Many people naturally assume that what they do in their own homes on their own time should be their own business. But we don't live in a vacuum, and sometimes what we do in private can affect our performance in public. This is often the case when it comes to drug use. Not only can illegal drug use result in a variety of criminal charges, but for licensed professionals like doctors, nurses, lawyers, social workers, etc., it can also put their professional licenses in jeopardy, affecting their ability to work.
If you have found yourself under investigation by your state licensing board over allegations of drug use, your very livelihood could be hanging in the balance. Perhaps it is due to a simple misunderstanding. Perhaps you had a bad reaction to a drug you were legally prescribed. Maybe you wrongly believed that no one would notice or care if you used a little cocaine in the privacy of your living room or tried ecstasy at a concert. Or maybe you have a legitimate addiction to crack, heroin, or another highly dangerous drug. Whatever the case, licensing boards take these matters seriously, and without expert legal help, you may find yourself losing your professional license—and your career along with it. What can you do to set things right?
The good news is, you're not alone. You're not the first licensed professional to be in this situation, and you won't be the last. Attorney Joseph D. Lento has successfully defended many professionals in New Jersey and New York who are in the same situation as you—and his additional experience in criminal defense gives him an added advantage in dealing with state licensing boards over drug use allegations. The Lento Law Firm has compiled the following information so you can be informed about how licensing boards tend to handle drug use complaints—and so you can be prepared for what happens next.
What are the ways in which drug use allegations could put my professional license in jeopardy?
If you subscribe to the opinion that the state licensing board shouldn't care what you do in the privacy of your own home, you are partly correct. They probably do care, but they certainly aren't monitoring you at home when you're off-duty. Their main concerns are that you can function well while on duty and that you conduct yourself in a way that maintains public trust. When your drug use crosses these boundaries—as happens quite often despite people's best efforts—that's when the licensing board is likely to take an interest.
Some specific issues regarding drug use that may put your license in jeopardy:
- “Drug abuse” or “substance abuse.” The licensing boards for most professions will typically count “substance abuse” as an actionable violation. Using alcohol or drugs habitually to the point that it affects your job performance can trigger this allegation.
- Impaired while on duty. If you show signs of being under the influence of drugs while on duty, you could face disciplinary action. (Even more so if you are caught actually using drugs on the job.)
- Improper handling of medicines. If you are a doctor or nurse, for example, pilfering prescription drugs for your own use can result in license suspension or revocation.
- Arrest or conviction for a drug-related crime. Most professional licenses may be put in jeopardy if you are convicted of certain crimes—especially those related to illicit drugs.
Which licensed professions are most likely to be penalized over drug use?
Any license for any profession has the potential to come under scrutiny over the issue of drug use, depending on the specific rules and policies of your state licensing board. However, the professions that might be considered most “sensitive” to drug use are doctors, nurses, pharmacists, psychiatrists, and any other healthcare industry profession that dispenses or prescribes medicine. Healthcare professionals are more prone to drug abuse than other professions because the drugs are more easily obtained. They also tend to be subject to more severe penalties because of the trust level required in handling medications.
Can my professional license be legally suspended or revoked if I use a drug in a state where that drug has been legalized (e.g., marijuana)?
Yes, it can. A particular drug may be legal for recreational use in your state, and you could still have your license legally revoked by the licensing board for using that drug. Here's why this is possible:
- The rules and standards of the licensing board aren't always based on what substances are “legal.” When you become licensed by the board, you're agreeing to whatever policies they have in place. If that policy includes “no substance abuse,” it doesn't matter whether the “substance” is legal or not. (That's why you might also have your license suspended for alcohol abuse—even though alcohol is legal.)
- Drug use of any kind may be a sensitive issue for your chosen profession. As mentioned earlier, doctors, nurses, and other health professionals are often held to higher standards regarding drug use due to the nature of their work.
- The board's concern is your ability to do your job and to maintain public trust. Using a legal drug may still impair your ability to function on the job. It can also damage your credibility with your clients and/or patients.
What could trigger an investigation by my state licensing board regarding drug use?
