My 2 Cents

Licensed Professionals and Sexual Relations with Clients, Customers, and Patients: Oh My!

This case was reported in the Ohio State Bar Association Report, its a member publication of the Ohio State Bar Association.

Its depicted as "sexy" in the movies of yesteryear and today however, its unethical for licensed attorneys to engage in intimate or sexual relationships with clients.

Any licensed healthcare professional is "gambling" with his or her license when engaging in an intimate or sexual relationship with a client or even a former client depending on the "cooling off" period imposed by the state practice act, board regulations, and/or professional literature. Check your State Nurse Practice Act and/or Board of Nursing regulations.

Yes, we all know of nurses, dentists, physicians, attorneys, etc. who have married patients, dated patients, etc. and nothing happened with his or her license. That doesn't make the actions of the licensed individual appropriate, legal, or ethical.

In this case involving an Ohio licensed attorney, see Butler County Bar Association vs. Williamson, 117 Ohio St.3d 399, 2008-Ohio-1196, an attorney had his law licensed indefinitely suspended for professional misconduct. The attorney became involved in a intimate relationship with a female client after she hired the attorney to represent her in a divorce proceeding and domestic violence action against her husband.

The attorney allowed the client and her two children to move in with the attorney during the course of representation. Later the client and her husband reconciled.

Can you guess who filed the grievances against the attorney? You guessed correctly, the husband and his wife. Can you say messy?

What is the morale of the story? I don't know you tell me.

1. Know what your State Nurse Practice Act and Board of Nursing regulations state regarding professional boundaries and professional sexual misconduct.

2. There is excellent information about professional boundaries on the National Council of State Boards of Nursing website at www.ncsbn.org. See also the ANA Code of Ethics with Interpretive Statements at www.nursingworld.org.

3. In your state are you responsible for establishing and maintaining boundaries with patients or clients? Clients can include the patient and others involved in the patient's plan of care. Clients can be an individual, group, or community.

4. Think about former patients and clients and a cooling off period. Termination of the professional relationship and "safe practice" is a slippery slope in professional boundaries cases.

Is it wise to think a patient can be terminated from your facility on a Monday and you can start legally and ethically dating the patient on a Wednesday. I've seen it happen and its perceived as okay because the patient has been "discharged." However tell me more about what happened during the course of the professional nurse-client or nurse-patient relationship and you will usually see a multitude of boundary violations and boundary crossings.

What is a reasonable cooling off period? Is a cooling off period imposed by your State Nurse Practice Act or Board of Nursing regulations? What is a reasonable cooling off period? 6 hours, 6 days, 6 months, 1 year, 2 years, or more time from the termination of the professional relationship to initiation of a personal, business, or sexual relationship. 

Professional boundaries are serious and I am seeing more boundaries cases in my law practice either through full scale legal representation or legal consultations. The Ohio Board of Nursing several years ago had professional boundaries as the focus of an emerging issues conference.

What are your thoughts about professional boundaries in nursing? Did you learn about professional boundaries in nursing school? Is it covered in general orientation in your facility? 

Turmoil Once Again in the ANA Enterprise

This is a long post.

Are you a member of a nursing professional association? If not, I am not surprised. If you follow this blog, you know I am a member of the American Nurses Association and Ohio Nurses Association however this may change after the ANA House of Delegates in June 2008.

The ANA House of Delegates provides direction to the ANA Board of Directors (or is it the other way around?) on the priorities and issues of the Association and the profession.

For the first time in my nursing career, I am considering whether or not to keep my membership in the American Nurses Association, Ohio Nurses Association, and the Southwestern Ohio Nurses Association. Its not about the dues for me, its the current and underlying turmoil with the American Nurses Association, Center for American Nurses, the United American Nurses, and State Nursing Associations.

I support the American Bar Association, not because I personally agree with all of its positions and statement. I support the ABA because it advocates for lawyers, the provision of legal services, and the rule of law. I also really like the ABA section membership publications for law practice management and solo practitioners.

I don't know if I can continue to support the American Nurses Association and the Ohio Nurses Association because of the infighting between the ANA, State Nurses Associations, the United American Nurses, and the Center for American Nurses.

