With the Compliments of Springer Publishing Company, LLC

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1 With the Compliments of Springer Publishing Company, LLC JOURNAL OF NURSING LAW

2 Journal of Nursing Law, Volume 15, Number 2, 2012 The Best Defense for Registered Nurses and Nurse Practitioners: Understanding the Disciplinary Process Melanie Balestra, RN, NP, JD Registered nurses (RNs) and nurse practitioners (NPs) are regulated by Boards of Nursing, which use the disciplinary process to address problems and ensure patient safety. Complaints against RNs and NPs can come from various sources, and any violation of the Nurse Practice Act or its rules is sufficient reason for discipline. There is an established protocol for the disciplinary process, and RNs/NPs should become familiar with it on the chance that someday they may have to defend themselves against a complaint and protect their license and career. If an RN/NP is involved in a disciplinary action, he or she should consider retaining an attorney to ensure adequate representation. This is especially important if the complaint could create problems beyond an RN/NP s professional license. In addition to becoming familiar with the disciplinary process, RNs/NPs also must ensure that they have sufficient professional liability insurance to avoid problems. The disciplinary insurance should provide occurrence coverage rather than claims made coverage. Keywords: disciplinary process; registered nurse/nurse practitioner unprofessional conduct; attorney representation; disciplinary insurance; occurrence coverage In the United States, registered nurses/nurse practitioners (RNs/NPs) are regulated by Boards of Registered Nursing, whose common mission is public protection by observing education programs, evaluating and approving applicants for licensure, monitoring clinical practice and standards, and using the disciplinary process to address problems and ensure safety. Most RNs/NPs associate their Board of Nursing (BON) with licensure and give little thought to regulatory and disciplinary actions. However, understanding the disciplinary process is a professional necessity, as a complaint against an RN or NP can be brought to the attention of the BON from various sources, and any violation of the Nurse Practice Act or its rules is sufficient reason for disciplining at some level. With that in mind, it is important for RNs/NPs to have a thorough understanding of the RN and NP statutes in their state. They also need to familiarize themselves with the disciplinary process, ranging from complaint types and reporting to complaint resolution and how it will affect their licenses. The goal of this article is to provide a brief overview of the disciplinary process so that RNs/NPs will be better prepared in case they are charged with a complaint and face an investigation and/or possible disciplinary action. COMPLAINTS Complaints received and investigated by the BON can fall into several categories, including exceeding or some breach in scope of practice; drug diversion or problematic alcohol or drug use; ethical and moral issues or boundary violations; or criminal activity or convictions, including misdemeanors and felonies (Hudspeth, 2009). Often, grounds for a complaint are stated as unprofessional conduct, which can include almost anything from incompetence and gross negligence to substance abuse, mental illness, and unprofessional conduct outside of work. It is important for RNs/NPs to know that anyone can make a report to the BON so they should strive to always be professional and caring with patients and avoid gossip and drama that can occur in the workplace. Copyright 2012 Springer Publishing Company 39

