State nursing boards closely examine the qualifications of any nurse whose background reflects one or more criminal convictions. Crime and healthcare are a volatile mix. Nurses work so closely with such a vulnerable population and hold such trust and access that licensing officials must ensure their good moral character or bad things harming patients and embarrassing the nursing profession may happen. If you face disciplinary charges alleging that you failed to disclose your criminal conviction in the course of your license application or renewal process or as reporting rules otherwise require, then retain the Lento Law Firm's premier Professional License Defense Team for your best licensing outcome. Call 888.535.3686 or complete this contact form now to protect your nursing license.
State Licensing Board Patient Protection Obligation
State legislatures regulate the nursing profession through state nursing practice acts or other nursing laws. Those laws establish state nursing boards or similar agencies to issue nursing licenses to candidates who possess the education, examination, and good moral character and fitness for the safe and effective practice of nursing. State nursing practice acts and laws generally define the state nursing board's mission as protecting patients and ensuring public trust in the nursing profession. Virginia Code Title 54.1, Chapter 30, Article I, is an example, creating the Virginia Board of Nursing, vesting the Board with a long list of protective powers, and placing it under the Virginia Department of Health Professions having the mission to “ensure safe and competent patient care” by licensed healthcare professionals. Your state nursing board will hold a similar mission and obligation. A nurse must respect that mission in the course of defending a disciplinary charge for failure to disclose a criminal conviction. We can help you do so.
State Board Interest in Candidate Criminal History
To be perfectly clear, the patient protection obligation of your state nursing board is why it will take a strong interest in the criminal history of any candidate for licensure or license renewal. State legislatures define crimes to discourage, punish, and prevent harmful and endangering conduct that falls outside the bounds of acceptable relationships in a healthy society. One crime often leads to another. Recidivism is a strong pattern. A small percentage of the population commits a large percentage of crime. That's why state nursing boards examine the criminal history of licensure candidates. Patients, the public, and the boards know that a nurse with a criminal history is more likely to engage in harmful or endangering crime than a nurse without a criminal history. Our attorneys know how to respect that valid interest while putting forward your best possible defense to a charge involving the alleged failure to disclose a criminal conviction.
State Board Authority on Criminal Convictions
State legislatures regulate the nursing profession through state nursing practice acts, other nursing laws, and laws generally applicable to the healthcare profession or all professions. Those laws further authorize state nursing boards or other healthcare licensing agencies to promulgate administrative rules carrying out their regulatory duties. You may find criminal conviction prohibitions in any of those laws, rules, or regulations. Virginia's Nursing Practice Act, already cited above, is again an example. The Act's Section 54.1-3007 expressly authorizes the Virginia Board of Nursing to deny, suspend, or revoke a license for “conviction of any felony or any misdemeanor involving moral turpitude.” Your state nursing board will have similar authority. Don't doubt that authority, and don't ignore or minimize disciplinary investigations or charges alleging your failure to disclose a criminal conviction. Instead, let us help you respond to the investigation and defend the charges.
State Board Discipline for Credential Fraud
State nursing boards also generally have the authority to discipline licensees for credential fraud. See, for example, the Virginia Nursing Practice Act Section 54.1-3007 cited above, authorizing license discipline for “fraud or deceit in procuring or attempting to procure a license, certificate, or registration.” Credential fraud involves misrepresenting your qualifications for licensure. While credential fraud commonly involves misstatements as to education, examination, or licensure in other states, credential fraud may also include failing to disclose or otherwise misrepresenting your criminal convictions and criminal history. If your state nursing board charges you with discipline for failing to disclose your criminal conviction, it may characterize that disciplinary charge as credential fraud. Let us help you defend credential fraud charges.
