California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

As a child I used to watch the Rocky and Bullwinkle Show.  The brilliant talking dog, Mr. Peabody, and his pet boy Sherman would travel back in time to an important historical event and interact with historical figures.  They would use the WABAC machine, pronounced "wayback."  Mr. Peabody would use the trip to teach Sherman (and the audience) a little about the historical event.  Remarkably, the historical figures spoke perfect English and thought nothing of a talking dog.  Time travel is impossible, of course, for we are all grounded in the present.  Except, possibly, for the recently criticized California Board of Registered Nursing, which seems to be increasingly backward-looking.

The California Board of Registered Nursing, coming under intense criticism recently, has beefed up the scrutiny of its licensees, including requiring thousands of nurses to answer certain background questions or submit to fingerprinting for the first time.  It is also, apparently, reviewing cases that it earlier had decided not to pursue.  Using its own version of the "wayback machine," the Board appears to be revisiting some reports of unprofessional conduct or negligence of its licensees.  The Board appears to be taking a second look at older cases involving alleged negligence or misconduct that it may have earlier closed or set aside without taking action.  Importantly, the Board of Registered Nursing has no statute of limitations for bringing allegations.  Negligence allegations from five to ten years ago can be used to seek discipline against a licensee, even if the matter was previously closed, and very old misdemeanor criminal records can be raised against nurses who have unblemished work records despite their youthful indiscretions.

The lack of a statute of limitations creates a nightmare for nurses and also, in my view, a dilemma for the Board.  Licensees may be asked to defend against allegations arising from events that have faded from memory or are based upon old incomplete records.  Allegations are sometimes so old that there is a legitimate question as to how relevant they may be concerning nurses in 2010 whose performance in recent years has been exemplary.  Without having a door close on old discipline allegations, nurses are tormented by issues that remain unresolved and can easily resurface despite the passage of years.  However, if the Board, despite not being restricted by a statute of limitations, ignores older malpractice cases or overlooked criminal records, it can open itself up to criticism in the press of being a weak and ineffective regulator.

The Board of Registered Nursing is charged with protecting the public from incompetent, impaired and dishonest nurses.  The Board's mandate is not to punish for misconduct, because perceived misconduct is only important to the extent that such conduct raises legitimate concerns about the safety of permitting a nurse to practice.  A statute of limitations not only protects licensees from having to defend against unreasonably stale allegations when important evidence may have been lost, destroyed or forgotten.  A statute of limitations also creates a temporal "frame" (like a window frame) stretching from present to recent past into which some current, relevant matters fall, and from which older, less relevant matters are excluded.  

Unflattering press articles over the last year have raised the legitimate concern that the Board of Registered Nursing has historically taken too long to investigate and litigate nurse discipline cases.  Such delays would have been legally prevented by a statute of limitations due to palpable consequences for delays.  However, now that the Board has aggressively moved to cut its backlog of cases, it is no longer in danger of losing disciplinary cases due to unreasonable delay.  A statute of limitations to protect licensees is needed now, more than ever.     

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About one year ago I wrote about a series of embarrassing newspaper articles about the California Board of Registered Nursing, that described how nurses incarcerated in prison retained their licenses due to the sheer ineptitude of the Board of Registered Nursing. The picture painted was nurses running amok while the Board was asleep at the wheel. Meanwhile, in my practice we were received numerous complaints from our nurse clients about how strict and even punitive the Board of Registered Nursing was acting. Which of these views was right? And what is this controversy all about?  In July 2009, we saw another round of revelations, leading to the sacking of three members of the Board of Registered Nursing and apparently the resignation of the longstanding executive officer of the RN Board.  What are the factors behind this focus on, of all the professions, registered nursing, and why was the Governor so quick to move in response to criticism?

The first and most important factor in our view, which is often not well understood by the public, is that the medical treatment you receive in hospitals is largely from nurses and their supervised LVNs and aides, not doctors. Doctors make their rounds, usually spending as little time in the hospital as possible, doctors perform surgeries, and doctors prescribe medicines and treatments. But for the hospitalized patient, almost all care comes from their registered nurse and those supervised by the RN. The registered nurse is the primary advocate for the patient, the individual charged with calling up the doctor and even demanding treatment if a patient is in neglected by their M.D. In fact, in the face of a recalcitrant doctor, the RN is responsible to even go above the head of the doctor to hospital officials if the situation warrants. Therefore, the registered nurse is the key link in the chain of care from hospital and doctor to patient.  Public concerns about the competency of registered nurses are well founded.

