Nurses facing state board disciplinary charges can feel a lot of pressure to give in to the charges. The state nursing board, after all, has all the power and resources of the government behind it. Thus, when the state nursing board presents the accused nurse with a consent agreement settling the charges, the agreement can look very much like an offer the accused nurse cannot refuse. Beware consent agreements, though. They can contain onerous terms that make your situation worse rather than better. Do not enter into a consent agreement without retaining the LLF National Law Firm’s premier Professional License Defense Team to advise you. We may be able to negotiate you a much better offer or defend and defeat your disciplinary charges outright. Call 888.535.3686 or complete this contact form now for our skilled and experienced representation. Don’t get snookered by a consent agreement offer.
The Nature of a Nursing Board Consent Agreement
A consent agreement takes the form of a settlement agreement or settlement contract between the state nursing board and the accused nurse facing disciplinary charges. An agreement, of course, requires consent, meaning voluntary concurrence or accord with the terms of a resolution. And so, “consent agreement” is redundant. All agreements are naturally consensual. But calling the settlement of state nursing board disciplinary charges a “consent agreement” highlights that the accused nurse has voluntarily concurred in the resolution that the agreement states. In theory, if not in practice, the state nursing board has not imposed any discipline. Instead, the accused nurse has agreed to whatever discipline the consent agreement imposes. Consent agreements are, in other words, either a beautiful illusion or an ugly non sequitur, depending on who looks at them. State nursing boards love them. Accused nurses, not so much.
The Coercive Nature of Consent Agreements
The reasons that accused nurses should be wary of consent agreements and often regret them after accepting their terms are that they aren’t truly consensual. A consensual arrangement is one that has no coercive element behind it. Two friends meet on the street and agree to have lunch. That’s a consent agreement. In the case of a state nursing board consent agreement, though, the meeting isn’t at all consensual. The state nursing board has instead hauled the accused nurse into an administrative proceeding with the threat of destroying the nurse’s career. And to the nurse, the consent agreement can look like the only way out, especially when the state nursing board presents the consent agreement in that way, as a take-it-or-leave-it, non-negotiable offer. Entering into a consent agreement can feel a bit like signing with a gun to your head. The coercive nature of a consent agreement is exactly why you need our help.
Authority for Nursing Board Consent Agreements
State nursing boards generally have clear authority to propose, accept, and enter into consent agreements. State nurse practice acts create state nursing boards in the state executive branch to protect patients, the public, and the nursing profession against unfit, incompetent, and dangerous nurses. See, for example, the Utah Nurse Practice Act, establishing the Utah Board of Nursing in the Utah Division of Professional Licensing, and granting the Board authority to license and discipline nurses. The Utah Nurse Practice Act further expressly grants the Utah Board of Nursing the authority to enter into a “stipulated settlement,” otherwise known as a consent agreement. See, for another example, a Tennessee Board of Nursing Position Statement affirming that it offers accused nurses consent agreements. Your state nursing board has the authority. Just don’t let it force you into a consent agreement without first retaining us to advise you on your better options.
Frequency of Nursing Board Consent Agreements
Consent agreements are a very common tool for state nursing boards to resolve many of their cases. See, for example, the Louisiana State Board of Nursing’s admission that its consent orders are “the most common method used for final resolution of a disciplinary matter.” And no wonder. For a state nursing board, a consent agreement is the easiest and most efficient way for the state nursing board to clear its disciplinary docket. A consent agreement entirely relieves the state nursing board of proving its case at a hearing. The board’s representatives don’t need to schedule and convene a hearing panel, subpoena and call a single witness, or prepare and offer a single exhibit as evidence. Your signature on the consent agreement does the whole trick. Beware consent agreements. While they may be easy for the state nursing board, they’re often severely against your personal interests.
Nursing Board Consent Orders
Another reason to beware consent agreements, beyond their fundamentally coercive nature, is that your state nursing board is likely to follow your signature on a consent agreement by entering a regulatory order incorporating the consent agreement’s terms. Indeed, the consent agreement typically states that your signature on it also constitutes your consent to the entry of the state nursing board’s order. Thus, your so-called agreement promptly results in an order for whatever discipline the agreement provides. State nursing boards sometimes call them “consent orders.” See, for example, the Louisiana State Board of Nursing’s above statement, repeatedly referring to its very common consent orders. The Louisiana Board of Nursing presents the signed consent agreement to the Board for its adoption as a formal consent order. Consent order is a curious name because whether you have consented or not, the order carries the authority, weight, and consequences of any other state nursing board orders.
Disciplinary Action Reports
You can see the frequency and common use of consent orders in the published disciplinary action reports of state nursing boards. State nurse practice acts generally require, permit, or encourage state nursing boards to make their disciplinary decisions public, which they often do by posting them online. See, for example, the Louisiana Board of Nursing’s disciplinary action report for a recent period, listing twenty-six disciplined nurses, seventeen of whom agreed to a consent order. The consent orders run the gamut from two-year license suspensions and one-year suspensions, down to one-year and two-year probationary periods, reprimands, and other terms and conditions.
