IS REPORTING MANDATORY?

Our communications are not intended to deal exclusively with mandatory reporting requirements, whether applicable or not. The Administrative Procedure Act (APA) is found in the California Government Code, section 11340 et seq. This statute establishes “rulemaking” procedures and standards for California state agencies. Additionally, California regulations must be in compliance with regulations adopted by OAL (see California Code of Regulations, title 1, sections 1-280).  The California Code of Regulations is the official publication of regulations adopted, amended or repealed by California state agencies. Reporting requirements vary from state to state and may be different from one California Regulatory Agency to another. The mandated reporting can be found in the particular license “Practice Act” as well as the rules and regulations that apply to  the profession or occupation.

Example for a Pharmacist: ANY controlled substance loss, small or large, must be reported to the California Board of Pharmacy (BOP) within fourteen (14) calendar days from the date of loss when it was a result of the theft by a licensed employee, or when it is from any other type of loss, within thirty (30) calendar days.

Example for an RN: is the reporting of convictions by Applicants for an RN license issued by the Board of Registered Nursing (BRN). All prior convictions substantially related to the duties, functions and/or qualifications of a registered nurse are reviewed by the BRN on a case by case basis. Since July 1, 2020, applicants are not asked about their prior criminal conviction history, but they will be discovered upon the Board’s receipt of an individual’s fingerprint results.The Board will not generally take action on convictions older than seven years, however, there are several exceptions, such as a serious felony that includes approximately 42 different crimes. Upon renewal of a nurse’s license, the BRN requires nurses to disclose whether they have had ANY license disciplined by a government agency or other disciplinary body; or if they have been convicted of any crime in any state, U.S. territory, military court or other country since their  last renewal. Failing to disclose ANY conviction may be grounds for disciplinary action as the government will contend you falsified information required on your renewal form; this is mandatory even when a conviction is expunged. As stated earlier in this paragraph, any felony or misdemeanor conviction substantially related to the duties, functions and/or qualifications of a registered nurse can be the basis for disciplinary action.

Example for a Physician, who is licensed in California is required to notify the Medical Board (MBC) of certain specific occurrences. Reporting forms and links are set forth below. Pursuant to California Business & Professions Code:

  • § 801.01(b)(2), a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount, if the licensee does not possess professional liability insurance. (See Report of Settlement, Judgment or Arbitration Award)
  • § 802.1, a licensee must report:
  • An indictment or information charging a felony against the licensee.
  • A conviction, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (See Physician Reporting – Criminal Actions)
  • §2240, a licensee who performs a medical procedure outside of a general acute care hospital, that results in the death of any patient on whom that medical treatment was performed by the licensee, or by a person acting under the licensee’s orders or supervision, shall report, in writing, on a form prescribed by the board, that occurrence to the board within 15 days after the occurrence. (See Outpatient Surgery – Patient Death Reporting Form)
  • § 2021, each licensee shall report to the board each and every change of address within 30 days after each change. (See Notification of Name Change and Address of Record )

We begin with a laser focused analysis of all of the facts and circumstances, and a pivotal strategy to develop a lengthy and comprehensive written presentation, 60 to 75 pages, so that our client is not defined by the actual and perceived conclusions regarding an underlying case. In addition, we pursue and underscore exculpatory evidence and other proof by initiating steps that minimize the risk our client is charged with unprofessional conduct &/or other grounds for disciplinary action. We do not gamble on the Regulatory Agency claiming the underlying situation is substantially related to the duties, functions and qualifications of a licensed professional or occupation. We also do not want to gamble the governmental agency may not perceive there is a basis  to conclude a possible threat to the health and safety of the public; nor do we want to risk by assuming that unequivocally the underlying matter does not evince unfitness, lack of good judgment, etc.

Please note the CALIFORNIA CODE OF REGULATIONS, 16 CCR § 1444 states: [§ 1444. Substantial Relationship Criteria]. “A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety, or welfare Such convictions or acts shall include but not be limited to the following: [Emphasis Added; we prefer to error on the side of caution and, therefore, have provided the information herein](a) Assaultive or abusive conduct including, but not limited to, those violations listed in subdivision (d) of Penal Code Section 11160. (b) Failure to comply with any mandatory reporting requirements. (c) Theft, dishonesty, fraud, or deceit. (d) Any conviction or act subject to an order of registration pursuant to Section 290 of the Penal Code (Emphasis Added).

We understand a previous case may be unsettling; however, our role is to level the playing field and we do so by underscoring in a long written argument both a defense and offense. If you have a situation you would like us to be of  assistance, do not hesitate to send an email [or call us at 1.619.583.0350] during our regular hours of 8:30 am to 8:30 pm seven (7) days a week.

 

Serious Ongoing Concerns re: Hacking on the Internet

Hackers are highly motivated to obtain and then sell &/or use the information they obtain from illegal means of accessing the online files and records we have for illegal gain.  As such, there are serious ongoing hacking concerns each of us must be vigilant accessing the internet.

In a most recent newspaper account, there was a report that over 10 million customers of MGM Resorts international had their records accessed because MGM was hacked; it said someone had gained unauthorized access to the company’s “cloud” server. [The “cloud” being something everyone speaks highly about since businesses maintain their data and information on the internet and not on their premises].

