California Nurse Licensing

Our licensing clients, most often traveling Registered Nurses or Department of Insurance agents who work for multistate companies, sometimes have licenses in more than one state.  They also could be on their way to California to continue their career in our great state.  Either way, licensees who hold licenses in different states have specific, unique problems that need to be addressed by a qualified Nurse Attorney or a Department of Insurance attorney.

When we ask clients about their licensing history, they’ll often tell us something like “Oh, I used to hold a license in Arizona, but I gave it up years ago,” or an advanced practitioner might say “I’m a nurse practitioner now, but I used to be a registered nurse and before that I was a licensed vocational nurse.”  What they don’t realize is that licenses, in most states, never go away.  When you are granted a license by a state agency, that agency has jurisdiction over you forever, regardless of when you got it or whether you renew it.  Keeping a license active allows you to keep using your license to practice, but an inactive or “lapsed” license doesn’t just disappear.  You can’t use it to practice, but the agency that issued it to you can discipline you anytime you violate its laws for the rest of your life—no matter where that violation occurs!

Why does this matter?  Because licensees in California who hold licenses in other states run the risk of “reciprocal discipline”.  Most licensing agencies have laws that define “unprofessional conduct” as “discipline by another licensing agency in any state or territory.”  So if California’s Department of Insurance disciplines a licensee, that licensee could be subject to discipline by California’s Board of Behavioral Sciences.  Or, if Arizona’s State Board of Nursing puts a nurse on probation, that nurse could be disciplined by the California Board of Registered Nursing.  Imagine a traveling nurse who holds licenses in Nevada, Washington, California, and Maine.  If that nurse is disciplined in Maine, Nevada, Washington, and California could all seek discipline, even if the licensee hasn’t practiced in California for 15, 20, or 30 years!  Additionally, most states consider it “unprofessional conduct” for a licensee to fail to report discipline from another agency, so the hypothetical nurse above would be responsible for informing four different state agencies in four different states about one disciplinary action.

The solution to the complex problem of reciprocal discipline is a qualified, experienced professional license defense attorney.  Make sure you have somebody who understands the way licensing agencies think in each state where you hold a license, including California.  Don’t let one potential issue turn into a major headache for your career.

A Board of Registered Nursing case against an RN who was accused of discrepancies in the handling of controlled substances was resolved by negotiation for an order of public reproval, also known as a public reprimand.  A public reproval involves no probation conditions and will drop off of the RN’s license record after three years.  The RN was not required to admit to the truth of the allegations in the accusation.

The Board initially accused the nurse of unprofessional conduct due to incorrect medication entries, as well as gross negligence for the mishandling of controlled substances.  The Board sought to place the RN on probation.  However, through advocacy with the Board and effectively explaining all of the circumstances surrounding the events, we persuaded the Board to drop its insistence on probation and settle for a public reproval.

Cases involving controlled substance errors and Pyxis machine data errors are very difficult to litigate because the reporting party (usually a hospital) may strongly suspect and infer drug diversion, including theft or abuse of drugs.  However, wasting, dosage and documentation errors can and do occur and can be explained and put into context by an effective attorney.  Ray & Bishop, PLC, represents and defends nurses in these types of very difficult cases that can have a severe impact on the careers of nurses.

 

The flashing of squad car lights behind you as you drive home after having a few drinks.  The knock at the door announcing the police.  A hand on your shoulder as you leave the store.  And then, that sinking feeling.  Will I lose my nursing license?  Here are some tips for California nurses for saving your license after an arrest on suspicion of a crime:

  1. Focus on Fighting the Charge with a Great Lawyer

It is possible that weeks or months after your arrest, you might get a letter of inquiry from your licensing agency.  At that point, you will want to reach out to a professional license lawyer for help.  But right after an arrest, hire a top-rated criminal defense attorney who regularly appears in the court where your case will be heard.  A highly-rated lawyer whose office is in the same area as the courthouse is often a good choice.  You can ask your lawyer to call Ray & Bishop, PLC, for advice, we don’t mind.  We give advice to criminal defense attorneys all the time.  If your lawyer says they handle criminal, licensing, and other legal matters, don’t hire them!  No one lawyer can do many areas of law well.  If you need a referral to a good criminal defense attorney, we can help with that too.

