Nursing Law & Order

Life happens and life does not stop because you are on probation with the State Nursing Board

Alot of my law practice involves counseling and advising my clients who are being monitored by the State Nursing Board or seeking reinstatement of a nursing license. Nursing Board probation should not be taken lightly by no means and you are required to strictly comply with the Adjudication Order, Consent Agreement, Agreed Order, Monitoring Agreement, etc. Partial or substantial compliance is not enough. Again partial or substantial compliance is not enough.

You have to be ready and prepared for State Nursing Board monitoring and if you don't have an attorney representing you, I would suggest that you consider attorney representation, counseling, and advising. Why? While you are on probation for 6 months to 10 years, issues and things will happen and you may need legal advice. Life happens and the State Nursing Board staff cannot counsel and advise you; but you can talk these types of things over with your attorney.

What do you mean 10 years, LaTonia? Okay let's say your license is suspended for a minimum of 3 years. You may have terms and conditions for reinstatement, which may take 6 months to 2 years or longer to complete just to reinstate your license after the 3 year suspension. Once your license is reinstated, you may have 3-5 years of Nursing Board probation and monitoring. That's close to 10 years especially if you include the disciplinary investigation and hearing.

Why am I posting this? There are more and more of us who are signing State Nursing Board agreements without really taking the time to understand what will be required by the State Nursing Board probation and monitoring. I understand you just want to get the pending complaint over and done with and you want to move on with you life, but you need to really review and appreciate what it means to be on probation with the State Nursing Board and how your life will be impacted.

For some, its not an issue and Nursing Board probation passes fast, quick, and easy. But for others the opposite is true because life happens while you are probation with the State Nursing Board. You are no longer able to afford $75-$150.00 a month for drug screens or you feel as if you are under a microscope at work and you can't take it because your supervisor reports everything to your Nursing Board case manager or monitoring agent, or you can't handle keeping track of the paperwork and documents needed to stay compliant with the Nursing Board, or you want to focus on your family, or you have an ill family member you need to care for now, or you are pregnant and you don't want the extra stress, etc. There are a million reasons why you may need to start and stop Nursing Board probation.

Life happens and the career, financial, emotional, social, medical, spiritual, mental, family, work-related and other stressors of life don't stop just because you are on probation with the State Nursing Board.

State Nursing Board probation should not be taken lightly and your compliance with the State Nursing Board document (whether its disciplinary or an alternative to discipline program document) should be approached in a systematic manner. 

If you are on probation with the State Nursing Board or if you are going through the process of having your license reinstated, don't give up. I know its hard. Just seek some assistance and ask for help. I am pulling for you and once you are off probation, send me an email and I will congratulate you. Jack, my recovery assistant will probably want to call you personally and tell you how wonderful you are and how things are looking better already!!

If "if" was a fifth we would all be drunk: state regulatory agency investigations can be administrative and/or criminal

I spoke with a nurse the other day who is licensed to practice nursing in a state where I am not licensed to practice law. I referred the nurse to several license defense attorneys in his state.

The nurse worked in home care and was being investigated by a state regulatory agency for billing discrepancies. The nurse after review of his billing records noted there was a billing discrepancy and pointed this out to his criminal defense attorney.

The nurse asked the criminal defense attorney whether or not he should divulge this information and just repay the money. The criminal defense attorney remarked "no" and let's just wait and see what happens. The nurse was charged with a felony, the criminal case is still pending, and the State Nursing Board is involved.

Now, there is an old saying "If if was a fifth we would all be drunk." A fifth of the hard stuff of course. I don't do liquor but I really enjoy Bartles and James (B&J) flavored malt coolers or as my younger brother says "Kool-Aid for Adults."  

The nurse is now being investigated by the State Nursing Board in his state. But I wonder:

1. IF the nurse had consulted with a nursing license defense attorney at start of the investigation and upon learning of the billing discrepancy, what IF the nursing license defense attorney recommended prompt repayment of the improper billing.

Would this have remedied the issue and averted a criminal indictment and prosecution and a State Nursing Board investigation and probable discipline (its coming)?

A criminal defense attorney and a license defense attorney have two different roles and perspectives in the representation, counseling, and advising of a licensed nurse in federal and/or state regulatory agency investigation. State regulatory agency investigations can be a combination of administrative and/or criminal.

This is why it is extremely important for a nurse to retain a criminal defense attorney and a nurse license attorney when being investigated by federal or state regulatory agencies whenever there is even a "hint" of a possible criminal issue.  

