Anybody considered legal action against BONs for non-recognition? - page 3

Doesn't apply to me as I enrolled prior to the CA cutoff date and would sooner die than live in Kansas. Has anybody ever considered filing suit against a BON for not recognizing an EC education?... Read More

  1. by   Sheri257
    Quote from mobileLPN
    As far as the answer not being in a lawsuit. Sometimes it takes legal action to get things done. And, if action by the KS BON reduces the value of a degree I hold, then yes, I have been harmed by that decision, and they should have to show how causing that harm protects the public. They cannot.
    It's probably not just an issue of showing harm. It's probably an issue of law. The Kansas BON pretty much said what the California BORN said: their laws and regulations require clinical hours. If that's the case, any lawsuit would probably be tough to win.

    I honestly don't know why California or Kansas allowed EC to operate in the first place. It is unfair to allow the program and then disallow it, especially when the regulations have been there all along. Why the states weren't addressing this issue sooner boggles the mind.

    Nevertheless, I doubt that a judge would rule against the law in these cases, regardless of how much the BONs may have failed to enforce it. If that's what the law says, chances are the courts are going to follow it.

    The other problem is expense. The states have full time staff lawyers and virtually unlimited funds to litigate this issue. It will be tough for EC or any other plaintiff to match those kinds of resources ... especially since lawsuits would have to be filed in more than one state.

    However, if the Kansas decision is retroactive, the people who already enrolled and/or may lose their licenses after the fact probably have a pretty good legal case. I'm not sure why Kansas didn't do a grandfather clause like California did, but that's really unfair.

    Last edit by Sheri257 on Jan 15, '05
  2. by   mobileLPN
    It's the law itself, and the BONs authority to enforce it you have to attack. US history is full of things that used to be regulated by the states but legal action led to federal laws trumping state laws when they conflicted. Remember that EC is recognized by the Federal Government as a quality program. EC graduates can (and safely do) work in KS,CA and IL at US government facilities regardless of what the states BONs say. The fact that the federal government has in place a law for accrediting schools of nursing, should supersede state law on the issue. All this of course depends on the judges interpretation of the constitution.

    Realize that BONs are not invulnerable. I recall a case where a nurse successfully sued the BON when they sanctioned her license for a DUI arrest. I'll look it up and edit the details in.

    Another thing to consider is that this is administrative law. The BONs created these rules, they can change them. It's a lot easier to bring public pressure to bear on a BOn than on dozens and dozens of elected officials. Repeated legal action brings the issue into the public spotlight and allows the evidence of EC being a quality program to come out.
  3. by   Sheri257
    Quote from mobileLPN
    The BONs created these rules, they can change them.
    According to the Kansas BON link posted on this board:

    "The statutes and regulations establish that ... "

    The key word is statute, i.e. laws passed by the legislature. A lot of these clinical and other requirements were established by the state legislatures in Kansas and California, not just BON regulations.

    While the BON's may have chosen not to enforce and/or follow those laws as much as they could have, apparently a lot of the requirements are established by law in those states. That's why I still think it would be a tough to challenge in court, although that's what EC is trying to do in California.

    As far as the federal government taking over BON duties or setting policy outside of federal facilities ... well, I just don't see that happening from a practical standpoint.

    Last edit by Sheri257 on Jan 19, '05
  4. by   mobileLPN
    An important part of any legal action would be finding out exactly what the entire KS law states. Is the referenced statute simply the one passed by the legislature that gives the BON the authority to regulate the profession? Or is the rule in question statutory law? Either way there are several thngs to consider. State statutes that conflict with federal laws are just as unconstitutional as administrative laws that conflict. Legislatures can also be influenced to change laws, though there are many more of them to work on.


    Basically, you have two choices.

    1. Accept that through ignorance, they can deny qualified graduates an opportunity to work in that state. Go on about your business saying "It doesn't affect me, I live in___", until eventually, your hard earned degree is worthless.

