Blog - Brown Law Office

Are Nursing Board Actions Permanent Public Record

August 17, 2017 by LORIE A BROWN, R.N., M.N., J.D. Leave a Comment

I am often asked (1) if a Nursing Board matter is a permanent public record and if so, (2) is there any way to get that record expunged?

Unfortunately, there are only a few states that allow expungement of Nursing Board records and only under very limited circumstances. Kentucky is one of those states but, again, only if certain circumstances are present.

Once you have a formal complaint or discipline taken against your nursing license, it does become public record. The theory is that the public has the right to know if a health care provider has had any action(s) against their license. It is even publicly available on www.nursys.com.

Many states now allow expungement of criminal records after a certain period of time. If your criminal record is contained in the Nursing Board record and your criminal matter is expunged, then why should it still be public record in the Nursing Board files?

Or, what if a nurse was reprimanded early in her career then goes on to have an exemplary career for 15 years? The nurse has a perfect, record but for that one blemish early on that is no longer meaningful. Is it “promoting the integrity of the profession” by stigmatizing that nurse’s record for an error that occurred 15 years before, which no longer represents his or her current practice?

Here is Kentucky’s statute 201 KAR 20:410. Expungement of records.:

Section 1. Definition. “Expungement” means that all affected records shall be sealed and that the proceedings to which they refer shall be deemed never to have occurred.

Section 2. A nurse whose record has been expunged may properly reply that disciplinary records do not exist upon inquiry.

Section 3. Upon a request from a nurse against whom disciplinary action has been taken, the board shall expunge records relating to the following categories of disciplinary action:

(1) Consent decrees that are at least five (5) years old if all the terms of the consent decree have been met.

(2) Agreed orders and decisions that are at least ten (10) years old and which concern one (1) or more of the following categories, if there has not been subsequent disciplinary action and all of the terms of the agreed order or decision have been met:

(a) Failed to timely obtain continuing education or AIDS education hours;

(b) Paid fees that were returned unpaid by the bank; or

(c) Practiced as a nurse or advanced practice registered nurse without a current license, provisional license, or temporary work permit.

(3) Agreed orders and decisions that are at least ten (10) years old and which resulted in a reprimand, if there has not been subsequent disciplinary action and all of the terms of the agreed order or decision have been met.

(4) Agreed orders and decisions that are at least twenty (20) years old, if there has not been subsequent disciplinary action and all of the terms of the agreed order or decision have been met.

For those who have had a Nursing Board action and want that matter removed from public records, I would strongly suggest that you contact your legislature to get this changed. It is unfair that a 1-time isolated event is forever on a nurse’s record or if you’ve had a criminal matter expunged and it remains public on the Nursing Board record.

Do you believe that Nursing Board records should be removed after a certain time? What circumstances would you propose? I would love to hear your thoughts in the comments below.

5 Fatal Mistakes When Nurses Go Alone Before The Board Of Nursing

July 20, 2017 by LORIE A BROWN, R.N., M.N., J.D. Leave a Comment

Usually buried somewhere on the second page of a Hearing Notice (at least in Indiana and I presume in other states) is a notation that a nurse has the right to have an attorney represent them before the Nursing Board.

However, for whatever reason, some nurses either fail to notice that part or don’t feel that they can afford an attorney and so, choose to go before the Board alone. They may believe that Board is made up of nurses who will understand their situation.

After seeing many nurses go before the Board without legal counsel, I have come to recognize 5 fatal mistakes that nurses make by going to the Board without an attorney to assist them and protect their interests and license. They are:

Nurses Tend to Overshare

Nurses are caregivers and usually are very honest and ethical. They may feel that if they tell the Board everything, then the Board surely will understand and take only limited action, if any at all, against the nurse’s license. There we have the first fatal mistake: nurses tend to overshare.

While attorneys urge their clients to be honest before the Board, they can help the client present their case in the light most favorable to them and not share information that is not necessary.