I am a former Board member of the Center for American Nurses. I support and stand by the work of the Center because its relevant and needed for not only non-union nurses but it can also help union nurses. As a nurse attorney who represents individual nurses, I receive phone calls and emails from nurses, the majority of which are non-union, who need workplace support and assistance. Even with union nurses, the union assists with issues relative only to the collective bargaining agreement and these nurses need assistance.

Also my disgust with the ANA Enterprise issues involves the lack of workplace advocacy support in the Ohio Nurses Association for 2,000+ non-union nurses who support ONA but are not being serviced with state-based workplace advocacy services and products. I am one of those 2,000+ nurses non-union nurses who continue to belong and support the Ohio Nurses Association, although the majority of ONA's membership is collective bargaining and its the collective bargaining arm that uses the majority, if not nearly all of ONA's resources. There has to be a balance and as of today, in my opinion there isn't a balance.

Workplace Advocacy (non-union), Collective Bargaining (union), employment contracts, etc. are all tools for surviving and thriving in today's highly regulated workplace. Why are we still fighting? One tool isn't better than the other tool; multiple tools are needed, not just one tool.

The majority of nurses in the United States work in non-union and workplace advocacy settings. There are more than 3 million nurses (RNs, LPN, LVNs) in the United States and the majority of these nurses work in non-union environments; this is a fact.

In my opinion, I don't see these number shifting dramatically. It cost lots of money to organize a facility and most state nurses associations including the Ohio Nurses Association are not flush with cash to organize the masses and persuade nurses to join a union. A nursing strike in a state nurses association literally pushes the association to point of bankruptcy and financial ruin.  http://www.kentucky-nurses.org/. Review the article that discusses how the Kentucky Nurses Association and its union are parting ways.

Also union membership for nurses is typically tied to an organization. Gone are the days when the majority of nurses would start and finish their nursing career in one facility. You can be employed as a nurse in a union facility today and change positions next week and work in a non-union facility. Portability of licensure is the key.

Workplace advocacy support is needed and so is collective bargaining support. Non-union and workplace advocacy and collective bargaining can co-exist however I am not sure if it should be in the same association.

What do you think? Should State Nursing Associations exist purely as professional associations? Should State Nursing Associations exists as "blended" organizations, i.e. a professional association and a union? Should state nursing associations with the heavy or the majority of union membership convert to a union only status and focus only on the union activities?

There are 200,000 nurses (LPNs and RNs) in Ohio and in my opinion, the majority (50% or more) of these nurses will never be organized. Yes, I said it. The majority of Ohio's nurses will never be organized in a union. Its just not going to happen; look at the statistics, information, and the literature. ONA, which is a union and a professional association represents 6,000 via a union and 2,000 non-union. Also here, Ohio is a hotbed of union activity. We have the SEIU, NNOC, and Ohio Nurses Association here among others.

Also another thing that turns my stomach is how easy it is for nurses in one group/association/union (ANA enterprise) to say "we don't like those nurses" in this group/association/union (SEIU or CNA/NNOC) and vice versa. That's silly. We are all nurses and I don't say that I dislike a nurse because she supports the CNA/NNOC or the SEIU. 

Depending on the outcome of the ANA House of Delegates in June 2008, I will drop my membership in the American Nurses Association, Ohio Nurses Association, and Southwestern Ohio Nurses Association. I will also resign from the ANA Congress for Nursing Practice & Economics also.

I will remain a member of the Center for American Nurses and join as an individual member. I will continue my membership in TAANA, The American Association of Nurse Attorneys. I may consider joining the Kentucky Nurses Association. Why?

This is my blog and this is my opinion. I think the KNA Board made a choice that most State Nursing Association Boards don't want to consider or make. I applaud the KNA Board for making a choice. The KNA is splitting the professional association and the union. Some state nursing association executive directors and board members are happy and content to ride the fence although fence riding may not be in the best interest of the professional association, the union, and nurses in the state. Are some marriages just unhealthy?

