Tag Archives: Notice of Opportunity for Hearing

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

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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

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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

Permanent Practice Restrictions on Nursing Licenses

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For violations of the Nurse Practice Act in Ohio, the Nursing Board can impose a range of sanctions against a nurse which can include (but are not limited to) any of the following sanctions: revocation, suspension, reprimand, temporary or permanent practice restrictions.

Prior to the Board imposing a sanction against a nurse’s license, the Board is required to provide the nurse with a written Notice of the alleged violation and an opportunity to request a hearing.  If the nurse properly and timely requests a hearing, the nurse can attempt to negotiate a Consent Agreement with the Board (similar to a plea bargain in a criminal case) or they are entitled to a hearing where the Board would be required to prove the alleged violation of the Nurse Practice Act.

The sanction that the Board imposes in each case is strictly dependent on the individual facts and circumstances that gave rise to the alleged violation.  However, in most cases, the Board attempts to impose similar sanctions on similar cases.

Many nurses are surprised that in addition to a suspension of a nursing license, in many instances the Board will impose temporary or even permanent practice restrictions on the nurse’s license.  The restrictions generally limit the nurse’s ability to pass narcotics or to work in certain settings such as home care or home hospice, through an agency, as an independent provider, as a volunteer or to contract individually with a patient.  The Board also typically restricts the nurse’s ability to work as a nurse manager, DON, ADON or nursing supervisor.

If the Board places temporary practice restrictions on a nurse’s license, typically the restrictions will be lifted when the period of suspension and probation ends.  However, in certain serious cases, the Board will impose permanent practice restrictions that will permanently bar the nurse from working in certain settings. Occasionally, the Board will include a statement that says that the practice restrictions are permanent “unless otherwise approved by the Board.”  This specific language allows the Board to lift a permanent restriction in certain circumstances and for certain specific positions.

If a nurse has a permanent practice restriction on their license without the “unless otherwise approved” language, the permanent practice restrictions can NEVER be lifted.  This is generally reserved for the most serious violations of the Nurse Practice Act, generally resulting from cases of significant impairment (drug or alcohol abuse) by the nurse.

Nurses are often disappointed that they may complete a period of suspension or probation but still have permanent limitations on their license.  While the Board is one of only a few professional licensing agencies that will impose permanent restrictions on a professional license, it is a routine practice of the Board and is even imposed against a nurse who may have never been disciplined by the Board in the past.

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, LLC or email me at beth@collislaw.com

Nursing license suspension can result from a conviction

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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.

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.

National Prescription Drug Take-Back Day October 26, 2013

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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

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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.

Who makes decisions at the Ohio Board of Nursing?

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It’s Board week at the Ohio Board of Nursing. This means that Board members from around the state will meet at the Board offices in Columbus on Thursday, September 20 and Friday, September 21, 2012 to review the official business and make decisions regarding such matters as the implementation or change to a Board rule, granting licenses to nurse applicants, closing or continuing investigations, issuing citation letters to nurses, and ruling on final disciplinary matters against nurses. Ohio Revised Code §4723.06.

The Nursing Board is governed by the Nurse Practice Act, which outlines the powers and duties of the Board members. R.C.§4723. The Board is composed of thirteen Board members: eight are licensed RNs, 4 are licensed LPNs and one is a public member. Board members are not compensated but are reimbursed for their expenses. Board Members are appointed by the Governor and serve four-year terms. O.R.C. §4723.02.

Under the Board’s rules, the Board is only required to meet as often as necessary to carry out its duties. O.A.C. 4723-1-01(D). The Ohio Nursing Board has six regularly scheduled meetings each year. Meetings are typically held the third week in January, March, May, July, September and November.

While the Board members make all final decisions, the daily operations of the Board is managed by an Executive Director, who is also an RN. The Board also has a bevy of attorneys, investigators, licensure specialists, and support personnel that work at the Board office on a daily basis and carry out the daily operations of the Board. In addition, any disciplinary matter that proceeds to an administrative hearing, is prosecuted by an Ohio Assistant Attorney General.

