Know the Disciplinary Process
If you are a nurse facing license discipline, then you need to know what may happen. You need to know the steps that your disciplinary proceeding will follow to prepare yourself to participate for the best possible outcome. Knowledge is power. Procedural knowledge is an even greater power. If you don't know what's next, then you won't be prepared to make the best of that opportunity. Nursing license proceedings provide significant due process protections. Those protections mean almost nothing if you aren't using them to your best advantage. To use disciplinary procedures to your best advantage, you must know them. Professional license defense attorney Joseph D. Lento and the expert team at the Lento Law Firm are ready to help you employ those procedures in any state to save your nursing license.
Governing Law and Governing Body
Before looking at the specific disciplinary procedures, appreciate their source. Know who is taking action against your nursing license and why they are taking action. Each state has a Nurse Practice Act authorizing a state Board of Nursing to license nurses and regulate nursing. The District of Columbia and four U.S. territories also have such acts and nursing regulatory bodies. The Nurse Practice Act in each state determines qualifications for earning and maintaining a nursing license. The Acts also define the titles that nurses may carry, what nurses may do and must not do, and what happens if a nurse violates those provisions. Your state's Nurse Practice Act is how your state's Board of Nursing has the legal authority to pursue disciplinary action against you for any suspected misconduct.
Common Causes and Concerns of License Proceedings
Disciplinary officials generally commence license proceedings only when they feel that the threat that the accused nurse presents to the public is greater than the time, trouble, and expense of the proceeding. Nurses are human. They make mistakes, and disciplinary officials know it. Disciplinary officials generally leave to the civil courts disputes over whether a nurse's carelessness in one instance led to a loss worthy of compensation. Don't expect a license proceeding over every little mistake. Instead, disciplinary proceedings tend to address serious, repeated offenses arising out of poor education and training, bad or unstable character affecting the reliability of nursing care, and similar ongoing or systemic problems. Indeed, studies of healthcare professionals show that poor organizational culture is a leading cause of misconduct proceedings. Common forms of serious misconduct for which state nursing boards discipline nurses include:
- alcohol intoxication while on nursing duty
- drug impairment while on nursing duty
- theft of medications or personal belongings from patients
- providing treatment or care beyond the scope of nursing
- falsifying patient records
- physical or sexual abuse of patients
- gross neglect of patient care causing illness or injury
- departures from nursing practice standards causing illness or injury
- criminal arrest, charges, and conviction for dishonesty or violence
State Nurse Practice Act Examples
Take, for example, New York's Nurse Practice Act authorized at N.Y. Educ L §6900 et seq. New York's act defines the practice of nursing, §6902, states who may use the titles registered professional nurse or licensed practical nurse, §6903, and creates a state Board for Nursing, §6904. New York's Nurse Practice Act gives the Board for Nursing authority over nurse licensing and professional conduct. The Act also states the requirements for licensing as either a registered professional nurse, §6905, or licensed practice nurse, §6906. New Jersey at N.J. Stat. §45:11-23 and Pennsylvania at 49 Penn. Code §21.1 et seq. are other examples of similar Nurse Practice Acts. Professional license defense attorney Joseph D. Lento and the expert team at the Lento Law Firm are available to represent you in New York, New Jersey, Pennsylvania, and any other state on nursing disciplinary proceedings or other nursing license issues as needed.
The National Council of State Boards of Nursing
While each state may enact its own Nurse Practice Act, most of the Acts share common features. That's because state nursing boards are all members of the same national organization. The state nursing boards in all fifty states join the National Council of State Boards of Nursing. The National Council calls itself the world leader in nursing regulation, having eighty-nine worldwide member organizations counting the fifty state nursing boards. The National Council's U.S. members also include the District of Columbia and American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands. Membership requires the state board of nursing to use the National Council's licensing exams. The National Council counts five million active U.S. nurses licensed under its U.S. member boards.
