Kansas Professional Licensing Attorney Explains Discipline Of Technical Professionals

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In Kansas, architecture, landscape architecture, professional engineering, professional geology, and professional surveying are known as technical professions. The Kansas Board of Technical Professionals (“the Board”) issues licenses for technical professions. The Board also has the authority to institute disciplinary actions for technical professionals as well.  The Board works to make certain that each technical professional licensee maintains the highest standard of work in their profession and maintains the highest level of ethical responsibility. Failure to maintain the standards of a technical professional leads to disciplinary action. Kansas professional licensing attorney Danielle Sanger represents professional licensees against disciplinary actions with great zeal and vigor with tremendous results.

As with all professional licensing boards in Kansas, the Kansas Board of Technical Professionals authority to issue licenses and determine disciplinary action comes from state law. The Kansas legislature charged the Board with the task of maintaining the highest level of integrity, skill, and technical proficiency. Ensuring that each technical professional licensee aspires to those laudable attributes preserves the public trust and safeguards against damage and injury to the public to whom the licensees provides a service.  Each person wishing to practice a technical profession must satisfy the Board based upon satisfactory testing scores and possess the minimum character traits before the Board issues a license.

Concomitant with the Board’s authority to issue a license is the Board’s authority to discipline a license. Kansas law explicitly limits the Board’s authority to discipline its members. Discipline may take the form of probation, censure, reprimand, suspension or revocation of a license. The Board has the authority to start disciplinary action for allegations concerning obtaining a license to practice a technical profession fraudulently, gross negligence or incompetence, misconduct or showing no regard for the rights of other people while practicing in the profession. The Board may also issue discipline for a conviction of a felony criminal act in Kansas or another state or committed against the United States. The Board may discipline a business organization as if the business organization was an individual. Also, the Board possesses the authority to reinstate a license which the Board revoked if seven members of the Board agree to reinstate the license.

At the initial disciplinary stage, the Board conducts a hearing to determine if any wrongdoing occurred and what, if any discipline, should be levied. The Board has the power to order witnesses to attend and testify at a hearing before the Board. The Board may also compel any witness to bring documents, records, books, or other materials relevant to the hearing.  The hearings must be held according to Kansas’ administrative procedure act. Therefore, the licensee facing discipline must receive proper notice of the allegations, have the right to be represented by counsel, and to examine witnesses for or against them. Proper notice to the licensee includes a provision alerting the licensee that they have 15 days in which to appeal the Board’s decision.

A person aggrieved by the Board has the right to appeal the decision to a court in Kansas with jurisdiction over the issue.  The licensee may appeal the final decision of the Board to the courts and only after exhausting all “administrative remedies.” In a rare instance, the court will permit review of the Board’s decision before the Board’s final action. The licensee has 30 days from the date of service of the Board’s final action to appeal to a court for judicial review.

Technical Professional Need Superior Representation

Representing yourself in matters where your livelihood and career are at stake can be costly. You should rely on competent counsel who a skilled at defending professional licensees like Kansas Professional Licensing Attorney Danielle Sanger. Attorney Sanger has the experience to protect your career and preserve your way of life. Call attorney Sanger today at 785-979-4353 to discuss your case and learn the difference passion and experience will make for you.

Missouri and Kansas Professional Licensing Attorney Cautions Physicians That Wrongdoing Can Lead to Criminal Charges

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The Drug Enforcement Administration (“DEA”) investigates all manner of narcotics-related crimes. Their investigations are not limited to the distribution of street drugs. The DEA regulations require healthcare professionals who prescribe medications to register with the agency before lawfully prescribing medications.  The DEA also investigates allegations of criminal wrongdoing by doctors and other prescribers who abuse their prescription writing privileges. Not every abuse of prescription writing privileges leads to criminal charges. However, egregious conduct will result in an arrest, prosecution, and perhaps imprisonment.  In fact, several physicians in Missouri and Kansas were prosecuted for abusing their prescribing privileges. Not every healthcare professional went to jail, but each one lost their prescription writing privileges and surrendered their DEA registration. Professional licensing attorney Danielle Sanger counsels maintaining the highest ethical standards in the practice of medicine will prevent abuse of privileges.

