Nursing License Defense Attorney Available in New York

New York nurses facing license issues need information about the state's disciplinary agency and processes. Don't go into something as important as a license proceeding without knowing the steps involved. Not knowing the steps and their consequences is a bad approach. Take the right steps in your New York nurse's license proceeding. Preserve your valuable and rewarding right to practice nursing in New York. Professional license defense attorney Joseph D. Lento wants you to get the best information and have the best opportunity to continue your career in nursing.

Why You Need a New York Nursing License

You need a license to practice nursing in New York because the state's Nurse Practice Act requires it. The Nurse Practice Act is what got you licensed as a New York nurse in the first place. Section 6905 of the Act states the requirements for a registered professional nurse (RPN) license in New York, while Section 6906 states the licensed practical nurse (LPN) license requirements. If you have a New York nursing license, you already met these requirements. The Nurse Practice Act also requires that you maintain your nursing license. Section 6903 of the Act states that only persons licensed under the Act may practice nursing in New York. Section 6903 also states that only licensed persons may use the nurse title: “No person shall use the title ‘nurse' ... unless the person is licensed or otherwise authorized under this article.” You need your license to practice nursing in New York.

You Can Lose Your New York Nursing License

A New York nursing license isn't a permanent pass to practice. What the State of New York gives, the State of New York can take away. The discipline grounds that New York State Board of Nursing officials investigate, and the disciplinary procedures they follow, have their source in General Provisions for all professions in the State of New York. Section 6900 of New York's Nurse Practice Act incorporates the General Provisions. Section 6502 of those General Provisions authorizes the Board of Regents over New York professions to revoke a professional license: “A license shall be valid during the life of the holder unless revoked, annulled or suspended by the board of regents….” Section 6503 of the General Provisions further “subjects the licensee to the procedures and penalties for professional misconduct” that the chapter defines. The good news is that your New York nursing license is good for life. The bad news is that the Board of Regents can still revoke it. Respect this governing law. It can help you appreciate the following discipline grounds and procedures.

Grounds to Revoke a New York Nursing License

New York's Nurse Practice Act not only states the requirements for licensure as a nurse in New York and makes the license subject to revocation. The Nurse Practice Act also incorporates the grounds for suspending or revoking your nursing license. These forms of professional misconduct are the things that nurses must do or not do if they wish to maintain their New York nursing license. Sections 6509, 6509-a, 6509-b, and 6509-c of the General Provisions define each of the following as professional misconductsubjecting the license holder to penalties:

obtaining the license fraudulently or practicing the profession fraudulently
practicing the profession beyond its authorized scope
practicing with gross incompetence, with gross negligence on a particular occasion, or with negligence or incompetence on more than one occasion
practicing the profession while the ability to practice is impaired by alcohol, drugs, physical disability, or mental disability
being habitually drunk, dependent on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other similar drugs
being convicted of a crime under New York State or federal law
committing professional misconduct in another state that would have been professional misconduct in New York State
refusing to provide professional service to a person because of race, creed, color, or national origin
permitting, aiding, or abetting an unlicensed person to do things requiring a license
practicing the profession on a suspended license
failing to notify the department of any change of name or mailing address
committing other unprofessional conduct as the Board of Regents defines
certain dividing, refunding, splitting, or transferring professional fees
being in arrears on child support obligations under a family court order

Preliminary Procedures for a New York Nursing License

New York's Nurse Practice Act also incorporates the procedures that the State Board of Nursing will follow when pursuing license discipline. Section 6510(1) of the General Provisions begins with preliminary procedures. Section 6510(1) makes clear that the charges and reports that the preliminary procedures produce are ordinarily public. A license holder must claim an exemption from disclosure to keep the records confidential from the public. Addressing an investigation early with the help of a skilled professional license defense attorney may forestall damaging public disclosures. Under Section 6510(1), these preliminary procedures are how your licensing proceeding begins:

Complaint. Any person, whether a patient, patient's family member, employer, or colleague, may complain to the department of professional misconduct. The complaint causes the department to open a new discipline file.
Investigation. The department next investigates the complaint. The investigator's duty is to gather information relating to what the complaint alleges.
Evaluation. The department then refers the investigation file to a designated professional conduct officer. The officer consults with a State Board of Nursing member to determine whether substantial evidence of professional misconduct exists. If the complaint alleges a lack of professional expertise, then the officer consults with two State Board of Nursing members who have the required expertise. If the officer determines that no misconduct exists or that the matter warrants only a warning, then the department closes the file. Otherwise, the matter proceeds to the next preliminary step.
Charges. The department next prepares the misconduct charges. The charges must state the alleged misconduct and the material facts proving misconduct. The charges need not disclose the evidence proving the facts. Thus, the license holder may not know who will testify but will know what misconduct the department intends to prove.
Service. The department next serves the license holder with the written charges. Service is often in person but may be by certified mail. Don't attempt to avoid service. You should know the charges against you. The department may, if necessary, use alternative forms of service that may not provide you with reliable notice. The service includes a notice of when the department will hold its hearing on the charges. The hearing will be at least twenty days after service, giving the license holder just enough time to retain a professional license defense attorney and to prepare for the hearing. The license holder must act quickly, though, if that preparation is to be effective.

