Petitioning the Board of Nursing for a Reduction in Probation Terms
1.What is the process of petitioning the Board of Nursing for a reduction in probation terms?
2.How do you go about petitioning the Board for a reduction in supervision while on probation?
3.Is there a standard for reduction in supervision on probation?
4.Can a RN request their probation file from the Board under the Freedom of Information Act?
Short Answer: Once the petition is filed with the board, a hearing will be held where the petitioner carries the burden of proof. The petitioner and the Attorney General will be able to argue to the Board and provide evidence in support or against the petition to modify. In determining whether to modify, the Board will look at various factors in determining whether the petitioner should be considered rehabilitated and the probation should be terminated or modified. Previous decisions by the Board suggest that in petitioning to modify probation, the petitioner can ask for what aspect of their probation they want modified and the Board will then determine whether to grant it, as opposed to a standard for reduction in probation.
Once a Petition for reinstatement or modification of penalty has been filed with the board, the following procedures apply:
A registered nurse who has been placed on probation may petition the board for reinstatement or modification of penalty, including reduction or termination of probation, after a period not less than the minimum periods has elapsed from the effective date of the decision ordering that disciplinary action. The minimum period for probation is at least two years for early termination of a probation period of three years or more. To modify a condition or terminate probation of less than three years, one year must have passed.
Once the petition for modification of probation or early termination of probation is filed, the Board must notify the Attorney General of the filing of the petition. A hearing will be held where both the petitioner and the Attorney General is given an opportunity to present both oral and documentary evidence and argument to the board, with the petitioner at all times having the burden of proof. The board will hear the petition and the administrative law judge will prepare a written decision. The board may then grant or deny the petition, or may impose any terms and conditions that it reasonably deems appropriate as a condition of reinstatement or reduction of penalty. The board will not consider a petition brought while the petitioner is under sentence for any criminal offense, including any period in which the petitioner is on court-imposed probation or parole.
Considering rehabilitation in modifying a petitioner’s probation, the board looks at the following criteria:
The board looks to certain criteria in determining whether to modify a petitioner’s probation. The board evaluates the rehabilitation of the petitioner by looking at (1) the nature and severity of the acts, (2) total criminal record, (3) the time that has elapsed since commission of the acts, (4) whether the licensee has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the licensee, (5) if applicable, evidence of expungement proceedings, and (6) evidence, if any, of rehabilitation submitted by the licensee.
According to the California Board of Registered Nursing’s Recommended Guidelines for Conditions of Probations, the criteria that should be considered in determining rehabilitation for abuse of alcohol and other drug related offenses include, but are not limited to (1) successful completion of drug/alcohol treatment program (minimum of 6 months duration), and (2) employment in nursing for a minimum of six months with documentation from the employer that the employer was aware of the previous abuse problems.
Freedom of Information Act
The Freedom of Information Act does not require the disclosure of records that are “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”
Through the Board’s website, anyone can conduct a License Search for Registered Nurses. Under this search, every disciplinary action and public record that is available relating to the individual nurse, will be found here.
 Bus. & Prof. Code, § 2760.1(h)—The board may use its discretion and deny request without hearing or argument any petition that is filed pursuant to this section within a period of two years from the effective date of a prior decision following a hearing under this section. Except in cases where the petitioner has been disciplined pursuant to Section 822.
 Cal. Code Regs. tit. 16, § 1445. In the Matter of the Petition for Termination of Probation/Reduction of Penalty of: Lucrecia R. Cobar (OAH No. 2008050671) The Board citing to the criteria to be used in evaluating rehabilitation in section 1445, found that the petitioner demonstrated sufficient rehabilitation to warrant modification of her probation.http://rn.ca.gov/public/rn410054.pdf see http://rn.ca.gov/public/rn482839.pdf