Arkansas Administrative Code › Agency 067 - Board of Nursing › Rule 067.00.22-004 - ASBN Rules, Chapter Seven- Rules of Procedure

Current through Register Vol. 49, No. 6, June, 2024
CHAPTER SEVEN
RULES OF PROCEDURE
SECTION I
ARKANSAS ADMINISTRATIVE
		  PROCEDURE ACT
Rules, Rule Making, Notice of Hearing, Hearings, Judicial Review,
			 Declaratory Orders, Adjudications, and other procedures authorized by the
			 Arkansas Nurse Practice Act are governed by the Arkansas Administrative
			 Procedures Act §
									25-15-201 et
			 seq.
SECTION II
PROCEDURE ON DENIAL, REPRIMAND, PROBATION, CIVIL PENALTIES, SUSPENSION,
		  OR REVOCATION
A.
GROUNDS FOR
		  DISCIPLINE
1. The Board shall have
		  sole authority to deny, suspend, revoke, or limit any license or privilege to
		  practice nursing or certificate of prescriptive authority issued by the Board
		  or applied for in accordance with the provisions of this chapter, or to
		  otherwise discipline a licensee upon proof that the person:
a. Is guilty of fraud or deceit in procuring
		  or attempting to procure a license to practice nursing or engaged in the
		  practice of nursing without a valid license;
b. Is guilty of crime or gross
		  immorality;
c. Is unfit or
		  incompetent by reason of negligence, habits or other causes;
d. Is habitually intemperate or is addicted
		  to the use of habit-forming drugs;
e. Is mentally incompetent;
f. Is guilty of unprofessional
		  conduct;
g. Has had a license,
		  certificate or registration revoked, suspended, placed on probation, or under
		  disciplinary order in any jurisdiction;
h. Has voluntarily surrendered a license,
		  certification, or registration, and has not been reinstated in any
		  jurisdiction; or
i. Has willfully
		  or repeatedly violated any of the provisions of this chapter.
2. The board shall refuse to issue
		  or shall revoke the license of any person who is found guilty of or pleads
		  guilty or nolo contendere to any offense listed in ACA § 17-3-102(a)
		  unless the person requests and the board grants a waiver pursuant to ACA §
		  17-3-102(b).
3. Proceedings under
		  this section shall be as provided in the Arkansas Administrative Procedure Act,
		  as amended, ACA §
										25-15-201 et
		  seq.
B.
PROCEEDINGS
Proceedings shall be as follows.
1. Opportunity for licensee or applicant to
		  have hearing.
Except as provided in subsection 2 below, every licensee or
			 applicant for a license shall be afforded notice and an opportunity to be heard
			 before the Board. The Board shall have authority to take any action the effect
			 of which would be to:
a. Deny
		  permission to take an examination for licensing for which application has been
		  duly made;
b. Deny a license after
		  examination for any cause other than failure to pass an examination;
c. Withhold the renewal or reinstatement of a
		  license for any cause;
d. Revoke a
		  license;
e. Suspend a
		  license;
f. Probate a
		  license;
g. Reprimand a
		  licensee;
h. Levy civil
		  penalties.
2. Suspension
		  of license without prior notice or hearing. If the Board finds that the
		  continued practice by a licensee of the occupation or profession for which he
		  or she is licensed will create an immediate hazard to the public, the Board may
		  suspend the license pending a hearing without prior notice of
		  hearing.
3. Notice of action or
		  contemplated action by the Board-Request for Hearing-Notice of Hearing.
a. When the Board contemplates taking any
		  action of a type specified in paragraphs a. and b. of subsection B.1. supra, it
		  shall give written notice to the applicant at the last address of record in the
		  Board office, including a statement:
(1) That
		  the applicant has failed to satisfy the Board of his or her qualifications to
		  be examined or to be licensed, as the case may be;
(2) Indicating in what respects the applicant
		  has failed to satisfy the Board; and
(3) That the applicant may secure a hearing
		  before the Board by depositing in the mail, within 20 days after service of
		  said notice, a registered letter addressed to the Board containing a request
		  for a hearing.
1. In any proceeding of the
		  Board involving the denial of a duly made application to take an examination,
		  or refusal to issue a license after an applicant has taken and passed an
		  examination, the burden of satisfying the Board of the applicant's
		  qualifications shall be upon the applicant.