Expedited Procedures for a New York Nursing License

New York law allows the State Board of Nursing to resolve some discipline matters using expedited procedures. Expedited procedures are for minor or technical violations of the professional misconduct rules. Under Section 6510(2) of the General Provisions, a minor or technical matter involves “isolated instances of violations concerning professional advertising or record keeping, and other isolated violations which do not directly affect or impair the public health, welfare or safety.” The State Board of Nursing may resolve a minor or technical violation with an administrative warning. An administrative warning is confidential. If the license holder repeats the misconduct, though, the Board may reopen the matter.

Warning with Penalty. If the State Board of Nursing determines that a warning is not enough for a minor or technical violation, then under Section 6510(2) of the General Provisions, the Board may add a censure, reprimand, or fine up to $500 for each violation. If the Board determines to proceed with one or more of those penalties, the Board must give the license holder at least fifteen days to prepare for a hearing on the penalty. The license holder may bring an attorney to the hearing to make a statement in explanation or mitigation, opposing the penalty.

Adversary Hearings for a New York Nursing License

Discipline matters that do not resolve by dismissal or a warning proceed to an adversary hearing. New York's procedures for an adversary hearing provide substantial protections to the accused license holder. An adversary hearing is your best opportunity to retain a skilled and experienced professional license defense attorney to aggressively and effectively defend you. Under Section 6510(3) of the General Provisions, the State Board of Nursing must:

provide written notice of the hearing time, date, and place
permit the license holder to retain an attorney to attend the hearing
permit the license holder and attorney to present witnesses and evidence against the misconduct charges
grant subpoenas to compel the attendance of reluctant witnesses
permit the license holder's attorney to cross-examine the department's witnesses
prove the charges by a preponderance of the evidence

Hearing Panel. The hearing panel deciding a New York nurse's misconduct charges should provide a reasonably qualified, balanced, and independent evaluation of the evidence. New York law recognizes how much a nurse has at stake in a licensing proceeding. The panel, ordinarily composed of three members, must include at least two nurses who are on the State Board of Nursing. The third panel member must be a public representative who is on the State Board of Nursing or another professional board. The department also designates a non-voting administrative attorney officer to rule on motions and objections and otherwise conduct the hearing. The hearing panel writes a report that must include fact-findings, a decision on each charge, and a recommended penalty if the findings include misconduct.

Committee Review of New York Nursing Discipline

New York law provides for further review of nursing discipline decisions, adding to the protections. Under Section 6510(4) of the General Provisions, the New York Board of Regents for the professions appoints a Regents Review Committee to review the hearing panel decision and recommendation. The Committee reviews both the hearing panel report and the hearing transcript. Significantly, the license holder and the license holder's attorney may appear at the Regents Review Committee meeting, presumably to address the hearing panel decision. The Committee then prepares a report to the full Board of Regents.

Board of Regents Review of New York Nursing Discipline

Remarkably, New York law provides for yet another layer of review of nursing discipline decisions. Under Section 6510(4) of the General Provisions, the Board of Regents for the professions reviews the hearing panel recommendation, the Regents Review Committee report, and the hearing transcript. The Board of Regents then decides each misconduct charge and penalty. If the hearing panel had absolved the license holder of misconduct, but the Board of Regents disagrees, then the Board must remand the matter to a new hearing panel rather than impose its own finding of misconduct. The Board of Regents' decision is an order. If the decision is to revoke, annul, or suspend the license, then the holder must surrender it promptly or attest to its loss or misplacement.

Court Review of New York Nursing Discipline

New York law also allows for court review of nursing license discipline. Section 6510(5) of the General Provisions provides that the appellate division of the third judicial department may review the discipline decision. The review takes place under Article 78 of New York's Civil Practice Rules. Those rules require the affected nurse to petition the court for an order reversing the Board of Regents decision. Section 7803 of New York's Civil Practice Rules limit court review of the Board of Regents decision to these errors:

whether the body or officer failed to perform a duty enjoined upon it by law
whether the body or officer proceeded without or in excess of jurisdiction
whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or an abuse of discretion including as to the measure or mode of penalty or discipline
whether the determination is, on the entire record, unsupported by substantial evidence

While court review is another chance to avoid discipline, court review requires skilled and experienced professional license defense representation. The errors a license holder must prove require close examination of the transcript and evidentiary record. Court review also requires legal research and briefing. Do not retain a general practitioner attorney for these technical, administrative skills. Instead, retain professional license defense attorney Joseph D. Lento for his substantial skill and experience in these matters.

