Nursing is a demanding profession, and more qualified nurses are needed in West Virginia. It is vitally important to keep capable nurses practicing their profession. However, competent nurses may find themselves facing disciplinary action that threatens their ability to practice the career for which they have been trained. When a complaint or disciplinary proceeding is filed against a nurse, it can be an extremely stressful experience. It is important to fight these disciplinary cases so that you do not run the risk of suspension or revocation of your license. Ensuring that your position is understood and well-defended requires a professional legal team dedicated to making sure that all of your legal rights are preserved and protected.
The Lento Law Firm's Professional License Defense Team is experienced in all aspects of and is knowledgeable about the specific challenges facing nurses. We will stand by your side to defend your hard-earned nursing career. Call today at 888-535-3686 or contact us online.
The West Virginia Website for Licensed Practical Nurses
The website of the West Virginia State Board of Examiners for Licensed Practical Nurses contains online services for LPNs, including Licensure with the Board and Discipline.
The Discipline section outlines the responsibilities of disciplined nurses to make penalty payments and follow certain procedural forms for probation and supervision. The site notes that a nurse's license could be suspended “first from three months to several years or permanently depending on your infraction.” Any probation must first start with a signed supervisor's agreement submitted to the Board before probation can begin. Blank supervisor agreement forms are provided on the website. Supervisors must submit work performance reports on the 15th and the 30th of each month submitted directly to the Board. If the nurse has been disciplined for drug use, then the nurse must complete an addiction specialist evaluation by a psychiatrist or psychologist with drug addiction certification. The nurse must enroll in random urine drug screening or Hair Follicle Drug Screening and daily call-ins. Forms are provided on the site for these evaluations. Finally, if counseling is required, the counselor report using the online form is submitted at least monthly.
The Nurse Licensure Compact (NLC) and How It Affects Nurses in West Virginia
The Nurse Licensure Compact (NLC) is an effort by more than 40 states to unify nursing practices and standards. West Virginia is an NLC state, so a license earned in West Virginia allows a nurse to practice in other compliant states without having to fulfill additional licensure requirements. However, when a nurse is disciplined, the report of the disciplinary action also goes to all the other compliant states.
The NCSBN Nursys Database Is Widely Used to Track Nurse Licensing Information
The Nursys database is another important source for tracking nurses' licensing information. Any user with system access can not only access current license status but also access a nurse's disciplinary history and make decisions about hiring a nurse based on the information obtained.
Nursys provides effective and streamlined access to license data but creates a real issue for nurses who have been disciplined and hope to renew their license in West Virginia or any other state. Both Nursys and NLC create widespread, nationwide access to any proceedings before the West Virginia State Board of Examiners. It is, therefore, vitally important to have the experienced professionals at the Lento Law Firm's Professional License Defense Team help you fight any pending disciplinary actions.
The Grounds for Disciplinary Action Against Nurses in West Virginia
The West Virginia statute regulating licensure of an LPN, sets out the policies and regulations governing licensed practical nurses. Specifically, it sets forth Disciplinary Proceedings: Grounds for Discipline. Twenty-nine sub-section grounds for discipline are listed. Disciplinary information has been briefly summarized in two publications of the State Board of Examiners linked to its Goals and Services Section. The first publication, called “Overview of the Disciplinary Process,” summarizes discipline on the following grounds. If the nurse-
- is guilty of fraud or deceit in procuring or attempting to procure a license; or
- is convicted of a felony; or
- is habitually intemperate or is addicted to the use of habit-forming drugs; or
- is mentally incompetent; or
- is guilty of professional misconduct as defined by the board; or
- who practices or attempts to practice without a license or who willfully or repeatedly violates any of the provisions of this article." Rules and regulations of the Board list thirty-five (35) specific acts that constitute grounds for discipline.
The second publication, called “Best Practices for Disciplinary Processes,” summarizes when a nurse should be reported and lists the following:
- Drug Use
- Incompetent Practice
- Criminal Conviction
- Abuse to a Patient
- Neglect of a Patient
- Pattern of Errors
- Expired License
The Adjudication of Disciplinary Proceedings for Nurses in West Virginia
The disciplinary process in West Virginia begins with a Complaint form, which can be filed by anyone with the Board through an online portal. The statute also states that the board can also accept a complaint by phone or in person.
The “Overview of The Disciplinary Process” publication states that the most common complaints fall into four categories:
- working on a lapsed license or failing to comply with continuing education requirements
- conviction of a felony or misdemeanor with a relationship to the practice of practical nursing
- activities relating to inappropriate use or abuse of alcohol or improper use, diversion, or misappropriation of illegal or prescription drugs and
- violation relating to nursing practice, including but not limited to failing to administer medications or perform treatments as ordered.
