Ohio Nursing Board imposes Permanent Practice Restrictions

Posted on January 31, 2015 by Beth Collis

In our practice at Collis, Smiles and Collis, we have the privilege of representing not only Nurses before the Ohio Board of Nursing but also other professionals before their licensure Boards. This has given us the opportunity to see how various licensure Boards in Ohio handle disciplinary matters.

Each licensure Board in Ohio has its own rules and regulations and has the authority to take any action including but not limited to revocation, suspension, and/or probation of a license. Under Ohio Revised Code Chapter 119, licensees in Ohio are entitled to an administrative hearing, which allows the licensee to introduce evidence in their defense.

Despite the similar due process that is afforded to most licensees facing a disciplinary action in Ohio, we have seen that many licensure Boards in Ohio (Nursing Board, Medical Board, Psychology Board, Board of Education, Counselor, Social Work and Marriage and Family Therapist Board) impose very different sanctions, despite the relatively similar nature of the offense.

In our experience, we have seen that, generally, licensure Boards in Ohio can be more strict/punitive than licensure Boards in other States in terms of sanctions.

Even within Ohio, based on our experience, the Ohio Board of Nursing imposes permanent practice restrictions on its licensees to a far greater extent than other licensure Boards in Ohio. Generally, a permanent practice restriction limits a Nurse’s ability to work in the following settings: hospice, home health, as an independent provider for an Ohio agency, as a private duty nurse, as a volunteer, as well as any position involving management of nursing or supervision or evaluation of nursing practice, including but not limited to Director of Nursing, Assistant Director of Nursing, or Nursing Supervisor. In certain instances, the Ohio Board of Nursing will include language in a Consent Agreement or Order that allows a Nurse to request on a case-by-case basis approval to work in an otherwise restricted position, however, such requests are given close scrutiny and are often denied.

Permanent practice restrictions are often imposed in cases in which a Nurse has been convicted of a crime, found to be addicted to drugs or alcohol, or where a Nurse has practiced below the standard of care. In certain cases, the Ohio Board of Nursing imposes practice restrictions that prohibit a Nurse from working in any position that would require a Nurse to have oversight or control over financial dealings.

Permanent practice restrictions place a significant hardship on a Nurse’s employment opportunities. Although we have seen Nurses with permanent practice restrictions on their license obtain employment, permanent practice restrictions create an enormous hurdle to overcome in terms of obtaining meaningful employment because, in our experience, many employers will simply not consider any Nurse who has permanent practice restrictions on their license.

Historically, it has been our experience that the Ohio Board of Nursing imposed permanent practice restrictions on a Nurse in cases where the facts of a case fully justified doing so based on significant practice or impairment issues, or in cases where a Nurse had been repeatedly disciplined. Presently, however, we are seeing the Ohio Board of Nursing impose permanent practice restrictions on Nurses in greater numbers and on their first disciplinary action.

While there are cases in which permanent practice restrictions are justified to protect the public, obtaining the advice of experienced legal counsel before you sign a Consent Agreement containing permanent practice restrictions or before undertaking to represent yourself at an Administrative Hearing (which could result in a Ohio Nursing Board Order imposing permanent practice restrictions) is recommended.

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

It’s important to have an Experienced Attorney for your Nursing license defense

Posted on December 3, 2014 by Beth Collis

Nurses often report to us that they are concerned that they will appear to the Nursing Board to be “hiding something” or trying to be uncooperative if they have an attorney represent them before the Ohio Board of Nursing in a disciplinary case or at a Hearing.

Nothing could be further from the truth.

Obtaining experienced legal counsel to help a nurse through the Nursing Board’s disciplinary process can be beneficial for the Nurse to understand the process and to assist the Nurse with resolution of their case.

Nurses are often surprised to learn that if they proceed to a Hearing without their own legal counsel, in most cases, they will be the ONLY nurse in the Hearing room. At the Hearing, the Nursing Board is represented by their own attorney from the Office of the Ohio Attorney General, who is assigned to prosecute the case on behalf of the Nursing Board. In certain instances, a representative of the Nursing Board, who is also an attorney, will also appear at the Hearing on behalf of the Nursing Board. The Hearing is conducted in front of a Hearing Examiner, who is also an attorney. If the Nurse does not have their own legal counsel at the Hearing, the Nurse will be at the unfortunate disadvantage of having to present their case on their own without the benefit of their own independent legal counsel.

