Lorie Brown interviews criminal attorney, Marc Lopez of Marc Lopez Law to discuss the difference between Dismissal and Expungement in criminal matters and how each affect matters before the Board of Nursing or the Exclusion List with the Office of the Inspector General (OIG).
Each year 7,000 nurses have some type of discipline put on their license.
When a Board disciplines a nurse, it can usually do 1 of 4 things.
- Give the nurse a reprimand which is like a slap on the wrist.
- Place the nurse’s license on probation.
- Suspend the license.
- Revoke the license.
The most common option seems to be placing the nurse’s license on probation. This is called an encumbered license which will be noted in the public records. A nurse on probation may have a difficult time finding a job with an encumbered license and it must be disclosed to any potential employer.
Furthermore, a potential employer can easily find this information on nursys.com or on the website of the Nursing Board in your state. In addition, the nurse will be reported to the National Practitioner Data Bank any time an action is taken against their license.
One of my sayings is it’s easy to get on probation and may be hard to get off probation. At least in Indiana, to get off probation, a nurse must petition the Board and actually attend a hearing where the nurse is put under oath and the proceedings are transcribed by a court reporter.
The nurse then must present an opening statement, call witnesses, introduce evidence, cross examine any opposing witnesses and then present a closing argument. This is a legal proceeding and the nurse has a right to be represented by an attorney.
The nurse not only must show that she has complied with every requirement of the probation but also present that the conditions that led to her license being placed on probation are no longer present.
My best words of advice are to take your probation seriously and comply with every requirement as if your livelihood depended on it! In fact, it very well may determine your future career as a nurse.
If you are required to submit documents to the Board, make sure that you send them via certified mail or, in the alternative, by email … and make sure you keep copies of everything.
As I noted, finding a job may be difficult while on probation however, nurses are needed now more than ever.
Rather than just submitting an employment application online, I advise you to find out who the “decision-maker” is and talk directly to that person.
Probation is not the end of the world but you do want to avoid that possibility because prevention of a problem is the best defense.
In Midland, Texas, 6 nurses who contracted with Midland County Detention Center were criminally indicted recently for manslaughter, criminal negligent homicide and tampering with a governmental record allegedly failing to keep proper records and possible false charting. There is not much information in the media to glean except that it involved nebulizer treatments. There is no mention of the medication in the nebulizer treatments.
This is very concerning that nurses are being indicted criminally. They may have made a mistake. Does that rise to the level of criminality?
I believe that it may be malpractice, if proven, but should nurses be charged criminally for making a mistake?
I have discussed and written on this matter previously regarding RaDonda Vaught. As you may recall, she is the Vanderbilt Healthcare System nurse who gave a patient Vecuronium rather than Versed for a patient undergoing radiologic imaging. The patient became paralyzed including her respiratory muscles and she died.
The Tennessee Nursing Board originally chose not to file disciplinary action against Ms. Vaught. However, when criminal charges were filed against Ms. Vaught, the Tennessee Board of Nursing chose to reconsider and then did file charges against her.
Now, Ms. Vaught is facing disciplinary action against her license which could lead to the revocation of her license. She wants to fight the criminal charges and the Nursing Board matter.
Unfortunately, when these things happen, the nursing board matter often is addressed sooner than the criminal matter.
Ms. Vaught’s attorney argued to the Board that its matter should be stayed until resolution of the criminal matter. The Board did not agree.
Originally, her Nursing Board Hearing was scheduled for May 20, 2020. Ms. Vaught’s criminal trial was scheduled to begin July 13, 2020. However, I believe, with COVID, all of these things have been continued as my reference was pre-COVID.
According to the Fifth Amendment, every American citizen has a right to protect themself against self-incrimination. However, Ms. Vaught does not feel she can successfully defend her nursing license unless she is allowed to testify. Unfortunately, her criminal attorney will not allow her to testify as the attorney has recommended that she plead the protection of the Fifth Amendment.
Because it is an administrative agency, the Nursing Board can determine whatever weight or inferences to a nurse pleading the Fifth Amendment. I believe that when someone pleads the 5th, it should not be used against them.
Ms. Vaught’s attorney is appealing the decision to require her to proceed in the Nursing Board matter prior to her criminal trial but I do not believe there has been a ruling yet.
