You have spent many grueling hours immersed in study and practical experience to earn your credentials and pass your NCLEX exam, and the state Board of Nursing (BON) has granted you a professional license to practice as a nurse. That license has been hard-earned, and it is now the key to your livelihood and your career. Without it, you couldn't work legally as a nurse in any clinic, doctor's office, hospital, or other healthcare facility.
But ironically, all the time and money you've invested in your career could hang in the balance if a complaint to the board places your nursing license in jeopardy. Perhaps it was a misunderstanding, or perhaps you got into some kind of trouble. Could such a mistake truly mean the end of your career?
The truth is, yes, it could—unless you go into the process prepared. Knowledge is power, and the more you understand about the charges against you and the disciplinary process, the better your chances of mounting an effective defense. Attorney Joseph D. Lento is an experienced attorney who has helped many nurses in New Jersey who are at risk of losing their license. The Lento Law Firm has compiled the following information to inform nurses who are currently facing possible disciplinary action from the state BON.
What are the most common issues that can put a nursing license at risk?
Like doctors and other healthcare professionals, nurses are expected to hold to high standards of professionalism and quality of care. Most allegations that jeopardize a nurse's license have to do with some sort of violation of these standards. Some of the most common complaints include:
- Unprofessional conduct. This is a broad category that encompasses a wide range of behaviors, ranging from using inappropriate language on the job to engaging in an inappropriate sexual relationship with a colleague or superior.
- Boundary violations. The nurse-patient relationship is considered a sacred trust. If that trust is abused through an inappropriate exchange, using one's position to manipulate the patient, or breaching patient confidentiality—these types of violations could be grounds for license revocation.
- Mishandling/misuse of drugs. Nurses are entrusted with the administration of medications to their patients. Diverting medications intended for patients, abusing medications, failing to document medications correctly, submitting unauthorized or forged prescriptions to pharmacies—these types of offenses can certainly result in disciplinary action.
- Patient abuse or neglect. If a nurse mistreats a patient physically, verbally, sexually, or mentally, or neglects to give them timely or appropriate treatment, this can put the nurse's license in jeopardy.
- Fraud. Falsifying patient records or work hours, overstating credentials, sending incorrect or inflated bills to insurance companies—these and other fraudulent behaviors can result in loss of license (and possibly jail time).
- Criminal convictions. Different states have different criteria regarding a nurse's criminal record. Being convicted of certain crimes (e.g., theft, DUI, or drug possession) may disqualify you from practicing as a nurse in some states. You can also lose your license for failing to report a recent conviction.
Can alleged malpractice cost me my nurse's license?
Rarely if ever. Malpractice generally falls under the scope of civil lawsuits (i.e., personal injury) for monetary damages. Like physicians, nurses can carry malpractice insurance, which protects them financially against malpractice lawsuits. Generally speaking, a nurse's license may only come into dispute for extreme malpractice, which the BON will classify as patient abuse or gross negligence.
Does every violation result in loss of license?
No. The state Board of Nursing typically reserves this penalty for only the most severe offenses or uncooperative nurses. Depending on the circumstances, the available evidence, and the severity of the offense, the BON may impose a number of different penalties or sanctions without completely taking away your ability to practice. Examples may include:
- License suspension. Sometimes referred to as “separation from practice,” a suspension prohibits you from working as a nurse for a specified period of time.
- Restrictions on practice. The BON may place certain limits on your abilities to practice—for example, limiting your work hours or prohibiting you from performing certain tasks.
- Fines. The board may impose a monetary fine (sometimes called a civil penalty).
- Remediation. The BON may require some form of continuing education to fill a perceived gap in your training.
- Alternative-to-discipline program. The BON may opt to refer you to a recovery program for substance abuse (for drug/alcohol offenses), or to supervised monitoring, as an alternative to restricting your practice.
- Reprimand/censure. For minor offenses, the BON may issue a formal reprimand to go on your record with no restrictions to your license.
It's important to note that even if you avoid having your license suspended or revoked, other sanctions can still do damage to your career because they often become public record. If a patient looks you up and sees a notation that you've been disciplined, it can weaken your trust with the public.
How does my state's nursing board process a complaint against me?
Different states may have different specific disciplinary processes, but generally speaking, state Boards of Nursing follow the same basic pathway for meting out discipline as outlined by the National Council of State Boards of Nursing (NCSBN). The process goes as follows:
Receiving a Complaint
Any disciplinary process begins when someone files a complaint against you with the BON. Complaints may be filed by patients, patient family members, colleagues/coworkers, other practitioners—basically anyone who has knowledge that your alleged conduct was in violation of nursing regulations.