The Board is not governed by a statute of limitations. Therefore, if an investigation is initiated against a nurse or nurse applicant, the Board has no time limit in which it must begin or complete the investigation or license (or deny) the application of an applicant. Investigations and applications for initial licensure can take months before the individual is notified if they will be granted a license or subjected to discipline by the Board.

I am always asked “who makes all the decisions at the Nursing Board?” and “why does it take so long to get through the application or investigation process?”  The short answer is that the Board members make all final decisions.  However, since the Board only meets six times a year, official Board decisions are only issued at those Board meetings.   Therefore, if your case is not presented by the staff to the Board Members to review at a Board meeting, your case will not be acted on until the next board meeting.

The Ohio Nursing Board licenses and monitors thousands of nurses each year. For the vast majority of nurses, they will be issued a license or their license will be renewed quickly and without delay. However, if your license application is subjected to additional scrutiny because of a prior conviction, prior impairment, or action by an other state agency, it can take months to be licensed. Similarly, if you are the subject of a Board investigation, even if your license has been summarily suspended by the Board, it can take months to work through the Board investigative and disciplinary process.

As always, if you have any questions about this post or the Ohio Board of Nursing in general, please call me at (614) 486-3909, email me at beth@collislaw.com or check out my website for more information at www.collislaw.com.

If you received a Notice for Opportunity for Hearing .. request a hearing

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On Friday, July 27, the Ohio Board of Nursing held its bi-monthly meeting. At that meeting, the Board voted to take disciplinary action against dozens of nurses in the state of Ohio. Nurses who face discipline by the Board will be mailed a Notice of Opportunity for Hearing, Notice of Summary Suspension or Notice of Automatic Suspension of their nursing license by certified mail.  This is not a final decision by the Board.  These Notices outline the charges that the Board has alleged against you.

If you receive notification from the post office that you have a certified letter from the Nursing Board, immediately go to the post office and collect the letter as there are important time sensitive deadlines which, if not met, can have a permanent effect on your license.

If you want the Board to hear “your side of the story” you must request a hearing in writing to request a hearing by the deadline in the Notice. This can be done by following the instructions in the Notice. A request for a hearing is a simple letter sent to the Board stating that you would like a hearing. You do not need to list your defenses or reasons why you want a hearing. You simply need to state in the letter that you would like a hearing.

You only have thirty (30) days from the date the Notice was MAILED to you to request a hearing.  The 30 day time frame starts on the date that the letter was mailed to you and not on the date that you received the letter. Failure to request a hearing will prevent you from providing any evidence on your behalf to the Board.

I am often asked “why should I even request a hearing … the Board has already made a determination.” This is not correct.  These Notices only list allegations raised against you.  While the Board has conducted an investigation prior to issuing the Notice, in most cases they have only considered one side of the evidence. By requesting a hearing you will be able to present your side of the story.

Even in cases where the nurse has violated the Ohio Nurse Practice Act, by presenting your side of the story and explaining what challenges you faced or what you were thinking when the error occurred, you increase the chances of getting a lighter sanction from the Board than if you simply do not even request a hearing.

You worked hard for your nursing license. There are always two sides to any story. If you receive a Notice of Opportunity for Hearing, a Notice of Summary Suspension, or a Notice of Immediate Suspension, request a hearing within the deadline and make sure the Board hears your side of the story before they make a final determination.

You should also consider hiring experienced legal counsel to defend you before the Nursing Board. When considering how to hire an attorney, check out my previous post on “How to Hire an Attorney”.  Your livelihood depends on you finding experienced legal counsel that you trust to help in your defense.

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

What part of NO ALCOHOL don’t you understand?

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Nurses who suffer from substance abuse or substance addiction and who are monitored by the Ohio Board of Nursing in either the confidential Alternative Program for Chemically Dependent Nurses Program or pursuant to a Consent Agreement or other public disciplinary action, are typically required to submit to random (often observed) toxicology drug screens. The screens will detect not only alcohol content in the body but can even detect the metabolites of alcohol (evidence that the body is processing or breaking down alcohol). The tests are very sensitive virtually any consumption or exposure to alcohol  in the 3-4 days proceeding such consumption or exposure will be detected.