  1. Don’t Call Your Licensing Agency, Call Us

Sometimes terrible worry and guilt will drive a nurse to call the Board of Registered Nursing or the Licensed Vocational Nursing Board to ask about the effect of a criminal case on their nursing license.  Don’t do it! First, the staff members at the boards who pick up the phone often don’t know the answer and, in our experience, may give out incorrect information.  Also, don’t be put in the position of telling your licensing agency about your problem – they’re not on your side.  Call Ray & Bishop, PLC, for advice, not the board.

  1. If You Get a Letter, Respond

The Department of Justice sometimes lets the nursing board know that one of its nurses has been arrested or has a criminal case.  When that happens, the board sends out a form letter asking for more information.  The right response depends on whether your case is pending or has wrapped up and what the case is about.  However, it is important to respond – don’t ignore the letter.  A calm, cooperative and cautious approach to the agency sets the best tone for getting the best resolution out of your case.  A professional licensing attorney can help you determine the best message for the situation.

  1. After a Conviction, Disclose

Board rules require that nurses let their licensing board know about any criminal conviction within 30 days.  A conviction includes a plea of guilty (before sentencing), so even if someone pleads guilty only to be sentenced later, a report must be made within 30 days of the guilty plea.  Also, renewal forms ask about convictions, so there is a “yes” box to be checked.  Failure to disclose a conviction can be unprofessional conduct, which is grounds for discipline.

  1. Don’t Lie to the Board

When a nurse is asked about a conviction, her answer must be truthful, and any written explanation or disclosure must be consistent with the facts of the conviction.  Lying about a criminal conviction can be worse than the conviction itself.  A good professional licensing attorney can make sure that an accurate picture is painted that also includes all of the positive mitigating and rehabilitative facts.  Lying to a board can destroy the trust between the nurse and the board, and make license discipline, if it comes, much more severe.

It takes years of sacrifice and hard work to become a registered nurse.  In California, the Board of Registered Nursing is in charge of regulating the nursing profession, and that means scrutinizing every RN application, looking for “causes for denial.”  As professional licensing attorneys, we’ve talked to thousands of nurses and helped hundreds of applicants get licensed even with these issues and more.  Here are the most common reasons prospective nurses get their applications denied:

  1. Committing a Crime

The Board of Registered Nursing is allowed to deny a license if the applicant has been convicted of a crime—that’s in the California Business and Professions Code, at section 480(a).  The crime must be considered “substantially related to the qualifications, functions, and duties” of a registered nurse.  In practicality this means that a crime signifies to the Board that the applicant has demonstrated bad judgment, or struggles with impairment, while a nurse is required to have good judgment and be free of impairment.  The most important factors for applicants with a criminal record to consider are “how long has it been since the crime?” “what have I done to rehabilitate?” and “were drugs or alcohol involved in the crime?”  The Board takes a hard line on convictions involving alcohol and drugs, and for even a single conviction the Board can deny an RN license.  An experienced licensing defense firm can help almost anybody demonstrate rehabilitation, so it is crucial to get an attorney involved if you have a criminal record.

  1. Lying on the Application

Business and Professions Code 480(d) allows the Board to deny a license if an applicant “knowingly makes a false statement of fact” on a license application.  Applicants need to be particularly careful to accurately disclose their criminal record—because they are so worried about possibly being denied for a criminal conviction, some applicants take a hopeful view of expungments or dismissals, hoping that their crime is “no longer on their record.”  A good rule of thumb is that in California, crimes are on your record forever.  Even if they have been dismissed, the application makes very clear that they still need to be disclosed.  There are some exceptions, such as juvenile matters.  An experienced attorney can help determine whether or not adverse events from the criminal justice system have to be disclosed on the application.

  1. Out-of-state Discipline

Not all applicants to the California BRN are first-time nurses. Some very experienced nurses from all over America want to be licensed in California, and they face their own challenges with the Board.  For example, what if a nurse was previously given license probation by the Texas Board of Nursing?  Not only must that discipline be disclosed to California (see problem 2, above), but that discipline could also become grounds for an outright denial in California.

