Are you a nurse who has a contested Board of Nursing Case? If you as a nurse have proceeded through the Board of Nursing’s, disciplinary process and failed to come to a satisfactory resolution, then your case may be referred to the State Office of Administrative Hearings (SOAH/OAH). Being set for an administrative hearing can invoke fear and anxiety in the nurse. It is an intimidating process. Administrative hearings are essentially a trial with you as the accused or defendant. The Board of Nursing’s attorney(s) is the prosecuting attorney. The Nursing Board will put on a case against the nurse. led by one or more Nursing Board staff attorneys. Expert witnesses will be put on the stand to testify against you. The Board maintains testifying witnesses on retainer, or they will use Nursing Board staff or consultants. The trial will be held before an Administrative Law Judge (ALJ). There is no option for a jury trial. Administrative law is the only arena of law that denies many of the customary protection of constitutional rights and due process. Administrative law does not provide the same rights allowed criminal or even civil defendants.
The Sixth Amendment guarantees certain rights that include: The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you[i].
Administrative law does not provide the rights laid out in the s Sixth Amendment, either completely or partially. The US constitution requires a fair hearing, and that the defendant is provided discovery, to include evidence of the claims against them. With respect to a fair hearing, held without unnecessary delay,  the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective[ii]. The final order will be decided upon by the Board of Nursing after the administrative hearing. The final order against the nurse does not necessarily reflect the Administrative Law Judge’s findings. An ALJ makes a “proposed decision†that is a recommendation to the Board of Nursing. An ALJ does not make a binding decision unless it is adopted by the Board. The Board can reject the proposed decision even if the Judge believes the nurse to be innocent. This process fails to provide for a fair hearing as expected by the US Constitution. It is not fair because the Board is still in a favored position and allowed to proceed with their initial intended charges despite the decision of the ALJ.
Nurses are also not afforded the right to a hearing without unnecessary delay. Boards of Nursing often delay the hearing by failing to docket the case, in a timely manner, with the Office of Administrative Hearings,. The case cannot proceed until it has been docketed. We see an approximate period of three to twelve months before nurses’ cases are even docketed. Dependent on the number of cases already on the docket, it may be many more months before the case is heard. The Board may file formal orders before the hearing. Formal orders greatly impair the Nurse’s ability to obtain employment and are a scarlet letter of discipline. Formal orders are referred for listing in the Nursys and National Provider’s Databank, where the orders can be reviewed by anyone. Employers search the databanks before offering employment and as part of a background search. Employers are reluctant to hire nurses who have formal orders even if they are yet to be adjudicated at the SOAH.
Nurses do not have the right to a court-appointed attorney. Nurses must provide and pay for their own attorney. The attorney fees for defending a nurse at an administrative hearing are costly. The nurse may also find themselves assigned the costs of the administrative hearing, including the Board attorney’s fees. The overall cost to the nurse is often prohibitive and serves as a disincentive for nurses to proceed to SOAH. It is at this phase in the disciplinary process that many nurses simply give up and though the charges against them may be untrue, the nurse will concede and sign the Board’s orders. By the time a case gets to an administrative hearing, the nurse is often emotionally, physically, and financially broken and unable to proceed. Boards of Nursing know this, and it is a tactic of the Board’s to draw out the process thereby, increasing the overwhelming stress on the nurse. This amounts to railroading the nurse.
Nurses at administrative hearings are in no way permitted a jury trial. The case is heard by an independent adjudicator being the ALJ. Nurses would likely fair far better at administrative hearings if their case was heard by an impartial jury.
Finally, nurses are more often than not denied the right to know the identity of their accuser and all of the specifics of the complaint against them. The complaint that was initially submitted is rarely discoverable to the nurse. The problem with denying the nurse the right to review the original complaint is one of bias and applied prejudice. The complaint, especially if made by someone with an ax to grind, may contain inflammatory and untrue information such as comments made regarding how the complainant perceived the nurse’s character or trustworthiness. The Board of Nursing staff is likely to be biased by such information, which is meant to impugn and disparage the nurse. The Board staff, especially the assigned investigator may approach the nurse with preconceived, and non-revealed judgments about the nurse.