National Council Disciplinary Procedures
The National Council is significant for nursing disciplinary actions because the National Council recommends disciplinary procedures for your state Board of Nursing to follow. If you face a disciplinary proceeding, then the chances are that your state Board of Nursing will be following the National Council's procedures. The National Council indicates that less than one percent of nurses suffer discipline in any one year. Yet, the risk of discipline over several years or even decades of nursing practice increases dramatically. And if one percent of all nurses are suffering discipline each year, that number means a lot of disciplinary proceedings. If you face a disciplinary action against your nursing license, then you are not alone. Your state Board of Nursing has a clear mechanism in place with clear procedures tracking the National Council's recommendations.
The National Council's Licensing Database
Rest assured: disciplinary findings get reported. Hiding discipline against your nursing license isn't an option. The National Council of State Boards of Nursing maintains a national licensing database Nursys.com. Medical care providers, employers, and others interested in a nurse's license can search the online database. The National Council reports that its database Nursys.com receives 30,000 license searches daily. The database also reflects any discipline against the nurse's license. The database includes data from all states and other jurisdictions participating in the Nurse Licensure Compact. Presently, thirty-eight jurisdictions participate in the Compact, including, for example, Texas, Florida, and Virginia. New Jersey has partially implemented Compact requirements, and Pennsylvania has committed to do so. New York does not currently participate in the Compact.
Nursing disciplinary proceedings begin with a complaint. But nurses and their employers often have opportunities to head off a complaint before it happens. If, for instance, a patient believes that a nurse neglected or wrongly administered patient care, then the nurse or hospital representatives may be able to show the patient that no care was necessary, the nurse did as directed in accordance with nursing practice, or any failure in nursing care did not cause any illness or injury. Some complaining patients just need thoughtful attention. Complaints can arise simply from poor bedside manner, where the nurse did everything else according to sound nursing practices.
Early intervention with the patient, after the patient expresses displeasure but before the patient contacts licensing authorities, can forestall unnecessary complaints. If you have a patient whom you believe is about to complain to licensing authorities about your nursing practice, then promptly alert your employer, asking that your employer's representatives intervene to defend you against the allegations before they turn into a formal complaint. If your employer refuses to take appropriate action in your defense, and you still expect a formal complaint to follow, then contact professional license defense attorney Joseph D. Lento and the expert team at the Lento Law Firm for prompt assistance. Don't let a potential disciplinary offense fester. A stitch in time can save nine.
Complaints need not come from patients the accused nurse has cared for, although patients are a common source. Patients, with all their quirks and maladies, can undoubtedly be difficult for nurses. Family members of patients may also complain when they feel that their patient isn't getting the nursing care ordered and required. Every nurse has dealt with family members who may expect miracles well beyond acceptable nursing practice. Other nurses, supervising doctors, hospital administrators, and other professional colleagues may also complain of nursing misconduct. Indeed, state mandatory reporting laws may require another nurse or a doctor to report a nurse's suspected patient abuse. Complaints, in short, can come from almost anywhere. The state nursing board's concern is with protecting the public against substandard nursing care. The complaint's source isn't necessarily important.
Complaints do not go to the National Council, which has no discipline authority, but instead to the state nursing board, contact information for which the National Council supplies. Each state nursing board has its own complaint intake procedures. Most states require a written complaint, often on a form that the state nursing board offers online. Most states require that the complainant sign the written complaint and include the details of the alleged misconduct. Complaints must adequately identify the accused nurse and must contain enough allegations in enough detail to raise the possibility of misconduct. Because many complainants are patients without medical knowledge, some state nursing boards permit disciplinary staff members to assist in drafting a complaint or completing a form. The complaint must give disciplinary officials enough information to decide whether to proceed.
Disciplinary officials who review license complaints against nurses know well that complainants who have no medical training will often complain of acts that do not constitute misconduct. Disciplinary officials generally have the nursing education, training, and experience to distinguish between complaints that raise valid concerns and complaints with no merit. Disciplinary officials will dismiss meritless complaints after an initial review. Examples of meritless complaints can include:
- personality conflicts
- patient concerns over a nurse's permissible appearance
- patient concerns over a nurse's authorized dress
- patient complaints that a nurse followed the doctor's reasonable orders
- patient complaints that a nurse failed to act as a doctor
- patient complaints about failed healing despite adequate nursing care
Dismissal of a meritless complaint may mean that the accused nurse won't even hear of the allegation. The state board of nursing will not require the nurse to respond to the frivolous complaint. In some cases, what you don't know won't hurt you. If you don't hear from the state board of nursing, then sleep a little easier. If you know that someone has complained to the state board, but you haven't heard from the state board, then your best action is to preserve all evidence of your nursing practices while allowing disciplinary officials to complete their initial review.
