California Court of Appeal Upholds Dental Board's Revocation of License Based on No Contest Plea to Medi-Cal Fraud
On first impression, it is no surprise that a health care professional would lose his or her license to practice based upon a criminal conviction for Medi-Cal fraud. In the case of Hanna v. Dental Board of California, Cal. Ct. App., No. B239336, Dec 13, 2012, the Court of Appeal affirmed the lower court and the Dental Board’s decision to revoke Sohair Hanna’s license to practice dentistry based upon her no contest plea to Medi-Cal fraud in violation of Welfare and Institutions Code section 14107 in June 2007. A closer look, however, shows that revocation is by no means foreordained under these circumstances.
Though no two cases are identical, it is helpful to examine the outcomes in similar cases. A review of Hanna v. Dental Board of California is made more interesting by the fact that she was in practice with her husband, George Hanna, D.D.S., who pled guilty in 2001, to separate violations of the same statute. In his case, the Dental Board imposed a five-year term of probation pursuant to a negotiated settlement, which included the requirement that he use a billing monitor. See Stipulated Settlement and Disciplinary Order In the Matter of the Accusation Against George Hanna, Case No. AGS 2003-04. Though probation is a major imposition, and includes significant collateral consequences, it is generally not career ending – as is revocation.
A comparison of these two cases is instructive regarding steps that can be taken to minimize the adverse consequences in professional disciplinary proceedings.
As noted above, Sohair Hanna, D.D.S., pled no contest to felony Medi-Cal fraud based on billings she submitted to Medi-Cal during the years 2002 through 2004. The Dental Board filed an Accusation against her in April 2010. A hearing was held at the Office of Administrative Hearings in January 2011, and in May 2011, the Dental Board issued a final decision and order to revoke her license to practice on the stated grounds that revocation was necessary to protect the public. See Decision and Order In the Matter of the Accusation Against Sohair Hanna, Case No. DBC 2009-87. Dr. Hanna then filed a petition for writ of mandate in superior court, which was denied by a judgment filed in February of 2012.
The Dental Board’s Decision and Order to revoke Sohair Hanna’s license hinged upon her testimony at hearing that she “did not acknowledge any errors or fraud in her billing practices…that she pled nolo contendere in her criminal case because she could not afford to spend the time required to defend herself or serve a sentence, as she was caring for her terminally ill husband [and did not explicitly acknowledge wrongdoing]… [and] that she has not had any training, classes, or course work related to billing … .” See the Decision and Order In the Matter of the Accusation Against Sohair Hanna, pages 5-6, para 13. These findings led the administrative law judge to conclude that Dr. Hanna “did not establish sufficient mitigation or rehabilitation to demonstrate that the public would be adequately protected if her license is not revoked.” Ibid.
Both the superior court and the court of appeal upheld the Dental Board’s decision. This is unsurprising given that the court’s “pay great deference to the expertise of the administrative agency in determining the appropriate penalty to be imposed” and will not disturb the agency’s determination “unless a manifest abuse of discretion is shown.” Hanna v. Dental Board of California, Cal Ct. App., No. B239336.
What lessons can be learned from this case? First, a negotiated settlement, if possible is the surest way to avoid the risk of revocation. Second, if a negotiated settlement is not possible, it is imperative to develop mitigating evidence regarding rehabilitation. In this case, the administrative law judge (whose proposed decision determined the ultimate outcome) seemed to suggest that the result may have been different if Sohair Hanna, D.D.S. had (1) acknowledged wrongdoing consistent with her criminal conviction, and (2) undertaken remedial education in billing processes to demonstrate that she is ready and willing to learn from the experience.
Every case is different. Nonetheless, this case serves as a hard reminder of steps that can be taken to help mitigate the harm when defending against charges by a professional licensing board.