Barely a week after the Los Angeles Times published an October 5, 2008, article about the lack of oversight of nursing license renewals in California, the state legislature instituted an emergency fingerprinting system for all nurses in the state. In its several-part series of stories, the Times and its collaborator ProPublica, a nonprofit investigative journalism group, profiled cases of nurses who were able to renew their licenses despite recent felony convictions. One might ask how such things slip through the cracks. Isn't this precisely why a state nursing board exists?
In California and many other states, state boards of nursing are in a frustrating position. They are the sole bodies responsible for regulating licensure, but they, like other private agencies, cannot perform national criminal background checks themselves. And in the absence of federal legislation regulating the process, changing state laws is the only way for boards to gain access to national Federal Bureau of Investigation (FBI) databases, considered the gold standard of criminal background checks.
Complicating matters, states' requirements regarding criminal background checks vary widely. Nearly all require them for initial licensure and when applying for reciprocity or endorsement from other states. A few require them only for RNs answering "yes" to application questions about convictions that have occurred since their initial application or for those whose licenses were suspended or expired. A few don't require them at all.
According to Kristin Hellquist, director of policy and government relations for the National Council of State Boards of Nursing (NCSBN), the NCSBN recommended FBI checks in its uniform core license requirements, adopted in 1999, but cannot mandate them.
"The only mandates are those that can be enforced by law," she says. "Criminal background checks must be grounded in statute. So the state legislators would ask, 'Why aren't you doing criminal background checks?' Well, you haven't given us the authority or the money, that's why!!"
A STORY OF LIMITED SUCCESS
Texas is among the more than 30 states requiring federal criminal background checks for nurses, although it is in a seemingly continual fight for adequate funding. Mark Majek, the Texas board's director of operations, says, "The public has to understand that if they want this to be done, we have to be given the resources to do it."
In Texas it costs $34.25 per person for an FBI check. With an estimated 300,000 nurses in the state it's easy to understand the board's request for $10 million to do the job. According to Majek, the board got only a fraction of the funding it requested, although even the original $10 million wouldn't have covered the costs of hiring staff.
Majek says he learned from other states doing background checks to expect positive hits for 5% to 8% of RNs and for more than 10% of LVNs. He says, "That's the real issue for all of us: what to do with this information. Who is going to process it in a timely way? You can't just yank someone's license. You can't just say 'you smoked pot 20 years ago, so give us your license while we investigate.' You might have summary judgment [in which a decision can be made without extensive proceedings], but only in extreme cases like murder."
PUNISHMENT MUST FIT THE CRIME
Majek says that 80% to 85% of the positive hits are cases of what the state calls "youthful indiscretions," single-instance misdemeanors such as public intoxication, marijuana possession, or writing a bad check.
He says, "Just tell us what you did; we'll check it out, and in most cases everything will be fine. Those things don't keep people from working as a nurse. We look for repetition; if someone stole money three or four times, we don't think that person should be a nurse."
On the other hand, says Edie Brous, nurse, attorney, and coordinator of AJN's Legal Clinic column, sometimes the pendulum swings too far in the other direction, and the system becomes overly punitive.
"A criminal record can stem from an arrest, indictment, or conviction," she says. "Or from smoking pot in high school. In most states, just the fact that a nurse had a brush with the law is enough" to keep her or him from practicing in that state.
Brous points to tales of nurses whose licenses were suspended for some of the same misdemeanors Majek cites and waited months-if not years-for a state board review of their appeal or a decision. What's worse, she says, is being added to a Medicaid exclusion list, which means a nurse can't work anywhere that accepts state funds, or a Medicare exclusion list, which means the nurse can't work anywhere that accepts federal funds. For these reasons, Brous believes criminal background checks should be done on a case-by-case basis.
THE HIT LIST
Nurses often get into trouble, not for something they did, but for lying about it on their renewal questionnaire.
"When you answer yes to the 'conviction' question," says Majek, "or you get a letter from us saying you got a hit on your record, we ask for your statement and corroborating court documents. Most people get them to us in a timely manner, we check those documents against the FBI file, sign off, and say thank you very much and move on. But nondisclosure is an issue. When in doubt, just say yes, you did something. We take everything into consideration."
In the meantime, states have other options. Hellquist says that some state boards receive "rap notifications," which alert them to licensee's arrests or convictions shortly after they occur.
"Rap notifications are for a certain subset of crimes," she says. "You wouldn't get one if you failed to pay a parking ticket. But the state is notified when someone holding a license has a conviction. This is a way to protect the public, who assume that we do a background check."
There is fear that media coverage of extreme cases, at both ends of the criminal spectrum, will erode the public's trust in nurses or scare prospective students away from the profession. For states that haven't yet made progress with their own regulations, the NCSBN offers a resource pack with detailed templates to help them launch the process. It can be accessed, free of charge, at http://www.ncsbn.org/794.htm.
Sibyl Shalo, BSN, RN