In 2009, the DEA arrested a Topeka, KS physician for distribution of schedule II drugs and acquiring drugs by misrepresentation or fraud. The physician pleaded guilty to both counts. The court sentenced the physician to three years (3) probation and prohibited the physician from practicing medicine during the probationary period as well as ordered the physician to complete 300 hours of community service. The government alleged that the physician wrote prescriptions to people who were not patients. Furthermore, the prescriptions were not intended for legitimate medical conditions. Instead, the doctor wrote prescriptions for oxycodone and amphetamine to his friends. His friends, in turn, gave the drugs back to the doctor for personal use. The prescriptions were used during parties at the doctor’s house. Incidentally, the physician officially retired from practicing medicine before his arrest.

A St. Joseph, MO physician was arrested in 2003 for possession of a controlled substance. The physician pleaded guilty in county court. The court placed the physician on probation for three (3) years. The court ordered the physician to complete drug treatment as ordered by the probation department and perform 100 hours of community service.  The physician told the court that he possessed the controlled substance after working a 24-hour shift at a hospital. The physician took fentanyl from the hospital. The physician administered the drug to himself to combat stress and fatigue. The physician surrendered his DEA registration two months after he stole the fentanyl.

In 2005, a federal jury sitting in Missouri found a physician guilty of 176 counts of unlawful distribution of certain narcotics. The government alleged that the 1,729,845 pills the physician prescribed over a two-year period were not prescribed for legitimate reasons. The federal judge sentenced the physician, who was 79 years of age, to sixteen months incarceration followed by two years of supervised release. The judge ordered the physician to pay a $75,000 fine and a $17,600 criminal assessment.  The physician surrendered his DEA registration three months before his arrest.

Also in 2003, a Kansas City, KS doctor of osteopathy pleaded guilty in the U.S. District Court to one count of conspiracy and four counts of using an invalid or revoked DEA registration number. The doctor of osteopathy and others agreed to dispense several narcotics including oxycodone and Oxycontin. The doctor of osteopathy wrote those prescriptions for an illegitimate purpose. The federal judge sentenced the doctor to 5 years incarceration with three years of supervised release. The doctor surrendered his DEA registration in 2001, almost two years before his arrest on these charges.

Another Kansas physician was sent to jail for writing prescriptions for fictitious patients. The U.S. District Court sentenced the physician to 30 months in federal prison followed by three years of supervised release for conspiracy to distribute 30,000 units of hydrocodone. The physician claimed he intended to use the pills for himself. The physician surrendered his DEA registration two days after his arrest on these charges.

Personal abuse of narcotics by physicians can also lead to jail and loss of prescription writing privileges.  In 2008, a Missouri physician pleaded guilty to use of drug paraphernalia and driving while intoxicated by drugs. The court sentenced the physician to 24 months of probation and 50 hours of community service. The physician surrendered his DEA registration a few months after his arrest.

Criminal Conduct Leads To Professional Discipline

Most of the criminal conduct discussed above was caused by personal drug use. If you are abusing drugs, get help. Getting the necessary treatment can help you fight disciplinary charges resulting from criminal conduct. Kansas Professional Licensing Attorney Danielle Sanger zealously represents professional licensees in Missouri and Kansas. Call Attorney Sanger today at 785-979-4353 to schedule a free consultation and learn how her years of experience can help you put your life back together.

Kansas and Missouri Professional Licensing Attorney Explains the Drug Enforcement Administration’s Role In Disciplining Healthcare Professionals

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The Drug Enforcement Agency (“DEA”) is the agency dedicated to enforcing the federal drug laws in the United States. Most people associate the DEA with investigating illicit narcotic distribution. Healthcare professionals with the privilege of writing and dispensing prescriptions know that the DEA has wider jurisdiction than simply investigating street crimes. Any healthcare professional who writes prescriptions, drug distribution centers, pharmacies, and others must register with the DEA before they can write or fill a prescription. The DEA has the authority to investigate and discipline healthcare professionals who violate DEA regulations relating to dispensing prescription drugs. The DEA does not have unlimited power. A practitioner enjoys many due process protections when facing allegations of wrongdoing by the DEA. Kansas and Missouri professional licensing attorney Danielle Sanger fights for professional licensees facing disciplinary action.

A licensee’s rights to a fair and impartial hearing when facing disciplinary action instituted by the DEA is protected by the Due Process Clause of the 5th Amendment to the United States Constitution. The Administrative Procedure Act (“APA”), a law passed by Congress delineating the procedures that must be followed in administrative hearings, also serves to protect the rights of a licensee facing discipline.  Due Process Clause jurisprudence and the APA work in conjunction with each other to ensure disciplinary proceedings are decided justly. Federal laws and rules control in DEA disciplinary action because the DEA is a federal, vis-a-vis, state agency.

