BOARDS OF NURSING AND NURSE PRACTICE ACTS

Professional practices, such as nursing, are licensed and regulated to prevent unqualified, incompetent, or unfit practitioners from functioning in the role of the nurse, thereby preventing harm to the public. Each state is given the power to regulate professionals within their own geographic boundaries. (27) Statutory law directs entry into nursing practice in each state, defines the scope of practice, and establishes disciplinary procedures. Statutory law is overseen by each state's board of nursing, which is responsible for protecting the public by determining nurses' competency to practice. (9) The National Council of State Boards of Nursing (NCSBN), the agency to which all boards of nursing belong, defines competency as the application of knowledge and the interpersonal, decision-making, and psychomotor skills expected for the nurse's practice role, within the context of public health, welfare, and safety. (13) Competence is the nurse's potential capability to perform in his or her role, along with an assessment of the nurse's actual performance (ie, clinical and technical skills) as it complies with the employer's standards of care. (13)

State boards of nursing use their professional expertise to adopt rules and regulations to implement and enforce the laws. Examples of common components found in state boards of nursing are noted in Table 3. Nurse practice acts are a form of state legislation that define the legal practices of nursing. Table 4 lists some examples of areas overseen by a nurse practice act. Nursing practice, therefore, is directed by two components--state rules and regulations (ie, administrative law) and the state's nurse practice act.

State boards of nursing license nurses and retain the power to suspend or revoke these licenses. (15) Nursing licenses are granted when specific conditions are met, and can be revoked when the nurse does not meet required standards. Nurses can be charged with misconduct, unprofessional conduct, incompetence, or being unfit to practice. (15)

When a nurse accepts employment at a facility, there is an implied agreement between the nurse and the employer that the nurse will carry out his or her duties as would any other reasonable and prudent nurse with the same training in the same or similar circumstances. (30) After meeting the basic requirements of licensure, a nurse is legally responsible for his or her practice and must abide by the conditions of the nurse practice act, as well as many other rules and regulations. A nurse's primary and most important role is that of patient advocate. (28) The nurse also is obligated to avoid any conduct that could cause reasonably, foreseeable injury to the patient. Failure to meet this standard is considered negligence. (30)

Under the authority of the state's nurse practice act, the board of nursing develops and enforces rules defining the scope of nursing practice. Anyone can file a complaint with a state board of nursing, including patients and their family members, nurses, other health care providers, and administrators. The complaint could involve allegations regarding a single incident or ongoing malpractice. (31) The most frequent complaints reported to boards of nursing are obtaining a license under fraudulent circumstances, being convicted of a felony, substance abuse, and conduct that is likely to harm a patient. (28)

The number of nurses reported varies by state and approaches taken by state boards of nursing also vary. For example, in New Jersey the nurse practice act requires that a nurse be reported to the board if there is evidence, proof, or suspicion of impairment. (19) Some states, on the other hand, require reporting only when direct evidence can be provided. The question that arises, therefore, is to what degree information should be shared between boards of nursing and employers. Does the board of nursing only share information if the nurse's license is suspended or revoked, or will the board of nursing also share information if the nurse is required to enter rehabilitation?

BOARD OF NURSING PROCEEDINGS

Some state laws mandate that each complaint against a nurse be investigated while others leave this to the discretion of the board of nursing. The nurse is guaranteed due process, however, which includes an investigation by the board of nursing and an opportunity for the nurse to respond to the allegations and findings of the investigation. This may involve a hearing with or without legal representation. (28) It is sometimes advisable for a nurse to have representation from an attorney because the nurse's response could be used against him or her during the hearing. Investigators will contact witnesses for information and take statements. Investigators also can subpoena documents along with medical records and policies and procedures from the health care facility. If investigators are confident that the state can prove its case, charges will be filed. (31) Hearings can be conducted in front of the board of nursing, or serious claims, such as malpractice, could require a court appearance.

