Appeals

If you're a licensed professional (e.g., a doctor, nurse, pharmacist, LPC, accountant, insurance agent, etc.), having your professional license revoked or suspended is one of the worst things that can happen to your career. In a moment, your livelihood is removed. You can't go to work, you have to close your business or practice, and your income dries up. And if you had employees, they're now out of a job, too! That's a lot of heartache and hardship over one mishap or misunderstanding with the licensing board. And it feels even more like an injustice when you know the board didn't act in good faith or according to the law in reaching its decision. That's what the appeals process is for.

If you've recently lost your ability to work in your profession due to a license being suspended or revoked, that's not necessarily the end of the story. You have the right to the decision of the board or the Administrative Law Judge. That said, filing a successful appeal is easier said than done. It's a complicated legal process that requires the help of a lawyer with extensive experience.

Attorney Joseph D. Lento is an experienced professional license attorney who helps working professionals with their licensing issues in New Jersey and New York. He has an excellent track record of success and understands the complexities of the appeals process when it comes to overturning license suspensions and revocations. If you have recently lost your professional license and are considering filing an appeal, here's what you need to know.

What types of violations result in having a license suspended or revoked?

The list of offenses that could cost you your license will be somewhat unique based on your profession—for example, the list for doctors will look different than that for a financial advisor or a social worker. However, it's safe to say that most licenses are suspended or revoked over a significant violation of the rules or a breach of public trust. That said, some of the more common reasons to lose one's license include the following:

• Fraud. Any type of fraudulent behavior may be grounds for losing your license, whether it's defrauding insurance companies through bogus claims (as with a doctor) or defrauding customers directly through some sort of scam or illegal activity.
• Sexual misconduct. Sexual harassment, sexual assault, inappropriate relationships with patients/clients—all of these constitute serious criminal and ethical infractions, and they quite often result in license suspension or revocation.
• Substance abuse/addiction. Inappropriate use of alcohol or drugs can result in license suspension for many professions, especially if a person is under the influence on the job, because licensing boards believe it creates distrust in the person's judgment.
• Criminal convictions. Most licensed professions take criminal convictions quite seriously. Some limit their scope to felony offenses, while others include any criminal conviction involving public safety (e.g., DUI) or moral turpitude. Most licensing boards require you to report a criminal conviction to them. A conviction doesn't always result in losing your license, but failing to report it definitely could.
• Gross incompetence. If you fail to uphold the basic standards of performance for your profession, make a serious mistake, or put a patient/client in harm's way…these are examples of gross incompetence that could result in having your license suspended or revoked.

This list of offenses is important to understand upfront because they are all legitimate legal reasons to lose one's professional license—as long as the licensing board followed proper legal procedures when investigating and processing the complaint. In other words, if you actually did one or more of these things, and the board followed proper procedures to confirm you did them, and revoked your license as a result, your chances of winning an appeal will go down considerably.

On what grounds can I file an appeal for losing my license?

There are several grounds on which you can appeal the licensing board's decision to revoke or suspend your license. The most common are:

• Procedural errors—the licensing board failed to follow its own procedures in investigating the complaint against you, or procedural errors occurred during the hearing—any of which likely steered the decision against you.
• Arbitrary/capricious ruling—you make the claim that the licensing board or administrative court was moved by something other than the evidence and facts of the case in arriving at their decision. In other words, they were biased against you without giving your situation a fair look.
• Lack of substantial evidence—the licensing board must back its decision by providing substantial evidence of your violation and their reasons for suspending/revoking your license. If they fail to do so, you may have grounds for a successful appeal.
• Clearly erroneous—you demonstrate that the licensing board made a ruling that clearly went against the evidence presented.

Can I file an appeal on the grounds that I have been wrongly accused?

You always have the right to appeal any adverse decision, but an appeal on the grounds of a false accusation will likely fail. You may notice that the one grounds for appeal not listed above is that you were innocent of the allegations. That's because the appeals court is not actually questioning your guilt or innocence, but in whether you were given due process by the board or the court. They are looking for errors in how the case was handled and how the decision was reached that may have affected the outcome unfairly. The only time an appeals court looks at the evidence as though it's for the first time is when they are applying the “de novo” standard of review. That typically only happens when there is sharp confusion between the rule of law and the facts at hand, and that's seldom the case in professional license disciplinary cases. So it's not prudent to file an appeal simply because the board came to the wrong conclusion about you and punished you unfairly. Your attorney has to be able to point to some sort of error that skewed that decision.

What is supersedeas relief?

Supersedeas relief is a provision of the law in certain states that allows your attorney to request a temporary stay of your license suspension/revocation while the appeals process moves forward. Supersedeas relief allows you to resume your normal licensed activities while the courts review your appeal. In states where this provision is allowed, one of the first things your professional license attorney will do is file a request for supersedeas relief to get you back on the job as soon as possible. If your request for supersedeas relief is granted, you will be given a court order document (usually called a writ of supersedeas) that you can take the licensing board to reinstate your license until the appeal ruling is made.

How long does it take to get a ruling on my appeal?

It depends on your state and the caseload of the appeals court. Once the appeal has been filed, it may take anywhere from a few weeks to several months to get a ruling from the court. If your attorney has successfully obtained supersedeas relief for you, you can continue working normally as a licensed professional while the appeals court reviews your case.

