Collateral damage to nursing licenses by Board of Nursing when it comes to nurse discipline

 

I.                    Introduction:

Disciplinary action against nurses by Boards of Nursing has greatly increased over the past few years. Nursing Boards destroy careers by reporting thousands of nurses a year to the National Practitioner Data Bank and data bases like Nursys, before charges are adjudicated. Nursys is the only national database for verification of nurse licensure, discipline and practice privileges for RNs, LPN/VNs and APRNs licensed in participating jurisdictions, including all states in the Nurse Licensure Compact (NLC). It is impossible to believe that all of these nurses are guilty of some act that warranted their career being leveled. Yet nurses who are disciplined often for minor, non-injurious offenses and hundreds more who have non-adjudicated charges, are reported to the National Practitioner Data Bank. Even if they are later found on the basis of law and fact, to be not guilty, their names are forever listed in the data bank. Employers search the data bank before hire and will not hire nurses who are listed.

 

II.                 Laxity in Investigation and Denial of Justice:

Nurses all over the country are subject to cruel treatment as they await in limbo the outcome of unduly long investigations often lasting ten to twelve months, during which time the nurse is essentially left in the dark denied the right to know the totality of the allegations against her. The Investigator does not interview the nurse or seek to develop insight into the nurse’s side of the story. Never does the Investigator seek the nurse’s input to clarify such things as interpretation of documentation in the medical record, written allegations by witness’s or other evidence. The investigation is conducted as a criminal investigation though basic civil rights of the defendant are denied. The nurse is treated as a criminal and presumed guilty.

 

Investigators are often without any nursing or medical training and yet they decide upon whether the standard of nursing care was met. Investigators without nursing or medical experience, training and education cannot possibly accurately determine if the standard of care was breached or understand the impact of mitigating circumstances. Nursing Board's employ non-nurses and criminal investigators as well as some nurses with distant clinical, bedside experience. These investigators not only do not have the education to determine if a nurse breached the standard, but neither can they properly interpret medical and such records as medication dispensing machine transaction logs. They are unable to apply real life experience and understand the big picture. Investigators will not speak to the nurse if she has an attorney, yet Board investigators are notorious for being non-responsive to the nurse's attorney requests for information. Nurses also should be afforded the right to have dialogue with investigators as only the nurse can effectively respond to the investigators developing charges.  Nurses are left to twist in the wind throughout the process, without a voice and most often without the ability to practice nursing and support themselves and their families.

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III.              Denial of Right to Practice and Earn an Income:

Nurses are denied the ability to practice and earn an income. When going through the phases of a disciplinary action, nurses are forced into financial hardship with such agonizing outcomes as losing their homes and vehicles, losing medical coverage for themselves and their families or losing such as the ability to pay for their children's schooling, dental needs, medications or simply pay the bills. It is a time of great despair, loss, shame, fear and undue hardship. It is a process that destroys lives as nurses who are innocent or who made a non-injurious, first time error is treated not only as if they are guilty but also as if they are criminals. The process is unduly punitive and cloaked in secrecy.

 

 

IV.              Prosecution as a result of Employer Retaliation:

Many a nurse has discovered they are being made to suffer such torment based on employer retaliation most often for speaking up regarding patient safety concerns. Employers are given immunity from being held to their actions and complicity in creating unsafe conditions in which things predictably went wrong or fell through the cracks. Nurses are then scapegoated as the hospital protects themselves. Employers claim peer review immunity (sham peer review) as they scapegoat the nurse for being a victim of unsafe staffing levels, being assigned too heavy and too acute of assignments, or having inadequate resources or assistance in getting a patient's needs addressed. Boards of Nursing hear from accused nurses such mitigating circumstances all the time, yet they fail to hold accountable to the Nurse Practice Act those nurse leaders who knew of and allowed such threats to patient safety. Employer's and claimed witnesses provide solicited, accusatory statements to the Board that the nurse will never have the opportunity to review or rebut, because the employer has been granted immunity. And the Board will take those statements as fact as they are permitted to consider as evidence hearsay. This would never be permitted in criminal or civil cases, only in administrative law. Because of the Nursing Boards refusal to seek to uncover the root cause of breaches in the standard of care, mitigating circumstances, and complicity of Nurse Leaders they permit the continuation of unsafe conditions therefore failing to protect the public. They further fail to protect the public when they ignore exculpatory evidence in non-comprehensive investigations and in doing so permit the real wrong doer to continue to place patients at risk.

 

 

V.                 Reporting of Nurses without Sufficient Reason:

Nurses also find themselves reported to the Board for stable, non-impairing emotional challenges such as depression, anxiety or even insomnia.  Nurses are human and life often presents painful losses or struggles. Nurses who seek appropriate care and continue to practice safely, are subject to Board discipline not on the basis of actual impaired practice but instead on the basis that their illness may impair their practice.  A judgment is made by criminal investigators who have no training in mental health issues. The Board may request the nurse submit to a MMPI personality inventory at the nurse’s own expense. However, even if the MMPI fails to demonstrate characteristics that may affect safe practice, nurses still find their licenses restricted. The Board takes the position that a diagnosis is not necessary and that all they require is what they deem a probability.  Board retained Psychologists or Physicians will then be presented at trial as experts against the nurse and offer opinion on the nurse’s psychological state or personality traits. Very few nurses are able to afford experts to testify on their behalf. Without question at State Administrative Hearings (trial) the deck is stacked against the nurse who does not have the resources to put on a strong defense. Many nurses are forced to represent themselves at trial as they seek to be heard.

