Will an Arizona Nurse Be Placed on The OIG List After a Voluntary Surrender?
Nurses contact our office and frequently ask our attorneys if an Arizona nurse will be placed on the Office of Inspector General (OIG) list if they voluntarily surrender.
Unfortunately, the answer is maybe.
Several things can lead to the inclusion on the Office of Inspector General’s List of Excluded Individuals/Entities (LEIE), including:
- Crimes
- Revocation
- Voluntary Surrender
- Suspension
LEIE Inclusion is a Hit-and-Miss
However, we have found that it is hit-and-miss when it comes to LEIE inclusion.
The LEIE provides information to the healthcare industry, patients, and the public regarding individuals and entities currently excluded from participating in Medicare, Medicaid, and all other Federal healthcare programs and those charged with fraud-related crimes.
This LEIE also includes a listing under everyone, which contains his offense code(s), the date he was barred from participating in federal healthcare programs, exclusion reason(s), and program areas affected by these exclusions.
What is a Voluntary Surrender?
A voluntary surrender will place a permanent mark on a nurse’s record. Thus, a nurse must make sure they are making an informed decision.
Voluntary surrender is when a licensee voluntarily surrenders a professional license or voluntarily agrees not to renew one’s license, usually to resolve an outstanding complaint instead of going through the investigatory process that could lead to discipline, suspension, or revocation.
Voluntary surrender is considered formal discipline. Any formal disciplinary action from the Arizona Nursing Board is reported to NURSYS and the National Practitioner Database.
Nursing Administrative Appeal and Hearing
Any professional nurse licensee may request a legal appeal of an Arizona State Board f Nursing disciplinary action to an administrative law judge with the Arizona Office of Administrative Hearings (OAH), located in Phoenix. In some instances, a case is sent automatically to OAH. The OAH conducts the hearing before an Administrative Law Judge (ALJ).
The administrative process is not as formal as a trial but is similar. Each party presents evidence using documents or sworn testimony. Each party also gives an opening and closing argument, which should explain why the judge should rule one way or the other. A nurse’s lawyer can cross-examine witnesses and testify on his or their behalf.
After completing it, the ALJ reviews the transcripts and evidence and makes a recommendation. However, the Board decides to accept, reject or modify the ALJ’s decision. If an individual feels there has been a mistake, they can request a rehearing.
Two Ways to Overcome a Summary Suspension
There are Two Ways to Overcome a Summary Suspension with the Arizona Nursing Board. If the Arizona Board of Nursing believes a nurse cannot practice safely, they can initiate a summary suspension.
The legal standard in Arizona is that public health, safety, or welfare imperatively requires emergency action necessitating the immediate suspension of a nurse’s license.
Examples of actions that can lead to a summary suspension:
- Substance Abuse
- Sexual Misconduct
- Mental Health Concerns
- Refusal to Follow Board Order
Summary Suspension Meeting
The Board will oversee the summary suspension proceeding and vote on whether to suspend the nurse’s license.
Two ways to avoid the summary suspension include:
- Consent Agreement: Agree to and sign a Consent Agreement before the Summary Suspension proceeding. If the nurse can agree to a Consent Agreement without suspension, the Board will likely accept the signed Consent Agreement.
- Convince the Board: The nurse (or their attorney) would attempt to convince the Board that they haven’t met the legal standard and that a summary suspension is unnecessary.
Helpful Resources:
- 2 Ways to Overcome a Summary Suspension
- 3 Ways the Board Can Suspend Your License
- Arizona Nursing Board Hearing
- Arizona Nursing License Suspension
- Can a Nurse Continue to Work if Suspended?
- How a Practice Restriction Could Cost a Nurse Practitioner Their DEA Registration
Arizona Nursing Board Appeals
It’s always disappointing when a nurse receives an unfavorable decision from the Arizona Board of Nursing (AZBON). However, nurses in Arizona can benefit from understanding the process that goes along with Arizona Board of Nursing appeals and hearings after an Arizona Nursing Board Complaint is heard.
If you are facing an unfavorable AZBON outcome due to an Arizona Board of Nursing disciplinary action, you can always appeal the decision (for instance, after LPN discipline).
Filing an Appeal after a Nursing Board Meeting
The investigatory and the appeal process for an Arizona Nursing Board Hearing work like this:
The AZBON receives a complaint or investigates the nurse’s conduct (like a UCNA, LNA, or CNA). Once the Board receives a complaint or self-report, they will initiate an investigation (like if a patient in Phoenix files information, putting a nurse certificate at risk).
