Nurse Grad Issue 2007
The Nurse Police
The Board of Nursing is on the side of the public, and has the right to investigate any nurse who may have violated the practice act
As new grads, most of you have probably only thought about your state's Board of Nursing when you obtained your nursing license. However, the board is involved with more than just licensing. While most nurses worry and plan around avoiding lawsuits, they give little thought to which actions or omissions might attract the board's attention.
Even though lawsuits affect a nurse's wallet, the bigger concern is the impact the board can have on a nurse's ability to practice nursing. When most nurses think about relinquishing their nursing license, they assume it will be due to a voluntary action like retiring or winning lottery millions. But, few nurses expect to have to give up their ability to earn money as a nurse because the board suspends or revokes their license or forces the nurse to surrender the license. Even if the board chooses not to revoke a license, it can still impose restrictions on the nurse's license that can adversely affect a nurse's employment.
At this point, many nurses may be tempted to stop reading. After all, "good" nurses do not end up in front of the board and will never need the information contained in this article. Right? Well, a large number of nurses facing the board are "good" nurses who may have made an error, or maybe were not aware of the laws governing their practice, or perhaps failed to document adequately. Perhaps the nurse is innocent, but still had a complaint filed with the board.
The one consistent fact about nurses who come under investigation by the board is that they never expected their nursing practice to be under scrutiny. "Good" nurses can be investigated by the board, and "good" nurses can be disciplined by the board and have their nursing practice restricted.
What It Is & What It Does
What exactly is the Board of Nursing, and how can it restrict a nurse's license? Each state's legislature enacts laws, the Nurse Practice Act, governing nursing practice. The executive branch of government enforces the practice act through the state's regulatory agency, the Board of Nursing. The board may be independent or part of a larger regulatory entity such as a professional registration board or licensing board. The board is comprised of nurses, public members and/or physicians. The board members do not work for the board full time, and they are not usually involved in its daily activities. To perform day-to-day work, the board employs paid staff members.
The board is vested with immense power to regulate nursing. The board is charged by the state's legislature with the regulation of nursing practice. Regulation includes licensing, monitoring continued competency (continuing education, practice hours requirements), investigating complaints and the imposition of discipline for violations of the Nurse Practice Act.
It's important to note that the Board was not established to be the guardian and protector of nurses in their particular state. This is a surprise to many nurses, who often misinterpret the board as their advocate. The job of advocating for nurses is performed by professional organizations, such as the state or national nursing association. Boards are entrusted to protect the public, not nurses.
Think of the board as the "nurse police" or nursing regulators and a better understanding of their role emerges. The board is on the side of the public, and has the right to investigate the behavior of any nurse who may have violated the practice act.
To protect themselves, nurses must be diligent. They must know the laws, rules and regulations that govern nursing practice, and they must practice good risk management. There are several practice areas that cause the most problems for nurses.
Documentation: If the complaint involves another area of practice, documentation can help the nurse. There have been many instances when my clients have found themselves stating, "If only I had documented." Nurses must be sure they document timely and adequately.
Assessment: Failing to assess, failing to thoroughly assess or failing to reassess comprise the assessment problems. Assessments must address the patient's problems, and if a new problem arises, the assessment must be focused on that new problem.
Intervention: A nurse cannot just assess a patient, document the assessment and stop. The nurse also must intervene whenever necessary. If the nurse does not obtain what is needed for the patient from current orders, he or she must notify physicians and follow the nursing chain of command until intervention is no longer required.
Bypassing checks and balances: Bypassing checks and balances is a leading cause of medical errors. For example, many medication errors can be traced to a nurse failing to go through the five "rights" of medication administration. Likewise, rushing through chart checks allows for orders to go unnoted and unimplemented.
Not knowing policies and procedures: Finally, a nurse must know the facility's policies and procedures because he or she will be held to those if a lawsuit or complaint before the board arises. It is common that nurses practice on a unit or at a facility without knowing what is required pursuant to the policies and procedures. However, a common problem with policies and procedures is that they do not always cover all of a nurse's obligations, and some may be outdated or incorrect. Therefore, a nurse needs to also be aware of current nursing standards.
Protect Your Career
Nurses must protect their career by knowing who to enlist to help them. Just as nurses should not try to represent themselves in a malpractice lawsuit, nurses should not try to represent themselves before the Board of Nursing. The board works for the state protecting the public and is not required to be concerned about a nurse's career or protecting his or her rights and interests. The board has attorneys who will aggressively protect the board/public's interests. Nurses need protection during any adverse interaction with the board, which is why they should hire an experienced attorney.
Based on personal experience as an attorney for a regulatory board and as a defense attorney for nurses, I have found that nurses who are represented by an attorney have a greater chance of obtaining a better outcome from a board matter than unrepresented defendants. Nurses not only have to hire a lawyer, they need the right lawyer. Nurses should thoroughly question any attorney they are considering to ensure that the attorney has the proper experience and knowledge to practice before the board.
The area of law involving regulatory agencies like the Board of Nursing is called administrative law. Nurses should look for an attorney who is board certified in administrative law and who frequently represents nurses before the board. Nurses should not assume that every attorney has the knowledge or experience to adequately represent them.
Nurses also should protect themselves by purchasing their own malpractice insurance with administrative/regulatory board coverage. Nursing associations recommend that all nurses carry insurance even if they think they are covered under an employer's insurance.
There are many reasons why nurses do not purchase this inexpensive protection. Some nurses believe an employer's insurance will take care of any problems. However, the employer's insurance may not completely cover the damages, and it usually does not cover actions before the board. Furthermore, in a situation where the employer reports the nurse to the board, the employer is not going to spend money defending the nurse.
It is also a common misconception that having insurance draws malpractice lawsuits. There are multiple reasons why a malpractice suit is filed against a nurse, and whether you have malpractice insurance does not alter those reasons. Nursing malpractice insurance provides protection when it is most needed. When a nurse receives notice that he or she is being investigated before the board, it is a great relief to know that malpractice insurance will cover the cost of an attorney.
The Boards of Nursing are getting busier every year and their regulatory powers are likewise increasing. It is crucial that nurses understand the seriousness of a board investigation. Just as the state will close a restaurant because of a public health risk, the state, through the Board of Nursing, will stop a nurse from practicing if he or she is a risk to the health of the public. Nurses need to be cautious and prudent in order to protect themselves from possible adverse actions.
Taralynn R. Mackay is a partner in the Austin, TX, law firm of McDonald, Mackay & Weitz, LLP, where her practice focus is administrative/regulatory law, healthcare law and professional licensing issues.