Some license defense attorneys are also criminal defense attorneys. Not the kid. You have to determine whether you want one attorney to handle the criminal and licensure matter or whether you want to different attorneys, one for the license and one for the criminal defense and what are the pros and cons of each of these arrangements.

National Council of State Boards of Nursing white paper: Scope of Practice for Practical Nursing

See

https://www.ncsbn.org/Final_11_05_Practical_Nurse_Scope_Practice_White_Paper.pdf

Don't assume your employer, meaning your nursing manager and others know the legal scope of practice in your state. You need to keep up to date on the evolving scope of practice for nursing because you are personally accountable, responsible, and potentially liable for practicing outside your scope.

As a LPN, can you assume the RNs you work with know the scope of practice for practical nursing?

I have seen it time and time again where LPNs and LVNs are performing tasks at the direction of a nurse manager only to find that the tasks are not within the practical nursing scope of practice. There is never any shortage of blame and finger pointing in healthcare and you can argue to the "cows come home" who is at fault and mitigating circumstances but bottom line: You are a nurse and you are accountable and responsible for knowing your scope of practice. Don't wing it and "play it by ear" with nursing scope of practice issues whether you are a LPN/LVN, RN, or APRN.

The State Nursing Board complaints and APRNs: More Accountability, Responsbility, and Potential Liability

I am receiving more emails and phone inquiries related to the legal and practice involvings involving the State Nursing Board and APRNs. APRNs include CRNAs, NPs, CNSs, and CNMs.

If you are an APRN and you are being investigated by the State Nursing Board, your case may be more complicated "off the jump" which is street lingo for initially because you are a RN practicing at an advanced level, with an expanded scope of practice, prescriptive privileges, DEA license, etc. In a nutshell and in my opinion, the greater the scope of practice and autonomy, the more responsibility, accountability, and potential liability.

If you are a APRN and you are being investigated by the State Nursing Board for ANYTHING you should have an attorney representing you. "No if, and, or but."  

If you are a APRN and you are involved in a State Nursing Board investigation for allegations of drug theft, you need a license defense attorney AND a criminal defense attorney.

If you are a APRN and you are licensed in more than one State and you are having license issues in one state, you need an attorney.

If you are a APRN, before you sign on the dotted line of an employment agreement, State Nursing Board Agreed Order, Consent Agreement, Recovery Contract or Monitoring Agreement, or Return to Work Agreement, you need an attorney.

I always assumed that APRNs more so than RNs and LPNs would seek legal counsel and representation in professional practice and licensure matters and these issues although not covered in detail in the basic diploma, ASN, or BSN programs were stressed in the MSN and Doctor level programs in nursing.

You should never assume and I assumed wrong. Nursing education at the diploma, ASN, BSN, and MSN levels really needs to step up and turn it up a notch with educating nurses on the law, legalities, and legal issues in nursing practice. Stop training nurses to be the next generation of employees and start educating, training, and guiding nurses to be the next generation of independent contractors and business owners providing services to hospitals and healthcare facilties like physicians.

What's New at the Center for American Nurses

What's New at the Center for American Nurses

Legal Webinar for Nurses:  Nursing License Compact:  Pros and Cons Presented by Carol Roe, RN, MSN, JD Wednesday, September 16, 2009, 7:00 – 8:15 pm Eastern Time CNE Contact Hours:  1.25 Recall at least of one of concerns with the identified with the Nurse Licensure Compact Identify at least two benefits of the Nurse Licensure Compact Define the Nurse Licensure Compact Focus on Health:  Getting Fit for Free  (members only) “During these challenging economic times, people are looking for alternatives to health club memberships and personal trainers for programs to get fit. The International Health, Racquet and Sports club Association’s 2009 First Quarter Index also agreed as the commercial health club financial performance saw a decrease in revenue in the first quarter of 2009.  Listed below are some alternatives for getting fit for free, or with minimal out-of pocket  expense.”                                                                                                                read more...                                                                                                                                                      Webinar:  Embracing the Joint Commission’s Leadership Standard on Conflict Management Wednesday, September 16, 2009, 2:00 pm Eastern Time                                                                                                                    read more... Coming Soon! Nurse Investor Survey Results How good are nurses at securing their financial futures? For more information call 1-800-685-4076.

