Ohio Nursing Board Disciplinary Process…What to expect

A nurse alleged to have violated the Ohio Board of Nursing’s (“Nursing Board”) laws or rules is subject to discipline by the Nursing Board.  Actions for which a nurse can be disciplined can be found here: http://codes.ohio.gov/orc/4723.28v1.  This article is a general guideline to the Nursing Board’s disciplinary process.

Stage One – Complaint

Any member of the public is permitted to file a Complaint with the Nursing Board.  Additionally, under Ohio Revised Code §4723.34(A), an employer of nurses who knows or has reason to believe that a current or former nurse employee engaged in conduct that would be grounds for disciplinary action by the Nursing Board must report to the Nursing Board the name of such current or former employee.  The Nursing Board’s Complaint form can be found here: http://www.nursing.ohio.gov/PDFS/Forms/2011ElecComplaintForm.pdf.  Generally, the Complaint includes the identification of the Complainant, the nurse at issue, and the allegations of the conduct at issue.

Stage Two – Board Investigation

Following the Nursing Board’s receipt of a Complaint, the Complaint is assigned to one of the Nursing Board’s Investigators (also called a Compliance Agent).  Typically, the Investigator will speak with and/or obtain documents regarding the allegations in the Complaint from the person who filed the Complaint.  In many instances, the Investigator will also contact the nurse at issue either by phone or email and request to speak with the nurse about the allegations in the Complaint or request that the nurse provide a written explanation of the allegations in the Complaint.  Generally, a nurse’s participation in the Board’s investigation is voluntary.  It is recommended to obtain legal counsel before speaking with or responding in writing to an Investigator, however, after consulting with legal counsel, there are circumstances when it is recommended to cooperate with the Investigator to the extent that it is in the best interest of the nurse to do so.

Stage Three – Notice

Following the Investigation, the Nursing Board’s Supervising Member reviews the matter and decides whether to not proceed with disciplinary action against the nurse.  A decision not to proceed with disciplinary action can be made because there is not sufficient evidence to prove that a violation of Nursing Board law or rule has occurred or, although there is evidence to prove that a violation of a Nursing Board law or rule occurred, the Nursing Board nevertheless determines that such violation is a “minor violation”.  The Nursing Board’s policy concerning minor violations can be found here: http://www.nursing.ohio.gov/PDFS/Discipline/BoardPolMinorVio4723.pdf.  If the Supervising Member decides to proceed with disciplinary action, a written Notice of Opportunity for Hearing (or Notice of Suspension) is issued to the nurse in which the nurse is given the opportunity to request and have an Administrative Hearing in connection with the allegations in the Notice.  The time frame (typically 30 days) and manner (typically in writing or email) in which the nurse may request a Hearing is set forth in the Notice.  If the nurse does not request a Hearing either timely or in the manner set forth in the Notice, the nurse will be deemed to have waived their rights to a Hearing and the Nursing Board has authority to impose discipline it deems appropriate without further input from the nurse.

Stage Four – Consent Agreement

In certain cases, the Nursing Board will offer a Consent Agreement to the nurse instead of having the Hearing.  A Consent Agreement is a written agreement between the Nursing Board and the nurse specifying certain admissions by the nurse and detailing the discipline to be imposed upon the nurse.  Consent Agreements have a broad range of discipline including reprimand, probation, and/or suspension, and have disciplinary requirements including but not limited to fines, CEUs, background checks, employer reports, drug screens, dependency and/or psychological evaluations, treatment provider and medication reports, and temporary or permanent practice and/or narcotic restrictions.  It is recommended to obtain legal counsel before signing a Consent Agreement so that the nurse understands their rights, the terms and conditions of the Consent Agreement, and (although no two cases are identical) whether or not the discipline in the Consent Agreement is reasonably similar in scope to similarly situated cases.  At the Consent Agreement stage, there may also be some opportunity negotiate the terms and conditions of the Consent Agreement.

Stage Five – Hearing

If the Nursing Board does not offer a Consent Agreement or if the nurse does not accept a Consent Agreement offered by the Nursing Board, the matter will proceed to the Hearing.  At the Hearing, the Nursing Board is represented by an Ohio Assistant Attorney General who presents the Nursing Board’s evidence concerning the allegations in the Notice to a Hearing Examiner.  The nurse may either be represented by legal counsel or by themself and may present evidence refuting the allegations in the Notice, as well as evidence of the nurses good nursing practice and character either by their own testimony and/or through character witnesses and other documentary evidence.  The Hearing Examiner receives all evidence and prepares for the Nursing Board a written Report and Recommendation which outlines all the evidence received at the Hearing and recommends a discipline.

