Nursing Law & Order

Representing Yourself: Take the Process Seriously

A nurse contacted my office today. She did not leave her name; just her telephone number. A complaint was filed against the nurse with the state nursing board. The nurse met in-person with a State Nursing Board investigator and provided a handwritten statement after the meeting. The nurse was contacted by a Nursing Board attorney regarding an agreement to resolve the complaint recently. The nurse reviewed the agreement proposed by the Board and was very upset. She is demanding a hearing, which is of course a right in this type of proceeding.

This is common scenario in some states and jurisdictions. When you met with a Nursing Board investigator regarding a complaint filed against your license, YOU are Representing YOURSELF. For better or for worse, you are representing yourself in an administrative investigation and proceeding regarding your license.

When you submit a statement to the Nursing Board in response to a complaint, YOU are representing yourself.

There is nothing wrong with representing yourself. Self-representation is a right in our adversarial legal system.

I represent nurses in licensure matters so of course I have a bias. However I would merely suggest that any nurse who is being investigated by a state nursing board contact a licensure defense attorney for a legal consultation at a minimum. At a minimum discuss your situation with an attorney before you OPT (and you always have options) not to seek legal counsel.

Also if you do represent yourself in the licensure investigation, consult with an attorney before you sign a document proposed by the state nursing board to resolve the complaint.

Hindsight is always 20/20. I am being retained by more nurses who have represented themselves initially then retain legal counsel at the end of the investigation, negotiation phase, or during the Board monitoring or suspension phase of the "action" against the license.

Bottom Line: if you are going to retain an attorney; do so in the beginning of the investigation if you can. If you cannot afford a private attorney; then consult with an attorney then educate yourself on the process and procedure before you proceed. Do not take a  "willy nilly." After all your license is your livelihood.

Nursing Core Competencies

At the Center for American Nurses LEAD Summit 2008, Dr. Mary Ann Alexander, Chief Officer of Nursing Regulation for the National Council of State Boards of Nursing www.ncsbn.org, will present current research and findings about past, present, and future issues related to continued nursing competence.

Dr. Alexander was interviewed by the Center for American Nurses staff for the February 2008 edition of Nursing That Works.

See http://www.ohnurses.org/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=2326.

Will the RNs at Catholic Health Partners vote for SEIU Representation?

See this article in the Cincinnati Business Courier about Catholic Health Partners and the SEIU.
http://www.bizjournals.com/cincinnati/stories/2008/03/03/daily10.html?ana=from_rss.

Here is a cut and paste of the article:

Cincinnati-based Catholic Healthcare Partners, which operates health-care facilities in Ohio, Indiana, Kentucky, Pennsylvania and Tennessee, reached an agreement with the union to allow votes this months at its hospitals in Cincinnati, Springfield and Lima, Ohio, according to a report in the Lima News. That includes Mercy Health Partners, which operates hospitals in Fairfield, Anderson Township, Mount Airy, Western Hills and Clermont County.

As part of the agreement, the union and health system promised they would not attempt to persuade workers to take sides, according to the newspaper story.

Pete Gemmer, spokesman at Mercy, confirmed that the local hospitals will vote on March 14, and a letter was sent informing employees of the election.

"There will be absolutely no campaigning by either side. The letter that went out to employees on Friday was a joint letter signed by both parties. And the primary focuses from our side in doing this are, No. 1, our employees will have a chance to voice their opinions on whether or not they want to join a union. And two, the 'no campaigning by either side' makes sure that patient care is not compromised in any way as we participate in this election," he said.

A spokeswoman for SEIU District 1199 said the voting will take place among six working groups in each hospital - registered nurses, professionals, technical staff, clerical staff, maintenance workers and support workers. Each will vote separately on whether or not to join the union.

The SEIU, which has a health-care office in Columbus, has been trying to unionize workers at the local Mercy hospitals for several years. Its District 1199 represents more than 5,500 health-care workers in Ohio, Kentucky and West Virginia.

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Will the RNs vote for representation with the SEIU? Do you think representation with ANA-affiliated unions are more beneficial?   

We Can Have Your License for This!

This is the statement I heard twice this week. These statements were made by a Hospital-employed nurse manager in a supervisory, management, and/or executive level position to a nurse who was terminated from the Hospital.

One nurse manager even went as far as telling one nurse to contact the State Nursing Board, self-report, and "take the high road."

Your manager, supervisory, and/or chief nursing officer in employment incidents and the workplace do not have any jurisdiction regarding your nursing license. Nurses are not licensed at the institutional level. Can you imagine the drama and legal nightmares nurses would face if licensed at the institutional level considering the one-side nature of at-will employment and facility grievances and investigations conducted by Human Resources?