For most nurses facing an administrative hearing, it may feel near hopeless to achieve justice. There is, however, an option that does often work in the favor of the nurse. Prior to a formal administrative hearing, the nurse may request an administrative mediation. Mediation is less formal, and the nurse has the opportunity to present their defense to the ALJ. Mediation is held at the Office of Administrative Hearings. The mediation usually takes place in a less threatening environment than a courtroom and there a fewer people around the table. The mediation will likely occur in a meeting room. At the table will be the Board attorney, and the Nurse, and her attorney or advocate. There may also be in attendance a Board testifying expert or consultant. The Nurse may also present an expert. The entire mediation is led and guided by the ALJ.
If mediation fails and the case remains contested, the nurse can move to an Administrative Hearing or trial. To defend your case at an administrative hearing you will need an attorney though nurses have and do represent themselves. It is, however, necessary to know the Rules of Civil Procedures to understand how things work at trial. Because of the need to be familiar with the Rules of Civil Procedure, it is best for the nurse to retain an attorney to represent them at this point. Attorney fees for representation at an administrative hearing can be prohibitive.
As advocates who help prepare nurses for mediation and attend as experts, we have found that mediations tend to go well for the nurse. And the expense is far less, especially if you retain an advocate versus an attorney. We at Expert Nurse Consultants have had great success at mediation in seeing charges dismissed. In this informal setting, we have been able to show the Judge how the charges are not true and present the facts established in the medical record or other discovery.
In one mediation that we attended,  the Board nurse expert attempted to mislead the Judge by offering false testimony regarding the standard of care. We were able to prove that the Board’s opinion on the standard of care was not in fact the acceptable standard. We were able to produce evidence of what the standard was in caring for sexually assaulted patients. And that the standard was not for any emergency room nurse to perform a sexual assault exam. The Board opined that all emergency nurses are competent and capable of performing a sexual assault exam based on a four-hour, online CEU, forensics course that all emergency nurses in the state were required to take. We demonstrated to the Judge that the four-hour course involves the gathering of forensics in cases involving a patient that has been a victim of a gunshot wound or stabbing The course only touched on sexual assault and in no way prepared the nurse to perform a speculum exam or other careful forensic evidence collection necessary. We proved to the Judge that the certification to become a Sexual Assault Nurse Examiner (SANE) required the completion of a thirty-hour, in-person program, that included a practicum. We were, therefore, able to rebut that the nurse had no duty to perform the exam and in fact had adhered to the Nurse Practice Act, law, and State regulations in ensuring that the sexual assault nurse examiner was contacted and would see the patient in the clinic. The SANE nurse had triaged the patient to clinic based on how many hours out the assault was as well as other contributory factors.
Had our nurse expert not been at the mediation it is likely the Judge would have been deceived and believed the Board’s expert false claims. The nurse’s attorney was not able to rebut the claims because of her lack of knowledge regarding the state’s SANE program and the preparation required for a nurse to perform a SANE forensics exam. Though the Board was most unhappy, the recommendation of the Judge was to dismiss the charges against the nurse. After two years of enduring the stress of a Board investigation of false allegations, the nurse was able to walk away with dismissed charges. The tragedy of the cases we have seen is that the evidence always existed that the nurses were innocent. These nurses had repeatedly attempted to show the Board where the clear and convincing evidence was in the medical record that the Nurse Practice Act was not violated. Several nurses had even attempted to show the Board how and why they had not committed the acts at Board informal conferences. The Board through would seem to ignore, dismiss or rationalize the evidence of innocence, and justice was only obtained when an impartial ALJ heard the evidence. Â
[i] Cornell Law School, Legal Information
https://www.law.cornell.edu/constitution/sixth_amendment
[ii] Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941)