Have you renewed your Ohio RN license? If not, consider driving to Columbus, Ohio to renew in person at the Board's office

If you have not renewed your Ohio RN license yet, please be advised the deadline for renewal is Monday, August 31, 2009. If you have your renewal application, then you should renew as soon as possible and don't wait until the last minute to renew. I wouldn't be surprised if the online system crashes on Monday, August 31st because of the last minute renewals.

I am good for the year. I renewed by Ohio RN license and my Ohio, Kentucky, and Indiana law licenses.

Don't forget to renew your RN license. If you don't renew, your license lapses on Tuesday, September 1st, and you can be disciplined for practicing without a valid license in Ohio.

An attorney is an attorney, right? My crim defense attorney can represent me before the State Nursing Board

There is no right answer. Is a nurse a nurse a nurse? Of course not and the same can be said for attorneys and law firms.

Your criminal defense attorney may represent you just as well or better than a license defense or administrative law attorney before the State Nursing Board. State Nursing Board matters are a specialty in and of themselves and an attorney (with no experience before the Board) can invest the time necessary into learning the in and outs of representing a nurse before the Board.

Now the counseling and advising on attending nursing law and professional practice matters that go along with State Nursing Board investigations and hearings is an entirely different animal in my opinion. I think this comes with experience and working on cases over time but that's just my opinion.

I am finding in this economy that attorneys who would be turned these types of cases down several years ago are saying "I can represent you before the State Nursing Board" to nurses involved in investigations, hearings, and licensure matters.

The Center for American Nurses has a fact sheet for the factors to consider when retaining an attorney. See www.centerforamericannurses.org. If you are not a member of the Center, you may have to purchase the pamphlet.

Consider asking the following:

1. What is your experience in these types of cases?

2. How many cases have you handled in the past?

3. How many cases do you have now before the State Nursing Board?

4. How do you determine your fee in these cases?

5. Am I your first Nursing Board case?

6. How do you communicate with clients?

7. Can you advise me on nursing workplace and professional practice matters that flow from the Nursing Board matter?

8. Are these cases your bread and butter, i.e., what percentage of your practice involves State Nursing Board or healthcare licensing board cases?

9. What are my options in this case?

10. What are the issues in my case? 

You can also contact more than one attorney. Sometimes I suggest that the nurse contact another license defense attorney and I will provide the names of at least two other license defense attorneys.

I am doing this more frequently if the nurse has represented himself/herself throughout the Nursing Board investigation and is really frustrated and surprised that the Board is proposing action against the license. Why?

So the nurse can speak with more than one attorney on how to approach the case because attorneys approach these cases and their clients or prospective clients differently. The nurse can then make a decision on which attorney he/she wants to retain. 

I am under no illusion that everyone who contacts my office is going to retain me (for whatever reason) to represent them before the State Nursing Board but I do let nurses know that if they don't retain me, consider retaining someone to assist you. You can contact TAANA at www.taana.org, your local bar association for an attorney referral, or another license defense attorney; but consider retaining someone.  

The new RN Super Union "is" the National Nurses United: Ready or Not, Here It Comes!

See

http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/08-24-2009/0005082240&EDATE=

http://www.medicalnewstoday.com/articles/161698.php

http://www.uannurse.org/media/press.html?view=press_release&press_id=505&year=2009

If you didn't know, it is going to be on and popping in healthcare. National Nurses United is building steam and who knows, maybe the sleeper will awaken.  

I posted several weeks ago on this blog about the reformation of the healthcare and nursing workplace. It   may be coming, ready or not, here shortly as the nursing unions are about to "go hard or go home." Don't know what this slang means just google it!

I will have blogging material for years to come and I am excited to see what changes are coming, ready or not for the nursing workplace. A nursing revolution or the evolution of nursing, maybe? Changes are needed in the nursing workplace, ready or not.

http://www.youtube.com/watch?v=XUrJdf4PbEk

This RN union and professional association appears ready, willing, and able to do business and put in "work." The new National Nurses United should not be burdened by the professional association first and "then a union" model and the baggage which comes along with trying to be all things to all nurses all the time. 

Here it comes, a nursing version to be played out in hospitals and healthcare facilities across the country of one of my favorite teenage video games and movies, Mortal Kombat!!

http://www.youtube.com/watch?v=UMf40daefsI

I keep it real on this blog and whether you support nursing unions or not, I personally have to tip my hat to the new RN Super Union, the National Nurses United for coming together, setting aside differences for the betterment of the profession, and forging ahead to build bridges for RNs in the nursing workplace of the future.