It has been reported that Yahoo, owned by Verizon, allegedly has had  the largest data breach in U.S. history. Others are Capitol One [July, 2019: 100 million said to be 30% of the population]; Marriott [ 2018 500 million];  Equifax one of the three largest credit bureaus[ 2017 146 million accounts (names, birth dates, social security numbers, addresses and some driver’s license numbers + 209,000 U.S. credit card numbers were exposed).  2018,(they found an additional 2.4 million U.S. consumers’ names and partial driver’s license information were stolen)]. FEMA [2019 the Federal Emergency Management Agency announced about 2.5 million disaster victims] and, just one other familiar business is Facebook [2019 540 million records; they admitted it has not properly secured passwords].

Also, reported were other familiar companies with various types of content hacked, such as INSTAGRAM, EVITE, SPRINT, STATE FARM, CHOICE HOTELS, MOVIE PASS; DOOR DASH, ADOBE, DISNEY Streaming Services, MACY’S E-Commerce site, T-MOBILE, and ZYNGA are some of those identified via information and  data protection services.

Clearly, security issues on the internet can be compromised. 

Everyone has to be proactive, because  the question that is being asked is “not” who is next, but WHEN will be the next hacking!

 

Do You Know Whether You Are Using Fake Apps (Applications)?

Almost everyone uses a cell phone today. And, the number using a smart phone and/or any other mobile device, such as a tablet, is increasing daily.  We know that cell phones can be used to send instant text messages, which for many are used more frequently than communicating in person, on the telephone or sending an email. And, it has been reported that some individuals now spend more than four (4) hours or more a day using mobile devices. With the added time spent surfing the internet on all devices, using (icons on a desktop or) applications on a mobile device has become increasingly advantageous and customary for many of us.

Applications are more commonly referred to as “apps.” At this point there are approximately  4 million apps for Apple and Android cell phones.  Using apps save a lot of time, do not require entering information on a search bar, and then selecting from a host of different entries or listings. As  result, many consider apps to have become priceless (not just the free ones, but even those that come with a fixed price at the beginning and/or even a monthly fee).

Some apps are simply a convenient way to reach a business, and for many apps that are free there often are lots of advertisements that can be a nuisance. But, some apps bring with their use both spam and viruses, while others can cause a great deal of harm, for example when a culprit uses their fake app to obtain all of our confidential information stored on our device.  Yes, there are a growing number of apps every day that are fake & not genuine. The average individual would not ordinarily be able to discern whether an app is legitimate because they use the exact logo, same address and everything including the order form that makes them look genuine, except the telephone number and email address with which you are using to communicate.

Even worse once you find an object on the internet using a counterfeit or fake app (and, not knowing it is not authentic) to order and make a purchase,  you will never get the product, but your credit card will be charged. Then, all of your identification information will have been gathered, and before you know it you will have to cancel your credit card because it has become an object of identity theft of hundreds and potentially thousands of dollars. You may be naive to what has taken place and innocently give your address, your driver’s license number, and/or Social Security number (even just the last four digits). The problems just begin, having to report the suspicious and illegal activity, and cancel your credit card, which can ruin your credit.  In addition, some or all of your private and confidential information stored on your device, however, may also be hacked and open to countless others.

An alternative may be to go online and find the “actual” business, then search to see if they have an app, and/or call and speak to their customer service to inquire if there is a link to their app and the online page for you to click. But, next time be cautious and  really certain the app is genuine before you provide your identification information to a retailer or anyone when surfing the internet. This cautionary note is also relevant when providing information to anyone with whom you are speaking, whether in person or on the telephone; and, take the same precautions whether you have contacted a business to make a purchase or sought a service through the internet.

California Petty Theft Laws: Detention and Civil Demands

Unless specifically set forth as grounds for Grand Theft, the Petty Theft laws apply, as follows:

  •  Petty Theft is often referred to as shoplifting; as a general rule it takes place when one obtains property by theft, that involves a value less than nine hundred fifty dollars ($950);
  • A first conviction generally constitutes and is punished as a misdemeanor. Penal Code Section 490 provides for a fine for each violation of up to one thousand dollars ($1,000), or up to six (6) months in the county jail, or both;
  • The prosecutor (District Attorney or City Attorney) has the discretion to charge the defendant as an infraction if the person has no prior theft or theft-related conviction (Section 490.1);
  • In addition to other civil remedies, the merchant can make a civil demand and collect up to five hundred dollars ($500), plus costs. In addition, the store may collect the retail value of the merchandise;
  • Pursuant to 490.5 (f) (1) of the Penal Code, a merchant may detain a person for a reasonable time to conduct an investigation if the merchant has probable cause to believe the person of interest unlawfully attempted to take or has unlawfully taken merchandise from the premises of the store.
  • A reasonable amount of force not likely to cause great bodily harm may be used if it is necessary and, therefore it becomes, justifiable, to protect oneself and/or to prevent the person who has been detained from fleeing &/or the loss of the merchant’s property;
  • Following the above principles, the merchant may request the person who has been detained to voluntarily surrender the item in question, and if refused, is permitted to conduct a reasonable search to recover the same. This involves and is limited to handbags, packages, shopping bags and/or other property possessed by the detained person; this search does not, however, encompass any clothing worn. Crimes Against Property:

Although a merchant may demand attorney’s fees or threaten to cause harm to a person’s credit, they do not have the power to do so [attorney’s fees are prohibited in such a case, and because there has been no adjudication of money owed, they cannot report someone to a credit bureau]. Also, it may be deemed a violation of State extortion and Federal collection laws for a merchant to threaten criminal &/or civil action

The facts and circumstances differ in one case from another and, therefore, the information in this Blog is not intended as legal advice.

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