Stage Six – Board Meeting

The Report and Recommendation is considered by the full Nursing Board at a regularly scheduled Board Meeting.  The Nursing Board meets every other month and its 2016 schedule can be seen here: http://www.nursing.ohio.gov/PDFS/2016-2018%20Meeting%20Schedule.pdf.  Typically, the nurse (and counsel, if represented) will present a statement to the Nursing Board in their support.  The Nursing Board has the authority to adopt the recommended discipline or it can reject the recommended discipline and order such discipline as it deems appropriate under the circumstances.  Although a nurse has the right to appeal the Nursing Board’s decision to the Court of Common Pleas, the Nursing Board’s decision can be overturned by the Court only where the Court determines that the Nursing Board’s decision was not supported by reliable, probative, and substantial evidence and is not in accordance with law (See Ohio Revised Code §119.12(D)).

Conclusion – Know Your Rights

At each stage of the Nursing Board’s disciplinary process, a nurse has legal rights.  It is recommended to obtain legal counsel in Nursing Board disciplinary matters because failure to understand and/or exercise a nurse’s legal rights can result in unintended consequences some of which cannot be reversed.  Contact Collis Law Group LLC at (614) 486-3909 if we may of assistance to you in your Nursing Board matter.

The information in this article is general in nature and is not, nor intended to be, legal advice.  You should consult an attorney for advice regarding your individual situation. © 2016 Collis Law Group

Effective February 1, Nursing Board to reduce time limit for nurses to personally appear to defend

Despite efforts by Collis Law Group and others, the Ohio Board of Nursing recently voted to reduce the amount of time which may be given to legal counsel to present a disciplinary case to the Board after a nurse’s Administrative Hearing.

At the November 2015 Board meeting, the Board changed its rule governing the amount of time which may be given to legal counsel to summarize a case concerning a nurse facing discipline after an Administrative Hearing.

The Board’s old rule permitted the Board to give legal counsel not more than 10 minutes to summarize a disciplinary case at the time the Board considers what discipline it will impose.  The new rule, effective February 1, 2016, reduces the time allotment to not more than 7 minutes.

At the November 2015 Board meeting, Collis Law Group attorney, Todd Collis, advocated for all Ohio nurses by suggesting to the Board that reducing the time allotment was not in the best interest of Ohio nurses or the Board.

Collis argued that it is unreasonable to afford legal counsel only 7 minutes in which to summarize a case for the Board under circumstances where a nurse is facing potentially career-ending discipline.  Collis also observed that the reduction in the time allotment would not result in any meaningful time savings for the Board and that the reduction in the time allotment might be viewed as curtailing access to the Board at a critical moment in a nurse’s career and life.

Effective February 1, 2016, Ohio Administrative Code 4723-16-12(C) provides that legal counsel who address the Board shall be given not more than seven minutes in which to do so. While this rule may appear to be a minor change, when a nurse is defending their professional license, they should be given more than just seven minutes to personally appear before the Board Members prior to the Board issuing a final sanction against their professional license. (This rule does not limit the amount of time that the nurse may present his/her defense at an administrative hearing.)

If you have any questions about this post or the Ohio Board of Nursing in general, please contact one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com.

46 Ohio nurses did not defend themselves?!

 

Yesterday, I attended the January meeting of the Ohio Board of Nursing.  On the morning agenda, the Members of Nursing Board voted to issue a Notice of Opportunity for Hearing, Notice of Immediate Suspension, or Notice of Automatic Suspension to over 60 nurses.

Additionally, the Nursing Board voted to impose a final disciplinary sanction (suspension, revocation, or limitation) on over 100 nurses’ professional licenses in Ohio.  I was struck and saddened to learn that in 46 casesthe nurse failed to request a hearing and never introduced ANY evidence in their defense.

If a nurse fails to request a hearing, the Nursing Board is authorized to impose any sanction from dismissal of the case to permanent revocation of the nurse’s license.  If a nurse fails to request a hearing, the nurse may not submit any evidence in their defense.

It cannot be understated the positive effect that can result when a nurse presents “their side of the story”, explains what happened, and puts the Nursing Board’s allegations into context.  The Nursing Board members like to see that the nurse understands the gravity of the allegations, accepts responsibility (where warranted), and fights for their license.  In certain instances, where the nurse presents evidence rebutting or refuting the Nursing Board’s charges, the Nursing Board has been known to dismiss certain counts in the Notice or dismiss an entire case against the nurse.