The Due Process Clause and APA are not idle theories.  A licensee enjoys the protections those laws afford from the inception of disciplinary action. The agency instituting disciplinary proceedings may commence an action only after it gives the licensee proper notice of the factual allegations of wrongdoing.  Proper notice serves to give the licensee an opportunity to challenge the factual allegations and legal basis for discipline.  The factual allegations and legal basis must be timely given to the licensee. The notice, called pleadings, do not have the same rigorous formality of pleadings in a criminal case. Therefore, if a factual allegation arises after the agency initiated disciplinary proceedings, the law permits the agency to rely on such allegations so long as the licensee has a chance to respond timely and fairly to them.

Timely notice of the factual allegations serves a very important purpose. The timely notice of the allegations provides licensees with an opportunity to investigate the claims the Agency made and to prepare a defense. The licensee must be afforded every opportunity to offer an explanation of the allegations. A licensee’s defense is thwarted if they do not have a chance to explain what happened from their perspective.

Litigants must be careful not to waive any objections to late-disclosed factual allegations. A failure by the licensee to object to newly raised allegations indicates that they consent to litigate the new claims of wrongdoing.  The agency has an obligation in the initial pleadings and the pre-hearing statement to set forth all of the factual allegations it will rely on to convince the factfinder that the licensee must be disciplined. The licensee may consent to litigate the unpleaded issue if it is clear from the record that the licensee knew of the allegation and defended against it.  However, an agency’s decision to discipline a licensee may not be based upon evidence of wrongdoing that was incidental to the initial allegations.

Allegations Of Wrongdoing Can Destroy Your Livelihood

Revocation of your DEA registration, or any professional licensing discipline, will wreak havoc on your professional life and has the potential to do the same to your personal life as well. Do not trust your defense to anyone. Call Kansas Professional Licensing Attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation if you are a licensed professional facing discipline.

Kansas and Missouri Professional Licensing Attorney Explains The Potential Ethical Dilemmas Health Care Professionals Face If A Death With Dignity Statute Passed

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According to Deathwithdignity.org, seven out of every ten Americans favor some death with dignity legislation. California enacted the most recent death with dignity statute. Their law went into effect on June 9, 2016. The statute’s enactment received enormous publicity.  The law on its face appears to conflict directly with a heath care professional’s ethical obligation to preserve life rather than end life. As death with dignity advocacy groups’ message gains momentum, there is a real possibility that other states, including Kansas and Missouri, will pass such laws. Kansas and Missouri professional licensing attorney Danielle Sanger understands the ethical obligations of health care professionals. Attorney Sanger zealously represents professional licensee facing discipline against their license.

Kansas and Missouri had bills pending in their respective legislatures seeking to enact a death with dignity statute. Kansas’ Bill was originally filed on January 28, 2015, and referred to a Committee for Health and Human Services. The Committee delayed action on the Bill until 2016. The Bill is no longer viable because of inaction by the Committee, which caused the Bill to miss legislative deadlines and therefore is not viable.  A previous death with dignity bill expired in the legislature in 2013.  A Missouri legislator filed a death with dignity bill in 2015. The Bill was the first of its kind filed in Missouri. The legislature refused to consider the Bill and the proposed legislation lapsed. Notwithstanding, Kansas and Missouri can take the issue up again in the future.

California’s death with dignity legislation purports to guide health care professionals in making decisions consonant with their ethical obligations to their patients, fidelity to the oath they swore, and their moral understanding as humans. Notwithstanding, the law obligates the patient’s physician to give the person the opportunity to change their mind because a request for an aid-in-dying prescription may only be made by the patient, and not via a legal guardian or health care proxy.  The physician must make sure that the patient is of sound mind, or if there is a question, the doctor must make a referral to a mental health professional.  The person must be an adult who has a terminal disease, and the person makes the request voluntarily. The physician must comply with the reporting requirements prescribed by the statute. The physician must ensure the request is in writing on the prescribed form, signed by the patient and two independent witnesses.