What happens if I just keep working during the appeal?

If you have not been granted supersedeas relief (or it's not allowable in your state), continuing to do licensed work with a suspended or revoked license is typically a criminal offense—so you could be facing a criminal conviction and a criminal record if you do. Additionally, if your license has only been suspended, it will almost certainly be revoked if you attempt to keep working anyway—unless the courts have said otherwise. Bottom line—defying the ruling of the board is never a good idea, no matter how unfair it seems to you.

How long do I have to file an appeal of the board's decision or the Administrative Law Judge's ruling?

It depends on the laws of your state. In New Jersey, the window for appealing an adverse decision is 45 days. In New York, the window is 30 days. The average appeals window state-to-state is around 30 days. Whatever the case, you need to move forward with your attorney as soon as possible if you plan to file an appeal. If you miss the window, the board's decision is final and cannot be overturned.

Can I appeal a license suspension or revocation if I signed a consent order?

Typically, no. A consent order is a binding agreement between you, the state, and the licensing board in which you officially admit to wrongdoing and agree to a certain penalty. You cannot go to the appeals court after the fact and appeal that decision because you already agreed to the terms.

What happens if I win the appeal?

If the appeals court sides with you on the appeal, it will effectively overturn the board's decision to revoke or suspend your license, which means your license will be reinstated. However, a successful appeal doesn't automatically mean you will avoid other disciplinary actions unless the court completely overturns the decision. In some situations, the appeals court may simply identify errors in procedure and remand the case back to the board to make corrections. These may result in lesser disciplinary actions such as fines, probation, etc., but you should still be allowed to practice.

Can I appeal a lesser penalty that doesn't involve losing my license?

You have the right to appeal any adverse decision by the licensing board (e.g., fines, probation, mandatory treatment, license restrictions, etc.). However, given the time and expense involved in filing an appeal, most licensed professionals don't appeal on lesser penalties. It makes the most sense to file an appeal only if your ability to work and make an income has been affected, so most license defense attorneys won't recommend filing an appeal unless your license has been suspended or revoked.

If I lose the appeal, do I still have options for getting my license reinstated?

Yes, you do—although you may have to wait a few years before doing so. Licensing boards have mechanisms in place for professionals to apply for reinstatement of their license after a certain length of time has passed (five years on average). The reapplication process differs from state to state, but the process may include any/all of the following:

• Filling out an application for reinstatement and paying any relevant fees
• Submitting a written statement explaining why you're applying for reinstatement and why the board should consider it
• Providing a detailed work history of all jobs held while your license was inactive
• Providing proof of completion of any requirements the board established as a requisite for reinstatement (e.g., continuing education, treatment programs)
• Agreeing to and fulfilling a prescribed Plan of Action for reinstatement, which may include terms such as supervised practice, mandatory treatment, and in some cases, even a psychiatric evaluation

When applying for reinstatement of your license, it helps to have an experienced attorney assisting and guiding you through the process. A good attorney will:

• Oversee the processing and filing of paperwork and fees;
• Follow up with the board to monitor the status of your reinstatement;
• Negotiate the best terms for your reinstatement Action Plan; and
• Help you present the most compelling argument for why you should be reinstated.

Do I need a professional license defense attorney to file my appeal, or can I do it myself?

It's highly inadvisable to attempt filing an appeal without an attorney. An appeal is a complex and technical process requiring precision, accuracy, and an outstanding grasp of the law. Many licensed attorneys do not even have the skills or experience required to file a successful appeal for a professional license. For best results, you need an attorney with specific experience in administrative law and professional license issues.

How will a good professional license defense attorney help with my appeal?

Successfully appealing a licensing board's decision to revoke or suspend your license requires a great deal of skill and legal expertise. A good professional license attorney will do the following:

• Take immediate action to get your license reinstated during the appeals process (through supersedeas relief, if applicable)
• Determine the best grounds for filing an appeal—one that is most likely to bring results
• Prepare and file a detailed written brief laying out a compelling argument for why your license was wrongfully suspended or revoked and the errors in the case for which you are requesting a review
• Be available for oral arguments upon request (although it's rarely requested for these cases)
• Follow up on the progress of your appeal with the court until a ruling is issued
• Coordinate the reinstatement of your license if you win the appeal
• Work with you on the next steps for eventual reinstatement if your appeal is denied

If you've recently had your professional license suspended or revoked, no one needs to tell you about the damage it has already done—to your income, to your livelihood, to your professional reputation, and to your career. But if the board didn't come to this decision fairly, a successful appeal can restore your license, your ability to work, and your public trust. To have a successful appeal, however, you must have an experienced attorney in your corner, preferably one with a good track record of success. Attorney Joseph D. Lento has helped many professionals save their licenses and their careers, whether by direct negotiations with the board, aggressive defenses at the hearing, or successful appeals. If you have lost your professional license in New Jersey or New York, you owe it to yourself to investigate your appeal options and possibly rescue your career. Even if you believe you have no case, there may be critical errors in the disciplinary process that you may be unaware of—errors that would have turned the outcome another way. Call the Lento Law Firm at 888-535-3686 to see how we can help.