Wednesday, June 30, 2010

Dual and Multi-State Licensed Nurses Targeted by California

      California Campaign to Revoke Licenses of Nurses with Prior Out-of-State Disciplinary Records. 

A recent newspaper exposé of California-licensed nurses who have been disciplined for professional misconduct in other states has resulted in a California-wide effort to revoke all of those nurses’ California licenses. So committed is California’s Governor to this agenda, that he recently fired the head administrator and replaced all of the members of the Board of Registered Nursing. The new appointees have been given their marching orders, and more than 2,000 Registered Nurses are slated for license revocation on the basis of prior conduct in other states. It seems clear that LVNs will face similar issues soon.

     Obviously, some nurses should not be practicing anywhere, but California apparently assumes that all nurses with license issues in other states should also be barred here. And nurses who are now on California’s hit-list might assume that loss of their California licenses is inevitable. Neither of these assumptions is supported by logic or law.

License Discipline and Revocation in California. 

     A nursing license—RN or LVN—once earned, becomes the property of the nurse. And, like any other property, such as real estate (think foreclosure) or money (think of fines imposed by courts), the nursing license cannot be taken away (revoked), even for a short time (suspension), and cannot be diminished or restricted in any way (probationary conditions) without two things: good cause and due process.

     There is a vast body of law as to what constitutes good cause. But here’s the take-away you need to remember: the mere fact that some other state revoked or disciplined a nursing license issued by that state does not, by itself, constitute good cause for California to discipline a California nursing license.

     As for due process, that means that California cannot simply unilaterally revoke or discipline the license based on what State officials believe to be good cause. Instead, California must notify the nurse of the State’s intention to discipline or revoke the license. The State must offer the nurse an opportunity to deny that the license should be disciplined, and an opportunity to demonstrate why. The demonstration of why the license should not be disciplined takes place at an administrative hearing where the nurse’s advocate can challenge all or any of the State’s reasons and evidence in front of an impartial administrative law judge. Also at the hearing, the nurse’s advocate will introduce evidence that the nurse is competent and that there presently exists no reason to deny the right to practice nursing in California. The judge will give due consideration to the evidence put before him or her and issue (1) findings of fact that explain what evidence the judge finds credible, (2) conclusions of law that explain what laws the judge thinks apply to the case, and (3) a proposed decision. The proposed decision is then forwarded to the Board for action, and the nurse and the nurse’s advocate can appear before the Board to argue in favor of or in opposition to the proposed decision.

Opportunities at the Disciplinary Hearing. 

     Anyone who is not familiar with the hearing process might not realize that the hearing offers many opportunities to the nurse to avoid or reduce the discipline against the license proposed by the State. For example, the records of prior discipline in another state may not be available. Or the out-of-state records may not meet the standards of admissible evidence set forth in the California Evidence Code (California law will apply at the hearing.) The discipline imposed by the prior state may have been based on conduct that is lawful in California. Many procedural defects may exist in the out-of-state disciplinary process.

     Many more reasons exist for invalidating or reducing the State’s claims. The out-of-state discipline may have occurred a number of years ago, and the nurse may have current relevant work experience that may show any previous performance problems have been addressed and resolved. The nurse may have evidence of further professional training since the time of the out-of-state discipline, or the nurse may have completed rehabilitation or received counseling. The nurse may be able to demonstrate a new maturity, significant changes based on life experiences (parenthood, military service, successful employment, religious enlightenment) and improvements in professional competence. Any similar facts would be compelling evidence where the State’s only basis to discipline the nursing license is out-of-state prior misconduct.

     These are only a few of the more obvious kinds of evidence that may be utilized to defend a nursing license in an administrative hearing. Countless others exist.

The Economics of Defending Against Discipline of the Nursing License. 

     Some nurses (and other professional and occupational licensees) believe that they cannot “afford” to defend their license against the State’s current campaign. But consider: what do you earn in a year from nursing? In two years? In three? A license revocation will prohibit re-application for a new license for at least three years and probably longer. You do the math: can you afford not to defend your right to earn your living?

How to Begin to Defend Against Discipline of a California Nursing License. 

     The one certain way to lose your California nursing license on the basis of prior out-of-state professional discipline is to do nothing when you receive a notice of proposed action from the State of California. Do not let this happen to you!

     Read the notice. It will give you a very short window of time in which to provide written notice of denial of the charges and demand for hearing. Do not let this deadline pass! It is critical to get your denial/demand in before the time expires. Then, get a lawyer. As the State will tell you, you are not required to have an attorney to defend your license. But you should. Because these cases will feature out-of-state records that may be subject to challenge on the basis of California evidentiary standards, these are not the kind of cases where it will be okay if the only party without an attorney is the nurse with everything to lose. Your nursing license is your asset. It has value: real, quantifiable, actual value. Protect it by exercising of all of the legal rights it carries. California may be at war with its dual-licensed nurses, but you need not be one of the casualties.

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