If you use drugs off-duty in the privacy of your own home, this alone is unlikely to trigger an investigation into your professional license as long as you are sober when you are on the job. However, other related situations may alert the board of a possible drug problem and trigger an investigation. Examples may include:
- You are arrested or convicted of a drug-related crime. For many professional licenses, a criminal conviction in itself is grounds for suspension or revoking the license.
- Drugs are detected by a drug test at your workplace, and your employer reports it to the licensing board.
- Someone files a complaint alleging you were under the influence while on the job. (For example, if you appear impaired, display flawed judgment, exude the smell of pot, etc., and someone complains about it.)
- Someone observes you using drugs (or overhears you talking about it) and reports you.
Can a drug-related criminal conviction from another state jeopardize my professional license in my current state?
Yes, it can. In many cases, it may prevent you from even obtaining a professional license if the licensing board runs a criminal background check on you when you apply. Regardless, most licensing boards require you to disclose any criminal convictions both when applying for your license and if they happen while your license is active. If they discover you were convicted on drug charges in another state and you did not disclose it, this could cost you your license. Likewise, if you are arrested for drug use in another state while you are currently licensed in another, the state board that issued your license may take disciplinary action against you.
What happens when someone files a complaint with the licensing board accusing me of drug use?
While each licensing board has slightly different protocols for processing complaints and deciding on disciplinary actions, the process usually follows a pathway similar to the points below. Here's what you can expect to happen if you're accused of drug use to your licensing board:
- The board will conduct an investigation. The licensing board is required to investigate each complaint to determine whether there is evidence to support it. As part of this process, you may be asked to give either a written or verbal response to the complaint, explaining your side of the allegations. The board may also interview witnesses and gather any relevant documentation.
- The board may present a consent order option. If there is sufficient evidence that a violation occurred, the board may offer to negotiate a consent order with you to avoid the cost and effort of taking the matter into a formal hearing. A consent order is a legally binding agreement between the state, the board, and you, in which you effectively admit wrongdoing and agree to the prescribed disciplinary action.
- The board may call a formal hearing. If a consent order cannot be agreed upon—or if one is not offered—the board may decide to move forward with a formal hearing regarding the complaint against you. This hearing may involve you appearing with your attorney directly in front of the board, or it may be both sides appearing before an Administrative Law Judge in court.
- The board will make a final determination and decide on disciplinary action. When the hearing concludes, the board makes a determination as to whether to impose adverse actions on your license—up to and including revoking it.
- You may opt to appeal the decision. You have the right to appeal an adverse decision to the appellate courts in your state—although due to costs, this is usually done only if gross errors have occurred. (Most decisions on professional licenses are upheld by the appellate courts.)
In most cases, nothing about this process is ironclad. At any point, the board may decide (or be convinced) that the evidence against you is insufficient or that the violation does not warrant discipline, at which point they would dismiss the complaint. (This is where having a seasoned professional license attorney can help your case immensely.)
Are there other penalties I might face but still be allowed to keep my license?
Yes. Not every violation of your license (including drug use) automatically results in having your license revoked. As an alternative, the board may opt to do any of the following:
- Suspend your license. The board may prohibit you from practicing for a specified or indefinite period of time, subject to review.
- Restrict your license. The board may impose certain limitations as to what services you're permitted to perform.
- Impose fines and fees. The board may require payment of money as a penalty.
- Impose conditions. The board may ask you to complete certain provisions as a condition for keeping your license.
- Place you on probation. The board may monitor your activity and require check-ins.
- Issue a reprimand or censure. The board may simply reprimand you.
Could alleged drug use damage my career even if I don't lose my license?
Yes. First, any disciplinary action taken by the licensing board will likely become a matter of public record—and this could reflect badly on you if prospective employers, clients, or patients decide to look up your credentials. Second, regardless of what happens with the board, if word of your drug use reaches the public by other means, it could damage your professional credibility, making it more difficult to attract clients or patients.
Should I agree to a consent order if it is offered?
It depends on the circumstances as well as the consent order itself. If the board has sufficient evidence against you for drug use and the consent order presents an alternative to losing your license, it might be a good offer for you to consider. Even if it involves surrendering your license, agreeing to a consent order can sometimes make the board more open to reinstatement of your license at some point. However, a consent order still goes on your public record as an admission of guilt, so if you have strong evidence to disprove the complaint or there is a good possibility of having the complaint dismissed, agreeing to a consent order might be premature. Never agree to a consent order without the advice of an experienced professional license attorney.
