SISTER STATE NURSING DISCIPLINE: THE ROLE OF BOARDS OF NURSING AND NURSYS

Introduction The authority of Boards of Nursing (BONs) to enforce disciplinary actions across states—known as sister state nursing discipline—is a significant yet controversial power within the realm of nursing regulation. This capability, grounded in both case law and administrative law principles, allows for reciprocal disciplinary measures based on infractions in other states, impacting nurses’ careers nationwide. The justification Boards of Nursing provide for this practice is said to be to prevent nurses from evading disciplinary actions by jumping from state to state. However, this rationale is increasingly flimsy in an era where digital transparency prevails with all disciplined information posted on the internet.

The Concept of Sister State Nursing Discipline Sister state nursing discipline permits one state’s Board of Nursing to impose the same sanctions a nurse may face in another state, effectively preventing nurses from escaping consequences by moving across state lines. This principle may sound like “double jeopardy,” a concept prohibited under the Sixth Amendment in criminal law, yet it persists in administrative law where protections are minimal. Under administrative law, the defendant has very few rights. They do have the right to notification of a complaint, and a hearing. They do not have the right to a jury trial, the right to know and review the evidence after it is received, to know and face their accuser, the right to a speedy trial, the right to an attorney, and the right to remain silent.  It stretches one’s belief in the American justice system to know that under Administrative Law a nurse may be stripped of her ability to earn an income and further punished by two or more Boards of Nursing, often for allegations that were false or far overstated. And that this occurs without the nurse being provided the very basic protections of the 6th Amendment especially the right to be protected against double jeopardy.

The Role of Nursys in Nursing Discipline Nursys, a comprehensive web-based system managed by the National Council of the State Boards of Nursing, plays a pivotal role in maintaining transparency in nursing discipline. As a publicly accessible database, Nursys ensures that disciplinary actions are visible to potential employers and the public, preventing any obscured disciplinary histories. Board of Nursing orders are posted on Nursys and some contain extremely sensitive mental health information that is protected by law in any other forum. Orders remain on Nursys, the wall of shame, forever.

Challenges and Criticisms of Current Practices Despite the intended safety measures, the system faces criticism for potentially overstepping privacy rights and fairness. Nursing disciplinary records, unlike other professions, are detailed publicly through Nursys, offering an overly intrusive view into personal and professional matters. This transparency raises questions about the balance between public safety and individual rights, scrutinizing whether current practices under Boards of Nursing are justifiably fair. 

Legal Strategies and Hope for Nurses For nurses facing disciplinary actions in multiple states, certain legal strategies have proven effective. I have successfully helped nurses either get charges dismissed or significantly reduced. A common strategy involves “retiring” one’s license in the affected state—though it’s important to note this approach may not be feasible in every state due to varying regulations on license retirement. And because the legal department of the Board and the Board’s Department of Enforcement are not willing to dismiss charges based on the nurse retiring their license. The most effective strategy for safeguarding against sister state disciplinary actions by multiple state Nursing Boards is to retire your unused nursing licenses. Simply having non-active or expired licenses is inadequate, as Boards of Nursing retain the authority to impose disciplinary measures on nurses in these states. This situation echoes the principles of Double Jeopardy, a violation of the Sixth Amendment of the US Constitution, which prohibits being tried twice for the same offense in criminal law. The practice of imposing multiple disciplinary actions for the same infraction across different states represents a profound affront to the concept of justice, highlighting a critical area for reform in the governance of nursing professionals. One illustrative case occurred in Illinois where the charges against a nurse were set to be addressed in a trial conducted via Zoom. On the morning of the trial, when the judge inquired if the Board’s attorney was prepared to proceed, the attorney confirmed that the matter had been resolved: The nurse had retired her license and the charges were subsequently dismissed. This case exemplifies how strategic actions can prevent the duplication of disciplinary orders across states, avoiding multiple entries in the Nursys database for the same violation. This proactive management of licensure status can be a crucial tactic for those navigating the complexities of multi-state nursing regulations. When the option to retire a nursing license is unavailable or not accepted, it becomes crucial to challenge the assumptions of sister state Boards of Nursing. It is important to argue that these boards may not have a complete understanding of the case details. The state that originally filed the charges has conducted a thorough investigation and, based on all available facts, determined the most appropriate level of discipline. A sister state, lacking this comprehensive insight, should not impose harsher penalties than those decided by the original state. Negotiations with sister state boards can be challenging, often complicated by financial motivations, as evidenced by excessively high fines I’ve observed, such as those in California which can reach tens of thousands of dollars. Furthermore, it is not uncommon for sister state boards to mandate that a nurse must work within their state to comply with disciplinary orders, a stipulation that can be impractical or impossible. This is particularly true for nurses who only practiced in the sister state on a temporary travel assignment and whose primary residence is across the country. Resolving these intricate issues often requires careful negotiation, sometimes extending to proceedings such as mediation through a State Office of Administrative Hearings (SOAH). It is vital to recognize that this is a mediation process, not a trial, offering a platform for pre-trial resolution. However, it should be noted that not all states offer SOAH mediation, with Alabama being one example where this option is absent.

Conclusion As digital oversight becomes more prevalent, the justification for strict inter-state disciplinary practices by Boards of Nursing appears increasingly debatable. A re-evaluation of these practices could lead to a fairer adjudication process for nursing professionals, aligning disciplinary actions more closely with constitutional protections and ethical considerations.

 

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