  1. Suspension/Revocation of a Different License

The Board’s power to deny licenses isn’t limited to just acts involving the practice of nursing.  LVNs, Respiratory Care Technicians, and even CNAs who are looking to become RNs all have their own licenses and their own state agency to contend with before they apply to the California BRN.  For example, if the Board of Vocational Nursing disciplines or suspends a licensee, that regulatory action can be a separate ground for the Board of Registered Nursing to use to deny a license to an applicant.

  1. Irregular Behavior During the NCLEX

The California Board of Registered Nursing takes honesty seriously, and is allowed to deny a license for an act “involving dishonesty” no matter whether or not it was criminal in nature.  This provision is used against nurses who have some kind of irregularity during the NCLEX process, even if the alleged “irregularity” is innocent, like a violation of examination rules.  Not only will the RN Board likely consider the event to be dishonest, but the National Council of State Boards of Nursing (NCSBN) will often use the irregularity to prevent a nursing student from taking the examination again.  Since one of the requirements to be a nurse is to pass the examination, a nurse can find themselves with two strikes against their application for just one broken rule during the examination.

If you’re trying to become a Registered Nurse in California but you’ve got one of these problems, contact an experienced licensing defense attorney for help.  The above reasons come entirely from our experience defending licensees and applicants before the Board, and we can use that experience to help you.

Recently we shared our insight about the professional consequences of getting a DUI for a California registered nurse.  We wanted to share with you some recent feedback we received from a registered nurse who had the same struggles we discussed in our article:

From February 13, 2017:

“I am an RN who was convicted of two DUIs. Upon receiving my accusation from the BRN, working with Mr. Bishop helped relieve much of the stress that I created for myself. He was in constant communication and always responded to e-mails and phone calls in a very timely manner. He took time to thoroughly explain the process to me and helped me understand what to expect. The other gentlemen in his office were also incredibly pleasant to work with (thank you Mo and Andrew!). I feared possible revocation while Mr. Bishop was strongly confident that I would be granted probation. Not only was I fortunate enough to receive probation, but Mr. Bishop managed to settle my case before hearing. Mr. Bishop helped make a terrible situation much more manageable. I highly recommend him to anyone faced with a similar situation.”

Of course, this wonderful testimonial does not constitute a guarantee, warranty, or prediction about your matter.  Every case is different, and the outcome of your legal matter depends on the facts of your case.  Nevertheless, if you are an RN struggling with a licensing issue, we encourage you to contact us to discuss how we can help protect your license.  If you need assistance with a license matter, call us at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal Advertisement

It only takes a split-second of bad judgment for a registered nurse to get behind the wheel of a car after consuming some alcohol, but the professional consequences can be severe and last a lifetime.  Any nurse with a DUI arrest can attest to the painful, humiliating consequences of being dragged before a judge and accused of the crime.  Harsh fines, mandatory classes, and driving restrictions can be handed down in court.  But the true professional consequences often spring up months or even a year or more after the arrest and conviction.  The California Board of Registered Nursing (BRN) has stiffened penalties and adopted stricter enforcement measures against nurses who are accused of a DUI, sometimes even if the nurse is not even convicted.  If you are a nurse in this situation, read on to find out what could happen to you, and how qualified, experienced counsel can help.

BRN usually makes contact with a nurse involved in a DUI either immediately after the arrest or soon after the conviction.  The Board may get involved because the California Department of Justice has notified the BRN of an arrest or of a conviction.  Nurses have an obligation to report criminal convictions to BRN, so self-reporting can also trigger Board inquiries and action.

