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.
Alternative to Discipline Programs
Alternative-to-discipline programs (ADPs) are voluntary, non-public and non-disciplinary programs for specific violations of the nurse practice act. Unlike the more traditional disciplinary action, one of the benefits of ADPs is that they avoid a lengthy investigation, engaging in pre-trial fact-finding and a formal hearing before an administrative law judge or board; instead allowing early intervention and quick entry into monitoring programs. Nurses have the opportunity to remain active in nursing while being monitored and can continue to work, which enhances their financial status, further supporting recovery.
Most jurisdictions offer non-disciplinary ADPs for Substance Use Disorder. 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. ADPs 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.
Other types of ADPs exist related to specific types of violations of the nurse practice act. Practice related ADPs or remediation programs target early identification of nurses demonstrating opportunities for improvement in the areas of clinical knowledge, skills or abilities. Only a few jurisdictions offer practice-related ADPs. Some jurisdictions also offer psychiatric/mental health or physical/health-related ADPs.
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 Administrative Hearings
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.