Category Archives: law enforcement

IS REPORTING MANDATORY?

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Our communications are not intended to deal exclusively with mandatory reporting requirements, whether applicable or not. The Administrative Procedure Act (APA) is found in the California Government Code, section 11340 et seq. This statute establishes “rulemaking” procedures and standards for California state agencies. Additionally, California regulations must be in compliance with regulations adopted by OAL (see California Code of Regulations, title 1, sections 1-280).  The California Code of Regulations is the official publication of regulations adopted, amended or repealed by California state agencies. Reporting requirements vary from state to state and may be different from one California Regulatory Agency to another. The mandated reporting can be found in the particular license “Practice Act” as well as the rules and regulations that apply to  the profession or occupation.

Example for a Pharmacist: ANY controlled substance loss, small or large, must be reported to the California Board of Pharmacy (BOP) within fourteen (14) calendar days from the date of loss when it was a result of the theft by a licensed employee, or when it is from any other type of loss, within thirty (30) calendar days.

Example for an RN: is the reporting of convictions by Applicants for an RN license issued by the Board of Registered Nursing (BRN). All prior convictions substantially related to the duties, functions and/or qualifications of a registered nurse are reviewed by the BRN on a case by case basis. Since July 1, 2020, applicants are not asked about their prior criminal conviction history, but they will be discovered upon the Board’s receipt of an individual’s fingerprint results.The Board will not generally take action on convictions older than seven years, however, there are several exceptions, such as a serious felony that includes approximately 42 different crimes. Upon renewal of a nurse’s license, the BRN requires nurses to disclose whether they have had ANY license disciplined by a government agency or other disciplinary body; or if they have been convicted of any crime in any state, U.S. territory, military court or other country since their  last renewal. Failing to disclose ANY conviction may be grounds for disciplinary action as the government will contend you falsified information required on your renewal form; this is mandatory even when a conviction is expunged. As stated earlier in this paragraph, any felony or misdemeanor conviction substantially related to the duties, functions and/or qualifications of a registered nurse can be the basis for disciplinary action.

Example for a Physician, who is licensed in California is required to notify the Medical Board (MBC) of certain specific occurrences. Reporting forms and links are set forth below. Pursuant to California Business & Professions Code:

  • § 801.01(b)(2), a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount, if the licensee does not possess professional liability insurance. (See Report of Settlement, Judgment or Arbitration Award)
  • § 802.1, a licensee must report:
  • An indictment or information charging a felony against the licensee.
  • A conviction, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (See Physician Reporting – Criminal Actions)
  • §2240, a licensee who performs a medical procedure outside of a general acute care hospital, that results in the death of any patient on whom that medical treatment was performed by the licensee, or by a person acting under the licensee’s orders or supervision, shall report, in writing, on a form prescribed by the board, that occurrence to the board within 15 days after the occurrence. (See Outpatient Surgery – Patient Death Reporting Form)
  • § 2021, each licensee shall report to the board each and every change of address within 30 days after each change. (See Notification of Name Change and Address of Record )

We begin with a laser focused analysis of all of the facts and circumstances, and a pivotal strategy to develop a lengthy and comprehensive written presentation, 60 to 75 pages, so that our client is not defined by the actual and perceived conclusions regarding an underlying case. In addition, we pursue and underscore exculpatory evidence and other proof by initiating steps that minimize the risk our client is charged with unprofessional conduct &/or other grounds for disciplinary action. We do not gamble on the Regulatory Agency claiming the underlying situation is substantially related to the duties, functions and qualifications of a licensed professional or occupation. We also do not want to gamble the governmental agency may not perceive there is a basis  to conclude a possible threat to the health and safety of the public; nor do we want to risk by assuming that unequivocally the underlying matter does not evince unfitness, lack of good judgment, etc.

Please note the CALIFORNIA CODE OF REGULATIONS, 16 CCR § 1444 states: [§ 1444. Substantial Relationship Criteria]. “A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety, or welfare Such convictions or acts shall include but not be limited to the following: [Emphasis Added; we prefer to error on the side of caution and, therefore, have provided the information herein]:  (a) Assaultive or abusive conduct including, but not limited to, those violations listed in subdivision (d) of Penal Code Section 11160. (b) Failure to comply with any mandatory reporting requirements. (c) Theft, dishonesty, fraud, or deceit. (d) Any conviction or act subject to an order of registration pursuant to Section 290 of the Penal Code (Emphasis Added).

We understand a previous case may be unsettling; however, our role is to level the playing field and we do so by underscoring in a long written argument both a defense and offense. If you have a situation you would like us to be of  assistance, do not hesitate to send an email [or call us at 1.619.583.0350] during our regular hours of 8:30 am to 8:30 pm seven (7) days a week.

 

Mandatory Patient Prescription Reporting Data Base

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On July 1, 2016, Health and Safety Code Section 11165.1 required all designated California licensed professionals who are authorized to prescribe, order, administer and/or furnish Schedule II, III and IV controlled substances to register, on a database that is commonly referred to as CURES 2.0,  the Controlled Substance Utilization Review and Evaluation System. CURES is the prescription drug monitoring program mandated in California. Practitioners can access tips and  Registration pointers as well. Other critical and substantive information is available in the form of a Practitioner’s Manual.