In reaction to a report of a DUI arrest or conviction, the Board’s first step is sometimes to offer the nurse entry into its “confidential diversion program,” a third-party program designed to help addicted professionals get clean from drugs or alcohol.  Nurses will often get a form letter from the Diversion Program, signed by an analyst or sometimes just from the “Program” generally, indicating that the Board has been made aware that the nurse suffered a criminal incident involving drugs or alcohol.  While the decision to enter diversion is a personal one and cannot be made by an attorney or a third party, one can see from the program description on the BRN website that diversion is meant for addicted professionals.  It is often a poor fit for nurses who do not struggle with addiction, and the decision to enter diversion should be made after careful consideration.  Also, although diversion can avert Board discipline, failure in diversion can lead to discipline after a torturous path of scrutiny at intake, addiction treatment, suspension from work, and harsh oversight.

If a nurse declines diversion, the Board usually reappears a few months later—sometimes before the conviction, sometimes after—with a letter requesting the nurse to provide a litany of documents, including certified court records and police records, along with an explanation of what happened.  The timing of this letter is critical.  If a nurse has not yet been convicted or plead to any crime, then he or she must carefully consider how to balance their Fifth Amendment right to remain silent against the Board’s request.  This is where the involvement of a licensing attorney, sometimes with input from criminal defense counsel, can make an important difference.

Assuming a conviction results from the arrest, the conviction must now be reported to the Board of Registered Nursing and explained in detail.  Strong evidence of rehabilitation should be gathered and presented to the Board at this stage, and an experienced licensing attorney will know the Board’s reporting requirements and the most helpful evidence to include with a nurse’s letter of explanation.

Whether the Board ultimately files an Accusation—a formal disciplinary charge against the nurse—depends on a few factors.  Recently, the Board has been filing Accusations on single DUI convictions at all blood alcohol content levels, after evaluation of the circumstances of the intoxication and arrest and other factors.  For multiple alcohol-related convictions, the Board will almost always file a case even if many years pass between incidents.  If you are a nurse who receives an Accusation, it is vital that you get representation immediately.  Your license is at stake, and your future employment could depend on the type of conditions attached to your license as a result of Board discipline.

We have successfully saved many RNs in California from license revocation after serious, lengthy Accusations were filed against them.  As a consequence of a pattern of convictions or a serious mistake, RNs often have to serve a period of probation with the Board of Registered Nursing.  The most common length of a probation term is three years.  This can be a serious interruption in a successful nursing career because of the employment approval and the limitations on overtime work.  For nurses who have alcohol-related or drug-related discipline, the conditions are even more arduous and costly, including mandatory drug testing, nurse support groups, and AA meetings, in addition to the standard terms and conditions.

There is good news!  RNs are eligible to file a petition for early termination or modification of probation as early as one year after they go on probation.  For nurses on a three-year term of probation, they can ask the Board to modify their probation and reduce some of the terms after one year from the effective date of the Decision.  That means that a nurse who’s been testing clean for a full year can approach the Board about at least lifting or modifying the alcohol related terms.  He or she could also ask for the ability to work for different agencies or for a nursing registry, get permission to work overtime, or reduce the required supervision to open up more career opportunities.

For nurses who have completed two years of probation, they can ask the Board to terminate probation early.  Even a few months saved off of a three-year term can reap a significant reward, as the earning potential of a nurse who can become a charge nurse or a supervisor can increase dramatically.

Our firm has helped hundreds of nurses navigate probation.  If you are interested in pursuing early termination or modification of probation, contact an experienced license defense attorney right away.

Nurses who work in late-stage care, either in palliative care or in hospice care, should be aware that all nurses, both registered and licensed vocational nurses, are considered mandatory reporters in California.  Under the Welfare and Institutions Code, anybody who has “full or intermittent” responsibility for patient care in a facility “shall report” anything that “reasonably appears to be abuse.”  The phrase “shall report” means that reporting is mandatory, and any nurses who fail to report what “reasonably appears to be abuse” could be accused of committing unprofessional conduct, especially if they are charged with a crime for failure to report.  The report must be made to either the county health department or to law enforcement.

These code sections apply to all nurses in every facility, but they are especially important for nurses who provide care to the severely or terminally ill, or for nurses who work at nursing homes where their population could suffer from delusions or dementia.  It also illustrates the important of proper and consistent charting when patients bruise easily or can develop skin abrasions or lesions as a result of a medical condition.  In addition, when there is an incident between patients that could “reasonably appear to be abuse,” it must be reported, even if the incident is successfully handled internally.

