Adverse Discipline - How Much Discretion Does a Licensing Board Have?
An adverse disciplinary action by the dental board (or any board) is not subject to challenge based upon disagreement with its severity. In Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012), the California Court of Appeal affirmed the Dental Board's revocation of Dr. Sohair Hanna's dental license following her felony conviction for Medi-Cal fraud.
The court held that the Board acted within its discretion in imposing license revocation as a sanction, finding that Medi-Cal fraud convictions are substantially related to a dentist's fitness to practice and that Dr. Hanna failed to present sufficient evidence of rehabilitation or acknowledgment of wrongdoing to warrant a lesser penalty.
Standard of Review by the Courts
The Court of Appeal applied the abuse of discretion standard, explaining that "The propriety of a sanction imposed by an administrative agency is a matter resting in the sound discretion of that agency, and that decision will not be overturned absent an abuse of discretion" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
The court emphasized that "the administrative agency's exercise of discretion as to the discipline to be imposed will not be disturbed unless a manifest abuse of discretion is shown" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
The court established that "When an individual is convicted of a crime substantially related to the qualifications, duties and functions of her profession, cause exists to revoke or suspend her professional license" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
Specifically addressing Medi-Cal fraud, the court held that "Convictions for Medi-Cal fraud are substantially related to a professional's fitness or capacity to practice her profession" because "Intentional dishonesty ... demonstrates a lack of moral character and satisfies a finding of unfitness to practice medicine" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
Board's Consideration of Disciplinary Factors
The court reviewed the Board's analysis under California Code of Regulations, title 16, section 1020, which requires consideration of: "(1) the nature and severity of the acts or crimes; (2) the individual's total criminal record; (3) the time that has elapsed since commission of the crime; (4) the extent to which the individual has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed; and (5) evidence of expungement proceedings or rehabilitation" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
The Board properly found that Dr. Hanna "committed significant Medi-Cal fraud over a 10-month period" and that "Felony fraudulent billing is a serious offense involving moral turpitude" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012). The Board noted that the conviction was less than four years old and that Dr. Hanna remained on probation Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012). Critically, the Board determined that Dr. Hanna "presented no evidence of rehabilitation" and that while she "admitted to the fraudulent Medi-Cal billing that formed the basis for her conviction, ... at hearing she did not acknowledge that she committed Medi-Cal billing fraud" Hanna v. Dental Bd. of California, 212 Cal.App.4th 759 (2012).
Summary
The holding in Hanna v. Dental Bd. of California (2012) put barriers to random discipline. The court emphasized that for discipline to be valid and not arbitrary, there must be a logical connection (a nexus) between the licensee's conduct and their fitness or competence to practice the profession. Discipline cannot be imposed for "technical" or "clerical" errors that do not impact the practitioner’s professional integrity or the safety of the public.
Standard of "Unprofessional Conduct"
The Board argued that any violation of its regulations could be categorized as "unprofessional conduct." However, the court held that the term "unprofessional conduct" is not an empty vessel that a board can fill with any minor infraction.
Substantive vs. Technical: The court distinguished between substantive misconduct (like fraud or clinical incompetence) and mere administrative or "innocent" mistakes.
Arbitrariness: Disciplining a doctor for a mistake that lacks "moral turpitude" or a demonstration of unfitness was viewed as an arbitrary application of the Board's police power.
We have written about how two equal boards (Osteopathic and Medical) should not have substantially different rules for disciplining the same conduct. See Blog
Clear Notice and Defined Standards
The ruling reinforces the Due Process principle that professionals must have fair notice of what conduct is prohibited. If a board punishes a licensee for conduct that has not been clearly defined as "unprofessional" through statutes or formal regulations, it risks acting in an "arbitrary and capricious" manner. The Medical Board publishes its disciplinary standards to "give notice" to doctors but the standards are so generalized that they provide little guidance. The same is true for board meetings and board minutes. Unless you are a lawyer practicing in the medical defense field it is virutally impossible to know what the disciplinary "price" is for the conduct levied against a doctor.
Judicial Deference vs. Independent Judgment
While courts generally give deference to an agency’s expertise, Hanna demonstrates that this deference is not absolute. When a board’s interpretation of its disciplinary authority expands to include minor, non-clinical errors that do not reflect on professional character, the court will intervene to prevent an abuse of discretion. The trouble is there is great difficulty in getting information as to the standard punishment for your particular client's conduct. How can you say an offer is "balanced" when you have not data to balance against?
The Hanna decision is frequently cited to argue that administrative boards cannot "bootstrap" minor regulatory violations into "unprofessional conduct" charges. It stands for the proposition that professional discipline must be grounded in conduct that actually relates to the quality of the profession, rather than arbitrary enforcement of clerical rules.
Get the Best Legal Assistance
This case is important because it underscores how important it is to provide significant mitigation evidence at an early stage of the Accusation process. Expert balancing is needed in asserting a defense and at the same time showing rehabilitation. The Law Office of Daniel Horowitz is expert in defending dental, medical board and osteopathic medical board actions. Call Daniel to set up an initial consultation at 925-283-1863.
