016 by - Licensure

Whether you are being investigated by the Oregon State Board of Nursing (OSBN), the Oregon Medical Board (OMB), or the Drug Enforcement Administration (DEA), your success during your interview is key to the successful resolution of the investigation.  Today I will share with you the experience of three clients – a nurse, a physician, and a dentist – all of whom went to interview within a 14-day span this month.  Two “passed.”  One “failed.”  Let my tell you why.

The nurse and the Oregon State Board of Nursing (OSBN)

Earlier this year I undertook the representation of a well-qualified and experienced nurse under investigation by the Oregon State Board of Nursing (OSBN).  She went to interview this month.  At one hour and 45 minutes, her interview was long, and seemed even longer with four of us in a room that was too small and too hot.  The interview was led by the OSBN nurse investigator and assisted by an OSBN advanced practice nurse, with my client the focus of attention.

The first hour of the interview was necessary to get at the core issues in this unusually complex case.  The OSBN’s investigator and advanced practice nurse were well prepared (aren’t they always?).  My client was also well prepared, however.

As we passed through the first hour of the interview, I was impressed by the depth of the discussion and by my client’s answers.  I privately marveled at how few members of the public will ever appreciate how carefully the practice of nursing is regulated in Oregon.  My client was subjected to questions for an hour and 45 minutes, by two investigators, and her interview had the tone of a thoughtful discussion.  She passed the test.  The case isn’t over, but my client did a stellar job, and representing her that day was professionally rewarding.

The dentist and the Drug Enforcement Administration (DEA)

I also prepared a dentist for an interview this month before the Drug Enforcement Administration (DEA). In this case, the dentist sought reinstatement of his DEA Registration, earlier surrendered.

In a December 7, 2015 post, I explained that in the right circumstances, reinstatement of a surrendered or revoked DEA Registration is possible.  These can be tough interviews, however, because in cases where a DEA Registration has been surrendered or revoked, there are usually a few “sensitive” issues.  Also, the interviews are conducted by DEA Drug Diversion Agents and, in my experience, there are always two of them.

This interview was nonetheless a success.  By the end of the interview, my client was advised he would have his DEA Registration back in four to six weeks, with a few temporary, common sense restrictions, but nothing that will interfere with his practice.  It doesn’t get much better than that!

The physician and the Oregon Medical Board (OMB)

In the same 14-day span this month, I was hired by a physician but, unfortunately, her interview occurred the week before I was hired, and she went alone, unprepared, and unrepresented.  She “failed.”  Let’s consider what my client was up against.  By the time of her interview at the Oregon Medical Board, the Board’s investigator, the Board’s Investigative Committee’s (IC), and the Board’s expert, had all finished their work.  Counting the Board’s investigator, the Board’s expert, and the four members of the Investigative Committee, six people were prepared to interview my client that day.  If you find yourself facing a Board interview, ask yourself the following questions:

  • What have you done to prepare?
  • Who has given you legal advice?
  • Who has prepared you?

If you cannot answer these simple questions in a reassuring manner (without rationalizations or excuses), you are not ready for your interview.  As I have said many times before, an interview with your licensing Board is no place to show up and see what happens.

The moral of the story

In this case, there is little doubt in my mind that this physician should have passed her interview, had she been ready.  But she wasn’t ready.  Don’t let this happen to you.  An experienced healthcare defense attorney will help you prepare for your interview.

How to “pass” (or fail) your licensing Board interview

Posted on May 21, 2016 by - Licensure

Whether your are a physician, pharmacist, or nurse defending against an investigation by the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing, what I am about to share with you holds true.  At a minimum, you should expect your licensing Board to request (a) your written statement answering the complaint against you, and (b) your appearance at the Board’s office to sit for a recorded interview.  To help my client’s obtain a good interview, I keep the following points in mind while helping them prepare their written statements, and while preparing them for interview.

Know your case and accept responsibility where necessary

Although many Board complaints are full defensible, many others are not, and it is important to know which type of case you have.  While it is professionally rewarding to defend a licensee 100 percent, when a mistake was made, it is often preferable, if not necessary, to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake.  Your licensing Board will respect either approach, so long as we have correctly identified which type of case you have.  An experienced healthcare defense attorney will help you accurately evaluate your case and develop a plan to defend your medical license.

Be well prepared for your licensing Board interview

If you do not know what the issues are, or what the likely questions will be, you are not prepared for your interview.  It is that simple.  Please know that an interview with your licensing Board is no place to show up and see what happens.  If this is your approach, you will fail.  In sharp contrast, an experienced healthcare defense attorney will identify the controlling legal issues and the questions you can expect to be asked during your recorded interview.  Please also know that your investigator will be well prepared to interview you and, by the time of your interview, your investigator will have drawn tentative conclusions about your case.  Some of the questions you will be asked will be well thought out in advance and, in those cases where your written statement was misleading, some of the questions will be pointed, and you will likely face a series of questions intended to expose your lack of candor.  Do not let this happen to you. An experienced healthcare defense attorney will help you avoid this trap.

Do not attempt to mislead your licensing Board

You are taking a huge risk if you attempt to mislead your licensing Board, either in your written statement, or while answering questions during your recorded interview.  Your licensing Board has resources, and it will conduct a background check.  One or more investigators will investigate your background, and the investigators are very skilled at what they do.  If, for example, you had a bad experience in another state, especially one involving a similar issue giving rise to your current licensing Board investigation, you should expect the out-of-state incident to be discovered and investigated by your licensing Board.  Please know that any effort to mislead your licensing Board about the prior out-of-state incident will almost certainly be exposed and, when this happens, you will have lost your credibility with your licensing Board.  Do not let this happen to you.  The better approach is to know when to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake.  This is delicate work, requiring the assistance of an experienced health care defense attorney, to ensure you are adequately defended.

Conclusion

In sum, to ensure a good interview, you need to accurately evaluate your case, you need to be well prepared, and you need to be candid when answering questions, all the while defending yourself and protecting your license.  This is difficult work, and it requires the assistance of an experienced healthcare defense attorney to do it well.

Settling a dispute with your licensing Board

Posted on November 28, 2015 by - Licensure

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.

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

Posted on November 17, 2015 by - Licensure

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.