Am I Eligible for a Nursing License?: Declaratory Order of Eligibility for Licensure
I often receive calls from nursing students, or even those only considering pursuing a nursing degree, with questions concerning whether or not they will be licensed by the Board of Nursing. Typically, these individuals have a criminal record, history of misuse of controlled substances, or a mental health diagnosis that they fear will present an obstacle to successful licensure.
These persons have already taken best course of action by being proactive and contacting an attorney with experience before the Board and who should therefore be able to estimate the difficulty they may or may not face in applying for their license. Generally speaking most nurses with marks on their record should be able to obtain licensure. A good portion of these may have to do so under the form of a probationary license with restrictions related to whatever it is that concerns the Board.
For example, an applicant with a history of abuse of controlled substances may only receive their license on the condition that submit to random drug screens, attend AA meetings, successfully complete a recovery program, and work in an environment where they can be supervised by a superior nurse. A nurse with a criminal record may have to enter into an Agreed Order that provides for supervised practice and grants them only a provisional license with full licensure dependent on achieving a number of years of violation-free practice. Finally, persons with a serious psychiatric diagnosis may need to agree to an Order mandating that they continue with a specified medical treatment program to keep their condition under control.
The very few nurses who will likely not be issued a license are those with serious criminal convictions or an ongoing and untreated chemical dependency problem. On the issue of serious criminal offenses I am referring to convictions such as rape, sexual assault, kidnapping, injuring a child, or murder. Section 301.4535 of the Nursing Practice Act provides a list of criminal offenses for which the Board may refuse to license an applicant. Other felony convictions fall under this list as well.
Future nurses should note, however, that the Board is typically reluctant to license a nurse even a minor black mark on their record if they are not represented by an attorney. They will usually refuse outright or press a nurse to enter into an order with terms that are more stringent than indicated by their history. As in any disciplinary matter, the Board of nursing generally pursues the severest sanction unless the nurse has a lawyer to fight for their interests.
One option for students unsure of their eligibility for licensure is found in § 301.257 of the Nursing Practice Act. This section provides that a nursing student or even a person only considering attending a nursing school can file a Petition for a Declaratory Order of Eligibility for Licensure. In response, the Board of Nursing will then review that person’s history and assess whether they meet the required good moral and professional character standards. If they do, the Board Staff will issue a Declaratory Order finding that individual conditionally eligible for licensure as long as they graduate and later pass the standard nursing exams.
If you have questions about your eligibility for a Texas nursing license or the declaratory order procedure, please call an experienced administrative law attorney. They should be able to intelligently discuss your case and lay out your options. Don’t wait until after graduating from nursing school to find out that you may not be eligible for a Texas license.
The Need to Plea Carefully: Criminal Convictions and Medicare/Medicaid Exclusion
A recurring scenario in my office goes like this: A physician contacts me about a letter they have received from the Office of the Inspector General stating that they are investigating whether or not the doctor has been involved in conduct that warrants exclusion from the Medicare and Medicaid programs. Oftentimes this concerns the physician’s plea of guilty or nolo contendre to a crime involving these or other government programs or that has some other connection to health care. This is very frustrating to both me and the physician as under federal law even if they do not directly involve a federal program, if any of these crimes is a felony, the client has a serious chance of being summarily excluded.
Under the Social Security Act, the Office of the Inspector General must exclude a physician from Medicare and Medicaid participation for:
- Conviction for any criminal offense related to a federal or state health care program;
- Conviction for a crime relating to patient abuse;
- Conviction for a felony connected to health care and involving fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and
- Conviction for a felony involving a controlled substance.
42 U.S.C. § 1320(a)(7).
The last two exclusion rules are the result of Congressional lobbying efforts by the OIG aimed at cutting down federal payments to “bad” physicians thereby saving program costs. The end product has been a set of broadly drafted laws that permit the OIG to exclude a physician who has been convicted for any of a wide array of crimes that can somehow be related back to health care. It should also press properly informed physicians into more carefully weighing their options when considering a plea.
Keep in mind that under the applicable federal law even a plea of nolo contendre will amount to a felony conviction. The same applies to pleas involving probation, community supervision, or deferred adjudication. Perhaps most important to remember is that an exclusion under any of the four grounds outlined above is both mandatory and for a minimum of five years. The impact on a physician’s practice and employment prospects caused by a five year exclusion is generally devastating if not fatal. Also note that under federal law, if a physician is excluded from one federal program, they are automatically excluded from all federal programs.
Unfortunately, most criminal defense attorneys are not aware of these serious consequences while they hammer out a plea for their physician clients. The fact is a physician should try and plea to a misdemeanor whenever possible, as an exclusion for most misdemeanors is neither mandatory nor for five years. Once a physician has been convicted of a felony related to health care, their only avenue for avoiding the mandatory exclusion is through obtaining a sole community provider waiver. See Title 42 CFR § 402.38. This is done by filing an appeal with the appropriate state agency and arguing that the physician who is to be excluded is the role provider of certain medical services to Medicare/Medicaid patients within a defined geographic area. If they state agency agrees, they will then request a waiver of exclusion from the OIG. This is a narrow exception; if like most doctors, the physician practices in a urban area, he or she will likely be ineligible unless their practice is extremely specialized.
The bottom-line is that any physician facing criminal charges would be prudent with contacting an attorney knowledgeable in the applicable federal law and experienced before the Office of the Inspector General. In this way, the physician can be completely informed of the potential consequences of any particular plea. Failure to do so, can result in a plea that effectively foreclose their ability to avoid federal exclusion.
It is also worth keeping in mind that a criminal conviction will almost certainly cause an inquiry and possible sanction by state licensing boards, professional/credentialing societies, provider networks, and institutions where the physician holds credentials. Thus Medicare/Medicaid exclusion mirrors the general characterization of medical and professional licensing law as a veritable house of cards where the removal of one can cause the rest to quickly follow suit. This is an area where the retention of an experienced attorney can make all the difference.
