My 2 Cents

Are You Receving Legal Advice from your colleagues at the Water Cooler?

I was contacted by a nurse who is involved in three state Nursing Board investigations. The nurse was told by a colleague that she should just surrender her license in two states and keep her license in one state.

It would be that nice if it were that simple. When you need legal advice, do you go the water cooler at work? The water cooler being the place in an office where folks chat and discuss personal and professional affairs. For nurses it can be the nurses station, lounge, etc.

No one likes to contact attorneys. I feel the same way when I have to contact my  accountant and I really like my accountant. Its a good year for me if I only have to see my accountant around tax time. 

If I had $29.95 for everytime a nurse received legal advice about a licensure or professional practice matter from a person who is not licensed to practice law, I could retire and be a stay at home mom to my five dogs and underemployed/unemployed 18 y/o son.

If you need legal advice consult an attorney. The water cooler is not the place for legal advice and counseling on licensure and professional practice matters for nurses.

Billing for Skilled Nursing Services

I am a home care nurse. Although I haven't worked in several months (my law practice keeps me extremely busy), I still consider myself a home care nurse and I plan to return to clinical practice at the end of the year.

If you work as home care nurse, only bill for the skilled nursing services you provide. This cannot be overstated. Improper billing may be a crime and may subject you to a Nursing Board investigation. Its not worth it (actually it may be in the short term with the extra income for some) because at some point if you are overbilling, double billing, and engaged in other "under the table" activities while providing skilled nursing care, it will catch up with you.

As a home care nurse, I know it happens. But that does not make it right or appropriate because other nurses are doing it. Take the high road because your license, your liberty, and your career as a professional nurse is "on the line" if your billing for skilled nursing services is questioned for overbilling.

Positive Drug Screen and You Don't Have a Script!

I was contacted this week by a nurse who tested positive for a medication and he doesn't have a prescription for the medication.

His employer is investigation and told him the employer is required by law to report this information to the Nursing Board.

What are the issues here?

Requesting a Hearing before the State Board of Nursing

If you receive correspondence from the State Board of Nursing stating you have __days to request a hearing, don't try to compute the time period and figure out the last day to file your request for a hearing. Request a hearing asap.

It is _days from receipt of the letter or from the date on the letter? Does it have to be mailed to the Board of Nursing in __days or does it have to be received by the Board of Nursing within __days?

This is just common sense, not legal advice.

You may not count the days correctly or compute the time period accurately and thereby forego your right to a hearing.

1. If you receive a correspondence from the State Board of Nursing about an investigation, consider contacting a licensure defense attorney. You can represent, counsel, and advise yourself or you can hire an attorney to represent, counsel, and advise you.

2. If you receive correspondence from the State Board of Nursing about requesting a hearing and formal charges being filed against your license, contact a licensure defense attorney immediately. You can represent, counsel, and advise yourself or you can hire an attorney to represent, counsel, and advise you.

Action Against Your Nursing Licensure and a Medicare and Medicaid Exclusion

See this case:

http://www.hhs.gov/dab/decisions/CR1615.htm

What do you think? Do you consider this harsh? A second bite at the same apple? Necessary.

Bermuda Triangle of Nursing Practice: Application of Nursing Law, Ethics, and Professional Practice Standards

This article was published in the Kentucky Nurse, the official publication of the Kentucky Nurses Association.

See the Kentucky Nurse, page 6 of the April, May, June 2008 edition here.

Download kentuckynurseblog.pdf

Do you agree, disagree, or have any comments you would like to share?

Common Theme from June 2008: Failing to Appreciate the Adversarial Nature of Nursing Board Investigations

June was a very interesting month as far as law office phone meetings, inquiries and consults.

One common theme was failing to appreciate the adversarial nature of Nursing Board investigations. Common remarks from nurses were:

"I thought the Nursing Board was on my side"

"I didn't know I could hire an attorney"

"I didn't think this was THIS serious"

"I only did what I told to do by the Board and this is where I am"

"I dont' have money to hire an attorney"

"Why should I hire an attorney, I didn't do anything wrong"

"Hiring an attorney, makes me look guilty"

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Liberty or Licensure & Livelihood: Ene Mini Miney Mo, Criminal Defense Attorney or Licensure Defense Attorney

If you are charged with a crime as a licensed nurse (RN, LPN, APRN) you may have to retain a criminal defense attorney and a licensure defense attorney.