 

The Board also far overreaches its boundaries in judging nurses as lacking in morality or engaged in dishonorable conduct. The Nurse may again be disciplined because extrapolated from some personal, off duty event, is what the Board may conclude a probability of future conduct that is not in keeping with the character worthy of a nurse (whatever that is.). An example is a nurse in Texas was alone in a parking lot when a male aggressively approached her. She reached for her gun in her car. The man was a notice server serving her with notice of her husband having filed for divorce.  The process server declined to press charges and no police action was taken. Yet the Board intervened and revoked the nurse’s license for conduct that may lead her to jeopardize patient safety.

 

 

VI.              Standard of Clear and Convincing Evidence:

The Board of Nursing must be brought under a standard of clear and convincing evidence that a risk to patients reasonably exists based on fact. Even if a nurse proceeds to an Administrative Hearing where such a standard is used, the Board can disregard the Judge’s finding that the Board failed to meet their burden of proof. In no other arena of law can a prosecutor refuse a Judge's ruling outright and simply proceed to punish the defendant as they see fit. Attending a SOAH hearing is also far beyond what a nurse can financially afford. There is no civil right allowed of being assigned an attorney.  After long periods of loss of income, paying the cost of Board ordered polygraphs or personality testing, few nurses can afford the 30,000.00 to 50,000.00 cost of a trial.  Nurses simply are not permitted their civil and constitutional rights when defending themselves against unjust or even fabricated charges.

 

VII.           Actions by Other Governmental Agencies Including Other Boards of Nursing:

Nurses with licenses in other states are likely to face disciplinary action in the other state merely because of the action in one state. A big issue with a nurse licensed in more than one state is facing multiple disciplinary Orders based on one initial Board of Nursing’s disciplinary Order. States may “mirror” the initial disciplinary Order, institute their own disciplinary action, or take no action. Whether the states mirroring the original Order will also consider the nurse’s completion of probation in the original state as completion of their disciplinary actions as well. To explain: A nurse is licensed in state A, B, C, and D. An incident occurred in State A. State B looks at the disciplinary Order and determines the conduct that led to the Order is not considered a violation in their state. Furthermore, although State B could take action purely because the nurse was disciplined by another state, State B decides to take no action and the nurse’s license remains unencumbered. States C and D decide to take the exact same action against the nurse. When the nurse completes the stipulations/probation in State A, State C applies those acts to its Order as well and the nurse’s license is unencumbered. State D; however, decides their Order will remain in effect until the nurse returns to State D and completes State D’s restrictions. The nurse’s Order in State D remains encumbered for an unknown time based on the allegations, which means that for the nurse, there is no end to the disciplinary action. Licensees need to be cautioned regarding offers of voluntary surrender to resolve allegations. A voluntary surrender results in the nurse being placed on the Office of the Inspector General’s exclusion list. Possible exceptions where voluntary surrender may be warranted— an addicted nurse who is unable to maintain sobriety where a voluntary surrender is more desirable than a revocation while the nurse establishes recovery or when a person wants to leave nursing altogether and never work as a nurse again. However, even in these cases, the nurse needs to remember there will still be further consequences. In addition, the nurse must understand that removal from the Office of the Inspector General’s exclusion list is not automatic. A nurse must know the reporting requirements for each state. Some require a nurse to notify the Board of Nursing of a disciplinary action by another state within a certain period, whereas others request disclosure at the time of renewal of the license. Therefore, the calculus for the client is whether to drop the license in the other state prior to agreeing to any formal disciplinary action. If the client does not want to or is not permitted to relinquish the license as some states maintain jurisdiction over licensees even if they relinquished their license many years prior, it is necessary to determine what impact the disciplinary action will have on the other license or regulatory agency. If the sanction is for a state-specific issue, for example, a narrowly tailored administrative regulation, other states may not be as concerned. However, on other issues, one can anticipate disciplinary action by the sister state. In addition, there may be other entities within a state that care about the actions of the Board of Nursing. Depending on the client and the circumstances, there could be consequences with other state agencies or local and county governments too.

 

 

VIII.         Changes in the Reporting of Disciplinary Actions By Texas Board Of Nursing:

Pursuant to the Texas House Bill 2950 Bill, the BON "shall remove a disciplinary action from the nurse licensure verification page on the board's Internet website if:

a.       The disciplinary action is the only disciplinary action taken against the nurse;

b.       The disciplinary action was taken by the Board for a violation that is not related to the practice of nursing;

c.       The disciplinary action did not result in the suspension or revocation of, or the probation of the suspension or revocation of the nurse’s license;

d.       The disciplinary action does not provide any indication that continued practice by the nurse may  risk harm to a patient; and

e.       The nurse has successfully completed the requirements imposed by the Board in the disciplinary order related to the disciplinary action." Nursing Practices Act 301.1583 as amended by HB 2950.

This is a welcome step by the Texas Board of nursing to reconcile the problems of the nurses, and all the Board of Nursing should bring their policies in line with Texas Board of Nursing.

IX.              Prayers:

The Petitioner Hereby prays:

a.       That all U.S. State Boards of Nursing take the same stance as Texas Board of Nursing and all negative information on nursing licenses will be removed from the website of the Board of Nursing, National Practitioner Data Bank and data bases like Nursys if there was no direct patient harm.

b.       States that decided to “mirror” the initial disciplinary Order, instituting their own disciplinary action, will be required to remove all negative information on nursing licenses.