Nurses Don’t Know When to Object

A nurse sitting alone before the Board may not know when to object to a question. A Board matter is a legal proceeding where the nurse, and any other witnesses, will be sworn in under oath. A court reporter will take down everything said during the proceeding.

An attorney for the Nursing Board will advise the Board on legal issues such as when objections are made and advise the Board members how to rule. Going solo before the Board without the same level of legal knowledge as the Nursing Board’s attorney, that is, not knowing when to object to questions, can lead to harmful results.

I’ve seen nurses who have been asked questions that were irrelevant to their situation. Yet, the nurses were honest and responded to the questions when they should have objected to the question. Sometimes providing such answers was not in the nurse’s best interest and caused the Board to extend or modify their probation with additional terms or even impose a harsher sanction. It is not unheard of that proffering too much information at a hearing could lead the Board to give greater sanctions to the nurse.

Nurses Agree to a Sanction Without Knowing What it Entails

Agreeing to something without knowing what it entails can lead anyone to trouble. With nurses, when Settlement Conferences are held, the attorney for the State, the Board member and the nurse will go into a room. If you are unrepresented, the State makes a recommendation and the Board Member either approves or gives their own recommendation. The nurse will be asked if they agree to the recommendation. This also happens at a Personal Appearance where the Board Member will ask the nurse if they agree to a particular sanction, such as probation.

If the sanction is to place the nurse on probation, the Board and the attorney that is representing the State will not tell the nurse that in order to get off probation, the nurse will have to later go to a legal hearing in front of a court reporter, a Board member or possibly the full Board, the Board’s attorney and the State’s attorney, give an opening argument, cross examine witnesses and present their documentation and evidence to show that all the terms of probation have been met and that the situation which caused the nurse to go on probation is no longer present.

Nurses Don’t Know What Evidence to Present

Nurses going before the Board pro se, that is, representing themselves, will not know what evidence to present or what documents are necessary or helpful to substantiate their case. Usually the attorney for the State relies on evidence from employment and other types of records to make their case, whether they are criminal or peer assistance program records.

Nurses need to know what evidence, such as witnesses and testimony that could help them as well as what documents are helpful and necessary in order to properly defend their case.

In addition, if the nurse is trying to get off probation, it is the nurse who has the burden of proof, meaning that they must prove their case in order to get off probation. However, without having the proper documents and evidence, the decision may be negatively impacted.

Nurses are Not Proactive to Prevent Problems

Not knowing what proactive things that a nurse can do to obtain a more favorable outcome can also hinder a favorable decision by the Board. Nurses need to set themselves up for success and be proactive so that they can introduce evidence and/or testimony, which will help them to get a more favorable outcome.

While I understand that this article on the dangers of representing yourself before the Board may seem be self-serving to myself in some respect, its purpose is to help you to remedy those types of mistakes. However, should you go it alone, remember:

First, don’t overshare. Just answer the questions and not go on a long explanation.

Second, know when to object to questions. If something doesn’t feel right, ask the Board if you are required to answer it.

Third, don’t agree to any sanction on your license without knowing all that it entails.

Fourth, identify what evidence and documents are necessary and helpful to your case.

Fifth, be proactive so that you position yourself to resolve your matter with the least possibility of sanctions.

License Renewal: Honesty Is The Best Policy

July 13, 2017 by LORIE A BROWN, R.N., M.N., J.D. Leave a Comment

It’s that time of year in Indiana, license renewal of the State’s nurses. If you’re not in Indiana, I am sure that you have a similar renewal process so check these out; I think these tips will be very helpful!

The Board asks 6 questions in the renewal process because they want to know that you are safe to practice. If you answer “yes” to any of these questions, the Board will require you to give an explanation for your “positive response.” The Board may then call you in for a Personal Appearance.

