Court says no to request to expunge discipline for failure to renew

Posted on October 20, 2013 in Unlicensed Practice

Boards do not have an obligation to distinguish between citations for a failure to renew and a more serious professional lapse, or to provide a method of expungement for minor citations, a Pennsylvania appellate court stated September 9

(Poskin v. State Board of Nursing of the Commonwealth of Pennsylvania).

Joel Poskin, a registered nurse in Pennsylvania, accidentally allowed his license to lapse in 2008 when he moved and a renewal notice was sent to his old address. Poskin was unaware of the lapse until October of 2010, when his employer discovered that his license was not valid and fired him. The state board of nursing subsequently cited and fined Poskin $1,000 for a year’s worth of unlicensed practice.

Poskin paid the fine without issue but sought to remove the citation from his record. Unfortunately, no mechanism exists for the removal of a discipline record issued by the board; it therefore denied his request.

Poskin claimed that the board’s inability to expunge citations or differentiate between minor citations, like failing to renew, and major ones, like substandard care, violated his rights under the state constitution; he also argued that the board’s refusal to expunge a sanction for failure to renew was not reasonably related to its mission of ensuring quality in the nursing profession.

Poskin then filed a judicial complaint against the board. After some confusion over jurisdiction, the case made its way to the Pennsylvania Commonwealth Court, which issued a decision written by Judge Bonnie Leadbetter.

Although Poskin had ended up in the correct court—the Commonwealth Court—he had not filed his claim properly, Judge Leadbetter wrote, as he had filed an claim seeking to order the board to fulfill his request instead of filing an appeal of the board’s decision. Poskin’s case would have to be dismissed for his failure to file correctly.

However, the judge did consider Poskin’s argument in a footnote.

Defending the serious treatment by the board of Poskin’s failure to renew, Leadbetter noted that the nursing license renewal forms require a licensee to disclose whether they have fulfilled their continuing education requirements or have been the subject of any criminal charges or professional discipline since their last renewal.

The collection of that information, Leadbetter wrote, is reasonably related to the board’s mission and the maintenance of a citation is a rational deterrent to a licensee’s failure to provide this information.