Tag Archive for: Kansas professional licensing attorney

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.

 

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.

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

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The Kansas Board of Healing Arts (“the Board”) in 2008 released guidelines for disciplinary sanctions. The Board broke the guidelines down into ten general categories of ethical violations.  The guidelines explain the various categories of ethical violations and the rationale for the proposed sanctions.  The Board follows the guidelines when devising a sanction for an ethical violation. However, these are not set in stone. The Board specifically retained their discretion to sanction to the extent allowed by law. Therefore, the guidelines are suggestions for sanctions. Notwithstanding, a licensee must be aware of the potential penalties they may suffer if the Board finds them in responsible for an ethical violation. If you find yourself in that situation, Kansas professional licensing attorney Danielle Sanger will use the guidelines to obtain the best result for your situation.

This article discusses the sixth through tenth categories of ethical violations. A previous article discusses categories one through five. The sixth category of ethical violations is concerned with advertising.  The First Amendment to the United States Constitution protects the licensee’s right to free speech.  Advertising is a protected form of speech.   Freedom of speech does not extend to false, misleading, or deceptive claims. While the advertising technique of
puffing is permitted, factual misrepresentations must be sanctioned. The Board recommends that sanctions for making factual misrepresentations include remediation, deterring future errors, and a punitive sanction such as a fine.  The Board considers false advertising that is confusing to patients rather than leading to potential physical or monetary harm is “less serious.”

The seventh category of ethical violations relates to the lack of fitness to practice a healing art. Impairments affect the licensee’s ability to practice with “reasonable skill and safety.” Impairments include drug and alcohol abuse in addition to mental and physical limitations. The Board will look to the practitioner to provide insight into the condition when fashioning an appropriate sanction.  The guidelines indicate that the Board will look more favorably upon a practitioner who seeks help for their condition. Addressing the impairment is the goal of the sanction, however, accomplishing that goal may result in suspension during the licensee’s rehabilitation period.  In treating practitioners who are cooperative and seek treatment differently, the Board’s policy that referral to a treatment facility or monitoring is not disciplinary action if the sole reason is a treatment for impairment.  The Board encourages its members to seek treatment and therefore the action is not considered a sanction. Notwithstanding, the Board will consider any available sanction for a licensee who is uncooperative or when “uninterrupted practice endangers the public.”

Administrative requirements are the eighth category of ethical violations. Administrative requirements involve reporting breast examine abnormality, maintaining liability insurance, and posting requirements. The Board levies sanctions for administrative violations by examining the state of mind of the practitioner.

Inappropriate prescribing refers to prescribing medication without a legitimate medical purpose as well as failing to follow prescribing requirements.  The Board determines this category of offense as serious because of the potential health risk involved. The Board cautions practitioners that following the Board’s policies on pain management is distinct from inappropriate prescribing. Furthermore, prescribing medication in a manner that deviates from the standard of care is considered incompetence unless the behavior is criminal in nature. The Board will distinguish behavior that is merely negligent from more deviant behavior when devising sanctions.

The final ethical category is proper maintenance of patient records. Healthcare professionals have a duty to maintain patient records and release them upon patient request.  This category includes unethically releasing private information.   The Board is particularly interested in the pervasiveness of the licensee’s failure to properly maintain patient records when fashioning an appropriate sanction.

Kansas Professional Licensing Attorney Ready to Help

Kansas Professional Licensing Attorney Danielle Sanger is a zealous advocate for professional license holders. Attorney Sanger possesses the skill and expertise to protect your livelihood. Call Attorney Sanger today at 785-979-4353 to schedule your no obligation consultation.

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

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The Kansas Board of Healing Arts (“the Board”) promulgated its sanctioning guidelines in 2008. The Board issued a sanction grid to accompany the guidelines.  The Board grouped laws and regulations under headings describing a particular type of misconduct. The grid compares the severity of the allegations to the licensee’s prior record of discipline. Then a sliding scale determines the appropriate sanction for the alleged misconduct.  The Board made it very clear: it reserves the right to order any lawful sanction it sees fit within the bounds of its discretion and is not limited by the guidelines.  Nonetheless, the guidelines assist licensees facing discipline understand the potential discipline they face and can advocate for alternatives. Kansas professional licensing attorney Danielle Sanger is a tireless advocate for licensees facing discipline and will use the guidelines to your advantage.