The state board of nursing investigates only those complaints that may have potential merit. The time for you to act is with disciplinary officials' notice of investigation, also called a request for investigation or RFI letter. Disciplinary officials may take several investigation steps about which you may not hear or know. Those steps often include an interview of complaining witnesses or a request for further complaining witness information. They may obtain and review patient records. Disciplinary officials may also consult experts on nursing care, review work schedules or other administrative records, and make site visits. In cases of suspected criminal misconduct, they may also coordinate and cooperate with law enforcement officials. But at some point, investigating officials will, in most cases, want to hear the accused nurse's side of the story. They may request your written answer, production of documents, conference attendance, or formal interview. They will generally want to hear how you respond to the complaint's allegations one way or another.
What to Do When Responding to Investigation
Your response to the request of disciplinary officials for your information (your side of the story) is a critical stage in your disciplinary proceeding. Do not ignore the request or give the request minimal attention. Instead, promptly retain an expert professional license discipline defense attorney. You need that expert help to ensure that your response is timely, accurate, and complete. As the saying goes, the cover-up can be worse than the crime. Inaccurate and incomplete responses can be their own form of misconduct. Don't make things worse with a half-hearted, inaccurate, and incomplete answer. You also need expert help to ensure that you do not mistakenly admit to something that you did not, in fact, do. Offhand, careless, or incomplete answers can make you look responsible for misconduct that did not occur. Whether disciplinary officials require your written answer, in-person interview, or production of documents, you should promptly retain expert professional license defense counsel to prepare and assist in your response to the investigation. Professional license defense attorney Joseph D. Lento and the expert team at the Lento Law Firm are ready to assist you.
Be Cautious of Disciplinary Officials
Your professional development as a nurse occurred in a culture of trust. Your work as a nurse occurs in that same culture. You have to trust fellow nurses, doctors, supervisors, administrators, and other professionals in the ordinary course of your nursing practice. Consistent with that professional culture, the National Council of State Boards of Nursing gives to nurses who face disciplinary proceedings the following disarming advice about disciplinary proceedings:
“If you receive notice that you are the subject of a complaint, contact the BON [Board of Nursing] immediately. The investigation, from initial complaint until board decision, will be handled in a fair and just manner. Your BON has an established process in place to ensure your rights under the law. A BON representative will describe the details to you and answer any questions you may have.”
Frankly, that's terrible advice. Advice to trust the disciplinary officials because they are fair, will ensure your rights, and answer your questions ignores their investigatory and prosecutorial roles. They are disciplinary officials charged with rooting out nursing misconduct. They are not your professors, supervisors, or colleagues interested in your retention and development. Disciplinary proceedings are fundamentally adversarial, not collegial. That's why you need expert representation from an attorney who knows administrative professional license proceedings. Don't just go it alone. Instead, promptly retain professional license defense attorney Joseph D. Lento and the expert team at the Lento Law Firm before responding to disciplinary officials.
Due Process Rights
Once disciplinary officials conclude an investigation, practices vary from state to state, office to office, and case to case, as to what happens next. Due process rights lurk behind those differing practices, though. Disciplinary officials know that you have a property interest in your nursing license and practice. The Constitution's Fourteenth Amendment prevents state officials from depriving you of that property interest without due process of law. The hallmarks of due process are (1) notice of the charges and (2) opportunity for hearing (to tell your side) before an unbiased decision-maker. The complaint and request for investigation may well have given you adequate notices of the charges. You know what you are up against. You need a fair hearing unless you admitted to the charges, or the investigation included a conference where you got to speak and challenge evidence supporting the allegations against you. Be sure, though, to recognize, preserve, and rely on your due process rights through your expert professional license defense attorney.
