HJAR Jan/Feb 2023

HEALTHCARE JOURNAL OF ARKANSAS I  JAN / FEB 2023 23 BOARD REVIEW Most boards conduct their review only after the investigation concludes. At this stage, the board, or a subcommittee of the board, reviews the investigation’s findings and makes a recommendation on how to handle the allegations in the complaint. The board may take the following actions once its investigation concludes: • Dismissal: The board may decide that it lacks jurisdiction, the complaint alle- gations are unsubstantiated, or the allegations do not amount to a vio- lation of the board’s rules and regu- lations, and it will, therefore, dismiss the complaint. • Letter of Caution: The board could instead find that, even though the alle- gations are not substantiated or do not amount to a violation, they are con- cerning, and it will issue a letter of cau- tion, also known as a letter of warning. • Consent Agreement: Before holding a hearing, if the board believes the alle- gations are true and constitute a viola- tion, it may offer the licensee a consent agreement to sign. “This is a contract between the licensee and the Board in which the licensee admits to a viola- tion and disciplinary terms are agreed upon.” i,2 Ultimately, this is simply a set- tlement agreement between the board and licensee; accordingly, it is negotia- ble, at least conceptually, if not always practically. By signing this agreement, the licensee waives his right to a hear- ing and admits his guilt. If the licensee signs, these terms are binding and are made publicly available. • Hearing Decisions: If none of the pre- ceding events occur, the board will hold a hearing and determine what action to take against the licensee. The potential decisions resulting from a hearing include: • Unsubstantiated: The board concludes that the allegations against the licensee are unsubstantiated or unfounded and, accordingly, takes no further action. Depending on the board, the phrase used will differ. For example, the Arkansas State Board of Nursing uses “not guilty.” • Reprimand: The board concludes that the licensee has violated the board’s rules or regulations and issues a verbal or written rebuke. Under this action, the board allows the licensee to keep his license but may order the licensee to pay fines or take continuing educa- tion or ethics courses. • Probation: The board concludes that the licensee has violated the board’s rules or regulations. Though it allows the licensee to keep his license, it imposes certain conditions on the licensee for a set period of time. Most often, the conditions include height- ened oversight, such as a reporting requirement. ii As with reprimands, the board may order the licensee to pay fines or take continuing education or ethics courses. Failure to comply with the conditions may result in suspen- sion or revocation. • Suspension: The board concludes that the licensee has violated the board’s rules or regulations. It suspends the licensee’s license until certain condi- tions are met and/or for a set period of time. • Revocation: Revocation of one’s license is the most restrictive disci- plinary action that a board can take. The revocation of one’s license per- manently bars that licensee from practicing in that state. Some boards provide a timeline for considering relicensure. Others permanently bar reissuance. Some boards determine whether it will consider relicensure, and at what time, on a case-by-case basis. • Reporting to authorities: Although not a formal disciplinary process, boards can report their findings to the rele- vant authorities. Similarly, any adverse action is generally made publicly avail- able so that if the licensee’s violation is also criminal, the relevant authori- ties can access the board’s findings and conclusions. Overall, each licensing board generally has wide discretion in crafting the terms of any adverse order. HEARING The hearing is governed by the Admin- istrative Procedure Act as well as that board’s specific rules and regulations. Thus, the hearing normally consists of live testi- mony and the submission of documentary evidence. SeeAdministrative ProcedureAct, 5 U.S.C. § 556(d). 3 At the conclusion of the hearing, the board votes on whether the licensee violated its rules and regulations. All of the board’s findings and conclusions, or sanctions if ordered, will be laid out in a Final Order. Id. § 557(c). The hearing is your last chance for you to make your case to the board before it decides whether to revoke or suspend your license. Prior to the hearing, you will be given a final complaint that will contain the alle- gations that will be presented against you at the hearing. In preparation of the hear- ing, you should go through each allegation and determine your defense for each. This i For the Arkansas State Board of Nursing, consent agreements provide that “[t]he licensee is allowed to practice under certain terms and conditions agreed upon by the Board. This action of discipline is permanently reflected on the license of the nurse. The Board also has the ability to require the nurse to pay fines, attend classes, submit reports and participate in a drug screening process.” ii For example, the Arkansas State Board of Physical Therapy has, at times, required bimonthly conferences between the violator and a board staff member. At other times, it has required the violator to meet quarterly with a supervising physical therapist to discuss ethical standards and submit a report summariz- ing each meeting.