Registered Nurses (RNs) and Advanced Practice Registered Nurses (APRNs), such as Nurse Practitioners, Clinical Nurse Specialists, Nurse Anesthetists, or Nurse Midwives are regulated in most states by their respective State Board of Nursing (Nursing Board). This article is intended to provide a general overview of the complaint process and address issues that you may face if a complaint is filed against you. Please keep in mind, the specific procedures, timelines and rights you may have as a licensee may vary from one state to another. The disciplinary process followed in a number of states is set out on our website for your further review.
I. Receiving Notice of a State Nursing Board Complaint:
While an RN or APRN (collectively referred to as a “licensee”) may first learn that a complaint has been filed after receiving a letter from the Nursing Board, a licensee often has notice that certain conduct or facts could potentially lead to a complaint, long before formal notice is sent out by the Nursing Board. When this is the case, it is recommended that you contact experienced legal counsel to discuss whether affirmative steps should be taken to protect your rights and / or preserve evidence. Depending on the facts, it may be possible to take remedial steps to minimize the severity of a problem and the adverse impact that an alleged deficiency can have on your nursing license.
Alternatively, a licensee may first learn of potential a problem after being contacted by letter from the Nursing Board. Should you fail to respond to the notice of a complaint, the Nursing Board may choose to take further disciplinary action against you, up to and including, the suspension or revocation of your nursing license.
II. Overview of the Typical Complaint Process:
Many Nursing Boards receive literally thousands of complaints each year. For example, at last count, more than 16,000 complaints were filed against licensees with the Texas Board of Nursing. A significant portion of the complaints filed against licensees are closed without action after being reviewed by the Nursing Board. In such cases, the Nursing Board may conclude that even if the allegations levied against a licensee are shown to the true, the conduct would not constitute a violation of the state’s Nurse Practice Act.
Initial Review of a Complaint to the State Board of Nursing.
At the outset, it is important to keep in mind that specific complaint procedures followed by a State Board of Nursing will vary from jurisdiction to jurisdiction, depending on the specific provisions outlined in a specific state’s Nursing Practice Act. If an initial review of the allegations set out in a complaint does not constitute a violation of the Nurse Practice Act, the investigator will often recommend that the complaint be dismissed and the case be closed. Similarly, many states will not take action against a licensee if a complaint is “incomplete.” The way a Nursing Board may handle an “anonymous” complaint will vary from state to state. For instance, the California Board of Registered Nursing will investigate an anonymous complaint but has made it clear that it may be difficult to take any action against a licensee in the absence of further supporting evidence.
In all likelihood, you will be notified of the allegations and given an opportunity to provide an initial response to the complaint that has been filed. Working with legal counsel, you should use this opportunity to assess your potential exposure and the likelihood that the Nursing Board will ultimately seek to impose some time type of disciplinary action against your license. Equally important, you should use this opportunity to tell your side of the story. Take care. Any statement that you make can constitute an admission. While you likely have an obligation to cooperate with the Nursing Board’s investigation, legal counsel can assist you in presenting your response in a factual, persuasive manner.
Informal Settlement Process.
If the facts in a case suggest that a violation of the state’s Nurse Practice Act has been committed, an investigator will often make a sanctions recommendation to a panel or subcommittee of the Nursing Board. In most cases, this panel will then enter into informal settlement negotiations with a licensee in an effort to resolve a case. After meeting with a licensee, the panel will often privately meet to discuss the licensee’s responses to the allegations presented. In most cases, the panel will then reconvene and notify the licensee of how they propose to handle the case. If the panel determines that disciplinary action is necessary, it will issue an informal settlement offer. If the licensee accepts the informal settlement offer that has been made, the licensee will be provided (not necessarily at the time of the informal settlement conference) a proposed “Agreed Order” that sets out a brief discussion of the allegations, the investigative findings reached, any conclusions of law that may have been reached and any stipulated sanction that has been agreed to by the licensee. Notably, any settlement agreement reached at the informal stage will still normally require the approval of a state’s Nursing Board before it becomes final. A Nursing Board may accept the Agreed Order as it has been proposed. Alternatively, the Nursing Board may make modifications the proposed Agreed Order, or reject the proposed Agreed Order entirely. If a licensee rejects a proposed settlement that has been offered by the panel, the licensee can typically make a counter-offer for the Nursing Board’s consideration.