In some cases, nurses are offered a Consent Agreement, which is an agreed upon Contract which outlines disciplinary terms in lieu of proceeding to a Hearing. Consent Agreement are drafted and negotiated by the Board’s lawyers. If the Nurse does not have their own legal counsel negotiating the Consent Agreement, the Nurse will be at the unfortunate disadvantage of having to negotiation with the Board’s attorney a binding Contract without the benefit of having their own independent legal counsel to be able to more fully consider whether the Consent Agreement being offered is in their best interest..

Your worked hard for your Nursing license. The Nursing Board has its own lawyers. Representing yourself at Hearing or in negotiating a Consent Agreement could result in the Nurse taking an action not in their best interest or agreeing to a disciplinary term they did not understand. An nursing license defense attorney with experience in these matters can help the Nurse understand the process and assist the Nurse with resolution of their case.

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

Who Monitors the Ohio Board of Nursing?

Posted on August 1, 2014 by Beth Collis

The Ohio Board of Nursing’s mission is to “actively safeguard the health of the public through the effective regulation of nursing care.” http://www.nursing.ohio.gov/ The Board is responsible for issuing licenses to nurses, to regulate the education of nurses, and to discipline nurses who have violated the provisions of the Ohio Nurse Practice Act. (R.C. 4723). However, most nurses are surprised to learn that the Nursing Board is not created to “protect” nurses but has been created to “protect the public”.

In its role as an administrative licensing agency, the Board holds immense power. The Board has the power to license, deny a license, suspend or revoke a license. The Board can initiate an investigation, may order a licensee to a psychiatric or chemical dependency evaluation. (R.C. 4723.28(G)). However, the Board is not required to complete investigations in any time frame (no statute of limitations) and the Board is NOT REQUIRED to notify a nurse if and when an investigation has been closed. I often contact the Board after an investigation has been pending for months (or even years) to learn that the investigation has been closed and that the nurse was never notified that it was closed.

There is a check and balance system in place for the Nursing Board. Prior to denying an applicant a nursing license, or taking an action against a nurse (ie. suspending or revoking their license) the nurse is entitled under the U.S., Ohio Constitutions and Ohio State law (R.C. 119) the right to due process of law. This means that prior to denying a license or disciplining a nurse, the Board is required to provide the nurse with notification of the charges and a right to be heard (a hearing). Failure to timely request a hearing may bar the nurse from providing any evidence on their behalf.

An adverse decision of the Board may also be appealed to the local Court of Common Pleas. However, most nurses have neither the money, time nor inclination to appeal an adverse decision of the Board to the Courts. This is an expensive process that can take years to complete. In addition, the Courts are reluctant to reverse a decision of the Board and have shown that it will NOT reverse a sanction of the Board simply if it feels the sanction is too harsh.

A second check on the Nursing Board is the Office of the Ohio Inspector General. The Inspector General’s office is the Watchdog that is responsible for investigating state employees and state agencies. Complaints may be filed with the Inspector General by going to their website at: http://watchdog.ohio.gov/FileaComplaint.aspx

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 Collis, Smiles and Collis at (614) 486-3909.

Be honest when filing an application or renewal with Ohio Board of Nursing

Posted on May 21, 2014 by Beth Collis

Honesty is always the best policy when working with the Ohio Board of Nursing.

Professionals should know that before submitting information to a licensing authority the information must be accurate. Whether it is submitting the responses on an initial application for a license, or answering the questions on the bi-annual renewal of a license, the responses must be truthful.

However, I am often asked, “how will the Board know if I answer a question on my renewal application or original application incorrectly?” We never know how the Board may be notified of a violation of their laws and rules. Complaints to the Nursing Board can be anonymous, and the complainant is immune from liability (absent a finding of bad faith in their report). This means that you can be reported to the Board without your knowledge and you will never been provided with a copy of the complaint or the name of the complainant. (O.R.C. 4723.28(H) and (I)(1))

You may have a neighbor, employer or co-worker file a complaint against you with the Board alleging that you had a DUI that you failed to disclose to the Board or violated a section of the Ohio Nurse Practice Act. If you have reported this infraction on your application and/or on your renewal, it goes a long way to possibly having the investigation closed with no disciplinary action. However, if the Board goes back and pulls your application or renewal form and finds that you failed to disclose this information to the Board, the Board has the authority under O.R.C. 4723.28(A) to take an action against your license for providing false or fraudulent information to the Board.

Even without a formal complaint, the Board has the authority to open its own investigation if it learns of a violation of the Nurse Practice Act. If a Board investigator reads a news article about a nurse who has been charged with a DUI or is admitted into a diversion program by the Court, these types of actions can lead the investigator to open an investigation against the nurse. (Please note, that the nurse does not need to self report convictions or violations to the Board until the time of renewal of the license. However, on the renewal application responses need to be truthful and accurate.)

