The Lento Law Firm Defends Massachusetts CNA Registration
Certified nursing assistants (CNAs), or nurse aides as Massachusetts also calls them, have abundant professional opportunities in Massachusetts. Great hospitals and other health facilities in Boston, Lowell, Cambridge, Springfield, Worcester, Brockton, and Massachusetts' other cities and towns can offer good income, supportive staff, and fair supervision. Massachusetts has some of the world's finest hospitals, including the largest Massachusetts General and other top-five hospitals, Brigham and Women's, UMass Memorial Medical Centre, Baystate Medical Centre, and Beth Israel Deaconess Medical Centre. Home health agencies like Kindred at Home, Suburban Home Health Care, and Jewish Family & Children's Services offer attractive alternatives to hospital-based CNA employment.
But to practice as a certified nursing assistant or nurse aide in Massachusetts, you must obtain and retain your Massachusetts Nurse Aide Registry in good standing. If you face license disciplinary charges alleging your personal or professional misconduct, and you don't handle those charges responsibly, you could lose your valuable Massachusetts CNA certification and employment. Retain the Lento Law Firm's premier Professional License Defense Team to defend your Massachusetts CNA registration against disciplinary charges. Our attorneys are available in Boston, Lowell, Cambridge, Springfield, Worcester, Brockton, or any other Massachusetts location. Call 888.535.3686 or chat with us now for skilled and experienced attorney defense against Massachusetts CNA disciplinary charges.
Massachusetts Nurse Aide Registry Certification
Massachusetts certifies nursing assistants or nurse aides through its state Department of Public Health and Bureau of Health Care Safety and Quality. Massachusetts General Law Section 72J authorizes the Department of Public Health to set up and maintain the Nurse Aide Registry. Section 72J also makes it mandatory that you obtain CNA registration before working as a nursing assistant in any Massachusetts facility: “A facility, other than a rest home, shall only hire or employ on a paid, unpaid, temporary or permanent basis, a nurse aide who is listed in said registry as having demonstrated competency as defined by department regulations.” Massachusetts administrative rules beginning at 105 CMR 156.000 establish the CNA training and competency evaluation requirements you must meet to get your CNA license. Don't expect to practice as a nurse aide or nursing assistant in a Massachusetts facility without a Nurse Aide Registry certification.
Massachusetts CNA Disciplinary Authority
The Massachusetts Department of Public Health has the authority and responsibility not only to register CNAs but also to regulate and discipline them. As a CNA, you work in a highly regulated and closely monitored professional environment. Massachusetts General Law Section 72J authorizes the Department of Public Health to investigate and discipline certified nursing assistants for abuse, neglect, mistreatment, or misappropriation. Section 72J expressly authorizes the Department to suspend a CNA's practice privileges. Section 72J further requires the Department to enter findings of discipline in the Nurse Aide Registry for employers and others to search and discover so that no CNA works on a suspended license. Section 72J requires any facility intending to hire a CNA to check the Nurse Aide Registry and hire only CNAs in good standing in that Registry. Treat disciplinary charges seriously. You could lose your CNA job and career by ignoring those charges and suffering discipline.
Massachusetts CNA Disciplinary Sanctions
Massachusetts Department of Public Health officials have broad discretion to impose various forms of CNA discipline in the event that those officials find you committed misconduct. Massachusetts General Law Section 72J mentions only the suspension of CNA registration. But a Massachusetts Department of Public Health administrative rule at 105 CMR 155.015 details the following available sanctions when the Department finds that a nurse aide “abused, neglected, or mistreated a patient or resident, or misappropriated patient or resident property”:
- Suspension. The Department may suspend the right of such individual to work as a nurse aide, home health aide, or homemaker for such period of time as the Department shall determine;
- Probation. The Department may impose a period of probation on the accused nurse aide, home health aide, or homemaker during which time such individual shall undergo additional training or counseling or such other measures as determined by the Department to be necessary to avoid further incidents by the accused. If, during the probationary period, such an individual is working in a facility or employed by a home health agency, homemaker agency, or hospice program, such facility or agency shall make reports to the Department as to the progress of the individual in fulfilling the requirements for the probation period;
- Warning Letter. The Department may issue a warning letter to the accused nurse aide, home health aide, or homemaker. The warning letter shall indicate that no other penalty will be imposed at the time, but should a subsequent allegation of patient or resident abuse, neglect, mistreatment, or misappropriation of patient or resident property be made against such individual, the initial incident will be raised at any hearing of the subsequent incident.
License suspension may sound temporary, but it could be indefinite. License suspension also means an immediate loss of your Massachusetts CNA employment. Appreciate your high stakes when facing Massachusetts CNA disciplinary charges. Let our attorneys help you advocate and negotiate for an outcome that preserves your CNA license and employment.
Grounds for Massachusetts CNA Discipline
Massachusetts Department of Public Health officials must have authorized grounds on which to discipline a CNA before imposing that discipline. Disciplinary officials don't just make up the standards. They are instead supposed to follow published rules and standards. Massachusetts General Law Section 72J refers to the grounds for CNA discipline as including (1) abuse, (2) neglect, (3) mistreatment, or (4) misappropriation of resident property or funds. A Massachusetts Department of Public Health administrative rule at 105 CMR 155.003 defines those four grounds for CNA discipline as follows. As you evaluate your disciplinary charges against these definitions., consider at the same time how our attorneys may be able to help you defend and defeat those charges.
