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Why have representation during a Board of Nursing investigation?

On Behalf of McNabb, Bragorgos, Burgess & Sorin, PLLC | Feb 18, 2022 | Professional Liability

Nurses under investigation in Tennessee or another state may think they don’t need representation. However, a nurse should always have an attorney with experience in licensure defense during a Board of Nursing investigation. Nurses should treat Board of Nursing proceedings as a courtroom.

Pros of representation
Professional liability attorneys usually have relationships with prosecutors, board members and investigators. Legal representation helps because the Board of Nursing investigators aren’t always familiar with collateral consequences of licensure discipline. The Board of Nursing protects the public, not the nurses.

A Board of Nursing investigation is a civil or criminal court proceeding conducted by administrative agencies. Nurses who have attorneys without experience in professional liability or who represent themselves have a disadvantage when dealing with cascading events that happen after disciplinary action.

Cascading events
Other regulatory agencies join the case after a nurse has a final order of discipline against them. Many administrative agencies have overlapping jurisdiction during a Board of Nurse’s investigation. An example is the Drug Enforcement Administration as well as Medicaid, Medicare, and state insurance fraud units joining the case after a drug diversion.

Reciprocal enforcement
Nurses often assume that state discipline stays in the state, but the Board of Nursing can discipline other licenses even when not current. Some licenses last a lifetime in certain jurisdictions, so licensure discipline risks might be worse than risks of being in a malpractice lawsuit. Some states need nurses to notify the boards of any disciplinary action in other states. The Board of Nursing considers disciplinary action to be public.

Other agencies
Potential cascading effects include actions by other agencies on the case. There are many overlapping regulatory agency jurisdictions in every state. After a Board of Nursing investigation, other agencies from other states can prosecute the nurse. A nurse who admits to the allegations against them during the Board of Nursing investigation can’t deny accusations from other agencies.

Licensure discipline may result in exclusion from the state’s Medicaid program, so a nurse can’t work directly or indirectly with the Medicaid program. Their new employer can’t participate in the Medicaid program either. Representation for nurses helps during Board of Nursing proceedings. Investigators can record interviews and subpoena anyone they need.