1. If you are charged with any crime (outside of traffic tickets) retain a criminal defense attorney.

2. If you are contacted by the State Nursing Board about the pending criminal matter, you can retain your criminal defense attorney to represent you in the licensure matter or you may have to retain a licensure defense attorney.

How will the Board of Nursing know about a pending criminal matter and charges? Law enforcement, your current or former nursing employer, another state regulatory agency, etc. may have contacted about the Board especially in the alleged criminal conduct occurred in a facility.

Its not uncommon for nurses to have a criminal defense attorney and a licensure defense attorney. There are criminal defense attorneys that also handle licensure matters however this may be a seperate retainer and fee.

Why am I mentioning this? I have terminated the attorney-client relationship with three nurses for non-payment of legal invoices in the last 30 days. All three of these nurses had to retain a criminal defense attorney and then retained me as their licensure defense attorney. Clients can terminate attorneys and attorneys can terminate clients.

When a nurse is charged with a crime, retaining a criminal defense attorney or securing the services of a public defender (if you meet certain income guidelines and depending on the criminal charges) is a priority. Its your liberty. However your nursing license is your livelihood and should be a priority also.

3. Consider purchasing your own professional liability insurance policy. It will not cover criminal defense fees but it will cover licensure defense before the Board of Nursing. The three nurses I represented and subsequently terminated did not professional liability insurance.

4. I know alot of us are living paycheck to paycheck in these tough economic times. However you are licensed professional. Save a dime or two here and there for a pinch. I don't think anyone goes to work as a nurse and says "I am going to do something that gets me charged with a crime and reported to the Nursing Board" but if this happens you may be a pinch. See http://www.thefreedictionary.com/pinch.

I have had at least 4 nurses contact me in the last 45 days saying they don't have money to retain a licensure defense attorney because they had to retain a criminal defense attorney. What do I say? I feel for these nurses however attorneys like nurses expect compensation for practicing.

Which is most important in your opinion when a nurse is charged with a crime and is also being investigated by the Nursing Board: retaining and paying a criminal defense attorney or retaining and paying a licensure defense attorney?

Nursing Students, Criminal Convictions, and Employability

Now this is interesting. There are nursing students waiting in line for clinicals. Many of those students have criminal convictions and in my opinion should REALLY consider which state they apply to for initial licensure and whether or not their criminal convictions will damper their employability.

True story. My sister attended massage therapy school and graduated from a program here in Cincinnati. I won't say the name of the program. Its an expensive proprietary school.

To obtain licensure as a massage therapist in Ohio, you have to apply for licensure with the Ohio Medical Board. The Medical Board Application for message therapy licensure reminds me of the Ohio Supreme Court Application for Attorney licensure. The application asks for everything. http://www.med.ohio.gov/mt_about_massage_therapy.htm

Have you ever been a plaintiff or a defendant in a case? WOW! Yes, this includes a divorce. Yes, this includes a foreclosure. Yes, this includes a bankruptcy. Yes, this includes any type of case, litigation, or lawsuit. Yes, this means what its says.

There were several (more than half) of her class who had criminal convictions and the school never mentioned to any prospective student the role criminal convictions play in licensure.

What I am saying? Healthcare is a ripe field, especially nursing. However, if you have criminal convictions consider:

1. Am I eligible for a license in nursing, PT, OT, social work, respiratory therapy, message therapy, etc. because of my criminal convictions?

2. Eligibility is one thing, that's the floor; now look up from the floor to the celing. Based on the current licensure climate in State A before Board Z, what are the chances that I will be issued an unrestricted license vs. a restricted license (probation, fines, etc.)? This may require you to consult with a licensure defense attorney in your jurisdiction.

3. If I am issued a restricted and encumbered license by the State Board, can I find employment in the field with a restricted license? Where will I work? What are the chances that an employer will hire me? How employable am I? Am I further restricted in employment opportunities because of my criminal convictions?

4. Should I realistically consider employment in another field in healthcare? Maybe a career as a unlicensed professional or paraprofessional in healthcare.

5. Should I realistically consider employment in a field outside of healthcare because of my criminal convictions?

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?