The statute specifically protects the prescribing physician from certain civil, criminal, or licensing sanctions.  The health care provider cannot be sanctioned for merely being present when the patient ingests the aid-in-dying drugs. The health care provider may prepare the drugs for the patient but may not administer the drugs. The patient must do that alone. Additionally, a health care provider cannot be sanctioned for diagnosing a person with a terminal disease and informing the patient about the prognosis as long as the physician complied with the appropriate duty of care when reaching those conclusions. The health care provider may not be sanctioned for evaluating whether the patient qualifies for the aid-in-dying prescription.  The physician may provide information about aid in dying drugs without sanction. The physician may also refer the patient to another physician without fear of sanction. The health care provider always has a duty to act professionally and comply with the statute.

Kansas and Missouri Licensing Attorney Ready To Fight For You

Some ethical issues, like issues dignity in death statutes create, are not clear cut. You need a zealous advocate to defend your professional license. Call Kansas and Missouri Professional Licensing Attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation.

Kansas Professional Licensing Attorney Explains That Pharmacists Must Follow Ethical Rules To Avoid Disciplinary Action

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The Kansas Board of Pharmacy (“the Board”) is the disciplinary body for pharmacists, pharmacies, distributors, and pharmacy technicians practicing in the state. The Board possesses authority to discipline licensees who run afoul of pharmacists’ ethical obligations. Accordingly, the Board issued several disciplinary sanctions to this point in 2016 against pharmacists, pharmacies, distributors, and pharmacy technicians. Analysis of the decisions the Board issues will assist all licensees who are subject to the Board’s disciplinary power can use previous disciplinary decisions as precedent in future disciplinary action.  Kansas professional licensing attorney Danielle Sanger understands the professional and personal strain disciplinary action inflicts upon licensees.

The Board disciplined four pharmacists as of June 2016. In one case, a pharmacist filled a prescription for with the incorrect dosage of the pills. A veterinarian’s prescribed amoxicillin to be administered to a family dog. The pharmacist filled the bottle with 500mg amoxicillin. The veterinarian wrote the prescription for 100mg. The dog fell very ill as a result of ingesting the larger dose. The Board disciplined the pharmacist by ordering him to pay a five hundred dollar fine ($500.00) and attend continuing education classes specified by the Board. Another disciplinary action involved a pharmacist who dispensed two prescriptions with labels that listed the incorrect expiration date. The pharmacist learned of the error and reported it to the Board. The Board fined the pharmacist one thousand dollars ($1,000.00) for the errors. Another pharmacist who was in charge of a pharmacy failed to maintain a proper log book. An inspector employed by the Board found that pharmacists failed to sign in on hundreds of occasions. As a result of this failure to follow protocol, the Board fined the pharmacist-in-charge five hundred dollars ($500.00).

The most egregious conduct to come before the Board involved a pharmacist who pharmacist misappropriated prescriptions in Missouri among other serious ethical violations. The Missouri Board of Pharmacy imposed a period of probation upon the pharmacist’s license with numerous conditions. Consequently, the pharmacist was subject to discipline in Kansas as a result of the Missouri disciplinary action.  The Missouri Board of Pharmacy placed the pharmacist on a term of probation with multiple restrictions. The Board adopted the Missouri factual findings. The Board ordered the licensee to comply with the terms of Missouri’s disciplinary action and will reinstate the license to full privileges only if the pharmacist completed the Missouri probationary period. The Board also ordered the pharmacist to attend drug counseling under the Board’s impaired provider protocol.

Also in 2016, the Board issued a decision reinstating a pharmacist’s license to full status. The Board reinstated the pharmacist’s license after the licensee completed the Board’s Impaired Pharmacy Practice Program. The Board ordered the pharmacist to comply with the conditions previously imposed by the Board with the exception of not practicing pharmacy.

The Board disciplined two pharmacies in 2016 in addition to individual licensees. One pharmacy dispensed a prescription with the label missing from the bottle. The pharmacy learned of the error and corrected the mistake. Notwithstanding, the pharmacy failed to file the requisite report with the Board. Consequently, the Board fined the pharmacy one thousand dollars ($1,000.00) for its failure to self-report. The Board disciplined the second pharmacy for its failure to correct a mistake in data entry then filing a deficient report. The Board fined the pharmacy one thousand dollars ($1,000.00) and ordered the pharmacy to file with the Board a corrective action report.

The Board denied several applications for pharmacy tech licenses in 2016 as well. The Board also suspended one such license. The Board denied pharmacy tech applications for individuals who refused fully to disclose the nature and circumstances of prior criminal behavior or misrepresented their criminal history.  Additionally, the Board suspended one licensee as a result of his felony arrest. The Board reasoned that the licensee committed unprofessional conduct as a result of the arrest.