Effective October 2, 2018, it is mandatory for Physicians (MD); Osteopathic Doctors (DO); Dentists (DDS); Podiatrists (DPM); Naturopathic Physicians (NP);  Physician Assistants (PA); Optometrists (OD); Nurse Practitioners (NP); Nurse Midwives (either CNM and/or CM); and Veterinarians (DVM) to consult CURES prior to performing any of the above services. After the initial consultation and at least once every four months thereafter, each of these practitioners must consult Cures 2.0  if the controlled substance continues to be part of the respective patient’s treatment. It is noteworthy that the CURES data collection vendor has published data submission instructions. The consultation requirement as such is inapplicable to Pharmacists (RPh); however, as other dispensing practitioners are obligated to monitor prescriptions of controlled substances, Pharmacists are also required to report on a weekly basis information regarding Schedule II, III and IV controlled substances being dispensed. The applicable Health and Safety Code, however, sets forth limited and designated exemptions.

It is noteworthy that a patient can obtain his or her CURES prescription history through the IPA, commonly referred to as the Information Practices Act. Each Patient Activity Report contains the following record: the patient’s name; date of birth; address; name of the prescriber and DEA number; name and license number of the pharmacy; date the prescription was filled; prescription number; drug name, drug form, drug quantity and strength; number of days of the supply, and each refill number. One may obtain the IPA Request form by contacting the CURES Help Desk.

The goal of Cures 2.0 is to ensure patient safety. Additionally, each particular licensing agency has access to the IPA information to regulate those whom they issue a professional license to ensure they follow the law and maintain proper standards and practices. Spital and Associates is an award winning law firm that provides legal advice and representation in investigations and disciplinary actions brought against individuals and entities that wish to obtain or currently have a professional and occupational license in California.

US Supreme Court Invalidates Federal Ban on Sports Betting

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In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

Rehabilitation of Inmates and Prisoners

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When we go back in history, there was a time when those incarcerated would receive vocational training, such as wood shop, electric shop, metal shop, upholstery, plumbing, gardening, and most importantly learn any other skill that would increase their basic knowledge, enhance their self esteem, provide an opportunity for a more positive transition to life outside of prison or jail, and decrease recidivism.

Unfortunately, as the budgets for nearly everything else seem to have increased, the amount allocated to skills building activities within the penal system has substantially decreased and to some extent has become nonexistent.

Recently, with the devastating wildfires, inmates have been allowed to volunteer to assist in fighting these catastrophic disasters throughout California. It has been reported the savings to taxpayers has been in the millions of dollars. Inmates get paid a $1. an hour for fighting the fires, and two days off their sentence while serving in this capacity (in contrast for one day off a sentence for each day of good behavior.

Some commentators object to this policy as they believe the prisoners are being treated as a “captive labor force.”Although there are clearly disadvantages to the utilization of inmates to fight wildfires, there are countless proponents who believe the benefits far outweigh any drawbacks.

Only more time and continued [forensic] studies will produce reliable data evidencing the nature and extent of support and/or activities associated with time spent in prison or jail greatly enhance an inmate’s knowledge, social, physical, vocational, emotional and other positive skills, contributing to unprecedented levels of rehabilitation.

PUBLIC DISCLOSURE OF VIDEO AND AUDIO RECORDINGS BY LAW ENFORCEMENT

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In California, an increasing number of law enforcement officers are using body cameras [more commonly referred to as “body cams”], which are attached to their clothing to record the encounters and work they perform while on duty.

Proponents claim the goal is to increase the public’s trust and confidence in all peace officers, including the most obvious such as the police, sheriffs and CHP; as such, there may be 25% or more police agencies currently utilizing these devices. Additionally, it affords officers an opportunity to have actual evidence of their work in the field, and to defend against false accusations such as police brutality. Others accept transparency and police accountability as a valid premise, however, note the fact these devices can be shut-off and/or not turned on as a reason they feel far less confident in the process.

In criminal cases, body cam footage is available to defense lawyers as part of the discovery. On the other hand, such video records are not readily available in civil cases. However, during the earlier 2017 sessions of the California legislature, Assembly Bill 748 would have made the footage of body cams a public record; although proposed and later amended, AB 748 remains unapproved at this point. Hence, the public does not have an absolute right to the disclosure of video and audio recordings by law enforcement officers.

This subject might seem straightforward to most observers however, it is not. One of the arguments against the public’s right to obtain such audio and video recordings involves a person’s individual right to privacy. Whether it is a traffic violation, a misdemeanor &/or a serious felony, all of us believe in the premise “one is innocent until proven guilty.” As such, an individual’s identity, license number, address and other personal information that is part of the cam footage is and should remain protected. Until the Legislature adopts standards that can be incorporated into a bill that is passed and then signed by the governor, or becomes a referendum initiated by a vote of the public,  the matter remains an open issue depending upon the local jurisdictions in California and/or the courts that may deal with it on a case by case basis.

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