You worked hard and invested much to earn your state nursing board license and gain the skills, experience, and employment that currently earn you substantial nursing practice rewards. But if you face state nursing board license disciplinary proceedings, especially proceedings in which board officials allege your failure to cooperate, then you have everything at risk. You need highly qualified defense attorney representation. Retain the Lento Law Firm's premier Professional License Defense Team for your best disciplinary outcome including favorable resolution of your failure to cooperate charges. Call 888.535.3686 or complete this contact form now. Your nursing license and practice are worth protecting.
Licensing Board Authority to Investigate
Whatever your underlying disciplinary charge or allegation of nursing misconduct may be, and whatever action or inaction of yours led to further allegations of your failure to cooperate with the state nursing board disciplinary investigation, do not doubt the authority of your state nursing board to impose license discipline. State nursing practice acts routinely include statutes authorizing licensing officials to investigate nursing complaints and impose discipline based on the results of the investigation.
The California Nursing Practice Act is an example. Its Sections 2750-2765 authorize the California Board of Registered Nursing to impose discipline after appropriate investigation of complaints, from license reprimand up to license suspension or revocation. Your state's nursing practice act will include similar provisions. Don't doubt your state nursing board's disciplinary authority, and don't refuse to cooperate with a nursing board investigation. Instead, retain us to defend your disciplinary charges.
The Texas Nursing Practice Act is another example. Its Section 301.204 authorizes the Texas Board of Nursing to promulgate rules governing disciplinary complaint investigations. The Texas Board of Nursing did so. 22 Texas Administrative Code Rule 213.13 authorizes complaint investigations, establishes the investigation timetable, and states the terms under which an investigation is appropriate and complete.
Grounds for Investigation
State nursing practice acts also routinely state the grounds on which the state nursing board may investigate nursing complaints in order to impose discipline. Minnesota's Nursing Practice Act is an example. Section 148.261 of Minnesota's Nursing Practice Act authorizes investigation and discipline on the grounds of credential fraud, felony conviction, incompetent nursing, unprofessional conduct, violating patient confidentiality, billing fraud, and other wrongs. Your state's nursing act very likely states similar grounds for investigation and discipline. Take notice of a state nursing board investigation seriously. Retain us immediately on your receipt of that notice not only so that we can help you defend and defeat the charges but also so that we can help you cooperate without making mistakes or misleading omissions in your responses that the investigators construe as a failure to cooperate.
The Duty to Cooperate with Investigations
State nursing practice acts routinely impose or imply a duty to cooperate with a disciplinary investigation. Section 148.265 of Minnesota's Nursing Practice Act is an example, requiring respondent nurses to fully cooperate with a disciplinary investigation. The same statute defines full cooperation as including the duty to fully and promptly answer any charge made or question posed by board investigators while providing any patient records or other papers or information in the nurse's possession. Your state nursing board is likely to have a similar provision. If such an express provision is absent from your state nursing practice act or state nursing board rules, then disciplinary officials may imply it from other mandates regarding professional conduct. Let us research and confirm your duty to cooperate, if you receive investigation requests that you are uncertain as to whether you should fulfill them. Indeed, let us help you respond to any investigation request, whether you desire to cooperate or not.
The duty to cooperate with a disciplinary investigation reflects more than simply the state nursing board's interest in protecting patients and the public and completing an efficient and accurate investigation of nursing complaints. It also reflects a nurse's duty to the profession, patients, and the public. Professions tend to be self-policing and self-governing, to ensure public trust in professional services. Nurses thus have duties not only to cooperate with investigations of their own alleged misconduct but also to report suspected misconduct by other nurses and even to self-report potentially disqualifying convictions and other matters on license renewal forms.
Failure to Cooperate as Grounds for Discipline
Failure to cooperate with a state nursing board investigation is a specific grounds for discipline in many states or falls within catch-all provisions in other states. Minnesota's Nursing Practice Act is an example. Section 148.261 of Minnesota's Nursing Practice Act expressly authorizes discipline for “failing to cooperate with an investigation of the board as required by” another section of the act. The Illinois Nursing Practice Act is another example. Section 70-5 of the Illinois Nursing Practice Act authorizes discipline for “failing, within 90 days, to provide a response to a request for information in response to a written request made by” the nursing board's investigator. The Virginia Board of Nursing disciplinary rules are yet another example, stating as grounds for discipline “providing false information to staff or board members in the course of an investigation or proceeding.” If you fail to cooperate with your state nursing board's investigation, you can expect to face additional disciplinary grounds and issues. Let us help ensure that your answers and responses reflect your duty to cooperate.
