The Ohio Board of Nursing met on May 15-16, 2014. 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. In some of the Immediate Suspension cases, the
Board’s staff worked hard to try to have Consent Agreement ready for vote by
the full Board within 2 months of the issuance of the charges. The Board
also deliberated upon numerous Reports and Recommendations to resolve charges
against nursing clients of Graff & McGovern whose cases went to hearing
instead of having the charges resolved through a Consent Agreement.
Given that the Board has now completed 3 of its 6 Board Meetings
for 2014, I believe it is fair to conclude that a firm pattern is in place
whereby the Board is imposing harsher sanctions than in years past. That
has been the case both when charges are resolved through a Consent Agreements
and when charges are resolved through Adjudication Orders.
Furthermore, slightly less than half 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.
At the May 2014 Board Meeting, the Board also voted to issue
a Notice of Opportunity for Hearing to 99 nurses. Those Notices were
mailed to the respective nurses via certified mail this week. 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.
As we move into the second half of the 2014 Board Meeting
calendar, I am 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. The proof is in the relatively harsh Consent Agreements and
Adjudication Orders adopted by the Board during 2013 and 2014, 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.
For nurses who are being investigated by the Ohio Board of
Nursing and/or who 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.