2. When the Board contemplates taking any
		  action of a type specified in subsections c, d, and e of subsection B.1. supra,
		  it shall give a written notice to the licensee at the last address of record in
		  the Board office, through the Board's attorney, which contains a statement:
(1) That the Board has sufficient evidence
		  which, if not rebutted or explained, will justify the Board in taking the
		  contemplated action;
(2) Indicating
		  the general nature of the evidence, and detailed allegations of violation of
		  ACA §
														17-87-309(a)
		  (1-9) the licensee is charged with;
(3) That a hearing will be held on a date
		  certain, no sooner than 20 days after the mailing of the notice to the last
		  address of record in the Board office; and at that hearing the Board will
		  receive evidence.
3.
		  When the Board shall summarily suspend a license pending a hearing, as
		  authorized in subsection B.2 supra, it shall give written notice of the general
		  nature of the evidence and detailed allegations of violation of ACA §
													17-87-309(a)
		  (1-9) the licensee is charged with:
(1) That
		  the Board has sufficient evidence which, if not rebutted or explained, will
		  justify revocation of the license by the Board;
(2) Indicating the general nature of the
		  evidence against the licensee;
(3)
		  That, based on the evidence indicated, the Board has determined that the
		  continuation of practice of the occupation or profession of the licensee will
		  create an immediate hazard to the public and has therefore suspended the
		  license of the licensee effective as of the date such notice is
		  served;
(4) The Board will then set
		  an immediate hearing for a full evidentiary presentation by the licensee and
		  the Board.
4. In any
		  hearing before the Board involving the suspension or revocation of a license,
		  the burden shall be on the Board to present competent evidence to justify the
		  action taken or proposed by the Board.
C.
CIVIL
		  PENALTIES
The Board may, after providing notice and a hearing, levy civil
			 penalties in an amount not to exceed one thousand dollars ($1,000.00) for each
			 violation against those individuals or entities found to be in violation of
			 this Chapter or Rules promulgated thereunder.
1. Each day of violation shall be a separate
		  offense.
2. These penalties shall
		  be in addition to other penalties which may be imposed by the Board pursuant to
		  this Chapter.
3. Unless the penalty
		  assessed under this subsection is paid within fifteen (15) calendar days
		  following the date for an appeal from the order, the Board shall have the power
		  to file suit in the Circuit Court of Pulaski County to obtain a judgment for
		  the amount of penalty not paid.
D.
ENCUMBRANCE OR SUSPENSION OF DEA
		  REGISTRATION
The APRN shall submit his/her DEA Registration to the Board upon
			 request following disciplinary hearing in which the registration is encumbered
			 or suspended.
E.
METHOD OF SERVING NOTICE OF HEARING
Any notice required by subsection B.3 above, may be served either
			 personally or by an officer authorized by law to serve process, or by
			 registered mail or certified mail with return receipt requested, directed to
			 the licensee or applicant at his or her last known address as shown by the
			 records of the Board. If notice is served personally, it shall be deemed to
			 have been served at the time when the officer delivers the notice to the person
			 addressed.
F.
VENUE
		  OF HEARING
Board hearings held under the provisions of this rule shall be
			 conducted at the Board office or elsewhere in Pulaski County.
G.
HEARINGS PUBLIC
Use of Hearing Office - All hearings under this section shall be
			 open to the public.
At all such hearings at least a quorum of the Board shall be
			 present to hear and determine the matter.
H.
RIGHTS OF PERSONS ENTITLED TO
		  HEARING
A person entitled to be heard pursuant to this section shall have
			 the right to:
1. Be represented by
		  counsel;
2. Present all relevant
		  evidence by means of witnesses and books, papers and documents;
3. Examine all opposing witnesses on any
		  matter relevant to the issues;
4.
		  Have subpoenas and subpoenas duces tecum issued to compel the attendance of
		  witnesses and the production of relevant books, papers and documents upon
		  making written request therefore to the Board; and
5. Have a transcript of the hearing made at
		  his or her own expense.
I.
POWERS OF THE BOARD IN CONNECTION
		  WITH HEARING
In connection with any hearing held pursuant to the provisions of
			 this section, the Board or its hearing officer shall have power to:
1. Have counsel to develop the
		  case;
2. Administer oaths or
		  affirmations to witnesses called to testify;
3. Take testimony;
4. Examine witnesses;
5. Have a transcript of the hearing made at
		  the expense of the Board; and
6.
		  Direct a continuance of any case.
J.
RULES OF EVIDENCE
In proceedings held pursuant to this rule, the Board may admit
			 any evidence and may give probative effect to evidence that is of a kind
			 commonly relied on by reasonably prudent men in the conduct of serious affairs.
			 The Board may in their discretion exclude incompetent, irrelevant, immaterial,
			 and unduly repetitious evidence.
K.
FEES - WITNESSES
Witness fees and mileage, if claimed, shall be allowed the same
			 as for testimony in a Circuit Court.
