DID YOU GIVE UP YOUR LICENSE AND WANT IT BACK?

How to Petition the Board of Nursing for Reinstatement of Your RN License

 There are many reasons why a nurse may surrender his or her Registered Nursing License, but the catalyst is usually some disciplinary action from the Board of Nursing (BRN). I’ll use one of my case studies as an example:

Nurse Lisa* has decided that she would like assistance or advice regarding petitioning the Board for Reinstatement of her RN license after having surrendered it in 2005.  The first thing in her favor:  she has cleared the time restriction. In order to petition for reinstatement at least 3 years must have passed if the license was revoked or surrendered, 1 year if the license was revoked or suspended based upon a mental or physical illness. The Board, in its sole discretion, can be petitioned  to reduce the period of time, but it can never be less than one year.

The second thing in Lisa’s* favor is that her surrender can easily be tied to both a physical and mental health issue. Lisa was taking high levels of pain medication for fibromyalgia (all prescribed by her Doctor); she was also taking s anti-depressants. She had repeatedly asked her Doctor if she was cleared to work and he continually cleared her. However, she made some charting errors over a 6-month period of time,  was terminated from her position,  and self-reported the charting errors to the Board. The Board charged her with Gross Negligence and Incompetence and rather than arguing the charges, she opted for a Stipulated Surrender of her License.  Since her surrender, she has been diagnosed bi-polar and is under the care of a psychiatrist and is effectively managing her illness. She is ready to become a Nurse again.

In order for Lisa* to get her license back she will need to:

·         Petition for Reinstatement to the Board of Registered Nursing (BRN).

·         Gather and assemble all mitigating evidence that supports her rehabilitation.

·         Attend a hearing with an Administrative Law Judge presiding and the Deputy Attorney General as her opposing counsel.

·         Clearly and convincingly establish that cause exists to reinstate her license.

·         Accept the terms of reinstatement (which could include reinstatement for a probationary period).

·         If applicable, abide by the terms of probationary reinstatement.

·         Pay any fines that are outstanding to the Board from the original accusation (this can be done on a payment plan).

RN Guardian’s panel attorneys are experts in administrative law and Registered Nurse (RN) license defense. License reinstatement is not much different than defense, other than it is complicated by the burden of proof having shifted from the Board to the Nurse. Just as we would never recommend a Nurse attempt to defend her license without the legal counsel and direction of a lawyer, we would also never recommend a nurse attempt a petition for reinstatement of a license without a lawyer. Gathering and assembling all mitigating evidence that supports rehabilitation, and clearly and convincingly establishing that cause exists to reinstate a license may sound easy enough to do on one’s own. But I assure you, there are plenty of denials for Petitions for Reinstatement on the Board’s website that prove otherwise.

Attorney representation or legal assistance with a Petition for Reinstatement is not an extraordinary expense; in fact - you would probably recoup your legal fees within the first month back at work as a nurse. 

 *Lisa’s name has been changed to abide by my obligation to protect her and her privacy.

A Public Reprimand conjures images of tar and feathering or schoolyard nightmares where everyone is pointing and laughing at you as you walk down the hall with toilet paper stuck to your shoe, but they are actually far more civil than that. If you’ve had an accusation filed against your RN License, this is the result you should hope and pray for.

Once an accusation has been filed by the California State Board of Registered Nursing (BRN) there are only a few ways it can go. Following are the possible results in order of severity -from worst to least:

1.    If you don’t reply to the accusation and fail to file the Notice of Defense within the 15 day window, your license will be revoked by a default order. The May 2011 accusations show that many of the “Revocations” were a result of a default order to revoke, simply  because the nurse failed to file the Notice of Defense.

3.    You can have your license revoked if you do not provide compelling mitigating evidence to the BRN which convinces them that you should be allowed to continue practicing as a nurse.

4.    You can have your license suspended for a period of time if the Board feels that the mitigating evidence isn’t sufficient to show that you should be placed on probation.

5.    You can be placed on probation for a period of 3 to 5 years and must abide by a stringent set of 14-19 Probation Requirements set forth by the Board.

6.    You can receive a Public Reprimand.

7.    You can have the case dismissed.

We at RN Guardian like to brag about the fact that our attorneys have been so proficient in their defense of Registered Nurses, that we’ve been able to have cases dropped, but it doesn’t happen very often and the initial accusation needs to be pretty “soft”. The more likely scenario is a Public Reprimand.

In eighty percent (80%) of the Public Reprimands against registered Nurses in May 2011, the nurse was represented by counsel.  Attorneys were able to get the Board to agree to a Public Reprimand for things like DUI with a collision and a blood alcohol content of .17%, a conviction of aggravated trespass which involved domestic violence, and an allegation of unprofessional conduct for failure to supervise staff. These are fairly serious accusations and for every Public Reprimand issued, there are 4 revocations for similar situations.  The difference is having lawyer who knows how to negotiate with the Board.

