Nursing Law & Order

Ohio Staffing Bill (HB 346)

This information appeared in the Ohio Nurses Association Member updated tht I received yesterday:

On Wednesday, February 6, 2008, Substitute HB 346, the Hospital Nurse Staffing Plan, gained momentum as the House Health Committee, chaired by Rep. Lynn Wachtmann, unanimously reported the bill favorably to the House of Representatives.

Lisa Rankin (ONA Lobbyist) and Bianca Miller testified on behalf of ONA.  Bianca Miller, a registered nurse for twenty years, testified regarding her personal experience with the impact that recent staffing changes have made to the qualify of care she provides and morale of staff at her hospital.  Ms. Miller further testified that her support for HB 346 rested on the hope that it was a “first step” in a different direction as bedside nurses have a voice in staffing decisions.  Ms. Miller powerfully stated, “In order to feel respected and valued, an organization needs to include the nurses in everyday operations…A committee with bedside nurses, hospital administration, and nursing management needs to be established.  An ongoing evaluation of the ANA [American Nurses Association] Staffing Principles needs to occur with established bench marks.”

The next step for Substitute HB 346 will be presentation to the full House to vote on, and, if passed, then the whole process begins again in the Senate.

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

The American Nurses Association (ANA) believes staffing ratios need to be required by legislation but the number itself must be set at the unit level with RN input, rather than by the terms of the legislation. See http://www.safestaffingsaveslives.org/.

How do you feel about nurse staffing legislation? Should nursing staffing be legislated in your opinion? Do you support mandated nurse-patient staffing ratios or staffing principles like ANAs?

Do Nurses See Attorney Fees as a Necessary Expense?

Nationally there are alot of nurses being monitored by a Nursing Board. Just a word of advice, nurse to nurse, this isn't legal advice of course.

If you are being monitored by a Nursing Board, you must STRICTLY comply with the terms and conditions listed in the Board Order, Consent Agreement, Consent Decree, Agreed Order, etc. Substantial compliance or partial compliance isn't enough.

If you have any questions about a Nursing Board document, consult with a licensure defense attorney in your jurisdiction. The attorney can assist you by explaining the document and what's required by the document.

Its not the job or role of the Nursing Board staff (this includes attorneys, monitoring agents, adjudication coordinators, investigators, etc.) to advise and counsel you regarding licensure issues and monitoring. In my experience, I have found that as a group, we as nurses turn to any and everyone except for attorneys for legal advice and counseling.

My son is 18 years old and my estate planning documents needed to be revised. I can't imagine if I passed suddenly what my son (who lives at home, sleeps until 2pm, and is underemployed) would do with the insurance money. Can you say trustee? I contacted an attorney and retained an attorney to revise these documents. I am not an estate planning lawyer. Of course I would rather have spent this money on something else but it was a necessary expense.

Do you think we as nurses view attorney representation, counseling, and advising in licensure, criminal, civil, employment, business, and professional practice matters as a necessary expense?

Walking the Tight Rope: HIPAA vs. Nursing Board Reporting

You are a staff nurse in a small rural hospital. You are working from 7am to 7pm today. You enter the conference room only to find you are caring for a fellow nurse who was admitted for a suspected drug overdose. You don't know this nurse however its the talk of the unit. This nurse tested positive for several illegal drugs including marijuana and heroin. The nurse-patient is not an employee of the hospital.

Are you morally, ethically and/or legally required by the State Nurse Practice Act to report this nurse to the State Board of Nursing or does HIPAA and state privacy laws prohibit the reporting? What does the ANA Code of Ethics mandate in this situation? What would you do in this situation? What are your concerns?

Its Due Process Alright! Its Just Watered Down and Caffeine Free

I support my State Bar Associations. Membership is voluntary but I do belong to the Ohio State Bar Association and the Indiana Bar Association. Kentucky is a mandatory bar, so I don't have a choice. But that's another post.

One of the benefits of OSBA membership is the Ohio Bar Report, the green book which includes litigated cases including attorney discipline.

In Discipline Counsel v. Heiland, 116 Ohio St.3d, 2008-Ohio-91, an attorney was charged with violating the Code of Professional Responsibility. One of the attorney's argument's was that his right to due process was violated because the charging agency was allowed to amend its complaint 20 days before a scheduled hearing.

The Ohio Supreme Court stated "the standards of due process in a disciplinary proceeding are not equal to those in a criminal matter. A disciplinary proceeding is instituted to safeguard the courts and to protect the public from the misconduct of those who are licensed to practice law, and is neither criminal nor a civil proceeding."