Kansas Professional Licensing Attorney Fights For Pharmacists Facing Discipline

 Kansas Professional Licensing Attorney Danielle Sanger possesses vast experience defending licensees facing discipline. Attorney Sanger stakes her reputation on her vigorous and zealous representation on behalf of licensees faced with losing their livelihood from license loss. Call Attorney Sanger today at 785-979-4353 to schedule your free consultation.

Kansas Court Of Appeals Agrees State Board Of Healing Arts Has Broad Subpoena Power

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A 2016 decision issued by the Kansas appeals court discussed the broad authority possessed by the State Board of Healing Arts (“the Board”) to issue subpoenas during investigations. The case discusses important issues relating to the relevance of certain information as well as the Board’s ability to issue subpoenas for that information.  Since a subpoena is a court order, compliance must be made. However, a party upon whom a subpoena has served can move a court to quash the subpoena. Kansas professional licensing attorney Danielle Sanger represents professionals facing disciplinary action. Attorney Sanger vigorously represents her clients to protect their livelihood.

The Board’s authority to issue subpoenas is conferred by statute. Kansas Statute 65-2839a(a) and (b) delineate the extent of the Boards’ authority. The statute gives the Board wide-ranging to review documents, copy documents, compel witnesses to testify, and compel witnesses to produce documents and other physical evidence.  The statute limits the nature of the documents to those related to medical competence, unprofessional conduct, and the physical or mental health of the licensee to safely practice medicine. The licensee subject to the subpoena may file a petition with the Board to revoke the subpoena within five days of receiving the subpoena.  The statute requires that the Board revoke any subpoena that does not relate to any grounds for disciplinary action, is not relevant to the investigation, or fails to describe particularly the items requested.

Courts defer to administrative actions and the agency’s authority to issue subpoenas. Enforcement of subpoenas, under Kansas law, is left to the issuing agency.  Notwithstanding, Kansas courts have jurisdiction to hear motions to quash subpoenas.  Kansas courts take a “relaxed” view toward administrative subpoenas.  A Kansas court will uphold the subpoena unless the subpoena has no relevance to the investigation or is unlawful for some reason. State agencies do not enjoy limitless subpoena power. Accordingly, courts will validate subpoenas if the request is made under the lawful agency action, the demand is not indefinite, and the request is “reasonably relevant to the purpose of the inquiry.” The reviewing court has the authority to quash, modify, or place limitations upon an administrative subpoena.  Licensees must be aware that in 2015 the law changed. A district court may hear a petition to quash a subpoena only after the party exhausts its “administrative remedies.”

Understanding the extent of the Board’s authority is vital to knowing its limitations on issuing subpoenas.  The Kansas Supreme Court stated that the purpose of the Board is to protect the public from harm perpetrated by unqualified, unprofessional, and improper practices. The state has an enormous interest in protecting its people from harm. The Board promotes competent health care practices by ensuring each practicing the healing arts is properly licensed.  The state legislature charged the Board with issuing licenses to competent individuals and revoking licensed of the unqualified. The Board’s authority to license practitioners accompanies the power to investigate complaints. Part of that investigatory power is the power to issue administrative subpoenas.

The issue Board’s authority was an issue in a recent Appeals Court decision. In that case, the Board served a subpoena upon a chiropractor and his employer. A dissatisfied former patient sued the chiropractor in small claims court for negligence. The court entered judgment for the chiropractor. Once judgment entered, the Board received notice of the lawsuit and began an investigation. The Board issued subpoenas for the patient’s records. The chiropractor’s employer filed a petition to quash the subpoena. The employer argued that the chiropractor successfully defended the lawsuit filed by the former patient. Therefore, the chiropractor committed no wrongdoing. The District Court and the Appeals Court disagreed. The Appeals Court held that the subpoena issued by the Board was relevant to investigate the chiropractor for incompetence.

Attorney Sanger Can Help If You Were Served With A Subpoena

Kansas Professional Licensing Attorney Danielle Sanger will fight to protect your practice from intrusion by an administrative agency. Attorney Sanger vigorously defends her clients against allegations of professional misconduct. Call Attorney Sanger today at 785-979-4353 to schedule an appointment and discuss how Attorney Sanger will fight for you.

