Many nurses are unable to afford an attorney when their nursing board takes action against their license. Legal Nurse Consultants (LNC’s) are able to assist these nurses to defend themselves. The LNC cannot act as an attorney or in anyway practice law. As a Registered Nurse, LNC’s have the same duty in accordance with the law (Nurse Practice Act and Administrative Code) to know their state Nurse Practice Act, Rules and Regulations, and Scope of Practice). The Nurse Practice Act is law found under the Administrative Code created by the board and the Executive Branch (Legislature). LNCs can assist nurses in defense of themselves by helping nurses understand the interpretation of the Nurse Practice Act and relevant standards of care as it applies to a board complaint. Nurses are permitted to defend themselves and to have an advocate. At Expert Nurse Consultants (Www.Nursingboardcomplaints.com) we advocate for nurses as well as act as Experts at disciplinary hearings. We utilize a nursing approach and not a mediation approach. We have been successful in our approach in having charges dismissed.
The Mission of Nursing Boards
The mission of all boards of nursing is to protect the public. State nursing boards through the legislative body of the state publish Nurse Practice Acts. Practice Acts are not mere suggestions, they are law. And the first rule of most NPAs is that the nurse: Shall be familiar with and know the practice act [i]. The overriding rule of all NPAs is that the nurse keeps all patients safe. A foundational rule of any practice act is that the nurse utilizes the nursing process. Nursing care and documentation is expected to reflect patient assessment, recognition of the appropriate nursing diagnoses, formulation of a plan of care, and interventions. All nursing care including assessment must be documented and documented in a timely manner. When it comes to nursing boards, the expectation is truly, if it was not documented, it was not done. I have seen nurses charged by a board of nursing for failure to administer intravenous fluids or medications as ordered, because the order was accidently not signed off. The nurse however, had carefully documented on both the intravenous medication administration sheet and the intake and output form establishing the order was fulfilled. Another case was a nurse who had documented vital signs every ten minutes on a paper, thrombolytic administration sheet for stroke. She failed to chart redundantly, in the electronic medical record. Or a nurse who did not give a further 1,000mg of Tylenol because 3 grams had already been given in the emergency room. This nurse failed to document why she did not administer Tylenol above the toxic level, for a low-grade fever. Of interest was the Tylenol was not ordered for fever it was ordered for pain and the patient did not have any pain.
Boards of nursing do not always get it right. Boards of Nursing do not use a standard of beyond reasonable doubt. Instead, boards use the standard of sufficient suspicion. I once heard a board attorney tell an entire Jurisprudence class that she did not need a positive urine drug test or blood alcohol test to charge intoxication on duty. She said that all she needed was reasonable suspicion and that a report of the nurse “not acting right” was sufficient. She claimed that if a complaint alleged a nurse was staggering or slurring her speech, that provided sufficient suspicion.
Thousands of nurses are subjected to investigations a year. In the Medpage article by Ryan Basen titled, Is Nursing Board Discipline Getting More Aggressive , it states: [ii]
These actions aren't unique to Texas or to the pandemic, nursing advocates say. In their view, boards nationwide have aggressively pursued complaints against nurses and intimidated them for years. Boards have stripped nurses of their licenses and taken other disciplinary actions against them for engaging in personality conflicts with managers or reporting safety issues publicly; even for offenses unrelated to their work, such as missing child support payments.
"When I started digging, I was horrified, really," said Aurora Kim Paradisis, EdD, RN, a law student whose 2018 doctoral dissertation was subtitled, The Lived Experience of Unjust Discipline Among Registered Nurses. "It's really retaliatory," she told MedPage Today. "People are scared because it's their livelihood and they don't want to get to the point where it gets to nursing boards because once they get you, they don't let you go."
If the nurse contests the board allegations as not true, the disciplinary process can take years from complaint submitted, to the opportunity to defend oneself before an Administrative Law Judge (ALJ), at the State Office of Administrative Hearing (SOAH). Boards are sovereign in that they do not have an oversight body such as an Ombudsperson. The Attorney General can be said to oversee the conduct of boards, but the AG also will be who defends the board if the case goes to District Court. This of course creates a conflict of interest and a situation where the AG is biased.