The investigation aims to give the AZBON evidence to decide whether a nurse should face disciplinary action (for instance, due to reporting a misdemeanor charge or conviction).
If the nurse receives an unfavorable decision, it is at this point they can then file an appeal and request a hearing with the Arizona Office of Administrative Hearing. An Administrative Law Judge will oversee the appeal, and the nurse may need to attend a hearing.
However, sometimes the investigation is automatically sent to a hearing, or an informal settlement conference can be held.
Disciplinary Actions Imposed by the Board
If the Board determines formal disciplinary action is necessary (for instance, failing to report a misdemeanor charge or conviction), it will happen after the completion of an investigation. It’s the job of the Board to review any allegation of a violation within the scope of the Arizona Nurse Practice Act.
Thus, at an Arizona Nursing Board Meeting, the Board will vote to determine the outcome of each investigation. Therefore, one may need a defense attorney.
The Board (they do not utilize a disciplinary committee) can vote on a non-disciplinary outcome (which is not generally public) or vote to offer the nurse formal discipline, such as:
- CASE DISMISSAL: The Arizona State Board of Nursing may dismiss a case if they determine there wasn’t a violation of the Arizona Nurse Practice Act.
- LETTER OF CONCERN: A letter from the Board expressing concern the nurse’s conduct wasn’t ideal. However, the behavior doesn’t necessarily violate the Nurse Practice Act.
- ADMINISTRATIVE PENALTY: The Board may impose an administrative penalty to nurses of no more than $1,000.
- REVOCATION: If the Board revokes a nurse’s license, the nurse will be unable to practice for a minimum of five years. After the five-year period has ended, the nurse will need to reapply for their license. Should the nurse reapply for their license, they’ll need to demonstrate that the grounds for revocation (substance abuse, mental health problems, criminal convictions, etc.) are no longer an issue.
- VOLUNTARY SURRENDER: The nurse voluntarily gives up their license. The benefit of a voluntary surrender is that the Board is usually willing to reduce the time until a nurse can reapply. Usually, this is between two to 3 years.
- SUSPENSION: Suspension stops the nurse from practicing until the Board of Nursing lifts the suspension.
- PROBATION: The nurse receives an Arizona Nursing Board Probation through a Consent Agreement. The nurse must do certain things (drug testing, work supervision, counseling, continuing education). Alternatively, the nurse must refrain from doing things (unsupervised nursing like home health, working under the Nursing Licensure Compact, using alcohol, etc.).
- DECREE OF CENSURE: A decree of censure is the lowest level of formal discipline. There are no probationary requirements, but they will list the Order on the website for five years.
- CIVIL PENALTY: Similar to a Decree of Censure, the nurse can be fined (up to $1000 per violation). The Civil Penalty is listed for five years as well.
Nurse Practitioners DEA Registration
Suppose the Arizona Board of Nursing has placed an Arizona nurse practitioner on probation. In that case, the probation can sometimes include a practice restriction that limits or completely stops the nurse practitioner from prescribing controlled substances for a period.
The board reports these restrictions to the Drug Enforcement Administration (“DEA”).
The DEA may deny, suspend or revoke a practitioner’s DEA registration for the following reasons:
- Falsified DEA Registration Application
- A state license has been placed on probation, suspended, revoked, or denied
- Excluded from participation in Medicare or Medicaid programs
- Convicted of a felony related to a controlled substance
- Committed an act that is inconsistent with the public interest
Consultation with Chelle Law
A misdemeanor criminal charge would likely not reach the threshold needed for the Board to initiate a summary suspension (such as a misdemeanor DUI or Disorderly Conduct charge).
So, it is crucial to retain qualified legal counsel to represent individuals who wish to file an appeal.
Having an attorney with experience working on your behalf means having the help you need to draft an appeal. It also means having an attorney on your side that will help to ensure you have explored all avenues of defense. Having a complaint against you or working with a Board of Nursing Investigator is challenging enough. Our attorneys help protect your professional license and maneuver these complex legal proceedings.
If you’re interested in learning more about Arizona Nursing Board Criminal History laws and how to protect your rights, set up a consultation with Chelle Law and our Arizona Nursing Attorney. Reach out to us today.
