Professional License at Risk?

At Lord & Heinlein we highly recommend obtaining an attorney for any investigative interview in Minnesota. This interview has been requested by your professional licensing board in order to gather more information from you regarding the complaint they have received. It is wise to retain a professional license defense attorney who can speak with the investigator before the interview to find out more about what the interview will be about. Then, your attorney can help prepare you for the interview and accompany you at the interview. The interview will be recorded and will become a permanent part of the record regarding the investigation against your professional license. It is advisable to retain an attorney before giving any information to your licensing Board in Minnesota.

Yes. You must respond in a timely manner to any written allegations from your nursing licensing board. Just be mindful about what you provide in writing - everything will be a part of this investigation's permanent record. We recommend working with a nursing license attorney to formulate the correct response.

Yes, you may request an extension. If you are too busy or unprepared to respond, it's certainly better to request an extension than it is to rush to answer. Talk to your nursing license defense attorney to begin the extension process.

It is important to understand that during this phase of an investigation by your Board the matter is confidential and you are under no obligation to inform your employer about the allegations against you. The only people who will learn about your Allegations at this phase of the investigation are the Board and those who reported you to the Board. There may be some instances where you may wish to discuss the allegations with your employer. However, you should always seek advice from an experienced license defense attorney regarding whether or not you should inform your employer about the allegations against you.

No. The Minnesota Data Privacy Practices Act protects the confidentiality of the person who files the complaint. The board may be able to provide certain aspects of the investigation, but you will not be able to obtain large portions of the file until after the investigation is closed. You will never receive the name of the complainant or the original complaint filed against you.

Possible outcomes of an investigation include:

1) complete dismissal of the allegations;

2) discipline may be issued against your license (below are some examples of types of discipline that may be issued);

3) suspension of your license for a period of time; 4) revocation of your license.

Types of discipline that may be recommended by the Board include:

1) imposition of a fine,

2) completion of additional education,

3) a requirement of ongoing supervision over your practice,

4) limitation on the scope of your practice,

5) and/or participation in the Health Professionals Services Program (HPSP).

What Events Could Trigger an Investigation Against My Professional License in Minnesota?

The Minnesota professional licensing Boards and other government agencies are all complaint driven. An investigation will not be opened against you unless a complaint has been filed against you with your Board. In other words, these Boards and agencies do not go out looking for improper behavior on their own. Complaints are often filed by employers or other mandatory reporters, but may also be filed by a friend or relative. The identity of a complainant remains confidential. Once a complaint is made to a licensing Board they are statutorily required to investigate the matter.

Is the investigation into my professional license confidential?

While a matter is in the investigation phase everything is confidential in Minnesota. Remember that the only people that know about your letter from your licensing Board are the people that you tell. Nothing in the allegations or investigative requests will be released to the public unless or until a disciplinary action is ultimately issued against you. Be mindful about with whom you share information regarding the investigation and the allegations against you.

What are common complaints?:
• Diversion of prescription narcotic medications from the workplace
• Failure to follow wasting procedures for narcotic medications
• Over-use/multiple prescriptions for a prescribed narcotic medication
• Mental health issues that affect work performance
• Physical health issues that affect work performance
• Conviction of a criminal offense such as assault, drunk-driving or fraud
• Neglect of clients or patients
• Departing from minimal standards of acceptable prevailing medical practice
• Failure to meet patient record documentation standards
• Failure to fully assess a patient or client's needs
• Fraudulent billing
• Revealing privileged communications
• False advertising
• Violating professional boundaries with a patient or client, including sexual conduct
• Failure to pay student loans secured by the state or federal government
• Being fired from a job for cause
• Being dismissed from the Health Professionals Services Program (HPSP) for failure to comply with your participation agreement
• Practicing beyond your licensed scope of practice

Yes - you can get a job again. Even if you are disciplined, you are not the first to have experienced it, nor will you be the last. This should not permanently define your career. Many professionals in various fields have been disciplined by their licensing board, then moved on to improve themselves, their practices, and their careers.

The Health Professionals Services Program is a professionally staffed, confidential program designed to monitor the treatment and continuing care of eligible, regulated health professionals in Minnesota. Just like your professional licensing Board, HPSP is designed to protect the public, not you (the licensee). You should consult with an attorney before self-reporting to HPSP in Minnesota, in order to explore all of your options. 

What can I expect if I enroll in HPSP?
Health Professionals Services Program is a monitoring program for health professionals in Minnesota. You can voluntarily self-report yourself, or, sometimes, your licensing Board may require that you do so as part of a discipline against your license. When you present to HPSP, you will be asked to sign a monitoring plan and participation agreement which empowers HPSP to supervise your practice, your mental health and/or your illness, condition, or addiction. Your Participation Agreement will likely be for a term of 1-3 years. If for any reason, you fail to uphold the requirements of your Participation Agreement, Health Professionals Services Program has the discretion to discharge you from the program at any time. And, if you are discharged from HPSP, they will report that information to your licensing Board.

We recommend that you always consult with an experienced professional license defense attorney before self-reporting to HPSP in Minnesota.