Do you think licensed professionals and licensed healthcare professionals including of course nurses should be afforded the same rights afforded to criminal defendants and civil litigants in administrative disciplinary investigations?

In my opinion, due process is due process. Why should we as licensed professionals be afforded less due process when its your license and your very livelihood at issue? Its another licensed professional this time, but it may be you next time or in the future.

Maybe state nursing associations and other organizations that advocate for nurses should tackle this issue. What do you think?

Las Vegas Here I Come, Again!

I love Las Vegas! If I win the Mega Millions lottery today, I would buy a vacation home in Henderson, Nevada and say goodbye to this Midwest weather from November to April every year.

The National Black Nurses Association is having its annual meeting and conference in Las Vegas this year and I never need an excuse to stay at the Mandalay Bay. See http://www.nbna.org/conferences/conf08/conference_registration_form.pdf.

The conference is August 4th-8th. My fiance's (no, I am not engaged but it sounds better than boyfriend) birthday is July 28th. My b-day is July 2nd. I am thinking about surprising him with a trip to Las Vegas for his birthday. What do you think?

I don't that we will stay at the Mandalay Bay; its located at the far end of the strip, near the Luxor and Excalibur. I prefer to stay in the middle of the strip at the either the Flamingo, Bellagio, Treasure Island or Paris Hotel.

Where do you stay when you travel to Vegas? Oh and what you say on this blog, stays on this blog!

Are All Nursing Board Complaints Filed in Good Faith?

I have practiced licensure defense since 2001 as an attorney in private practice. I can tell you there are some nursing employers and these are typically large teaching hospitals that report "everything" to the Board of Nursing. I mean everything. If a nurse drops a vial of saline, its reported. If you slip up and say "shit" on the unit; it gets reported.

Then there are facilties that never report a nurse to the Nursing Board unless it makes the news or a patient/resident threatens to sue or go to the media.

Why is there such a disparity? The underreporting and overreporting both should be addressed; not just one or the other.

Some if not most State Board of Nursing are mandatory reporting states. Look here for an explanation of mandatory reporting. https://www.ncsbn.org/163.htm. This is from the National Council of State Boards of Nursing website.

Some employers report nurses for the wrong reasons. If you want to argue with me on this point, call me. Its a distrubing trend I am seeing in my law practice. I will speak with a nurse or meet with a nurse and think to myself or aloud "this was reported to the State Nursing Board?" Incidents that could have been managed or handled "in house" are being reported to the Nursing Board under the auspices of "mandatory reporting." Is it really mandatory reporting or is there something else going on here?

In some cases, the reporting is not done because of perceived or actual violation of the nursing law and regulations or patient safety, the motive is more sinister and self-serving. After all, who wants to be investigated by the Nursing Board? 

I know that when I pick up a home health visit here and there, I don't walk into a patient's home thinking, "I am doing to do something that gets me reported to the Nursing Board!"

Its done to humiliate, upset, and torment the nurse and its works! Why does this happen? Because of the one-sided nature of hiring/firing that benefits the healthcare employer and the perceived and actual lack of fairness, equality, and power of nurses in the healthcare working environment.

The State Nursing Board complaint becomes the healthcare employer's equivalent of giving the nurse one final middle finger "for the road" because usually the nurse has already been disciplined, suspended or terminated by the facility.

ANA Releases New Guide to the Code of Ethics for Nurses: Interpretation and Application

The American Nurses Association release a new 200 page publication is for RNs and ithe publication refers to and utilizes the ANA Code of Ethics for Nurses with Interpretive Statements as a guideline for putting the core values expressed in the Code into everyday practice. See http://nursingworld.org/HomepageCategory/NursingInsider/ANAReleasesNewPublication.aspx.

I am planning to purchase this guide next week and I will post my review on this blog in the next few weeks.

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.

Nursing Student and Nursing Faculty Relations

I received a phone inquiry this week from a nursing student. The Nursing School/College is taking steps to expel the student from the program. This isn't the first of such calls I have received from nursing students who are being expelled from a nursing program for whatever reason.

Do you think nurse educators and nursing faculty are too tough on nursing students? Are programs designed to fail students? Are the policies and procedures used by nursing schools and colleges to grieve issues (attendance, exams, grades, practice issues, etc.) that occur with nursing students fair?

We have all heard about nursing eating its young. Does this ugly behavior start in nursing schools and colleges (faculty and educators to nursing students) and then continue into the practice environment (nurse to new nurse/former nursing student)?

State Boards of Nursing should devote more time to investigating nursing student complaints involving nursing schools/colleges and nursing faculty. This should be included in determining whether or not the school/college maintains its status with the State Board of Nursing.