I can understand why the nursing board would require a nurse to resolve their nursing board matter as soon as possible because when a nurse with a serious allegation is pending, there is concern for the safety of the public.
In some states, the board will request that you agree to a voluntary suspension of your license while your criminal matter is proceeding. This is a fair resolution because most likely, a nurse will not be working with a criminal matter pending and a complaint against the nurse’s license pending. The worst thing about this is that even if the criminal matter is dismissed or you get a not guilty verdict, the nursing board can still determine the case on its merit.
On July 1, 2020, Indiana became the next state to join the Nurse Licensure Compact (NLC) which allows nurses who live in Indiana to practice outside of Indiana under the auspices of a Compact License.
To apply for the License, you need to go to in.gov/pla, click pla online services, enter your Indiana license number and the last 4 digits of your social security number. Then, you select new license and click on compact. It only costs $25 to change to an e-nursing license in Indiana.
For example: if an Indiana licensed nurse lives near the border of Kentucky, she will be able to practice in Kentucky as long as she has an eNLC Indiana license. With that she need not have a Kentucky license.
Interestingly, our surrounding states, especially Illinois where the National Council of State Boards of Nurses which administers the NLC is not a compact state nor is Michigan or Ohio.
However, Illinois does have pending legislation under Senate Bill 3067 and Michigan has pending legislation under House Bill 4042.
The eLNC license has been endorsed by several nursing organizations but not without some concerns. The major ones were:
- Disciplinary action under eNLC;
- Differing standards of care; and
- Privacy of patients.
However, the National Council of State Boards of Nursing stresses the benefits of a Compact License which includes:
- Practice by telenursing in other eLNC states; and
- Responding to national disasters and staffing shortages in other eLNC states.
We have seen this obviously in times of Covid which would have been of benefit to many travel nurses had the states not relaxed the licensure requirements.
Noteworthy is that the medical boards do not have any kind of Compact Licensure, but they have more rules and regulations on telemedicine which we do not have under the Nurse Practice Act.
Many questions are raised by the NLC. If you do not live in a border state area which is a Compact License state and unless you plan to do travel nursing, there’s no need to upgrade and pay the additional fee for an eLNC license.
If you move to a new state of residency, you will have to obtain a single state license valid only for that state and continue to work on your Indiana eNLC license.
A nurse cannot hold a Compact License if he/she lives in a state which is not a Compact state. However, if the nurse moves from a non-Compact state to a Compact state, he/she can be licensed in the Compact state by endorsement under an eNLC license as well.
If a nurse with a Compact license is disciplined, action will be taken both in the state where the action occurred as well as in the state of residence.
The state of residence has the authority to remove all compact privileges. The license then becomes a single state license and will be disciplined.
If the nurse has an adverse action on their license, participation in an alternative to discipline program, a misdemeanor offense relating the practice of nursing for a felony offense, all comprise grounds to disqualify or will create difficulties under the license and may only allow you to have a single state license.
If an APRN with a Compact License does not live in but does practice in Indiana, the APRN will need to comply with the Indiana rules for APRN licensure such as a collaborative practice agreement and controlled substance registration and everything else the comes and goes with becoming an APRN.
I find it interesting in how nursing seems to be progressing in the area of licensure. However, I would love to see nursing be more specific in the Nurse Practice Act in terms of new roles such as coaching and what kind of license is needed for these situations.
I’m curious what you think about the Compact Licensure? Do have one where you live? Does it allow you more freedom in your practice?
I’d love to read your comments below.
As a member and president elect of The American Association of Nurse Attorneys (TAANA.org), I have relationships with many nurse attorneys who practice before the various nursing boards throughout the country. In Indiana, where my office is located, the Board has filed very few cases against nurses so far and we had our first virtual hearing this week. Each state has taken a different approach on how to handle their cases against nurses. I did an informal survey and the answers were quite diverse.
Most states have found a way to function and continue filing complaints against nurses, having prehearing settlement conferences and hearings over the phone or virtually. However, many states are not lifting probation or suspensions during this time.
Not surprising, New York, New Jersey, North Carolina and Washington are postponing hearings until the fall.
I was hoping that the Boards would see how valuable nurses are during this time and take that into consideration, but I am not sure this is going to be the case. At least in Indiana, they seem to be taking the same position they have always taken. Hopefully, you are not expecting anything from the Board but just know things can be delayed.