Understanding that disciplinary action can be complex helps nurses protect themselves.

Takeaways:

• Nurses facing licensure investigation/discipline must be represented by attorneys with expertise in disciplinary defense.
• Licensure discipline can cause multiple collateral consequences.

“It is…highly probable that from the very beginning, apart from death, the only ironclad rule of human experience has been the law of unintended consequences.” —Ian Tattersall, curator emeritus, American Museum of Natural History, New York, New York

WHEN nurses are investigated by their state board of nursing (BON), they’re sometimes told that they don’t need an attorney, that hiring one will create an adversarial situation, and that they’ll have to pay for the attorney themselves. That’s bad advice. Nurses need to be represented by an attorney who is experienced in licensure defense. These attorneys can facilitate the process because they usually have cultivated respectful relationships with board members, investigators, and prosecutors.

Another reason for appropriate legal representation is that BON investigators and members aren’t necessarily familiar with the collateral consequences of licensure discipline. Most importantly, however, is that the role of the board is to protect the public, not advocate for the nurse being investigated. In fact, proceedings before administrative agencies such as BONs are, like civil or criminal proceedings in court, conducted as an adversarial process.

Nurses who represent themselves or who are represented by an attorney who doesn’t normally practice in this arena can find themselves at a serious disadvantage, particularly when dealing with cascading events that can occur after disciplinary action. Fortunately, nurses who have their own professional liability policies typically have license defense protection through their insurance carriers.

Cascading events

Once a final order of discipline is entered against a nurse, other regulatory agencies can become involved, so the nurse should be prepared for this. Many other administrative agencies can have overlapping jurisdiction with the BON. For example, drug diversion can prompt investigations by the Drug Enforcement Administration, Medicaid, Medicare, and state insurance fraud units.

Reciprocal enforcement

Nurses often mistakenly believe that discipline in one state is confined to that state and that only active licenses can be disciplined. However, licenses in other states—even those that aren’t current—also can be disciplined. That’s because licenses in some jurisdictions are issued for the lifetime of the license, which means those licenses can be disciplined even if the registration certificate has expired. (See Reciprocal enforcement.)

Nurses also are frequently unaware that some states require nurses to notify their boards if they are disciplined in another state within a certain period of time. For example, in Pennsylvania, nurses must notify the BON of pending criminal charges, criminal convictions, and disciplinary actions taken by other states and jurisdictions. Failure to report within 90 days may result in the imposition of a disciplinary sanction.

BONs consider disciplinary action to be public information and publish it. In addition, licensure discipline is reported to the National Practitioner Data Bank (NPDB) and, except for Michigan, Nursys.

Nurses should be familiar with their practice acts and their state or territory’s definition of professional misconduct. For nurses who have held multiple licenses for traveling nurse assignments or telehealth practice, reciprocal discipline can be emotionally demoralizing and financially detrimental.

The National Practitioner Data Bank

Nurses often don’t realize that their risks of licensure discipline far outweigh their risks of being named in a malpractice lawsuit. Malpractice insurance companies must report payments for lawsuits that are settled or result in a plaintiff’s verdict to the NPDB within 30 days of the payment. This is true for nurses at all levels of practice. BONs also are required to report final orders of discipline to the NPDB within 30 days.

Between 2006 and 2016, a total of 637,642 reports were made to the NPDB for all practitioners. Only 143,713 of those reports were for medical malpractice payments. Of the remaining reports, 433,151 were for adverse actions and 60,788 were for reinstatement or restoration. A total of 144,250 reports were made during this time for RNs. Only 3,869 of those reports were for medical malpractice payments. Of the remaining reports, 118,553 were for adverse actions and 21,828 were for reinstatement or restoration. (While a license restoration or a Medicaid/Medicare restoration isn’t reportable as an offense, it’s reported to the NPDB as a status change.)

Although NPDB reports aren’t public, they’re available to employers, malpractice insurance companies, Medicaid fraud units, federal health plans, and state and federal law enforcement. NPDB reports can compromise a nurse’s employability and a nurse practitioner’s privileges. Malpractice insurance policies can be denied, leaving the nurse without coverage.

For nurses who have practiced on a multi-state privilege under the Nurse Licensure Compact or the Enhanced Licensure Compact, remote state action against that multi-state privilege also is reported to the NPDB. (Under the compact, a nurse with a license in one state can work in other compact state, which is considered the remote state. For example, a nurse licensed in Texas can work in Maine. Maine would be the remote state for the Texas nurse.)