3 40 Journal of Nursing Law Vol. 15, No. 2 Complaints can come from patients and family members of patients; employers and coworkers; family members, boyfriend/girlfriend, spouse, or friends of RNs and NPs; or law enforcement agencies and other departments of state and local government. Also, in this era of social media, complaints could result from unprofessional posting on Facebook or other Internet sites. Unprofessional postings could be judged by a BON as a reason for disciplinary action and could include violations of patient confidentiality; photos of alcohol use, illicit drug use, or unethical behaviors; use of sexually suggestive language; or negative comments about colleagues, their practice, or another institution. WheN A COMPLAINT IS FILeD Typically, a letter is sent to an RN or NP notifying him or her of complaints received concerning his or her license and what action the BON plans to take, such as to dismiss or to investigate the claim. If an RN or NP receives a letter from the BON, he or she should not panic but must give the letter immediate attention. A common mistake made by RNs/NPs involved in a disciplinary action is trying to represent themselves. Based on the complexity of the process and the potential impact on the ability of the RN or NP to practice, it is wise to seek professional help for all phases of the process. As a first step, the RN/NP should inform the board that he or she is hiring an attorney who will contact the board on his or her behalf. When talking with the board, the RN/NP should not try to explain what happened. Once the notification is made, the RN/NP should retain the services of an attorney familiar with nursing/nurse practitioner law. Retaining additional representation such as a criminal defense or civil attorney also is critical if the complaint could present the RN or NP with problems beyond his or her professional license, such as possible criminal charges or a lawsuit. If the issue is standard of care, what is the chance that this same incident might lead to a civil lawsuit for malpractice? If the complaint alleges a problem related to drugs or patient abuse, could the same conduct be filed as a criminal complaint? These are important questions to consider (Philipsen & Maskell, 2009). An RN/NP should look for a lawyer who specializes in administrative law and procedure, and ideally one who has experience representing clients before the BON in his or her state. Sources for lawyer referrals include professional liability insurance carriers, professional organizations, state bar associations, and The American Association of Nurse Attorneys ( When choosing an attorney, an RN/NP should ask about the attorney s experience, specifically how many RNs/NPs he or she has represented, and how much the attorney knows about the Nurse Practice Act. If the RN/NP is facing felony criminal charges, a criminal defense lawyer always should be retained because of the serious nature of felony charges and the potential for a lengthy prison sentence. (A criminal defense attorney will handle criminal cases at the local and state levels.) If the RN/NP is facing a misdemeanor charge, he or she should also consider working with both a criminal defense lawyer and an administrative law attorney so that action in the criminal arena does not negatively affect his or her RN/NP license. There are many types of misdemeanors and the BON focuses on them as a serious breach of conduct. Misdemeanors could include but are not limited to petty theft, driving under the influence, spousal abuse, and assault and battery. Typically, these matters are charged as misdemeanors but could be charged as felonies depending on the circumstances. Before any disposition in a misdemeanor action is contemplated, the RN/NP should consult with his or her administrative law attorney to ensure that the final resolution will be acceptable to the BON and will not affect the ability of the RN/NP to continue practicing. This is important because a criminal defense lawyer may recommend that the RN/NP plead guilty to a misdemeanor charge such as driving under the influence, without considering the negative effect on his or her license. In most states, any misdemeanor will automatically be sent to the BON by the court, and RNs/NPs also must report them to the BON. Finally, it is important to note that even if a criminal matter is expunged or dismissed, it remains on an individual s record (record of arrest and prosecution or rap sheet). The BON can access this record and discipline the RN/NP. RNs and NPs also should be reminded that if law enforcement officers ever approach them and start asking questions, anything they say can be used against them because Miranda rights are not recognized until an arrest has been made. Therefore, the RNs/NPs must tell the officer that they want an attorney present. Even if an RN/NP asks the officer if he or she plans to arrest the RN/NP and the response is no, this can change after information has been provided to the officer.

4 Balestra Understanding the Disciplinary Process 41 COMPLAINT INVeSTIGATION AND ReSOLUTION During the complaint investigation, the RN/NP will work closely with his or her attorney. The RN/NP should disclose all details to the attorney, including any arrests, and should be reminded to avoid discussing the complaint with anyone. To be well prepared for the meeting with the BON investigator, the RN/NP should review with his or her attorney the types of questions that will be discussed. In addition, the RN/NP should bring copies of his or her resume, employment evaluations, and letters of reference, as well as a list of witnesses (with contact information) and letters of support from witnesses. A written personal statement also can be submitted (reviewed in advance by the attorney). This mitigating evidence is important in that it provides additional supporting factors about the RN or NP s character and standard of care that might lead the BON to decide on a lesser consequence as part of the disciplinary action. It also is important to note that information related to the complaint will be available during the meeting but copies will not be provided. To ensure that the meeting with the BON goes as smoothly as possible, RNs/NPs are encouraged to avoid common mistakes, including the following: Forgetting to review documentation. The RNs and NPs are encouraged to carefully review all relevant facts including pertinent patient records. However, note that bringing copies of medical records is a direct violation of the Health Insurance Portability and Accountability Act (HIPAA). Lying. The RN/NP should be truthful in all communications (the meeting may be tape recorded). It is crucial that an RN/NP establishes and maintains his or her credibility. Answering a question that is not understood or trying to answer a complex or compound question. Talking too much. The RN/NP should be succinct when answering all questions and pause after each question. The RN/NP also should be reminded to stop talking as soon as his or her attorney objects. Saying never, always, or guessing at an answer. The PROCeSS It can take from several months to more than a year for a decision to be made in connection with the complaint. As such, RNs and NPs are reminded to avoid discussing the details because that information could be used against them. Also, the ability of an RN/NP to continue to work while the investigation is being conducted depends on the complaint and status of his or her license. In most circumstances, an RN/NP can work unrestricted as long as his or her license remains active. A case can be dismissed because of lack of merit or insufficient evidence or can be referred to the state s attorney general s office for prosecution. The attorney general s office will then proceed to negotiate a settlement (or stipulation agreement) or try the case before a disciplinary board or administrative law judge. This can be a multiyear process where the RN/NP will work with his or her attorney to review evidence (through discovery) and provide a defense. If no settlement is reached, the RN/NP and his or her attorney will argue the case at a hearing. The final outcome can include various options such as the following: Dismissal. The evidence does not support the claim that there had been a violation of the Nurse Practice Act. Administrative penalty. This is a penalty/fine given to a licensee or certificate holder who has worked on an expired license/certificate or failed to notify the BON of an address change within 30 days. It is not reportable to the National Council of State Boards of Nursing or other national data centers. Letter of concern. A letter from the BON expressing concern that a licensee or certificate holder may have been engaged in questionable conduct that is considered low risk or harmful to the public. Civil penalty. A monetary fine given by the BON singly or in combination with any disciplinary action for a violation of the Nurse Practice Act. Decree of censure. An official discipline by the BON that the individual s conduct violated the Nurse Practice Act but does not represent a continued risk to the patient/public. Probation. An action by the BON that allows the licensee to practice as an RN/NP under certain restrictions for a set period. During the period of probation, the RN/NP must be supervised in his or her practice and complete certain requirements, which are aimed at rehabilitation or educating and remediating the RN/NP in area(s) of practice deficit.