Most executive and management level nursing professional association staff and the elected Boards are baby boomers. I have nothing against baby boomers (of course; the majority of my law firm clients are baby boomers) however in 15-20 years, I think and I am hoping the antiquated business and goverance models seen in some nursing professional associations today will be a thing of the past when Generation X and Y nurses manage and sit on the Board's of nursing professional associations. I am a Gen Xer if you haven't already guessed. 

The union vs. non-union debate is "played out" just like the entry level to practice in nursing debacle and the RN vs. LPN issue. Why are we still infighting about the same issues considering the state of healthcare and the nursing workplace? 

Most professional association staff and board members when asked "why don't nurses support your organization" have a multitude of answers and convoluted rationale for explaining the extremely low numbers. HINT. The problem is the professional association itself not the nurses who don't join professional associations.

Assaulting a Nurse Should be A Felony, Misdemeanor, or No Crime?

http://www.pressconnects.com/apps/pbcs.dll/article?AID=/20080408/NEWS01/804080357.

This is cut from the article:

Each year, 430,000 nurses are victims of violent crimes in the workplace, according to a U.S. Department of Justice report released a few years ago. Many incidents go unreported.

A more recent survey by the American Nurses Association found that 17 percent of registered nurses had been physically assaulted at work during a one-year period. Twenty-five percent of the nurses listed physical assault as one of the top safety concerns on the job. Nurses are 10 times more likely to be assaulted on the job than the average worker and twice as often as other medical workers, Tina Gerardi, CEO of the New York State Nurses Association said.

Legislation to make attacks on nurses a felony passed the Senate last week and is expected to come up for a vote in the Assembly soon. Similar laws have been enacted in Alabama, Arizona, Illinois, Nevada and New Mexico and have been introduced in several other states, she said.

Should patients and residents be prosecuted for assaulting nurses? You see two and three page documents on patient and resident rights in healthcare facility and written into state law and regulations; how about affording nurses the same or equal rights in healthcare facilities and state law and regulations?

If a patient or resident says "abuse" "neglect" "unfair treatment" or uses other language involving a nurse that implies the same, the incident is investigated, more than likely the nurse is at-will employed and terminated, and complaints are filed with state regulatory agencies including the board of nursing.

What's your opinion?

Now that's Interesting! Kentucky Nurses Association and Its Union are Parting

The Kentucky Nurses Association and its union are parting ways.

http://www.kentucky-nurses.org/news2.htm

I changed the poll on this blog today. The poll now asks in your opinion, if State Nursing Associations affilated with the American Nurses Association should exist as a professional association only, as a union only, or as a blended organization.

Is the marriage of a state nurses association and a union healthy in your state? Do you think the union/professional association combination (its referred to as a blended state in the ANA Enterprise) discourages nurses from joining the professional association in your state? Do you think joining a blended state organization, like the Ohio Nurses Association, which is a professional association and a union is unprofesssional? Do you think state nursing associations are relevant and provide needed products and services for today's nurses, union and/or non-union?

I am a member of a blended organization, the Ohio Nurses Association and I will tell you, its interesting. Blended meaning the State Nurses Association has a union arm and a non-union arm/workplace advocacy arm.

I use the term interesting because this is the term used by others (nursing board staff and national and state nursing association staff) to describe this blog and I think by saying something is interesting without more, speaks for itself.

I have a long post next week on the ANA Enterprise (American Nurses Association, Ohio Nurses Association, United American Nurses, and the Center for American Nurses) which is of course just my opinion and just my two cents.

Disciplinary Investigations and the Nursing Licensure Compact

It would be sooo nice, if all Nursing Boards were part of the Nursing Licensure Compact. See https://www.ncsbn.org/158.htm. Eventually most states and US jurisdictions in my opinion will be part of the Compact. It makes sense.

In my opinion, maybe one, two, or three of the American Nurses Association's concerns with the Nursing Licensure Compact still have merit. The bullet about using the Compact for strike breaking purposes is amusing. See http://www.needlestick.org/gova/concerns.htm

My concern with the Compact and concurrent Board of Nursing investigations in general as a licensure defense attorney, is the due process provided by state law and regulations in the investigations and the "sharing" of information between Compact States and the sharing of information when nurses are being investigated concurrently by more than one Board of Nursing (non-compact and via licensure by endorsement).