Prior to initiating the screening process, nurses are advised that they may not consume any alcohol or any substances that may contain alcohol. They are clearly warned to not consume any alcohol, including: beer, wine, liquor, “non-alcoholic” beers and cooking wines. They are also warned to stay away from topical ointments that may contain alcohol and to stay away from cleaning products or aerosols that may contain alcohol. Nurses are usually surprised to learn that many cleaning products contain alcohol and they do not realize that hand sanitizers (the same kinds routinely used in hospitals, nursing homes, schools, etc.), aftershave, air fresheners (Febreze), contain some amount of alcohol.

Despite this requirement, nurses routinely test positive for alcohol or for the metabolites of alcohol in their system (positive ETG test).   Ethyl Glucuronide (ETG) is a direct metabolite of alcoholic beverages (ethanol).  Its presence in urine may be used to detect recent alcohol consumption, even after ethanol is no longer measurable.  The presence of ETG in urine is a definitive indicator that alcohol was ingested.

When questioned, many will initially deny use. Then, they will try to argue that they used a hand sanitizer or over the counter medications, which may have resulted in a positive alcohol or ETG drug screen.

However, while the tests (specifically the ETG test) are very sensitive and can detect consumed alcohol, the cut off for the screening is above the level that would test positive in an “accidental” exposure. Generally, merely cleaning your house with Lysol or spraying your couch pillows with Febreze should not result in a positive screen. However, consuming Nyquil for a cold will result in a positive screen.

As always, if you have any questions about the Ohio Board of Nursing or this post, please feel free to email me at beth@collislaw.com or call me at 614-496-3909.

What is a Nursing Board Consent Agreement?

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Under the Ohio Nurse Practice Act, R.C. 4723.28, the Nursing Board can deny, revoke, suspend, reprimand, impose a fine or place limitations on a nursing license.

To take disciplinary action against a nurse, the Nursing Board first must  charge the nurse with violating some provision of the Ohio Nurse Practice Act. Notice is usually provided to the nurse in a citation letter, entitled, “Notice of Opportunity for Hearing.”  The Notice letter outlines the alleged misconduct (the basis for the action), specifies the section of the Nurse Practice Act that the nurse has allegedly violated, and provides the nurse with an opportunity to request a hearing before the Nursing Board concerning the allegations.

However, in some instances, the Nursing Board will send a nurse a document called a “Consent Agreement” without issuing a Notice.  The Consent Agreement is a contract between the nurse and the Nursing Board in which the nurse agrees that the specified violations of the Nurse Practice Act occurred, agrees to accept a specified discipline, and waives his or her right to a hearing. While signing a Consent Agreement may be the best route for the nurse, there are issues that should be considered before entering into a Consent Agreement with the Nursing Board.

A Consent Agreement is a formal disciplinary action of the Nursing Board and is a public document under the Ohio Public Records law (R.C. 149). As a public record, the Nursing Board must make the document available to the public and may post the actual agreement on their website. The Board will also list the name of the nurse and the discipline imposed in the Board ‘s quarterly Momentum magazine in the Disciplinary Actions section.

Negotiating the terms and condition of the Consent Agreement can result in changes and/or clarifications.  As with any legal, binding agreement, prior to signing the Consent Agreement, it is recommended to have it reviewed by experienced legal counsel so that you clearly understand what you are agreeing to in the document.

In addition, even after you complete any discipline imposed by the Consent Agreement, the Consent Agreement will always remain as a part of your professional record with the Nursing Board. Unlike some criminal cases, there is no way to seal or expunge a disciplinary action taken by the Nursing Board. Therefore,  it is important that you understand and agree to all the terms in the Consent Agreement and that the Consent Agreement accurately reflects the facts 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 email me at beth@collislaw.com or call me at 614-486-3909.