James McGovern: Ohio Board of Nursing Update

The Ohio Board of Nursing is meeting again March 16-17, 2016.  James McGovern of Graff & McGovern, LPA, will attend and participate as legal counsel for his nurse clients.  A further report will be posted in early April 2016 to recap the March 2016 Board Meeting.

At the November 2015 and January 2016 Meetings, the Board voted to approve Consent Agreements to resolve the charges pending against numerous nursing clients of Graff & McGovern.  Those Consent Agreements involved negotiated and reasonable resolutions of the charges that required some level of compromise by both the licensees and the Board.  Most of the Consent Agreements took 4-6 months from the issuance of the Notice to be negotiated with and ratified by the Board.

At the November 2015 and January 2016 Meetings, the Board also deliberated upon 7 Reports and Recommendations to address charges against nursing clients of Graff & McGovern whose cases went to hearing instead of having the charges resolved through a Consent Agreement.  Fair and reasonable outcomes were achieved in 5 of the 7 cases.  Unfortunately, the Board  imposed a harsh sanction upon a nurse who was a repeat offender and another nurse who committed billing fraud

Heading into Board's second of six scheduled Meetings for 2016, I would like to point out two positive trends that are developing.  First, the Board has been more willing settle cases under reasonable Consent Agreements.  Two, even for cases that have had to go to hearing, the Hearing Examiners and the Board have for the most part been reasonable in their analysis of the evidence and the sanctions imposed.

In addition, the Board’s President has worked to address and correct the concerns I noted in previous posts regarding the time licensees have to address the Board before the Board’s closed session deliberations upon whether to adopt the recommendations of the Hearing Examiner.  In particular, licensees are now permitted 7 minutes to address the Board and there is a time keeper present to keep the licensee aware of how much time remains.  The new system has worked worked well so far.

The take away from these recent Board Meetings is that with persistence and hard work, nurses and their counsel have been able to obtain reasonable outcomes for their cases.  That said, nurses who are being investigated by the Ohio Board of Nursing and/or who are facing pending disciplinary charges brought by the Board must be prepared to fight for fair and reasonable settlement terms.  Regardless of their efforts and regardless of whether the Board is being reasonable, some of those nurses may eventually find themselves in a position where they are forced to take their case to hearing so that the full Board can consider the defense and/or mitigation evidence being presented.

Based upon the fact that more than 100 nurses were issued Notices of Opportunity for Hearing at the November 2015 Board Meeting and that more than 90 nurses were issued Notices of Opportunity for Hearing at the January 2016 Board Meeting, it is reasonable to expect that 90 - 110 nurse will receive Notices following the March 2016 Board Meeting.

Any nurses receiving a Notice of Opportunity for Hearing  from the Board should strongly consider consulting with experienced legal counsel to protect their interests and they should be mindful of the need to submit a written hearing request to the Board no later than 30 days from the date the Board mailed the Notice.  The failure to comply with the 30-day deadline will leave a nurse with none of the rights afforded by Ohio Revised Code Chapter 119, and it will enable the Board to sanction the nurse’s license without obtaining any input and/or agreement from the nurse.

For nurses who find themselves face pending disciplinary charges by the Board, this means you will be engaged in a struggle with the Board to obtain the most lenient sanction possible through a Consent Agreement and you may be forced to take your case to hearing to try to obtain a better outcome than is being offered through Consent Agreement.  To make it through that struggle and obtain a positive outcome for your nursing license, you will need to know who to communicate with, who to avoid communicating, what information to share and how to leverage positive facts in presenting your defense to the Board.   You will also need to be patient in negotiating the terms of a Consent Agreement with the Board, since the Board’s first offer is usually not its best offer.  Finally, you need to be willing, if necessary, to take your case to hearing if the Board is being unreasonable in negotiating a Consent Agreement. 

James M. McGovern, Esq.

Graff & McGovern, LPA

604 E. Rich Street

Columbus, OH 43215

jmcgovern@grafflaw.com

614-228-5800, x2

James McGovern's Ohio Board of Nursing Enforcement Update for September 2015

The Ohio Board of Nursing met on September  17-18, 2015.  James McGovern of Graff & McGovern, LPA, attended and otherwise participated as legal counsel for numerous nurses.  His report is as follows.

