Boards of Nursing (BONs) in the 50 states, District of Columbia, and 4 US territories are responsible for regulating nursing practice with the ultimate goal of protecting the public's health and welfare. NPs typically interact with a BON when applying for or renewing a license. BONs are responsible for and authorized by law to license NPs through the state's nurse practice act, which also stipulates the titles to be used by nurses, scope of practice (sometimes jointly with a Board of Medicine), and the discipline process and consequences that can be provided should an NP violate the law.
The authority for states to regulate healthcare professionals' practice stems from the 10th Amendment of the Constitution of the US. This dictates that powers not delegated to the US by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people.1 This article focuses on the discipline process and how NPs can advocate for their license should a complaint be filed against them.
Complaints
The National Council of State Boards of Nursing (NCSBN), the organization through which BONs meet and act on matters of common interest, reports the annual rate of discipline on all nursing licenses is less than 1% per year.2 This is a small number of complaints among nearly 3 million nurses in the US.3 However, this does not include the number of complaints filed for which there is no discipline provided. The only data regarding the rate of discipline for NPs available are more than a decade old.4
A complaint is the first component of a disciplinary investigation. Complaints may be filed by patients, family members, employers, coworkers, or other healthcare professionals, such as pharmacists. All but six BONs require mandatory reporting for violations of the nurse practice act with some exceptions.5 The Kentucky BON clarified that mandatory reporting does not violate the Health Insurance Portability and Accountability Act, which permits disclosure of health information without patient authorization for health oversight activities (including licensure and discipline).6 Each BON determines the process used to file a complaint and whether it may be anonymous.
There are different types of complaints that may lead a BON to investigate a nurse. These include but are not limited to: Unsafe or unprofessional behavior; exceeding one's scope of practice; action on a license in another jurisdiction; violation of a state or federal law related to controlled substances or other criminal acts; fraud or abuse; moral turpitude; unlawful practice such as not having a license; and failure to comply with a BON discipline action.7 A nurse with substance misuse in many states is referred to a nondisciplinary program to engage in treatment and rehabilitation with removal from providing care until safety to practice is established.8
Review of a complaint
Each BON has a process to review a complaint to determine if it is appropriate-such as within the board's jurisdiction-and reaches a level of concern that warrants an investigation. For example, a complaint filed about a physician to a BON is not within its jurisdiction. A complaint regarding a labor issue or billing problem would also not be within the board's jurisdiction.9 A complaint must provide enough information to indicate if a violation of the nurse practice act occurred, otherwise, an investigation cannot proceed.
Who conducts the initial review of a complaint also varies among the states. Board staff or staff in conjunction with appointed board members may triage the complaints to determine if and how the complaint should be moved forward.
Investigation
When a case moves forward for investigation, the NP will be notified and asked to respond to the allegations. Investigations may be conducted by a variety of personnel, such as the executive officer, nursing staff, nonnursing staff from another jurisdiction, or the Office of Attorney General staff.5 Some BONs contract with APRNs to serve as expert witnesses throughout the review of documents and records to offer opinions to the BON and serve as experts should a hearing be held.10
The NP should take an investigation seriously. In addition to the right to respond to the allegations, the NP should also take advantage of the right to a lawyer, the right to a fair and impartial process, and the right to appeal an action against one's license.11 The investigation will include evidence from documents, witness interviews, and possibly site visits.12 Most states have subpoena power during an investigation.5 This process may take months.
Board decisions
The evidence obtained through an investigation is provided to BON members who may choose among several options for action. The BON may close the case, have a settlement conference in which the NP and BON agree to the terms and type of discipline action, offer an alternative to discipline (such as a program for substance use disorder), or file formal charges and allow the NP to have a hearing with an administrative law judge.4,13
When selecting the course of action, the BON must determine how the NP's standards of practice compare to the accepted standards for NPs. In addition, the BON must assure due process to prevent an NP from being deprived of a license and the public, therefore, deprived of NP services.4 Actions may range from a letter of caution in one's file, a letter of reprimand, a restriction or probation to a suspension, or revocation of the license.4 Fines may also be imposed. Suspension or revocation of an NP's license will eliminate the ability to work and adversely affect the NP's status among peers and the community.7 Disciplinary actions are public information and may be listed in a publicly available state database and will be reported to the National Practitioner Data Bank.14
Advocating for your license
As previously noted, legal counsel is imperative to assure the NP's rights to due process are respected. Legal counsel may be part of liability insurance, which is important to ascertain prior to a complaint being filed. An insurance policy with regulatory defense coverage can save thousands of dollars of legal fees.15 It is advisable to talk with an attorney prior to responding to a request for information. In addition, it is important for NPs to refrain from attempting to access the medical record before receiving legal counsel, alter the medical record, destroy evidence, contact or communicate with the complainant or potential witnesses, or ignore the complaint in hopes that it will go away.10
Prevention is an essential form of advocacy. It is important for NPs to read their state's nurse practice act and become clear regarding what is-and is not-within the scope of practice. NPs should also be familiar with any additional laws to which they must adhere. For example, Washington State's Regulation of Health Professions-Uniform Disciplinary Act standardizes all procedures for licensed health professionals to assure the public of health professional competence and conduct.16 Evidence-based practice is another tool to avoid errors when providing care. Finally, NPs should engage in professional conduct, keep their boundaries, and hold themselves to high ethical standards.
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