CRNA facing 8 years of prison in a federal criminal drug diversion case in Virginia

See

http://www.usdoj.gov/usao/vaw/press_releases/parkes_11jun2009.html

 

 

I thought there was a statute of limitation in State Nursing Board cases!

You spoke with and were interviewed by a State Nursing Board investigator in 2006 regarding a complaint filed against your license. Its been 3 years so you assumed the case was resolved. You receive a certified letter from the State Nursing Board this month asking you to appear before the Board next month to respond to the formal complaint filed against your license. You are surprised to say the least!!!!

Check with the State Nurse Practice Act, State Administrative Procedure Act, and the State Nursing Board regulations to determine if there is a statute of limitations in State Nursing Board disciplinary investigations and adjudications.

What is a statute of limitation? See http://en.wikipedia.org/wiki/Statute_of_limitations

You may be surprised to learn just how different State Nursing Board investigations and adjudications are from civil cases and criminal cases. Its an entirely different process and procedure.

If you think there should be a statute of limitations in these cases in your State and there isn't one, contact your State legislator or your State Nurses Association.

You Have a Nursing License in 2 States and You are Being Investigated by the State Nursing Board...It Isn't a Piece of Cake

More and more of us are licensed in more than one state. Although, I live in Cincinnati, Ohio, I am a licensed RN in Ohio only. But I could easily apply for a license in Kentucky and Indiana because I live on the border of Ohio, Kentucky, and Indiana. I am licensed to practice law in Ohio, Kentucky, and Indiana however.

I am seeing more cases where nurses are licensed in State A, B, and sometimes C and D. Let's say you aare being investigated by State A, which is a non-Nurse License Compact State. The majority of states are non-compact States at this time but this is changing as more and more states join the Compact.

If you are being investigated by a State Nursing Board in State A and you have action taken against your license in State A, then State B, C, and D where you have a license will be informed of the action at some point. Sometimes I have seen State A file a complaint with State B, C, and D to inform the States of a pending complaint being investigated in State A.

This is why it is important to consider attorney representation if you are being investigated by the State Nursing Board and especially if you are licensed in more than one state or you live in a Compact State.

These cases are complicated and a cookie cutter approach does not work. The majority of nurses represent themselves even when licensed by multiple State Nursing Boards and rely on the advice provided in nursing forums and chatrooms online and provided by friends, family, and co-workers on how to manage their license issues. If I had $49.99 for each and every time I had someone tell me "Nurse A did this, her case was worse than mine, and she received this" I could buy five Coach purses, wallets, and matching briefcases:) Speaking of a Coach briefcase, I need to go to the new outlet mall on I-75 in Middletown.

I have spoke with numerous nurses this year with a suspended license in State A, who are practicing in State B with a unrestricted and unencumbered license, and who have a restricted nursing license in State C.

It helps to have your own professional liability insurance with a license defense benefit which should help with attorney fees and costs. Even if a complaint has not been filed with the State Nursing Board but you know its coming, pay a few dollars and talk to an administrative law or license defense attorney in your jurisdiction.

Think like an independent contractor or business owner. Picture yourself as being self-employed and your nursing practice and career is your business. You need a license to practice nursing and you may need help protecting or mitigating any proposed action against your license.

Each State Nursing Board has a different approach to the investigation and resolution of complaints. If you are going to represent, counsel, and advise yourself do the research and legwork necessary to represent, counsel, and advise yourself before multiple State Nursing Boards. It isn't a piece of cake.

Free CD recording for the first 25 nurses: Emerging Legal Issues with Professional Boundaries and Professional Sexual Misconduct

I presented this webinar for the Center for American Nurses on July 15, 2009. See www.centerforamericannurses.org.

Do you want to know more about professional boundaries and professional sexual misconduct?

What is a boundary crossing?

What is a boundary violation?

Did you know that nurses are disciplined by the State Nursing Board for boundary violations? Would you kike to know more about the discipline proposed in professional boundary and sexual misconduct cases?

I am giving away 25 copies of the CD recording of the webinar when its available from the Center for American Nurses.

If you would like a copy of the CD when its available, contact my office at 888-571-1110 during office office between 8am to 6pm ET and inform my receptionist you would like to receive the professional boundaries CD and provide her with your name, licensure, email address, and complete mailing address.

The first 25 nurses who contact my office and request the professional boundaries CD, will receive the CD by mail when its available which should be later this month.  