    2. Fight like hell! Lobby and suit and suit some more on every possible, even longshot legal option until you either find a like minded judge, or wear them down and they (the BON or the legislature) change the law.


    This is one nurse that belives in making noise.



    "First they ignore you.
    Then they laugh at you.
    Then they fight you.
    Then you win."

    -Gandhi
  5. by   Sheri257
    Quote from mobileLPN
    State statutes that conflict with federal laws are just as unconstitutional as administrative laws that conflict. Legislatures can also be influenced to change laws, though there are many more of them to work on.
    Well, the flip side of that argument is: What about all the other schools that do have to follow their rules and do have clinicals? Do you think an exception should be made just for EC, or do you expect the BONs/Legislatures/Courts to throw out the clinical requirements all together?

    Elimininating clinicals all together seems highly unlikely so, if you make an exception just for EC, isn't that discriminating against all of the other schools that do have to follow their rules?

    I just don't see how anyone could convince any governmental body to do that: be it BON, legislature, federal government or court of law. It would require a complete overall of the system and requirements which, again, seems highly unlikely from a practical standpoint.

    Last edit by Sheri257 on Jan 20, '05
  6. by   chris_at_lucas_RN
    One rather gets tired of these sorts of statements being offered as though they were true when they are not.

    Excelsior College hasn't "eliminated" clinicals. Excelsior College expects you to gain your knowledge on your own (clinical and otherwise), and it tests you to be certain you have achieved an appropriate (safe and competent) level of proficiency. Academically, one must have met certain academic standards. Clinically, it is the same deal.

    You cannot get into Excelsior College unless you have had some clinical experience. They regularly review, hone, adjust, tweak, etc. what can qualify you for admission. Even then, you must be tested before you are permitted to graduate. Excelsior College has a fantastic nontraditional nursing program that encourages personal responsibility in learning. Its students and graduates are held to a high standard. Traditional brick-and-mortar schools would do very well to adopt some of that.

    I'm certain that somewhere, out there, there probably is a nurse who made an error who is an EC grad. There might even be one who is incompetent. But there are 17,000 active students presently and Lord knows how many thousands of graduates licensed and practicing today.

    Ya know, one or two negative voices does not truth make.

    One gets tired of arguments which sneak in false statements (nonfacts or downright untruths), suggesting that this is the case.

    It is most definitely not the case.

    Proof? All the nurses who are Excelsior College graduates who are safe, competent, terrific nurses. They weren't born with clinical skills, they got them the old fashioned way: they learned them. It is reasonable to suggest that if Excelsior College and their grads were a dangerous entity as has been implied so many times on this board by persons who are not in any position to know the facts, it would have made the real news by now.

    Answer this: what does anyone here have to gain by purporting that Excelsior College, its program, students or graduates are anything but top notch? I don't get a commission, and I don't think anyone else does. Excelsior doesn't advertise, it doesn't solicit, spam, market--students go to them, they don't go after students. And there are reasons why they don't have to.
  7. by   mobileLPN
    all the state boards, or the legislature, or even the courts have to do is to borrow a line from their counterparts at the State Bars. That is; require candidates for licensure to have graduated from a program accredited by a "federally recognized accrediting agency" (ABA for law, NLNAC for nursing schools). As far as I know (correct me if I'm wrong.), the only two non-trad programs that are so accredited are Deaconness and Excelsior. Both highly regarded with a history of graduating safe practitioners.
  8. by   Sheri257
    Quote from chris_at_lucas_RN
    Ya know, one or two negative voices does not truth make.

    One gets tired of arguments which sneak in false statements (nonfacts or downright untruths), suggesting that this is the case.

    It is most definitely not the case.
    Unfortunately you're taking my statements out of context. I was simply referring to the fact that EC doesn't have ongoing, concurrent clinicals in their program, which is a requirement that ultimately prompted the Kansas and California decisions in the first place. As the Kansas BON stated in their decision:

    "Performance examinations alone do not meet the requirements of direct clinical instruction as an integral part of the program or an active process in which the student participates in nursing activities while being guided by a member of the faculty."