Patients in the healthcare environment can turn to nursing administration to hold nurses accountable and also the State Board of Nursing. Nurse educators and faculty are practicing nurses also. Who can and should nursing students look to for holding nurse educators and faculty accountable? The nursing school or college.

The Ohio Board of Nursing allows nursing students and other interested parties to file complaints against a nursing school/college via a Nursing Education Dissatisfaction Form. See http://www.nursing.ohio.gov/PDFS/Forms/NrsgEdReportform.pdf. 

This particular student is over $50,000 in debt from her undergraduate nursing education and less than 10 weeks from completing the program. I didn't accumulate that kind of debt with nursing and law school combined.

I can't discuss the specifics but in my opinion this student is not being treated fairly. But again, fairness is in the eye of the beholder and in this case the Dean of the College.

We have all heard about the nursing faculty shortage and nursing shortage. Have you ever heard of a lawyer shortage? Okay, I made myself laugh with that one.

Is the environment in the nursing workplace (both for staff nurses and nursing faculty) the reason why there is a nursing shortage? A shortage in a field is indicative of something in my opinion. The shortage of nurse educators and nurses is indicative of "what" in your opinion?

 

What is the Role of a Nursing Board Investigator?

I was contacted by a nurse regarding a pending disciplinary investigation and complaint filed against her license with a State Nursing Board.

According to the nurse, a Nursing Board Investigator indicated that attorney representation was not necessary.

Magical Moment. If you have to question whether or not you need an attorney in any given situation, then you need to speak with an attorney. As a professional nurse, you shouldn't need or require an affirmative response from anyone (your nursing supervisor, law enforcement agent, drug diversion task force officer, attorney general investigator, regulatory enforcement agent, nursing board investigator, etc.) on whether or not you need to seek legal counsel to protect your nursing license and your livelihood.

Trust your instincts! If you instincts tell you need an attorney, then invoke your right to attorney representation.

I found this on the internet and its a public document. Its the State of Ohio, Department of Administrative Services (DAS), job description for a Nursing Board Enforcement Agent. See http://www.das.ohio.gov/hrd/cspecs/classpdf/2162.pdf.

Read the job description and you will know the role of a State Board of Nursing Investigator or Enforcement Agent if and when you are contacted regarding a complaint filed against your license.

Are You Looking for Free Legal Advice?

Guess what? You won't get it here.

I receive at least three to ten phone calls a month from nurses who essentially want legal advice without establishing an attorney-client relationship. I've been an attorney for almost 11 years and in private practice for 7 of those years so its easy to identify those callers.

I cannot and will not provide advice or counseling to anyone without establishing an attorney-client relationship. This protects me and it protects the nurse also.

Some attorneys offer free legal consultations. I don't. Most attorneys who offer free legal consultations often handle cases on a contingency basis and therefore use the free consultation as means to screen cases for merit.

I don't handle contigency cases and I don't sue anyone or any agency. I use flat fees for the majority of my cases. I use hourly billing for insurance defense work and institutional clients, like hospitals, schools of nursing, etcs.

My law practice involves representing, counseling, and advising nurses in licensure and professional practice matters. I defend nurses who have been reported to the Indiana, Kentucky, or Ohio Board of Nursing. I also represent nurses before federal and state regulatory agencies and counsel nurses on labor, employment, clinical, and contractual issues.

If you have a workplace issue, contact your state nurses association first. You can speak with a staff person there and they may be able to assist you. You can also contact the state board of nursing for information about nursing practice issues.

However if you want legal advice and counseling from an attorney licensed in your jurisdiction; schedule a consultation, either via phone or in-person with an attorney in private practice.

I have said this many times before....I think this is one area where state nurses associations and/or national nursing associations can provide a real and identified need AND fill the void between worplace consultations and legal consultations for the 3 million RNs and several hundred thousand LPN/LVNs in the United States.

What do you think? Most dentists and physicians have an attorney either on retainer or  whom they have utilized for business transactions. Nurses for the most don't have an attorney on retainer for legal services related to professional nursing practice.

Luke and Leia: the Saga in our home continues

I had four toy poodles. In June 2007, Paulie had a seizure and died. I still have three toy poodles: Amidala, Anakin, and Petie. Like so many of you, I am attached to my dogs.

I have two new puppies; two 8 week old labrador retrievers. Luke Skywalker and Leia Organa Skywalker. Both of course are characters from the Star Wars Movies. I call them Lukie and Leia. I considered Frodo from the Lord of the Rings but since Frodo didn't have a sister or love interest.....

