Nurses often work in hospitals and urgent care environments notorious for communicable disease. That environment is understandable, given that is where patients go for necessary care when sick with disease. Because hospitals and other urgent care facilities can have a high prevalence of communicable diseases, state nursing board standards typically require the reporting and other control of those diseases. Your failure to report a communicable disease outbreak can result in disciplinary charges threatening your nursing license. Let the Lento Law Firm's premier Professional License Defense Team help you defend communicable disease disciplinary charges to protect your license and employment. Call 888.535.3686 or complete this contact form now for our skilled and effective attorney representation.
The Significance of Mandatory Disease Reporting
Mandatory reporting of communicable diseases is a key tool in the control of communicable diseases. The Centers for Disease Control summarizes the history of and public health grounds for mandatory communicable disease reporting. Mandatory disease reporting in the U.S. began in the late 1800s but accelerated in the early 1900s with polio and influenza epidemics. By 1925, all states were reporting communicable disease statistics to the CDC based on state reporting requirements. Today, states regularly report statistics to the CDC on dozens of different communicable diseases to aid in national and state disease control efforts. Mandatory disease reporting has a long history and substantial public health commitment behind it. Take your reporting duties seriously. Let us help you defend any disciplinary charges alleging your failure to do so.
The Regulation of Mandatory Disease Reporting
Regulation of mandatory disease reporting involves a patchwork of state laws and administrative agency rules and regulations. As a licensed nurse, your obligation to report a communicable disease may depend on state statutes regarding disease reporting, state statutes regarding nursing standards, state nursing board rules requiring nurse reporting, or the rules of another state public health agency requiring reporting. Communicable disease reporting in Michigan is an example. Section 333.5111(1) of the Michigan Public Health Code states the basic reporting requirement that physicians, laboratories, schools, camps, and childcare centers must report communicable diseases to local public health authorities, while nurses and other healthcare workers may also report. Michigan Administrative Code R 325.173 further details the Michigan Department of Health & Human Services reporting rules carrying out the statutory mandate. Your state may have a similar or different patchwork of statutes, licensing boards, or public health department rules. Let us help you confirm your reporting requirements to help you defend and defeat disciplinary charges.
State Nursing Disease Reporting Statutes and Rules
Some state nursing practice acts or state nursing board rules expressly state the licensed nurse's obligations relative to communicable diseases. In those cases, your obligations to report should be relatively clear. The Missouri Nurse Practice Act is an example. The Act's Section 335.066 states the grounds on which the Missouri Board of Nursing may discipline a nurse. One of those grounds involves “failure or refusal to properly guard against contagious, infectious, or communicable disease or the spread thereof” including “failure to report” an “unsanitary condition” in “any health care facility....” Reports must go to the Board, in writing, within thirty days after discovery of the reportable condition. While this rule is not crystal clear on a nurse's duty to report certain communicable diseases to public health officials, disciplinary officials could arguably construe such a duty from the statute's broad language. Let us help you determine or confirm your state nursing board's duties to report communicable diseases in advance of or response to disciplinary charges alleging a failure to report.
Nursing Standards and Preventable Disease Control
On the other hand, you may find, as in the above example from Michigan, that your state nursing practice act, state nursing board rules, and public health agency rules do not expressly require you to report specific communicable diseases. If you do not find an express rule requiring nurses in your state to report communicable diseases to a specific state or local agency, you may believe yourself to be off the proverbial hook for disciplinary charges. But beware that broader nursing standards may implicate you in misconduct charges for failing to report a communicable disease, resulting in preventable disease exposure or outbreak. Your state nursing board may imply your duty to report preventable communicable diseases from its standards requiring competent nursing according to customary practice.
The Tennessee Board of Nursing administrative rules are an example. Rule 1000-01-.08 authorizes discipline for “failing to take appropriate action in safeguarding the patient from incompetent health care practices” and “carelessly or repeatedly failing to conform to generally accepted nursing standards in applicable practice settings.” Catch-all provisions like these may authorize your state nursing board to pursue disciplinary charges against you for failing to report communicable diseases when your failure arguably reflects incompetent healthcare practices violating accepted nursing standards. Let us help you determine the scope of your duty to report if you face disciplinary charges alleging your failure to report.
Reporting as Agency or Facility Representative
Your state nursing board disciplinary officials may have another potential ground on which to pursue disciplinary charges against you for failing to report a communicable disease. You have seen above from the Michigan example that some states impose communicable disease reporting obligations on healthcare, school, childcare, or camp facilities, even if not on nurses. Yet your nursing employment may be on behalf of such a facility. If you are a nurse responsible for a school, camp, childcare facility, or healthcare facility, then the institutional reporting requirement may fall on you. Your violation of that institutional reporting requirement could become the grounds for your state nursing board discipline. It may sound to you like bootstrapping, but if someone within the institution must report, and you are the most responsible person, then you may owe the duty. Let us help you defend any such disciplinary charge based on your vicarious responsibility to carry out your employer's duty to report communicable diseases.