5 42 Journal of Nursing Law Vol. 15, No. 2 Suspension. The BON orders the licensee not to practice as an RN/NP for a set or indefinite period. The person who has been suspended has terms and conditions that must be fulfilled during the period of suspension and before being allowed to resume practice. A licensee/ certificate holder who has been suspended often has a period of probation or monitoring following successful completion of the terms of suspension. Revocation stayed, suspension, probation. The BON revokes a license. However, the revocation is stayed or temporarily set aside, pending successful completion of probation. If the licensee violates probation, the BON may lift the stay and revoke the license. Revoked/surrendered license. The BON revokes the license and the licensee no longer has the right to practice as an RN/NP or to use the title. WhAT happens AFTeR DISCIPLINARy ACTION? Decisions made by Board of Registered Nursing are reported to the National Practitioner Data Bank (NPDB) and the Healthcare Integrity and Protection Data Bank (HIPDB). If disciplined, an RN/NP also could receive a letter from the U.S. Department of Justice restricting his or her ability to work in any facility that receives Medicare and Medicaid. Furthermore, disciplinary action in one state will affect an RN/NP s license in another. Once an RN/ NP has been disciplined, each state in which he or she holds a license can review or open the case. PROFeSSIONAL LIABILITy INSURANCe RNs and NPs, like other health care providers, are vulnerable to professional liability claims. As a result, adequate professional liability insurance is critical because a lawsuit or complaint against an RN/NP s license can jeopardize his or her career. Disciplinary Insurance and Occurrence Coverage It is important to know that employer-provided insurance may be inadequate. Most employers provide malpractice insurance but do not provide disciplinary insurance. In addition, most employers provide claims made rather than occurrence coverage. This means that the insurance policy covers the RN/NP when the claim is made, not when it occurred. If an RN/ NP leaves that position, he or she would no longer be covered for something that occurred at the previous job. Finally, it is important that RNs/NPs have their own malpractice/disciplinary insurance to ensure that they are covered 24/7, in contrast to dealing with an insurance carrier for a larger practice or hospital where an RN or NP could be far down on the list of priorities. Choosing the Right Insurance Company To protect themselves, RNs and NPs are encouraged to select an insurance company that: Supports RNs/NPs by providing an advisory board where they can present issues and seek solutions. Includes license protection to help defend an RN/NP in an administrative or disciplinary situation. Covers an RN/NP for an incident that occurred at a previous place of employment. Provides adequate levels of coverage (i.e., malpractice coverage of $1 million/$3 million and disciplinary coverage of $25,000 per occurrence or aggregate). It is important to note that the state s attorney general s office will charge for its time representing the BON, and this is not covered by any insurance. Also, a complaint How to Prevent Disciplinary Actions There are several things that registered nurses and nurse practitioners can do to be better prepared on the job to avoid disciplinary actions including the following: Knowing their scope of practice. Knowing the Nurse Practice Act including process protocols versus disease-oriented protocols and if they need a collaborating physician to start work. Ensuring that they have adequate education and keep training current. For best practice, rule out the worst diagnosis first. Collaborating with a physician or referring a patient if they are unsure about next treatment steps. Filing incident reports with all pertinent information. Watching out for noncompliant patients. It is prudent to carefully document all recommendations, and if necessary, refer the patient to another health care provider. Following up on test results and appointments. Documenting all details.

