My 2 Cents

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? 

Chemically Dependent Nurses: Proceed with Caution

This is post from Jack Stem at APECS (Addiction Prevention Education Consulting Services) in Cincinnati, Ohio. See his website at  http://www.jackstem.com/rants-and-raves.htm. Rev. Stem is  Peer Assistance Advisor for the Ohio State Association of Nurse Anesthetists. This appears on his website.

October 29, 2007

What an amazingly frustrating weekend.

After meeting with the treatment staff and the board members of Glenbeigh Treatment Center in Rock Creek, Ohio, I was feeling pretty darn good about addiction treatment and the progress that has been made over the 17 years since I entered treatment for the first time. But then that good feeling quickly dissolved over the past 24 hours.

I have a friend in treatment at the present time and she is doing well from the information I have received from her family. Unfortunately, the safety net that used to be in place for recovering nurses in the state of Ohio has disappeared. The group that had been following a nurse's progress through treatment and charged with monitoring the nurse's after care activities no longer provides that service. And as yet, I haven't been able to find anyone who has replaced the original organization or even knows of an entity in Ohio that I can contact about considering taking on this important service.

Chemical dependency in health care professionals is no surprise. After all, these dedicated professionals develop cancer, diabetes, hypertension, cardiovascular disease, and all of the other chronic diseases everyone else is subject to in their lifetime. Having an alternative to discipline program available for health care professionals with substance abuse issues and the DISEASE of chemical dependency is essential in discovering those individuals early and getting them into treatment before they can harm others or themselves. A punitive system assures prolonged periods while the practitioner is being investigated but is still practicing. When the loss of licensure is threatened, it prevents the impaired individual from seeking help early, if at all. It also makes it less likely a colleague or family member will report the individual because of fear of reprisal (i.e. lawsuits) or being held responsible for the loss of an individual's career and ability to provide an income for themselves and their family.

With today's "drug war" mentality, individuals who need treatment for this chronic, progressive, ultimately fatal disease will not seek that treatment until a major disaster occurs. Arresting the user and incarcerating them assures they most likely will NOT receive the medical treatment they deserve and need. Hopefully, that disaster isn't the death of a patient or of the practitioner.

Until society changes their view that addiction is a character flaw or moral weakness, the substance abuse/addiction epidemic will continue to grow, and society will continue to lose some of the best and brightest people in our communities.

*******************************************************

State Boards of Nursing vary in how chemical dependency complaints are resolved. I practice law in Ohio, Kentucky, and Indiana and there is a huge disparity just among these three states in how chemical dependency complaints are resolved between the Ohio, Kentucky, and Indiana Nursing Boards.

Some Nursing Boards take a punitive and discipline-oriented approach. The nurses being monitored by these Nursing Boards state its worse than criminal probation and some eventually surrender their nursing license.

Then there are some State Boards of Nursing that recognize chemically dependency is a disease and truly work with nurses in an alternative program type situation to return to practice. Relapses are not punished and the public is still protected.

If you are chemically dependent and you want to seek assistance; consider contacting your State Nurses Association or Specialty Nurses Association for assistance first. Then contact a licensure defense attorney to determine how chemical dependency complaints and the Nurse's Alternative to Discipline Program (if your state has a program) works and should you apply.

Speak with professionals (mental health, counselors, attorneys, etc.) and don't exclusively on the advice you receive from peers. Afterall your license is your livelihood and its becoming more difficult every year to retain an unrestricted and unencumbered nursing license as a chemically dependent nurse in some states.

If you are a Physician, Nurse, Teacher, or Attorney; Your Legal Issues May Be Published and Sensationalized!

See this article about an Ohio physician who had licensed suspended by the Ohio Medical Board and was criminally charged with practicing medicine without a license. Practicing medicine without a license is a felony in the State of Ohio.

Its mentioned on the Cincinnati Enquirer's website on March 14, 2008.

http://news.enquirer.com/apps/pbcs.dll/article?AID=/20080314/NEWS01/303140075.

*********************************************************

I am sure none of us as licensed professionals want to make the news in this fashion. So keep in mind, as a licensed healthcare professional, if you are charged with a crime and have licensure issues with the State Board; it may be splashed across the internet or the newspaper.

I don't know about you but that alone is enough to keep me out of any trouble! I can see the story now:

LaTonia Denise Wright, a Cincinnati, Ohio attorney and registered nurse was charged with having too many pool parties from May 2007-September 2007. Ms. Wright, who is a licensed attorney in Ohio, Kentucky, and Indiana is facing investigations in each state. Ms. Wright may be disbarred in Ohio, Kentucky, and Indiana, and lose her Ohio nursing license and custody of her three poodles and two labs. We contacted Ms. Wright's law office. Ms. Wright was not available for comment and her secretary referred all questions to Ms. Wright's personal counsel.