Defenses to Failure-to-Report-Disease Charges
Just because you face state nursing board disciplinary charges alleging your failure to report communicable disease does not mean that you will suffer discipline based on those allegations. State nursing board officials may be under public or other pressure to pursue charges in which they do not fully believe. They may expect you to come forward with a reasonable explanation, on the basis of which they may be willing to dismiss the charges. Even if the officials pursuing your discipline believe wholeheartedly that your discipline should result, you may have valid defenses to the charges that an impartial hearing official or panel would welcome accepting. Here are some of the defenses we may be able to raise to charges alleging communicable disease reporting failures, depending on your circumstances:
- you were unaware of the communicable disease and so had no observation or other basis on which to make the report;
- you reasonably believed that others had already made the report, and you reasonably relied on that belief, such that your duplicate report would have been unnecessary, distracting, and wasteful;
- you communicated your report of communicable disease to a responsible person associated with your workplace and employment on the reasonable belief and understanding that the other person would make the report as you instructed and expected;
- although you were aware of communicable disease, no statute, rule, regulation, custom, standard, or practice required you to make a report under the circumstances;
- public health officials were already aware of the communicable disease outbreak and already taking appropriate action so that your report would have been superfluous, and you knew so;
- although you knew of the disease outbreak and suspected you had a duty to report, your nursing supervisor or attending physician instructed you not to make the report, and you reasonably relied on that instruction;
- although you owed a report and failed in that duty, you did not do so deliberately, willfully, or recklessly, and you have since that failure accepted responsibility and undertaken remedial education and training, such that your actions warrant no disciplinary sanction; and
- you have a clean discipline record and a long record of valuable nursing practice demonstrating that your continued licensure presents no risk to any patient or other person or to the profession or the public.
Communicable Disease Consultants
Nursing license defense sometimes requires or benefits from the review, opinions, reports, and testimony of consulting expert witnesses. If your defense to state nursing board disciplinary charges alleging failure to report communicable disease would benefit from expert review, then we have the necessary consultants available. We regularly retain, consult with, and present the reports and testimony of nursing and other healthcare consultants in these license discipline cases. Your disciplinary charges alleging failure to report communicable disease may raise expert witness issues involving the presence or absence of the alleged disease, its observable symptoms, whether you should have discerned those symptoms as a basis to report, the reporting obligation itself as to the particular disease, and the nursing standards for carrying out the reporting obligation, among other potential expert witness issues. Let us help you determine whether your defense would benefit from expert consulting and, if so, retain qualified and convincing consultants on your behalf.
Avoiding Disciplinary Charges for Failure to Report
You may be able to head off disciplinary charges alleging your failure to report a communicable disease, even if you are responsible for such a violation. If you promptly retain us the moment you first hear an allegation of your disciplinary violation, we can identify, gather, and organize information, documentation, statements, and other evidence raising your defenses, like those listed above. We may then be able to present that information in a compelling fashion to anyone, whether a state nursing board investigator, public health agency representative, or employer representative, who may support disciplinary charges. Our advocacy may convince the state nursing board investigator or other potential complainant to forego formal disciplinary charges. Your state nursing board has an obligation to protect patients and the public. Your state nursing board is not a court or penal institution. It has no other interest in punishing you beyond promoting its patient-protection mission. Let us make your best case for avoiding formal charges, even before they are issued, if you have not already received your state nursing board's formal charge.
Responding to Failure-to-Report Disciplinary Charges
If, instead, you have already received your state nursing board's formal disciplinary charges against you, then you should immediately retain us to answer the charges and otherwise appropriately respond. If you do not timely and appropriately answer the charges, invoking your procedural rights, your state nursing board may effectively default you, denying you of your right to an administrative hearing. When you retain us on receipt of disciplinary charges, we can take the following actions as appropriate and necessary:
- evaluate the charges with you to determine the best strategic course forward;
- require the state nursing board to provide additional detail as to the specific wrongs it alleges you committed so that we can fairly answer those charges;
- research, draft, and serve your answer to the charges, raising all available defenses and invoking all procedural rights;
- notify the state nursing board of our appearance on your behalf so that disciplinary officials respond to our communications;
- arrange teleconferences, meetings, interviews, and conciliation conferences in an effort to negotiate a compromise resolution that results in early voluntary dismissal of the charges; and
- conduct discovery of the state nursing board's evidence and other available evidence including medical records, laboratory reports, and witness statements.
