New “Unprofessional Conduct” Regulations For BRN Investigations and Conviction Disclosures
On July, 23rd 2014 new regulations went into effect expanding the ways California RN’s can be accused of Unprofessional Conduct. The first is failure to provide requested documents within 15 days (or the time specified), the second is failure to participate in a BRN or DCA investigation and the third is failure to disclose a license discipline or conviction within 30 days to the BRN.
FAILURE TO PROVIDE REQUESTED DOCUMENTS WITHIN 15 DAYS
The BRN will request certified court documents if an RN has been arrested and not convicted or has been convicted of a crime or has been disciplined by another licensing agency. This was standard procedure before, but only upon renewals of RN licensure, new RN licensure or as a result of a formal accusation against the RN License. Failure to provide the documents in a timely manner was frowned upon, but was not considered unprofessional conduct on its own. If the RN is late in providing the requested documents, they must show “good cause” in order to be given an extension and “good cause” is a very restrictive legal standard. For example, “the court house wouldn’t give it to me in time,” is not going to cut it, even thought that seems like perfectly good cause to you.
FAILURE TO PARTICIPATE IN A BRN OR DCA INVESTIGATION
Investigative interviews will be requested anytime a complaint is made against the RN. It is the BRN’s responsibility to investigate every single complaint. These can arise from an employer, a coworker, patient, patient’s family member, disgruntled ex-boyfriends or girlfriends, basically anyone. The most frequent investigation are for alleged diversion of medication, charting errors or patient care issues. For more information on the investigations process, click here
Previously, participation in an interview was 100% voluntary and our attorneys would advise the nurse to decline an investigative interview unless participation could help them avoid a future accusation. Now, we will have to advise clients that they must give a statement or face an additional allegation in the Accusation of unprofessional conduct. There is still the option of declining the interview by invoking the 5th Amendment or any other constitutional or statutory privileges but this has moved beyond what the RN will be able to do on their own.
Our attorneys have never advised a client to participate in an investigative interview or provide a statement to a BRN investigator without an attorney present, but with these new regulations, we cannot even advise our clients to decline participation without more in depth legal analysis.
FAILURE TO DISCLOSE A LICENSE DISCIPLINE OR CONVICTION WITHIN 30 DAYS
Prior to this regulation, nurses were only required to disclose this information on their renewal applications and our attorneys assisted in this process. Now, the BRN is placing the obligation on the nurses to disclose this information prior to renewals, thus making the renewal disclosure duplicative. This also means that the RN will need to seek legal assistance immediately following a conviction because how the conviction is disclosed has a huge bearing on the eventual accusation and discipline the RN will face.
Whether it is due to the ethics oath the RN’s take, or something else within most RNs characters, nurses have the propensity to say FAR MORE THAN THEY SHOULD when disclosing a conviction. The problem isn’t in supplying the court documents or letters of recommendation, it is in the nurse’s own Letter of Explanation. While it is true that the BRN wants to see you take responsibility for your actions and accept the consequences, there is an infinitesimally fine line between making things better for yourself and making them much worse and this is NOT something that the RN should do on their own.
PLEASE NOTE THAT THIS SECTION DOES NOT REQUIRE A DISCLOSURE OF EVERYTHING!!!! Do NOT make the mistake of misreading this. This section does not mean a nurse is required to disclose arrests, terminations form work for alleged misconduct, or diversion of medication allegations. Disclosing any of these items can lead to further criminal charges and license revocations.
Bottom line: if you want to know what you need to disclose, call me.
WHY THE CHANGES? WHAT ARE THE CONSEQUENCES?
I can only speculate as to why the BRN instituted the changes, but I assume it is because they wanted more causes for action for which they could discipline a nurse. The BRN makes a massive amount of money in collecting fines following disciplinary action and adding new causes for action gives them more opportunities to impose fines, thus filling their coffers.
A charge or cause for action based on Unprofessional Conduct is a big deal. The BRN adds this charge in for everything from DUI convictions, to falsifying prescriptions to fraudulently obtain medication, to the death of patient due to gross negligence. It is a blanket and all-purpose charge and it is cause for disciplinary action all on its own. It is not something to mess around with. It is not something that you can do on your own anymore.
If you find yourself with a request for documents from the BRN, a conviction or discipline to disclose, or in the beginning stages of a BRN investigation, please call us. While this is all very intimidating to you, this is what we do every single day. We advise, counsel and represent California Registered Nurses whose license and careers are endangered by BRN action, and we save both.
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