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.
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
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