So what is the Public Reprimand exactly? It is a letter that will be attached to your registered nursing license for the remainder of your career. It is also attached to the initial accusation filed by the Board. It states the allegation, the mitigating evidence considered, and at the end says: For all intensive purposes, it is a slap on the wrist that will be public record. If anyone looks up your registered nursing license, they will be able to access this letter of Public Reprimand. Of course this is draw back and a bit of a proverbial scarlet letter with regards to your career, but it is far preferable to any other form of formal license discipline that the Board can impose.  With the right attorney, it is attainable.

What process is required before the BRN can suspend a license before engaging in an investigation?

Answer:

Issuance of an Interim Order:

When and How the BRN can accelerate the procedure for restriction of a nurse’s license

          According to Section 494 of the Business and Professions code, the Board of Registered Nurses has the authority to immediately restrict a nurse’s license, if the board has satisfactorily demonstrated [to themselves] that the nurse has engaged in illegal acts and that the public would be endangered if the nurse continued practicing without restriction. This is done through what is referred to as an interim suspension order, which is initiated via a petition filed by the Board’s executive director.

          The nurse has the right to notice of the interim order, unless it is clear that the public will be seriously injured before notice could be issued.  The notice should be received at least 15 days before the hearing for the petition to implement the interim order. This notice should include the documents that are being used to justify the action against the nurse.

          If the order was initiated without notice, the nurse will be notified within 2 days after issuance of the order and will be provided all of the documents used to support the board’s decision. The nurse has the right to a hearing within 20 days after the order is effective. If the board does not conduct a hearing within 20 days after the issuance of the order, it will become ineffective. 

          During the petition hearing, the licensed nurse has a right to counsel, a right to a record of the proceedings, and a right to present evidence and oral argument. 5 days after the hearing, the board will issue a decision. The decision to issue an interim order, or to continue an interim order that was issued without notice, must be based on proof by a “preponderance of the evidence” that the nurse engaged in the prohibited conduct.

          If an interim order is issued, the board must issue an accusation within 15 days after issuance.  If the interim order was issued without notice, this 15 day time limit will begin after the hearing on the order. A hearing will take place within 30 days of issuance of the accusation, or if the nurse files a notice of defense to the accusation, 30 days after the board receives the defense.  A decision for the accusation will be rendered no more than 30 days after said hearing. If any of these deadlines are violated, the interim order will dissolve.

          These interim orders are subject to judicial review in superior court, but the court will only review whether the board abused its discretion on issuing the order. The court will find abuse of discretion only if the board failed to proceed according to the above law, or the interim order is not supported by substantial evidence already on the record. It will not hold a re-hearing, accept new evidence, or hear new arguments. It will only determine whether the board abused its discretion.

          If the nurse fails to comply with the interim order, the nurse will be subject to additional disciplinary action.

…Contrary to its title.

 The Board of Registered Nursing is part of the Department of Consumer Affairs, which means that its sole purpose is to protect the consumer, not you, the Nurse. Certainly the BRN offers a myriad of useful information for the RN through its extensive website, but the Board is not a confidential resource for the RN looking for answers regarding licensing issues. One of RN Guardian’s newest members has learned this the hard way, in fact the hardest of ways.

As a service to you, she has graciously agreed to allow me to share her experience and I feel like the best way to do that is through her own words. Following is an email conversation between me and our RNG member “Laura”. I encourage you to read it.

Asking the right person a question about your license could mean the difference between having your question answered confidentially by a legal expert, or having the BRN go after your Nursing License because you assumed they were a safe place to go.

From: Laura RN
Sent: Monday, December 13, 2010 8:12 PM
To: Jennifer Coalson
Subject: the "email"

Jennifer,

Please let me know if you can think of anything else I need to do. I appreciate your justified anger and disgust toward the BRN on my behalf.  I am mentally exhausted on top of everything else going on in my personal life.  This interrogation has been more stressful than any personal matter could ever be and knowing the source was a confidential question to the Board just makes me feel more violated.  I will go with you all the way on this one!!!

Thank you for being there for me!

“Laura”

On Tue, Dec 14, 2010 at 9:34 AM, Jennifer Coalson < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >; wrote:

Oh “Laura”

I don’t really even know where to begin with this. It’s unconscionable and I am outraged on your behalf. I also –as sad as it is - agree with you. I think this is a witch hunt- I think most of them are, especially those that are so obviously over and done with and are based on a simple error. For them to use your “confidential” inquiry as a means to go after you is repulsive.