So, when applying for a license or completing a renewal application never ask yourself,”how will the Board ever find out?” The question you should ask yourself is, “what is the right answer and how can I best provide that information to the Board.”

While I encourage nurses to be honest with the Board, I always encourage the nurse to seek experienced legal counsel to assist them if they have any questions about how to respond to specific questions or if they are called to attend a meeting with a Board investigator.

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

Ohio Nursing Board Investigations of Nurses during Inpatient or Intensive Outpatient Treatment

Posted on March 25, 2014 by Beth Collis

Tackling addiction to drugs or alcohol is a difficult decision to make and a lifelong challenge to maintain. It is important that you make this decision without jeopardizing your professional license.

Frequently, a nurse will enter a drug or alcohol rehabilitation program due to employer discipline or termination from employment. In certain instances, both the Nursing Board and law enforcement will be notified about the employment action.

Because of its responsibility for patient safety, the Nursing Board can and should take these situations very seriously. Nursing Board investigators frequently contact nurses who are participating in intensive rehabilitation programs to question them about their addiction and employment issues. As part of the investigatory process, nurses are often requested to place their license on inactive status as a “sign of cooperation with the Board investigation” or as a “good faith commitment to their sobriety”.

There are certain times when going on inactive status is the right choice. It allows the nurse time to obtain treatment and often provides more time for the Nursing Board investigation, which gives the nurse more time to strengthen his or her sobriety. In certain instances, a nurse can also be given credit by the Nursing Board for the period of time during which the nurse was on inactive status towards any period of license suspension imposed by the Nursing Board in a disciplinary action.

However, prior to making the decision to go on inactive status, a nurse should make sure they are in the correct mental or emotional state. Going on inactive status is a very serious decision. When a nurse is in treatment, quality of thought may not be at its best and, as with other important family or career matters, it is often not the best time to be making serious, long lasting decisions. A nurse should also be aware that the Nursing Board can impose significant requirements on a nurse in order to have a license reinstated, including but not limited to undergoing evaluation and/or treatment for drugs or alcohol or psychological condition, successfully completing negative urinalysis for a period of time determined by the Board, completing additional continuing education, and/or completing a practice improvement plan. Each situation is different and will be handled on a case by case basis by the Nursing Board.

Once the intensive portion of the treatment program is completed, there will be time to decide whether to communicate with a Nursing Board investigator and/or whether to voluntarily do anything regarding the status of your license. Such decisions should be made with a clear mind and after a careful consideration of the facts in your case. The recommendations of experienced nursing license defense legal counsel can be of assistance.

As always, if you have any questions about the Ohio Board of Nursing or this post, please feel free to call one of the attorneys at Collis, Smiles and Collis at 614-486-3909 or check out our website at http://www.collislaw.com.

Nursing Board discipline .. when to take the deal

Posted on March 10, 2014 by Beth Collis

Each year, hundreds of nurses face a possible disciplinary action by the Ohio Board of Nursing. Sanctions can include a reprimand, probation, suspension, license limitations, and even license revocation. In many cases, the nurse is offered a Consent Agreement, which is similar to a plea bargain in a criminal case, in which the nurse can agree to the terms of discipline. I am often asked by my clients, “Should I accept the Consent Agreement or should I reject the offer and proceed to a Hearing?”

It is important to first note that whether the nurse enters into a Consent Agreement or proceeds to a Hearing, the Board will issue a final Order against the nurse and that the Order and the sanction imposed against the nurse is a public record which will be on the Board’s website, reported to the National Practitioner Data Bank and www.nursys.com, and published in the Nursing Board’s quarterly magazine, Momentum.

There are pros and cons to accepting a negotiated Consent Agreement. By entering into a Consent Agreement, the nurse often has the ability to negotiate what factual information concerning the disciplinary action will be included in the Consent Agreement. Because a disciplinary action is open and available to the public, being able to negotiate the wording of the Consent Agreement is important. Additionally, the nurse can often negotiate WHEN the sanction will take place or when they will start the conditions for reinstatement of their license (if their license is suspended). Also, the nurse avoids the stress, expense, and uncertainty of a Hearing. If a nurse proceeds to a Hearing, nurse has no ability to negotiate the factual summary that is included in the Order or negotiate the sanction to be imposed. The Board has the sole discretion to issue any sanction as noted above.