What is an alternative-to-discipline program?
An alternative-to-discipline program is an option offered by certain states and professions that allows licensed professionals to undergo an approved treatment program (e.g., for drug or alcohol abuse) as an alternative to losing their license. In many cases, these programs also keep disciplinary marks off the person's public record, preserving their reputation in the process. Alternative-to-discipline programs are most common in the nursing profession as established by the National Council of State Boards of Nursing (NCSBN), but they can be found in other professions, as well. Alternative-to-discipline may also go by other names (for example, in New York, it's called a Professional Assistance Program (PAP) and is made available for all licensed professionals administered by the Office of the Professions).
I've been contacted by an investigator, or the investigator has shown up at my work or home. Do I have to let them in or answer their questions?
No, you don't, and you shouldn't. An investigator is basically looking for anything that could be used against you, including your answers to their questions. You are expected to cooperate with the investigation, but it also your right not to incriminate yourself. Do not submit to pressure to allow an investigator into your home or practice unannounced. Instead, politely ask for their contact information and let them know your attorney will be getting in touch with them.
Am I required to disclose to my patients, clients, etc., that I am being investigated?
Typically, no. You aren't required to make public that your license is under investigation. The primary exception would be if you work for a firm or facility that requires you to disclose this information to them as part of the terms of your employment. (See your company's policies to know what they expect.)
How do I respond if a client or patient asks me about an ongoing investigation?
If word about the investigation manages to reach the public, you may be asked about the investigation. We recommend that you be honest but avoid giving too many details. Resist the urge to give “your side of the story” or to discredit any accusers as this usually doesn't reflect well on you professionally. Confirm that your license is being investigated (you don't have to say for what), that you are cooperating with the investigation, and that you intend to continue to provide your services to the best of your ability in the meantime.
Is it necessary for me to hire a professional license defense attorney, or can I resolve a drug use complaint on my own?
It is always your right to represent yourself in any professional license investigation or hearing, but your chances of a more favorable outcome are much greater if you hire the right attorney to help you. Here's why:
- Professional license discipline is a legal matter. Your professional license represents a legal agreement with the state, so investigations and hearings concerning your license are a legal matter. When handling legal matters, you will do better having a legal expert representing you.
- The licensing board is not on your side. If you believe you can “fix” this problem by simply “talking it over” casually with the licensing board, you are mistaken. The board doesn't exist to protect you, but to protect the public from bad actors—and when you are under investigation, the board holds you (and anything you say) potentially suspect. They are taking this allegation seriously, and so should you. Hiring an attorney demonstrates that you're serious about resolving this matter with the board.
- You are at a disadvantage in disciplinary hearings. The state licensing board understands its own disciplinary procedures better than you do, so even though they may make an effort to be “fair,” you're still entering the process at a disadvantage. Hiring a license defense attorney helps you enter the process on a more equal footing.
What can a professional license defense attorney do to help me in matters of drug use allegations?
By hiring a good attorney as soon into the process as possible, you immediately improve your chances for a favorable outcome. An experienced professional license defense attorney can:
- Make a careful, thorough evaluation of the complaint against you, the circumstances that triggered it, and what is at stake for you.
- Offer key advice as to how to improve your position.
- Strategize with you as to the best approach to resolving the complaint with the board.
- Gather evidence to show that your alleged actions have not caused harm to your clients/patients.
- Negotiate with the board for the best outcome, preferably one that minimizes or eliminates damage to your license and reputation. (Examples may include negotiating for dismissal of the complaint, negotiating for an alternative-to-discipline program, or minimizing any disciplinary action.)
- Defend you aggressively during a formal hearing, if necessary.
While licensing boards tend to take illicit drug use seriously, your career should not have to be ended over an honest mistake, a lapse in judgment, or even a legitimate addiction. There are still multiple avenues you can take that will enable you to keep your license and your career—but you need a good professional license defense attorney to help make them happen. Attorney Joseph D. Lento has successfully defended many licensed professionals in New Jersey and New York, and he knows how to work toward the best possible solution for your case. Call the Lento Law Firm at 888-535-3686 to see how we can help.