Initial Review
The BON evaluates the complaint to determine the nature of the complaint (e.g., drug-related, practice-related, sexual misconduct) and to determine whether it has jurisdiction over the alleged violation.
Investigation
Once the BON verifies the complaint and concludes it has the authority to pursue it, it launches an official investigation into the matter. The investigation phase may take months to complete and may involve requests for additional information and documentation from complainants, written statements from the nurse in question, site visits, interviews, etc. If the investigation turns up insignificant evidence to move forward, the BON may close the case at this point; otherwise, it will move forward to the formal charge phase.
Formal charges and hearing
If the BON decides to move toward formal charges against you, there are effectively three pathways to take:
- Administrative hearing—A full hearing, usually in front of an Administrative Law Judge, with prosecuting and defense attorneys presenting both sides, calling witnesses, etc.
- Settlement conference—The nurse and the BON come to a voluntary agreement on resolving the complaint, including disciplinary actions. When evidence against you is substantial, voluntarily participating in this option can often result in lesser penalties.
- Alternative-to-Discipline—For some violations, the BON may offer to allow you to participate in some sort of remediation or rehabilitation program (e.g., a substance treatment program or supervised on-the-job monitoring) in return for keeping disciplinary marks off the public record.
Board action. If you are found to have violated the terms of your licensure through one of these processes, the BON will then determine which disciplinary actions to take as listed above—from censure all the way to revoking your license.
Appeal. You have the right to appeal an adverse decision to the appellate courts for your state. However, these appeals typically only serve to review the case for procedural errors and rarely result in overturning the BON decision.
As elaborate as the disciplinary process sounds, keep in mind that the BON can resolve the complaint against you at almost any point in this process with skillful negotiations or by proving the claims have no merit. Hiring an experienced professional license attorney can go a long way toward mitigating the disciplinary process and keeping you from losing your nursing license.
Do I really need an attorney to protect my nursing license?
You always have the right to defend yourself against complaints to the BON, but for most nurses, it is highly inadvisable. Many nurses make the mistake of assuming the BON is there to protect them and is therefore “on their side,” and if they just “explain” the situation, the board will understand. That's not how the BON operates. They don't exist to protect you; they exist to regulate your actions and to protect the public. Thus, if someone files a complaint against you, you need to assume that the burden of proof is on you.
Here's why it's best to have an attorney when your nursing license is challenged:
- The Board of Nursing understands the disciplinary process better than you do. This puts you at a disadvantage unless you have an attorney who also understands the process.
- The challenge to your nursing license is a legal matter. Your license constitutes a legal agreement with the state to abide by that state's Nursing Practices Act, so violations constitute a legal breach. It falls under the category of administrative law, which is why a judge often presides at professional license hearings. In a legal situation, having a lawyer may be key to your success.
Bottom line: You are a nurse, not a lawyer. Since disciplinary actions over your license are a legal matter, you need a legal expert in your corner to improve your chances for a positive outcome.
What kind of attorney is best for defending my nursing license?
Technically, anyone who has passed the Bar in your state is eligible to represent you as your attorney—but that doesn't mean any attorney will do. Your neighbor's divorce attorney may be legally qualified and may give you a good rate, for example, but if the attorney knows little about Administrative Law, he/she may be just as lost as you are during the disciplinary process. For best results, you should hire an attorney with specific knowledge and experience in professional licensure defense. This type of lawyer will better understand the ins and outs of licensing boards and their procedures, as well as the inner workings of administrative hearings.
Will I appear guilty to the Board of Nursing if I bring on an attorney?
Not in the least. State licensing boards are well accustomed to working with attorneys, and chances are, if they take your case into the hearing phase, they will have their own attorneys involved. Hiring an attorney doesn't suggest guilt—it only suggests that you are taking the complaint seriously.
What can a professional license attorney do to help me?
Having an experienced medical license attorney can greatly improve your chances to keep your nursing license and reduce or eliminate any penalties issued. Your attorney will review the facts and evidence; evaluate the strength of the complaint against you; help you gather evidence and procure witnesses, if necessary; negotiate for better terms with the BON, possibly avoiding a hearing altogether; and represent your interests diligently (and aggressively, if needed) if the matter proceeds to a formal hearing. In short, if your professional nursing license is in jeopardy, hiring a good attorney is your best chance of keeping it.