Pre-Hearing Conferences and Communications
In some cases, disciplinary officials will invite you and your attorney to communicate about a compromise resolution short of a complete and formal hearing. The sides may even schedule a pre-hearing conference. If the allegations are so serious and substantial that license revocation is the only outcome disciplinary officials will accept, then the sides may not talk. Otherwise, in most cases, you, your attorney, and disciplinary officials should communicate about possible agreed-upon, voluntary resolutions. Unless the alleged misconduct is so bad as to suggest irredeemable bad character, disciplinary officials may prefer to save the accused nurse's career if other measures can assure officials that the alleged misconduct won't repeat itself. Expect your expert professional license defense attorney to have some communication with officials about potential voluntary resolutions. And don't worry, you have the final say in whether to accept any such agreement.
Many states, including for example New York, New Jersey, and Pennsylvania, offer nurses and other professionals some form of voluntary recovery program, also known as a professional assistance program. Voluntary recovery programs help nurses get treatment for diagnosed mental or physical illnesses, including substance abuse disorders. Voluntary recovery programs also delay and, in some cases, avoid license discipline. Committing to the treatment of the underlying condition enables some nurses to preserve their license, even when the nurse committed a clear license violation. The programs tend to require a diagnosed underlying mental or physical illness or disorder. Substance abuse involving lifestyle and recreation choices won't find much compassion from disciplinary authorities. If the misconduct of which officials accuse you is related to a diagnosed or diagnosable disorder, then consider a voluntary recovery program. Other compromise workouts can include:
- remedial education and training
- additional supervision and support
- voluntary restrictions on nursing practice
- reassignment to other nursing duties
- change in nursing employment
Expert professional license defense attorneys can be creative, convincing, and resourceful. An expert attorney with substantial experience in professional license defense can generate creative options that you or your case's disciplinary officials may not have considered. A national attorney experienced in license defense can also advocate effectively, convincing officials to voluntarily accept alternatives to license suspension, revocation, or public censure that could result in job termination. Retain national professional license defense attorney Joseph D. Lento to help you pursue voluntary resolution of your nursing license disciplinary proceeding. A known compromise can be far better than an unknown hearing outcome.
If you (with your expert attorney's advice) and disciplinary officials agree to a compromise resolution of the charges against your nursing license, then you will probably have to review, approve, and sign a consent agreement. See this example consent agreement for a nurse accused of patient mental abuse. You may even need to appear before the state nursing board to confirm your agreement. Disciplinary officials recognize that any action against your license is a serious matter to you. The consent agreement process ensures that you make an informed decision. You will already have had your expert attorney's confidential advice on whether to approve the consent agreement. Indeed, your attorney will have closely reviewed the consent agreement to be sure it states the terms to which you agreed. But the state nursing board may want to hear you say that you understand specific terms, especially if those terms include significant impacts to your license, such as license censure, restriction, suspension, or revocation.
Final Orders Approving Consent Agreements
Your consent agreement to a compromise resolution of disciplinary charges may not entirely end your nursing license disciplinary proceeding. The decision on settlement terms is not all up to you and the disciplinary officials. Depending on the nature of the charges, the terms of your agreement, and the procedures of your specific state, your state nursing board may have to approve your consent agreement with a final order. See this example of a consent agreement with a final order, suspending the license of a nurse accused of diverting drugs and falsifying records for three years. In reviewing and approving your consent agreement, the state nursing board may require you to appear at a brief hearing. In some cases and states, the board may require you to admit to allegations. Be sure to have your expert attorney's advice on whether the board will require your admissions and, if so, what impact those admissions may have on your job, career, future licenses, licenses in other states, and civil liability.
