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When Your Nursing License Is in Jeopardy Understand the process so that you can take appropriate action.

By Karen J. Halpern, RN, BSN, MSN, JD

Learning Objectives

This article provides information about common legal issues related to protecting a nursing license. After reading this article, the nurse will be able to:

    1. Describe the licensure disciplinary process.
    2. List six pre-emptive steps that nurses can take to protect their licenses.
    3. Identify the types of personal documentation that nurses should maintain for their own records.

One of the most frightening letters nurses can receive is a letter from the state disciplinary authorities advising them that their nursing license is under investigation or that they are being charged with professional misconduct. This article outlines suggested actions nurses can take to protect their nursing license and what steps nurses should take to best defend themselves if faced with a disciplinary action.

Each state has a board of nursing that is charged with regulating nursing practice. These boards protect the public by ensuring that standards of nursing practice are met and that nurses are competent in their practice. Typical powers and duties of a board of nursing include the following (as reported by the American Nurses Association [ANA]):

  • Interpreting and enforcing the state nurse practice act
  • Administering nurse licensure by overseeing exams to grant licenses and taking action against licenses of nurses who have exhibited unsafe nursing practice
  • Accrediting or approving nurse education programs
  • Developing nursing practice standards from a regulatory standpoint
  • Developing policies, administrative rules and regulations

Each board of nursing investigates complaints about nurses’ compliance with the nurse practice law in its respective state, holds hearings for license holders, and determines and administers disciplinary actions based on evidence of violations of the law. The National Council of State Boards of Nursing (NCSBN) maintains comprehensive information about the roles and responsibilities of boards of nursing. To find information on one of the individual state boards of nursing, visit the NCSBN website at https://www.ncsbn.org/.

Pre-Emptive Steps

Nurses work hard to earn their license to practice, and all nurses should be aware of the steps they can take to protect it. The points below relate to areas that can often become the focus of a professional misconduct investigation and/or disciplinary charges against a nurse. It is imperative that nurses are familiar with these subject areas so that they can avoid potential disciplinary action.

1. Know your scope-of-practice parameters.
Every licensed healthcare professional is expected to render care that conforms to the accepted standard of care for their specific profession. It is essential that the professional nurse understands what the scope-of-practice parameters are so that he or she can render care to patients in a manner that it not considered acting beyond the scope of nursing practice in their state.

Well-meaning nurses often find themselves in trouble when they “bend the rules” and exceed the scope-of-care parameters even though their intention was to help the patient. An example of this may be when a nurse administers medication in excess of the prescribed dosage or in a shorter time frame, in an effort to alleviate pain or other symptoms more quickly or effectively. In this scenario, if a patient has an unanticipated complication, the nurse can face disciplinary action even though he or she was well intentioned.

2. Know your facility’s policies and procedures.
Healthcare facilities have policies and procedures that spell out practice guidelines and treatment protocols, and these can vary greatly among settings. It is imperative that the professional nurse is aware of the specific facility policies and procedures that apply to his or her work setting, since those formulate the benchmark and set the standard to which the nurse will be held. Violation of a facility policy can lead to disciplinary action by the employer, which may include suspension or termination of employment. This in turn may lead to a report from the employer to the state licensing authorities.

Most states have laws that require healthcare employers to report to a state agency any nurse who is terminated from employment. Once a report to the authorities is initiated, a full investigation by that state agency will follow.

3. Strictly adhere to medication administration guidelines.
Medication errors form one of the major areas that give rise to disciplinary action. Each and every time nurses administer medication, they must strictly adhere to the safe administration rules they learned in nursing school. Errors often occur when nurses prepour multiple medications or take shortcuts to save time. Medication errors can result in serious patient harm, and those outcomes are extremely difficult to defend in disciplinary cases.

