The South Carolina Board of Nursing Complaint Process and Nurses’ Right to Defend
The disciplinary process before the S.C. Board of Nursing can be very stressful. Your license represents your livelihood and your reputation, and it is worth defending. South Carolina law protects the right of nurses to defend their licenses, and the Board of Nursing provides an opportunity for the nurse to present his or her side of the story before any discipline is imposed.
There are thirty-eight separate grounds for discipline of nurses, twenty-six that apply specifically to nurses (S.C. Code Ann. § 40-33-110) and twelve that apply to all licensed professionals (S.C. Code Ann. § 40-1-110). Possible sanctions for violating any of these grounds include a public reprimand, a civil penalty (fine), course requirements, worksite restrictions, license suspension, and license revocation. The imposition of discipline can also impact the multistate status of a nurse’s license under the Enhanced Nurse Licensure Compact.
The disciplinary process with the S.C. Board of Nursing begins with a complaint. Anyone can file a complaint against a nurse, including a patient, a member of the patient’s family, a supervisor, or a fellow nurse. In fact, nurses, nurse supervisors, and nurse employers have a legal duty to report violations to the S.C. Board of Nursing (S.C. Code Ann. §§ 40-33-110(A)(22), 40-33-111(A)).
The complaint filed against the nurse is reviewed by an analyst in the S.C. Department of Labor, Licensing & Regulation (LLR) Office of Investigations and Enforcement to determine whether a violation may have occurred. If the analyst determines that the complaint reasonably alleges a violation of S.C. law, the case is assigned to an LLR investigator.
The nurse will receive contact from the investigator letting him or her know that a complaint has been filed and requesting a written response from the nurse. This is the best time for the nurse to hire a lawyer knowledgeable about the Board of Nursing complaint process. Although failing to cooperate with an investigation is a violation of the nurse practice act, nurses are entitled to due process and an opportunity to defend their licenses. The South Carolina Supreme Court has determined that such includes the following:
- adequate notice;
- the opportunity to be heard at a meaningful time and in a meaningful way;
- the right to introduce evidence;
- the right to confront and cross-examine witnesses whose testimony is used to establish facts; and
- the right to meaningful judicial review.
Every nurse who is subject to a complaint and investigation also has the right to a lawyer throughout the disciplinary proceeding.
Once the LLR investigator’s report is complete, it is submitted to an Investigative Review Committee (IRC) for review. The IRC will make a recommendation to the Board of Nursing based on the investigator’s report, including to dismiss the complaint, issue a formal complaint, or issue a non-disciplinary letter of caution. If the complaint moves forward, the disciplinary attorney may urge the nurse to sign a consent agreement. Nurses under investigation should very carefully consider their options before signing a consent agreement. A nurse’s due process rights entitle him or her to an opportunity to be heard, introduce evidence, and to meaningful review by the Board.
Often, nursing complaint cases are first heard at a hearing conducted by a panel. LLR’s disciplinary attorney will present his or her case to the panel, the attorney for the responding nurse will present his or her case to the panel, and the panel will ask questions. At the conclusion of the hearing, the panel will determine its recommended findings of fact, conclusions of law, and recommended sanctions, and will send those recommendations to the Board of Nursing for consideration. The Board of Nursing can also hear cases without the complaint being first heard by a panel. The Board will convene and determine which findings of fact, conclusions of law, and sanctions it will adopt, and will thereafter issue an order. A recent Administrative Law Court decision discusses the requirements for those findings and the related analysis.
In summary, the Board of Nursing complaint and disciplinary process can be very long and potentially frustrating. Nurses have the right to defend their licenses, and, recognizing that right, the Board provides for hearings so that the nurse’s side of the story can be meaningfully considered before any discipline is imposed.