The Board divided the guidelines into ten general categories of professional misconduct. The first through the fifth categories are discussed here; whereas categories six through ten are discussed in a subsequent article. The first category of misconduct falls under the general heading of “competence.” The Guidelines list multiple potential violations under the general category of competence. The Board’s rationale for sanctioning lack of competency is very clear. The Board follows the ruling of the Kansas Supreme Court regarding incompetence in the healing arts. The Court stated, as quoted in the guidelines, “[n]o conduct or practice could be more devastating to the health and welfare of a patient or the public than incompetency . . .” Consequently, the Board seeks to sanction incompetence for failing to adhere to the appropriate standard of care resulting in gross negligence or repeated instances of ordinary negligence. Incompetence applies to the practitioner’s actions and his or her actions about the supervision of another healing art professional.

The Board describes the second category of sanctionable offenses as general misconduct. The Board defines misconduct as conduct that is “unsafe or improper.” According to the Board, general misconduct is dishonorable conduct or unprofessional conduct as well.  The Board further defines misconduct as conduct that does not conform to the standards necessary to protect the public from harm.  The Board defines professionalism as qualities of integrity, respect, and compassion. Misconduct is the exact opposite: unethical, corrupt, and dishonest. The Guidelines state clearly that the sanction for misconduct is punitive in nature, rather than remedial.

Criminal conduct is sanctionable by the Board. The Board concerns itself with the criminal conduct of its members because criminal conduct is evidence of lack of fitness for treating patients. The Board is also concerned about the public trust deteriorating if criminal acts committed by its members went unpunished. The Board announced in the Guidelines that discipline for criminal acts must be punitive in nature. The Board considers criminal conduct as serious in nature under the sanction grid when fashioning discipline.

The fourth category of misconduct is sexual misconduct. Sexual activity between consenting adults is misconduct if one of the consenting adults is a patient. Exploiting vulnerable patients for sexual gratification is not only a crime but a very serious violation of the ethical rules. The Guidelines call for the revocation of the license if allegations such as these are proved. The Board has a zero-tolerance policy for sexual misconduct involving a minor and counsels such intolerance extend to sexual contact with an adult as well. Sexual misconduct extends to the work environment. Sexual advances made by a supervising licensee to a subordinate create an untenable situation and must be sanctioned. The Board considers sexual misconduct such as sexual harassment to be a serious offense and has enumerated many factors to consider when deciphering an appropriate sanction.

The fifth category of misconduct involves business transactions. Misconduct involving business transactions ranges from over charging, fee-splitting, and welfare fraud to business transactions involving patients. This category of misconduct falls in the middle of the sentencing grid.

Kansas Professional Licensing Attorney Danielle Sanger will fight to protect your livelihood. Attorney Sanger is a zealous advocate for her clients. Call attorney Sanger today at 785-979-4353 to schedule your free consultation.

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

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The Kansas Board of Healing Arts (“the Board”) released a comprehensive set of rules announcing the possible range of penalties for conduct offensive to the ethical rules governing practitioners of the healing arts.  In 2008, the Board issued the “Guidelines for the Imposition of Disciplinary Sanctions” (“Guidelines”). The Guidelines provide practitioners with the rationale the Board employed when devising the potential sanctions and is more than a set of rules and penalties for violating those rules. Thoroughly understanding the potential penalties for rules violations permits the licensee a sense of predictability and uniformity in applying the penalties but also affords the opportunity to propose lesser sanctions in an attempt to promote growth in the Healing Arts. Kansas professional licensing attorney Danielle Sanger has successfully utilized the Guidelines to advocate successfully for her clients.

The Board does not seek to impose the maximum sanction for every alleged ethical violation. The Board espouses a sanctioning philosophy designed to protect the public and the medical professions. Accordingly, the Board will sanction practitioners who run afoul of the ethical rules “with the least restrictive discipline necessary to meet the proper sanctioning goals.” Notwithstanding, the Board comprehends its primary goal is to protect the public and therefore will order sanctions to protect against immediate or irreparable harm. However, the Board may fashion a sanction that will rehabilitate the offender in the appropriate circumstance.

The Board enjoys wide discretion in fashioning sanctions for alleged misconduct. In fact, the Board reserves the right to impose any sanction within its discretion. The possible sanctions vary from no punishment at all to revocation of license. Included in the sanction continuum are alternatives such as censure, fines, suspension, limitations placed on the license, and denial of application or revocation. The Board imposes upon itself a mandate that when fashioning a sanction, the Board must consider the goals for sanctions. The goals included remediating the situation, protect the public from immediate harm from, or to punish.

