California Nurse Licensing

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.rayandbishop.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.     

Because of our expertise and the sheer amount of material available on our website and blog, our office often hears from prospective registered nurses and licensed vocational nurses, sometimes even before they apply to nursing school.  For young people considering a career in nursing, it’s never been more important to stay out of trouble before applying to nursing school.  Even minor misdemeanor crimes—such as simple battery, driving under the influence, or petty theft—can result in obstacles that can seriously affect the first few years of a young nurse’s career.

Young applicants don’t realize how much power licensing agencies have to look at the facts of what happened in a particular criminal case, rather than just the penal code section violated or the terms of a particular sentence.  Let’s say a young woman is arrested for domestic violence after someone witnesses her push her boyfriend during a heated argument.  If the police are called to the scene, they are very often compelled to make an arrest, and so the young woman may end up in court facing charges of assault and domestic battery.  After a frank discussion about the case with the district attorney, let’s assume our young woman accepts a plea to disturbing the peace.  This represents a very good outcome in criminal court—the crime itself doesn’t reference "battery" or "domestic violence" at all.

However, when our young woman finishes nursing school and applies for a license, she will have to disclose the conviction to the Board of Registered Nursing (BRN).  The BRN will ask for copies of the paperwork from criminal court, but they will also evaluate the police reports from the night of the incident.  These police reports might contain embarrassing details our young woman would be embarrassed to admit—might she have cursed at her boyfriend that evening?  Was she drinking that night?  Was she disagreeable with the police when they showed up?  The BRN can consider all of these details when they evaluate a license application.  Suddenly, the potential nurse is having to answer questions about whether or not she was abusive, or has a problem with alcohol, or demonstrates bad judgment—all stemming from a single misdemeanor conviction.

If you’re a license applicant with a criminal conviction, and those answers are potentially embarrassing, you need an experienced license defense attorney to represent you against the Board.  Denials for single criminal convictions are becoming commonplace, but a denial doesn’t represent the end of a potential nursing career.  The challenge is to show that you are rehabilitated, which means more than just doing all your classes and paying all your fines.  You need to be prepared to explain to the Board enforcement why the incident happened and why it won’t happen again.  You need documentary evidence that supports the kind of person you are, and you need to be prepared to distinguish the person who committed the crime from the person applying for a license.  BRN settles a majority of single-conviction cases for a probationary license, which can dramatically restrict the opportunities available to a young nurse.  If you want to avoid probation or if you are worried about getting an RN license, contact an experienced license defense attorney for advice.

Investigations of alleged misconduct by California registered nurses are investigated by two agencies, either the Board of Registered Nursing, by its own investigators, or by the Division of Investigation of the Department of Consumer Affairs.  When a complaint is received by the Board, if Board enforcement believes the complaint has sufficient merit, the complaint is transmitted to an investigator with an internal memo directing the investigation.  Typically an investigator will start with interviewing the complainant, then seek records, investigate other knowledgeable persons or percipient witnesses, and at the end want to interview the registered nurse.

Since most complaints arise at the registered nurse’s workplace, it is very common for the investigator to want to obtain the nurse’s employment records.  However, these records are confidential, and may include testing results (such as psychological testing, drug testing or physical examination results), salary information, personal data and the details of workplace investigations.  Further, the employment records may contain information that could strengthen the Board’s potential case for license discipline against the registered nurse.

Our initial advice to every client, as an advocate for their privacy and in seeking to prevent license discipline, is to not agree to the release of employment records.  Nevertheless,  it is almost always beneficial to be open and cooperative with the Board.  Stonewalling a licensing Board will usually only make the Board more alarmed and can fuel concerns about the licensee’s fitness to practice.  Reconciling these two contrary positions (asserting one’s right to privacy, but also being open and honest with the Board) requires a careful strategic analysis.  Another consideration is that the Board may ultimately subpoena the records and obtain them by court order.

In this situation, an attorney can serve the most valuable function of being an intermediary between Board and licensee.  As an intermediary, an attorney can assess the inquiries from the Board and determine the best course of action for the registered nurse.  Making the best decisions at the investigation stage is almost always the best way, if possible, to resolve a complaint against a licensee without damaging public disciplinary proceedings occurring.

