Thousands of California nurses who were initially licensed before 1990 are facing the additional renewal requirement of submitting to a Livescan fingerprint check. For some licensees with criminal convictions in their backgrounds, this check may lead to license discipline. There are steps a licensee can take to prepare for this requirement and what it may bring.

Prior to 1990, the California Board of Registered Nursing did not have its licensees submit to fingerprinting at the time of application. Indeed, the Board did not even ask about a licensee’s background. In 1990, the Board began asking for fingerprints, but still did not ask about an applicant’s background. Only after adverse publicity did the Board begin to ask for both fingerprints and background information from license applicants and for background information on renewals.  The Board is now in the process of identifying and disciplining perhaps thousands of nurses with criminal records that were previously undetected.

Livescan fingerprinting has replaced fingerprint cards as a way for licensing agencies to conduct background checks. An applicant goes to a Livescan location, submits a Livescan request form, and places their fingers on a platen glass that scans their fingerprints. This information is transmitted to the California Department of Justice and the Federal Bureau of Investigation for California and nationwide criminal record checks. The information from the records check usually reaches the Board in about two weeks.

If you suspect that you may have an arrest or conviction on your criminal record, you can do your own Livescan and have the results sent to you. The California Department of Justice has a webpage with instructions for getting your California “rap” sheet through the Livescan process. The Federal Bureau of Investigation, or FBI, also will supply you with a reference copy of your federal “rap” sheet (which would encompass federal cases and out of state cases). The FBI has instructions on its website. However, the FBI will require you to send in old-fashioned fingerprints, taken usually at your local law enforcement agency.

It is particularly useful to find out exactly what will appear on your “rap” sheet if you are unclear whether a past law enforcement contact resulted in a conviction. You may also be unclear whether an out-of-state case (particularly a minor matter that may not have resulted in a conviction) is on your federal “rap” sheet, since some states have alternative methods of handling cases that do not result in conviction. Also, there is sometimes confusion over whether a matter that occurred near one’s 18th birthday resulted in an adult conviction as opposed to a juvenile court finding. Finally, government agencies do make mistakes, and although rare, I have seen convictions erroneously placed on one’s “rap” sheet, most commonly when two relatives share the same or a similar name.

If you have a conviction that predates your last renewal, you typically will not need to disclose it on your renewal, since the renewal question typically only asks for convictions since the last renewal. Therefore, if you know you have older convictions that will come to light from the Livescan, there are steps you can take in anticipation of possible discipline.

First, a key question is whether you will be disciplined. The nursing board has no statute of limitations, and there is no cutoff date before which convictions will be ignored. In all likelihood, in deciding whether to seek discipline, Board enforcement will balance several factors, including the severity of the conviction(s), the number of convictions, any pattern of behavior shown by the convictions, and the public protection implications of the convictions. Our firm can analyze your particular situation to provide an evaluation of how likely the agency may be to discipline.

My first advice to a licensee who anticipates license discipline is to make good use of one’s clean, clear and valid license. A single, stable and supportive employer, who would even stand by you when a discipline case is pending, can be critical for one’s license and career to survive license discipline. Registry work, home health care, and other itinerant or temporary work, is frowned on by the Board, and can be problematic in settlement, at hearing or during probation. Also, a history of temporary positions provides a less compelling case for past problem-free performance. If you think your employer will show you the door as soon as derogatory information hits the Board’s website, it may be time to look for a new employer.

Second, a clean record can be used to apply for licenses in other jurisdictions, as well as for certifications or other professional credentials. If you had intended to apply for a license in another state that may be unconcerned with a very old criminal conviction, but might be troubled by a fresh Board accusation, it may be time to move on that application. It is usually easier to hang onto a license in the face of license discipline from another state than to apply for a license with an already tarnished record.

Third, anticipating license discipline should trigger personal and financial planning for the possible storm ahead. Some licensees are fired as soon as an employer learns of a pending accusation, even if the license remains valid and unrestricted. There are costs in a license discipline, not only legal fees, but also the Board’s investigation and prosecution costs, which the Board can recoup at the imposition of discipline. I am not advocating turning one’s life upside down out of fear and speculation, but conservative financial and personal planning is usually a prudent step.

Fourth, and most importantly, if your criminal convictions speak to a problem that remains unaddressed, such as drug or alcohol addiction or mental health problems, start on your rehabilitation immediately. Seek out a program or counseling. Also, collect documentation of any personal improvement efforts you have made and show your life progress, including certificates of completion, achievement awards, thank you and recommendation letters, positive evaluations and reviews.

By replacing fear and ignorance with planning and information, you can survive and even take something positive away from a Board background check.