After an investigation is completed, the board of nursing (BON) reviews all the investigative data and determines whether or not a violation of the nurse practice act occurred. The BON then makes a decision whether to close the case, move to informal proceedings to settle the case, suggest an alternative program or proceed to filing formal charges and presenting evidence at a formal hearing. An important part of the disciplinary process is providing the subject nurse an opportunity to respond to the allegations and present her/his side of the case.
Administrative agencies such as BONs are created by statute and have only those powers created by statutes. Administrative law is a branch of civil law governed by statutes. Rules or regulations are promulgated as necessary for the implementation of the governing statutes. BONs generally have the authority to issue licenses and to investigate and prosecute alleged violations of state’s nurse practice act and rules within the agency’s jurisdiction.
If a substance use disorder is suspected from the evidence, BONs from most jurisdictions offer the nurse a non-disciplinary alternative to discipline program. These programs are not treatment programs - they are monitoring programs. The possibility of avoiding the public notoriety of discipline can be an important factor in breaking through the nurse's denial of their substance use disorder and movement to a program which will assist the nurse to retain their license. Alternative to discipline programs were created to enhance the BON's ability to provide public protection by promoting earlier identification and intervention into the practice of nurses with a substance use disorder.
Various chapters in Substance Use Disorder in Nursing provide important information regarding alternative to discipline programs:
- Regulatory Management of Nurse with a Substance Use Disorder (Chapter 4)
- Types of Alternative Programs (Chapter 7)
- Program Entry (Chapter 8)
Informal settlement conferences are most often used in cases where substantial evidence exists to prove one or more violations of the nurse practice act. After a review of the investigation, a stipulated agreement can be negotiated by informal or formal means. Informally this may take the form of consent order, summary suspension or other informal actions e.g., (warning letters, public advice, supervision or other measures short of an agency order).
An informal settlement conference with BON representatives and nurse (and attorney) may be necessary to come to an agreement. This conference provides for a dialogue regarding the evidence, possible violations and acceptable settlement. After a settlement is reached, the BON's role is to review the proposed settlement to assure that the public interest is protected and enter a final order.
Formal public administrative hearings provide another means for complaint resolution. State law will vary as to the standard of proof (degree of certainty, or "how much proof") required in administrative law cases. Prosecuting attorneys present a case to the administrative law judge, board or panel with the nurse or nurse’s attorney presenting a defense to the charges.
Negotiations toward an agreed settlement may still occur while a public disciplinary hearing is proceeding.
After hearing both sides, the judge or panel will make a determination which will often include a proposal for decision, as well as findings of fact and conclusions of law. While the procedures and formats for administrative hearings differ from state to state, it is the BON's responsibility to review the administrative law judge or panel’s proposal and determine if the BON will ratify the decision.