HPSP (Health Professionals Services Program) is a monitoring program for health professionals in Minnesota. You can voluntarily self-report yourself, or, sometimes, your licensing Board may require that you do so as part of a discipline against your license. When you present to HPSP, you will be asked to sign a monitoring plan and participation agreement which empowers HPSP to supervise your practice, your mental health and/or your illness, condition, or addiction. Your Participation Agreement will likely be for a term of 1-3 years. If for any reason, you fail to uphold the requirements of your Participation Agreement, Health Professionals Services Program has the discretion to discharge you from the program at any time. And, if you are discharged from HPSP, they will report that information to your licensing Board.

It is always a good idea to consult with an experienced professional license defense attorney prior to self-reporting to HPSP in Minnesota.

If you are worried that your substance use is impacting your ability to serve as a nurse with reasonable skill and safety, we may recommend taking a leave of absence from your job. This will allow you to better assess your ability and to pursue any treatment or recovery care you may need.

Minnesota Statutes §148.263 spells out the reporting obligations of Nurse Licensed Professionals.  

Subdivision 1. Permission to report. A person who has knowledge of any conduct constituting grounds for discipline under sections 148.171 to 148.285 may report the alleged violation to the board.

Subd. 2. Institutions. The chief nursing executive or chief administrative officer of any hospital, clinic, prepaid medical plan, or other health care institution or organization located in this state shall report to the board any action taken by the institution or organization or any of its administrators or committees to revoke, suspend, limit, or condition a nurse's privilege to practice in the institution, or as part of the organization, any denial of privileges, any dismissal from employment, or any other disciplinary action. The institution or organization shall also report the resignation of any nurse before the conclusion of any disciplinary proceeding, or before commencement of formal charges, but after the nurse had knowledge that formal charges were contemplated or in preparation. The reporting described by this subdivision is required only if the action pertains to grounds for disciplinary action under section 148.261.

Subd. 3. Licensed professionals. A person licensed by a health-related licensing board as defined in section 214.01, subdivision 2, shall report to their board personal knowledge of any conduct the person reasonably believes constitutes grounds for disciplinary action under sections 148.171 to 148.285 by any nurse including conduct indicating that the nurse may be incompetent, may have engaged in unprofessional or unethical conduct, or may be mentally or physically unable to engage safely in the practice of professional, advanced practice registered, or practical nursing.

Subd. 4. Insurers. Four times each year, by the first day of February, May, August, and November, each insurer authorized to sell insurance described in section 60A.06, subdivision 1, clause (13), and providing professional liability insurance to registered nurses, advanced practice registered nurses, or licensed practical nurses shall submit to the board a report concerning any nurse against whom a malpractice award has been made or who has been a party to a settlement. The report must contain at least the following information:
(1) the total number of settlements or awards;
(2) the date settlement or award was made;
(3) the allegations contained in the claim or complaint leading to the settlement or award;
(4) the dollar amount of each malpractice settlement or award and whether that amount was paid as a result of a settlement or of an award; and
(5) the name and address of the practice of the nurse against whom an award was made or with whom a settlement was made.
An insurer shall also report to the board any information it possesses that tends to substantiate a charge that a nurse may have engaged in conduct violating sections 148.171 to 148.285.

Subd. 5. Courts. The court administrator of district court or another court of competent jurisdiction shall report to the board any judgment or other determination of the court that adjudges or includes a finding that a nurse is a person who is mentally ill, mentally incompetent, chemically dependent, dangerous to the public, guilty of a felony or gross misdemeanor, guilty of a violation of federal or state narcotics laws or controlled substances act, guilty of operating a motor vehicle while under the influence of alcohol or a controlled substance, or guilty of an abuse or fraud under Medicare or Medicaid, appoints a guardian of the nurse under sections 524.5-101 to 524.5-502, or commits a nurse under chapter 253B.

Subd. 6. Deadlines; Forms. Reports required by subdivisions 2 to 5 must be submitted no later than 30 days after the occurrence of the reportable event or transaction. The board may provide forms for the submission of reports required by this section, may require that the reports be submitted on the forms provided, and may adopt rules necessary to assure prompt and accurate reporting. The board shall review all reports, including those submitted after the deadline.

WHAT HAPPENS IF I DON'T REPORT A FELLOW LICENSED PROFESSIONAL WHEN I KNOW THEY HAVE DONE SOMETHING WRONG?

Subd. 7. Failure to report. On or after August 1, 2012, any person, institution, insurer, or organization that fails to report as required under subdivisions 2 to 5 shall be subject to civil penalties for failing to report as required by law.

(Minnesota Administrative Rules §6321.0500 REPORTING OBLIGATIONS).

Subpart 1. Institutions. The reporting required of institutions in Minnesota Statutes, section 148.263, subdivision 2, is interpreted to include1

• .resignation in lieu of discharge,
• discharge, suspension, or other forms of discipline of a nurse for failure to carry out the responsibilities of a nurse. 
• Examples of actions to be reported include but are not limited to
•     dismissal of probationary employees, 
•    suspensions other than investigatory suspensions, restrictions or limitations of a nurses's practice, 
•    demotion, and 
•    discharge from employment.

