Disqualification of Nursing License in New Jersey | Initial Board of Review versus Appellate Court

Marie Phillips v.  New Jersey Department of Health and Senior Services. Decided May 31, 2016.

Appellate review of a New Jersey board decision.

Submitted by New Jersey Professional License Defense Lawyer, Jeffrey Hark.

In this case Marie Phillips applied for a CNA certification in on July 7, 2014. The application asked if she had been convicted of certain types of crimes or offenses. Ms. Phillips answered “No” on the application.  In the location on the application where this question is asked, there is clear language that says “criminal history information as per minute unless expunged or sealed by judicial order “if applicant answer is yes she has ever been convicted of any of the list of crimes are offenses she would be disqualified from certification for at least two years”. Ms. Phillips received a notice of disqualification of her CNA certification based on the false information in her application.

She received a notice explaining she can request a hearing before and administrative law judge to contest the accuracy of our criminal history however she cannot as the administrative law judge to review rehabilitation materials concerning whether or not she had a criminal conviction pursuant to the administrative code section.  The applicant sent a letter requesting additional time to reflect that she had filed paperwork to have the criminal conviction expunged. The department denied her extension of time.

When somebody appears in front of any administrative agency in New Jersey you must make sure the record on your side is complete and thorough.  You must make sure to supplement the record with any and all facts you are able to use to contest a board decision.

Why?   Because when you appeal any agency decision the appellate courts review is limited to whether that administrative board’s decision was arbitrary capricious, unreasonable, or lacked fair support based on the facts in the record.   You have to do everything possible to establish and lay out the facts to your advantage at the initial board review level.

The appellate courts are bound to accept the factual findings of any administrative agency so long as they are supported by sufficient credible evidence. The appellate court is not able to substitute it’s own judgment for that of the board agency.  In addition the appellate court will give the board substantial deference to the agencies reasonable interpretation of the statute that board is charged with enforcing.

In this case the board is charged with enforcing the initial eligibility of an applicant.  Here Ms. Phillips made material misrepresentations on her application regarding her prior criminal history.  In addition that prior criminal history included a conviction for an offense that is an absolute disqualifier for board certification.  The appellate court deferred to the boards determination and enforcement of it own statutes. In addition, I have also written a blog outlining the board’s absolute ability to deny an applicant licensure based on any material misrepresentation in an application.

Jeffrey S. Hark, Esq.

609-471-1959. Cell

856-354-0050 Office

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