Advocating for Nurses in Board Disciplinary ActionsThe Role of Nurse Advocates

Many nurses cannot afford legal representation when their state nursing board takes action against their license. In such cases, Nurse Advocates step in to provide invaluable support, helping nurses navigate these complex situations. Although Nurse Advocates are not attorneys and cannot practice law, they bring critical expertise as Registered Nurses. Their role aligns with the Nurse Practice Acts (NPA), Administrative Codes, and state regulations, which govern nursing practice. The NPA, a legal framework established by the Executive Branch (Legislature) and administered by the Board of Nursing, dictates the standards and scope of practice. The NPA states that the nurse must know the NPA and the Board-associated Rules and Regulations. Nurse Advocates know well these laws, Rules, and Regulations and how they apply to disciplinary actions. Nurse Advocates know how Boards of Nursing operate and are familiar with their processes.

Nurse Advocates, many of whom are Legal Nurse Consultants, play a significant role by helping nurses interpret the NPA and understand the relevant standards of care as they apply to board complaints. While nurses are permitted to defend themselves and have advocates, Expert Nurse Consultants (www.nursingboardcomplaints.com) go a step further by offering advocacy and expert testimony during disciplinary hearings. This nursing-centered approach has proven effective in achieving favorable outcomes, including charge dismissals.

The Mission of Nursing Boards

State nursing boards exist to protect the public, a mission carried out through the publication of the Nurse Practice Acts. These acts are not suggestions—they are laws. One of the fundamental rules of most NPAs requires nurses to be thoroughly familiar with their contents. At its core, the NPA emphasizes patient safety and the application of the nursing process: assessment, diagnosis, planning, intervention, and timely documentation. Boards operate under the principle that “if it wasn’t documented, it wasn’t done.”

Nurses have faced board complaints for issues such as failure to document signed orders or redundant charting. For example, a nurse might document intravenous medication administration on a paper sheet but omit it from an electronic medical record, leading to allegations of negligence. Even a well-intentioned decision, such as withholding a medication to prevent toxicity, can lead to disciplinary action if the rationale is not documented.

Challenges in the Disciplinary Process

Nursing boards often operate under a standard of "sufficient suspicion" rather than "beyond a reasonable doubt." For example, a board attorney might cite behaviors like slurred speech or staggering as grounds for intoxication charges, even without definitive evidence such as a positive drug test. This low evidentiary threshold has led to an increasing number of nurses facing investigations. According to MedPage Today, boards have disciplined nurses for actions unrelated to patient care, such as personal conflicts or minor legal infractions [ii].

The disciplinary process can take years. Nurses must contest allegations in front of an Administrative Law Judge (ALJ) at the State Office of Administrative Hearings (SOAH). Unfortunately, boards are sovereign entities with limited oversight, and the Attorney General’s role—both as defender of the board and its overseer—presents a conflict of interest.

The Initial Complaint

The disciplinary process begins when a complaint is filed, which can come from various sources: employers, family members, patients, or even disgruntled neighbors. Boards do not consider retaliatory motives or bad faith as mitigating factors. Once assigned, an investigator gathers information and notifies the nurse, often with a vague summary of the alleged facts. Nurses typically have 20 to 30 days to respond, failing which they risk default revocation of their license.

To prepare an effective response to the initial complaint, the nurses' board file, including all evidence relied upon—medical records, personnel files, and any relevant documentation must be requested under a request for Production and Discovery. However, critical materials such as witness statements, the original complaint, or investigator notes often remain confidential. It is impossible to respond to allegations if the nurse is blind to the evidence, especially if it involves complex medical records that may be from months or even years prior. The nurse must prove their innocence, as the board has no obligation to establish guilt beyond suspicion. Some states refuse to provide Production and Discovery until the time of trial though it is possible to obtain some idea of what the Board is relying upon as evidence. As a Nurse Advocate, I work hard to obtain the evidence for the nurse to review to provide a thorough and informed rebuttal to the complaint letter.

The Interview: Many states require an in-person or video conference interview with a third-party investigator. These are trained, often criminal investigators who work for the Board and are not Board staff. They are rarely nurses are have any medical training. As a Nurse Advocate, I spend considerable time on a video conference with my clients, getting them ready for the interview. By the time the nurse goes to the interview, they feel confident and sure of what they will testify to. The Investigator will ask the nurse questions, often not unlike being interrogated. The nurse's responses along with the interviewer's impressions are then sent to the Board staff to consider dismissal or the formation of charges/discipline.

