Legal Corner

Alabama Nurse, Jun-Aug 2003 by Eddins, Don

The Alabama Board of Nursing (ABON) was involved in 338 actions against nurses' licenses in calendar year 2002 - in cases ranging from substance abuse to illegal practice.

It's safe to assume that the ABON notification of a licensure matter was not a pleasant experience for any of the nurses involved. The sad part is that most of the licensure actions could have been avoided if the nurses had refrained from substance abuse and/or practiced those good nursing procedures nurses are taught.

The vast majority of nurses never get the dreaded letter from the board. After all, Alabama has about 60,000 RNs and LPNs, so a relatively small percentage were citied by the BON. Even so, good nurses make mistakes and often carelessness can result in disciplinary action, same as overt actions.

Among the 338 cases, licenses were voluntarily surrendered by 119 nurses. In other words, the cases were substantial enough that the nurses didn't even contest the allegations or seek a less severe discipline than surrender. Of the 219 others, the allegations of 64 were for substance abuse, 45 for substandard practice, 26 for probation violations, 20 for illegal practice, and seven for alternative program violations.

Since a substantial number of the voluntary surrenders involved substance abuse, as did many of the probation violations and all the alternative program violations, no doubt substance abuse topped the list of reasons nurses were cited by the board.

Gail Hampton, assistant attorney general who is counsel for the Board of Nursing, noted that the agency has established a procedure to help nurses deal with drug and alcohol problems. The program in place now is known as the Voluntary Disciplinary Alternative Program (VDAP), which replaced the old "ANNA" program.

VDAP requires a drug evaluation, by a board-approved provider, then treatment based upon the evaluation. After treatment, the nurse returns to work and remains in a monitoring program.

"For substance abuse or diversion, the best option is to admit it and get into a non-disciplinary program," said Hampton.

When a nurse is forced to come before the Board on a practice issue, normally it's for something he/she knew better than to do to begin with. Things like pre-charting and falsification of records.

Hampton said there have been cases in which nurses have charted that they took the vital signs of a patient when the patient actually had died an hour or so earlier. Or, more frequently, the chart showed an observation at a time after the nurse had been transferred to another floor for the remainder of the shift.

Home health nurses have been accused of charting vital signs for patients who were not home the day of the alleged visit or, in some cases, for patients who had moved from the former address. Falsification of records will get a nurse in trouble every time.

What do you do if the Board of Nursing sends a letter indicating you're the subject of a BON investigation?

First, contact a lawyer. After all, many times the allegations are false. Sometimes a patient's family member, fellow health care worker or physician with an axe to grind complains to the Board.

second, and most importantly, don't sign anything until after you've actually consulted with an attorney. Routinely enclosed with the letter from the BON staff announcing the investigation will be a statement for the nurse to sign allowing him/her to surrender his/her license to end the investigation. Don't sign it.

The notice will also include the name of an investigator to contact. Wait until you've discussed it with counsel. As a matter of fact, you should not even go to a meeting without counsel. Contact a lawyer the moment you receive the notice.

Most often, a consent order is a better course of action than an administrative hearing but a lawyer needs to examine the consent order before it's signed. Once you've signed the order, you have virtually no recourse.

ASNA members have one-hour's free legal consultation each year. The cost is included in your membership dues. Don't hesitate to call me at (334) 821-9981 or the ASNA headquarters at (334) 262-8321 if you have a work-related legal issue.

Many hours of hard work went into earning that precious nursing license. Don't surrender it unless you absolutely have to.

by Don Eddins, BS, MS, JD

Attorney at Law

Don Eddins is a practicing attorney in Auburn, Alabama, and serves as legal counsel to the Alabama State Nurses Association. Every member is entitled to a one-hour free, consultation on any legal matter by calling the ASNA office.