The Initial Board Complaint
Most state boards follow a similar process.[iii] There is first a complaint submitted to the board. A complaint may come from an employer, family member, former spouse, patient or even a disgruntled neighbor. Boards do not consider retaliatory complaints, made in bad faith as mitigating circumstances. After a complaint has been received, it will be assigned to a board Investigator. Board Investigators are not required to have a nursing license of any health care related experience.
The Investigator will review the complaint, begin to gather relevant information for their review and issue notification of a complaint to the nurse. The complaint is characteristically a broad and vague summary of the alleged facts. The nurse’s response must be received by the board in most often, twenty to thirty days. If the nurse fails to respond in writing, they may face default revocation. The problem for the nurse at this juncture is that they have not seen the evidence. If the nurse believes the charges are false, a letter of denial may be submitted, including a brief carefully worded rebuttal to the charges and a formal request for the nurse’s complete file.
Nurses do have a right to review parts of their board file. Requested should be a copy of all the board is relying upon to include any documents, electronic media, consultant reports, pictures, medical records of involved patients to include relevant Pyxis print outs, the nurse’s personnel records and anything that the board has gathered. The board will not produce witness statements, the original complaint, the investigator’s chronology of the investigation process, consultant reports or other material that is considered non-discoverable and confidential. The original complaint or the names of complainants, witnesses and board staff are protected by immunity.
The board holds sole subpoena power, and the nurse has no ability to subpoena evidence, even exculpatory evidence. Depositions may not be conducted. The investigation process can be lengthy. Nurses who are represented by an attorney cannot speak with or contact the investigator. Nurses who are representing themselves may contact the board investigator and seek clarification or ask questions. It is generally accepted that the nurse should not offer up information as to their defense or expand on contributing factors. The nurse should simply ask clarifying questions and request that evidence be subpoenaed that the nurse believes is relevant. The investigator may decline to subpoena evidence or interview witnesses that the nurse believes can offer evidence in the nurse’s favor. It is the nurse’s responsibility to prove their innocence and the board has no duty to consider innocence before guilt.
Several months after the letter of complaint is received the nurse will receive a letter stating the complaint has been dismissed or received will be proposed charges. Proposed charges are far more extensive and specific explaining exactly how the nurse is alleged to have violated the NPA, board rules, standards of conduct, professional conduct or scope of practice. If the nurse agrees with the board orders and stipulations, they may sign the orders before a notary and return to the board again within usually 20 to 30 days. Some boards do not permit any less than 14 days before orders are to be returned. Nurses have no duty to tell anyone of proposed charges, to include an employer, since until formal charges are filed all proceedings are confidential. If, however, a nurse is asked on an employment application if they have ever been the recipient of Nursing Board investigation they must then be forthcoming.
Informal Hearing/Settlement Conference
If the nurse wishes to contest the charges, they may request an informal/settlement conference in states that allow them. For example, Texas offers an informal conference if the board’s Executive Director and Director of Enforcement grants the conference. California does not allow any opportunity for an informal conference before filing formal charges. Informal conferences are usually not scheduled for many more months. Informal conferences are not a hearings in the sense that they are not overseen by an unbiased Judge. The nurse’s attorney or nurse advocate may attend.
An informal conference allows the nurse a face-to-face opportunity to present her defense and to answer questions. The informal conference panel will vote on what action or dismissal they will recommend going forward. If the nurse agrees with the offer from the board staff the case and recommendation is forwarded to the formal Board of Nursing for ratification. If the nurse does not accept the board staff’s offer then formal charges will be drafted and filed against the nurse’s license.
Formal charges are filed after an informal conference or after the nurse’s contested reply to the proposed charges. Formal charges may be greatly expanded from the proposed charges, and now will list the specific areas of the NPA that is alleged to have been violated. Formal charges will also now contain the stipulations the nurse must adhere to. Stipulations are conditions the board places on the nurse’s license and ability to practice. If the nurse signs and returns the orders, stipulations are imposed. If a nurse contests formal charges, stipulations will still be imposed despite that the nurse has not had an opportunity for adjudication at the State Office of Administrative Hearing (SOAH). Most board orders contain the following general stipulations.