We have had great success in securing full non-probationary licenses, with just a citation placed on the record at license issuance, for licensed vocational nurse applicants with prior criminal records.  The key to this success has been demonstrating our clients’ rehabilitation to show the Board that a probationary license or license denial was not necessary to protect the public.  It should be noted that a typical outcome for a licensed vocational nurse license applicant with a criminal record is a probationary license at best and a license denial at worst.

In one case, an LVN license applicant with a battery conviction was issued a clear license with a citation.  In a second case, an LVN license applicant who had suffered a court-martial for drug offenses was granted a clear license with a citation.  In a third case, an LVN license applicant had a petty theft conviction, and in aggravation, failed to disclose her conviction on her license application, but yet was granted a full, non-probationary license with a citation.   All three cases were settled prior to hearing, saving the clients the stress, embarrassment and cost of hearing.

In all of these cases, presenting compelling evidence of rehabilitation and demonstrating a lack of public protection concerns was the key to getting these LVN license applicants full licenses without probation.

Among the thousands of applicants who seek to become a registered nurse in the state of California each year, hundreds have criminal convictions or other adverse actions (such as other license discipline) of some kind in their background.  A license applicant with a criminal conviction or other adverse action typically has three obstacles to clear before receiving their California RN license, and navigating through this process successfully requires an experienced licensing attorney.

The first obstacle is whether to disclose a conviction or adverse event.  The RN application requires, for example, that convictions be reported “even if they have been adjudicated, dismissed, or expunged, or even if a court ordered diversion program has been completed.”  We see some new clients each year who have failed to list a conviction on the registered nurse license application, when in fact disclosure was required.  The Board will sometimes deny a license simply because an applicant failed to list a conviction, even if the Board of Registered Nursing, or BRN, would not have denied the license on the basis of the actual conviction itself.

The second obstacle is disclosing the conviction to the Board in a manner most likely to avoid a license denial or improve one’s chances in an administrative proceeding by presenting helpful facts and an appropriate demeanor.  The Board of Registered Nursing requires a statement from the applicant describing the facts and circumstances of the conviction together with other supporting documents.  This is where a professional licensing attorney’s assistance is invaluable.  Applicants often make grave mistakes in their statement to the Board, providing either too much information (perhaps giving the Board additional cause for concern), too little information (giving the Board the impression that the applicant is dishonest or lacks remorse), or unhelpful information (overlooking mitigating facts or exhibiting a concerning attitude).  The presentation of the information is especially important – often, applicants are concerned with “making a good impression” to the Board of Registered Nursing, and will therefore minimize certain aspects of the conviction to attempt to portray themselves in a better light.  Clients of ours are often shocked to hear their own words, written by them in a vain attempt to try to make a good impression, used against them in an administrative hearing to support license denial.

Finally, the third obstacle to navigate is responding to a letter of license denial that some license applicants with criminal convictions will receive.  A letter of denial is not the end of the process; for most applicants, it represents just the beginning.  A license denial can be appealed to an administrative hearing court, where an experienced attorney can help you make your case for licensure directly to an administrative law judge.  Just like when licensed nurses are accused of misconduct, license applicants must persuade the California Board of Registered Nursing that the public will not be endangered by granting them a license.  This involves the presentation of strong mitigation and rehabilitation evidence and a well planned and thoughtful presentation addressing the Board’s concerns.

Defense counsel for a license applicant must be able to discuss and apply the Board of Registered Nursing’s published disciplinary guidelines to an individual case.  Convictions that look similar or identical on paper can involve different case presentations depending on the individual circumstances of each event.  These convictions must be carefully explained to the Board at the application stage, as well as carefully presented with appropriate advocacy during an administrative hearing.

The considerations are the similar, and our representation is equally effective, if you are applying for an LVN, psychiatric technician, respiratory therapist or physician’s license, or any other California occupational license.  If you are applying to become a Registered Nurse in California, and have a conviction or adverse event to possibly disclose, or are in the midst of a license denial case, please contact us for a consultation at (949) 557-4888.