Abuse as Grounds for Massachusetts CNA Discipline
Abuse is the first ground for discipline. Massachusetts Department of Public Health administrative rule 105 CMR 155.003 defines abuse as: “The willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain, or mental anguish, or assault and battery; provided, however, that verbal or mental abuse shall require a knowing and willful act directed at a specific patient or resident.” The administrative rule goes on to give these specific examples of abuse:
- the CNA made or caused physical contact with the patient or resident either through direct bodily contact or through the use of some object or substance, and the physical contact resulted in death, physical injury, pain, or psychological harm to the patient or resident, and the physical contact cannot be justified;
- the CNA knowingly and willfully used oral, written, or gestured language with the intent to injure, confine, intimidate, or punish the patient or resident; or
- the CNA used physical contact with a patient or resident that harms that patient or resident and which occurs for the purpose of retaliating against that patient or resident.
Abuse charges are obviously serious because they generally allege intentional, willful, deliberate, or even malicious acts. If you face abuse charges, our attorneys may be able to show that your actions fall within one of the several abuse exceptions contained within the same provision 105 CMR 155.003. Those exceptions include:
- the physical contact with the patient or resident occurs in the course of carrying out a prescribed form of care, treatment, or therapy, provided that the patient or resident has not refused such care, treatment, or therapy, and the contact and amount of force are reasonably necessary;
- the physical contact with the patient or resident occurs in the course of providing comfort or assistance to the patient or resident, and the contact is reasonably necessary;
- the physical contact with the patient or resident occurs in the course of attempting to restrain the behavior of the patient or resident in question, and the contact and amount of force are reasonably necessary; or
- the patient or resident, in accordance with his or her expressed or implied consent, is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with a religious method of healing in lieu of medical treatment.
Neglect as Grounds for Massachusetts CNA Discipline
Neglect is another disciplinary ground. Massachusetts Department of Public Health administrative rule 105 CMR 155.003 defines neglect as “failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.” The same rule requires these three elements for a finding of neglect:
- the CNA failed to provide appropriate care, treatment, or service to the patient or resident;
- the CNA's failure to provide the treatment, care, or service to the patient or resident is either intentional or the result of carelessness; and
- as a result of the failure to provide the treatment, care, or service, the CNA failed to maintain the health or safety of the patient or resident, as evidenced by harm to the patient or resident or a deterioration in the patient or resident's physical, mental or emotional condition.
If you face neglect charges, our attorneys may be able to help you show that you did not commit the neglect or that any neglect was due to exonerating or mitigating factors like your patient or resident overload, your supervisor's reasonable instructions, or a lack of support, supplies, and supervision, such that discipline is unnecessary and inappropriate. The same administrative rule 105 CMR 155.003 expressly offers these defenses to a neglect charge:
- the patient or resident, in accordance with his or her expressed or implied consent, was being furnished or relying on treatment by spiritual means through prayer alone in accordance with a religious method of healing in lieu of medical treatment; or
- the neglect was caused by factors beyond the CNA's control.
Mistreatment as Grounds for Massachusetts CNA Discipline
Mistreatment is another disciplinary ground. Massachusetts Department of Public Health administrative rule 105 CMR 155.003 defines mistreatment as “the use of medications, or treatments, or isolation, or physical or chemical restraints that harm or are likely to harm the patient or resident.” The same rule then gives these three elements as necessary for proof of a mistreatment violation:
- the CNA used some type of medication, treatment, isolation technique, or restraint on the patient or resident;
- the particular use of the medication, treatment, isolation technique, or restraint was either intentional or careless in nature, contrary to the patient or resident's expressed decision to refuse such treatment, or contrary to the patient's or resident's written care plan; and
- the particular use of the medication, treatment, isolation technique, or restraint resulted, or was likely to result, in harm to the patient or resident involved, including but not limited to physical injury, pain, or death, unreasonable restriction of the ability to move around, unreasonable restriction of the ability to communicate with others or psychological harm.
If you face mistreatment charges, our attorneys may be able to show that the Department's allegations and evidence do not satisfy all of the above elements. We may also be able to show that you have one of these defenses that administrative rule 105 CMR 155.003 expressly offers relative to a mistreatment charge:
- use of an isolation technique for the purpose of preventing a documented contagious disease from spreading to other persons if this technique is the least restrictive available method of preventing the spread of that disease and reasonable care is exercised with the use of that technique;
- use of a particular medication, isolation technique, or restraint in the course of carrying out a prescribed form of treatment or therapy, if such use has been authorized by a physician's order or, when applicable, by a court of competent jurisdiction in accordance with applicable law; or
- use of a particular medication, isolation technique, or restraint for the purpose of preventing a patient or resident from engaging in behavior that may injure him or her or injure another person if the particular use in question is the least restrictive available alternative preventing such harm and reasonable care is exercised in connection with that use.
