The Ohio Board of Nursing Disciplinary Process

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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. 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. 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. 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. 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 Todd Collis (614) 628-6962 or Beth Collis (614) 628-6745 if you have any questions.

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.

Ohio Nurses with Narcotic Restrictions: You CANNOT Observe Waste

A nurse who is the subject of a disciplinary action by the Ohio Board of Nursing may, in certain instances, have one or more restrictions placed on their nursing license.  One type of restriction is a narcotics restriction.

Although the language of a narcotic restriction can and does vary depending on the facts and circumstances of each case, the Ohio Board of Nursing’s narcotic restriction typically provides:

“Unless otherwise approved in advance, in writing, by the board or its’ designee, NURSE shall not administer, have access to, or possess (except as prescribed for NURSE’s use by another so authorized by law who has received a complete copy of this Consent Agreement prior to prescribing for NURSE) any narcotics, other controlled substances, or mood-altering drugs in which NURSE is working in a position that requires a nursing license. In addition, NURSE shall not possess or carry any work keys for locked medication carts, cabinets, drawers, or containers. NURSE shall not count narcotics. NURSE shall not call in or order prescription refills for narcotics, other controlled substances, or mood-altering drugs.”

As stated noted above, a nurse with a narcotics restriction may not count narcotics.  Counting narcotics includes, but is not limited to, observing the waste of unused narcotics by another nurse because observing waste is considered part of the counting process.  If you have a narcotics restriction on your license, you may not observe waste and you should ensure that your employer is aware that your narcotic restriction prohibits you from observing waste before you are in a situation where you are asked to witness another nurse wasting.

Narcotic restrictions can be permanent or temporary.  If the narcotic restriction is permanent, the nurse must comply with the narcotic restriction on a permanent basis, unless the narcotic restriction includes the language, “Unless otherwise approved in advance, in writing, by the board or is designee”.  This language permits the nurse to request the Nursing Board’s approval for a specific exception to the permanent narcotic restriction.

If the narcotic restriction is temporary, the nurse must comply with the narcotic restriction during their entire probationary period or, in certain cases, for a shorter period.  If the temporary narcotic restriction includes the language, “Unless otherwise approved in advance, in writing, by the board or its’ designee”, the nurse may request the Nursing Board’s approval for a specific exception to the temporary narcotic restriction.

As always, if you have questions about this post or the Ohio Board of Nursing, contact one of the attorneys at Collis Law Group LLC at (614) 486-3909 or contact me at beth@collislaw.com.

REMINDER – Ohio Licensed Practical Nurses: Renew Your Nursing License Now

Reminder to all LPNs: Renewal of Ohio licensed practical nurse (“LPN”) licenses began on July 1, 2018 and ends on October 31, 2018.  At this time, you have less than a week left to renew your license.

It is a disciplinable offense to engage in the practice of nursing having failed to renew a nursing license.  An Ohio LPN license which is not renewed will lapse on November 1, 2018.  An Ohio LPN whose nursing license has lapsed is not authorized to work as a nurse until their nursing license is reinstated by the Ohio Board of Nursing.

The renewal fee is $65.00, plus a $3.50 transaction fee.  A late processing fee goes into effect on September 16, 2018.  An Ohio LPN who renews their nursing license on or after September 16, 2018 must pay an additional $50.00.  Fees must be paid online at the time of renewal with a credit or debit card (Master Card, VISA or Discover), or pre-paid card.  The renewal application will not be processed until all required fees are submitted.  All fees are non-refundable.

The renewal application includes, but is not limited to, questions concerning criminal, licensure, mental health matters, and alcohol/drugs matters.  All information provided in the renewal application is required to be true and accurate.  Depending on the response given to certain questions in the renewal application, uploading an explanation and Certified copies of certain specific documents is also required.

In certain cases, the renewal application may be forwarded to the Ohio Board of Nursing Compliance Unit for review and an Ohio Board of Nursing investigator may contact the LPN to obtain additional information.  In other cases, a Consent Agreement may be offered to the LPN to resolve a disciplinable offense instead of preceding to an administrative hearing.

If you do not understand a question in your LPN renewal application, or do not know what additional information to upload with your renewal application, it is recommended to obtain experienced legal counsel to assist you before submitting your LPN renewal application, speaking with an Ohio Board of Nursing investigator, or signing a Consent Agreement. Feel free to contact on of the attorneys at Collis Law Group LLC at (614) 486-3909 if you would like to schedule an appointment for a consultation for assistance to complete the renewal application.

For additional renewal application information from the Ohio Board of Nursing, see: http://www.nursing.ohio.gov/PDFS/Licensure/Renewal/Renewal_Momentum.pdf

As always, if you have questions about this post or the Ohio Board of Nursing, contact one of the attorneys at Collis Law Group LLC at (614) 486-3909.

Ohio Nursing Board Investigations

A person may report to the Ohio Board of Nursing (“Nursing Board”) information the person has that appears to show a violation of a Nursing Board law or rule. The Nursing Board is required to investigate evidence that appears to show a violation of a Nursing Board law or rule.

The Nursing Board employs investigators who are located throughout Ohio. Each complaint received by the Board is assigned to an investigator. The investigator collects and reviews documents and interviews relevant parties.