Categories of Disqualifying Criminal Convictions
Not every conviction will result in a nurse's license disqualification. State nursing laws, rules, and regulations differ on how they define the disqualifying criminal convictions. The Virginia Nursing Practice Act's example stated just above is a common example, disqualifying any conviction involving moral turpitude. Other states follow other common or uncommon patterns. Section 43-26-11 of Georgia's Nurse Practice Act, for example, disqualifies not just for crimes of moral turpitude but also for any felony and any “crime violating a federal or state law relating to controlled substances or dangerous drugs.” Felony convictions, conviction for crimes involving moral turpitude, and convictions for drug crimes are the common broad categories that state nursing practice acts generally use. We can help you discern whether your criminal conviction is potentially disqualifying, whether in answer to disciplinary charges or if you face a question over whether, how, and when to disclose the conviction.
State Nursing Board Discretion to Disqualify
The above categories, common in state nursing practice acts, imply at least some state nursing board discretion to determine which crimes disqualify for licensing. Federal and state laws define hundreds of crimes, especially considering the variations in definitions among the fifty states. Some crimes may be obviously disqualifying, falling squarely within the stated category. A homicide crime with a long prison sentence, for instance, would clearly qualify as a felony for disqualification under that category. However, other crimes may fall right on the line between a felony and a misdemeanor, such as what some states call a gross misdemeanor. The same is true with the moral turpitude category. Criminal fraud is very likely a crime of moral turpitude, clearly involving deliberate dishonesty. But is disorderly conduct or failure to file a tax return a moral turpitude crime? State nursing boards may have to, and may get to, pick and choose among those borderline crimes. If you face disciplinary charges for failure to disclose a criminal conviction, let us help you advocate that your criminal conviction does not fall within your state nursing practice act's disqualifying crimes.
Lists of Disqualifying Convictions
Indiana's Nurse Practice Act takes another approach, not typical of the above practice acts. Indiana Code Section 25-1-1.1-6 requires the Indiana Board of Nursing to list specific disqualifying convictions. Indeed, the Indiana statute expressly prohibits the Indiana Board of Nursing from using “nonspecific terms, such as moral turpitude or good character, as a licensing or certification requirement.” The Indiana legislature's unusual approach may be a response to the due concern over the uneven interpretation and application of the general categories in unlawfully racially discriminatory patterns or other unfair patterns. The Indiana Board of Nursing thus defines the disqualifying crimes in a long administrative rule, codified at 848 IAC 8-1-4, listing the convictions with their corresponding Indiana criminal statutes.
Factors Influencing Disqualification
As just suggested, various factors may influence a state nursing board to include or exclude a certain criminal conviction as a disqualifying crime. Some of those factors are reasonable and legitimate, while other factors may be arbitrary, irrational, or even unlawfully discriminatory. We can help you identify and advocate the factors for your best outcome to disciplinary charges alleging your failure to disclose a disqualifying crime. Here are some of the factors that your state nursing board may consider, divided into legitimate and illegitimate categories:
Legitimate Factors Influencing Criminal History Disqualification
- an element of violence in the crime's definition;
- the length of the prison sentence associated with the crime;
- the amount of the maximum fine associated with the crime;
- whether the public regards the crime as reprehensible;
- whether the crime has an element of sexual misconduct;
- whether the crime is physically injurious or personally harmful;
- whether the crime involves deliberate dishonesty;
- whether the crime involves an element of recidivism;
- whether the candidate has multiple convictions;
- how long ago the convictions occurred;
- whether the candidate completed the sentence;
- how long ago the candidate completed the sentence;
- the candidate's work and other record since the conviction; and
- whether the crime involved others in the wrong (e.g., conspiracy).
Illegitimate Factors Influencing Criminal History Disqualification
- the candidate's race, ethnicity, or national origin;
- the candidate's religion;
- the candidate's physical appearance and demeanor;
- the candidate's dress and grooming;
- the candidate's residence and citizenship; and
- the candidate's socioeconomic status.
Criminal Conviction Versus Criminal Arrest
Keep in mind the sharp distinctions between and among criminal arrest, criminal charge, and criminal conviction. A criminal arrest involves a law enforcement officer detaining the suspect against the suspect's will, typically with transport to the police station for booking and potentially with a brief stay in a holding cell before release. A criminal charge involves a prosecutor following up the arrest with the filing of a criminal complaint in court, accusing the defendant of a specific crime or crimes. A criminal conviction involves a court judgment of guilt, whether on a plea of guilty, a plea of no contest, or a verdict after a bench or jury trial.