6 Balestra Understanding the Disciplinary Process 43 TABLE 1. Leading Disciplinary Insurance Carriers for Nurse Practitioners Disciplinary Coverage Advisory Board Risk Management Online Occurrence NSO $25,000/claim or aggregate Advisory board Multiple areas for RNs/NPs Yes featuring RNs/ NPs, CNSs, and RNs; provides a forum to present and discuss issues and risk management strategies. to find information about risk management issues and their solutions; 2012 closed claim analysis. Marsh Affinity $10,000/claim or $25,000 No advisory board Minimal website education Yes aggregate CM&F $10,000/claim or $25,000 aggregate No advisory board Minimal website education Yes Note. NSO 5 Nurses Service Organization; RNs 5 registered nurses; NPs 5 nurse practitioners; CNSs 5 clinical nurse specialists; CM&F 5 Cotterell, Mitchell and Fifer. against an RN/NP in one state can have a domino effect in any other state in which he or she holds a license. This means the RN/NP will have to pay for defense costs in every state. Allows the RN/NP to select an attorney for representation in disciplinary actions. Provides a website that addresses risk management issues and solutions. Gives a discount if the RN/NP gets continuing education credits in a course related to risk management. The three leading disciplinary insurance carriers for RNs and NPs are the Nurses Service Organization (NSO), Marsh Affinity, and Cotterell, Mitchell and Fifer (CM&F Group). Table 1 compares the companies and the coverage they provide. Note that coverage can vary from state to state. UNDeRSTANDING LIABILITy When discussing professional liability insurance, it is also helpful to consider legal and regulatory environments. As RNs and NPs assume larger roles in health care, related legal and regulatory issues also intensify. This is reflected by a recent five-year closed claims analysis conducted by the Certified Nursing Assistant (CNA) and the Nurses Service Organization (NSO) that shows that NPs now occupy a central role in malpractice litigation (CNA and NSO, 2012). NPs (and other nursing professionals) should note the results of this analysis and be aware of areas where there are high numbers of claims in order to avoid similar mistakes because these claims proceed from malpractice to disciplinary actions. For example, the analysis found that the predominant allegations for closed claims (with indemnity payments of $10,000 or more) were related to diagnosis, treatment Other 4.0% Abuse/pa ent's rights/professional conduct 3.5% Equipment 3.5% Medica on Prescribing 16.5% Treatment and Care Management 29.5% Diagnosis 43% Figure 1. Severity by allegation (CNA and NSO, 2012).

7 44 Journal of Nursing Law Vol. 15, No. 2 Allega ons Related to Treatment and Care Management (29.5% of all allega ons) Failure to mely or properly establish and/or order appropriate treatment 5.5% Improper technique or negligent performance of treatment or test 5.5% Improper or un mely management of aging services resident 4.0% Improper or un mely management of medical pa ent or medical complica on 3.0% Failure to obtain/refer for immediate emergency treatment 2.5% Other 9% Figure 2. Severity of allegations related to treatment and care management, which total 29.5% of allegations (CNA and NSO, 2009). and care management, and medication prescribing (see Figure 1; CNA and NSO, 2012). Within allegations related to treatment and care management (closed claims with indemnity payment of $10,000 or more), failure to timely or properly establish and/or order appropriate treatment (5.5%) and improper technique or negligent performance of treatment or test (5.5%) were the most common allegations (see Figure 2; CNA and NSO, 2012). Failure to timely respond to patient s concerns related to the treatment plan had the highest severity, with an average paid claim of $550,000 (CNA and NSO, 2012). CONCLUSION Today s litigious society impacts all health care professionals, including RNs and NPs. To protect themselves, the RNs and NPs need to ensure that they have sufficient professional liability insurance as well as a thorough understanding of the disciplinary process in case a complaint is filed against them with the Board of Registered Nursing. In the end, they will be better prepared to defend their licenses and continue working in the profession they love. ReFeReNCeS Certified Nursing Assistant and Nurses Service Organization. (2012). Nurse practitioner 2012 liability update: A three-part approach. Retrieved from Claims_Study_2012.pdf?fileName=NP_Claims_Study_2012. pdf&folder=pdfs/db&islivestr=y Hudspeth, R. (2009). Understanding discipline of nurse practitioners by Board of Nursing. The Journal for Nurse Practitioners, 5(5), Philipsen, N., & Maskell, D. (2009). How to handle a complaint from a professional licensure board. The Journal for Nurse Practitioners, 5(9), Biographical Data. Melanie Balestra, RN, NP, JD, is a partner at Cummins & White, LLP, a business and insurance law firm based in Newport Beach, California. Her practice focuses on issues that affect health care providers including nurses, NPs, physicians, physical therapists, pharmacists, and dentists. She also continues to be actively involved in her profession as a pediatric nurse practitioner at the Laguna Beach Community Clinic in Laguna Beach, California. Correspondence regarding this article should be directed to Melanie Balestra, RN, NP, JD, Cummins & White, 2424 S.E. Bristol Street, Ste. 300, Newport Beach, CA mbalestra@cwlawyers.com