L.
MANNER AND TIME OF RENDERING
		  DECISION
After a hearing has been completed, the members of the Board
			 shall proceed to consider the case and as soon as practicable shall render
			 their decision. If the hearing was conducted by a hearing officer, the decision
			 shall be rendered by the Board at a meeting where a quorum of the members of
			 the Board is present and participating in the decision. In any case the
			 decision must be rendered within ninety (90) days after the hearing.
M.
SERVICE OF WRITTEN
		  DECISION
Within a reasonable time after the decision is rendered, the
			 Board shall serve upon the person whose license is involved a written copy of
			 the decision, either personally or by registered mail to the last address of
			 record in the Board office. If notice is served personally, it shall be deemed
			 to have been served at the time when the officer delivers the notice to the
			 person addressed. Where notice is served by registered mail, it shall be deemed
			 to have been served on the date borne by the return receipt showing delivery of
			 the notice to the addresses or refusal to accept the notice. An attempt to
			 serve notice at the last address of record shall constitute official
			 notice.
N.
PROCEDURE
		  WHERE PERSON FAILS TO REQUEST OR APPEAR FOR HEARING-REOPENING HEARING
If a person duly notified fails to appear for a disciplinary
			 hearing and no continuance has been granted, the Board, or its hearing officer,
			 shall hear the evidence of such witnesses as may have appeared, and the Board
			 shall proceed to consider the matter and dispose of it on the basis of the
			 evidence before it in the manner required by subsection L. of Section II.
			 Failure of the licensee to keep the Board informed of a change of address shall
			 not be grounds to have the hearing reopened.
Where because of accident, sickness, or other cause a person
			 fails to appear for a hearing which has been scheduled by the Board, the person
			 may, within a reasonable time, apply to the Board to reopen the proceeding; and
			 the Board, upon finding such cause sufficient, shall immediately fix a time and
			 place for hearing, and give such person notice thereof as required by Section
			 II. At the time and place fixed, a hearing shall be held in the same manner as
			 would have been employed if the person had appeared in response to the original
			 notice of hearing.
O.
CONTENTS OF DECISION
The decision of the Board shall contain:
1. Findings of fact made by the
		  Board;
2. Conclusions of law
		  reached by the Board;
3. The order
		  of the Board based upon these findings of fact and conclusions of law;
		  and
4. A statement informing the
		  person whose license is involved of his right to request a judicial review and
		  the time within such request must be made.
Amended: June 4, 2021
SECTION III
ENFORCEMENT
A.
CIVIL ACTION
The Board may institute such civil suits or other legal
			 proceedings as may be required for enforcement of any provisions of ACA §
										17-87-101
			 through §
										17-87-711
			 (
Nurse Practice Act
), as amended, and related acts.
B.
CRIMINAL ACTION
If the Board has reason to believe that any person has violated
			 any provisions of the
Nurse Practice Act
, as amended, or
			 related acts for which criminal prosecution would be in order, it shall so
			 inform the prosecuting attorney in whose district any such purported violation
			 may have occurred.
SECTION
		  IV
DISCIPLINARY PROCEEDINGS
A.
DEFINITIONS
1. The term "fraud and deceit" shall include
		  but not be limited to:
a. False representation
		  of facts on an application for licensure by examination or licensure by
		  endorsement without examination or on application for renewal of
		  license;
b. False representation by
		  having another person in his/her place for the licensing examination or any
		  part thereof;
c. Forged or altered
		  documents or credentials as required for the application for original license,
		  application for renewal of license, or application for certificate of
		  prescriptive authority;
d.
		  Disclosing the contents of the licensing examination or soliciting, accepting,
		  or compiling information regarding the examination before, during or after its
		  administration;
e. Aiding,
		  abetting, assisting, or hiring an individual to violate or circumvent any law
		  or duly promulgated rules intended to guide the conduct of a nurse or other
		  health care provider;
f.
		  Prescribing any drug, medicine, or therapeutic device unless certified by the
		  Board as having prescriptive authority.
g. Engaging in the practice of nursing
		  without a valid license.
h. Payment
		  for any license, renewal license, fine, civil penalty, service or item
		  purchased by any method or devise that results in nonpayment to the Arkansas
		  State Board of Nursing or its agents.
2. The term "gross immorality" shall include
		  but not be limited to acts and conduct inconsistent with the rules and
		  principles of morality which relate to the practice of nursing and the
		  responsibilities of the licensee.
