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Is Reform Needed In License Disciplinary Procedure?

Is Reform Needed In License Disciplinary Procedure

By John Alan Cohan, Attorney at Law

Disciplinary cases before the Board of Registered Nursing can often become a lengthy, tangled web. The slightest wrongdoing at work or outside the workplace can lead to allegations of unprofessional conduct. If the Board files a formal Accusation against you, the case may be decided by an Administrative Law Judge who could recommend revocation or suspension of your license.

A case can start, for example, with a conviction for drunk driving, domestic violence, shoplifting, or other misdemeanor or felony conviction that the Board deems “substantially related to the qualifications, functions and duties of a registered nurse.”

Workplace errors or misconduct can lead to a formal investigation. Examples include failing to properly account for drugs wasted, neglect in charting, volatile behavior, use of illegal drugs, stealing of drugs, or practicing nursing while impaired by drugs or alcohol.

A client of mine inadvertently failed to waste some vials of drugs, and took them home in his scrubs. After discovering his mistake, he reported the incident to his supervisor. Instead of commending him for honesty, the nurse was fired and an investigation was launched by the Board, resulting in a disciplinary proceeding.

Often, but not always, it is possible to settle a case with and agreement to impose probation. Probation is better than revocation or suspension of your license, but is nonetheless burdensome and goes on your official record for anyone to see.

You have to inform your employer that you are on probation, and report periodically to a staff member of the Board. Other conditions might include counseling, or remedial courses. While on probation you are not allowed to hold a supervisory position.

A client of mine was offered probation but refused because he thought he did nothing wrong and did not like the stigma attached. His underlying conduct involved a car accident in which he ran over the median of a roadway. He was taking Xanax, prescribed for panic disorder – and the dose was within the acceptable amount for driving. We had a hearing, and the judge ruled to dismiss the Board’s complaint.

Even if an Administrative Law Judge rules in your favor, the ruling is merely advisory. The Board has the power to reject the findings and revoke or suspend your license anyway. If the Board decides to reject a favorable ruling of the judge, the only other option is to file an action in Superior Court for what is called a Writ of Mandamus. However, this can be a lengthy and expensive proceeding.

Since 2009, after an inflammatory article in the Los Angeles Times that accused the Board of lax enforcement, the Board has become increasingly vigilant. Some cases that would never have been brought before are now filed.

If the Board is notified of wrongdoing sufficient to warrant an investigation, an investigator will interview you and others to analyze the underlying conduct. It is always important to cooperate with the investigator and, if possible, an attorney experienced in these types of matters should be present with you during the interview.

If the case goes forward, the Board will file an Accusation seeking to revoke or suspend your license. You are entitled to a hearing before an Administrative Law Judge. Rules of evidence are somewhat informal, which means that it’s easier to present a case against you.

Your attorney should gather mitigating evidence by way of letters of commendation, workplace performance records, witness statements in your behalf, and anything else that helps to explain the underlying circumstances.

Discipline imposed by another state must be disclosed to the Board when you renew your license, and in any event will be picked up by the Board from a national database. You will likely face a separate proceeding before the California Board for the same incident from another state.

If a nurse faces especially serious charges it may be prudent to simply surrender the license, with the understanding that you can apply for reinstatement after a specified period of time – something that can be negotiated beforehand. Recently, I had a client who incurred a very serious embezzlement conviction, and the Board agreed that she could apply for reinstatement after only one year of surrender.

The disciplinary process can be made fairer, especially for those nurses who have never had a violation before and have an exemplary work history. Minor practice violations, in my opinion, should not result in disciplinary action, but can be resolved and corrected by remedial education, on-the-job training and monitoring, or letters of warning. This sort of corrective action is the policy in several other states. If the nurse complies with the agreed action plan, the Board could then consider the nurse’s completion of the plan as grounds to close the matter without further action. No “flag” is then placed against the nurse’s license regarding the conduct. It will take considerable lobbying and political will to persuade the California Board to change its sanction standards.

The importance of obtaining legal counsel cannot be emphasized enough. A disciplinary action can significantly impact a nurse’s practice and earnings, and it is important to look at the long-term gains, despite the costs of legal representation. The attorney the nurse selects should be experienced in representing professionals before disciplinary panels. Most attorneys will offer a free consultation.

Attorney John Alan Cohan practices administrative law, criminal law and related fields. He can be reached at: (310) 278-0203, or by email at: johnalancohan@aol.com.

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