All jokes aside, its not uncommon for the legal issues (criminal, employment, professional malpractice claims, and/or licensure matters) of teachers, attorneys, physicians, and nurses to be publicized.

Just another incentive for you as a nurse to proactively manage the risks associated with nursing practice.

Any Licensed Attorney Can Handle a Nursing Board Defense Case, Right?

Taralynn Mackay, a nurse attorney in Texas who represents nurses in licensure matters has an excellent post on her blog about attorney representation in nursing licensure defense cases. See http://nurseattorney.blogspot.com/.

I agree with Taralynn. You have to ask questions before you retain an attorney. Practicing law is a profession but its also a business. Nursing licensure defense cases are not "big money"  or "large retainer" cases for law firms for the most part. Therefore you may find that your case, which generates a few thousand dollars in fees is considered "small child sized fries" for the law firm although its your license, your livelihood, and a "super-size fries" case for you.

You may retain an attorney only to find that your matter is not a priority for the attorney (your phone calls are not returned, your emails are not answered, you are not provided with copies of motions filed with the Board, email discussions and negotiations with Board staff are not forwarded to or you are not provided with a hard copy, etc.) and that the attorney does not have any experience with administrative law and nursing licensure issues.

Ask have you worked with nurses before? Its nice to know that the attorney's aunt, uncle, and second cousin are nurses; but you still need to know if the attorney has experience before the Nursing Board?

Don't quiz your attorney. If I am asked how many nurses sit on the Indiana, Kentucky, and Ohio Nursing Boards, I will find and refer to my cheat sheet. Ask substantive questions to determine if an attorney is competent to handle your case.

Ask the attorney questions. Ask for a copy of his or her CV. Ask about experience and education. Ask what percentage of the attorney's practice involves nursing licensure defense. Its your license, its your case, and you are the client. Without clients like nurses, the legal profession would not exist.

I don't take criminal defense, personal injury, workers comp, or medical malpractice cases because I limit my law practice to nursing licensure and professional practice matters. I can tell you from having practiced in this area where the licensure defense attorneys are located in Ohio, Kentucky, and Indiana.

Most licensure defense attorney represent other licensed healthcare professionals also lincluding dentists, pharmacists, physicians, etc. Just the other day, I referred a physician to an attorney colleague in Columbus, Ohio who needed representation before the Ohio Medical Board.

If you need to retain a licensure defense attorney, contact your state nurses association for a referral. Then "google" the attorney's name to see what information you find. Do your research before retaining an attorney to represent you in a licensure matter.

Are You Engaging in the Unauthorized Practice of Law?

This article appears in the Fall 2007 Momentum, a publication of the Ohio Board of Nursing, on page 6. The question is directed to nurse educators and faculty and notes "faculty members or administators may encounter situations in which a nursing student seeks help in addressing questions on the licensure applications that could be construed as legal in nature." See http://www.nursing.ohio.gov/publications.htm.

What's the bottom line? A nurse unless you are a licensed attorney in your state, you should NEVER give another nurse or nursing student any legal advice or counseling about a professional practice matter which includes the completion of Board of Nursing Applications for Initial Licensure and Endorsement.

I blogged about this issue a few months ago as I am finding that more and more nursing students and nurses receive "legal advice" from non-attorneys about disciplinary investigations and professional practice matters. If you want to practice law, graduate from law school and pass a state bar exam. No exceptions.   

The Nursing Police and Nursing Regulation

My colleague, Taralynn R. Mackay, JD, RN , a nurse attorney who represents nurses before the Board of Nursing, had a well written article published in the Nurse Grad Issue 2007 • Page 31 of Advance for Nurses. The article is titled "The Nurse Police." See http://nursing.advanceweb.com/editorial/search/aviewer.aspx?an=nw_07sep1_nngp31.html&AD=09-01-2007. See Taralynn's blog at http://www.nurseattorney.blogspot.com/.

This is a quote from the Nurse Police article:

It's important to note that the Board was not established to be the guardian and protector of nurses in their particular state. This is a surprise to many nurses, who often misinterpret the board as their advocate. The job of advocating for nurses is performed by professional organizations, such as the state or national nursing association. Boards are entrusted to protect the public, not nurses.

Think of the board as the "nurse police" or nursing regulators and a better understanding of their role emerges. The board is on the side of the public, and has the right to investigate the behavior of any nurse who may have violated the practice act.