Fortunately, the Board voted to approve Consent Agreements to resolve the charges pending against numerous nursing clients of Graff & McGovern.  Those Consent Agreements involved negotiated and reasonable resolutions of the charges that required some level of compromise by both the licensees and the Board.  Most of the Consent Agreements took 4-6 months from the issuance of the Notice to be negotiated with and ratified by the Board.

At the September 2015 Meeting, the Board also deliberated upon 4 Reports and Recommendations to address charges against nursing clients of Graff & McGovern whose cases went to hearing instead of having the charges resolved through a Consent Agreement.  Given the fact that all 4 of those cases involved repeat offenders, the Board was unwilling to settle through a Consent Agreement and instead forced the licensees to hearing where they were at serious risk of having their licenses permanently revoked.  As of this posting, we are still waiting for word upon the final outcomes of those cases.

Given that the Board has now completed 5 of its 6 Board Meetings for 2015, I can safely comment that this version of the Board is by far the strictest and least forgiving that I have seen since I started representing nurses in 1999.  That by no means suggests that they are bad Board Members.  It simply means that nurses who violate the Nurse Practice Act are at high risk of being harshly sanctioned. 

That said, I am beginning to have some concerns regarding the demeanor of the Board’s President during the presentations of licensees and their legal counsel, which occur after the issuance of the Hearing Examiner’s  Report and Recommendation and before the Board’s closed session deliberations upon whether to adopt the recommendations of the Hearing Examiner.  In particular, I found it troublesome that the Board’s President became visibly upset when a licensee and or his / her counsel exceeded the 5 minute time limit by no more than 10 seconds to conclude a point that was being made.  To me, that type of behavior is a disservice to the nursing profession given that the licensees at issue were facing the permanent revocation of their licenses and this was their one and only opportunity to address the Board.

The current take away from the recent cases is that nurses who are being investigated by the Ohio Board of Nursing and/or who are facing pending disciplinary charges brought by the Board must be prepared to fight for fair and reasonable settlement terms.  Regardless of their efforts, some of those nurses may eventually find themselves in a position where they are forced to either accept the harsher settlement terms being insisted upon by the Board’s Secretary or take their case to hearing so that the full Board can consider the defense and/or mitigation evidence being presented.

With respect to the newest batch of cases, at the September 2015 Board Meeting, the Ohio Board of Nursing voted to issue 117 Notices of Opportunity for Hearing charging nurses with violations of the Nurse Practice Act.  This is 37 less Notices than were issued at the July 2015 Board Meeting, but still a very large number of licensees who now face being sanctioned by the Board for alleged violations of the Nurse Practice Act.  

Of the 117 Notices, 16 were Notices of Automatic Suspension and 12 were Notices of Immediate Suspension.  All of the Notices were mailed to the respective nurses via certified mail this week. 

All 12 of the Notices  of Immediate Suspension and Opportunity for Hearing involved drug related felonies / Intervention in Lieu of Conviction.  The 16 Notices of Automatic Suspension and Opportunity for Hearing break down as follows:

Failure to Submit to CD Evaluation	9
Failed Drug Screen	2

  Failure to Follow License Restriction                        5

The remaining Notice of Opportunity for Hearing break down as follows:

Misdemeanor Drug Offense	6
Felony Offense (Non - Drug Related))	5
Medication Administration	5
Theft of Medications	4
Substance Abuse	7
Felony Offense (Drug Related)	3
Fraud in The Application	6
Reciprocal / Sister State Discipline	18
Profanity / Disorderly Conduct	1
Failure to Practice Within Safe Standards	4
Operating a Vehicle Under the Influence	2
Positive Drug and/or Alcohol Screen	7
Fraudulent Billing	2
Fitness to Practice / Mental Health	1
Medication Discrepancies	10
Misdemeanor Offense (Non - Drug Related)	2
Failure to renew License	6

Any nurses receiving a Notice of Opportunity for Hearing  from the Board should strongly consider consulting with experienced legal counsel to protect their interests and they should be mindful of the need to submit a written hearing request to the Board no later than 30 days from the date the Board mailed the Notice.  The failure to comply with the 30-day deadline will leave a nurse with none of the rights afforded by Ohio Revised Code Chapter 119, and it will enable the Board to sanction the nurse’s license without obtaining any input and/or agreement from the nurse.

At least once per month I receive a call from a nurse who has missed the hearing request deadline.  Although there may still be things I can do to help a nurse who has missed the hearing request deadline before deciding to contact legal counsel, any nurse has a much better chance of defending his or her interests when I timely hearing request is submitted.