Subp. 2. Licensed professionals who consult with a therapist. The reporting required of licensed health professionals in Minnesota Statutes, section 148.263, subdivision 3, is interpreted to exclude the professional knowledge obtained in the course of a health professional-client relationship when the client is a nurse and the health professional successfully counsels the nurse to limit or withdraw from practice to the extent required by the impairment.

Your Licensing Board is an Administrative Body and Investigations Against Your License are Governed by Administrative Law Rules:
Administrative law differs greatly from civil law or criminal law. Unlike with criminal or civil matters, which are decided by a judge or jury, administrative matters are decided by an administrative body. In the case of allegations against a licensed professional, that administrative body is your licensing board. Administrative bodies are granted such great deference by the legislature because they are considered the experts with regarding to whether or not an individual's practice poses any sort of risk to the public. As is elaborated on below, this means that your board will ultimately determine how your matter will be resolved, whether through dismissal, some sort of discipline against your license, suspension, or revocation.

Do I  Have a Right to Due Process?
Since your professional license is considered your property, your right to due process enumerated in the United States Constitution protects you: your license cannot be arbitrarily taken away from you without a hearing. An administrative process has been outlined by the Minnesota Legislature that empowers your licensing Board to protect the public from unsafe practitioners, while also protecting your right to due process.

Must I Cooperate with My Licensing Board?
Failure to cooperate with your licensing Board in the event of an investigation will likely result in your license being suspended or revoked indefinitely. You must provide a response to their questions and provide your full cooperation.

Do I have to Respond to the Board Allegations?
It is important to provide an appropriate and timely response to any written Allegations that have been served against you by your Board. You should consult an attorney before providing any response to your Board.

What is the Complaint Review Committee?
If you are called to a hearing or conference before the Minnesota Board of nursing or any other Board, it will be before a complaint review committee. Most licensing boards in Minnesota follow similar or same procedures. These committees vary in their make-up from Board to Board, but are generally composed of one or more members of the larger Board, an investigative Board staff member, and the Assistant Attorney General who is appointed to advise and represent your Board

Is the Complaint Review Committee' decision about my case the end of the process? 

The committee will recommend their decision about your case to the full Licensing Board in one of the following ways:

1) complete dismissal of the allegations;

2) discipline be issued against your license;

3) suspension over your practice;

4) revocation of your license.

In most cases the full Board will almost certainly approve the committee's recommendation.

How does the licensing board finalize my case? 

If the complaint review committee recommends discipline against your license, which could include a period of suspension, you will most likely be presented with a Proposed Stipulation and Consent Order to sign. The Stipulation will outline the facts and the terms of the discipline against your license. It is very important to talk with an experienced professional licensed attorney about the Stipulation because once you sign a Stipulation and Consent Order with your Board the document will become available to the public and it can never be removed.

What are the typical types of Discipline imposed on a licensed professional?:
If the committee determines discipline is appropriate, some types of discipline that may be recommended include: imposition of a fine, completion of additional education, requirement of ongoing supervision over your practice, limitation on the scope of your practice, or participation in the Health Professionals Services Program (HPSP).

What is a Contested Case Proceeding?
If you are unable to reach a settlement agreement with your licensing Board, you have the option to go beyond the Board review process and pursue a Contested Case proceeding before an Administrative Law Judge. This process is much like a trial where you will have the opportunity to testify, and present evidence and call witnesses to testify on your behalf. It is important to recognize that, while you may obtain a favorable advisory opinion from the Administrative Law Judge, your licensing Board can override the Administrative Judge's decision and may still make the final determination as to how your case will be resolved.

Would my case ever go up to the Court of Appeals?
If you remain unable to reach a settlement agreement with your licensing Board through a Contested Case proceeding, you still have the right to appeal your case to the Minnesota Court of Appeals. It is rare that cases fail to settle before reaching this level in the legal process and even rarer that the Court of Appeals will find against the recommendations of your licensing Board.  absent a gross violation of your rights to Due Process, the Court of Appeals rarely overturns a Board's recommendation.

What is the purpose of each Minnesota professional license Board?
Nearly every licensed profession in Minnesota has a Board to oversee the education of and enforce the standards for its licensees. The Boards and their respective practice standards are administrative agencies that are created by and governed through Minnesota state law. These Boards are granted great deference for their expertise about their respective professions, and act as the judge and jury in any matter regarding the safety or fitness of their licensees.

What is the mission of the Minnesota Licensing Boards?

The mission of the Minnesota Licensing Boards is to protect the public, not the licensee (you). It is important that you take any allegations against your license seriously. An experienced license defense attorney can guide you through this stressful and complicated process, prepare you for your hearing, and help you obtain the best possible outcome. An Assistant Attorney General always represents your licensing Board throughout each proceeding: do not go it alone.

What is the make-up of my licensing board?

The Minnesota professional licensing Boards consist of several same-licensed professionals, at various practice levels, and some community or public members who are not licensed professionals.  There are also paid Board staff members, who are not Board members, such as Practice Specialists or administrative support staff, who facilitate disciplinary proceedings. An Assistant Attorney General from the Minnesota Office of the Attorney General, always represents the Board throughout any investigative or disciplinary proceeding.