My suggestion is this: Provide what they request. You can draw the line in the sand where ever you choose. The most important thing at this point is try to try to mitigate the damage to YOU. You’d mentioned that having a formal accusation lodged against you was going to be detrimental and I agree. Let’s try to get this dropped at the investigation stage. We still have enough info to mount a bit of investigation into their policies and hopefully do something about this after the fact, but I don’t want you to use yourself as a scape-goat to make a point to the Board. We will take care of them on the back end. There are consumer/ public watchdog groups that  have a long standing dislike of the BRN and I say we go there with your story.

The converse argument  is that you should have never contacted the Board with that question in the first place- their job is to “protect the public” and if they feel that the public could be at risk- then they investigate. It happens with self reporting nurses all of the time.  A RN discloses that she got a DUI- the BRN goes after her and attempts to revoke her license. It is imperative that RN’s realize that the BRN is NOT a confidential resource, nor do they claim to be. RNG is just that: a confidential resource … but RN’s don’t find out about us until it is too late.

Let’s get all the info to your RNG Panel Attorney and let him counsel you on what you should do. I’m not a good “impartial” because I become so emotionally involved in my member’s cases- especially yours.

I’m here if you have any questions,

Jennifer

Jennifer D. Coalson-Perez

Executive Director

www.rnguardian.com

916-851-1900

From: Laura RN
Sent: Monday, December 13, 2010 8:12 PM
To: Jennifer Coalson
Subject: the "email"

Here it is, I obviously never got a response.

From:     LauraRN
Subject:     license question
Date:     May 17, 2010 10:49:32 AM PDT
To:     Contact a the BRN

I am a registered nurse in California.  I recently was placed on a 5150. I have no previous history in relation to mental health problems and was released by the physician as "depression improved."  What are the effects that this 5150 can possibly have on my license?

******

Since the BRN created this mess I am extremely reluctant to provide them with anymore information than we did today.  Support letters from my CNO, medical director, and therapist as well as all my evaluations and proof the medication belonged to me is enough in my opinion to disprove anything that would indicate I have ever been unfit to perform my job as a nurse to the best of my ability.  And the drug test on the spot during the investigation should have some weight in the matter also.  I feel that no matter what I consent to for their review, they've already initiated a witch hunt.

What Can I Expect? What is the Process?

I am asked this question multiple times a day; mostly  from Registered Nurses who are in various phases of the investigation process with the Board of Registered Nursing (BRN). The following is what one should expect from start to finish:

The investigation is triggered by (1) a complaint about your work performance and the complainant can and usually is, anonymous. (2) It can also be triggered by a conviction that shows up on Live Scan when you go to renew your license. (3) The third way an investigation will be triggered is via a report from the Department of Justice for a legal issue such as DUI or misdemeanor conviction.

If you know that you’ve committed an error or violated the law in anyway, your best course of action is to speak with attorney right away so that they can begin preparing you for what will follow.

1.      STAGE 1.  You will receive a NOTICE OF INVESTIGATION from the Board of Registered Nursing (BRN). In the Notice the BRN will explain that there has been a complaint alleging that you did something wrong. They will further explain that it is their responsibility to investigate the accusation.  They will cite a Business and Professions code number and ask you to submit a written statement to them by a given date , usually 2 weeks from the date of the letter, in response to the allegation.

You can also receive notice from the Board that something has come up during your renewal application, either because you self-reported during the renewal process or because your license was flagged through Live Scan. If this is the case you will receive a similar Notice from the BRN. attached an example here

a.      Do Not Respond in writing to either of these letters.  Any statement you make will be used by the Board and Office of the Attorney General to continue their investigation. If you’ve received a Notice of Investigation letter from the BRN, contact our office immediately. We will help you with your response to ensure that you do not unintentionally incriminate yourself.

If the Board is not sufficiently satisfied by the Letter of Explanation or Mitigating Evidence at this stage, the investigation will proceed.

2.      STAGE 2. The Board of Registered Nursing (BRN) will hire  a Department of Justice (DOJ) investigator to look into the matter on their behalf. The DOJ investigators are former or retired police officers, DEA agents or other experienced investigators. They have had years of experience in the art of interrogation and investigation. This investigator will call you to set up an interview “to get your side of the story”.

a.      Do Not Speak to an Investigator without representation. I cannot tell you how many times I have heard from our clients that the investigator sounded like they were siding with the nurse. Nurses often ask me if representation is really necessary “because the investigator told me it sounds like it will be dropped.” There is not one case in which they actually do drop the complaint.   The investigator’s sole responsibility is to find cause for discipline for the Board. Anything you say can and will be used against you. Despite what it may seem, they are not on your side. Our Panel attorneys have done thousands of internal investigations and can successfully represent you so the process ends at the investigation stage.

If the process does not end at the investigation stage, you’ll receive the actual Accusation from the Board.