In my opinion, nurses are not afforded with enough rights in licensure defense investigations (which vary of course from state to state) and nurses should be afforded more rights:

1. Statute of limitations for the investigation and prosecution of complaints similiar to civil and criminal actions;

2. Right to receive a copy of the complaint and the investigative material in the Nursing Board's possession;

3. Right to request and subpoena documents throughout the investigative process like the Nursing Board, i.e. a process similiar to civil and criminal discovery;

4. Right to appear before a panel of Board members during at the conclusion of the investigative process;

5. A formal mechanism for mediation or settlement of a complaint that involves the sharing and exchange of information and that is not "one-sided" with the Nursing Board holding all if not most of the cards; and/or

6. The creation of a regulatory agency within a State that is separate and distinct from Nursing Boards that investigates complaints and/or conducts hearings or settlement conferences regarding complaints against nurses. This agency could do the same function for all licensed healthcare professionals within a state. There should be a separation of the investigative and adjudicative functions and the power to investigative complaints and decide the outcome should not be afforded to one agency.

Why? The potential for the abuse of power in State Nursing Boards because of little oversight and the lack of checks and balances seen with other government bodies and agencies.

Where are your national and state nurses association's when you need them? Actually instead of ANA and State Nurses Association (called Constituent Members Associations now) continuing to fight about the non-union and union arms of the ANA and the union and non-union arms within a State Nurses Association, tackle the issue of procedural due process in licensure investigations and adjudications. Tackle a substantive issue for the profession and maybe, just maybe, more nurses would join and support the ANA and State Nurses Associations.

Some Nursing Boards will go "kicking and screaming" into the Compact, but will not have a choice because of the growing concern and pressure from nurses, professional associations, and legislators within the state. Joining the Compact requires the relinquishment of "some power." 

I practice law in Ohio, Kentucky, and Indiana. Kentucky is a Compact state and this information is available on the Board's website. Indiana and Ohio are not Compact states.

Here is the Ohio Board of Nursing's statement regarding the Nursing Licensure Compact. See  http://www.nursing.ohio.gov/PDFS/6.8CompactJan08.pdf. If anyone has a link to the Indiana Board of Nursing position on the Compact, send it to me and I will update this post.

 

Criminal Convictions and Nursing Licensure

I met with a nurse this month who had criminal issues. He signed a document with a State Nursing Board and can't find a nursing job. He hasn't been licensed very long.

I spoke with a nurse endorsing for licensure with a State Nursing Board who didn't realize that she had to disclose a criminal conviction on the endorsement application.

I spoke with a nurse who failed to disclose a conviction to a State Nursing Board and the nurse has now been contacted by the Nursing Board about the non-disclosure.

If you have a criminal conviction(s) and you are seeking licensure as a NCLEX-Applicant or Endorsement Applicant, consider contacting an administrative law attorney in the state where you are applying BEFORE you submit an application to the Nursing Board. Some nursing board require the disclosure of convictions or criminal charges that were "diverted" or adjudicated through a "diversion program" and require the disclosure of expunged or sealed convictions.

Legal Seminar for Nursing Students

An article appears in the latest edition of the Journal of Nursing Law, which is the official publication of The American Association of Nurse Attorneys (TAANA). See www.taana.org. Its Journal of Nursing Law, Vol. 11, No. 4, 197-208.

The article is titled Current Legal Changes: Innovative Legal Seminar for Nursing Students. The article notes the exposure of nursing students to legal content is limited and suggests that schools and colleges of nurses offer a legal seminar for nursing students taught by a nurse attorney to fill in the knowledge gaps. What do you think? Good idea or Bad idea?

