In previous blogs, I have addressed the power and authority that boards of nursing possess, and the types of disciplinary actions they can take against a nurse license. I have also written about the importance of obtaining representation from an attorney in disciplinary proceedings because what the board orders can have a long-lasting effect on your future. In the following case, a nurse finds out the hard way what "unprofessional conduct" means for her continued nursing practice.
Specifics Behind Unprofessional Conduct Accusation
In 2011, a nurse who held LPN and RN licenses (allowed in her state) had both licenses suspended after she illegally obtained a physician's DEA number, impersonated a physician, and ordered Xanax prescriptions in her own name. The nurse also pled guilty to the federal crime of Obtaining a Controlled Substance by Deception. The criminal court ordered her to enroll in a drug diversion program which, if successfully completed, would result in no criminal conviction. The nurse did not comply with the requirements of the program, and she was convicted. Because the nurse did not complete the program, the Department of Justice filed a complaint with the nurse's state board of nursing seeking revocation of her nursing licenses.
A hearing was scheduled, and the nurse received notice of the hearing but did not appear. The board conducted the hearing and voted to revoke the nurse's licenses.
The nurse asked the board to re-open her hearing, and the board agreed. The nurse testified that she had committed the crime for which she was convicted, gave specifics to the board, apologized, and accepted responsibility for her actions. Citing various sections of the state nurse practice act and its regulations, in May of 2011 the board suspended the nurse's licenses for five years if the nurse successfully completed a drug diversion program. The nurse appealed that decision, but the court upheld the board's decision. From June of 2011 until January 31, 2012, the nurse worked as a nurse while her licenses were suspended. The Justice Department filed a second complaint with the board of nursing. In 2013, the board found that the nurse violated the nurse practice act by practicing without a license, which it considered to be unprofessional conduct. Based on her failure to comply with the board's suspension of her licenses, the board permanently revoked her license pursuant to its authority and the nurse practice act. The nurse did not appeal that board decision. In 2015, the governor granted the nurse a full pardon of the criminal conviction. The nurse applied to have her licenses reinstated, but the board voted to "propose to deny" the reinstatement because the licenses were permanently revoked and could not be reinstated. The nurse then applied for licensure by examination. The board again proposed to deny her application due to the licenses being permanently revoked under the nurse practice act, and she was therefore not eligible for a state nursing license "by endorsement, examination, or reinstatement." She requested a hearing and submitted documentary evidence and testimony. The nurse's lawyer also provided oral argument. In January of 2017, the written order of the board spelled out its decision:
The board was bound by the 2013 order permanently revoking the nurse's license. The governor's pardon did not change the permanent revocation since the nurse had been convicted of a crime "substantially related" to nursing, was unfit to practice, displayed unprofessional conduct, and practiced nursing while her licenses was suspended.
The nurse appealed the 2017 order.
Appellate Court's Ruling
The nurse raised many arguments as to why, in her opinion, the board's order was a denial of her right to due process, that the governor's pardon "restored her 'civil right' to pursue professional licensure," and the board's 2013 order permanently revoking her license was in error, among other arguments. The court reviewed each of these arguments and found them to be without merit and upheld the 2017 board of nursing order.
What You Can Learn From This Case
I encourage you to read this case in order to grasp how the nurse's challenges to the board's several orders were not successful. Although her approach in challenging the orders is interesting (and you are always allowed to argue your case based on whatever legal principles you and your attorney select), none of hers were based on solid legal grounds.
The case also is important because it emphasizes the need to always appear when a board conducts a hearing. Don't ever ignore such a notice. When a board fulfills its responsibilities to notify you of a proceeding, it has met its obligation under due process. The proceeding can occur without you.
Boards of nursing don't take being ignored lightly. Besides, being absent results in your inability to defend yourself. The decision of a board is almost always not in your favor under this circumstance. The nurse's conduct in impersonating a physician and illegally obtaining a prescription pad and writing a prescription for herself is potentially indicative of a possible a substance use disorder. Unfortunately, she did not get treatment, which may have alleviated some of her additional legal problems. If you are feeling stressed or are experiencing challenges to your mental health, seek treatment. Not doing so may create additional allegations of "unprofessional conduct." If you are ordered to get into treatment, follow through with that order. Not doing so may result in your inability to continue to practice your profession.
Take these courses to learn more:
Protect Yourself: Know Your Nurse Practice Act
(1 contact hr)
Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. Nurses have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.
Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation, and genetic testing.
The Nurse With Substance Use Disorder
(1 contact hr)
The American Nurses Association has long estimated that misuse of chemical substances among nurses parallels that of mainstream society; however, recent statistics from the CDC reveal that mainstream society substance abuse of illicit drugs or misused prescription drugs is higher. All but 7 states in the U.S. have programs to address substance abuse and impaired practice in nursing stressing alternatives to traditional disciplinary actions and criminal prosecution. This activity will help you to recognize and support colleagues who may be suffering from substance use disorder while protecting patient safety.