4. Chart accurately.
Accurate charting is an integral part of documenting patient care. Charting deficiencies and/or altered records are extremely difficult to defend in a disciplinary or malpractice action. The chart must be complete and reflect appropriate care. It must include entries detailing nursing and progress notes, care plans, flow sheets, medication sheets, treatment logs, etc. If a correction or amendment is needed in a medical record, it should be done in accordance with the accepted facility procedures. This includes accurate notation of the date, time and reason for the amendment.

Chart alterations that are not performed in conformity with the applicable rules are considered to be “falsification of the record” and carry heavy penalties in disciplinary cases.

5. Conduct yourself in an ethical and professional manner at all times.
All nurses should familiarize themselves with the ANA Code of Ethics for Nurses (http://www.nursingworld.org/codeofethics) and the privacy rules associated with the Health Information Portability and Accountability Act (HIPAA; http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/). These documents set the standard for ethical nursing practice.

Many disciplinary cases arise from HIPAA violations due to unauthorized access to medical records or unauthorized disclosure of protected health information. Nurses who look at the medical records of a patient not under their care can be subjected to disciplinary action by both their employer and the state licensing or disciplinary authorities.

6. Purchase professional liability insurance coverage.
Legal experts highly recommend that every nurse purchase his or her own professional liability coverage. Some professionals subscribe to the theory that having individual insurance coverage makes you a target in a lawsuit. As a nurse attorney, I believe that is an outdated theory without a realistic application to current trends.

Many nurses do not realize that most malpractice insurance policies also provide insurance coverage for licensure defense. A disciplinary action can be costly to defend against. Professional liability insurance coverage for nurses is extremely economical to purchase and is well worth the investment.

Professional Disciplinary Process

Step 1: The Investigation
Each state has its own procedures and rules governing disciplinary matters involving nurses. This section provides an overview of the general process, but some specific individual variations occur from state to state.

In the typical case, a nurse receives a letter or a telephone call from an investigator representing the state agency that regulates the practice of nursing where he or she works. This communication advises the nurse that he or she is under investigation.

In New York, where I practice law, the New York State Education Department Office of Professional Discipline (www.nysed.gov) is the agency that investigates any reports of professional misconduct by nursing professionals.

The biggest mistake any licensed professional nurse can make is to ignore any initial contact advising them of a misconduct allegation or investigation and hope that the matter “will just go away” if they don’t respond. This will never be the case! A disciplinary investigation will proceed with or without participation by the nurse. Thus, if a nurse chooses to ignore notification of a potential disciplinary action, it is entirely possible that the matter will be decided without the nurse having the opportunity to provide any form of a defense whatsoever to the charges. It is strongly suggested that when a nurse learns that he or she is under investigation, the nurse should immediately seek counsel from an attorney experienced in the area of professional licensure defense.

The legal profession, much like medicine, is highly specialized. A patient would not ask a dermatologist to perform cardiac surgery, and likewise your divorce or real estate lawyer is not going to be the best representative for you in a matter involving your professional nursing license. Nurses should perform due diligence and choose an attorney experienced in this area of the law. An excellent resource is The American Association of Nurse Attorneys (TAANA; www.taana.org), which is a national organization of dual professionals (lawyers who have both nursing and legal training) that includes many members with licensure defense experience. Some nurses erroneously believe that they can merely appear without representation, “explain” the situation to the authorities, and the matter will be closed without charges. This is rarely the case, and in doing so the nurse may inadvertently disclose information that is prejudicial to his or her defense.

Although having legal representation is not mandatory, it is highly recommended because an experienced attorney (preferably a nurse attorney) can advocate for the nurse and effectively guide him or her through the process to achieve optimal results.

Step 2: Timely Notification to the Insurance Carrier
The next step is for the nurse to notify his or her professional liability insurance carrier that a licensure defense claim for benefits is needed. It is imperative that the insurance carrier is immediately notified of the claim for licensure defense coverage. A failure to notify the carrier in a timely manner may result in a disclaimer of coverage due to late notice. All nurses should check their liability insurance policy to confirm the time frame required to report a licensure inquiry or action.

