Dad abandons toddler, now fights to keep nursing license

Sometimes a profound lapse in judgment at home can cause you to lose your professional license at work. We saw yet another example of that last week when an Administrative Law Judge (ALJ) recommended revoking the license of a nurse who left his young son at home with no babysitter.

What could he have been thinking?

The nurse was scheduled to take a college examination. On the morning of the exam, his wife left their apartment to go to work. The nurse understood that his brother-in-law would come to the apartment to watch his son, who was two years and eight months old. Before his brother-in-law arrived, the nurse left the apartment, leaving his son alone in front of the television. Some time later, an employee of a pest control service entered the apartment and discovered the child alone but apparently unharmed. He called police.

The court gave the nurse a break

The police arrested the nurse and charged him with intentional abandonment of a child, a state jail felony. The nurse pled guilty to the charge, but the court deferred adjudication and placed him on community supervision for three years. Furthermore, child protection officials eventually returned custody of the boy to the nurse and his wife.

But the Nursing Board did not give him a break

However, the Texas Board of Nursing moved to revoke the nurse’s license. The nurse then requested an administrative hearing.

The law

The Board is required to revoke the license of an individual who pleads guilty to certain serious crimes, including the crime of abandoning a child.

The ALJ approved of the Board’s action to revoke the license. And he opined that the revocation made sense because the nurse’s obligations to his patients require that he exercise sound judgment and, by leaving his son alone, the nurse demonstrated a lack of sound judgment.

For more details on the case, go to the SOAH website at www.soah.state.tx.us and search for the Proposal for Decision in SOAH Docket # 507-10-3526.

I guess “several thousand minimum standards” is not enough

This week I read a decision from the Austin Court of Appeals that made my jaw drop. It described a child care center that came within a hair’s breadth of tragedy.

A trip to the swimming pool

Parent volunteers and care givers from the center took a group of children to a swimming pool. One of the children, whom the court referred to as “E,” went unnoticed to the deep end of the pool, let go of the side, and slipped under water. Eventually another child saw that E was at the bottom of the pool and a third child pulled E up from the bottom and over to the pool’s side. By this time, E’s face was blue. A lifeguard began rescue breathing, paramedics arrived and revived him, and he was flown by helicopter to an Austin hospital. Thankfully, he survived without permanent harm.

More problems

There were other lapses in supervision at this same center. For example, when a care giver took a group of children ages 6-8 on a field trip, she stopped at her apartment to get money and left the children unattended, out of her sight, and with the van’s motor running for more than a minute while she went inside.

The state stepped in

Because of these and other incidents, the state denied the owner’s application for a non-expiring permit to run the facility. But the owner requested an administrative hearing, and an Administrative Law Judge (ALJ) ruled that denial of the permit was too severe a sanction for the problems that had occurred. Regarding the incident at the swimming pool, the ALJ found that the center had maintained the required ratio of care givers to children and concluded that the incident was not sufficient grounds to deny the permit because “there was no neglect and the accident happened despite imperfect but reasonable and multiple layers of supervision.”

The law

Child care centers are regulated by the Department of Family and Protective Services. The court decision points out that the Department has established “several thousand minimum standards” for such facilities. Those standards address everything from record-keeping to detailed specifications regarding the physical condition of the center.

Just my opinion

I am the parent of a child who has recently spent a year at a child care center. I am thankful that the Department imposes “several thousand minimum standards” on such centers. And after reading this court decision, I think a few more wouldn’t hurt.

To learn more details about the case, go the Court’s website at www.3rdcoa.courts.state.tx.us and search for Texas Department of Family and Protective Services v. Drozd, case # 03-09-00507-CV.

It’s okay for the Government to be late — but not you!

The American essayist Og Mandino is credited with saying the following about being late: “There is an immeasurable distance between late and too late.” A recent administrative law case involving a Licensed Professional Counselor illustrates that perfectly.

The counselor was licensed for 19 years, dutifully renewing her license each year. By law, the licensing board was required to send her a notice 30 days before her license was to expire each year.

Oops!

In 2002, the Board failed to send the renewal notice. As a result, the counselor did not renew her license and her license expired, unbeknownst to her. In 2006, she finally learned that her license had expired. At that time she applied to renew it. But the licensing board refused to renew it because it had been expired for more than one year!

Surely the courts will straighten this out – right?

The counselor sued the licensing board and argued that she should not be penalized for allowing her license to go unrenewed for a year because the board failed to send her a notice of renewal as it was required to do. Her case has been winding its way through the courts but now appears to be over. The result? She loses. In May, the Austin court of appeals ruled in favor of the board. It said that the law required the counselor to renew each year, and that requirement applied whether or not the board sent a reminder notice as it was required to do.

