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the integrity of the profession” by stigmatizing that nurse’s record for an error that occurred 15 years before, which no longer represents his or her current practice?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.

 

Lorie Brown, RN, MN, JD interviews Marc Lopez, Esq., a criminal law attorney (www.MarcLopezLaw.com) on nurses and healthcare providers that are arrested for Driving Under the Influence (DUI / OWI), Refusing a Breathalyzer Test, Substance Abuse / Diversion and the Office of the Inspector General’s (OIG) Medicare / Medicaid Exclusion List.

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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

 

 

For the past 25 years, I have represented clients before both Medical Licensing Boards as well as Nursing Boards.  What I have noticed during that time is that there are significant differences between the Boards.

The first difference is the volume of matters.  The Nursing Board handles a much larger number of cases than the Medical Board because, obviously, there are more nurses than physicians.

But here are some interesting facts.  The Medical Licensing Board in Indiana defines “professional incompetence,” under Indiana Administrative Code 844 IAC 5-1-1(15), as “Professional incompetence may include, but is not limited to, a pattern or course of repeated conduct by a practitioner demonstrating a failure to exercise such reasonable care and diligence as is ordinarily exercised by practitioners in the same or similar circumstances in the same or similar locality.”  Therefore, in order to be disciplined regarding professional competence by the Medical Licensing Board, there needs to be a pattern or course of repeated conduct.

However, the Nursing Board has chosen to not define professional incompetence.  Instead, it defines “competence” under 848 IAC 2-1-2, section 2, as “Competence means performing skillfully and proficiently the functions that are within the role of the licensee and demonstrating behavior that is consistent with the interrelationship of the central knowledge, judgment and skill.”

So … what does all this mean?

It seems to me, based on my experience, a physician is not disciplined unless there is a pattern of conduct.  When I used to work at the Indiana Patient’s Compensation Fund to determine excess damages in medical malpractice cases, there was a physician who had 3 similar cases before the Fund at the same time.

I kept asking the Medical Licensing Board when they would be doing something about this behavior.  Yet, nothing was ever done.  Unfortunately, the physician passed away after all of this happened.

In my experience with the Nursing Board, if there is a single event that even occurred a while ago, like a med error, action will be taken.  It seems that the Medical Board does look out for their fellow physicians whereas the Nursing Board is more concerned about public health and safety.

In Indiana, if a physician cannot get medical malpractice insurance through the normal means, there is the Indiana Residual Medical Malpractice Insurance Authority which provides insurance to those physicians.

In most states, once action is taken against your license, it is permanently on your record except for 5 states,  in which case after a certain period of time elapses, that information can be expunged.

Although the National Council of State Boards of Nursing attempts to create uniformity among the various Boards, we have a ways to go in that respect.  I know the compact states have more uniformity.  This is an endeavor where nurses can practice in several states with one license.

I think there needs to be a middle ground between Nursing Boards and Medical Boards and I would like to see that there be consistency among Boards.  For example, if a physician has a DUI, in my experience, the Medical Board does not take action against the physician’s license but, in contrast, the Nursing Board will place that nurse in a peer assistance program and put their license on probation.

I would love to see equal treatment for all professions with some unanimity among states and professions.

What are your thoughts on or experiences with Medical Boards versus Nursing Boards?  I would love to hear your thoughts below.