Common Causes for New York License Proceedings

The above analysis shows that in New York, you have substantial procedures on which to defend a license proceeding. Nursing license proceedings in New York do, though, often result in discipline. The discipline records show the kinds of misconduct that are most likely to result in discipline. For example, the most recent New York professional discipline records show nurses disciplined for the following misconduct:

leaving a restrained patient alone and agitating the patient
changing an intravenous drip infusion bag without a valid physician's order
failing to maintain records accurately reflecting patient treatment
withdrawing controlled substances without documentation
failing to perform a prescribed treatment on a patient
falsifying a medical record to reflect that treatment had been performed
administering controlled substances without a physician's order
failing to accurately document the actual dosage of controlled substances
conviction for conspiracy to defraud relating to healthcare kickbacks
failing to document the waste of narcotics
convictions for driving while intoxicated
conviction for forgery
failing to record assessment before administering controlled substances
stealing pain medication
pre-documenting the administration of medication
documenting assessment on information from other than the patient
conviction for possession of a controlled substance
administering an incorrect dose of a controlled substance
failing to provide ordered treatments
mistakenly treating an open wound with trichloroacetic acid
falsely stating no discipline on a renewal application
failing to document a patient's fall and failing to notify a supervisor

Reporting of New York Nursing Discipline

The discipline of nurses ordinarily gets reported into a national database. But that's not the case for New York licensing decisions. The National Council of State Boards of Nursing keeps the national licensing database Nursys.com. Employers, licensing boards, and others interested in a nurse's license record can search the database. The database includes license data from thirty-eight jurisdictions participating in the Nurse Licensure Compact. New York is not among those jurisdictions. New Jersey recently began meeting Compact requirements, but New York does not currently participate. New York, though, does publicly report discipline for all professionals. A review of those records will disclose nurses whom New York's Board of Regents for the professions has disciplined. New York nursing license discipline is thus a public record, even if not in the searchable national database.

Responding to New York Nursing License Issues

You are not helpless in the face of licensing issues in New York. You should retain a skilled and experienced professional license defense attorney as soon as you learn of a license proceeding. Your attorney will guide you through the administrative procedures of your licensing matter. Be sure that you are taking these steps to reduce the likelihood and impact of a New York nursing complaint:

Alert your employer if you believe a patient is about to complain to licensing authorities. Your employer may intervene to address the patient's concerns. Your employer has its own regulatory and licensing concerns. In the best case, you and your attorney may coordinate your defense with your employer's representation of its own interests in the matter.
Preserve all evidence relating in any way to a potential complaint. Do not alter or destroy records. Do not conceal, delete, or discard anything that could be evidence in the matter. The cover-up can be worse than the complained-of offense. Obstructing the disciplinary proceeding is its own grounds for discipline.
Respond accurately, truthfully, and comprehensively to any official or employer inquiry with your retained attorney's assistance. Do not give any statement or interview in which your answers are incomplete, uninformed, careless, or offhand. Evasive or contradictory answers can undermine your case.
Be clear and cautious when dealing with disciplinary officials. Disciplinary proceedings in New York are adversarial in nature. Disciplinary officials are your prosecutors and decision-makers, not your advisors or friends, even though they may offer advice and act cordially as if they represent you. Rely on your retained attorney's advice, not on disciplinary officials.

Alternatives to New York License Proceedings

New York, like other states, offers a voluntary Professional Assistance Program (PAP) for nurses and other professionals with substance abuse problems. New York's Professional Assistance Program is only available to professionals whose substance-abuse-related misconduct has not harmed patients or the public. It may also require a diagnosed substance abuse disorder. But if you qualify, your participation in the program may prevent license discipline. Criteria for program admission include:

abstinence from mood-altering substances, including alcohol
temporary, voluntary surrender of the professional license
participation in treatment at an approved agency
monitoring for at least two years after license reinstatement

New York's State Nurses Association also has a program for Statewide Peer Assistance for Nurses (SPAN). This professional-association program supports access to substance-abuse treatment programs and provides other recovery support for nurses. The program's goal is to preserve the nurse's license. Your professional license defense attorney may be able to use your participation in these voluntary programs to forestall formal adversarial license proceedings and to preserve your nursing license and employment. You may need to participate in remedial education and training, accept additional supervision, restrict your nursing practice, or take other nursing assignments. But alternatives to discipline do exist in many cases. Consult your professional license defense attorney for these alternatives. Retain professional license defense attorney Joseph D. Lento to help you preserve your nursing license, whether through disciplinary proceedings or outside of those proceedings.