At the meeting yesterday, based on mitigating evidence that was introduced in one case, the Nursing Board modified the recommendation of the Hearing Examiner from a 6 month suspension to no suspension and simply placed the nurse on probation.

As a nurse, you have worked hard for your professional license.  If you are notified by the Nursing Board that they propose to take an action against your license, request a hearing and defend yourself.  While you may represent yourself before the Nursing Board, please note that the Nursing Board will be represented by an attorney from the Office of the Ohio Attorney General who will prosecute the case on behalf of the Nursing Board.  It is recommended that you should also have experienced counsel to represent you in this stressful and difficult process.

If you have any questions about this blog post or the Ohio Board of Nursing in general, please feel free to contact one of the attorneys at the Collis Law Group, LLC at 614-486-3909 or email me at beth@collislaw.com.

Ohio Board of Nursing Alternative Program: Underutilized by the Ohio Board of Nursing and Often a Bad Option for Nurses

Many nurses who realize they have a chemical dependency problem consider applying for the Ohio Board of Nursing’s Alternative Program for Chemical Dependency. The Alternative Program is a program designed as an alternative to public discipline for the Board to monitor nurses who suffer from chemical dependency issues who want to obtain treatment.

The Alternative Program could be an excellent option for nurses who know they need treatment in which to obtain treatment and not have it publically registered as “discipline” on their Ohio license. However, nurses should be aware of the following:

Limited Eligibility

Ohio Administrative Code 4723-6-02(B) prohibits a nurse from participating in the Alternative Program if the Board determines that the nurse’s compliance cannot be effectively monitored. This rule also specifies at least 12 different reasons why the Board can refuse to permit a nurse to participate in the Alternative Program.

Limited Admission

As of June 30, 2014, there were only 73 active cases in the Alternative Program (source: June 30, 2014 Nursing Board Annual Report). In Fiscal Year 2014, the Board reported that it mailed out 41 applications, received 32 completed applications, and admitted only 14 applicants.

License Inactivation

Most nurses are not aware that to even be considered for admission to the Alternative Program, they must inactivate their nursing licenses. Unfortunately, being denied admission to the Alternative Program does not automatically reactivate the nurse’s license. Instead, the nurse must request that his or her license be reactivated, a process for which there is also no timeline imposed on the Board. In our practice, we have seen nurses wait for months after having been denied admission to the Alternative Program before the Board re-activates their license.

Application Process

Alternative Program applicants must also complete a rigorous application detailing their chemical dependency history, including diagnoses and treatment, relapses, and related agency or law enforcement involvement. In addition, the applicant must undergo a complete chemical dependency evaluation and authorize the disclosure of all records related to the evaluation to the Board. There is no timeline imposed upon the Board for deciding whether to admit an applicant to the Alternative Program. Many applicants are denied admission without explanation.

Limited Confidentiality

In our experience, if a nurse is denied entry into the Alternative Program or is terminated from the Alternative Program, the Board uses the information that the nurse disclosed to the Board in the Alternative Program application to form the basis of a public disciplinary action against the nurse. Although the Alternative Program is described as a confidential program, there are limits to this confidentiality and many nurses are unaware of these limitations.

Rigorous Requirements

Based on the Alternative Program agreements we have reviewed, the Board imposes rigorous requirements on the nurse participating in the Alternative Program, including but not limited to monitoring periods sometimes in excess of monitoring periods we have seen in public disciplinary matters.

Conclusion 

Prior to even requesting an Alternative Program Application from the Ohio Board of Nursing, consider obtaining the advice of experienced legal counsel to help you determine how best to proceed in your case.

As always, if you have any questions about this post or about the Ohio Board of Nursing in general, please feel free to contact one of the attorneys at Collis Law Group, LLC at 614-486-3909. You may also look for more information at http://www.collislaw.com.

Death and dying, from a nurse’s perspective

Since a close relative of mine passed away a little over a year ago, I have been fascinated with reading stories and articles related to end of life issues. So often in America, death and dying is a taboo subject that everyone dances around and which no one seems to be willing to openly and honestly discuss. As we are all going to die one day, I find it rather amazing that people really don’t want to discuss it.

Because I regularly represent nurses who are seeking initial licensure or are the subject of an investigation by the Ohio Board of Nursing, I was curious to see what type of training nurses receive related to end of life issues and how nurses deal with the death of their patients.

I recently came upon two books by a nurse, Theresa Brown, who is an oncology nurse from Pittsburgh, who addresses death and dying from a nurse’s perspective. In her recent book, The Shift, Brown follows the lives of four cancer patients over a 12 hour shift. Brown raises many important issues related to providing nursing care to patients in their homes, listening to patients and family members deal with their fears, and helping her patients deal with the inevitable future.