If your nursing license disciplinary proceeding does not resolve voluntarily, and disciplinary officials determine to proceed, then they must generally offer a formal hearing. A disciplinary hearing has some trial-like features. Your case should proceed before a hearing officer or hearing panel, likely one composed of nurses, nurse supervisors, or professors of nursing who know the standards for nursing practice. The state nursing board's disciplinary officials will probably act as prosecutors rather than presenting balanced evidence on the charges. That prosecutorial role means that they will present documents and call witnesses implicating you in misconduct. Disciplinary officials will likely leave it to you and your attorney to call other witnesses to exonerate you or to mitigate the impact of any wrongdoing. Witnesses will likely testify under questioning. And the hearing officer or panel may expert or permit your attorney to make an opening statement and closing argument in some abbreviated form. Don't attempt to master these trial-like procedures on your own. Professional license defense attorney Joseph D. Lento has substantial experience in criminal trials and other formal court proceedings. Retain an expert professional license defense attorney.
Relaxed Hearing Procedures
Professional license disciplinary proceedings are administrative in nature, though not full judicial court proceedings. Your disciplinary hearing will have a level of informality that a court would not permit. Don't expect trial motions to exclude evidence, sequester witnesses, or direct a verdict. Don't expect strenuous arguments and objections over the hearing's procedure. Administrative license hearings also don't generally take the time that trials, especially jury trials, take. Your hearing may be over in an hour or an afternoon, even if it involves relatively serious charges. Don't be lulled, though, by your hearing's informality. The efficiency and informality of administrative hearings simply means that your attorney must be more prepared than ever to present your best evidence and make your best arguments. Professional license defense attorney Joseph D. Lento knows how to make the most of relaxed and relatively informal administrative hearing procedures.
The hearing is not likely to follow strict rules of evidence. The relaxation of evidence rules can work for you or against you. For example, the hearing officer or hearing panel may consider some unauthenticated documents, hearsay testimony, and even statements of witnesses who do not appear at the hearing. That supplemental evidence that a court might refuse to admit could be evidence in your favor or against you. You, the complainant, and other key witnesses, though, will likely be present to share your accounts and observations in person. The hearing officer or panel may place you and other witnesses under oath. The hearing officer or panel may question you and other witnesses and may permit questioning, even cross-examination, by your attorney. But the questioning is not likely to take the highly adversarial form that one sees in criminal defense trials. Administrative hearings take an experienced attorney's special sensitivity and skills.
Hearing officers or panels do not generally decide discipline cases at the hearing. Don't expect the hearing officer or panel to announce a decision on the disciplinary charges when the hearing concludes unless your experienced attorney informs you otherwise. Instead, you are likely to leave the hearing waiting to receive the hearing officer or panel's written decision. The decision should be crystal clear about the result, deciding all charges one way or the other. It should also communicate the sanction that the hearing officer or panel recommends. Review the decision closely with your retained expert professional license defense attorney. Be sure that you understand its findings and any sanctions, restrictions, or conditions placed against your license. Then, listen carefully to the counsel of your retained expert professional license defense attorney. A decision, even an adverse (losing) decision, may be just another step along your way to preserving your nursing license, practice, and career. Decisions are important, but they aren't always final. And their impacts aren't always obvious, sometimes until years later.
Your state nursing board may provide an administrative appeal of the hearing decision to the board or a designated appeal panel. An appeal is another opportunity to set the record straight before a different and presumably unbiased decision-maker. Your expert professional license defense attorney will advise you as to the prospects for a successful appeal. If you did not retain an attorney and suffered an adverse hearing decision affecting your nursing license, then promptly retain professional license defense attorney Joseph D. Lento and the Lento Law Firm to evaluate your appeal rights and, if appropriate, pursue your appeal. Appellate administrative practice is a highly specialized legal field where attorney Lento has the relevant skill and experience. Don't miss out on your opportunity to take an appeal. And don't try an appeal on your own. Obtaining, analyzing, and advocating the hearing record before an appellate body is a very technical skill.
If your nursing license disciplinary proceeding resulted in adverse decisions all the way through your administrative appeal, then your next procedural step could be court action challenging the result. Courts have only limited authority under state court rules, and state administrative procedures act to review and overturn administrative decisions. But they have some authority. State administrative procedures acts tend to permit review and reversal of a licensing board decision when the decision:
- violated a constitutional right
- exceeded the board's legal authority
- made an error of law on its face requiring no fact redetermination
- was not supported by substantial evidence on the record
- was arbitrary and capricious
- was an abuse of discretion
Undertaking a court action to overturn an adverse administrative decision, suspending or revoking your nursing license, is for a skilled and experienced professional license defense attorney. Representing yourself in a court action to regain your nursing license is generally a futile affair, as this recent example confirms. If you have exhausted your administrative rights and still suffered an adverse licensing decision, then retain professional license defense attorney Joseph D. Lento to review and evaluate your right to pursue a court action.