Misappropriation as Grounds for Massachusetts CNA Discipline
Misappropriation is the final disciplinary ground that the Department of Public Health administrative rules expressly define. Massachusetts Department of Public Health administrative rule 105 CMR 155.003 defines misappropriation as “deliberate misplacement, exploitation, or wrongful temporary or permanent use of a patient's or resident's belongings or money without such patient's or resident's consent.” Examples would be if a CNA stole money from a resident's wallet or purse, jewelry from a resident's drawer or box, electronic devices or furniture from the residence, or funds from a resident's checking or savings account. Exploitation could also include patient or resident coercion, confusion, or duress to obtain loans or gifts of funds or property. If you face such charges, our attorneys may be able to show that you did not take any property, that others had access to the same property and were responsible for any theft, or that the complaining patient or resident is confused, demented, or mistaken, and an unreliable witness.
Other Grounds for Massachusetts CNA Discipline
Although Massachusetts Department of Public Health administrative rule 105 CMR 155.003 does not expressly define other violations, the following wrongful actions are commonly listed as offenses in other jurisdictions and may well also violate Massachusetts Board of Nursing and Department of Public Health requirements for CNA practice:
- fraud, misrepresentation, or misleading omissions in applying for or renewing CNA licensure, such as misrepresenting your training, work experience, and work record free of disqualifying convictions or discipline;
- falsely or deceptively advertising or holding oneself out as an LPN, RN, or other professional having authority to perform services beyond the scope of your CNA license;
- substance abuse or addiction, or mental or physical disability, impairing the CNA's ability to practice competently and safely;
- breaches of patient confidentiality;
- administering medications, making prescriptions, or otherwise practicing beyond the scope of your CNA license;
- incompetence outside of the customary practice of CNAs resulting in patient or resident harm or injury;
- practicing while having an infectious disease, resulting in the infection, disease, and harm of patients or residents;
- felony convictions or misdemeanor convictions involving moral turpitude or relating to CNA practice;
- illegal acquisition, possession, use, or distribution of controlled substances; and
- failure to cooperate with disciplinary officials in answering the complaint, disclosing documents and records, and authorizing access to electronic files, facilities, and employer representatives.
Our attorneys may be able to help you defend these other grounds for disciplinary charges. If, for instance, you suffer from a substance abuse issue or addiction, and that condition is the ground for your disciplinary charges, we may be able to help you qualify for the Substance Addiction Recovery Program the Massachusetts Department of Public Health offers to nurses. Nursing can challenge and stress practitioners who have unusual access to prescription medication and may face the temptation to self-medicate illegally. But don't accept an offer from disciplinary officials to enter the Substance Addiction Recovery Program without our attorneys' review of your consent agreement. If you inadvertently relinquish your CNA license, you will lose your CNA employment and may not be able to regain your license.
Massachusetts CNA Disciplinary Procedures
Your effective defense to Massachusetts CNA disciplinary charges may have just as much to do with how you invoke disciplinary procedures as the grounds on which officials charge you. Massachusetts Department of Public Health administrative rule 105 CMR 155.013 states the procedures that the Department's disciplinary officials should follow in your proceeding. Those procedures begin with detailed notice to you of the nature and basis for the charges. That notice comes within ten days of when the Department completes its investigation. So you may have already heard from the investigator and even given an interview and shared records before you receive notice of the charges. You must respond timely to the charges, or you lose your right to a hearing. You must request a hearing. The hearing officer will permit you to present witnesses and documentary evidence and cross-examine the other side's witnesses. If the hearing officer finds against you, the officer's decision will notify you of your right to appeal.
The Role of Administrative Law Defense Attorneys
Our attorneys can help you from the investigation stage forward. Don't wait to retain us until you have received formal notice of the charges. Let us help you identify and present exonerating and mitigating evidence to the investigator. Doing so may head off formal charges. If you do face formal charges, our attorneys can ensure that you provide a timely, accurate, and complete answer to those charges raising appropriate defenses. We can also conduct settlement negotiations and, if necessary, attend the hearing to present your evidence and cross-examine opposing witnesses. And if you've already lost your hearing, our attorneys may be able to help you with an appeal.
Nationwide Stakes of Massachusetts CNA Discipline
Keep in mind the stakes you face. Massachusetts recognizes CNA reciprocity. You can certify as a Massachusetts CNA through an endorsement process if you have CNA certification in another state, also offering reciprocity. The reverse is also true in that you can take your Massachusetts CNA certification into those other states for CNA endorsement, saving you from having to requalify. But, lose your Massachusetts CNA license to discipline, and you will lose reciprocity. In short, you may not be able to practice again in any other state if you lose to Massachusetts CNA disciplinary charges.
Premier Massachusetts CNA Defense
The Lento Law Firm's premier Professional License Defense Team is available in Boston, Lowell, Cambridge, Springfield, Worcester, Brockton, and any other Massachusetts location to defend your CNA certification against personal or professional misconduct charges. Hundreds of professionals nationwide have trusted the Lento Law Firm for the best possible outcome to disciplinary charges. Call 888.535.3686 or chat with us now.