For nurses who now face pending disciplinary charges by the Board, this means you will be engaged in a struggle with the Board to obtain the most lenient sanction possible through a Consent Agreement and you may be forced to take your case to hearing to try to obtain a better outcome than is being offered through Consent Agreement.  To make it through that struggle and obtain a positive outcome for your nursing license, you will need to know who to communicate with, who to avoid communicating, what information to share and how to leverage positive facts in presenting your defense to the Board.   You will also need to be patient in negotiating the terms of a Consent Agreement with the Board, since the Board’s first offer is usually not its best offer.  Finally, you need to be willing, if necessary, to take your case to hearing if the Board is being unreasonable in negotiating a Consent Agreement. 

James M. McGovern, Esq.   

Phone:  614-228-5800 Ext. 2

Fax:  (614) 228-8811 

E-mail: jmcgovern@grafflaw.com

Jim McGovern's Nursing Board Update: OBN Continues Trend Towards Greater Enforcement And Harsher Sanctions

The Ohio Board of Nursing met on July 30-31, 2015.  Jim McGovern of Graff & McGovern, LPA, attended and otherwise participated as legal counsel for numerous nurses.  His report is as follows.

Fortunately, the Board voted to approve Consent Agreements to resolve the charges pending against numerous nursing clients of Graff & McGovern.  Most of those Consent Agreements were hard fought and took 4-6 months to negotiate the reasonable outcomes.

The Board also deliberated upon 2 Reports and Recommendations to address charges against nursing clients of Graff & McGovern whose cases went to hearing instead of having the charges resolved through a Consent Agreement. As of this posting, we are still waiting for word upon whether the Board adopted the favorable sanctions recommended by the Hearing Examiners.

Given that the Board has now completed 4 of its 6 Board Meetings for 2015, I believe it is fair to comment that the Board has continued its trend over recent years of engaging in larger scale enforcement of the Nurse Practice Act and imposing harsher sanctions for violations of the Act.  That has been the case both when charges are resolved through Consent Agreements and when charges are resolved through Adjudication Orders.  Furthermore, during the past 18 months, just about 50 percent of my nursing clients who elected to take their cases to hearing  received a more lenient sanction compared to what they were being offered through proposed Consent Agreement.

I am now thoroughly convinced that this version of the Board is stricter than any version of the Board that I have seen since I started representing nurses in 1999.  That by no means suggests that they are bad Board Members.  It simply means that nurses who violate the Act are at high risk of being harshly sanctioned.  The proof is in the relatively harsh Consent Agreements and Adjudication Orders adopted by the Board during 2013-2015, along with the increased reluctance of the Board to settle cases using terms and conditions that were common prior to 2013.

Therefore, nurses who are being investigated by the Ohio Board of Nursing and/or who are facing pending disciplinary charges brought by the Board must be prepared to fight for fair and reasonable settlement terms.  Regardless of their efforts, some of those nurses may eventually find themselves in a position where they are forced to either accept the harsher settlement terms being insisted upon by the Board’s Secretary or take their case to hearing so that the full Board can consider the defense and/or mitigation evidence being presented.

James M. McGovern, Esq.   

Phone:  614-228-5800 Ext. 2

Fax:  (614) 228-8811 

E-mail: jmcgovern@grafflaw.com

Jim McGovern's Supplemental Nursing Board Update: 154 Notices of Opportunity for Hearing Issued By the OBN

The Ohio Board of Nursing met on July 30-31, 2015.  Jim McGovern of Graff & McGovern, LPA, attended and otherwise participated as legal counsel for numerous nurses.  His supplemental report is as follows.

At the July 2015 Board Meeting, the Board voted to issue 154 Notices of Opportunity for Hearing charging nurses with violations of the Nurse Practice Act.  This is the most Notices I have seen the Nursing Board issue at a single Board Meeting since I started representing nurses back in 1999.  Of the 154 Notices, 20 were Notices of Automatic Suspension and 20 were Notices of Immediate Suspension.  All of the Notices were mailed to the respective nurses via certified mail this week. 

All 20 of the Notices  of Immediate Suspension and Opportunity for Hearing involved drug related felonies / Intervention in Lieu of Conviction.