Your manager, supervisor, and/or chief nursing officer can file a complaint with the State Nursing Board; they can even recommend your termination to Human Resources based on an "investigation" however your manager, supervisor, and/or chief nursing officer DOES NOT HAVE ANY jurisdiction regarding your nursing license. Their jurisdiction is the facility-based with Hospital V, Nursing Home F, Home Health Agency M, or Health Center P.

And honestly what's important? Your nursing license is what's important because it is your golden opportunity to employment opportunities. Its hard to see this when you are battling unit or employer-specific issues and you have worked at the facility for years and become entrenched in its culture.

Nurses with 22 years vested in a facility are terminated just as quickly as nurses with 8 months experience. Remember the Alamo and at-will employment employment. You have the real power in the situation. But that's a post for another day.

Don't sweat the small stuff. Your nursing license, not your employment with Hospital A, Nursing Home B, Home Health Agency C, or Health Center D.

You can and will find employment elsewhere. Your nursing license is your key to employment with Hospital Z, Nursing X, Home Health Agency T, and Health Center U. 

Office of National Nurse Initiative

This is from The American Association of Nurse Attorneys (TAANA) E-News, March 4, 2008

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TAANA in Action: TAANA Board Leading the Charge on the Office of the National Nurse Initiative
The Board of Directors of TAANA is putting in extra hours fulfilling its mission, and thanks to the hard work of board member, Edie Brous, we are seeing some great results. The board made a recommendation to support the Office of the National Nurse initiative, www.nationalnurse.org, during their February 2nd meeting in Pasadena, California. For those of you who are unfamiliar with the initiative, here is a brief re-cap:

Two years ago, the New York Times published an op-ed written by Teri Mills, MS, RN, ANP, CNE, a nurse educator/nurse practitioner from Oregon. The op-ed expressed a vision for our country to establish a high-ranking federal official titled, “National Nurse.” The article highlighted a proposal that would unite nurses from all educational backgrounds to address the nation’s rise in preventable conditions that are causing human suffering and contributing to the rise in healthcare costs.

The popularity of the story led to the formation of The National Nursing Network Organization (NNNO). Six members now sit on the Board of Directors, including Edie Brous, who hails from New York. Additionally, a number of nurses and supporters from around the country have lent expertise in a number of areas.

From the National Nurse website, an Office of the National Nurse is needed to:

• Establish symbolic national leadership by elevating and strengthening the Chief Nurse Officer of the USPHS to make this position visible to the nursing profession and the public.
• Complement the work of the US Surgeon General.
• Promote involvement in the Medical Reserve Corps to improve the health and safety of the community.
• Incorporate proven evidence-based public health education when delivering prevention.

The idea made sense to nurses around the country. Congresswoman Lois Capps, U.S. Representative for California, transformed the idea into a bill proposal and introduced it into the 109^th Congress where it amassed the bipartisan support of 42 House co-sponsors.TAANA previously awarded Representative Capps with the McGarvah award and support of this bill could further strengthen TAANA's alliance with her.

In the past year, the NNNO has fulfilled many interview requests and presented at several nursing conferences. The inspiring presentations have led to more and more nurse involvement.

Endorsements have poured in from all corners of the nation, including the New York State Assembly, who unanimously passed a resolution memorializing the United States Congress to enact legislation to establish the Office of the National Nurse.

Future legislation is planned for the 110^th Congress. It is now being advocated that the position of the Chief Nursing Officer (CNO) for the U.S. Public Health System (USPHS) should assume the role of the National Nurse. This will likely expedite the passing of the bill, minimize cost, and avoid duplication of services. However, the NNNO feels that it is crucial to also re-title the position to “National Nurse,” rather than keep the title, “Chief Nursing Officer.”

Thetitle of "National Nurse"will be unique and recognizable. Presently there are thousands of nurses working under the title of Chief Nursing Officer (you only need to Google this as evidence), and few really understand or know of the important roles that the Chief Nurse Officer of the USPHS performs.

Teams composed of volunteer nurses would most likely be incorporated into the Medical Reserve Corps to focus on delivering health promotion information in their communities and could provide a ready supply of nurses in cases of large-scale emergencies, such as Hurricane Katrina and the Southern California fires. These activities will focus on strengthening health related linkages and creating a culture of prevention.

The National Nurse continues to gain momentum. As elections draw closer, it will become imperative for nurses to be heard. The public depends on nurses to be their advocates, much in the same way nurses practice patient advocacy at the bedside. A collective nursing voice must be heard politically so the profession can take the lead on preventing health problems.