3. The term "negligence" means the failure to
		  do some act of nursing which a licensee should do, guided by those ordinary
		  considerations which regulate the practice of nursing; or the doing of
		  something which a reasonable and prudent licensee would not do under the same
		  or similar facts and circumstances in the practice of nursing. The term "gross
		  negligence" is an exercise of such minimal care as to justify the belief that
		  there was a conscious disregard or indifference for the health, safety, or
		  welfare of the patient or the public and shall be considered a substantial
		  departure from the accepted standard of care. The term "other causes" shall
		  include but not be limited to the inability to practice nursing because of
		  physical and/or psychological impairment.
4. The term "habitually intemperate or
		  addicted" shall include but not be limited to the use of hallucinogenics,
		  stimulants, depressants, or intoxicants which could result in behavior that
		  interferes with the practice of nursing.
5. The term "mental incompetence" shall
		  include those situations where a court has judged a licensee as
		  incompetent.
6. The term
		  "unprofessional conduct" includes, but is not limited to, the conduct listed
		  below:
a. Failing to assess and evaluate a
		  patient's status or failing to institute nursing intervention which might be
		  required to stabilize a patient's condition or prevent complications.
b. Failing to accurately or intelligibly
		  report or document a patient's symptoms, responses, progress, medications,
		  and/or treatments.
c. Failing to
		  make entries, destroying entries, and/or making false entries in records
		  pertaining to the giving of narcotics, drugs, or nursing care.
d. Unlawfully appropriating medications,
		  supplies, equipment, or personal items of the patient or employer.
e. Failing to administer medications and/or
		  treatments in a responsible manner.
f. Performing or attempting to perform
		  nursing techniques and/or procedures in which the nurse is untrained by
		  experience or education, and practicing without the required professional
		  supervision.
g. Violating the
		  confidentiality of information or knowledge concerning the patient except where
		  required by law.
h. Causing
		  suffering, permitting or allowing physical or emotional injury to the patient
		  or failing to report the same in accordance with the incident reporting
		  procedure in effect at the employing institution or agency.
i. Leaving a nursing assignment without
		  notifying appropriate personnel.
j.
		  Failing to report to the Board within a reasonable time of the occurrence, any
		  violation or attempted violation of the Arkansas
Nurse Practice
		  Act
or duly promulgated rules or orders.
k. Delegating nursing care functions and/or
		  responsibilities in violation of the Arkansas
Nurse Practice
		  Act
and the Arkansas State Board of Nursing
Rules
,
		  Chapter 5.
l. Failing to supervise
		  persons to whom nursing functions are delegated or assigned.
m. Practicing nursing when unfit to perform
		  procedures and make decisions in accordance with the license held because of
		  physical, psychological, or mental impairment.
n. Failing to conform to the Standard
		  Precautions for preventing contact with blood or other potentially infectious
		  materials.
o. Providing inaccurate
		  or misleading information regarding employment history to an employer or the
		  Arkansas State Board of Nursing.
p.
		  Failing or refusing a drug screen as requested by employer or Board.
q. Engaging in acts of dishonesty which
		  relate to the practice of nursing.
r. Failure to display appropriate insignia to
		  identify the nurse during times when the nurse is providing health care to the
		  public.
s. Failure to repay loans
		  to the Nursing Student Loan Fund as contracted with the Board of
		  Nursing.
t. Failure to comply with
		  the terms and conditions of the Letter of Reprimand, Board Order, Consent
		  Agreement or the Alternative to Discipline contract.
u. Failure to establish and maintain a
		  professional boundary.
v.
		  Performing a healthcare related act that is prohibited by statute or
		  regulation, or failing to perform a healthcare related act that is required by
		  statute or regulation.
w. Any other
		  conduct that, in the opinion of the Board, is likely to deceive, defraud,
		  injure or harm a patient or the public by an act, practice, or omission that
		  fails to conform to the accepted standards of the nursing profession.
7. The term "has had a license,
		  privilege to practice, certificate, or registration revoked, suspended or
		  placed on probation or under disciplinary order" refers to actions in any
		  jurisdiction;
8. The term "has
		  voluntarily surrendered a license, privilege to practice, certification, or
		  registration and has not been reinstated" refers to actions in any
		  jurisdiction.
9. The term
		  "willfully" shall include but not be limited to:
a. Continuing action after notice by the
		  Arkansas State Board of Nursing;
b.
		  Disregarding the expiration date of the license;
c. Providing false, incorrect, or incomplete
		  information to the employer regarding the status of the license;
d. Performing acts beyond the authorized
		  scope of the level of nursing for which the individual is licensed, and
		  practicing without required professional supervision;
e. Failing to follow the
Nurse
		  Practice Act
of the State of Arkansas and its Rules.