Formal Appeal Process.
If a licensee is unable to reach an informal settlement with the review panel, an action will advance to the formal stage of the disciplinary appeals process. At this point, the Nursing Board will file formal disciplinary charges against a licensee. The parties will often then engage in administrative discovery and begin preparations for their case to be presented in front of an Administrative Law Judge (ALJ). During the ALJ hearing process, attorneys for both sides will present evidence in support of their case. In most instances, this stage of the formal appeal process will be governed by a state’s Administrative Procedures Act. It is strongly recommended that a licensee engage counsel to represent his / her interests throughout the formal appeals process. After both sides have presented their case, the ALJ will issue findings of fact, conclusions of law. Despite the fact that the ALJ hearing process is often extensive and protracted, in many states, a Nursing Board is not bound by the ALJ’s findings and recommendations. Unfortunately, our attorneys have seen a number of cases over the years where an ALJ issued a ruling in favor of a licensee that was later overruled by the Nursing Board. In such a case, a licensee may have to seek redress through the courts.
III. Types of Discipline that May be Taken by a State Nursing Board:
Assuming that you are not successful in persuading a Nursing Board that a complaint should be dismissed, there are a number of disciplinary actions that may be pursued by the state. The types of discipline that may be taken by a specific Nursing Board generally include:
Informal discipline. This type of disciplinary action is often not reported to the public. It may take the form of a “Warning” letter. While not disclosed to the public, this action will still be part of a licensee’s record and can be considered by the Nursing Board if subsequent violations of the Nurse Practice Act are alleged.
Public reprimand. This is often the least onerous disciplinary action that will be taken by a Nursing Board that is disclosed to the public.
Fine or civil penalty. Nursing Boards often assess a fine or penalty in conjunction with other disciplinary action taken against a licensee.
Restrictions placed on a nurse’s license. Depending on the case, a nurse’s scope of practice may be restricted. Alternatively, the Nursing Board may require that a nurse’s activities be monitored or supervised.
Suspension of license. A Nursing Board may choose to suspend a nurse’s license for periods ranging from a few months to several years. Suspension actions are often accompanied by other clinical training requirements that must be met before a nurse can apply to have his / her license reinstated.
Revocation of license. If a nurse’s license is revoked, an individual can no longer legally practice nursing. In most states, a nurse is not permitted to reapply for licensure for a period of one to three years. After this period as elapsed, a nurse must reapply for licensure, their licensure will not automatically be reinstated after the debarment period has ended.
Reciprocal action based on discipline taken in another state. If you are subjected to disciplinary action in another state or if your scope of practice is otherwise restricted, the state in which you are currently practices will likely invoke reciprocal discipline.
IV. Disciplinary Action by the State Nursing Board May Lead to Additional Sanctions:
Once an Agreed Order is finalized, a copy is normally sent to both the complainant and the licensee. Most states consider disciplinary actions to be public information. As such, these actions will be posted to a licensee’s record. Additionally, disciplinary actions against nursing licensees are also reported to the National Council of State Boards of Nursing, Inc., and the National Practitioner Data Bank (NPDB). If disciplinary action is taken, a licensee may have an obligation to notify the Nursing Boards of any other state in which the nurse is licensed. Moreover, depending on the nature of the sanction that is imposed, a licensee may ultimately be excluded from participation in state and / or federal health benefits programs.
V. How Long Does the Complaint Process Last?
Every case is different. Depending on the nature of the allegations levied against the licensee and the size of any complaint backlogs that may exist, a case may be resolved in six months or it may take one to two years if the allegations are not informally resolved and the case proceeds to an ALJ hearing.
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Liles Parker attorneys are experienced in representing RNs and APRNs in connection with State Nursing Board complaints. Are you currently facing an investigation by the State Nursing Board? Give us a call. For a free consultation regarding your case, please call: 1 (800) 475-1906.