In addition to the possible sanctions cited above, the Board has the authority to enter into a letter of agreement with the practitioner. The agreement may state a plan for the practitioner to correct any mistakes and to avoid future violations. The Board may also send the practitioner a letter informing the practitioner of the Board’s concern about present conduct in special circumstances to avoid non-conforming behavior becoming a future ethical violation.

The Board frequently imposes a term of probation on a license. A period of probation is a remedial sanction. In contrast, the Board describes fine and censure as purely punitive. With probation, the Board can impose restrictions upon the practitioner’s license such as attending and completing continuing educational courses, strict supervision by another practitioner, periodic medical record review, treatment for physical, emotional, or psychological conditions. The Board may also limit the types of services the offending practitioner may provide or the setting in which the practitioner provides their services.

The Board imposes the most severe sanctions in the appropriate circumstance. Revocation, denial of an application, or suspension achieve the goals for punishment but are imposed in situations when the practitioner is adjudged by the Board to no longer be fit to enjoy the privilege of practicing the healing arts or is purely incompetent. The primary aim of these sanctions is to remove the practitioner from the public to prevent future harm.

Kansas Professional Licensing Attorney Danielle Sanger devoted her career to helping medical practitioners and other professional licensees avoid the disastrous consequences of disciplinary action. Attorney Sanger is a devoted advocate who is keenly aware of the sacrifice one makes to obtain and keep a professional license. Call Attorney Sanger today at 785-979-4353 to arrange for your no-obligation consultation.

Kansas Professional Licensing Attorney Discusses Recent Disciplinary Decisions

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Kansas professional licensing attorney Danielle Sanger closely monitors disciplinary decisions issued by the Kansas State Board of Healing Arts (the “Board”). Understanding the decisions issued by the Board assists Attorney Sanger in advising her clients who are facing discipline. Attorney Sanger appreciates the commitment and sacrifice required to earn and maintain a professional license and employs that same commitment in fighting for clients.

The Board has issued several decisions to this point in March of 2016. Two decisions illustrate the vital importance of appearing before the Board when ordered to appear. Failure to appear permits the Board to enter a default against the licensee and enter appropriate orders without a contest from the licensee. In one case, a chiropractor’s license was canceled for failure to timely renew. The chiropractor subsequently applied for reinstatement. Disciplinary counsel for the Board alleged that the chiropractor failed to disclose pending criminal actions pending against him to the Board on his application. The chiropractor was given notice to appear before the Board. The chiropractor requested a continuance of the appearance based upon personal reasons. The Board sought further information about his proffered reasons. The chiropractor failed to supplement his request for continuance. Consequently, he attempted to withdraw his application for reinstatement. The chiropractor failed to appear at the scheduling conference and was defaulted. The Board found that the chiropractor committed fraud by misrepresenting his criminal history to the Board and finding that the fraud proves the chiropractor is unfit to practice in Kansas. Moreover, the Board found that the chiropractor should not be allowed to withdraw his application to avoid discipline.

The second default order of March 2016 resulted in revocation of a physical therapy assistant’s license. The therapist failed to appear at a scheduling conference despite being warned that a failure to appear would result in a default finding. The therapist failed to appear as ordered. Consequently, the therapist’s certificate was ordered revoked. The therapist forfeited any argument to keep her certificate to practice, which was active at the time of her default.

The Board took other disciplinary action in March 2016 as well. The final consent order entered against a physician’s assistant accused of incompetence, improper prescribing, inadequate record keeping, and assisting in the care of a patient without consent of that patient. The physician’s assistant substantially complied with the educational requirements imposed by the Board and complied with the prohibition from performing urological surgery. However, the Board imposed, and the physician’s assistant did not oppose, the condition that he have a prescription monitor for an additional year.
The Board approved a second consent order in March 2016. This order was issued against the certificate of a physical therapy assistant. The assistant was convicted of a second offense for driving while intoxicated after a motor vehicle accident. The assistant waived her rights to a hearing and voluntarily entered into a consent order. The terms of the consent order are for two years. Many of the terms of the order are redacted from public record as “confidential.”