A Recent Missouri Appellate Decision Denies Licensing Reciprocity

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A 2013 appellate decision issued by the Missouri Court of Appeals examined whether a marital and family therapist licensed in Kansas should receive a license without first taking an examination in Missouri. The case highlights the differences between the Missouri and Kansas requirements for becoming a licensed marital and family therapist in either state. The case also discusses the procedural mechanisms employed in this case. The applicant lost her appeal. Missouri and Kansas professional licensing attorney Danielle Sanger discusses the licensing requirements of each state as well as the procedural problem the applicant faced. Attorney Sanger is an experienced professional licensing attorney practicing in Missouri and Kansas.

In the instant case, the Missouri State Committee of Marital and Family Therapists (“the Committee”) refused to issue a license to a holder of a Kansas marital and family therapist. The therapist applied to become a Missouri marital and family therapist without taking an examination in Missouri. In Missouri, the Committee will grant a license to an applicant upon satisfying statutorily required conditions. The statute establishes the minimum formal educational requirements such as a master’s degree or doctorate, possess 24 months of post-graduate clinical work, obtain three semester hours of course work in diagnostic systems, and obtain a passing score on the exam.

Missouri has one exception to the examination requirement. A therapist licensed in another state may become licensed in Missouri if all conditions precedent are satisfied.  This is known as “reciprocity.” First, the Committee must be satisfied that the licensing qualifications in the other state are substantially similar to Missouri’s requirements. Second, the applicant must have a current license in the other state. Finally, the applicant must agree to an examination of any disciplinary record of the therapist.

In this case, the Committee denied the application for licensure because the applicant did not take an exam in Missouri. The applicant appealed the decision to the Administrative Hearings Commission (“AHC”). The applicant and the Committee both moved the hearing commissioner to rule in their favor in summary fashion. The facts of the case, the parties believed, were not in dispute. A summary decision is an efficient means to resolve a claim before the AHC, as long as the facts are undisputed. The AHC granted summary decision in the applicant’s favor, ruling that Kansas’ and Missouri’s licensing requirements were substantially similar. The Committee appealed. A court can review the AHC’s decision and will not overturn it unless the decision is incorrect as a matter of law. In other words, a summary decision will be overturned when the AHC is incorrect applying the law to the undisputed facts.

The appeals court ruled that the AHC was wrong a matter of law and overturned their decision. The appeals court performed a thorough analysis of Kansas marital and family therapist licensing requirements and contrasted those with Missouri’s requirements. The appeals court found that Kansas licensing scheme for the particular license the applicant held in Kansas was not sufficiently rigorous to favorably compare to Missouri’s licensing requirements.  Interestingly, Kansas has two designations of marital and family therapists. One designation is a clinical marital and family therapist while the other is known simply as a marital and family therapist, without the clinical designation. The applicant, in this case, did not obtain the clinical designation. Consequently, Kansas law required the applicant to practice under the license of a clinical marital and family therapist or other medical professional permitted to diagnose and treat mental health disorders.

The appeals court held that there exist substantial differences between Missouri and Kansas licensing requirements and therefore the applicant was not entitled to reciprocity. The court pointed out that Kansas’ educational requirements were much less stringent than Missouri’s. Also, the court noted that Missouri requires post-graduate work, whereas Kansas does not. Thus, the applicant failed to meet her burden of proving she qualified for reciprocity.

For Further Information

Missouri and Kansas Professional Licensing Attorney Danielle Sanger is an ardent advocate for professional licensees. Call Attorney Sanger today at 785-979-4353 to schedule your free, no obligation consultation.

 

Missouri Professional Licensing Attorney Explains Appealing Restrictions On A New License

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The Missouri Board of Healing Arts (“the Board”) has the authority to place restrictions on newly issued licenses. The licensee has the right to appeal the Board’s decision to the Administrative Hearings Commission of Missouri (“AHC”). Successfully appealing an adverse decision by the Board will make a tremendous difference in your practice and well as your personal life. If the AHC decides against you, then you may appeal to the Courts of Missouri for relief. Danielle Sanger, an experienced professional licensing attorney in Missouri, explains the process of appealing an adverse decision made by the Board to the Circuit Courts, and then to the Appellate Courts if necessary.

The procedure for imposing discipline by the Board restricting or denying new licenses differs from the imposing discipline of an existing license. Disciplining an existing license is a two-step process. First, the Board determines the appropriate discipline after the AHC determines the facts of the underlying case.  The licensee appeals the Board’s decision to impose discipline to the Circuit Court. The Board may rely upon the same grounds to issue a new license with restrictions as it does when imposing discipline on an existing license.  The Legislature gave the Board discretionary power to deny licenses for various reasons. Those reasons include evidence of bad character, unprofessional conduct, and conviction of a felony, to list a few.