Moral of the story

We all have so much going on in our lives that we tend to rely on others to tell us when things are due. We rely on the dentist to tell us when it is time for a cleaning, and we rely on the government to tell us when it is time to new our various licenses and registrations. But this case shows that you must treat your professional license differently. Be vigilant about the deadline to renew your license and do not rely on your licensing agency to remind you.

The Importance of Being Earnest

Mahatma Gandhi is credited with saying “Truth never damages a cause that is just.” No where is that more evident than in applications for jobs and professional licenses.

A recent example

Consider, for example, the school teacher whose disciplinary case was heard last month at the State Office of Administrative Hearings (SOAH). The teacher was accused of failing to maintain appropriate boundaries and/or having inappropriate physical contact with students on three separate occasions. He resigned his position in lieu of being fired and then he applied for a job at another school district. He allegedly failed to disclose to the new district that he was under investigation for his actions at the previous one.

The judge’s ruling

At the conclusion of the SOAH hearing, the Administrative Law Judge found that the State Board for Educator Certification (SBEC) had not proven that the teacher failed to maintain appropriate boundaries or had inappropriate physical contact with any of the students on any of the three occasions. Therefore, the judge concluded that SBEC could not discipline the teacher for those incidents.

The kicker

But there’s more to the story. The judge also found that the teacher had misled the new district when he failed to disclose that he was under investigation for those incidents. And the judge concluded that the SBEC could discipline the teacher for that dishonesty.

The moral is this. When applying for a job or professional license, always tell the truth. Always.

The Double Whammy of a criminal conviction

 

Ways that a criminal conviction can cost you your license

If you are convicted of a crime, jail time or a fine is not all you have to worry about. The state may be able to revoke your professional license too. And the state’s power to do so got stronger in 2009 when the Legislature amended the law.

For most professions, before 2009 the state could revoke a license (or deny the application for one) only if the professional were convicted of an offense that directly related to the duties and responsibilities of the profession. So, for example, the board of accountancy could revoke the license of an accountant for conviction of fraud but probably not for the driving under the influence of alcohol.

Now, however, state agencies have more power. They may revoke (or deny) for conviction of an offense that does not directly relate to the duties and responsibilities of the profession if the offense was committed fewer than five years before the person applied for a license.

Sometimes the state must revoke the license

In the circumstances set forth above, state agencies have discretion to revoke. That is, they can do so if they see fit, but they do not have to do so. But there are other circumstances in which a state agency does not have discretion and must revoke a license. Specifically, the state must revoke in the following circumstances:

• imprisonment following a felony conviction

• felony community service revocation

• revocation of parole; or

• revocation of mandatory supervision

And some professions are governed by different rules altogether

These guidelines apply to most professionals in Texas. But they do not necessarily apply to persons who provide law enforcement or public health, education, or safety services. Generally speaking, those persons are held to even higher standards of conduct. For them, revocation (and denial) is controlled by the specific laws governing their professions.

Sitting down with the 900-pound gorilla

The Informal Settlement Conference

If you are investigated by a state agency for an alleged violation of the regulations governing your profession, you probably will be invited to attend an Informal Settlement Conference. Plan to attend it, and prepare for it as though your professional life depended on it. Because it just might. The conference may be your last, best chance to put to bed any unfounded allegations.

How it works: The specific procedure for conferences varies from one agency to another. And the conferences at some agencies are more informal than at others. (For example, Informal Settlement Conferences at the Texas Medical Board are not informal by any stretch of the imagination.) But they all follow the same general script – typically the agency will have an investigator or prosecutor who will explain the allegations against you and describe the evidence to support them. The agency will then ask what you have to say for yourself. So the purpose of the conference is for the agency to size you up and hear your side of the story before it lowers the boom and imposes discipline against you.

It’s not going to be easy: Keep in mind that prior to the conference, the agency may have heard only bad things about you. For example, if the agency began its investigation of you in response to a complaint from a member of the public, the complainant likely painted a very unflattering picture. Probably exaggerated. Maybe even lied. So, to set the record straight, you may have your work cut out for you.

Know your case: Before you walk in that conference room door, you’ll want to know the facts of your case like the back of you hand. You’ll also want to understand the applicable law. Only then will you be equipped to show the agency that the complaint is unfounded and should be dismissed and that you should be allowed to return to the work that you were trained to do.