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All state boards of nursing (BONs) are charged with protecting the public from unsafe nurses at all levels (LPN to NP). In other words, your state licensing board is there to protect the patients, not to be an advocate for you. As part of this process, the nursing board regulates the practice of nursing in the state. This includes determining standards of practice and disciplining nurses for deviations from these standards.

What You Can Expect

Expect your board to take every complaint seriously. By definition, your BON is a law enforcement agency. The complaining party is usually the employer, but often is the alleged "victim." You, the licensed nurse, are the alleged "perpetrator."

However, because a license investigation is not a criminal action, you are afforded no constitutional rights to confront your accuser or have an attorney appointed to represent you. Further, because a license investigation is not a civil action, you may not be entitled to discovery of evidence that the agency may have to support its case. Some agencies may withhold evidence indicating that you did nothing wrong.

An agency investigation is considered an informal procedure, which provides you very little protection of your rights. Most state licensing boards insist that you, as a licensee, have a duty to cooperate with the board's investigation, which includes self-reporting any violation.

In a board investigation, anything you say may be used against you should the matter proceed to a formal disciplinary action. Assume that you will not be given any information of substance about the underlying allegation or the identity of the person making the complaint against you. In fact, with many state agency investigations, the agency is legally obligated not to disclose the identity of the person who made the complaint or any information or documents the agency obtained as part of its investigation.

Most licensing boards have the authority to subpoena records without being obligated to notify you of this action. The board may obtain and review your personnel file, including any disciplinary records, your school records, patient records and, depending on the source of the complaint, quite possibly your own medical records. (Many state agencies interpret HIPAA as excluding them from notification and authorization requirements.) In many situations, you are the last person interviewed in an investigation.

When the Investigation is Over

When the BON concludes there was no wrongdoing by a licensee, the investigation is closed without further action. Depending on agency rules, the investigative file may remain confidential or be deemed a public record subject to state public record disclosure laws.

When a licensing board concludes that an RN should be disciplined, some sort of due process hearing then occurs. However, because this is an agency proceeding, the due process rights that apply in criminal or civil court proceedings simply are not required. In other words, you the "defendant" do not have the same rights as defendants in criminal or civil proceedings.

The board has the burden of proof. It must show that there is sufficient evidence to support the allegations of wrongdoing against you and that the proposed sanction is supported by the evidence and the law.

You will have access to a limited amount of discovery from the board's investigation file. Generally this information is limited to what the board intends to rely on to prove its case. You will have the right to put on evidence to defend yourself, as well as limited rebuttal evidence.

The hearing process itself may occur before a hearing officer who is there to oversee the procedure and generally make rulings as to law. One or more board member (or BON staff) is often present to assist with the board's case, including questioning the witnesses and presenting evidence.

Because agencies are given special deference, it is often typical for the licensing agency, not the hearing officer, to make the final determination in a case. That is, the same agency that investigated and prosecuted you will ultimately decide if it produced sufficient evidence in support of its allegations and proposed discipline against you. Any appeal by you must be taken to the state appellate court. But even at the appellate level, the agency's decision gets deference.

Leveling the Playing Field

You cannot protect your rights if you don't know what they are. While the deck is stacked in favor of the BON when it comes to procedural safeguards and agency authority, your best defense is to hire an attorney to represent you at all stages of a licensing action.

This is especially true during the first part of the process, the board investigation. In most actions, the board will try to use your own words to prove its case. Further, your best chance at prevailing against the board is at the investigation level, before the board has reached any determination to take disciplinary action against you.

Take every board investigation seriously. Do not presume that because you are innocent, you will ultimately prevail. The BON is charged with protecting the public. As such, the board will likely err on the side of protecting the public and cannot be considered your colleague or advocate. That is the role of your attorney.

Mary Nester is an attorney in Portland, OR, and has represented nurses in cases of BON investigation.

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