If you are interested in this exciting initiative, please contact Edie Brous at [email protected]. Whether it is to make a comment, offer your support, or to get directly involved, we want to hear from you!

To learn more about the National Nurse, go to www.nationalnurse.org. You may also sign up to receive updates via emailed newsletters at their website.

Endorsement of the initiative is consistent with TAANA's bylaws and strategic plans and will serve topromote the organization's visibility as well asdevelop alliances.

Misdemeanor and Felony Convictions and Kentucky Nursing Licensure

An article in the Kentucky Board of Nursing newsletter, KBN Nursing Connection, Winter 08, Edition 14, discussed Criminal Conviction Reporting.

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Any applicant seeking licensure in the state of Kentucky, whether by exam, endorsement, reinstatement, or renewal, must answer the criminal background question on the application, “Have you ever been convicted of a misdemeanor or felony?”

Most applicants understand and answer honestly and correctly. However, there does seem to be some confusion as to what exactly needs to be reported. DUIs must be reported.

An exception to this is misdemeanors older than five years. These convictions must be reported on an application, however, you are NOT required to submit a letter of explanation or certified copy of the court record. A criminal conviction that has been sealed, dismissed, or expunged by a court of law does NOT have to be reported.
All felony convictions, regardless of age, must be reported on
the application, and you must submit a letter of explanation
and a certified copy of the court record.

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For the full article, see  http://kbn.ky.gov/NR/rdonlyres/5B0A31B1-5449-4DEF-A120-460F77EF8724/0/con0708w.pdf. Page 8. 

Winter 2008 Ohio Board of Nursing Newsletter

See http://www.nursing.ohio.gov/PDFS/Mom/2008/MomentumWinter02008.pdf.

On page 15, there is an article about employment law issues and civil liability. The publication notes these are not regulatory issues and not something within the purview of the Ohio Board of Nursing. The article suggests that licensees contact legal counsel for concerns and issues regarding civil liability.

Here is a cut and paste of part of the article:

The following questions are generally civil liability and employment issues, not regulatory ones. However, the Board continues to receive questions seeking clarification of these issues. The questions involve uncertainty regarding an employment role that may not require a nursing license, or may not require a licensee who holds dual licensure or certification to practice to the full extent of their credentials. The decision to accept an employment position that is less than an individual licensee’s scope of practice or does not require a license is a personal decision. An employer may or may not hold a licensee to their highest scope of practice as determined by the
particular terms of employment or the employer’s risk management department. If a licensee has concerns about civil liability issues, the individual would need to consult legal counsel.

Women and Divorce: A Time for Caution

The Women's Institute for a Safe Retirement (WISER) published this quarterly newsletter on behalf of the Center for American Nurses. The Center's website is www.centerforamericanurses.org.

You can view the article at  http://www.centerforamericannurses.org/wellness/finance/wisewoman/2008/feb.pdf

Scope of Practice Laws in Health Care: Rethinking the Role of Nurse Practitioners

I found the link to this document on the Ohio Association of Advance Practice Nurses (OAAPN) website. 

See http://www.chcf.org/documents/policy/ScopeOfPracticeLawsNursePractitionersIB.pdf.

See also http://futurehealth.ucsf.edu/pdf_files/NP%20Scopes%20discussion%20Fall%202007%20121807.pdf.

Legal Strategies for Nurses-Columbus, Ohio

The American Association of Nurse Attorneys (TAANA) has a full day seminar for nurses in Columbus, Ohio. The date is Thursday, April 10, 2008. See the attached flyer. Download taanaohflyer1.pdf.

I am presenting Protecting Your Nursing License and Avoiding Discipline. Its a hour session.

Last year, I didn't do alot of presentations. I personally prefer to present posters. I don't have a fear of public speaking but I enjoy the personal contact and networking associated with presenting posters. Do you prefer to present oral or poster abstracts?   

Allegations vs. Accusations

Last month was a busy month for me. I received several inquiries from nurses regarding criminal, licensure, employment, labor, and unemployment law issues.

This is a summary of a phone call I received last month.

Nursing Board investigator: I would like to speak with you about issues with your license.

Nurse: What's going on with my license? Do I need an attorney to fight these allegations?

Nursing Board investigator: No, you don't need an attorney. These are accusations not allegations.

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What is an allegation?

A formal accusation against somebody, often in a court of law.

http://www.wordreference.com/definition/allegation

What is an accusation?

A formal charge of wrongdoing brought against a person.

http://www.wordreference.com/definition/accusation

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A State Nursing Board complaint is an allegation and accusation.