Enforcement of Nursing Board Consent Orders
State nursing boards can indeed enforce their consent orders in the same manner they may enforce other orders that they enter, without the accused nurse’s consent. State nurse practice acts typically offer state nursing boards the options of pursuing a court injunction against violation of the board’s order, civil penalties for each violation or day of violation, or criminal charges and conviction for unauthorized practice without a valid and current license. See, for example, the Texas Nurse Practice Act, which offers the Texas Board of Nursing all three enforcement options. The Texas civil penalty is $1,000 per day, while the criminal penalty is a Class A misdemeanor conviction, punishable by up to one year in jail and a $4,000 fine. Violating a court injunction can also lead to contempt of court, fines, and incarceration. You wouldn’t want to violate your state nursing board’s consent order. Instead, retain our attorneys to negotiate a consent order with which you can live or to defend and defeat your disciplinary charges.
Content of Consent Orders
Another problem with consent orders is their common terms. You’ve seen above that consent orders can impose all forms of discipline, from long-term license suspension to long-term license probation, license restrictions and conditions, and reprimands. Many consent orders require the accused nurse to give up the license, meaning the nurse loses employment. But any discipline, even probation or a reprimand, can cause job loss, career and reputational harm, and loss of patients and network support. Consent orders can also call for burdensome, expensive, and frankly unnecessary monitoring, drug testing, mental and physical examination, treatment, counseling, and other measures. Consent orders can also last for years, leaving a threat and shadow hanging over your head, just waiting to trigger another deluge. Beware the adverse impact of consent agreements. Get our help negotiating better terms or defending and defeating your disciplinary charges.
Consent Agreements in Substance Abuse Cases
Consent agreements are especially common in cases in which the disciplinary investigation involves allegations of substance abuse, dependency, or addiction. The reason is that many states offer alternative discipline programs for nurses with substance abuse issues. See, for example, New York’s Statewide Peer Assistance for Nurses (SPAN) program, offering an alternative to discipline. Alternative to discipline programs sound good. Instead of facing disciplinary charges, the nurse accused of substance abuse issues may simply enter the program. The problem is that the programs tend to require that the nurse sign a consent agreement. And the consent agreements often require the nurse to relinquish the license, undergo examination, treatment, and counseling, and submit to long-term drug testing, monitoring, and reporting, all at the nurse’s expense, while the nurse has no nursing practice income. Do not enter into an alternative to discipline consent agreement without our review and advice.
Alternatives to Consent Agreements
So, your state nursing board has presented you with a supposedly non-negotiable consent agreement, while claiming that it is your only choice, next to facing a grueling hearing that you’re likely to lose. What are your true options? When you retain our attorneys, we can engage your state nursing board officials in negotiation over the terms of a better resolution. Nursing board officials may or may not agree to the proposals that you approve and we convey to the board officials. But our attorneys have the national reputation and relationships to make a confident and convincing proposal. We can also help you present your defense evidence and arguments to nursing board officials informally, in the course of negotiating your most favorable outcome. We can also demonstrate to the nursing board officials that we are ready and willing to take the case to a hearing to pursue a dismissal of the charges. We may also be able to show board officials that they can achieve with non-punitive remedial measures than they can with a consent agreement that imposes discipline. Let us put our skills, reputation, relationships, and experience to work on your behalf to either obtain an acceptable consent agreement or defend and defeat your charges at a board hearing.
Steps to Take When Presented a Consent Agreement
So, here again are the steps to take when your state nursing board officials present you with a consent agreement. First, retain our attorneys, share your evidence and information with us, and arrange a conference with us at which we can review and advise you as to the benefits and drawbacks of the proposed consent agreement. Listen carefully to our advice. Make a list in advance of the questions you have for our attorneys, and ask those questions when we meet. Learn from us what a disciplinary hearing entails and how we can help you prepare. Ask us for our informed opinion on your likelihood of defeating your disciplinary charges at the hearing. And ask us our plan to negotiate for more-favorable remedial relief in lieu of a disciplinary hearing or any agreed-to disciplinary sanctions. Get our help, and you’ll likely see options that the state nursing board officials did not disclose when presenting their take-it-or-leave-it consent agreement. And do not retain unqualified local criminal defense counsel or personal injury attorneys who urge you to take a bad offer. Consent to discipline, and it will be on your nursing record for life.
Premier Defense Representation Available
If you face state nursing board disciplinary charges but have an offer for a consent agreement, retain the LLF National Law Firm’s premier Professional License Defense Team to help you evaluate the offer and win better terms. Our attorneys have helped hundreds of nurses and other professionals negotiate better consent agreements or defend and defeat disciplinary charges. Call 888.535.3686 or complete this contact form now for our highly qualified defense representation.