However, there can be drawbacks to accepting a Consent Agreement. Consent Agreements are negotiated by only one Board member. In negotiating a Consent Agreement, the nurse waives their right to a Hearing and often regrets not having their “day in court” to tell their “side of the story.”

In determining whether to negotiate a Consent Agreement or proceed to a Hearing, the nurse should consider all options and potential outcomes. These options and potential outcomes, as well as the nurse’s final decision, should be carefully considered, taking into account how the Board has handled similar cases in the past. Whether through a Consent Agreement or a Hearing, the sanction that is imposed in each case depends on the individual facts and circumstances of the matter.

As always, if you have any questions related to this post or the Ohio Board of Nursing in general, please feel free to contact one of the attorneys at Collis, Smiles in Collis, LLC at 614-386-3909 or email me at beth@collislaw.com

Ohio Nurse Applicants – The NCLEX Program Is Going Paperless in 2014

Posted on December 10, 2013 by Beth Collis

The Ohio Board of Nursing recently announced that starting January 2014, the NCLEX program will transition to a paperless program. The Nursing Board’s website located at http://www.nursing.ohio.gov/index.htm provides further information regarding the transition to a paperless program. Highlights from the Nursing Board’s website announcement include:

NCLEX Examination Candidate Bulletin: The NCLEX Examination Candidate Bulletin will no longer be distributed in a hard copy version. Boards of nursing, candidates and education programs will access the Candidate Bulletin via the NCSBN website.

Eights Steps of the NCLEX: This Candidate Bulletin insert will no longer be distributed in a hard copy version. This abbreviated reference guide to NCLEX processes will be enhanced to include additional information and will also be available on the NCSBN website. The name of this document will be changed to the NCLEX Information flyer.

Candidate Bulletin At-A-Glance: Due to the enhancements of the Eight Steps of the NCLEX, as well as the continued accessibility of the Candidate Bulletin, the At-A-Glance piece will no longer be published as either an electronic or hard copy version.

Money Order, Certified Check and Cashier Check Payments: Money order, certified check and cashier check payments will no longer be accepted. Beginning Jan. 1, 2014, all candidates and third parties will be required to register and pay for exam registrations through the Pearson VUE website or over the phone (866.496.2539) with a credit card, debit card or prepaid card.

Authorization to Test (ATT) Letter: Once the board of nursing makes a candidate eligible, that candidate will receive their ATT by email. The ATT continues to serve as the candidate’s notice that they may schedule their NCLEX at a Pearson Professional Center. Beginning Jan. 1, 2014, the paper copy of the ATT letter will no longer be necessary for test admittance. To gain access to the NCLEX, candidates must present one form of acceptable identification that matches the name exactly as the candidate provided when registering. If the candidate’s ID does not match the name exactly as they registered with, the candidate will not be admitted to test and will have to reregister and pay another examination fee.

“You’ve Completed the NCLEX Examination but Still Have Questions” Brochure: This brochure is currently given to candidate’s at the test center on the day of their exam. Beginning Jan. 1, 2014, this information will be sent to a candidates email address shortly after they have completed their exam and will also be available on the NCSBN website.

For additional information see http://www.nursing.ohio.gov/index.htm

Nursing license suspension can result from a conviction

Posted on November 26, 2013 by Beth Collis

Under the Ohio Nurse Practice Act, R.C. 4723, the Ohio Board of Nursing can take an action against a nurse for criminal convictions, even if they are NOT related to the practice of nursing.

R.C. 4723.28 (B)(3) allows the Nursing Board to take an action against a nurse who has been convicted of a misdemeanor in the course of practice. This seems obvious. However, under R.C. 4723.28(B)(4) the Nursing Board may take a disciplinary action against a nurse who has been convicted of any felony or a “crime involving gross immorality or moral turpitude.” So even crimes that are not related to the practice of nursing can result in a sanction on your nursing license.

Crimes involving gross immorality or moral turpitude are generally defined as crimes of violence or that “shock the conscience.” Crimes such as for assault or child neglect, easily come to mind as crimes that would involve “gross immorality”. However, crimes involving financial dealings (passing bad checks, bank fraud, tax evasion) have also been found to meet this standard.

The Nursing Board also has the authority to take a disciplinary action against a nurse if they do not have a conviction, but are otherwise permitted to enter into a pre-trial diversion program or are found judicially eligible for a treatment in lieu of conviction program. So, even when they don’t have a formal conviction, the Nursing Board is still authorized to take a disciplinary action against the nurse.