State Nursing Board investigators are not attorneys and even if the investigator is a state licensed attorney,  the investigator cannot and should not give legal advice or counseling to a licensee being investigated. Its improper and bad form for a State Board investigator to tell a nurse that he/she doesn't need an attorney. But it happens.

I think the most appropriate response for a Nursing Board investigator, would be "you can retain an attorney to represent you" or "I am an employee of the State A and I am investigating a complaint filed against you with the State, I cannot advise you whether or not you need an attorney."

Some State Nursing Boards inform nurses upfront in the correspondence acknowledging the filing of the complaint, that a nurse can retain an attorney and that the Board does not provide legal advice to its licensees. I think this is the fairest approach because it impresses upon a licensee the seriousness of the complaint and the proceedings. The licensee can stop and think, well do I want to hire or consult with an attorney before I proceed? This is the approach all State Nursing Boards should adopt.

If I had $2.99 for each time I have made this statement....Trust your instincts; if you have to ask someone "do I need an attorney?", then you need to consult with an attorney.

Call for Presentations: The American Association of Nurse Attorneys

The American Association of Nurse Attorneys (TAANA) issued a Call for Presentations to its membership. The Annual meeting and conference takes place October 23-25 in Tampa, Florida. See http://www.taana.org/.

Suggested topics for podium and poster presentation during the conference include:
• Criminalization of unintentional error
• Licensure defense
• Legal issues relating to nursing home litigation, e.g., death by restraints, elopement, and
locked Alzheimer’s units
• Effect of collateral sources reimbursement on settlement
• Potential legal malpractice relating to settlement (failure to address tax consequences, offer structured settlements, achieve agreements relating to division of settlement by multiple claimants, obtain approval for claims involving minors, address liens)
• Asserting and defending bad faith claims
• Asserting and defend qui tam claims, class actions, or product liability claims
• Practice tips for negotiation, mediation, arbitration
• Challenges to expert testimony
• Employment issues (WC, potential effects of disability on licenses, discrimination, termination, Charge nurses as exempt employees)
• Legal issues relating to Medicare managed care agreements, physician recruiting agreements, binding arbitration agreements, indemnification clauses
• Legal issues relating to Medicare Part D
• Regulatory responses to electronic medical records
• Negotiating Health Care Technology Contracts
• Ethical and legal risks of law firm websites and blogs
• Issues and updates regarding STARK regulations
• Ethics in research (IRB issues, conflict of interest etc)
• Creating and influencing legislation, policy, and change, e.g., testifying before legislative
committees, effective bill drafting, “lobbying” versus “advocating”, and representing professional associations
• Promoting legal rights of vulnerable populations, e.g., aliens, indigents, the elderly, children, developmentally disabled, abused individuals, and those who are un-insured or under-insured
• Legal and ethical issues regarding organ donation
• The use of critical listening and persuasive communications skills
• Standards of care for healthcare providers after disaster strikes
• Erosion of confidentiality
• Rainmaking strategies
• Health Law Courts for Medical Malpractice Litigation.

I presented a poster several years ago at a TAANA conference and I haven't attended a TAANA conference since then. Not sure if I will attend this one either. This conference was originally planned to take place in Lexington, Kentucky and the location was changed for whatever reason. Lexington, Kentucky is driving distance from Cincinnati, Ohio.  By the way, I can drive to Columbus, Ohio, Indianapolis, Indiana, and Louisville and Lexington, Kentucky with my eyes closed.

I wasn't blown away with the TAANA conference I attended in Chicago, Illinois. Legal conferences tend to be expensive, go figure. When I worked for a large firm, the firm paid for the conference and all my travel expenses. I am an attorney in private practice therefore the firm's money is my money.

I will not attend a legal or nursing conference, seminar, or convention unless it fosters my professional development or the marketing of my law and consulting firms.

I personally can't stomach spending $1,000-$2,000.00 (registration, hotel, flight, networking and evening activities, etc.) unless the conference is spectacular and I really want to travel to a particular city. See http://www.wordreference.com/definition/spectacular for a definition of spectacular.

Now, I will probably spend this amount to attend the Center for American Nurses LEAD Summit (www.centerforamericannurses.org) and Membership Council Meeting and the American Nurses Association House of Delegates. I will be in DCA for 6 days in June, I believe. I am an Ohio Nurses Association delegate for the Center Membership Council and ANA House of Delegates. And I can't wait until June!!!!   

When TAANA schedules its conference in a location where I can learn about the latest and cutting edge legal and nursing issues for licensure defense attorneys and gamble; I will be there. If TAANA holds an annual meeting and conference in Atlantic City or Las Vegas, I will make the Super Duper Early Bird Registration deadline.