GOVERNOR REPLACES BRN AND FORCES RESIGNATION OF DIRECTOR

Following another expose by the LA Times and nonprofit news organization ProPublica, Schwarzenegger has fired 3 members of the Board of Registered Nursing, including the President and basically forced the resignation of the Executive Officer as well as another Board member. The remaining seated 2 members are appointees of the Governor from 2006 and the empty slots have already been filled by gubernatorial appointments. Schwarzenegger's statement said his "administration is dedicated to protecting public health and safety, and the new board will act quickly and decisively to achieve that goal." This comes just days after the LA Times and ProPublica found that the Board of Registered Nursing was taking an average of three and half years to investigate allegations of misconduct. Perhaps this was because during the scope of its thousands of investigations, the BRN found that many of the investigations were superfluous. RN Guardian Attorneys are continually reminded that many of these “allegations” are often arbitrary at best, sometimes made as a retaliatory measure by a disgruntled colleague, sometimes made by a supervisor to cover up their own mistake, or more often than not, made by a family member of a patient who was dissatisfied with patient care. The upheaval with the BRN’s administration and governing boards means a few things to California Registered Nurses: The new BRN will undoubtedly be far more aggressive in investigating even the slightest incidence and will move swiftly to administer penalties, fines, suspensions and license revocations. This is a tentative time for RN License security in California. The need for a service that provides preventative counseling for license related matters as well as the peace of mind that if needed, your license would be defended by attorneys that specialize in the nuances of the BRN has never been more relevant.

RN GUARDIAN CASE STUDY

Allegations of insufficient patient care, often lead to BRN investigations. Such was the case for a San Bernardino County RN who worked at a local hospital emergency room. The RN was working a weekend swing shift which required her to work during the busiest ER hours Thursday, Friday, and Saturday nights. One particularly busy night, a male in his mid 20's was admitted with moderate cuts and abrasions from an apparent motorcycle crash. Unfortunately, due to the crowded conditions of the ER, the patient was required to wait for an extended period of time. This did not appear to be a problem to the intake RN as the patient was stable, did not appear to have significant injuries, and was able to wait in a relatively comfortable state. After between 60-90 minutes of waiting in the ER waiting room, the patient went into cardiac arrest. Emergency personnel that were on scene immediately responded and attended to the patient. Unfortunately, the patient could not be revived. The patient’s cause of death and the reason for his cardiac arrest were not immediately apparent. Both the hospital and the patient’s family conducted their own highly comprehensive investigations. Legal claims and ultimately lawsuits were filed by the patient’s family. Portions of that case are still pending. However, as a result of the hospital’s investigation, the BRN was somehow notified of the incident. BRN launched its own investigation into the conduct of three RN’s, including the supervising RN. The BRN alleged that the RN somehow breached standards of patient care. By the time BRN/Department of Consumer Affairs Investigators became involved, both the hospital and the patient’s family completed thorough investigations. The BRN investigators obtained significant portions of those investigations. The most significant portion of those investigations were the detailed statements given by the RN’s. Each RN gave statements to hospital investigators without the advice of legal counsel. The BRN moved to take disciplinary action against two RN”s based, in a large, on inconsistencies in the RN’s statements and conflicts in the evidence with the RN’s statements. RN Guardian lawyers handled the administrative appeal for one of the affected RN’s. RN Guardian lawyers were able to obtain a dismissal of the charges prior to hearing. Unfortunately for the RN, that dismissal came almost 24 months after the death of the patient in the Emergency Room. It is important to note that the entire BRN investigation might have been avoided had the RN been given the opportunity to consult with legal counsel prior to giving a statement. Had the RN, given a more informed and, accordingly, more accurate statement it is unlikely the BRN would have initiated an investigation in the first place. The San Bernardino ER case demonstrates real value of RN Guardian which is to provide critical advice and consultation to RN’s to avoid BRN and legal proceedings. Fortunately, for the RN Guardian protected member, the entire matter ended favorably. The most difficult part for the RN was enduring the lengthy investigation process and the possibility that her license may have been interfered with by the BRN. RN Guardian urges its members to communicate with an RN Guardian lawyer at any time an event or incident occurs which may lead to some type of investigation or adverse consequence to the RN.

