What are the Possible Outcomes of a Board of Nursing Investigation?

By Melissa Heinlein, Esq.

The first question my clients have when they are notified of a Minnesota Board of Nursing investigation into their practice is, "Am I going to lose my license?" It's important to know that revocation of a license is just one possible (and rare) outcome, and only comes up in the most extreme circumstances. So, what other results are possible?

Dismissal

The best-case scenario, naturally, is dismissal of a complaint against your practice. This means that the Board has investigated the complaint and decided that it is either unsupported by the evidence, or not deserving of any further action. No aspect of the complaint – or the fact that it ever existed – will become part of your public profile on the Board's online database. A notice of dismissal is cause for celebration! And good news: most complaints are dismissed.

Referral to Health Professionals Services Program (HPSP)

If the Board is concerned that a chemical dependency issue or physical condition is interfering with your ability to practice with "reasonable skill and safety," they may refer you to HPSP, which is a health monitoring agency. Participation in HPSP can be ordered or voluntary.

Agreement for Corrective Action

An agreement for Corrective Action (ACA) is an educational rather than a disciplinary remedy. Although not quite as desirable as having your matter dismissed, an ACA is a favorable outcome.

If your review panel determines that an ACA is appropriate, they will present you with a proposal to sign. It will include provisions for continuing education and possibly one-on-one sessions with a nurse consultant. You will likely be required to report back to the panel on the things you have learned through the ordered education. The document also contains a summary of the facts which led to the ACA. Your signature on the contract indicates that you agree to the Board's terms, and that you are admitting to the facts as written.

It is important to note that, although non-disciplinary, this document is publicly available and will remain accessible on the Board's public database if someone looks up your license. License defense attorneys can help you negotiate the best possible terms in an ACA, but they cannot make the document private.

Stipulation and Consent Order: Stayed Suspension, Suspension, or Revocation
The stipulation and consent order (SCO) reflects a more serious reprimand than an ACA. Like an ACA, an SCO is also a contract that you sign, but the terms presented by the Board will be disciplinary.

An SCO will include one of the following: an immediate suspension of your license, a stayed suspension (meaning, it won't take effect so long as you follow the Board's conditions and limitations), or a revocation. Provisions can include reinstatement restrictions, mandatory participation in HPSP, mental health evaluations, chemical assessments, reporting from your employer, self-reporting, job site supervision or limitations on work hours or work settings, and other measures designed to ensure compliance with the nursing Practice Act. A civil penalty, which is a monetary fine, can also be included at this level of discipline.

A suspension leaves the door open for your nursing career in the future, but you may have to find a temporary way to earn income outside of nursing. Suspension does not take away your license, but it bars you from actively using it during the stipulated timeframe, which generally will run anywhere from 6 months to 5 years, depending on the severity of the alleged practice issues.

Revocation only happens when the Board identifies a nurse whose practice is a true danger to the public. It is incredibly rare that the Board resorts to such a drastic measure. For reference, in the Board's most recent report of actions taken (11/16/2022 through 1/15/2023), no complaints resulted in revocation.

As is the case with an ACA, the entire SCO document will be publicly available once signed and adopted by the Board.

Voluntary Surrender

In some cases the best solution for a nurse may be a voluntary surrender of his or her license. An attorney may recommend a voluntary surrender when a nurse has made such a serious error in judgment that the chances of a good outcome are slim or nonexistent. It also might be the best option in a case where a nurse is not committed to continuing to work in the field. In these situations, it is in everybody's best interest to conserve time, money, and energy by handing over the license. As is the case with ACA and SCO documents, the document is public and includes a statement of the facts behind the complaint. Choosing a voluntary surrender can allow the licensee to admit to a rather abbreviated statement of facts, instead of going through a drawn-out investigation that may only shed light on unfavorable details.

Other Possibilities

Let's say you presented for a conference and told your side of the story—and the Board did not accept your version of the facts. If that happens, it becomes challenging for the parties to agree to disciplinary terms in an ACA or SCO. A license defense attorney can help you negotiate your terms. However, when a nurse and the Board are at a standstill, and the nurse is determined to prove that she deserves her preferred outcome, she can opt for something that looks very much like a civil trial. The proceeding is called a contested case, and it requires you to make your case before an administrative law judge, who makes a final determination as to whether the Board has proven, by a preponderance of the evidence (this is a very low burden of proof requiring the Board only that it is more likely than not) that the licensee violated the rules of her practice. Contested cases are not common, because the process is time-consuming and expensive and due to Board's low burden of proof, they are difficult to win.

A cease and desist may be issued at the outset of a Board investigation, if the complaint is serious enough and identifies a high-level threat to public safety, if true. It is a stopgap measure rather than a final outcome. Like revocation, only the worst allegations of behavior will trigger a cease and desist from the Board. Like any Board action, an active Cease and Desist is public. However, if the Board's investigation reveals that the allegations are not true, the Cease and Desist is removed from the Licensee's public record.

There are a number of ways that a Board may resolve an investigation into a complaint against someone's licensed practice. These remedies are fairly consistent across all licensed professional fields, from nurses, to therapists, to social workers and doctors. If you have any questions about your potential risks and liabilities or if your licensing board is investigating your practice, I always provide a free 30-minute phone consultation. 612-333-5673. At Lord + Heinlein, we are your powerful legal voice.