    Instead of taking offense to your remarks, I'd just like to get back to the original point of my post, which is: Can anyone reasonably expect the states to eliminate those particular clinical requirements for just one school when they require so many other schools to follow those same requirements?

    I just don't think that's feasible from a practical standpoint.

    Last edit by Sheri257 on Jan 20, '05
  9. by   mobileLPN
    "I just don't think that's feasible from a practical standpoint." -Lizz


    Why then, is it feasible for the majority of states? Do all of these states have a glut of unqualified nurses running amok because their state BON doesn't specifically require clinical instruction concurrent with theory? I've seen no evidence that is the case.


    "You must be the change you wish to see in the world." -Gandhi
  10. by   Sheri257
    Quote from mobileLPN
    Why then, is it feasible for the majority of states? Do all of these states have a glut of unqualified nurses running amok because their state BON doesn't specifically require clinical instruction concurrent with theory? I've seen no evidence that is the case.
    I don't know if it's because the lack of concurrent theory/clinicals, but I do think Excelsior didn't do themselves any favors by allowing MA's and techs, who have little experience, into the program. After the California decision, EC did quit taking MA's and techs but, the damage was already done in that case.

  11. by   mobileLPN
    Quote from lizz
    I do think Excelsior didn't do themselves any favors by allowing MA's and techs, who have little experience, into the program.


    On that, we agree. The prerequisite should be at least EMT-P, LPN, or RT. Perhaps the BONs and excelsior could compromise. Subtract from the 360 hour clinical requirement any verified clinical hours required for the candidates current license. Then, have them do the rest as a GN preceptorship prior to taking the NCLEX.
  12. by   Sheri257
    Quote from mobileLPN
    On that, we agree. The prerequisite should be at least EMT-P, LPN, or RT. Perhaps the BONs and excelsior could compromise. Subtract from the 360 hour clinical requirement any verified clinical hours required for the candidates current license. Then, have them do the rest as a GN preceptorship prior to taking the NCLEX.
    Good idea, but what a lot of people don't understand is that those clinical requirements are set by law, at least in California. I'm not as familiar with Kansas statutes, but that kind of compromise would require a complete legislative overall of the California statutes.

    Last edit by Sheri257 on Jan 24, '05
  13. by   RN34TX
    Quote from lizz
    Good idea, but what a lot of people don't understand is that those clinical requirements are set by law, at least in California. I'm not as familiar with Kansas statutes, but that kind of compromise would require a complete legislative overall of the California statutes.

    Good point, but I like the previous post about lawyers where you are required to meet federal, not state guidelines for education. When I was an LPN out East, I called the BON and asked about EC being eligible for RN licensure if I were to complete the program there. They said no problem and EC has a great repuation on the East coast. But I was worried because I read the state laws that specifically talked about concurrent theory and clinicals in order to be eligible for licensure. They told me "Well you meet New York's guidelines for RN licensure and it's NLN accredited so you don't need to worry about our requirements." It was true, I knew several EC grads in that state.
    It just doesn't make sense to me that in CA a federal accrediting body takes a back seat to a state board, but I guess the law has decided that the individual states will decide who is eligible for licensure in their state.
    I know that in these discussions you keep harping on "EC doesn't meet CA requirements for clinicals" which we all know is true so their is no point in repeating it over and over. No one is disputing what their law states, they are disputing it's validity.
    Several months ago I posted asking if anyone directly supervised, precepted, oriented, etc. any direct contact with EC grads who could give first hand testimony that EC grads were unprepared, dangerous, incompetent, or if they lacked anything that a traditional new RN had that they did not.
    In this big nursing forum, not one response in that matter. There were only people who had positive things to say about them. You pasted one CA nurse who had bad things to say about one EC grad and that was it.
    It's not what the law states, we are questioning the validity of the law.
    It's like gay marriage, you can harp on and repeat what the law states all you want, but do we blindly accept that the law states that marriage must be between a man and woman period and that's it? That makes it ok because that is what the law reads?

close