What Can I Expect? What is the Process?
I am asked this question multiple times a day; mostly from Licensed Vocational Nurses who are in various phases of the investigation process with the Board of Vocational Nursing & Psychiatric Technicians (BVNPT). The following is what one should expect if your nursing license is being investigated from start to finish:
The investigation is triggered by (1) a complaint about your work performance and the complainant can and usually is, anonymous. (2) It can also be triggered by a conviction that shows up on Live Scan when you go to renew your license. (3) The third way an investigation will be triggered is via a report from the Department of Justice for a legal issue such as a DUI or a misdemeanor conviction.
If you know that you’ve committed an error or violated the law in any way, your best course of action is to speak with an attorney right away so that they can begin preparing you for what will follow.
You will receive a NOTICE OF INVESTIGATION from the Board of Vocational Nursing & Psychiatric Technicians (BVNPT). In the Notice, the BVNPT will explain that there has been a complaint alleging that you did something wrong. They will further explain that it is their responsibility to investigate the accusation. They will cite a business and professions code number and ask you to submit a written statement to them by a given date, usually 2 weeks from the date of the letter, in response to the allegation.
You can also receive notice from the BVNPT that something has come up during your renewal application, either because you self-reported during the renewal process or because your license was flagged through Live Scan. If this is the case you will receive a similar Notice from the BVNPT. Attached here is an example.
Do not respond in writing to either of these letters. Any statement you make will be used by the Board and Office of the Attorney General to continue their investigation. If you’ve received a Notice of Investigation letter from the BVNPT, contact our office immediately. We will help you with your response to ensure that you do not unintentionally incriminate yourself.
If the Board is not sufficiently satisfied by the Letter of Explanation or Mitigating Evidence at this stage, the investigation will proceed.
The Board of Vocational Nursing & Psychiatric Technicians (BVNPT) will hire a Department of Justice (DOJ) investigator to look into the matter on their behalf. The DOJ investigators are former or retired police officers, DEA agents or other experienced investigators. They have had years of experience in the art of interrogation and investigation. This investigator will call you to set up an interview “to get your side of the story”.
- Do Not Speak to an Investigator without representation. I cannot tell you how many times I have heard from our clients that the investigator sounded like they were siding with the nurse. Nurses often ask me if a representation is really necessary “because the investigator told me it sounds like it will be dropped.” There is not one case in which they actually do drop the complaint. The investigator’s sole responsibility is to find cause for discipline for the Board. Anything you say can and will be used against you. Despite what it may seem, they are not on your side. Our Panel attorneys have done thousands of internal investigations and can successfully represent you so the process ends at the investigation stage.
If the process does not end at the investigation stage, you’ll receive the actual Accusation from the Board.
The Attorney General serves you with a Formal Accusation Against your Nursing License. This is a formal accusation. It will become public record on the Board’s website and is an attempt by the Board and the Attorney General of your state to revoke, suspend or have you voluntarily surrender your LVN License. This is the most critical stage of the process. I adamantly advise you to seek representation if you don’t already have counsel. There are three parts to the accusation: The first is the STATEMENT TO RESPONDENT; the second is the ACCUSATION; the third is the NOTICE OF DEFENSE.
- STATEMENT TO RESPONDENT: This explains what you need to do and provides the time restraints for filing a Notice of Hearing or Notice of Defense. It also explains that you can opt for a stipulated settlement (Stipulated Settlements are offered in limited circumstances. See section 4 for more information.)
- ACCUSATION: This is the charge against you. It will provide a statement of the Boards’ jurisdiction, cite the codes you are being accused of violating, make a statement regarding cost recovery and finally the PRAYER, which will call for revocation or suspension.
- NOTICE OF DEFENSE: You have 15 days from the date that you are given notice in which you need to respond with a Notice of Defense. This is also critical. Missing this step waives your right to a hearing and the Board will move to discipline you without your input.
I cannot reiterate enough how critical this stage of the process is if you want to keep your nursing career. Without question, you need an attorney if you’ve been served an accusation because the next step is filing a Notice of Defense and going to Hearing, which is difficult, if not impossible to adequately handle on one’s own.
- You may choose to opt for a Stipulated Settlement. This is where a lawyer would negotiate the terms of your probation and settle the matter without having to go to Hearing. This is not always a viable option but if it is, it is a good one. If the lawyer is successful and comes to terms of Probation that you and your attorney have agreed upon, you would receive a Stipulated Settlement and Disciplinary Order.
- STIPULATED SETTLEMENT AND DISCIPLINARY ORDER: This will look very similar to the Statement to Respondent and Accusation, except at the end there will be a section called the DISCIPLINARY ORDER. This is what you will need to abide by, in order to keep your license.
The Department of Justice, Office of Administrative Hearings (OAH) will send you a REQUEST TO SET. This will provide you with a few options for dates for your hearing and will name a location. If you have hired an attorney, this will be sent to their office and they will coordinate with you, the OAH and the Deputy Attorney General to set a date.
- HEARING: An Administrative Hearing is a real legal proceeding with an Administrative Law Judge presiding and rendering a decision. (If you’ve ever had the pleasure of attending any court proceeding, you will know what an intimidating experience this can be… even if it is just for a traffic ticket.) The Hearing will take place at the OAH, at a conference table, not in a courtroom. The Judge, you, your counsel, and the opposing counsel or Deputy Attorney General will be in attendance. Each side is able to argue their case and present evidence. At the end of the hearing, the judge will take all the provided information under submission and you will receive notice of his decision within a few weeks.
The Result of a BVNPT Hearing will likely be Probation. Our panel attorneys have been 98% successful in license retention as a result of a hearing. However, the result of the Judge’s order usually imposes some sort of probation requirements. If you do not abide by all of the Probation requirements, you may receive notice that your Probation is being revoked, beginning the process all over again.
- NOTICE OF VIOLATION OF PROBATION. This notice will come from the BVNPT and will clearly state which of your probation requirements you are being accused of violating. Two of the most common violations are “failure to receive prior approval from the Board prior to commencing employment as an LVN” or “failure to engage in the practice of Registered Nursing for a minimum of 24 hours per week for six consecutive months”. For a Nurse with a publicly accessible accusation against his or her license, the latter can pose a significant challenge. Following a Notice of Violation of probation, the Board will seek to revoke your probation, and therefore your license.
- PETITION TO REVOKE PROBATION. This is the formal accusation from the Board and the result will be another attempt at license revocation or an option to formally surrender your license.
The Board Gives you the Option to Surrender Your LVN License. At first glance, this appears to many nurses to be a better alternative to battling it out again in a settlement negotiation or in a hearing. It also seems like a much less expensive option.
- STIPULATED SURRENDER OF LICENSE AND ORDER. The Board will offer you the option to surrender your license and “petition for reinstatement” after two years. What they do not tell you is that if you voluntarily surrender that license, the Burden of Proof shifts from theirs, to yours if you ever want to get it back. In layman’s terms: It is now YOUR responsibility to prove that you are a good nurse and should be allowed to practice rather than the Boards’ responsibility to prove that you’re not a good a nurse and shouldn’t be allowed to practice. It is much more difficult for whoever the Burden of Proof happens to be upon and much more expensive.
As you can see, there are many steps to this process with each step taking months and the entire process can take years. We are here to help you through each step, advise you on all of your options and do all the legwork for you. If you have any questions, please fill out this form and we will contact you right away or call us at 1-800-506-9766.