How to Cooperate with Investigations
The above discussion reflects some statutory or regulatory authority, and some suggestions, as to what your cooperation may require. First, you must generally answer a charge or a request for information timely, accurately, truthfully, and completely, within the period the board's notice or request requires. Second, you must generally provide all the information known or available to you, whether incriminating, neutral, or exonerating. Third, you must generally provide all records and documentation available to you, although if you lack patient consent, you may have to redact identifying information from requested patient records. Fourth, if the investigator requests that you authorize the release of your medical, employment, school, or other records, then you may have to do so. Further, if the investigator requests your interview, you may have to submit to it. If the hearing panel requests that you attend to testify, you may have to do so. Let us advise you on how to cooperate, if investigator requests raise questions or concerns. Indeed, let us guide you through the investigation process from start to finish to ensure that your actions are appropriate.
How Not to Cooperate with Investigations
The flip side of the above steps for proper cooperation suggests what not to do, in other words, what might violate your duty to cooperate. Do not fail or refuse to answer the disciplinary charge when demanded. Do not fail or refuse to answer an investigator's request for information, documents, or interview. Do not refuse to authorize the release of your medical, employment, school, or other records. Do not refuse to appear at the state board hearing on your disciplinary charges when requested or directed to do so. Do not make any false, inaccurate, misleading, or incomplete statement or supply any fabricated or altered document. Again, let us guide you in your investigation responses.
Other Investigation Response Advice
Beyond the above particulars, we may have some other helpful advice. We can share that advice with you, suited to your specific charges and circumstances when you first retain us. But in general, nurses responding to investigations should first do exactly that: retain us as highly qualified defense counsel. Nurses responding to investigations should hesitate to answer charges or requests for information or documentation without first getting our assistance. Nurses responding to investigations should hesitate to volunteer information or documentation that investigators do not request unless sure that the information or documentation is accurate, complete, consistent, relevant to the investigation, and helpful to the nurse's defense. Nurses responding to the investigation should further hesitate to give multiple responses to the same information requests or multiple interviews on the same subject, at the peril of inconsistencies between accounts. Nurses should be sure that they understand the charge or information or documentation request before responding. Information or documentation dumps may not be helpful, may not be cooperative, and may unnecessarily expose you to non-cooperation or other disciplinary risks.
The Privilege Against Self-Incrimination
You may wonder how your duty to cooperate with your state nursing board's investigation of your discipline relates to your Fifth and Fourteenth Amendment right against self-incrimination. In general, your constitutional right against self-incrimination applies to government prosecution of criminal charges against you. Your state nursing board disciplinary proceeding, although a government action, is not a criminal prosecution. In that sense, your privilege against self-incrimination does not directly apply.
On the other hand, your state nursing board disciplinary matter may involve allegations of your criminal misconduct, such as patient abuse or neglect, theft of patient property, or misuse of prescription medications to which you have access as a nurse. If your response to the state nursing board's investigation would require you to implicate yourself in a crime, then you may decide to rely on your privilege against self-incrimination in the state nursing board disciplinary proceeding, so that your answers do not fall into the hands of a prosecutor for use against you in a criminal court proceeding.
Reliance on your privilege against self-incrimination in your state nursing board proceeding could, though, lead to disciplinary charges for failure to cooperate. State nursing board officials may be respectful of your privilege against self-incrimination, but they may not feel that they must be. They may instead make assurances that your disclosures are only for the disciplinary proceeding and not for criminal prosecution. Yet those assurances may not be within state board officials' power. Prosecutors may do whatever they wish to do with your disciplinary proceeding responses.
Section 148.265 of Minnesota's Nursing Practice Act is an example of this complex interplay of your duty to cooperate with your privilege against self-incrimination. Section 148.265 provides:
“The nurse shall not be excused from giving testimony or producing any documents, books, records, or correspondence on the grounds of self-incrimination, but the testimony or evidence may not be used against the nurse in any criminal case.”
Your recourse should be to immediately retain and consult with us so that we can guide you as to when, whether, and how to invoke your privilege against self-incrimination in your state nursing board proceeding. Our communications with state nursing board disciplinary officials may pave the way for a suitable resolution of that tension that preserves your privilege while fulfilling your duty to cooperate.
Potential Sanctions for Failure to Cooperate
State nursing practice acts tend to give state nursing board disciplinary officials the broadest discretion to impose the broadest range of possible sanctions, after a finding of misconduct including a finding that you failed to cooperate with an investigation. Section 70-5 of the Illinois Nursing Practice Act is a good example, providing that Illinois Board of Nursing officials “may revoke, suspend, place on probation, reprimand, or take other disciplinary or non-disciplinary action as the Department may deem appropriate,” as to a nurse's license. The same statute even authorizes fines of up to $10,000 per violation. The other disciplinary or non-disciplinary action that state nursing boards may impose can include cautions, warnings, peer review, monitoring, license limitations, restitution, remedial education or training, counseling, medical or mental evaluation, and other alternatives.
That's the wide range of available sanctions. But how might a state nursing board punish a nurse solely and purely for a failure to cooperate with an investigation? It can be hard to tell because the failure to cooperate typically occurs in combination with serious and incontestable underlying charges. Yet the question isn't entirely hypothetical. In some cases, a nurse will have a ready defense to the underlying charges but, out of carelessness, confusion, fear, retirement, or other reasons, simply ignore the charges. When licensing officials learn that their charges are baseless, but the accused professional hasn't responded as required, one usually sees a presumptive sanction. That sanction may not be license revocation or even long term license suspension. But it could be a suspension of thirty days or a similar meaningful penalty. A suspension of at least some duration is often the presumed sanction after a default, constituting a failure to respond and cooperate.
