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