The AHC hears appeals from Board decisions on new licenses. The AHC hears the issue de novo, or anew. The AHC reviews the record from the hearing before the Board. The record contains transcripts of testimony given by the witnesses before the Board as well as properly admitted exhibits. The AHC then decides whether the conditions the Board attached to the license are appropriate based on a new review of the record. The AHC must make findings of fact as well as rulings of law on the issues presented on appeal. The AHC then makes its determination and actually “steps into the shoes” of the Board.  In other words, the AHC exercises the same authority as granted to the Board by the Missouri legislature.  Exercising the same authority necessarily carries with it the discretion afforded the Board by the Legislature.  The AHC does not merely parrot the Board’s decision.  The AHC review is not designed to overturn the Board only if the Board made an error.

The Missouri courts are permitted to hear the case only after the agency made its final decision. The applicant must exhaust all administrative remedies before resorting to the courts for relief. Missouri law places restrictions on the circuit court’s authority when deciding AHC appeals. The petitioner must file for relief no greater than 30 days after the final decision by the AHC. A judge alone must hear the case; the parties are not entitled to a jury. The judge limits review to constitutional compliance, whether the Board exceeded statutory authority, whether the Board’s decision was supported by competent evidence, the hearing was unfair, whether the Board’s decision was arbitrary and capricious, or whether the Board abused its discretion when making its ruling.

The party aggrieved by the circuit court’s decision may file a further appeal. The appellate court reviews the Board’s action and not the circuit court’s decision. The issue the appeals court must address is very straightforward: whether the entire record supports the Board’s decision with substantial and competent evidence. The Board’s decision must be against the overwhelming weight of the evidence if the appellate court will overturn the agency’s decision.

Experienced Advocate Fighting For You Every Step Of The Way

Missouri Professional Licensing Attorney Danielle Sanger is an experienced and zealous advocate for licensees facing discipline. Call Attorney Sanger today at 785-979-4353 to schedule your free consultation. Attorney Sanger will fight to protect you and your livelihood. Call today.

Are Professional Licensing Decisions Presumptively Valid In Kansas?

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A professional licensee aggrieved by licensing boards may seek redress of those wrongs in Kansas courts. State statutes limit a court’s authority to hear appeals from administrative agencies such as licensing boards.  The court is permitted to inquire into a very narrow scope of well-defined issues. A reviewing court does not re-try the case. Rather, the court looks for errors of law in the agency decisions or crafts a decision that is well beyond the weight of the evidence. Experienced, savvy, and skilled professional licensing attorneys know how to use the law to their client’s advantage. Kansas professional licensing attorney Danielle Sanger uses her knowledge of the law and skilfully applies it to the benefit of her clients facing discipline on their professional license.

Kansas state statute 77-621 controls the scope of review for a court hearing an appeal from an administrative agency. At the outset, 77-621 states that the burden of proof and persuasion is on the party aggrieved by the agency’s decision.  Consequently, the licensee must produce evidence to show that the agency decision was invalid and convince the court that the agency was wrong in making its decision.

The statute permits the court to revoke the agency’s decision in limited circumstances.  The court may overturn agency action if the law, rule, or regulation the agency applied in making its decision is unconstitutional on its face or the law as applied is unconstitutional.  The court has the authority to overturn an agency decision if the agency acted beyond its jurisdictional limitations.  Additionally, the court has the authority to overturn an agency’s decision if the agency erroneously applied the law or misinterpreted the law. Agency action may be overturned if the agency failed to follow appropriate procedure or the procedure it follow was unlawful.  Furthermore, the court will overturn agency action if the persons making the decision did not constitute a proper decision-making body or its members were subject to disqualification. Agency action will be overturned if the agency relies on a fact in evidence that was not proved to be “substantial” in light of the entire record of evidence.  The court cannot re-weigh the evidence or engage in a de novo (meaning “anew”) review. Lastly, the court will overturn agency action if agency action was unreasonable, arbitrary or capricious. The standard of review that a court applies when reviewing agency decisions is well-settled. The court may not substitute its judgment for that of the agency.