RN GUARDIAN CASE STUDY

A 2008 case involved a BRN investigation and adverse action against an RN for being arrested on his weekend driving for driving under the influence of alcohol. The RN was arrested for DUI in a distant location away from his home and workplace while he was on a vacation. He reported the arrest to his employer, Kaiser Permanente who began an internal investigation as to whether any form of employment adverse action was warranted. It appears that Kaiser Permanente notified the Board of Registered Nursing (BRN) of the RN's arrest. The RN pled no contest to a misdemeanor DUI violation. As a result, he paid a fine, was placed on probation, and attend alcohol abuse classes and suffered a temporary suspension of his driver's license. His employer, Kaiser Permanente decided that significant employment adverse action was not warranted. Approximately six months later the BRN through his Department of Consumer Affairs investigator advised the RN that it was conducting an investigation. A lengthy investigation ensued at the conclusion of which the investigator's recommended that the RN's license be suspended for a period of one year. Obviously, this would have resulted in the immediate employment termination of the RN. The RN appealed the proposed license suspension and, with his RN Guardian lawyer went to arbitration. After hearing the evidence, the Arbitrator issued a ruling that the BRN's proposed action was far too severe. The Arbitrator ruled that the suspension should be held in abeyance for a period of one year. If the RN had no further alcohol related acts of misconduct, the disciplinary action would be dismissed with prejudice. In the event the RN had an additional alcohol related mishap the one year suspension of his license would be warranted at that time. The RN is doing fine and continues to work at Kaiser Permanente. Neither the RN nor his RN Guardian lawyer anticipates that he will have any additional alcohol related mishaps.

SUMMARY OF BRN ENFORCEMENT PROCESS

The primary reason to belong to RN Guardian is to ensure, for a low monthly fee, that you have legal representation in case you are ever investigated by the California Board of Registered Nursing (BRN). Why is this important? What happens when BRN investigates RN's? While the BRN investigation and enforcement process typically follows the same steps in each case, there are also differences in each case which makes it essential to be represented by an attorney experienced in defending RN's in licensed matters if you are ever investigated by the BRN. The following is a summary of the various steps within the BRN investigation and enforcement process, and how representation by an RN Guardian attorney during such process can mean the difference between successfully defending your license and losing your license to practice as a registered nurse. Who Does the BRN Investigate? BRN investigations into RN's are typically initiated when a complaint is filed against a RN with BRN. Anyone, including a patient or patient's family member, a co-worker, a supervisor, or anyone with knowledge of the subject matter of the complaint. A compliant is filed about any particular RN with the BRN. Such complaint remains confidential within BRN and the person filing the complaint is typically not identified to the RN who will be investigated as a result of the complaint. The two most common subjects of complaint filed with the BRN are alleged deficiencies in patient care and alleged chemical dependencies by the RN in question. Subjects which BRN does not have jurisdiction to investigate, but which sometimes are addressed in complaints filed with BRN include alleged wrongdoing in billing practices and personal conflicts. What happens during the investigation? First, BRN reviews the information contained in the complaint which was filed. If the complaint alleges any type of chemical dependency by an RN, the case can be referred to the BRN Diversion Program, an alternative process under which the RN is offered to participate in counseling while his or her license is suspended. If the complaint involves other alleged violations of the Nursing Practices Act, and if the complaint contains information substantiating the allegation, the RN typically transfers the case to the Department of Consumer Affairs, Division of Investigations for a comprehensive investigation (DOI). DOI conducts an investigation to gather all factual information relevant to the allegations contained in the complaint. Such investigation typically involves interviews of any relevant witnesses and usually involves (though not always) and interview with the RN accused in the complaint. It is prior to and at such interview that an RN belonging to RN Guardian will use an assigned attorney for representation. When DOI has finished gathering facts related to the complaint in their investigation, they issue a report to BRN on their findings. BRN reviews the report and, if no violation can be substantiated, the matter is closed. If BRN concludes, however, that the DOI report shows the RN committed some wrongdoing, BRN takes one of the various disciplinary actions against the RN. What happens after the investigation? If BRN concludes from the DOI report that the RN has committed a minor violation, which does not call for formal disciplinary action, the case is handled through an informal process titled (The BRN Citation and Fine System) through an informal or formal appeal process. At this point, RN Guardian members again use their designated, experienced attorney to assist with deciding how to contest the fines and citations. If BRN concludes from the DOI report that the RN has committed a violation of the Nursing Practice Act, a formal disciplinary action is warranted. The BRN sends the case to the Attorney General's (AG) office. The AG then reviews the case and, if there is sufficient evidence, the AG issues a formal disciplinary charge against the RN, typically an "accusation." The accusation, which lists the charges against the RN is then sent from the AG's office to the RN. The RN then has the opportunity to appeal the charges at an administrative hearing. Of all the steps in the BRN investigation and disciplinary process, it is at this point that it is critical for an accused RN to be represented by an attorney experienced in the BRN license defense matters. RN Guardian members are represented by such attorneys. The administrative hearing for the appeal by an RN to challenge an accusation is a formal process which very much resembles an actual trial. The hearing is heard by an Administrative Law Judge (ALJ) within the State of California's Office of Administrative Hearings. Witnesses are presented by both the AG and by the accused RN at the hearing to testify under oath about the factual matters related to the disciplinary charges. Cross examination of each testifying witness is allowed and may be critical to the outcome of the case. Documents may also be presented as exhibits to establish the evidentiary record from which the ALJ will determine the case. After the hearing, the ALJ produces a written, proposed decision which either upholds the discipline, reverses the discipline, or presents or recommends some type of reduced discipline. The ALJ's decision is then reviewed by a nine-member BRN panel for consideration. This BRN panel may accept the ALJ's decision entirely, may reject the decision entirely, or may revise and adopt the ALJ's decision. The BRN panel's conclusion completes the administrative process for the appeal of the disciplinary charges. It is important to note that either prior to the administrative hearing, during such hearing, or after such hearing (either before or after the ALJ has rendered his or her decision), the AG's office and the accused RN may enter into a stipulated settlement of the matter. Here again, the experienced RN Guardian attorney representing the RN Guardian member is critical to possibly reaching a stipulation with the AG's office which achieves the best overall result for the RN. The ultimate outcome of a disciplinary accusation against an RN can vary from a citation and fine, an order placing the RN's license on temporary probation, an order for the RN to surrender his or her license, or a suspension or revocation of the RN's license. If the RN Guardian member is not satisfied with the ultimate outcome, the next legal step is to appeal the discipline issues by BRN to the local California Superior Court under an action called a Petition for Writ of Mandate. While all other representation for the RN Guardian member through the administrative process up to this point is covered under the members low monthly RN Guardian membership fee, moving forward with an appeal under a Petition for Writ of Mandate is done on a negotiated basis between the RN and RN Guardian and typically involves payment of an hourly rate for the continued representation (ARTICLE IV Section 1.c of the RN Guardian Plan Contract.) Summary and Conclusion From all the steps described above, it is clear the BRN investigation and discipline process involves multiple steps, can be somewhat complicated, would be extremely difficult for an RN to go through on his or her own without any legal representation. RN Guardian members enjoy being guaranteed an attorney experienced in BRN license defense for each step of the BRN investigation and disciplinary process.