State nursing practice acts and state nursing boards generally hold candidates responsible only for criminal convictions, not criminal arrests or criminal charges. The Indiana Nurse Practice Act Section 25-1-1.1-6 cited above is an example, expressly prohibiting the Indiana Board of Nursing from considering an arrest short of conviction. Anyone, guilty or innocent, may face an arrest. Not all arrests result in charges, and not all charges result in conviction. Arrests may also occur in unlawfully discriminatory patterns. Those and other reasons generally compel state nursing boards to ignore arrests. However, a pattern of arrests may have some bearing on a candidate's good character or fitness. Watch carefully for disclosure requirements involving arrest or charge, not just conviction. Let us help you make the correct distinction, and let us help you defend any disciplinary charge that makes the wrong distinction.
Examples of Disqualifying Crimes
Seeing some examples of crimes that state nursing boards may classify as disqualifying may help you evaluate your situation. Let us examine your criminal history, compare it to your state's specific definition of disqualifying crime, and advise you as to how to proceed. The Indiana Board of Nursing's long list of specific disqualifying crimes, codified at 848 IAC 8-1-4, gives a reliable indication of the common and uncommon disqualifying crimes. Consider the following examples, among many other potentially disqualifying crimes, drawn from the Indiana list.
Disqualifying Crimes of Violence
Potentially disqualifying crimes involving violence include battery, aggravated battery, attempted murder, murder, involuntary or voluntary manslaughter, kidnapping, operating a vehicle causing death or injury, rape, robbery, rioting, strangulation, terrorism, and unlawful firearm or explosives possession.
Disqualifying Crimes Involving Controlled Substances
Potentially disqualifying crimes involving controlled substances include drug manufacturing, drug conversion or theft, drug possession, possession of drug paraphernalia, drug dealing or distribution, and intoxicated or impaired driving under the influence of illicit drugs.
Disqualifying Crimes Involving Sexual Acts
Potentially disqualifying crimes involving sexual acts include child molestation, child exploitation, child seduction, child sexual trafficking, criminal deviate conduct, incest, solicitation of a sexual act, prostitution, rape, statutory rape, sexual misconduct with a minor, obscene harassment, child pornography possession or distribution, voyeurism, and bestiality.
Disqualifying Crimes Involving Dishonesty or Moral Turpitude
Potentially disqualifying crimes involving moral turpitude or dishonesty include criminal fraud, Medicare fraud, welfare fraud, money laundering, false reports, presentation or possession of false identification, impersonation, retail fraud or shoplifting, abuse of a corpse, arson, theft, burglary, carjacking, conversion, counterfeiting, and animal cruelty.
Criminal Conviction Disclosure Requirements
To carry out their patient protection mission and other statutory obligations and regulatory commitments relative to criminal convictions, state nursing boards require disclosure of criminal convictions under three different conditions: (1) initial application for licensure; (2) application for license renewal; and (3) time of conviction. Consider the following discussion of each of those three disclosure requirements.
Disclosure Requirements on Initial Application
The first instance in which you may need to disclose a criminal conviction involves your initial application for licensure. Application forms and processes vary from state to state. A typical process requires the candidate to access and accurately and truthfully complete the state nursing board's application form. States may include a disclosure of criminal convictions requirement directly on the application form. States also routinely require applicants to authorize a criminal history check, including a fingerprint kit to facilitate the check. If your application form requires you to disclose criminal convictions, ensure that your disclosure is accurate and complete, consistent with the criminal record that state nursing board officials will obtain and compare to your disclosure. Otherwise, you may face disciplinary charges for credential fraud.
