A. Complaints to a state board of nursing (BON) can be initiated by other health care providers, patients and their family members, and health care institutions. Once a complaint is lodged, an investigator—who may or may not be a nurse—is sent to the site to gather information about the incident. BON investigators can obtain and review medical records, drug logs, personnel records, and incident reports, as well as take depositions or call in potential witnesses for questioning. If the case concerns drug abuse or another matter pertaining to one’s physical fitness to practice, most states also have the right to ask you to have a physical examination conducted by your health care provider.

During the investigation, your name is not shared with the witnesses or the institution unless it’s absolutely necessary to determine the validity of the charges. However, nurse managers and senior level nursing staff members usually are aware of investigations and work with the BON during this process.

The BON can use all statements and discussions as part of the investigation and hearing. Therefore, if you are asked by the BON to answer questions, hire an attorney who understands the disciplinary process. If disciplinary action is taken against you, an attorney who regularly works with the BON could negotiate a censure or probation instead of more serious punishment.

Expect to pay between $500 and $3,000 for legal assistance, based on your role, the nature of the offense, and the evidence that has been presented against you. The cost also varies regionally. Most nursing malpractice insurance policies provide for the hiring of an attorney to handle disciplinary matters.

Further, most nursing malpractice insurers maintain a roster of attorneys who are knowledgeable about this area of law. Your ANA constituent member association also may be able to assist you in identifying and contacting competent counsel. Or, contact the local branch of the American Association of Nurse Attorneys or the American Association of Legal Nurse Consultants.

If it is determined that disciplinary action should be taken against you, the BON has many options. In the past, nurses who were disciplined merely served the probation or suspension period, took courses to renew their competency, and then returned to practice. Now, nurses are more apt to be reported to boards in other states. In addition, federal law requires that any adjudicatory action taken by a BON must be reported to the National Practitioner Data Bank (NPDB) and the Healthcare Integrity and Protection Data Bank (HIPDB) of the Department of Health and Human Services.

Most BONs treat nurses with drug-related problems differently from those with deficiencies in practice or clinical skill. Nurses coping with substance abuse may enter into treatment programs. These nurses often have their licensure limited or conditioned according the nature of the problem. They may also have their practice supervised and may have to submit to regular drug testing and physical examinations to assess compliance. In addition to being reported to the NPDB and the HIPDB, cases that result in treatment are reported to Medicare.

In a case in which the alleged offense is considered minor (a discretionary determination of the BON), the nurse may be called in for questioning or to determine if the matter can be settled through a consent order. If the nurse admits to the allegation, she avoids a hearing and typically gets a supervised practice option or reprimand. Historically, this disciplinary action was not reported to the NPDB or the HIPDB, but regulations were implemented this past year that make such reporting mandatory even for minor offenses.

In a case in which the offense is considered serious, discipline varies among the states; some issue a reprimand and limit licensure, while others suspend or revoke the license.

Resources

The American Association of Nurse Attorneys: www.taana.org
or (877) 538-2262.

The American Association of Legal Nurse Consultants: www.aalnc.org
or (877) 402-2562.

www.nursingcenter.com

Winifred Y. Carson is nurse practice counsel at the ANA.

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