RNS MAY NOW HAVE TO SUPPLY FINGERPRINTS TO BRN WHEN RENEWING LICENSES

Reacting to concerns over Registered Nurses being able to serve as RNs and renew their RN licenses while having multiple criminal convictions, the California Board of Registered Nursing (BRN) passed emergency regulations in late 2008 which now require some RNs to provide full sets of fingerprints when renewing their RN licenses. The new regulations (codified at 16 CCR §§ 1419, 1419.1, and 1419.3) provide that, as a condition of renewal for licenses that expire on or after March 1, 2009, applicants not previously fingerprinted by the board, or for whom a record of the submission of fingerprints no longer exists, are required to furnish a full set of fingerprints with their applications for license renewal. As clearly stated in the regulations, the fingerprints are required for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search conducted through the Department of Justice. An applicant for renewal must also disclose on the renewal form whether he or she has been convicted of any violation of the law in this or any other state, or in any other country. One does not have to disclose traffic infractions under $300 that do not involve alcohol, dangerous drugs, or controlled substances. Failure to provide all of the information required renders any application for renewal incomplete and not eligible for renewal. The fingerprinting and disclosure requirements will be waived if the applicant is renewing the license in an inactive status, or is actively serving in the military outside of the country. However, when reactivating an inactive license the applicant must fully comply with the fingerprinting and disclosure requirements. These regulations became effective on November 24, 2008 upon the approval by the Office of Administrative Law . Currently, the Board (BRN) has until May 26, 2009 to adopt the regulations through the regulatory process for them to become permanent; however, the assumption should be that these final steps of adoption are a formality and will occur. Either way, the regulations are currently effective. This recent adoption of new fingerprinting requirements in association with license renewals clearly demonstrates the proactive nature of the current BRN. In turn, the new regulations emphasize the constant evaluation of RNs licenses and the ongoing prospect of needing expert legal advice related to licensing matters. Such legal advice is available for no extra cost for active members of RN Guardian.