Tuesday, September 24, 2013

The BON and Criminal Background Questions-the truth may set you free

If the BON asks a question on application/renewal paperwork, answer the question truthfully.  The area which trips up more Texas nurses is the criminal background question.  This particular question has undergone multiple changes and refinements based on what the Board heard back from nurses who did not understand the question.  When in doubt, answer the question "yes" rather than marking "no".  If you have been involved with the Police, arrested, jailed, posted bail, anything associated with the criminal system, you will most likely have to answer yes (the only exception is expungment or nondisclosure orders, see below).  The best option is to check with an attorney who is experienced with the Board, not your criminal attorney, not your best friend, not your co-workers or supervisors, and sometimes not even Board staff**.

The nurse should always be careful when submitting a statement regarding criminal offenses.  There have been cases where what the nurse submitted as a statement is what got them in trouble with the Board and not the actual conviction.  Also, there have been many cases when the nurse fails to inform the Board of a criminal incident and are disciplined for the failure to disclose; if the nurse had informed the Board no action would have taken place which is why the action is based on the failure to disclose only (there are some minor criminal offenses for which the Board will not take disciplinary action).

If you are in nursing school or entering school, do not wait too long to obtain the Board's decision on your criminal incident.  It takes a while for the Board to review the multiple applications they receive and a positive criminal background will delay the process.  Then you have to wait and calling or writing will not speed the process; hiring an attorney will not speed the process except an experienced attorney can review what you have sent to make sure you provided all required information thereby eliminating that delay; and having your Legislator/Dean/Parent call on your behalf will not speed the process.  So, it is better to plan ahead.

**Remember that just like any employer, the Board will have new employees and they may not understand what you are asking or they may be confused to what is required; so if the answer sounds too good to be true, check with an administrative lawyer experienced with the Board.

Expunged offenses, Sealing of Records/Orders of Nondisclosure
First, if you do not have an Order signed by a Judge which states "Order of Expunction/Expungment" or  something similar, then get a copy of the Order.  If you cannot get a copy of the Judge Order,  answer "yes" and state you believe it was expunged.  Too often nurses are confused regarding expungments and think there is an Order when in actuality they were eligible for one; or the nurse may confuse a dismissal as a expungment.  If you can get a criminal offense expunged, get it done NOW; expunged offenses make the licensure process so much easier.

The same can be said for Order of Nondisclosure or Sealing of Records.  The difference is that the board can look at the underlying offense to determine if this action(s) causes concern for the licensing/renewal of a nurse.

Juvenile Records
Juvenile records are not automatically removed from someone's criminal history, so don't forget these when answering criminal background questions.

Deferred Adjudication, Pretrial diversion 
 Deferred Adjudication and Pretrial diversion  cases are considered convictions by the Board even though in the criminal courts they are not convictions.    Be sure to tell the Board about them.

Dismissals, No filing of charges etc.

The Board asks about any ARRESTS, so even though there were no action taken by the criminal court, you still need to tell the Board.  Why?  There are times when a case is dismissed because it is covered by another criminal charge, but for the Board they want to know about each incident.

Pending Charges

If you were arrested, you should have already answered yes, but if that question or the actual outcome question did not catch your attention the pending charges question should.  In other words, most of the time you will answer "yes" if you have been involved with the Police/Criminal Court system.

NJP, non judicial punishment by military administration
NJPs are administrative decisions and are not a result of the showing of evidence/witnesses before a Judge or jury; the nurse is just informed of the decision.  These are determinations made by the commanding officer.  They are not reported to any criminal database since they are non-criminal, administrative decisions.  Because of the nature of NJPs, I have argued several times to the Board that these do not belong in the same category as criminal cases and if it were not for the honesty of the nurse the Board would not even know about the NJPs since they typically do not show up on DPS and FBI background checks.  However, the board continues to ask for information regarding the NJPs and has taken disciplinary action on a nurse based on what occurred (usually when the facts involve substance abuse issues, positive screens, assault, theft).

Misdemeanor, Felony
It is a Misdemeanor, not a Felony so the BON won't be interested, right?  WRONG!!  The Board asks about all arrests and convictions, not just felonies.  If you have pending charges and the arrest was for a felony, tell your criminal attorney to plead that down to a misdemeanor.  Why?  If you have a felony conviction (and remember felony deferred adjudications are considered convictions for the Board) the Board takes much harsher action including the potential for revocation, suspension or surrender.  Sometimes a plea of guilty to a Class A misdemeanor results in a better outcome for the nurse than a Felony deferred adjudication.  It is best to have your criminal attorney speak to your administrative attorney when determining the best plea outcome.

Each case can have unique aspects which require the review by an administrative attorney experienced with the Board.  Be proactive and don't wait to get the right advice.  I met with a nurse who was going to sign a disciplinary order and only had questions about some of the restrictions proposed by the BON.  When I reviewed the Order and the underlying arrest, I informed the nurse that the BON had no statutory support for the imposition of an Order.  I wrote a letter to the Board explaining why the Order was not valid and the complaint was quickly closed (the case was being handled by a new investigator who did not know the statute and it was not caught when it went through review).  So, I know I harp on getting legal advice by an experienced attorney but I have seen over the years the need for an attorney's involvement and the definite need for an attorney who has experience with the BON and I have seen bad outcomes when the proper advice is not obtained.