The Board exercised its statutory authority to issue an ex parte emergency order against a doctor of osteopathy. The Board issued the emergency order after finding that the physician may harm the public if allowed to practice. The facts giving rise to the emergency order are redacted as “confidential.” The Board ordered the physician to immediately cease the practice of urgent or emergency care of patients.
The Board issued two further decisions. The Board summarily canceled the license of a radiological technician who failed to timely pay her reinstatement fee. Finally, a physician’s license to practice medicine and surgery was revoked by the Board for malpractice and failure to participate in the complaint process. The physician, after being duly subpoenaed, failed to appear for a deposition. The physician also failed to answer interrogatories and disclose witnesses. Thus the physician’s failure to participate precluded the physician an opportunity to be heard and fight to retain the privilege to practice medicine in Kansas.

Seek Immediate Assistance
If you have been given notice of a complaint pending against you, call Kansas Professional Licensing Attorney Danielle Sanger immediately. Attorney Sanger has dedicated her practice to representing licensees in Kansas and Missouri who are facing discipline. Call 785-979-4353 today to schedule your free consultation.

Kansas Board of Healing Arts Complaint Process

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The Kansas Board of Healing Arts (“the Board”) has an established procedure for investigating and adjudicating complaints of wrongdoing lodged against one of its members. The procedure is a natural progression from intake of complaint to investigation and either closure of the investigation or adjudication. Each step in the process is critical to both the complainant and the health care provider under investigation. Any caregiver who learns of an investigation must retain counsel as soon as possible. Failure to hire counsel timely could have dire consequences and lead to disciplinary action that may have been avoided. Kansas professional licensing attorney Danielle Sanger will zealously fight to protect your professional license from discipline.

The Board has developed a standardized procedure to handle complaints against its members. Most commonly, complaints are filed by patients. The Board may receive a complaint from any number of sources. However, information from complaints may be forwarded by other healthcare agencies, other healthcare providers, data bank reports, malpractice information, and adverse findings from other licensing boards. Once that happens, the complaint is added to the Board’s complaint database and is forwarded to disciplinary counsel. Disciplinary counsel reviews the complaint to determine whether the disclosed allegations may violate the Healing Arts Act. If disciplinary counsel determines that there is no violation of the Healing Arts Act based upon the factual allegations in the complaint, then the complaint is closed and no further action on the complaint is taken. At that point, the complaint is forwarded to an investigator for closer examination and investigation.

The assigned investigator is responsible for gathering information from various sources. The investigator will accumulate records from the licensee and all other relevant agencies. The investigator will also interview several individuals, if warranted, by the investigation. The investigator may interview the licensee or at least try to obtain a response to the allegations. The investigator should speak with patients, complainants, and other witnesses who may possess relevant information. The matter is referred back to disciplinary counsel when the investigation is complete.

Disciplinary counsel reviews the investigation to determine whether the complaint should proceed. If the complaint lacks support from “credible evidence” and the allegations are unsupported, then the complaint may be closed. At this juncture, the process proceeds toward adjudication if the complaint is supported by competent evidence.
The path the matter takes to adjudication depends upon the nature of the proceedings. If the complaint is based upon a violation of the standard of care, then the disciplinary counsel forwards it to the complaint review committee or professional council. Standard-of-care issues are reviewed by practitioners from the same profession or initial peer-review board. Conduct issues are those that do not involve an alleged breach of the standard of care. Conduct issues include the business of medical practice, practicing without a license, billing issues/complaints, practice by an impaired healthcare professional, and criminal convictions. Conduct issues are referred to litigation counsel by the Board. If the review board or committee determines the matter should proceed, then disciplinary counsel refers the matter to the disciplinary panel.

The disciplinary panel makes a recommendation to initiate discipline or close the case. The recommendation to close or initiate discipline is reviewed by the Board. Each level of review is independent of the previous and is not bound by those decisions. Initiating disciplinary action may take the form of a professional development plan or letter of public concern. The licensee may also agree to a resolution such as a consent order. The licensee may also contest the panel’s recommendation. The Board ultimately reviews and may approve all actions by the disciplinary panel. The Board may also seek further review of closed matters.

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Kansas Professional Licensing Attorney Danielle Sanger will vigorously fight to protect your ability to make a living. She understands the sacrifices made to achieve professional licenses and the devastation discipline can cause. Do not go it alone. Call Attorney Sanger today at 785-979-4353 to schedule your free consultation.