Conduct of the Disciplinary Hearing
If your disciplinary charges alleging failure to report a communicable disease proceed to a formal hearing, notwithstanding our efforts to obtain early voluntary dismissal, then we can invoke your full hearing rights. We can help you schedule a hearing that gives us sufficient time to prepare but is not so far off as to unnecessarily delay a needed resolution. We can ensure the attendance of your witnesses, including, if necessary, through available administrative subpoenas. We can then present your defense witnesses and documentation in the best strategic fashion while cross-examining adverse witnesses and challenging other adverse evidence. As you can see from the above discussion, disciplinary charges alleging failure to report a communicable disease can raise a host of potential defenses and expert issues. We know how to marshal your evidence and arguments around those defenses and issues for your best hearing outcome. We can also continue to pursue voluntary resolution during the course of the formal hearing. A significant number of administrative cases are resolved at or around the hearing once the state nursing board officials get a better sense of the strength of your defense and the skill and trustworthiness of our attorneys.
Guarantee of Protective Procedures
Rest assured that we will find ample opportunity to present your exonerating and mitigating evidence to an impartial official or panel of officials in your defense of disciplinary charges alleging failure to report communicable diseases. You generally have a constitutional right to due process in licensing proceedings that may deprive you of your liberty and property interests in your nursing practice. Your state's nursing practice act will offer those protective procedures satisfying due process or will incorporate your state's administrative procedures act doing likewise. Section 335.066 of the Missouri Nurse Practice Act is an example, expressly referencing the available administrative hearing protections while also referencing and incorporating the protections of the state's Administrative Hearing Commission. Our attorneys know how to invoke those hearing procedures and to prepare and conduct the hearing to your best effect.
Post-Hearing Relief from Discipline
If you have already lost your formal disciplinary hearing, we may be able to gain you relief from your disciplinary findings and sanctions. State administrative procedure acts generally offer some form of administrative appeal from adverse decisions in contested cases and may also offer judicial review. The Missouri Administrative Hearing Commission protections just cited above are an example, providing for judicial review after appeal to the agency board. Our attorneys know how to prepare and pursue agency appeals and judicial review to reverse erroneous and biased hearing decisions. Let us exhaust your administrative and judicial remedies until we obtain your best possible outcome. If you have already lost your license to disciplinary charges, we may be able to gain your license's reinstatement under your state's nursing practice act or state nursing board rules. Many states offer license reinstatement after a waiting period and hearing, within the state nursing board's discretion.
Employer Communications During Proceedings
When your nursing employer learns of your disciplinary charges, your employer may immediately assess whether to continue your employment while the charges are pending. Employers can be very suspicious of disciplinary charges, promptly suspending or terminating the employment of nurses or other healthcare professionals whose fitness the charges call into question. Employers have liability, regulatory, financial, relational, management, and reputational interests to manage when one of their nurses faces disciplinary charges. You likely need or want to retain your nursing employment, practice, income, and benefits while your disciplinary charges are pending, especially if those charges take months or a year or more to resolve through formal hearings and appeals. Our attorneys may be able to communicate with your employer throughout your proceeding in ways that reassure your employer of the likelihood of a favorable outcome to the point that your employer retains your employment. Let us help you preserve your employment while defending your disciplinary charges. After all, the primary point of maintaining a license is for the employment it allows.
Disciplinary Sanctions for Failure to Report Disease
State nursing practice acts generally authorize a wide range of discipline forms, from reprimand all the way to license suspension and revocation. The Tennessee Board of Nursing administrative rules cited above are an example. Tennessee Board of Nursing Rule 1000-01-.07 authorizes the Board to “deny, revoke or suspend any certificate or license to practice nursing, or to otherwise discipline a licensee” in whatever form the Board decides. Those other, lesser sanctions may include cautions or warnings, probation, oral or written reprimand, evaluation, monitoring, reporting, or license limitation. State nursing boards are also sometimes willing to substitute remedial measures like education, training, counseling, and professional service for punitive sanctions, leaving the possibility that you might escape without any finding of wrongdoing and without any disciplinary sanction. Let us help you pursue that overriding goal of not having a disciplinary record or sanction so that you can preserve your professional employment, reputation, and relationships.
Our Qualifications as License Defense Counsel
It should be reasonably clear to you from the above discussion of the actions we can take on your behalf that administrative license defense is a niche attorney practice. Our attorneys have focused their practice on that niche so that they can gain the substantial administrative law knowledge, skills, and experience that effective license defense requires. We don't dabble in nursing license defense. We instead make license defense our practice focus, not only to develop the refined knowledge and skills through experience but also to foster the professional relationships with state licensing officials across the country. We also have a national reputation among state licensing officials that earns us their trust, confidence, and respect. We can avoid the adversarial relationships characteristic of criminal court defense in favor of the collegial and problem-solving approach that administrative licensing officials are generally willing to accept on appropriate assurances. Do not hire unqualified local criminal defense representation. Instead, get our highly qualified help.
Premier License Defense Attorneys Available
If you face state nursing board disciplinary charges alleging your failure to report communicable diseases, retain the Lento Law Firm's premier Professional License Defense Team now for your best licensing outcome. Let us help you like we have helped hundreds of other nurses and healthcare professionals nationwide. Call 888.535.3686 or complete this contact form now for our highly qualified attorney representation.