You need to answer these questions for the period since you last renewed. Meanwhile, it is worthy to note that if you do not correctly answer these questions and if there is a subsequent investigation where it is learned that that you did not properly respond, that is considered fraud and material misrepresentation in renewing your license. Honesty is always the best policy.

When in doubt, it is better safe than sorry; always disclose what happened. You may feel best to have an attorney assist you with the responses to help describe what happened and present it in the light most favorable to you. An attorney will help you to provide accurate information to the Board.

Question number 1 asks “Since you last renewed, has any professional license, certificate, registration, or permit you hold or have held, been disciplined or are formal charges pending in any state?” If you have an investigation pending that is not discipline, you are not required to answer “yes” to this question unless you have had formal charges or discipline against your license. However, it would seem logical that the Board will know that you have had formal charges and whether or not the matter had been resolved. However, you still must answer “yes” to this question on the license renewal.

In Question number 2 it reads “Since you last renewed, have you been denied a license, certificate, registration, or permit in any state?” This question is self-explanatory. A denial of any of these items requires you to answer “yes” and provide the explanation.

Question number 3 asks “Since you last renewed, and except for minor violations of traffic laws resulting in fines and arrests or convictions that have been expunged by a court, have you been arrested, entered into a diversion agreement, been convicted of, pled guilty to, or pled nolo contendere to any offense, misdemeanor, or felony in any state?” This can be a point of confusion. In Indiana we have a relatively new expungement law that says one need not report any matter which has been expunged by the Court. The Board cannot take an expunged matter into consideration.

However, since the expungement law has been in effect for a relatively short time and you cannot get a matter expunged until a period of time has gone by depending on what you want expunged (arrest only or type of charge), the question may still have to answered.

Now, expungement is not the same as dismissal. If a matter is dismissed, your record still shows that you were arrested and charged. In that situation, you still must answer “yes.” If you went into a deferral program, you still must answer “yes” because you have been arrested and charged. Even if you haven’t been arrested but still are charged with a crime, you must answer “yes” to the question.

Again, honesty is the best policy! If the Board learns that you did not disclose an arrest or charges, even if they were dismissed, that still would be considered as fraud and material misrepresentation in renewing your license.

On to Question number 4 which reads “Since you last renewed, have you had a malpractice judgment against you or settled any malpractice action?” Normally, nurses are not named in malpractice actions. Their actions typically are covered by the employer. However, if there is a settlement on your behalf or a judgment against you, you will need to say “yes” to this question. If you have been reported to the National Practitioner Databank for a malpractice judgment, you MUST answer affirmatively.

Question number 5: “Since you last renewed, have you ever been terminated, reprimanded, disciplined, or demoted in the scope of your practice as a Nurse or as another health care professional?” Any discipline you have received requires you again answer “yes” to this question.

Even if you were disciplined for attendance, you still must answer the question affirmatively. Though attendance may not seem to be within the scope of your practice as a health care provider, the Board may consider it as “patient abandonment.” Therefore, you must disclose any discipline, even for attendance. I can’t say it enough; honesty is the best policy.

Some nurses forget that they were disciplined or claim that “I was not told about this,” I am surprised. If it is in your employment file, you are responsible for reporting it to the Board.

In Question number 6, you are asked “Since you last renewed, have you been excluded from being a Medicare or Medicaid provider?” In this question, the Board wants to know if you are on the exclusion list of the Office of Inspector General (“OIG”). If you are on this list, you must disclose to the Board that you are not allowed to take care of Medicare or Medicaid patients.

Should you be on the exclusion list, you would have received a letter telling you so. You can check the OIG exclusion list online at http://exclusions.oig.hhs.gov/ to see if you are on it.

Some of these questions seem straightforward but should there be any question about the interpretation of one of these questions, get help. “I don’t know” or “I misunderstood the question” is not a defense. If you fail to disclose a positive response on your nursing license renewal application, you engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice in accordance with Indiana Code § 25-1.9-4(a)(1)(A). Remember honesty is the best policy!

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