In a previous article, I wrote about what to do when you receive a letter of complaint/investigation from the NSBN. In this article, we’ll discuss what is happening in the background at the NSBN before and during the investigation process.
Since the time I’ve started representing nurses before the Nevada State Board of Nursing, no two cases have been the same; each one is a different mix of facts and circumstances. However the process used by the Nevada State Board of Nursing (NSBN) in relation to each case follows a predictable pattern.
What Triggers an Investigation?
An investigation is triggered by one or more of several factors:
- You answered “yes” to one of the questions on your license application or renewal;
- You were disciplined in another state and the NSBN (a) found out during a background check, (b) were notified by out-of-state authorities or (c) checked on the website Nursys.com;
- A patient complained about you to your employer;
- A co-worker reported you to your employer or the NSNB for alleged misconduct; or
- Your employer reported you to the Board.
What Happens When an Investigation Begins?
Once an investigation begins, you will receive a notice of investigation/complaint from the NSBN. See my previous article about what to do when you receive this notice.
My strong recommendation is that you treat any investigation as an adversarial proceeding, meaning that you should assume the worst and assume that anything you say or do will be used against you if it supports the allegations made. Seriously consider legal representation at this stage.
An investigation is basically a fact-finding process. Again, the Board’s inquiry begins usually begins with an investigation into what happened. Sometimes, the beginning of an investigation is relatively simple; were you convicted of a crime? Did you make a false statement on your application? Did you complete your continuing education credits? Did you file your application for renewal on time? Were you disciplined in another state?
Other complaints and allegations are not so easy to assess; did you improperly dispense medication? Did you maintain proper records? Did you mistreat a patient? Did you act under proper authority? Were you negligent in your duties?
In my opinion, the main reason the NSBN writes you a letter of investigation is to get your side of the story. Usually, you are in the best position to know what happened, and so, you are the best source of information. Nevertheless, you have a right not to self-incriminate, and I have seen instances where, in my opinion, the cooperative nurse received a harsher penalty by volunteering information. I am not going to go into details here for two reasons. First, I don’t want you to apply this general rule to your situation, because there are times when you should cooperate fully and that decision should be made on a case-by-case basis. Second, I believe that this topic of discussion (when to cooperate or not) is best had in confidence with all of my clients. But just to give you an example, if you pled to a DUI, there’s no reason not to admit that you did it. Or, if you mistakenly marked “no” on your application when you should have said “yes,” it might be proper to acknowledge it.
What Else Can the NSBN Do During an Investigation?
The NSBN has broad powers in conducting an investigation. In addition to talking to you, they usually do one or more of the following, again depending upon the circumstances:
- Obtain statements from patients, co-workers, supervisors and administrators;
- Talk to other nursing boards, patients, co-workers, supervisors and adminstrators at your place(s) of employment;
- Review records from work, the district attorney’s office, and your medical records. The NSBN has subpoena power to request these records; and/or
- Draw upon their collective expertise, experience, and the advice of experts to determine whether your conduct constitutes a violation of proper nursing practices
Before you panic in light of these broad powers, know that in some instances, cases that began with a complaint or investigation are dropped or terminated. Some investigations end because (1) the conduct was not considered to be a violation or (2) lack of evidence. Frankly, the NSBN does not tell us why certain cases against my client are dropped, and I haven’t asked.
Conclusion: Proceed with Caution
In conclusion, when it comes to the investigation stage, proceed with caution. And what I mean is, allow the investigation to take its course. Don’t jump to conclusions. Do exercise your right to remain silent when appropriate. I’ve seen situations in which the Board’s scope of investigation goes beyond the complaint. In my experience, your participation in the investigation (i.e., writing or talking to the Board) is the number one reason why investigations are expanded beyond their original scope. And finally, while this may sound like shameless self-promotion, you strongly advise you to seek legal advice, the sooner the better. Heck, the Board even recommends or advises you to seek an attorney, at least before you sign off on their documents. If you should have an attorney at that stage, why not sooner? I’ve never had a client tell me they are glad they waited before hiring an attorney. In every case where the nurse procrastinated before hiring an attorney, they tell me they wish they had talked to me sooner. Whether you decide to come to talk to me or talk to another competent attorney in this area of the law, it only helps to seek legal advice early and often!