A second factor in this debate is the love/hate relationship that California (its people and the rest of its government) has with its regulatory boards.  In early 2005 there was an effort by the Governor to abolish 88 state boards, including the nursing board, citing waste and inefficiency.  The effort died after about one month.  Neverthless, nearly five years later state boards understandibly feel the need to zealously protect the public in carrying out their mission.  The image of board members as political cronies earning six figure salaries to jet around the state to attend a handful of meetings each year makes a popular punching bag for some politicians, the press and advocacy groups. 

To the extent the criticism of the Board of Registered Nursing focuses on lengthy delays in investigations and administrative cases, that criticism seems to have merit.  It is also true that many years ago the Board of Registered Nursing exercised lax oversight in the screening of the backgrounds of nursing license applicants.  In requiring livescans and asking simple background information questions at application and renewal the Board has brought itself in line with the common practices of other California licensing boards.

However, it is most unfortunate that the regulatory pendulum seems to be swinging to the other extreme.  The Board of Registered Nursing may be becoming quick to judge, quick to condemn, and unnecessarily punitive in its approach to the oversight of its licensees.  The purpose of independent licensing boards is that they can be relatively free of the political pressures from other segments of the government.  Unfortunately, actions such as the governor's undermine that independence and risk seriously damaging the nursing profession in terms of difficulty in attracting sufficient numbers of new nurses and the declining morale among existing nurses. 

The image of a "soft on discipline" nursing board is misleading and inaccurate.  I have found the Board of Registered Nursing to be firm in discipline and quite strict in probation oversight.  The Board has exhibited, in my view, a fairness towards its licensees, willing to give a second chance if the licensee is willing to earn it.  Regrettably, second chances may now become a lot harder to come by in Sacramento. 

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In early October 2008, the Los Angeles Times published the findings of an investigation it conducted into the screening and discipline practices of the California Board of Registered Nursing (BRN). The Times found that lapses in the screening and background investigation practices of the BRN had allowed a large number of nurses, including convicted felons and individuals in state prison, to escape license discipline. The Board has reacted to this embarrassing report with new measures to enhance background scrutiny of its licensees and license applicants. Some changes were already underway before the report came out.

Most California licensing agencies require applicants to answer criminal background questions on their license applications, in addition to requiring criminal background checks. However, the BRN had not, until recently, required its applicants to answer a criminal background question, and also it did not ask about new convictions on its renewal forms. Instead, the Board relied solely on “livescan” fingerprint background checks. Before 1990, according to the Times, nurse license applicants were not even asked to submit fingerprints. The BRN did operate a fairly efficient periodic background check system which often caught criminal cases even while they were still pending. Nevertheless, some serious offenders have escaped scrutiny for years, or even decades.

 If you are a nurse with a criminal conviction who has escaped scrutiny, there are things that you should do now, without delay, to reduce or possibly even avoid discipline by the Board. First, keep in mind that some nurses with convictions will never be disciplined. Although there is no statute of limitations for discipline against nurses in California, very old convictions may be difficult to prove or may now seem irrelevant to the nurse's character and qualifications. On the other hand, if you have a recent conviction that will be reportable on your next renewal, swift action is advised.

 Many felony convictions in California can be reduced to misdemeanors under California Penal Code section 17(b). If your conviction was a "wobbler," meaning the charge could be alleged as a misdemeanor or felony, and if you were given probation (instead of being sent to state prison), you probably can get your felony conviction reduced to a misdemeanor. Most criminal court judges are inclined to reduce a prior felony conviction if the defendant has successfully completed probation. The newly reduced misdemeanor in turn can be expunged. An expungement (under Penal Code section 1203.4) does not automatically prevent license discipline, but it can be strong evidence of rehabilitation to lessen license discipline. Also, it is little known that some misdemeanor convictions, such as disturbing the peace or driving without a valid license, can be reduced to infractions. An infraction conviction cannot be used to discipline a license in California. 

 These criminal court motions and other actions to "clean up" criminal records are best attempted by a criminal defense attorney who is well known and well respected in the criminal court where the case will be heard. I do give seminars to criminal defense attorney groups to teach them how to best handle criminal cases to avoid license discipline and license denials. I will sometimes work in tandem with a criminal defense attorney to guide them in executing the best strategy to minimize license impacts. The most effective strategy is for the criminal defense attorney to recognize early in the criminal case that their client will have potential license issues, and to negotiate for an outcome that reduces the future impact of the criminal case. With this new push for scrutiny by the Board of Registered Nursing, such efforts will be critical for all registered nurses facing criminal charges.  

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