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