In her previous book, Critical Care, A New Nurse faces Death, Life and Everything in Between, Brown highlights her first year as a nurse. This book has been used by many nursing schools as part of their curriculum.

A story highlighting Brown and her books can be found on NPR at:

http://www.npr.org/sections/health-shots/2015/09/28/443468965/a-nurse-reflects-on-the-privilege-of-caring-for-dying-patients

I highly encourage all nurses (and others interested in end of life issues) to listen to the NPR story and consider reading Brown’s books or other literature on end of life issues.

As always, if you have any questions about this post or the Ohio Board of Nursing in general, please feel free contact one of the attorneys at the Collis Law Group at 614-486-3909 or contact me at beth@collislaw.com.

When the Ohio Board of Nursing can automatically suspend a license

The Nurse Practice Act in the State of Ohio (R.C. 4723) sets out certain instances when the Nursing Board can take a disciplinary action against a nurse. In most instances, the Nursing Board will issue a Notice of Opportunity for Hearing to the nurse that addresses the allegations against the nurse, note the Code section that the nurse is alleged to have violated, and offer the nurse an opportunity to request a hearing prior to the Nursing Board issuing any sanction against a nurse.

However, in instances when the Nursing Board believes that allowing the nurse to continue to practice presents danger of “immediate and serious harm to the public,” the Nursing Board can suspend the license prior to offering the nurse a hearing. In previous blog posts, I have noted instances when a nurse has been convicted of a serious crime (aggravated murder, murder, gross sexual imposition, etc.) in which the Nursing Board automatically suspended a license prior to offering the nurse a hearing.

The Nursing Board has automatically suspended a nursing license prior to offering the nurse a hearing though in less seriously instances. For example, if a nurse is under probation with the Nursing Board and subject to terms in an Adjudication Order or Consent Agreement and violates any terms of the Agreement the Nursing Board will automatically suspended their nursing license prior to offering them a hearing. Violations of Consent Agreements (such as testing positive on a random drug test or failing to notify the Nursing Board of their employment) has triggered an automatically suspension.

Once the license has been automatically suspended, the nurse can request a hearing and present evidence in their defense. However, during the hearing process or while negotiating terms of an Amended Consent Agreement, the nurse’s license remains suspended. It is imperative when entering into any Consent Agreement with the Nursing Board that the nurse understands the terms of the Consent Agreement, because failure to comply with the terms, limitations or conditions of the Consent Agreement can result in an automatic suspension of their nursing license.

As always, if you have any questions about this post or the Ohio Board of Nursing in general, please feel free to contact one of the attorneys at the Collis Law Group at 614-486-3909 or email me at beth@collislaw.com.

Ohio RNs, if you waited to renew your license at the last minute it may have expired!

If you are a Registered nurse in Ohio, you were required to renew your nursing license by August 31, 2015. This year, all renewals are required to be filed online. This caused many problems for nurses who could not access the Board’s online renewal system, did not have their access code and password,  or who responded “Yes” to any of the renewal questions.

Nurses who responded “Yes” to any of the renewal questions were not renewed by the Board, but were requested to supplement their renewal with a written explanation and documents to support the affirmative response. Until the nurse submitted the supplemental information to the Nursing Board, their renewal was considered “incomplete” and their license was not renewed.

On September 1, 2015, if your nursing license was not renewed, it expired. You May NOT work as a nurse until your nursing license has been renewed!

As you can imagine, in the days leading up to the August 31 expiration date, the Nursing Board was swamped with nurses attempting to renew their licenses. Given the volume, many licenses were not renewed. This is the message that was issued by the Nursing Board:

From the OBN website:

ALERT: eLicense Renewal System, August 31, 2015

Due to an Ohio eLicense systems issue, some registered nurses who submitted renewal information on or about August 31, 2015, have not been processed. If a license credential indicates “ACTIVE IN RENEWAL – INCOMPLETE”, the license renewal application should be processed by 5:00 pm on September 2, 2015. If you have questions about a license in this status after August 31, please email: incompleterenewal2@nursing.ohio.gov. The State IT group is working diligently to resolve this system issue. We regret the difficulties you are experiencing.

In the future, we highly encourage nurses to complete their renewals in June or July and not wait until the week their license is set to expire.

As always, if you have any questions about this post or the Ohio Board of Nursing in general, please contact one of the attorneys at the Collis Law Group at 614-486-3909 or email me at Beth@collislaw.com.