Licensed nurses should make sure that their facility has a clear policy on mandatory reporting of suspected abuse and that they receive training from their facility regarding where and when to report.  Because the law includes anybody who has “full or intermittent” responsibility, the individual nurses who are connected to the patient, including administrators and supervisors, are all considered reporters.  It would be unwise for a licensed nurse to expect that a mandatory report is being taken care of by someone else or by a supervisor.  An individual nurse can face license discipline for the failure of his or her facility to take proper action.  Be sure that your facility trains you on when and how to file a report, and make sure you carefully monitor your patients for abuse, especially in sensitive populations like those discussed here.

If you are a licensed nurse and you are concerned about your obligations under the law or an incident at your workplace, consider contacting an experienced licensing attorney for a consultation.

Earlier this year we were able to persuade the Board of Registered Nursing to drop its demand for a lengthy license probation and instead give a registered nurse a reprimand.  Registered nurses are mandated reporters of abuse under California law.  A reprimand, also known as a public reproval, does show on the license record but does not require that the RN perform any task other than what is immediately required of the reprimand, usually taking a class or payment of money.  

In this case, the RN was charged with gross negligence and incompetence for failing to report a sexual assault in a psychiatric hospital.  We handled the matter from the time near the initial complaint, through the investigation and accusation stages, presenting mitigating and rehabilitating evidence to explain the nurse’s actions and placing the incident in the context of an excellent work history.  The Board initially demanded placing the nurse on a lengthy probation.  However, upon further examination of the facts and negotiation, the Board of Registered Nursing agreed that there were significant mitigating facts explaining the nurse’s decisions and that a low level of discipline was appropriate. We  were able to resolve the matter by accepting a reprimand and paying the Board’s costs.  

The California Board of Registered Nursing has made important changes to the duty of a nurse to report a criminal conviction or other license discipline and to cooperate with the Board’s investigation of that conviction.  We have begun to see Board staff implement this new law in 2016. 

Under Title 16 California Code of Regulations section 1441, if a nurse fails to report a felony or misdemeanor conviction within 30 days of the date of conviction, it is considered unprofessional conduct.  Discipline taken by another agency, such as a nursing board of another state, must also be reported.  As of the writing of this article, the Board of Registered Nursing has no reporting form for this purpose, nor has it given specific guidance on how or to whom to report these adverse events.  The only specific reporting form currently available from the Board is its “License Discipline / Conviction Certification.”  This form only applies to a license application that is being held due to failure to report a conviction on a renewal application form.  Also, the exact information required to notify the Board is not yet specified.  Specific information about the date and place of the conviction, and law violated, sent in a manner that provides evidence of timely reporting. would appear to be enough to meet this requirement. 

The Board has also amended section 1441 to require that a licensee who is asked for “documents” within 15 days of receipt of a request (or a longer time if specified) must supply those “documents” or be found to have committed unprofessional conduct.  From the context of the statute, it would appear that these “documents” would be court conviction documents and police reports, however, “documents” theoretically could include confidential employment, medical and psychiatric records.   There is an exception that excludes documents that the licensee does not have access to or control over. 

Finally, section 1441 also provides that “failure to cooperate and participate in” a board investigation constitutes unprofessional conduct.  It is common that a Board of Registered Nursing investigator or an investigator from the Department of Consumer Affairs will contact licensees about a pending complaint or, rarely, a criminal conviction (unless the conduct occurred at the nursing workplace).  The only exception provided is if a licensee asserts their Fifth Amendment or other constitutional or statutory privileges.  In our opinion, the involvement of an attorney is essential to identify constitutional and statutory privileges and to assert those to the Board in a timely and effective manner. 

The Board of Registered Nursing continues to tighten its regulatory noose around the necks of is RN, NP and CRNA licensees with these very strict investigatory tools.  If you have received a letter from the Board of Registered Nursing or the Department of Consumer Affairs demanding an interview, documents, or both, do not hesitate to contact our office for a consultation.