Petie and Paulie. The names are from the movie Good Fellas. If you are familiar with the movie, you might remember this line at the wedding....This is my cousin Petie and my nephew Paulie...

Queen Amidala is from the Star Wars movies. Everyone knows that Anakin Skywalker became Darth Varder and later became Anakin Skywalker before his death. You might remember this line from the movie, ....Luke, I Am Your Father!

Yes, I am a Star Wars Fan and I do love my dogs! I will post pictures soon.

Until then, May the FORCE Be With You!!!

Nursing Administration: Scope & Standards of Practice

This is from the American Nurses Association website:

The draft Nursing Administration: Scope and Standards of Practice document is available for public comment until February 20, 2008. The workgroup is interested in your comments about clarity and completeness of content. What gaps need to be addressed? Any other recommendations for improvement? Don't worry about grammatical errors. Those will be addressed in during later reviews and editing activities. Please use the online comment form to submit your comments. (See below.) If necessary, please contact ANA staff members Carol J. Bickford, PhD, RN-BC, at [email protected] [301-628-5060] or Yvonne Humes, Senior Administrative Assistant, at [email protected] [301-628-5070] for questions or other information.

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

I don't think the majority of us as nurses appreciate the legal, ethical, and professional importance of the ANA Scope and Standards of Practice.

Are you familiar with the ANA Scope and Standards of Practice applicable to your practice area? To purchase see www.nursesbooks.org.

ANA Likes Hillary Clinton; This Blogger likes Obama

The American Nurses Association has endorsed Hillary Clinton. See http://nursingworld.org/FunctionalMenuCategories/MediaResources/PressReleases/2008PR/ANAEndorsesClinton.aspx

This blogger likes Barack Obama. See http://my.barackobama.com/page/content/semr?source=SEM-register-google-obama-search-national.

Nurse Convicted of Vehicular Manslaughter

The Cincinnati Enquirer regularly mentions that an individual is a nurse when he or she is charged or convicted of ANY crime. It makes the paper in Cincinnati and this week alone THREE instances of criminal conduct involving nurses was mentioned in the Cincinnati Enquirer.

I don't think its a case of Nurses Gone Wild!

Its a reflection of the garden variety criminal conduct you see with American citizens; it just so happens this individual is a licensed professional or a licensed healthcare professional.

See this article. This nurse fell asleep after driving home from a 12 hour shift and struck and killed a man.

http://news.cincinnati.com/apps/pbcs.dll/article?AID=2008802150395.

Nurse convicted of:

Physician indicted for:

Lawyer recommended for disbarment for:

Teached accused of misconduct related to:

Criminal conduct and convictions for licensed professionals don't mix well. More and more cases in my law practice involve criminal conduct, criminal convictions, and nursing licensure.

Are You Active in the Profession?

This is from the ANA website. See www.nursingworld.org.

The ANA Nominating Committee has extended the call for nominations for a slate of candidates to be presented to the House of Delegates for a vote at its June 25-27, 2008 meeting in Washington, D.C. The deadline for the submission of nominations for the initial slate has been extended to February 25, 2008.

The following are the open slots which are available:

President, First Vice President, Second Vice President, Secretary, Treasurer, five Directors-at-Large positions including two Staff Nurse Directors-at-Large,  five Congress on Nursing Practice and Economic Positions, and four Nominating Committee positions.

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

I was elected to the Congress on Nursing Practice & Economics at the 2006 House of Delegates in Washington, DC. Its a four year term. I would encourage you to consider running for the Congress.

On another note. This is the first year in a long time where I am not running for a national, state, or local office in a nursing professional association. Why? I am tired and my law practice is keeping me busier than ever.

Don't get me wrong, I am still involved. However I decline committee invitations more readily now than I did in the past. I was asked this week to sit on the planning committee for a national convention. I declined very eloquently.

I am attending the ANA House of Delegates in the Ohio Nurses Association delegation in June. I was elected as an ANA Delegate at the Ohio Nurses Association Convention in October 2007. I was elected as a Center for American Nurses Association delegate at the ONA Convention. I am attending the Center for American Nursing Membership Council Meeting and LEAD Summit in June.

See http://centerforamericannurses.org/.

I will be in D.C. from June 21st-June 27th attending professional association meetings and I am looking forward to it. Are you active in profession?

I credit Karen Bankston, PhD, RN who is the CEO of the Drake Center in Cincinnati, Ohio and Margaret Wheatley, PhD, RN a nursing professor at the Francis Payne Bolton School of Nursing at Case Western Reserve University and former past president of the Ohio Nurses Association with encouraging me to become active in the profession.

