Doctors who surrender a California license while under accusation or whose licenses are revoked after an administrative law hearing can petition the Medical Board for reinstatement. California Business and Professions Code section 2307 provides that petitions to reinstate a medical license may be filed after a period of at least three years from the date of surrender or the effective date of a revocation decision. The Medical Board also has discretion to grant a right to petition for reinstatement after only two years provided good good cause is shown and that the reduced, two year waiting period was reflected in the revocation Decision and Order.
2. How does a doctor apply for reinstatement?
After the designated waiting period, the petitioner must contact the Medical Board to acquire the appropriate form. The form currently in use is actually a multi-purpose document entitled "Petition for Penalty Relief" (DG-39C) issued by the Medical Board's Discipline Coordination Unit. This form is not available online.
The petition form asks for routine identifying information, attorney designation if applicable, address of record, medical certificate number, and disciplinary history. Medical background must be provided (even though previously submitted for licensure), as well as all out of state licenses held, and employment history. A recent history questionnaire covers any criminal actions, disciplinary matters in other states, hospital disciplinary actions, civil malpractice claims, and alcohol or addiction issues. Until August of 2009, the form also asked the petitioner for a hearing location preference of Northern California, Southern California, or First Available Location. That preference option is reportedly no longer applicable and hearing location determinations are made by the Attorney General's Office after a petition is filed.
In addition to providing the above information, the petitioner must submit a narrative statement and two verified* letters of recommendation from physicians licensed in California "with knowledge of petitioner's current activities". (*Verification is performed by Medical Board investigators who will contact the recommending physicians to ascertain whether they wrote the recommendation and also whether they were aware of petitioner's current activities as well as prior disciplinary history). The petitioner must also submit a "live scan" of finger prints for a new criminal record check.
Once a completed petition is submitted to the Board, it is referred to a district office for investigation. This usually means the office nearest to petitioner and the location where surrender or revocation occurred will receive the petition. A Board investigator will perform record checks, contact the petitioner to verify his or her narrative statement, and verify recommending physicians. A copy of the original accusation and any stipulated disciplinary order or revocation decision and order from the Board will be attached. When the investigation is complete, the file is transferred to the Attorney General's Office for assignment to a Deputy Attorney General who will represent the Board at a hearing. The hearing is scheduled with the Office of Administrative Hearings. If a particular hearing date is a problem for a petitioner, some flexibility is usually shown for good cause. Reinstatement hearings are normally half day or one day matters.
3. What can a petitioner for reinstatement expect at an administrative law hearing?
At hearing, the petitioner must be prepared to present evidence of rehabilitation since his or her surrender or revocation in order to be reinstated. Unlike the original accusation case, for reinstatement the petitioner has the burden of proof.
Business and Professions Code section 2307 (e) says that the administrative law judge hearing the case for the Board "may consider all the activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability."
Obviously this criteria is quite broad. The Board's attorney (Deputy Attorney General) will likely focus on seriousness of the offense that warranted surrender or revocation. The petitioner, on the other hand, will want to focus on his or her positive activities and rehabilitation since surrender or revocation.
If there was a stipulated surrender, the stipulation may have contained "nolo" language provided by counsel, stating only that the physician agreed to surrender because there was a prima facie case for disciplinary action. and not making any direct admissions. If the matter went to hearing and revocation resulted, anything the court found factually and legally for revocation is deemed true. Stipulations for license surrender in California also normally have language stating that for any future petition for reinstatement, all prior charges and allegations in the original accusation will be deemed true.
Whether the license was surrendered or revoked can make a difference in terms of the legal burden the physician faces for reinstatement, and the kinds of information and evidence he or she must present. In revocation cases, the petitioning physician (petitioner) must only address rehabilitation in terms of charges actually found and proven at hearing, and need not address any for which the court found no cause for discipline. Again, in stipulated surrender decisions, all prior charges are deemed true. However, petitioners who surrendered may be viewed as more cooperative (and perhaps more deserving of consideration) than those who proceeded to hearing and lost. Therefore, a physician facing a a serious accusation supported by strong evidence may want to consider surrender rather than face revocation, so that there will be a greater chance for reinstatement down the line.
In either case, the petitioner should be well prepared to demonstrate positive reasons for reinstatement as well as insight into and full appreciation for the circumstances that led to surrender or revocation. He or she needs to present strong evidence of rehabilitation. This evidence can be written or testimonial. Character witnesses can be helpful, although economy in numbers of witnesses and avoidance of redundant testimony will likely be viewed favorably by the Administrative Law Judge hearing the case.
4. Since the petitioner submits a narrative statement, will he or she have to testify?
In every reinstatement hearing the petitioner is expected to testify. Again, petitioner bears the burden. It is also an opportunity to expand on an admittedly brief narrative statement that may have to cover several years since surrender or revocation. In addition, the Deputy Attorney General will be probing for reasons to deny the petition, including lack of candor or sincerity, failure to take responsibility for past errors, and lack of current knowledge. The latter point goes to patient safety and is always a winner for the "other side" if lack of current medical knowledge is demonstrated at hearing.
5. How important is Continuing Medical Education (CME) credit to gaining reinstatement?
Any physician who has surrendered a license or has been revoked should keep up CME to show currency if they hope for eventual reinstatement. In anticipation of any petition, the petitioner should amass as much relevant CME as possible (preferably over the waiting period and not all at once). If he or she still has out of state medical licenses or American Board of Medical Specialty (ABMS) certifications, these should be kept current. Documentation of active medical licenses and certifications should be submitted to the Board with the original petition.
Another way to demonstrate current medical knowledge is to attend professional conferences and grand rounds at local teaching hospitals. Often former colleagues can arrange this on behalf of a petitioner who stays active in the medical community and keeps contacts despite surrender or revocation of his or her license. Charitable, non-clinical activities that support community health services are also helpful.
The petitioner will have a greater chance of success if she or he offers a well defined plan for using the reinstated medical license to benefit the community. Even more persuasive is a verifiable offer of medical employment which will fill a community need.
For more information or questions regarding specific cases for reinstatement, you can email the author at steve@slotelaw.com, or visit the website www.slotelaw.com.
