NABP Legal Briefs: If It Walks Like a Florida Nurse and Quacks Like a Massachusetts Physician, It Must Be a Massachusetts Nurse

April 20, 2011 11:07 AM

Originally published in the April 2011 NABP Newsletter

By Dale J. Atkinson, JD

With technological advancements and the ability of licensed professionals to practice their chosen vocations in several jurisdictions, sometimes without physical presence, practitioners will be more likely to hold licenses in multiple states. Indeed, some practitioners may have licenses in multiple professions as well. This increased presence by licensees in multiple states places increased emphasis on the regulatory boards to not only make final disciplinary actions available to the public via their Web sites, but to use all available mechanisms to share such information with other jurisdictional regulatory boards.

The NABP Electronic Licensure Transfer Program^® provides boards of pharmacy with a venue to submit and access licensure and disciplinary actions when determining eligibility for licensure through the endorsement process. At times, discipline in one state may (or should) constitute grounds for discipline in another. Pharmacy boards must be aware of the impact of discipline in one jurisdiction on the licensure status within their own states. Some regulatory boards exhibit sympathy to the practitioner and manipulate what constitutes “discipline” for purposes of fashioning a sanction, which attempts to avoid reporting to the Healthcare Integrity and Protection Data Bank (HIPDB) or prohibits availability to the public. Such creative sanctions not only defeat the essential public protection mission of all regulatory boards, but may affect the legal arguments of other jurisdictions seeking to protect the public through reciprocal discipline proceedings. Consider the following.

In 1976, a practitioner was granted a registered nurse license in the state of Florida. In 2003, such licensed nurse was the subject of a complaint filed by the Department of Health alleging that she had been dismissed from a graduate nursing program in Florida, in part because she had failed a clinical course. In addition, the complaint alleged that she falsely represented herself to a practicing physician as a current enrollee in the graduate program in order to obtain his agreement to act as her preceptor for the clinical course she had failed and that while under his supervision she saw patients, prescribed treatment plans and medication, and disclosed to third parties confidential medical information.

The Florida matter proceeded to an administrative hearing and the nurse participated in the proceedings. The administrative law judge concluded that the nurse had violated multiple rules of professional conduct regarding her educational misrepresentations, practiced as an unlicensed advanced registered nurse practitioner, and violated rules governing patient confidentiality. The Florida Board of Nursing adopted the administrative law judge recommendations of a professional reprimand and probation, along with a $1,000 fine. In lieu of those penalties, the nurse offered to voluntarily relinquish her license permanently. After emphasizing that the surrender of her license would be considered “discipline,” the Florida Board issued a final order acknowledging the relinquishment and that such order was considered discipline. The licensee did not challenge the Florida Board order.

Meanwhile, the nurse was also licensed in 1987 as a registered nurse in Massachusetts. In 2005, and based upon the Florida order, the Massachusetts Board of Registration in Nursing (Massachusetts Nursing Board) issued an order to show cause, providing the nurse with an opportunity to state why her Massachusetts license should not be subject to discipline based upon the Florida action. After multiple procedural appeals involving indefinite suspensions, the Massachusetts Nursing Board suspended the nurse license for a period of five years with two years credit since the time of the original suspension. It found that the facts underlying the Florida proceedings constituted violations of multiple portions of the Massachusetts Nurse Practice Act. The nurse appealed the Massachusetts suspension.

On appeal, the nurse argued several issues. First, she argued that the final order of the Florida Board did not constitute discipline and therefore cannot form the basis of the Massachusetts action. To support this position, the nurse argued that the Florida decision had no findings of fact, that she did not understand that the voluntary relinquishment would be considered discipline, that she did not admit to any wrongdoing, and that she did not agree not to contest the allegations against her.

The court quickly determined that the first three arguments had no merit. It cited previous Massachusetts judicial opinions, which held that neither admissions of wrongdoing nor findings of fact are necessary to treat as discipline the resolution of charges by agreement in another jurisdiction. Furthermore and related to the fourth argument, the court held that the nurse’s agreement to permanently relinquish her Florida license effectively amounts to an agreement not to contest the allegation against her.

Next, the nurse propounded an estoppel argument based upon a Massachusetts Nursing Board letter previously provided to the nurse. The letter stated that “while allegations were pending in Florida, that it would not, based upon the then-unresolved allegations in Florida, open its own proceedings against her Massachusetts nursing license.” The nurse argued that such a letter precluded the Massachusetts Nursing Board from now initiating action against her Massachusetts license. The court rejected this argument citing the fact that the letter was not an “adjudication” in her favor regarding the Florida proceedings. Further, the Massachusetts letter predated the final order of the Florida Board. Therefore, the letter did not waive any rights of the Massachusetts Nursing Board to pursue action against the nurse.

Finally, the nurse argued that the Massachusetts Nursing Board action was arbitrary and capricious and that the sanction was excessive. The nurse argued that the Massachusetts decision was based upon facts not in the record, namely that the Florida action was considered discipline, when in fact she was not aware of such a conclusion. But, the court noted that the administrative record in the Massachusetts matter contained evidence, including testimony, that the nurse had indicated her understanding and acceptance of the relinquishment being treated as discipline.

While not emphasized in its opinion, the court did make note of the fact that the nurse had also been previously licensed by the Massachusetts Board of Medicine as a physician and that such physician license had been the subject of a suspension since 1987. Apparently, the suspension of the physician license by the Massachusetts Board of Medicine did not result in any action against the registered nurse license by the Massachusetts Nursing Board. The nurse also argued that the Massachusetts Nursing Board improperly considered as an aggravating factor the suspension of her Massachusetts medical license, in spite of the fact that the Massachusetts Nursing Board declined to take action against her nursing license based upon this medical license suspension. The court rejected this argument, finding that the Massachusetts Nursing Board had every right to consider the medical board licensure suspension as an aggravating factor in determining the nursing license sanction.

Finally, the court rejected the nurse’s argument that the sanction was excessive. In her arguments, the nurse referred to the indefinite suspension of her license as excessive. However, the court noted that the Massachusetts Nursing Board, upon remand of the matter, had issued a five-year suspension. The court found the suspension to be comparable and, thus, sustainable.

Under many circumstances, reciprocal discipline can be dependant upon the characterizations placed upon the proceedings and findings of the initial administrative disciplinary proceedings. Categorizing the board action as non-disciplinary, allowing consent agreements without admissions of wrongdoing, not reporting actions to the HIPDB or NABP data banks, along with many other factors may provide sanctioned licensees with legal fodder in any subsequent administrative proceedings, both intra and interstate. With what appears to be more licensees seeking representation by counsel, such requests may be on the increase. Boards of pharmacy should seek legal assistance in crafting final orders, whether based upon consent agreements or after contested hearings. Future boards and fellow NABP member boards depend upon it.
Lankheim v Board of Registration in Nursing, 2011 WL 6895 (Supreme Judicial Ct MA 2011)