In most instances, the investigator will also contact the nurse who is the subject of a complaint by phone, email, or correspondence and request the nurse to meet or speak with the investigator to address the concerns in a complaint or to give their “side of the story.”

In Ohio, a nurse’s participation in a Nursing Board investigation is voluntary, however, any information provided to the investigator may be used against the nurse in a Nursing Board disciplinary action.

Further, Ohio Revised Code Section 9.84 provides in part that a person who appears as a witness before any Nursing Board representative in an administrative investigation shall be permitted to be represented and advised by an attorney, and that the person shall be advised of the right to counsel before they are interrogated. We have seen printed on the back of a Nursing Board investigator’s business card the following statement:

“I have been advised by the OBN Agent that (i) I have the right to have an attorney present (per 9.84, ORC) and (ii) my interview is voluntary.”

However, in the stress of meeting with a Nursing Board investigator, a nurse might not take the time to read the card, and, even if they do read the card, they might feel uncomfortable requesting to postpone the meeting after they obtain legal counsel.

It is recommended to request and obtain legal counsel before speaking with or responding in writing to a Nursing Board investigator. Often, nurses are concerned that it will appear that they are hiding something or are uncooperative if they first obtain legal counsel. This is not the case. There are circumstances where it is advisable for a nurse and their legal counsel to meet with a Nursing Board investigator. Legal counsel can assist with protecting your rights, narrowing the issues, and providing guidance concerning the process.

It is also important to note that any information obtained by a Nursing Board investigator can be shared with local law enforcement if information is obtained that appears to show that a nurse has violated a criminal or other law outside of the Nursing Board’s jurisdiction.

As always, if you have a question 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 LLC at 614-486-3909 or email me at beth@collislaw.com.

The Ohio Board of Nursing’s Practice Intervention and Improvement Program

The Ohio Board of Nursing is the state agency that regulates the practice of nursing in Ohio. The mission of the Nursing Board is to protect the public by ensuring that nurses have the skills to provide care to patients. In instances where a nurse has violated the Ohio Nurse Practice Act, the Nursing Board has the authority to take a disciplinary action, such as to suspend or revoke a nurse’s license to practice in Ohio. However, in instances where the Nursing Board has reason to believe that a nurse has a deficiency in their practice that may be corrected, the Board may require the nurse to seek additional education and/or training.

The Nursing Board’s Practice Intervention and Improvement Program (“PIIP”) permits the Nursing Board to offer a nurse an opportunity to seek remedial education and training in a specific area instead of taking disciplinary action against a nurse who has a practice deficiency. The PIIP program is considered non-disciplinary and does not constitute a restriction or limitation on a nurse’s license. Participation in PIIP is confidential.

The criteria the Nursing Board uses to identify an individual’s practice deficiency includes, but is not limited to:

(1) Whether the public will be adequately protected from unsafe practice if the individual enters PIIP;
(2) Whether the individual’s practice deficiency resulted in harm to the patient;
(3) The likelihood that the identified practice deficiency can be corrected through remediation;
(4) The frequency of the occurrence of the practice deficiency;
(5) Whether the individual is eligible for participation in PIIP under 4723-18-03 of the Administrative Code; and
(6) Whether the individual has a mental or physical impairment that contributed to the practice deficiency.

If the supervising member believes, after investigation and review, that the individual’s practice deficiency can be successfully corrected through participation in PIIP, the Nursing Board may choose to take no disciplinary action. This decision is generally reached, if the individual enters into a Participatory Agreement with PIIP, complies with the terms and conditions of PIIP, and successfully completes PIIP.

The PIIP Participatory Agreement includes, but is not limited to, provisions that:

(1) Identify the practice deficiencies and the specific remediation (including educational interventions) the participant must complete;
(2) Require the participant to pay all expenses for the required remediation;
(3) Require the participant to provide the Participatory Agreement to a manager of the participant’s employers;
(4) Require the participant to participate in workplace monitoring;
(5) Require the participant to cause all workplace monitors to provide remediation and to send written progress reports regarding the participant’s progress to PIIP at specified intervals;
(6) Require the participant to submit a written personal progress report containing the information required by PIIP to PIIP at specified intervals; and
(7) Specify the terms and conditions the participant must meet to successfully complete the remediation, including the time frames for successfully completing both the educational intervention and workplace monitoring components of the remediation.

Generally, to comply with PIIP, the nurse will identify a nurse educator who will prepare an individualized course of study for the nurse. The course may include a series of written materials to review or a list of on-line continuing education courses that must be completed. The course of study is almost always tailored to the individual need of the nurse and generally does not require the nurse to return to complete coursework in a nursing school setting or to repeat an entire nursing course. The educator will generally meet individually with the nurse to evaluate their skills to determine if the deficiency in their practice has been remediated. In most instances, the nurse can complete the remedial education in a matter of weeks.

A PIIP participant can be terminated from PIIP for reasons including, but not limited to, the failure to: 1) comply with the Participatory Agreement; 2) progress through or successfully complete the educational intervention in the manner and time frame required; or 3) incorporate learned knowledge and skills into practice.

In addition to avoiding public discipline, a participant who successfully completes PIIP will not be reported to the National Council of State Boards of Nursing disciplinary data bank or the National Practitioner Data Bank (NPDB) unless the Nursing Board imposes disciplinary action against the participant.

As always, if you have a question 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 LLC at 614-486-3909 or email me at beth@collislaw.com.