Hearings regarding licensure are considered administrative and investigative, not adversarial. (32) Board of nursing proceedings are less formal and restrictive than a courtroom trial. For example, evidence that would not be admissible in court might be admitted before the board. Another difference is that board members ask questions as the need arises, not according to a rigid protocol. After the investigation is completed and the evidence is furnished, the board openly discusses the matter. How a board arrives at a decision will differ by state. The board's authority over the nurse's license does not end with the hearing; the board can impose disciplinary action. (31)

When a decision is rendered, the nurse has the right to appeal. (31) Nurses should be protected from recriminations, unproven claims, and unsubstantiated charges. (1) The appeal process, however, goes through the civil court system, which requires the nurse's lawyer to prepare trial documents for a full-fledged courtroom appearance. It is best to use this route only if the nurse truly believes he or she has been wronged by the board of nursing. The court will only overrule the board's decision if it can be demonstrated that the process was not followed or a gross mishandling of the case occurred. It is rare for the court to overrule a board decision when it is based on the merits of the case. (32)

Nurses can be found to be in violation of practice or they may be found guilty of unprofessional or unethical behavior. Penalties and disciplinary actions may be imposed, which includes fines, reprimands, probation, suspension from practice, or revocation of the license to practice nursing. (28) License suspension is the most common disciplinary action for nurses with chemical dependence. (9) When substance abuse is involved, the nurse also may be mandated to attend rehabilitation. There also can be civil and criminal penalties. (28)

In general, state boards of nursing cases are backlogged. It can take more than a year for a case to be presented before the board. Court calendars are replete with numerous hearing dates, "particularly because of the rising numbers of impaired professionals and the desire of nursing boards to work with them." (32(p20)) Some boards are so overwhelmed with impaired nurse problems, the hearing procedure has been eliminated altogether so that the process can be expedited and help can be provided for the nurse. (32) Depending on circumstances, the nurse also might be allowed to continue working until the hearing date.

Disciplinary processes can be lengthy and expensive. (32) Grounds for discipline include fraud and deceit, criminal acts, substance abuse, mental incompetence, unprofessional conduct, incompetence due to negligence, and the inability to practice nursing with reasonable skills and safety. State boards of nursing also can discipline for willful misconduct (eg, diverting narcotics), misjudgment, or inappropriate action due to lack of knowledge or a lack in vigilance. (9)

Typically, board of nursing members are more in favor of helping nurses than juries tend to be. Boards of nursing generally are focused on rehabilitation, not looking to "strip nurses of their livelihood." (32(p21)) Juries, on the other hand, will find in the nurse's behalf only if there is an overwhelming preponderance of evidence to support the nurse's claim. (32)

A number of state boards have developed nondisciplinary alternative programs that offer confidential, voluntary alternatives for nurses with substance-abuse problems. It has been shown that both the nondisciplinary method and the traditional disciplinary approach are

   equivalent in regard to continued use
   or abuse of alcohol and drugs by nurses
   with a substance-abuse disorder,
   including among those who returned to
   the work force, deterring recidivism,
   keeping impaired nurses from practice,
   and returning/retaining abstinent
   nurses in the workforce. (33(p16))

Along with the state board's primary goal of ensuring safe and effective nursing care for all patients, a secondary goal is to return a knowledgeable, skilled nurse who is impaired to being a productive member of society. (33)

Although drug or alcohol impairment provides grounds for disciplinary action under state licensure statutes, at least 37 states offer programs to provide rehabilitation for the nurse and forgo disciplinary actions. (26) Some of these programs are voluntary, without any threat of referral to disciplinary authorities; some are coercive with discipline withheld as long as the impaired nurse participates in the rehabilitation process. Some states require nurses to sign sworn statements of current sobriety or fitness. Other states allow for reporting to nursing peer assistance programs instead of reporting to the state board of nursing. (26) Although the focus on rehabilitation over discipline may be controversial, the rationale is to attain a higher rate of reporting and self-reporting of the impaired nurse in order to help him or her overcome the addiction. (26) Without early intervention, nurses with substance abuse problems can simply "job hop" from one facility to the next before getting help. (23)

State nursing associations in Georgia, Maryland, Ohio, and Tennessee were the first to initiate help for impaired nurses. California, Michigan, and Ohio have adopted voluntary, confidential compliance programs rather than formal disciplinary actions for impaired nurses. (23) By 1988, more than half of US states had begun offering some sort of assistance or prevention programs. In contrast, all 50 US states had programs for impaired physicians. (34)