Licensing Ramifications After Drug Diversion Programs

Licensing Ramifications After Drug Diversion Programs

California’s drug diversion program allows first-time offenders to avoid a criminal record if they complete program requirements. But if that person is a licensed healthcare provider, their ordeal does not end there.

Recently, a California appellate court ruled that licensing boards can now incorporate evidence from a criminal drug investigation to discipline licensees, even after the licensees’ successful completion of a diversion program. Previously, licensees were protected from their licensing board basing an Accusation on information from the licensee’s arrest record and using that arrest to discipline the licensees. However, the appellate court ultimately decided that, as the intent of the law was to protect public safety, the law should be interpreted broadly to allow the hearing officer to review the best evidence of the licensee’s misconduct and make the most informed decision for discipline. Going forward, licensing boards will be using the licensee’s arrest record in determining the scope of discipline against the licensee in administrative hearings regardless of whether the licensee escaped criminal liability for his crime.

In Medical Board of California v. Superior Court1,  Dr. Brandon Erdle was arrested for possession of cocaine in 2013 and completed drug treatment under a deferred entry of judgment program. The Medical Board of California interviewed Dr. Erdle in 2014 regarding the circumstances surrounding his arrest and referenced the police arrest report. Prior to the doctor’s completion of his drug program (and therefore the dismissal of his underlying criminal matter), the Board filed its Accusation against Dr. Erdle alleging violations of drug laws and unprofessional conduct. At his administrative hearing, Dr. Erdle argued that the existing regulations and case law forbade the Board from basing its action against him solely on information from his arrest record2. The ALJ found that the Medical Board of California had cause to discipline Dr. Erdle. Dr. Erdle filed a writ of administrative mandate to the Superior Court wherein the trial court granted Dr. Erdle’s request to set aside the ALJ decision. However, the appellate court found that a subsequent law3 specifically permitted licensing boards to base their disciplinary proceedings exclusively on arrest records.

The Erdle court held that healing art agencies were authorized “to take disciplinary action against a licensee charged with drug violations notwithstanding the fact that the licensee successfully completed a drug diversion Program.”4 The legislature wanted licensing boards to have access to the best evidence (arrest records) for evaluating the scope of required discipline. As such, Erdle made clear that not only will licensing boards be allowed to use drug violation charges against the healthcare provider in adjudicating its penalties, but also that licensing boards can introduce evidence directly from the police report.

Erdle directly impacts providers with drug related charges. Essentially, Erdle removed the protection that drug diversion programs once extended to providers from their licensing boards. After Erdle, the licensing boards can utilize everything in the police report regarding the drug arrest against the licensee in an administrative hearing. Even if the licensee completed the diversion program and escaped criminal liability, the licensee will now face almost guaranteed licensing discipline. For this reason, it is important that providers facing criminal charges consult with licensing counsel as soon as, if not prior to, the time charges are filed against them.

By Julia Q. Peng

  1. Med. Bd. of California v. Superior Court, 19 Cal. App. 5th 1, 7, 227 Cal. Rptr. 3d 726, 731 (Ct. App. 2018), review filed (Feb. 15, 2018).
  2. Cal. Penal Code § 1000.4 (West) and B. W. v. Board of Medical Quality Assurance (1985) 169 Cal.App.3d 219.
  3. Cal. Bus. & Prof. Code § 492 (West)
  4. Id.

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