NURSING and the LAW: Getting and Protecting Your License: What you need to know

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Your nursing license was earned by hard work, knowledge and dedication. Those same qualities are needed when it comes to protecting your license. You need knowledge and the guiding hand of informed counsel when facing the difficult issues that often come with disciplinary challenges. *If you are seeking a license or renewal, it is also important to know this information.

The regulation of a nurse’s practice in the State of South Carolina falls under the “police” power of the State’s responsibility to protect the health, safety, and welfare of its citizens. Essentially the State has the power to regulate your licensed practice. Because of that power, you need to know how and who exercises that power.

LLR and the Board of Nursing

This regulation is accomplished by two groups. One is the broad administrative agency called the South Carolina Department of Labor, Licensing and Regulation (“LLR”).Under that agency are the other groups, called Professional Licensing Boards (PLB’s”). There are over 40 professional licensing boards. The relevant Board for nurses is the Board of Nursing (“Board”). The Board is a separate legal entity that functions to decide who is eligible to practice nursing and to discipline persons who are licensed.

LLR has administrative authority over the various professional boards. That administrative power includes fiscal, investigative, clerical, secretarial, and license renewal functions for the PLB’s.

However, it is the Board of Nursing that exercises final legal authority regarding decisions over a nurse’s license. Where a question of authority between LLR and the Board arises, LLR will defer to the Board.

The Board therefore is clothed with the legal authority to establish ethical codes, resolve consumer complaints, write regulations, conduct hearings and administer discipline. This Board is who you will interact with should a complaint be made against you. The Board consists of 6 current members, (4 positions now are vacant) primarily professionals, some of whom are nurses. Most Board members are appointed by the governor.

Board Authority: Quasi-Judicial in Nature

The majority of the Board actions are “quasi-judicial” in nature. This means they act something like a court. These actions may include determination of compliance with rules applicable to nursing and discipline for violation of those rules. They may hold hearings to decide facts and make decisions. The Board will have legal counsel representing its position in any hearing. Your best interests are served by counsel focused upon your best interests.

Licensing Decisions:

Routine licensing decisions are generally delegated by the Board to LLR. The Board has set standards to guide the LLR administrative staff. However times occur when facts prevent approval of an application (or renewal) at the LLR staff level. Then Board action may be required.

In those situations, the Board is required to give a person applying for a license what is called “procedural due process”. Essentially this means the person is required to be given notice of any hearing and the right to be heard, including the right to introduce evidence. During the hearing, the applicant is allowed to try and convince the Board that he or she is qualified for licensure. The Board will question the applicant and other witnesses. After the hearing, a decision will be made. A person has the right to appeal any denial of licensure to a higher authority, called an Administrative Law Court (“ALC”).

Discipline Proceedings:

If a complaint is filed against a nurse, typically the steps in the disciplinary process are the following:

  1. A Complaint is filed;
  2. An investigation will be done by LLR staff;
  3. The investigation materials will be reviewed by an investigative review committee (“IRC”);
  4. The IRC will make a non-binding recommendation to the Board; non-binding means the Board may accept OR reject the recommendation;
  5. Facts of the review will be presented to the Board; sometimes with an Agreed Order;
  6. The Board enters a final order of discipline.

Due Process Rights:

Like licensing decisions, when a nurse faces disciplinary actions that person is entitled to due process since the rights to earn a living thru a license are protected by our Constitution at the Federal and State levels. This means-when facing discipline- you will have certain legal rights, including the right to confront any witnesses that the State calls against you and question them. You will also have the right to call witnesses to support your position and introduce documents.

 Rules at Hearings:

At any hearing, the Board is going to be represented by two attorneys. One who presents the case against the nurse, and another who gives legal advice to the Board-so called “advice counsel”.

Any contested hearing is conducted much like a trial in court. The rules of evidence apply as those it were a civil trial. Witnesses are called, documents are introduced and arguments are made by counsel.

Actions by the Board:

The Board, if it finds a violation warranting discipline, may impose a range of penalties including:

  1. Public or private reprimands;
  2. Issue letters of Caution;
  3. Impose fines;
  4. Put a license in suspension or probation; (with conditions for reinstatement)
  5. Revoke a license

Summary

The process of disciplinary proceedings is complex; and can have significant adverse impact upon a nurse’s ability to earn a living. It is vital that anyone facing such administrative disciplinary proceedings be well informed and advised so that your rights to practice can be vigorously protected.

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