An appellate court has jurisdiction to hear an appeal from the lower court’s ruling on an agency decision.  The appeals court reviews the district court action to be certain that the court followed the command of 77-621. Next, the appellate court reviews the record of the agency bearing in mind the same scope of review as that of the lower court.  The appeals court determines whether the statute, rule, or regulation supporting the agency’s decision is constitutional. The appeals court begins its review from the premise that it must interpret the law as intended by the legislature. Words are given their ordinary meanings, and the court tries to interpret the law so the interpretation does not create unreasonable results.  The appellate court cannot, like the lower courts, weigh the credibility of the witnesses or evaluating conflicting evidence. Those tasks are left up to the agency to determine. However, courts will give some deference to the agency’s interpretation of the relevant law and will not overturn its interpretation unless the agency was erroneous as a matter of law.

For Further Information

Kansas Professional Licensing Attorney Danielle Sanger vigorously defends professionals who face discipline on their licenses. Attorney Sanger is a knowledgeable and zealous advocate who will fight to protect your rights. Call Attorney Sanger today at 785-979-4353 to schedule your no-obligation, free consultation.

Kansas Professional Licensing Attorney Explains The Kansas Board Of Healing Arts Sanction Guidelines-Four Of Four

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The Kansas Board of Healing Arts (“the Board”) issued sanction guidelines for misconduct in 2008.  The guidelines delineate ten categories of ethical violations. The Board discussed the ethical violations and provided insight into sanction rationale. A grid accompanies the guidelines. The grid is a sliding scale. The grid computes an appropriate sanction based on the severity of the misconduct, the prior history of the licensee, along with any mitigating or aggravating factors. The Board specifically reserves its discretion to punish to the extent allowed by Kansas law and therefore depart from the sanction grid. Notwithstanding, the guidelines establish uniformity of sanctions for ethical violations. Kansas professional licensing attorney Danielle Sanger will fight to protect your rights if you face sanctions for an alleged ethical violation.

Determining the appropriate sanction rests upon several factors.  According to the guidelines, the Board will consider the goals for sanction. Those goals may be designed to protect the public from harm. Public harm can be physical harm and economic harm as well. Physical harm may befalls a patient due to delayed treatment or suffering a worsened outcome. The Board will consider both the mitigating and aggravating conduct of the licensee.  The Board will then decide upon discipline on a “graduated scale” on the sanction grid. The Board must evaluate discipline based upon consideration of whether the licensee committed multiple violations and repeated violations.

The guidelines provide instruction for using the grid to establish a sanction. The starting point is the “presumed sanction” section. Next, the Board will examine whether the licensee committed multiple offenses of the same conduct or whether the misconduct constitutes separate offenses. The Board aggregates the sanctions for multiple instances of misconduct falling into different categories of misconduct.  If the alleged misconduct appears to be multiple instances of the same offense, then the Board utilizes the grid referencing the presumptive sanctioning for misconduct of multiple offenses. The Board issues the most severe sanction under the guidelines if misconduct falls into different categories.  Once the Board identifies the presumed sanction, then the Board will apply any mitigating or aggravating factors to determine the appropriate sanction.  The Board must identify any mitigating and aggravating factors in its decision.

Mitigating and aggravating factors depend on the facts of the given case. Aggravating factors may lead to a more severe punishment. Mitigating factors may have the opposite effect. The Board examines the following factors in determining the existence of mitigation or aggravation:

  1. Nature and seriousness of the allegations;
  2. Patient characteristics such as age and level of vulnerability;
  3. Frequency of the act constituting misconduct;
  4. Injuries suffered by the patient, if any;
  5. Potential injury;
  6. Abuse of trust;
  7. Consent of patient, if relevant to circumstances;
  8. Intent of the offender;
  9. Motive to commit the act;
  10. Disciplinary record of the licensee;
  11. Health of licensee, if relevant;
  12. Level of cooperation with the investigation;
  13. Remorse;
  14. Impact upon public perception;
  15. Whether the misconduct violated the criminal law;
  16. Dishonesty;
  17. Licensee’s level of competence;
  18. Potential for rehabilitation;
  19. Degree of negligence; and
  20. History of previous violations.

The Board may consider other mitigating and aggravating factors in addition to those listed. The Board then computes the appropriate sanction after close consideration of all of the factors involved. Only then will it issue a sanction that it deems fair and just in the circumstances.

Committed Advocate Ready To Help

Kansas Professional Licensing Attorney Danielle Sanger is committed to defending your professional license from discipline. Every person can reform their ways and correct their actions. Attorney Sanger is dedicated to helping you keep your license so you can maintain your livelihood. Call Attorney Sanger today at 785-979-4353 to discuss your options during your free consultation.