The Nursing Board meets six times per year at monthly meetings where it decides, after an investigation, if a disciplinary action should be taken against a nurse. The Nursing Board met last week and sent letters to over eighty (80) Ohio licensed nurses proposing to take a disciplinary action against them. For many of these nurses, the Board is proposing to discipline them for criminal convictions.

If the Board chooses to discipline a nurse, the nurse will be sent a Notice and given a right to a hearing. It is important that the nurse respond to this Notice in a timely fashion to request a hearing. The Board handles each case on an individual basis and the sanction it chooses to impose on a nurse is often dependent on the information the Nursing Board learns from the nurse or their legal counsel.

National Prescription Drug Take-Back Day October 26, 2013

Posted on April 24, 2013 by Beth Collis

Saturday, October 26, 2013 from 10am-2pm is another National Prescription Drug Take-Back Day. For information on where to take unused and unwanted medications you may call 1-800-882-9539 or go to:
http://www.deadiversion.usdoj.gov/drug_disposal/takeback/

Before the previous take-back day in April 2013, I entered the following post:

I regularly meet with and represent nurses before the Ohio Board of Nursing who are addicted to prescription medications. Some nurses take medications from work, however, many nurses tell me that they take medications from home that have been prescribed to other family members or that they buy them off the street.

There is also a disturbing trend in this country of teenagers and young adults who go to parties and pass around bowls of prescription medications they have obtained from home, which they take in an effort to “get high”. All too often, prescription drugs are easy to obtain and are easily misused and abused, sometimes leading to devastating consequences.

As nurses, I urge you to support and spread the word of the United States Department of Justice, DEA National Prescription Drug Take Back Day, which is scheduled for Saturday, October 26, 2013.

According to the DEA:

In the five previous Take-Back events, the DEA, in conjunction with our state, local, and tribal law enforcement partners, has collected and removed from circulation more than 2 million pounds of prescription medications.

The National Prescription Drug Take-Back Day aims to provide a safe, convenient, and responsible means of disposal, while also educating the general public about the potential for abuse of these medications.”

As always, if you have any questions about this post or about the Ohio Board of Nursing, please feel free to contact any of the attorneys at Collis, Smiles and Collis, LLC at 614-486-3909.

How to request a hearing with the Ohio Board of Nursing

Posted on February 1, 2013 by Beth Collis

I have posted about requesting a hearing with the Nursing Board in the past, but this information is so important to Ohio licensed nurses that I thought it was important to run this post again.

The Ohio Board of Nursing meets six times per year for regularly scheduled Board meetings. At these Board meetings, the Members of the Board vote to initiate disciplinary actions against a nurse. This can result in a nurse being issued a Notice of Opportunity for Hearing, which outlines charges that have been brought against the nurse or can result in an Immediate Suspension or Automatic Suspension of a nursing license. The Board met last week (January 16-17, 2014) and issued dozens of notices to nurses throughout the state.

Nurses who are subject to a potential disciplinary action by the Nursing Board will receive the Notice of Opportunity for Hearing or Notice of Immediate or Automatic Suspension of their licenses by certified U.S. mail. If you are issued a Notice, you have thirty (30) days from the date the Notice is MAILED to request a hearing. Failing to request a hearing within thirty (30) days will bar the nurse from being able to present any defense of his/her license to the Board.

To request a hearing with the Nursing Board, you simply need to submit a request in writing to the Board that states: “I am writing to request a hearing with the Ohio Board of Nursing”. The request should be submitted as instructed in the Notice. I also recommend that you call the Board a few days after you submit the request to verify that it was received.

You do not have to submit a written explanation or defense to the Board when you request the hearing. This type of information can be submitted to the Board after the hearing is scheduled. After the Board receives the hearing request, you will be sent a letter scheduling the hearing with the Board.

In many cases, nurses are able to negotiate a settlement agreement with the Board that will avoid them having to proceed to a hearing. This agreement, known as a Consent Agreement, is a binding agreement between the nurse and the Board that provides an opportunity for the nurse to present mitigating information and sets forth the discipline taken against the nurse. However, even if the nurse wants to attempt to negotiate a Consent Agreement with the Board, they still MUST first request a hearing as outlined above.

Nurses are not required to have an attorney to help them through the Board’s disciplinary process. However, whether the nurse goes to hearing or negotiates a Consent Agreement, the Board will be represented by an attorney or by an Assistant Attorney General who will be assigned to the case. So, I always advise that the nurse seek experienced legal counsel to represent them before the Board. You worked hard for your nursing license. You should work just as hard to defend yourself before the Board.

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

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