Nurses should know the licensure discipline will be reported, understand that the information reported to the NPDB is permanently maintained, and be advised on how to obtain copies of the reports and respond to inaccuracies in them. They also must understand that voluntary surrenders can have the legal effect of revocation and also are reported to the NPDB.

Other administrative agencies

Other potential cascading effects include actions taken by agencies other than the BON. States can have many regulatory agencies that have overlapping jurisdiction with the nursing board, which means that nurses who are disciplined by their BONs can face prosecution by health departments or other state authorities.

If nurses accept a settlement with a BON that required them to admit the allegations against them, it’s then impossible to deny the charges from the other agencies, which makes their defense more complicated. For example, the Justice Center for the Protection of People with Special Needs in New York has the authority to investigate allegations of abuse or neglect. If a finding is made to support such an allegation, the category and type of abuse or neglect is determined to be “substantiated” and the nurse can face placement on an exclusion list, prohibiting him or her from “future employment with vulnerable persons in the State of New York.” So, even if the BON has permitted the nurse to remain in practice, the Justice Center can prevent the nurse from doing so.

Exclusions

Licensure discipline can result in exclusion from a state’s Medicaid program. A nurse who is placed on a list of excluded providers cannot work directly or indirectly, in any capacity, for any employer who participates in the state’s Medicaid program. Like the Justice Center exclusion, this renders the nurse essentially unemployable even if his or her license is in good standing. As with state exclusions, the nurse also can be excluded from participation in Medicare and other federal programs.

The purpose of Medicaid or Medicare Fraud Units is to protect taxpayer dollars from being used by providers who are guilty of fraud, waste, or abuse. Providers who have been disciplined by their licensing boards raise these concerns. Medicaid programs have the discretionary or permissive authority to exclude nurses for some reasons, and a mandatory requirement to do so for others. Although RNs and LPNs do not directly bill to the programs, their employers do, which is why they can be excluded. Nurse practitioners who are direct billers to the programs can be excluded not only from those programs but also can lose their status with private insurers.

Civil and criminal proceedings

BON interviews are frequently recorded, and the recordings of these interviews can be subject to the subpoena power of another agency, criminal prosecutors, or civil litigation. Statements made against one’s interest in these interviews can be used as evidence in civil or criminal proceedings. Nurses should be thoroughly prepared and represented by counsel at these interviews so they can answer questions honestly, but not inadvertently make statements against their own interest in the process. Similarly, written statements prepared for BON purposes can be subject to subpoena power, creating further evidence against the nurse in civil or criminal matters.

Make an informed decision

Nurses who are represented by attorneys familiar with disciplinary defense before a BON are less likely to face unexpected collateral consequences. A decision regarding the acceptance of a settlement offer or proceeding to a hearing must be based, in part, on knowing if or how many collateral consequences are likely. Without this information and counsel, it’s not possible for a nurse to strategize a defense, understand the potential collateral consequences of discipline, and make an informed decision based on a clear understanding of the risks, benefits, alternatives, and costs.

Edith Brous is a nurse attorney in New York City, New York.

Select References
Brous E. Reciprocal enforcement and other collateral issues with licensure discipline. J Nurse Pract. 2017;13(2):118-22.

National Practitioner Data Bank. Chapter E: Reports. October 2018. npdb.hrsa.gov/resources/aboutGuidebooks.jsp?page=EOverview.jsp

National Practitioner Data Bank. NPDB Guidebook. October 2018. npdb.hrsa.gov/resources/NPDBGuidebook.pdf

National Practitioner Data Bank. Reporting compliance status by profession. npdb.hrsa.gov/servlet/ComplianceStatusByProfessionServlet?profName=Registered+Nurse

National Practitioner Data Bank. Data analysis tool. npdb.hrsa.gov/analysistool

Office of Inspector General. Exclusions program: Background Information. oig.hhs.gov/exclusions/background.asp

Pennsylvania Board of Nursing. Rules and regulations. Title 49—Professional and vocational standards. Reporting of crimes and discipline. 2015. pabulletin.com/secure/data/vol45/45-42/1827.html

South Carolina Board of Nursing. Grounds for revocation, suspension or other restriction or limitation on a license. llr.sc.gov/nurse/RestrictiononLic.aspx

Washington State Nurses Association (WSNA). (2012). Your Nurse Practice Act and the Disciplinary Process: A Handbook for Nurses. 2^nd ed., p. 21. cdn.wsna.org/assets/entry-assets/3215/Disciplinary-Process-Booklet-v11-1.4.pdf

Wisconsin Board of Nursing. Rules of conduct: Chapter N 7, N7.03: Grounds for denying or taking disciplinary action. August 2016. docs.legis.wisconsin.gov/code/admin_code/n/7/03