The publication notes that the largest percentage of complaints are related to “failure to administer medications or treatments or errors related to medications or treatments, false documentation, abandonment, inappropriate assignment of nursing duties, and/or failure to follow facility policies.”
Steps Taken by the Board after a Complaint Is Filed
The very first step taken by the Board in investigating a complaint is to notify the licensee by certified mail of the filed complaint. The licensee receives a copy of the complaint plus any evidence that has been provided. The licensee has an opportunity to respond to the complaint, usually within 14 days, in person or in writing, and the licensee is advised of all due process rights and the option to be represented by an attorney.
The statute sets out the specific terms for investigation and the collection of evidence. The “Best Practices for Disciplinary Processes” publication states that the average time for resolution of a complaint from the time of filing is 68 calendar days. A consent Agreement can sometimes be completed in only 30 days or as long as 180 days. A formal hearing requires more time, and the process can take up to a year.
The “Flowchart for Disciplinary Proceedings” in the “Best Practices for Disciplinary Processes” publication shows that If the Board staff and Counsel do not find probable cause for the continuation of the investigation, the case can be reported to the Discipline Review Committee and then closed, and the licensee notified with no further action necessary. However, the Discipline Review Committee may still request that a hearing be held on the matter. If probable cause has been identified, then there are two routes for next steps. The first route is that a Consent Agreement is offered when the charges against the licensee are not contested. Terms of an agreement can be worked out and agreed upon by the parties and then executed, announced, and reported in both the LPN Newsletter and Nursys. Any suspension and revocation actions are reported to the Office of the Inspector General.
The second route is that a hearing is scheduled if the charges are contested. The Board can subpoena witnesses and documents in support of its position, and the licensee may do the same. The hearing is held before a hearing officer or members of the Board. The hearing transcript and recommendations of the hearing officer are then reviewed by the Board in Executive Session.
At the conclusion of the hearing, the Board gives Findings of Fact, Conclusions of Law, and a Decision and Final Order of the Board on the case. The order is reported in the LPN newsletter and Nursys. Suspensions, revocations, and surrenders are reported to the Office of the Inspector General. The decision is final unless reversed, vacated, or modified upon judicial review.
Penalties that the Board May Enact
The “Overview of the Disciplinary Process” publication details some of the penalties that the Board can impose. The stated purpose of discipline of an LPN is not to punish but to protect the public “against actions by the nurse that are illegal, unethical, or incompetent and could therefore be harmful to a client's health, safety and welfare.” The penalties include:
- revocation of the license
- acceptance of voluntary surrender of the license
- suspension of the license for a specified period of time
- placement of the license on probation, which might include terms such as closer supervision, completion of specific educational requirements, drug screening, counseling, or other terms as appropriate
- reprimand/public censure and/or
- assessment of fines and administrative fees.
It is important to remember that all disciplinary acts of the Board through either a Consent Agreement or a Final Order are public information. The action is listed on the Board's website under the individual's license information. Also, all disciplinary actions are reported to the LPN Newsletter, the Nursys Database, the National Council of State Boards of Nursing, and any other states where a licensee holds a license. All actions are reported to another databank called the National Practitioner Data Bank (NPDB), which is available to prospective employers. Voluntary surrender of a license is also reported to the Office of the Inspector General, resulting in the nurse being barred from employment in facilities accepting Medicare/Medicaid funds. Finally, if the nurse ever applies for RN (Registered Nurse) licensing, the former disciplinary action taken by the Board will be reported to the RN Board.
The listed penalties are broad and represent a real threat to a nurse ever being able to practice their profession. Under these circumstances, an administrative hearing should be taken with the greatest seriousness since a nurse's entire career can be at stake. It is necessary to obtain the best legal advice, and the Lento Law Firm's Professional License Defense Team is ready to defend your career vigorously.
Appeal of a Board Decision
Under The State Administrative Procedures Act, the Circuit Court may reverse, modify, or revoke an Agency's order if it is
- In violation of constitutional or statutory provisions;
- In excess of the statutory authority or jurisdiction of the agency;
- Made upon unlawful procedures;
- Affected by other errors of law;
- Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
- Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
- The judgment of the circuit court or the Intermediate Court of Appeals, whichever is applicable, shall be final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals of this state in accordance with the provisions of this code.
The Licensee has thirty days to file an appeal from the Board's final order in Circuit Court. This is a truly short window of time, and the appeal procedures are exact. It is particularly important to seek legal counsel to pursue an appeal, and the Lento Law Firm's Professional License Defense Team will work to defend and protect all of your rights on appeal. We have helped many nurses on appeal. It is not too late to call us for our professional legal help on your appeal. Call today at 888-535-3686 or contact us online.
