Defending Your Nursing License
When You Are Reported To a Board of Nursing or Licensing Agency
No nurse wants to find themselves reported to their licensing board. Thousands of nurses nationwide every month, however, find themselves in this position. It is important to understand the investigation and disciplinary process. A letter from the Board can never be ignored. Quick action is required. Your license is at stake.
THE INVESTIGATION PHASE
The Complaint and Retaining Counsel
The Nurse will receive a certified letter from the Board or a call from an investigator. The nurse should not respond until they have spoken with counsel. If the nurse has malpractice insurance, they should call their carrier. To retain an attorney, sites such as the American Association of Nurse Attorneys, are helpful. Licensing Attorneys specialize in Administrative Law. An Attorney will defend the nurse and negotiate with the Board on the nurse’s behalf. For nurses who cannot afford an attorney, there are Nurse Advocates. Nurse Advocates assist the nurse to mount their own defense. Nurse advocates can assist with their specialized knowledge regarding the Nurse Practice Act and the rules and regulations that govern a nurse's license. Nurse Advocates do not practice law.
Responding to the Letter of Complaint
The nurse will be required to respond in writing, to the vague letter of complaint. They will be assigned an investigator. Dependent on the state, the nurse may be asked to partake in a telephone interview with an investigator. Most states permit the nurse to review their Board file, absent the complaint, witness statements, and other protected evidence. It is helpful to review the Board file, especially the medical records, to refresh the nurse’s memory and make an informed reply. It is unlikely that the records will be received by the time the nurse’s response is due. If the file has not been provided with the medical records, before the reply is due, then included in the reply should be that the nurse could not provide a completely informed reply. In this case, you can respond with a “general denial” if appropriate. The nurse can tell an investigator they cannot respond fully until they can review the records. There will be another opportunity to respond if formal charges are sent. It is important to note that if the nurse did do what is being alleged, the Board responds best to the truth, and a demonstration of remorse. The Board looks for an ability to take responsibility. The Board does not look favorably on blaming. Even blaming system errors are unlikely to be seen as mitigating circumstances unless the nurse took action to correct the situation such as accessing their chain of command.
Request and Review Your Board File
Request of the investigator the Board file and review the evidence. Often the nurse has been alleged of a failure in documentation or to have failed to act, yet when the records are carefully reviewed the records reflect something different. No one knows the documentation better than the nurse. We had a case where a nurse was alleged to have diverted 100mcg of Fentanyl. Once we obtained the PACU records we were able to locate each titrated dose of Fentanyl to equal 100mcg. The Medication Administration Record was difficult and confusing to read, and the Board investigator was not a nurse, so was not likely to have been able to interpret the records. The charges were dismissed against the nurse once we could show where in the records the documentation proved the charges wrong. Once the Nurse’s file is reviewed and if exculpatory evidence is found, amend the original response to the complaint letter. Charges can be dismissed in the investigation phase.
If the particular Board offers an informal/settlement hearing, one may be requested. Proposed charges may have been received. These charges will contain specific allegations of violations of the Nurse Practice Act (NPA) to which a response was requested. The hearing is an opportunity to sit in front of the licensing staff and present the nurse’s case. A decision by the Board will usually be proposed at the end of the hearing. The nurse’s attorney or advocate will prepare the nurse and can attend the hearing. Cases do settle at this stage.
THE DISCIPLINARY PHASE – THE BOARD’S LEGAL DEPARTMENT
Respond to Formal Charges
Received will be formal charges issued by the Board’s attorneys. (In many states proposed charges are not issued first). These charges will contain details of specific areas of the NPA alleged to have been violated.
It will now be easier to respond with specificity, especially with what has been gleaned from reviewing the medical records. The nurse and their advocate or legal team will work on a detailed rebuttal to the charges. Include where in the records evidence can be found of having met the requirements of the Nurse Practice Act. Make the response detailed and include relevant evidence-based literature that represents the standard of care. It is at this stage that negotiation with the Board attorneys begins. Negotiation involves reducing or dismissing charges, but the Board rarely will agree to dismiss all charges once at this stage. If the nurse contests all the charges it is here they can request a State Office of Administrative Hearing (SOAH) Mediation. Mediation is different from the SOAH trial, it is an opportunity instead to mediate with a SOAH judge present before proceeding to a trial.
STATE OFFICE OF ADMINISTRATIVE HEARINGS - MEDIATION
The State Office of Administrative Hearings (SOAH) is a separate agency from the Board. They are the Administrative Law branch of the Legislature, responsible for resolving contested disputes involving state agencies. Once the nurse is docketed for any SOAH proceeding, the discovery opens, and the nurse’s Attorney or Nurse Advocate can send a letter for a Request for Discovery and Production and obtain the complete Board file.
Mediation must be requested and is the first step before trial. Mediation is less formal than a SOAH Hearing, which is more of a trial. Mediation will include the nurse and their Attorney or Nurse Advocate, a Board Attorney, a Board Nurse Consultant, possibly the Board Investigator and a Board Nurse Expert, along with the mediating Judge. The Board Attorney will have an opportunity to ask the nurse questions. The nurse will have an opportunity to present their defense. Both parties will then usually break off into separate rooms and the mediator will go between the two attempting to meditate an agreement that both parties agree to. If mediation fails, then the case will proceed to a formal hearing.
STATE OFFICE OF ADMINISTRATIVE HEARING - TRIAL
SOAH is otherwise a trial. It is at this stage that an attorney must represent the nurse as it is necessary to have education and experience in the rules of Civil Procedure. The Board Attorney will put on the stand expert witnesses and other fact witnesses to testify against the nurse. An Administrative Law Judge will oversee the proceedings. A SOAH trial is expensive. There will be attorney’s fees and expert witness fees if the nurse wishes to call the stand experts. Experts charge $150.00 to $350.00 an hour. The nurse as the defendant will take the stand and be questioned by their Attorney and then cross-examined by the Board Attorney. Cross-examination can be quite intimidating and even aggressive. The Judge will then make a “Proposed Decision” at the completion of the proceeding. The Judge’s Proposed Decision is not final, or binding and the Board can elect to deny it. At this point, the nurse has no further options except to elevate the matter to District Court which is very costly.
The Board can draw the entire process out for years. It is always best to push for an early dismissal achieved through rebuttal letters and accompanied evidenced-based literature that proves the standard of care as it is to be practiced in the real clinical setting. Being able to advocate for one's own defense at an informal hearing or settlement hearing often results in a settlement before the case is moved to the legal department and elevated to formal discipline. This is always our goal at Expert Nurse Consultants.