The 20 Notices of Automatic Suspension and Opportunity for Hearing break down as follows:

Failure to Submit to CD Evaluation	10
Failed Drug Screen	3
Self Administering Drugs	3
Gross Sexual Imposition	1
Operating a Vehicle Under the Influence	1
Failure to Follow License Restriction	2

The remaining Notices of Opportunity for Hearing break down as follows:

Misdemeanor Drug Offense	5
Felony Offense (Non - Drug Related))	7
Medication Administration	14
Theft of Medications	2
Substance Abuse	7
Felony Offense (Drug Related)	15
Fraud in The Application	3
Reciprocal / Sister State Discipline	31
Profanity / Disorderly Conduct	2
Failure to Practice Within Safe Standards	6
Witness of Sexual Abuse Not Reported	1
Fraud in The Application	2
Positive Drug and/or Alcohol Screen	6
Fraudulent Billing	2
Failure to Maintain Professional Boundaries	4
Fitness to Practice / Mental Health	1
Medication Discrepancies	1
Misdemeanor Offense (Non - Drug Related)	2
Assault	1
Identity Fraud	1

Any nurses receiving a Notice of Opportunity for Hearing  from the Board should strongly consider consulting with experienced legal counsel to protect their interests and they should be mindful of the need to submit a written hearing request to the Board no later than 30 days from the date the Board mailed the Notice.  The failure to comply with the 30-day deadline will leave a nurse with none of the rights afforded by Ohio Revised Code Chapter 119, and it will enable the Board to sanction the nurse’s license without obtaining any input and/or agreement from the nurse.

For nurses who now face pending disciplinary charges by the Board, this means you will be engaged in a struggle with the Board to obtain the most lenient sanction possible through a Consent Agreement and you may be forced to take your case to hearing to try to obtain a better outcome than is being offered through Consent Agreement.  To make it through that struggle and obtain a positive outcome for your nursing license, you will need to know who to communicate with, who to avoid communicating, what information to share and how to leverage positive facts in presenting your defense to the Board.   You will also need to be patient in negotiating the terms of a Consent Agreement with the Board, since the Board’s first offer is usually not its best offer.  Finally, you need to be willing, if necessary, to take your case to hearing if the Board is being unreasonable in negotiating a Consent Agreement. 

James M. McGovern, Esq.   

Phone:  614-228-5800 Ext. 2

Fax:  (614) 228-8811 

E-mail: jmcgovern@grafflaw.com 

James McGovern To Present at 2 Upcoming CLE Seminars

James McGovern of Graff & McGovern, LPA, will be presenting to his legal peers and others at 2 upcoming continuing legal education seminars.  The presentations will focus upon how to defend licensees in the administrative hearing process and will expand upon the concepts he addressed when presenting at the Columbus Bar Association's Pitfall's & Pratfalls: Advanced Administrative Law Seminars Parts I and II during the Fall of 2014 and Spring of 2015.  Here are the dates, sponsors and titles of the seminars:

1) August 19, 2015 at the Ohio Attorney General's Office Advance Administrative Law Seminar; and

2)  September 10, 2015 at the Ohio State Bar Association's Fifth Annual Administrative Law Seminar

Ohio Casino Control Commission Meeting

John Izzo attended the Ohio Casino Control Commission Meeting on Wednesday, October 15, 2014.  Tracy Plouck, Director of the Ohio Department of Mental Health and Addiction Services provided a report to the Commission as well as the 2015 plan for problem gambling services.  There was discussion concerning the renewal of licenses that are coming to the Commission.  There have been over 1,800 thus far.  Internal controls were amended for all four casinos.  One case came before the commission, an individual who was not forthcoming about his past criminal convictions.  His application for a license was denied.  Tama Davis, the Director of Communications, is leaving to accept a position in the public sector.  The date of the next monthly meeting was not mentioned.

State Medical Board of Ohio Meeting - October 8, 2014

John Izzo attended the State Medical Board of Ohio meeting on October 8, 2014.  He was present for the Board’s consideration of several Reports and Recommendations.  Of note, the Board approved the license of a massage therapist who’s license lapsed three years ago but continued to practice.  Mr. Giacalone, Board Member, stated that the applicant mitigated her situation by ceasing practice upon learning she was not licensed and notifying the board.  It was agreed that she would receive a reprimand, but would be allowed a license.  In a separate massage therapist case, the Board decided to permanently deny an individual who had three DUI’s prior to her application, and one afterwards that she did not inform the Board of.  A key point in the Board’s determination appeared to be the applicant’s statement that she did not believe Alcoholics Anonymous would work for her, and that she continued to work as a bartender pending the outcome of her application.