Nurses and DUI Charges: Don't Drive Buzzed or Drunk!!!

This has been an interesting year already. I have received three phone inquiries from nurses about DUI charges and its nursing licensure impact.

A RN in Cincinnati, Ohio was sentenced to 6 years in prison this week (the article appeared in the Cincinnati Enquirer) for a car crash that left one dead and another seriously injured. Her blood alcohol level was twice the legally permissible level.

Do not drive intoxicated! If you have a few drinks (beer, shots, wine, etc.) then have someone drive. Don't drive. Catch a cab or have a friend or family member pick you up. You may not think you are drunk but don't take that chance.

In the end the extra effort can save lives, your employment, and your nursing license. Also when a licensed professional is charged with a crime, the headlines say:  Nurse Charged with DUI, Lawyer Charged with Theft Crimes, Teached Indicted for Misconduct, etc.

Whether or not you have to report a DUI conviction depends on the state(s) where you are licensed. If you have been charged with a DUI or DWI, contact a licensure defense attorney associated with The American Association of Nurse Attorneys (TAANA) for a consultation. See www.taana.org.

Portfolios, Presentation, Publication, and Promotion Conference

I attended a nursing conference today sponsored by the Southern Ohio and Northern Kentucky chapter of STTI. The conference, The P's and Q's of Writing for Promotion, Publication, Presentation and Portfolio was well attended with almost 100 attendees at the Sharonville Convention Center.

I especially enjoyed the afternoon breakout sessions on Competency and the Professional Nursing Portfolio and Designing a Professional Poster Presentation.

I don't normally leave nursing conferences feeling refreshed and excited. I found the material very much applicable to my legal practice. The sessions I attended were as follows:

Disseminating your Evidence: How to Get Published. The keynote speaker was Marilyn Oermann, PhD, RN, FAAN.

Strategies for your Publication: View from an Editor, Reviewer, and Authors. This was a panel presentation.

Designing a Professional Nursing Portfolio

Professional Portfolio: Providing Evidence of Competence

I do a far amount of writing and publication; well, not as much as I used to, but its adequate. I also speak frequently on legal issues in nursing and submit abstracts for national, regional, and local poster presentations. Professional portfolios are hot and I have some ideas here that will be launched on my website in the near future.

Negotiations with SEIU and State of Ohio

Collective bargaining negotiations have begun with the State of Ohio and the SEIU. The SEIU represents the 7,000+ IPs in the State of Ohio. Keep in mind less than 1,750 voted in the favor of the Union. Several hundred of the independent providers are RNs and LPNs.

The SEIU has asked the State of Ohio to deduct dues payments directly from each indepedent provider's pay. The Union is seeking a fair share agreement. Fair Share meaning all IPs would pay union dues even if they are not members.

Also Governor Strickland issued Executive Order 2008-02S. This allows for independent child care home providers to organize under collective bargaining.

ONA New Director of Health Policy: Is it just a job for her?

I received the Ohio Nurses Association Member Update this week. This was mentioned in the update:

ONA Welcomes Terri Tran as Director of Health Policy

ONA is proud to announce that Terri Tran, RN, JD has joined ONA as the new Director of Health Policy, formerly held by ONA's Deputy Executive Officer, Jan Lanier. Look for an article about Terri in the March/April issue of the Ohio Nurses Review.

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

Ms. Tran's previous employment was with the Ohio Board of Nursing where she was an Adjudication Coordinator. As an Adjudication Coordinator and Board Attorney she drafted Consent Agreements (a contract that constitutes action against the license of a nurse, whether its a public reprimand, probation, suspension, and/or revocation) and worked in the Compliance Section of the Board of Nursing.

As an attorney with the Ohio Board of Nursing her role was to advocate for public and protect the public from unsafe nursing care. In her new role as the Director of Health Policy for the Ohio Nurses Nurses, she is advocating for Ohio nurses and the professional practice of nursing. Wow, what a change! 

I don't think I could make that type of career and employment leap personally. That would be like me as a defense attorney winding down my practice and then accepting a position with the Ohio, Kentucky, or Indiana Boards of Nursing prosecuting complaints against nurses. I couldn't do it; defending nurses is a passion and a career for me, not just a job.

I transitioned from hospital based peds to adult home care seven years ago and it was tough and there was a learning curve with the meds, disease processes, charting, environment, etc. I like adult med-surg home care cases now and don't usually take peds cases.

Could you? Would you? Could you and have you work both ends of the spectrum?  Or do you look at it as being a job until something else comes along? All of us however have had positions where we work to pay the bills and until something else comes along. Are you waiting for something else to come along or do you have the dream position description now?