Recent Developments in Disciplinary Matters Before LLR Boards
There have been two recent and significant developments that relate to licensure disciplinary matters before boards at the South Carolina Department of Labor, Licensing, and Regulation (LLR) (discussed more here). The first is an order issued by the South Carolina Administrative Law Court in November 2017 remanding a decision issued by the State Board of Medical Examiners. The second is the implementation of the Enhanced Nurse Licensure Compact in South Carolina, which began in January 2018.
I. Requirements for Disciplinary Board Orders
In June 2017, the S.C. Board of Medical Examiners issued an order revoking the medical license of a doctor accused of certain drug-related offenses. The licensee appealed the decision to the Administrative Law Court (ALC), and, in November 2017, the ALC issued an order remanding the case back to the board. The ALC order recited principles articulated in case law that apply in licensee disciplinary matters:
- Boards are not required to invoke particular sanctions for particular violations, and any type of sanctionable misconduct can result in any type of sanction, including license revocation, suspension, reprimands, civil penalties, etc
- Admitting to conduct, for example in a Memorandum of Agreement, and that such conduct presents grounds that constitute misconduct can provide sufficient support for sanctions imposed against the licensee; and
- Boards can impose discipline even if there is overwhelming mitigating evidence, as long as the board fairly and objectively weighs all of the evidence; however,
- The board’s order must demonstrate that it has “scrupulously and meticulously” weighed all available mitigation evidence offered by the licensee.
The order stands for the principle that board orders must carefully weigh all presented evidence and meaningfully connect the factual conclusions—including mitigating evidence—to the conclusions of law and the imposed sanctions. The mere recitation that the “sanction imposed is designed not to punish the licensee but to protect the life, health, and welfare of the people at large” without substantive analysis is insufficient for the ALC, as an appellate court, to evaluate the underlying basis for the board’s decision-making. In light of this, licensees who are subject to the board’s disciplinary process, but whose orders do not provide a meaningful analysis supporting the imposed sanctions, are in a favorable position to appeal.
II. Role of the eNLC in Disciplinary Matters
In 2005, the Nurse Licensure Compact (NLC) was passed by the South Carolina General Assembly and enacted into law by the signature of Governor Sanford. The NLC granted reciprocity to licensed nurses in member states and permitted them to practice in the other member states without obtaining additional licensure. The Enhanced Nurse Licensure Compact (eNLC) was enacted into law in South Carolina in 2017 and became effective on January 19, 2018. The eNLC replaces the NLC and imposes stricter licensing requirements for nurses applying for and holding a multistate license. Additionally, any disciplinary action by the Board of Nursing can result in reversion to a single-state license. The eNLC enacted Uniform Licensure Requirements (ULRs) that are standard across eNLC member states. Principal among these, the nurse must:
- Hold an unencumbered license (i.e., a license without active discipline);
- Have no state or federal felony convictions;
- Have no misdemeanor convictions related to the practice of nursing (this is determined on a case-by-case basis); and
- Not be a participant in an alternative program, such as the Recovering Professional Program in South Carolina.
Should a nurse not be compliant with one of the ULRs, for example if he or she owes a civil penalty to the Board of Nursing, the license will be reverted to a single-state status until the underlying issue is resolved. In the case of a criminal conviction that impacts the license, the nurse’s license will no longer be eligible for multistate status.
The stricter requirements associated with the enactment of the eNLC underscore the importance of ensuring continued safe nursing practice, as well as successfully navigating the disciplinary process should a complaint be filed.