I like the article however I don't agree that the learning modules proposed are the most applicable to nurses. The article was co-authored by a hospital nurse attorney and this is obvious from the learning modules proposed:

1. Care of the Emanicipated Minor

2. Hospital Lawsuits

3. Nurse Malpractice and the Attorney

4. Liability of Nurse Managers

5. Physician Orders

6. Nursing Charting and Technology

7. End of Life Authorizations

Nursing care takes place in settings other than hospitals and as a nursing licensure defense attorney I would suggest and propose the following modules for nursing students:

1. Legal Regulation of Nursing Practice: Board of Nursing and Nursing Licensure Compact

2. Professional Regulation and Nursing Malpractice

3. Criminal Law 101 for Nurses

4. Employment Law 101 for Nurses

5. Nursing Documentation and the Medical Record

6. Pros and Cons of Professional Liability Insurance

7. Self-Regulation of Nursing Practice: Managing the Risks

What topics would you suggest for a nursing student legal seminar? Also this article illustrates in my opinion how nurse attorneys can have different and opposite perspectives on legal issues in nursing.

The client of a hospital nurse attorney is the HOSPITAL, not the individual nurse and the modules proposed above address HOSPITAL liability concerns more so while the modules I propose are centered around the individual nurse, not the place of employment. 

Board of Nursing Disciplinary Investigations

I spoke this month at the Mid Ohio Nurses Association Job Fair http://www.modna.org/ and The American Association of Nurse Attorneys seminar http://www.taana.org. Both events were held in Columbus, Ohio on April 10, 2008. I also presented at the Licensed Practical Nurse Association of Ohio Annual Student Convention in Columbus this month.

There were lots of questions about disciplinary investigations. Most nurses did not realize that the investigative process was adversarial. Because I represent nurses in disciplinary investigations, I announced at the beginning of the presentation that the content would be presented in a neutral and fair manner with no self-promotion.

Furthermore, the majority of nurses in these types of cases, in my opinion will never seek attorney representation. Therefore the CE presents an awareness of the attending issues in disciplinary investigation and the consequences of action against the license. In my opinion, most nurses don't appreciate the adverserial nature of the proceedings and investigations until well into the process and even then rely on the advice and counsel of friends, family, and nursing colleagues. 

If you have the opportunity to hear an attorney speak in your jurisdiction about Nursing Board investigations, I would suggest that you attend.

Fundamentals of Nurse Representation

The American Bar Association is offering a CLE course for attorneys, Fundamentals of Physician Representation. See http://www.abanet.org/cle/programs/t08fpr1.html.

The American Bar Association is also offering its annual Physician Legal Issues Conference this year. See http://www.abanet.org/health/02_programs/PhysicianIssues/2008/agenda.shtml

Why isn't there a national nursing professional association or national legal professional association offering these types of programs for attorneys who represent nurses?

If I had the time, I would start a professional association for attorneys who represent healthcare professionals. The association would be tailored to meet the needs of small firm and solo practitioners who represent not only physicians but other licensed healthcares including nurses, dentists, physical therapists, etc.

I am going to start playing the Mega Millions and the Ohio Lottery and if I win at least 10-25 million I would do the following:

1. Quit my job. Oh, I forgot I am self-employed.

2. Start a national professional association for attorneys who represent healthcare professionals.

3. Start an organization that monitors the legal, professsional, and self-regulation of nursing practice nationally and in every state or US jurisdiction. The focus of the organization would be the law, legalities, and legal issues facing nurses.

4. Hit the CLE and CNE circuit. The cost of live continuing education for attorneys and nurses is increasing. There are always CLE seminars for attorneys I want to attend but cannot stomach paying the cost of registration (anywhere from $900-$1,500.00 just for registration). These seminars are usually in Mexico, Cancun, etc. I'd attend at least one of these a month and vacation also.

5. Have all five of my dogs evaluated by the Dog Whisperer. Its a zoo at my house. 

More Nurses and Nursing Oversight in Youth Detention Facilities Needed

The Ohio Department of Youth Services (DYS) Settlement has been finalized. This action was filed by Plaintiffs on December 20, 2004. Plaintiffs alleged a system-wide failure regarding conditions of confinement within facilities operated by DYS that endangered Plaintiffs’ physical health and safety.

See http://www.dys.ohio.gov/dysweb/PressReleases/CohenReport/7-3-08%20Stipulation%20for%20Injunctive%20Relief.pdf starting at page 44 for nursing related issues.