Request By:
Sharon M. Weisenbeck, MS, RN
Executive Director
Kentucky Board of Nursing
4010 DuPont Circle, Suite 430
Louisville, Kentucky 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
This is in reply to your letter of March 24, 1980. You seek clarification of the Kentucky Board of Nursing's policy as to applicants who have been convicted of a crime. You have forwarded a written policy statement adopted by the board November 18, 1976. That policy permits an applicant who has been convicted of a crime to request a hearing and to receive a board decision before the applicant completes or even attends a course in nursing.
The apparent purpose of the policy is to allow potential nurses to know with some degree of certainty whether they may be allowed to take the test pool examination before they invest in the cost and time of attending a course of study.
Your specific question is: "When can the Board review a conviction record and act on behalf of the individual holding the conviction record?"
To answer your question, we must review the statutory authority of the board as it relates to applicants for nursing licenses.
KRS 314.041 deals with applications for registered nursing licenses.
Subsection (1) provides:
"An applicant for a license to practice as a registered nurse shall file with the board a written application for a license and submit evidence, verified by oath, that the applicant is in good physical and mental health; has completed at least an approved four-year high school course of study or the equivalent thereof; and has completed the basic curriculum in an approved school of nursing and holds a diploma thereform." (Emphasis supplied.)
KRS 314.051 applies to licensed practical nurses and subsection (1) contains similar language to that found in subsection (1) of KRS 314.041.
So, in both cases, the applicant for either a registered nurse or licensed practical nurse license must have met certain requirements before he/she can be considered a bona fide applicant. The applicant must have had a high school education, or its equivalency, be in good physical and mental health, have passed the basic curriculum in an approved school of nursing and have a diploma (a certificate in case of an LPN) from such approved school.
Further, KRS 314.091(1) provides, in part:
"The board [of nursing] shall have power to deny . . . any license to practice nursing . . . applied for in accordance with KRS 314.011 to 314.161 and 314.991 . . . upon proof that the person:
". . . .
"(b) has been convicted of a misdemeanor or felony which violated acts that bear directly on the qualifications or ability of the applicant or licensee to practice nursing. "
Of course, before denying a license because of prior criminal history, the board would be required to hold a hearing, both pursuant to its law (Chapter 314 KRS) and pursuant to KRS Chapter 335B, particularly KRS 335B.030 (if a hearing is requested).
Inasmuch as the applicant would not be eligible to be considered for a license until he/she met the educational requirements, that is, has taken an approved nursing program and held a diploma therefrom, the board would not be in a position to hold a hearing regarding the prior criminal record until the applicant had graduated from nursing school and was otherwise eligible to take the state board test pool examination.
If the board were to hold a hearing before the candidate had completed his/her course, any decision regarding the history would be premature in that the candidate may not meet the contingent requirements -- complete the course successfully or may have additional criminal history. Between beginning and ending of school, the board's membership may change.
In short, the decision of one board (prior to schooling of a candidate) and the other board (after schooling was completed) with new membership might be different. Whereas, the first board might consider that a candidate's prior criminal history did not affect his/her ability to practice nursing, the second board might reach the opposite conclusion.
So, the board should not even consider holding a hearing regarding a candidate's criminal history until the candidate is a proper applicant and shall have met the threshold requirements of KRS 314.041 and 314.051.
As a practical matter, a certain number of persons attending a nursing school do not complete the courses. There is no point in holding hearings for a percentage of this group; this would be required if the hearings are held before the applicant went to nursing school.
Therefore, in answer to your specific question, the board should not hold hearings regarding an applicant's criminal history until the person is a bona fide applicant and has satisfactorily completed his/her nursing training.