1. The nurse cannot hold a compact license
2. Supervision either direct or indirect is required
3. The nurse must give a copy of their board orders to all present and any future employers
4. The nurse may not practice in any setting where they are practicing direct patient care alone such as home health, or tele-nursing
5. Travel or contract nursing is usually forbidden until the board orders are satisfied
6. CEUs regarding such as jurisprudence and nursing documentation are required to be completed by a deadline and,
7. A fine may be assessed.
Specific stipulations may also apply such as suspension or probation. Revocation of a nursing license is permanent. The nurse must carefully consider if the charges are completely true and factual. If there is any concern regarding the factual basis of the charges, the nurse will not be given a second opportunity to contest the charges once signed. It is therefore, imperative that the nurse has had the opportunity to review all the material in their board file. Once a nurse has formal orders, the nurse will also be reported to two, searchable databanks. Both Nursys and the National Practitioner Databank (NPDB) will post the nurse’s charges and limits placed on their license. The board will also publish the nurse’s charges on their board website, and in a quarterly bulletin. Publication of the nurse’s orders on Nursys and The National Practitioners Databank are permanent unless removed by the board if charges were dismissed.
Nurses who choose to leave the profession and pursue another career that requires a license such as an attorney or even a hairdresser, will find it difficult. To practice with any license, the nurse will more likely than not require malpractice insurance. Insurance companies are hesitant to provide coverage to someone who has previous licensing action. Nurses who wish to pursue an Advanced Practice Degree in Nursing will find the nursing programs do not accept a nurse with board orders. APRN’s with active or even completed orders will have great difficulty obtaining malpractice insurance that is required by employers in order to practice. The collateral damage that results from board orders, even if for minor infractions, is often crippling to the nurse’s career, lifestyle and even mental health.[iv] The disciplinary process may take years to reach resolution. Once the nurse receives formal orders, they must inform any employer.
State Office of Administrative Hearing
When charges and stipulations are contested by the nurse, they will be docketed for a SOAH. SOAH is a trial with the board putting on experts and having all the evidence. Both retained nurses, and physicians may be used as board experts. Unlike civil or criminal trials, experts may be employed by the board creating what should be a conflict of interest. Nurses, unless they have malpractice insurance can only rarely afford the cost of trial and experts.
It may take up to a year or more for the board to docket the case. The discovery period does not open until the case has been set for trial. The nurse must request discovery and production from the board. Boards may delay in providing discovery, not allowing the nurse or her attorney to sufficiently prepare. It is important for the nurse to have an attorney at this point as it is necessary to know the Rules of Civil Procedure relevant to conduct during trial. It is also not uncommon for charges to be escalated suddenly before the date of the trial.
Few nurses proceed to SOAH due to the expense and because often of sheer exhaustion having suffered years of the process. The other reason that the nurse may decide against further contesting of their orders is because of the history of poor outcomes for nurses at SOAH. The Administrative Law Judge can only offer a Proposed Decision. A Proposed Decision is not binding, and the board may choose not to follow the Judge’s decision. There is a great deal of debate amongst legal scholars as to the constitutionality of SOAH trials.[v][vi]
[i] Nurse Practice Acts Guide and Govern https://www.ncsbn.org/2017_NPA_Guide_and_govern.pdf [ii] Are Nursing Boards Getting More Aggressive – MEDPAGE https://www.medpagetoday.com/special-reports/exclusives/91322 [iii] National Council of State Boards of Nursing https://www.ncsbn.org/1325.htm [iv] The Collateral Damage to Nursing Licenses Caused by Nursing Board Disciplinary Actions http://murphyjoneslaw.com/wp-content/uploads/2016/03/Collateral-Damage_Editor.pdf [v] Becoming an US Administrative Law Judge https://www.americanbar.org/content/dam/aba/administrative/administrative_law/2017_Holmes_Chapter.pdf [vi] Interview with Richard Epstein: Is Administrative Law Unlawful? https://www.law.uchicago.edu/recordings/debate-richard-epstein-and-daniel-hemel-administrative-law-unlawful