Nursing license disciplinary proceedings have a point to them. That point is to sanction nurses whose conduct violates nursing practice standards and represents a concern to the public. Sanctions play the dual role of punishing and correcting the accused nurse while also warning and deterring other nurses. The hearing officer or panel's decision typically includes the proposed sanction, which the state board of nursing may have to affirm or may choose to modify. The state board's review of the proposed sanction is another opportunity for expert attorney advocacy. Sanctions may include any of the following:
- reprimand, sometimes called censure
- monitoring and supervision
- referral to a recovery program
- restriction on practice
- remedial training or continuing education
- fine, sometimes called a civil penalty
- cease and desist orders
- license suspension
- license revocation
One final caution about nursing license disciplinary proceedings that may further raise your stakes; an adverse discipline result in one state will generally affect a license the disciplined nurse holds in another state. If you lose your nursing license in one state because of serious misconduct, you may lose any other nursing licenses you hold in other states. The Massachusetts case of Lankheim v Board of Registration in Nursing is an example in which one state, Florida, charged a nurse with serious misconduct, for which the nurse voluntarily relinquished her nursing license. The Massachusetts court in the Lankheim case affirmed the Massachusetts state board of nursing's five-year suspension of the nurse's license. Reciprocal discipline is not only possible but likely. Be careful what you admit. And be sure to devote adequate resources to your nursing license defense, especially if you hope to preserve a nursing license in another state.
What Else to Do During Disciplinary Proceedings
You have a lot to contribute to your nursing license disciplinary defense, working closely with your retained expert professional license defense attorney. Preparing for and participating in those proceedings will occupy some significant amount of your time, as your expert attorney advises and recommends. But you also have a professional life to lead, even as you await your disciplinary proceeding's result. State nursing boards typically have the legal authority to suspend your license during a disciplinary proceeding if the misconduct allegations warrant it, such as in cases involving criminal misconduct. You must strictly comply with any such board action at the risk of losing your license for non-compliance. But in many other cases, your license will remain in place while the proceeding is pending. Your employer may nonetheless suspend or restrict your nursing practice due to the misconduct allegations. Once again, strictly comply with any employer actions at the risk of losing your employment.
But beyond those concerns, your best action during disciplinary proceedings is usually to hold your head high and continue resolutely to practice your nursing profession at your highest level of competence. You worked hard to earn your nursing degree and to pass the nursing exam to qualify for licensure. Your employer believes in your ability to provide a valuable nursing service, or your employer wouldn't have been assigning you nursing duties and compensating you for them. Remind yourself of these positives. Focus on the positive, even as you attend diligently to any requirements of your disciplinary proceeding. Above all, don't give up and don't give in to false, unfair, or exaggerated disciplinary charges.
Retain an Expert Professional License Defense Attorney
Professional license defense attorney Joseph D. Lento knows what nurses face. Attorney Lento knows the problems and pressures of a professional practice. Attorney Lento has represented professionals in many disciplines, including medicine and nursing, all over the country, and he understands why nurses face license issues. Attorney Lento has the compassion and commitment to advocate for nurses facing license issues and the critical knowledge of how to use administrative licensing procedures to your best advantage. Although you may feel like it in the face of a disciplinary notice, you are not helpless. You are not alone or without hope. Attorney Lento and the expert team at the Lento Law Firm are ready for your call, to represent and defend you.
Don't rely on a local lawyer who lacks administrative skills and has little or no experience with professional license disciplinary proceedings. Instead, rely on and trust an attorney who has successfully preserved the licenses of many dedicated professionals, including skilled nurses. Retain professional license defense attorney Joseph D. Lento and the Lento Law Firm for your nursing license defense in any state. Call 888-535-3686 now or use the online service.