Proposed Charges and Informal Hearings

After the investigation, the board may either dismiss the complaint or issue proposed charges outlining alleged violations of the Nurse Practice Act (NPA). Nurses have the option to accept stipulated orders or contest the charges. As a Nurse Advocate, I assist nurses in leveraging this critical opportunity to robustly defend their position of innocence. At this stage, a formal rebuttal letter can be prepared, offering a detailed response to the board's now far more specific allegations of NPA violations. This letter may also include peer-reviewed, evidence-based research that supports the nurse's defense. In some states, nurses may be offered a settlement hearing or an informal hearing. Informal hearings provide nurses with the chance to present their defense to board staff; however, these proceedings often lack the impartiality and structure of judicial oversight.

If informal negotiations fail, formal charges are filed, accompanied by stipulations such as restricted practice settings, supervision requirements, and mandatory continuing education. These orders are made public on platforms like Nursys and the National Practitioner Data Bank, creating lasting consequences for the nurse’s career and reputation.

Mediation at The State Office of Administrative Hearings: Before a formal hearing or otherwise what is a trial the nurse has a right to ask to be accepted for mediation. In some states, mediation is otherwise known as: Alternative Dispute Resolution. Board attorneys will not mention or offer mediation and often if the nurse has hired an attorney they will not mention mediation, Mediation works and it does not cost as much as an Administrative Trial.

The majority of my clients settle before this stage, however, if we get to where there is a question of going to a hearing/trial I always advocate for mediation. I have only had one case fail at mediation and that was because the client had an emergency during the mediation and became upset. I have had many clients proceed to mediation and they all either have their charges dismissed or reduced and leave feeling satisfied.

Mediation is an informal process held by and at the State Office of Administrative Hearings. It is therefore held outside and apart from the Board. At mediation, there will be an Administrative Law Judge who is a trained mediator who oversees the entire process and whose goal is to negotiate an outcome that both parties can agree with. A fair and just agreement is sought based on the law and facts of the case, not based on the subjective opinions of certain Board staff. It will likely be the first time the nurse has had to tell their whole story, to actually explain it to the Judge and show them the evidence such as entries in the medical record or MAR. The Nurse can talk eye to eye with the Judge without the risk of formal objections or being stopped. The proceedings are not recorded in any manner.

At mediation opposing council being the Board will also appear often with a Board retained consultant that they will present an Expert. This Expert is usually not experienced in the specialty at hand but instead in some other specialty or has not been at the bedside for many years. If possible I will attend my client's mediation as a Nurse Expert. Either way, the client will be well prepared to present their case and to defend their case to expected and projected arguments. The Judge will then separate both parties and go between both negotiating until a middle ground has been reached or the Judge recommends a dismissal. If mediation does fail then the nurse can proceed to a formal hearing or trial.

The Formal Hearing Process at The State Office of Administrative Hearings:

For nurses who contest formal charges and wish to proceed to a hearing, the trial involves board-appointed experts and evidence presentation. Unfortunately, these trials often favor the board due to limited discovery, escalating charges, and potential conflicts of interest among board-employed experts. Outcomes at SOAH are typically proposed decisions, which boards can choose to ignore.

Few nurses pursue this route due to the prohibitive costs and the toll of a prolonged process. Those who do often face unfavorable outcomes, raising constitutional concerns about administrative law [v][vi].

Collateral Consequences

Even minor infractions can result in devastating career consequences. Nurses with disciplinary actions struggle to secure malpractice insurance, pursue advanced degrees, or transition to other licensed professions. Board orders are permanent unless overturned, and public reporting ensures that the stigma of disciplinary action follows the nurse indefinitely [iv].

Conclusion

The disciplinary process for nurses is fraught with challenges, from vague complaints to biased adjudication. Nurse Advocates play a vital role in leveling the playing field, and helping nurses understand and navigate these complex proceedings. By employing a nursing-focused approach and advocating for fair treatment, these professionals empower nurses to defend their licenses and careers effectively.

References

[i] Nurse Practice Acts Guide and Govern https://www.ncsbn.org/2017_NPA_Guide_and_govern.pdf

[ii] Are Nursing Boards Getting More Aggressive – MEDPAGE https://www.medpagetoday.com/special-reports/exclusives/91322

[iii] National Council of State Boards of Nursing https://www.ncsbn.org/1325.htm

[iv] The Collateral Damage to Nursing Licenses Caused by Nursing Board Disciplinary Actions http://murphyjoneslaw.com/wp-content/uploads/2016/03/Collateral-Damage_Editor.pdf

[v] Becoming an US Administrative Law Judge https://www.americanbar.org/content/dam/aba/administrative/administrative_law/2017_Holmes_Chapter.pdf

[vi] Interview with Richard Epstein: Is Administrative Law Unlawful? https://www.law.uchicago.edu/recordings/debate-richard-epstein-and-daniel-hemel-administrative-law-unlawful