3.      STAGE 3. The Attorney General serves you with a Formal Accusation Against your Nursing License.  This is a formal accusation. It will become public record on the Board’s website and is an attempt by the Board and the Attorney General of your state to revoke, suspend or have you voluntarily surrender your RN License. This is the most critical stage of the process. I adamantly advise you seek representation if you don’t already have counsel. There are three parts to the accusation:  The first is the STATEMENT TO RESPONDENT; the second is the ACCUSATION; the third is the NOTICE OF DEFENSE.

a.      STATEMENT TO RESPONDENT: This explains what you need to do and provides the time restraints for filing a Notice of Hearing or Notice of Defense. It also explains that you can opt for a stipulated settlement(Stipulated Settlements are offered in limited circumstances. See section 4 for more information.)

b.      ACCUSATION: This is the charge against you. It will provide a statement of the Boards’ jurisdiction, cite the codes you are being accused of violating, make a statement regarding cost recovery and finally the PRAYER, which will call for revocation or suspension.

c.       NOTICE OF DEFENSE: You  have 15 days from the date that you are  given notice in which you need to respond with a Notice of Defense. This is also critical. Missing this step waives your right to a hearing and the Board will move to discipline you without your input.  

I cannot reiterate enough how critical this stage of the process is, if you want to keep your nursing career. Without question, you need an attorney if you’ve been served an accusation because the next step is filing a Notice of Defense and going to Hearing, which are difficult, if not impossible to adequately handle on one’s own.

4.      You may choose to opt for a Stipulated Settlement. This is where a lawyer would negotiate the terms of your probation and settle the matter without having to go to Hearing. This is not always a viable option but if it is, it is a good one. If the lawyer is successful and comes to terms of Probation that you and your attorney have agreed upon, you would receive a Stipulated Settlement and Disciplinary Order.

a.      STIPULATED SETTLEMENT AND DISCIPLINARY ORDER: This will look very similar to the Statement to Respondent and Accusation, except at the end there will be a section called the DISCIPLINARY ORDER. This is what you will need to abide by, in order to keep your license.

 
5.      STAGE 4. The Department of Justice, Office of Administrative Hearings (OAH) will send you a REQUEST TO SET. This will provide you with a few options for dates for your hearing and will name a location.  If you have hired an attorney, this will be sent to their office and they will coordinate with you, the OAH and the Deputy Attorney General to set a date.

a.      HEARING: An Administrative Hearing is a real legal proceeding with an Administrative Law Judge presiding and rendering a decision.  (If you’ve ever had the pleasure of attending any court proceeding, you will know what an intimidating experience this can be… even if it is just for a traffic ticket.) The Hearing will take place at the OAH, at a conference table, not in a court room. The Judge, you, your counsel, and the opposing counsel or Deputy Attorney General will be in attendance. Each side is able to argue their case and present evidence.  At the end of the hearing, the judge will take all the provided information under submission and you will receive notice of his decision within a few weeks.

6.      STAGE 5. The Result of a BRN Hearing will likely be Probation. Our panel attorneys have been 100% successful in license retention as a result of a hearing. However, the result of the Judge’s order usually imposes some sort of probation requirements. If you do not abide by all of the Probation requirements, you may receive notice that your Probation is being revoked, beginning the process all over again.

a.      NOTICE OF VIOLATION OF PROBATION. This notice will come from the BRN and will clearly state which of your probation requirements you are being accused of violating. Two of the most common violations are “failure to receive prior approval from the Board prior to commencing employments as a RN” or “failure to engage in the practice of Registered Nursing for a minimum of 24 hours per week for six consecutive months”. For a Nurse with a publicly accessible accusation against his or her license, the latter can pose a significant challenge. Following a Notice of Violation of probation, the Board will seek to revoke your probation, and therefore your license.

b.      PETITION TO REVOKE PROBATION. This is the formal accusation form the Board and the result will be another attempt at license revocation or an option to formally surrender your license.

7.      The Board Gives you the Option to Surrender Your RN License.  At first glance, this appears to many nurses to be a better alternative to battling it out again in a settlement negotiation or in a hearing. It also seems like a much less expensive option.

a.      STIPULATED SURRENDER OF LICENSE AND ORDER. The Board will offer you the option to surrender your license and “petition for reinstatement” after two years. What they do not tell you is that if you voluntarily surrender that license, the Burden of Proof shifts from theirs, to yours if you ever want to get it back.  In laymen’s terms: It is now YOUR responsibility to prove that you are a good nurse and should be allowed to practice rather than the Boards’ responsibility to prove that you’re not a good a nurse and shouldn’t be allowed to practice. It is much more difficult for whoever the Burden of Proof happens to be upon and much more expensive.

As you can see, there are many steps to this process with each step taking months and the entire process can take years. We are here to help you through each step, advise you on all of your options and do all the leg work for you. If you have any questions, you can reach us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or directly at the Firm at 916-851-1900.