Disclosure Requirements on License Renewal
The second instance in which you may need to disclose a criminal conviction is on your license renewal. States typically require biennial nursing license renewal. Every two years, you will need to complete your state nursing board's license renewal process. That process typically requires you to complete the renewal form. Michigan's license renewal process is an example. The renewal form is likely to include an inquiry as to whether you have suffered criminal convictions since obtaining your license or since your last renewal. Your state nursing board may or may not conduct another criminal history check at renewal. It may rely on your disclosure on your renewal application form rather than completing another background check. Be sure to accurately disclose convictions on renewal forms that require you to do so. Beware of credential fraud disciplinary charges for failing to disclose a criminal conviction.
Disclosure Requirements on Criminal Charges and Conviction
The third instance in which you may need to disclose a criminal conviction is when the conviction occurs, in between obtaining your license and your next license renewal. Some states impose conviction reporting requirements at the time of conviction, in addition to the disclosure requirements on application and renewal forms. Michigan is an example. Michigan Public Health Code Section 333.16222(3) requires nurses and other licensees to notify the state's Department of Licensing and Regulatory Affairs of any criminal conviction within thirty days after the conviction, using the state's notification form. Failing to do so can result in administrative action under Public Health Code Sections 16221 and 16226. Let us help you determine whether you must disclose your conviction when it occurs or only later on a renewal application. And let us help you defend disciplinary charges for failure to disclose.
Discovery of Criminal Convictions
Do not attempt to conceal your criminal convictions. Your state nursing board may well discover your concealment, resulting in disciplinary charges for credential fraud based on your failure to disclose. State nursing boards routinely perform criminal history checks at the initial license application to ensure that candidate disclosures are accurate. State nursing boards may also search criminal records at your license renewal. But prosecutors may notify state licensing boards on the criminal conviction of a licensed professional. State nursing boards may routinely cross-check criminal conviction databases against their licensee database. State nursing board officials may also watch media reports for notice of the conviction of a licensee. Don't hide convictions. Let us help you determine your disclosure requirements and help you defend disciplinary charges alleging failure to disclose.
Criminal Conviction Disclosure Strategies
You can see from the above discussion that disclosure questions may arise where the obligation to disclose is uncertain. Generally, the better rule is to disclose whenever there is doubt over whether rules require disclosure. That strategy makes sense, considering the possibility of disciplinary charges for failure to disclose. A better strategy may be to disclose, disclose, disclose. However, unnecessary disclosure can trigger unnecessary investigation, embarrassment, and expense. Nurses don't generally benefit when patients, employers, colleagues, and others learn of their criminal convictions. You have an understandable incentive not to disclose your criminal conviction. We can help you decide your better course.
Protective Procedures Against Discipline
Your state's nursing practice act will have protective procedures that we can invoke to challenge disciplinary charges alleging your failure to disclose a criminal conviction. Your state nursing board must offer those procedures to comply with your constitutional due process rights. Your state nursing board must generally give you fair notice of the details of your alleged misconduct and then a fair hearing before an impartial official or panel. We can help you evaluate the notice of disciplinary charges, gather your defense evidence, invoke your formal hearing, and present your best defense at the hearing while challenging the board's allegations. We may also be able to arrange an early conciliation conference at which to informally present your defense and your best case in mitigation of any sanction. Just because you face a disciplinary charge does not mean you must suffer a disciplinary sanction.
The Qualifications of License Defense Counsel
Your state nursing board disciplinary charges involve an administrative licensing proceeding, not a criminal or civil court proceeding. Do not retain unqualified local criminal defense counsel or an unqualified local civil litigation attorney for your administrative license proceeding. Our attorneys focus their practice on administrative license defense. We know the administrative law, rules, and procedures. We also have the national reputation for license defense and have relationships with state licensing officials. Put our superior qualifications to work for you for your best disciplinary outcome.
Premier License Defense Attorneys Available
If you face state nursing board disciplinary charges alleging your failure to disclose a conviction, retain the Lento Law Firm's premier Professional License Defense Team for the representation you need. We help hundreds of nurses and other professionals nationwide defend all kinds of state licensing board disciplinary charges. Call 888.535.3686 or complete this contact form now for skilled and experienced attorney representation.