*****************************************************************

The article correctly notes most nurses are concerned about medical malpractice and nursing negligence although a nurse is much more likely to be reported to a State Board of Nursing than sued as an individual defendant in a professional negligence action.

What has been your experiences with your State Board of Nursing? How would you use to describe your interactions with State Board of Nursing staff?

READ Your Insurance Policies

I posted on this subject earlier this week that all professional liability insurance policies are not made equal. Well guess what?

I spoke with a nurse this week who just received notice a complaint was filed against her license with the Board of Nursing. She has professional liability insurance with an insurance company that writes a large number of policies for nurses.

She was told by the insurer that the policy only cover attorney fees and costs for a licensure defense HEARING! It does not cover attorney fees and costs during the investigative phase.  What a JOKE!

Depending on the particular State Board of Nursing and the Nurse Practice Act and Board of Nursing Regulations, cases are investigated and adjudicated differently. A case may not proceed to a hearing but this doesn't mean the nurse should not be afforded with attorney representation.

Nurses, READ your professional liability insurance policy. If you don't understand the language and conditions in the policy, consider setting up a legal consultation with a licensure defense attorney in State so that you know UP FRONT the limitations, terms, and conditions in your policy in the event you are named as defendant in a malpractice case or if the event a complaint is filed against your license with a regulatory board.

Nursing Students and Criminal Convictions

I spoke with a prospective nursing student yesterday. She completed a year of nursing school. She was charged and convicted of Domestic Violence involving a minor (the situation occurred with her teenager daughter); its a misdemeanor, but its a M1. She was told by two different criminal defense attorney that Domestic Violence, M1 could not be expunged.

She wanted to know if she should continue her nursing education or consider another healthcare profession. I asked her if she would be willing to meet with me for a legal consultation given her situation however, she is strapped for cash.

All nursing students who have criminal convictions (misdemeanors and felonies) should consult with a nurse attorney (who practices before the Board of Nursing) before enrolling in and completing your nursing training. Nursing Instructors and Professors usually are not licensed attorneys and cannot provide a nursing student with legal advice and counseling on his/her options related to criminal convictions and licensure.

My sister recently completed her massage therapy training. The Ohio Medical Board application for licensure (massage therapists are regulated by the Medical Board in Ohio) asks detailed information not only about criminal charges and convictions but also about all cases where you were a defendant, this includes civil cases. This information was presented in her  class earlier this month. I had, of course, already discussed this with her at length seeing this is what I do for living.

Why not present this type of information in these programs at the beginning so that students can make an informed decision on whether or not to complete the training? Are these schools worried that students will not continue in the program and the school will lose money? Is it the duty and obligation of the student who has criminal convictions to seek out this information?

My sister mentioned that one women in her class started crying because she has multiple felony convictions and several other students expressed concern about their criminal convictions and the ability to obtain licensure.

I see this a lot with LPN training programs in Ohio. Its unfortunate and it turns my stomach. Are these schools acting in the best interest of students by delaying the presentation of this information? Should students actively seek out this type of information on their own? What do you think?

Nurses Proceeding Without Legal Advice

I appeared with a nurse client yesterday before the Indiana Board of Nursing. What struck me after listening to the appearances for applicants for initial licensure and applicants for endorsement was not that the nurses didn't have legal counsel. That's no surprise because the majority of nurses involved in a licensure matter don't have legal representation.

What about at a minimum seeking legal counseling and advising even if you don't formally retain an attorney? What struck me was in a few cases the nurses or nursing school graduate did not even attempt to seek legal counseling or advise in regards to their particular situation whether it was disciplinary action (probation, suspension, or practice restrictions) in another state or the impact of criminal convictions. Two of the appearances (both nurses seeking licensure via endorsement) obviously didn't have a clue as to the impact of Board of Nursing action against a license in the state where you endorsing from. Several nurses had previously signed legal documents (Consent Agreements, Agreed Orders, etc.) allowing action against their license without understanding the implications of the legal documents.

Even if you decide not to formally retain an attorney to represent you, at least consider scheduling a legal consultation with an attorney to review the facts and circumstances surrounding YOUR situation. You can't obtain this type of advice from collegues or online nursing chat rooms. You want legal advice from an attorney with experience in nursing licensure matters. Have an attorney review ANY legal document that pertains to your nursing practice before you sign it whether its an employment contract, Consent Agreement, Agreed Order, etc.

As nurses we must start protecting ourselves and that includes knowing when to seek a legal consultation or assistance in a licensure matter. Your license is your livelihood and its YOUR job, role, and obligation to protect yourself. To find a nurse attorney in your area, see www.taana.org, the website for The American Association of Nurse Attorneys (TAANA).