Step 3: Documentation Is Reviewed.
During an investigation of a nursing license action, the disciplinary agency will review various types of medical record documentation. The representatives of the agency will closely scrutinize the relevant medical records for accuracy and completeness.

Other related documents that might be reviewed include incident reports, logs, discipline notices or writeups, performance evaluations, witness statements, patient complaints, etc.

Other collateral types of documentation may prove helpful to the nurse’s defense in a disciplinary matter. These can include positive letters of reference, good performance evaluations, certificates showing continuing education credits earned, and lists of awards received. Nurses should, as a matter of routine, keep these types of supportive documentation in a personal file that will be readily available if needed in the future. If the only copies of these types of documents are contained within the employment record, they may not be available to a nurse who is terminated from employment. This underscores the importance of nurses being proactive and maintaining detailed files containing these types of documents.

Step 4: Hearings Begin.
When handled appropriately, many cases can be resolved prior to the hearing stage. This can include a dismissal of the charges or a voluntary consent order developed as a result of negotiation. However, if a matter proceeds to a full disciplinary hearing, testimony will most likely be required from the nurse under investigation. Testimony will also be required from fact witnesses and possibly expert witnesses. This can be an intimidating experience. It underscores the necessity of having representation by an experienced and skilled advocate (a nurse attorney). It also underscores the importance of having insurance defense coverage, since hearings can be expensive due to required fees.

Step 5: Outcome Information Is Published.
Many nurses are not aware that the final adjudication (legal result) of a disciplinary action is considered public information and will be posted on the internet and in legal and public records. This can have damaging consequences. For example, agencies including the Center for Medicare and Medicaid Services may and sometimes do choose to put the disciplined nurse on an excluded provider list. If a nurse is on the Medicare/Medicaid excluded provider list, he or she is virtually unemployable in healthcare because such a nurse cannot be employed by any provider that provides services to patients covered by Medicare or Medicaid. This is yet another reason why nurses should avail themselves of professional advice and assistance before they respond to disciplinary actions by any regulatory or disciplinary agency.

Final Thoughts
It is highly recommended that any nurse who receives notice that he or she is under investigation or is charged with professional misconduct should immediately seek legal advice from an experienced licensure defense attorney. This consultation should occur before the nurse discusses the case with the disciplinary authorities or even with colleagues. If the nurse retains counsel late in the process, after making statements to the authorities, he or she may have inadvertently provided the authorities with damaging information that may prove prejudicial to his or her defense.

That said, remember that the best way to avoid disciplinary action is to render care to patients within your scope of practice in an ethical and professional manner. Always adhere to established guidelines for safe and competent practice. Preventing a licensure action is always the preferred approach.

Karen J. Halpern is a litigation attorney in private practice in Melville, N.Y. She is a member of The American Association of Nurse Attorneys (TAANA) and a past president of the New York Metropolitan TAANA Chapter. She currently sits on the New York Metropolitan chapter’s board of directors.

Article Resources

American Association of Nurse Attorneys. http://www.taana.org/referral American Nurses Association. Code of Ethics for Nurses. http://www.nursingworld.org/codeofethics
Brous E. When to Seek Legal Counsel. Several areas of practice present potential licensure problems for nurses. ADVANCE for Nurses. http://nursing.advanceweb.com/Continuing-Education/CE-Articles/When-to-Seek-Legal-Counsel.aspx
https://www.nursys.com
Brous E. Common Misconceptions About Professional Licensure.
   Amer J Nurs. 2012;112(10):55-57.
Brous E. Professional Licensure: Investigation and Disciplinary Action.
   Amer J Nurs. 2012;112(11):53-59.
Brous E. Professional Licensure Protection Strategies.
   Amer J Nurs. 2012;112(12):43-47.
NCSBN Boards & Regulation.
http://www.ncsbn.org/115.htm
Nurses Service Organization. www.nso.com/professional-liability-insurance/need-coverage.jsp

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