Protective Procedures Against Discipline
Let us help you avoid any such sanction. State nursing practice acts routinely include protective procedures against disciplinary charges. They must do so, as a matter of your constitutional due process rights. Many state nursing practice acts satisfy those protective rights by incorporating the provisions of the state's administrative procedures act. The Texas Nursing Practice Act is an example. Its Section 301.511 expressly references Chapter 2001 of the Texas Government Code, which is the Texas Administrative Procedure Act. State administrative procedure acts generally promise an administrative hearing before an administrative law judge, of any final agency decision adverse to the person or professional appearing before the agency. Thus, a nurse disciplined by the state nursing board for failure to cooperate and an underlying charge could appeal that discipline through an administrative hearing. Those hearings typically offer extensive protective procedures including notice, subpoenas, live testimony, and cross-examination.
If you have already invoked your state nursing practice act's administrative hearing but suffered discipline, retain us to review your available appeals. Some states permit appeals to a state civil court, while other states permit appeals to the full state nursing board or another appellate official or panel. We may also be able to negotiate alternative special relief with an assistant attorney general, general counsel's office, ombudsperson, or outside retained counsel. Let us help you exhaust your available remedies until you gain the relief you need from state nursing board discipline for failure to cooperate or other grounds.
The Defense Attorney's Role
The foregoing discussion suggests several of the actions our highly qualified attorneys can take to defend and defeat your state nursing board disciplinary charges, including any charge relating to an alleged failure to cooperate with the investigation. Some of the other strategic and effective actions we can take on your behalf include:
- notifying state nursing board officials that we have appeared on your behalf and that they should direct communications to us for prompt handling, relieving you of the fear and confusion of uncertain communications, procedures, and deadlines;
- requesting the state nursing board's detailed specification of the charges, which may be too vague and ambiguous to prepare an effective defense;
- gaining the disclosure of the state nursing board's incriminating and exonerating evidence through discovery requests;
- arranging early conciliation conferences at which to present your evidence and proposals for voluntary dismissal of charges in favor of remedial measures readily within your ability to complete;
- helping you amend incomplete, inaccurate, and inconsistent answers and statements that you mistakenly made before our retention and that subject you to non-cooperation charges;
- helping you supplement and correct incomplete, inaccurate, and inconsistent documentation that you mistakenly supplied before our retention and that subject you to non-cooperation charges;
- presenting your witnesses for direct examination and cross-examine adverse witnesses at the administrative hearing; and
- researching, drafting, filing, and orally advocating hearing briefs setting forth the law on which you rely to prevail in your disciplinary case.
The Qualifications of Defense Counsel
Keep in mind when deciding to retain us that we have the administrative skills and experience described above to strategically, sensitively, and effectively defend your state nursing board disciplinary charges. Do not retain unqualified local criminal defense counsel, real estate or other transactional attorney, or civil litigator. Civil and criminal court law, rules, and procedures differ markedly from administrative licensing law, rules, and procedures. Unqualified legal representation can be worse than no legal representation when no legal representation is itself usually a foolhardy choice.
Your Stakes in a Disciplinary Proceeding
Also, keep in mind your stakes in a state nursing board disciplinary proceeding involving your alleged failure to cooperate with the investigation. You have already seen above that you could lose your nursing license. You must also appreciate that you cannot practice nursing without a valid and current license. Thus, if you lose your license, even for a short duration, you may well lose your job and its income, unless your employer has non-practice work for you to complete, which may be highly unlikely. If you lose your job to nursing discipline, you may find it hard to impossible to gain another nursing job, even once you regain your nursing license. You may also find it hard to impossible to regain your license once you have lost it to suspension or revocation.
Appreciate, too, that if you lose your nursing license in your current state of practice, you will likely lose your nursing licenses in other states, under state reciprocal practice acts. You will also likely lose your ability to gain a new license in another state. In other words, you cannot simply move your nursing practice to another state, expecting to ignore and avoid the discipline in your current state of practice. State nursing boards share disciplinary information in the national Nursys database. If you lose your ability to practice nursing, you can lose your ability to support yourself and your dependent family members. Those and other losses can bring on a decline in your physical and mental health. Beware all that you have at stake in your current licensing proceeding. Let us help you obtain your best possible outcome.
Premier License Defense Attorneys Available
If you face state nursing board license disciplinary charges raising questions over your alleged failure to cooperate, retain the Lento Law Firm's premier Professional License Defense Team to help you defend and defeat those charges. We have successfully defended hundreds of nurses and other professionals nationwide against all kinds of disciplinary charges including failure to cooperate with investigation. Call 888.535.3686 or complete this contact form now.