This complaint is due to a simple misunderstanding. Shouldn't I just be able to resolve it informally with the board?
No matter how “simple” this misunderstanding is from your perspective, once a formal complaint has been filed, it's anything but simple. Remember, the board is there to protect the complainant, not you. The board's job is to investigate the claim to make sure you aren't endangering the public. If you attempt to resolve it informally by just “explaining things” to the board, you could actually be giving them more evidence to use against you. We recommend you never address a formal complaint without the advice of an attorney.
What happens if I just choose not to respond to the complaint?
In the eyes of the BON, failing to respond to any complaint is essentially treated as an admission of guilt. If you choose to ignore the complaint completely or refuse to cooperate, the board may rule against you by default and issue the most severe penalty applicable—which may result in a permanent loss of your nursing license. Ignoring a formal complaint is never advisable.
If an investigator from the Board of Nursing shows up at my home or work, am I required to answer their questions or let them look around?
No—and in fact, you should politely decline until your attorney is present. Generally speaking, your willingness to cooperate in an investigation will help your case because it shows good faith—but remember, investigators are looking for evidence that could be used against you, and they aren't above putting you at a disadvantage or catching you off guard by showing up unannounced. You have the right to defer all questions to your attorney or to insist that your attorney be present at all interactions. If an investigator shows up unannounced, politely ask for their contact information and let them know your attorney will be in touch.
If I lose my nursing license, can a professional license attorney help me get it reinstated?
Yes. Boards of Nursing in each state have their provisions in place for nurses to have their licenses reinstated once they have been suspended or revoked, usually after a period of 2-3 years. The reinstatement process may include any/all of the following:
- Formally petitioning the BON for reinstatement
- Paying filing fees and/or reactivation fees
- Submitting a detailed work history of all jobs held while your license was revoked
- Explaining in writing why you wish to be reinstated and why the BON should consider your request
- Demonstrating that you have completed any pre-conditions for reinstatement (e.g., continuing education, treatment programs)
- Submitting to any reinstatement plan provided by the BON, which may include a probationary period and supervision for a time period
If you are seeking reinstatement of your nurse's license, hiring a professional license attorney can make the process more seamless. The attorney can:
- Oversee the processing and filing of paperwork and fees;
- Provide a compelling argument before the BON for your reinstatement;
- Follow up with the board to monitor the status of your reinstatement; and
- Negotiate the best terms for any action plan imposed.
Will I still be able to go to my job while I'm being investigated for a complaint?
Unless the BON has taken emergency action against your license (e.g., a temporary suspension), or unless your employer chooses to suspend you, you should be able to continue working as normal while your investigation is ongoing and until any hearing takes place. Even with a complaint against you, there are many possible outcomes that don't involve you having your license suspended or revoked. Your best bet is to continue working as a nurse unless the BON says you are no longer authorized to do so.
Am I required to disclose that I am under investigation?
It depends on the circumstances. If you are allowed to keep working as a nurse while you are under investigation, you do not have to disclose this information to your patients, for example. However, if you're actively seeking employment, most employers will ask if you've been disciplined or are currently under investigation, and they will usually verify your answer—so it's best to answer truthfully. Additionally, some healthcare employers require nurses to reveal if they come under investigation—especially since they themselves might be implicated in the offense—and failure to disclose this information in a timely manner could get you fired. Consult your employer's policies to find out their expectations, and if you're in doubt—ask your attorney.
I've just been notified that a complaint has been filed against me. How soon do I need an attorney?
For your best chances at a favorable outcome, you want to involve an experienced professional license attorney as soon as possible. Some nurses wait until a formal hearing is scheduled to hire an attorney, not realizing that they may have already positioned themselves for a harsher penalty by handling the investigative process themselves. The sooner the attorney gets involved, the more opportunities you'll have to negotiate for a better resolution—possibly eliminating the need for a formal hearing altogether.
If your nursing license has been called into question by a formal complaint or accusation of wrongdoing, your entire career and livelihood are now placed at risk. Every step you take in this process without an attorney's advice is an unnecessary gamble with your future. Getting expert legal counsel now can save you plenty of headaches later—not to mention saving your income and your career. The Board of Nursing takes these claims seriously, and so should you.
Attorney Joseph D. Lento has years of experience in professional license defense cases in New Jersey and New York, and in the process, he has helped many nurses protect their licenses and their reputations. Contact the Lento Law Firm at (888) 535-3686 today to discuss your case and your options.