Look at the Behavior of this Surgeon! If this was a nurse.....This is why nurses need Nursing Staff Bylaws

See

http://www.tampabay.com/news/courts/criminal/article1028210.ece.

Medical staff bylaws protect physicians and provide several layers of due process in a hospital even with this type of conduct. If this was a nurse, the nurse would of course be prosecuted, the nurse would be terminated, and the nurse would be reported to the State Nursing Board without hesitation. Why? Because most nurses are employed at-will. Even when a nurse is part of nursing union, the due process afforded in the grievance process falls way short of the due process provided to the medical staff under the medical staff bylaws.

This is what nurses need, NURSING STAFF BYLAWS similiar to Medical Staff Bylaws.

So instead of pushing nursing unions, shared governance, and Magnet, why aren't organizations and associations pushing for and implementing nursing staff bylaws? Instead of making glowing recommendations about shared governance and Magnet, give nurses the same legal rights and procedural due process afforded to physicians and other providers under the Medical Staff Bylaws.

Addiction in Healthcare and Patient Safety: Should Surgical Technicians be licensed by the State?

See this article http://www.latimes.com/news/nationworld/nation/la-na-hepatitis17-2009aug17,0,333618.story

Is State licensing needed for surgical techicians or do we need more treatment options for drug-addicted and chemical dependent healthcare workers?

My Nursing License is Suspended....I will always suggest as I always have....

I received an email from a nurse who was very upset because her nursing license was suspended and she was seeking answers.

1. I cannot provide legal advice on this blog. This is not the purpose of the blog. The blog is for informational and educational purposes only.

2. I will always suggest as I always have that nurses who are involved in State Nursing Board investigations consider legal representation. Its not just the representation that is important, its the counseling and advising on attending issues.

3. I will always suggest as I always have that nurses who have suspended license, consider legal representation to assist with the reinstatement process. Some State Nursing Boards have detailed requirements for reinstatement and having legal representation may be beneficial.

4. I will always suggest as I always have that nurses who are on probation with the State Nursing Board, consider having legal representation during the probationary process. State Nursing Board probation may be a few months to 6-7 years in some cases. You may need legal advice and counseling during this process and this is the role of an attorney, not your State Nursing Board monitor.

5. I will always suggest as I always have that nurses who are enrolling in a State Nursing Board Alternative Program for Discipline for a Chemical Dependency or Addiction consider having legal representation during this process. Most programs have a 3-5 year Agreement and you may need legal counseling and advising during this period.

6. You can contact your American Nurses Association affiliated State Nursing Association for assistance.

7. If you are a member of a nursing union, contact your union rep or labor relations specialist for assistance.

8. If you are a member of a pre-paid legal plan, contact the administrator to determine what services are available.

9. If you have professional liability insurance with a license defense benefit; contact your insurance company when you are notified a complaint is filed against your license. The insurance company may pay for your attorney representation before the State Nursing Board.

10. If you are a APRN, self-employed, or you think you may need on-going legal counseling and advice, consider retaining a nursing law attorney to counsel and advise you.

11. If you cannot afford to retain an attorney to assist you with the State Nursing Board, then you can do your own research on State Nursing Board disciplinary investigations and adjudications, discipline, and other issues and represent, counsel, and advise yourself.

There is nothing wrong with self-representation in licensure matters but if you do represent yourself (the majority of nurses do represent themselves in these matters) please don't blame others (including me because you don't like what I said on MY blog) for your actions or inactions. You decide how you want to handle your legal matters, whether you want to go solo or whether or not to seek legal counsel.  

You are an adult, you are a professional and  you are responsible and accountability for your actions and inactions in your personal and professional life. This includes whether or not you decide to hire a nurse license defense attorney or administrative law attorney to assist you in a State Nursing Board or professional nursing practice matter.

Hi, I am LaTonia. I will be your nurse from 3pm to 11pm and I want to discuss your nursing plan of care

How about this as opening statement when you enter a patient's room.

The chit chat is nice about the weather and your kids but how about saying this when you walk into a patient's room. You introduce yourself, the hours you are working, and you discuss and review the nursing plan of care for your shift.

You establish credibility and you let a patient and their family members know what to expect for your shift.

  

I would like to go back to school

Are you currently in school? One of my good friends is working on a certificate at a local university. She has a JD, MBA, and is working on a certificate for non-profit administration. She has always worked full-time and attended school and pulled it off without hitch.

I have alot going on now with running my law practice, tying the knot last month, and keeping my eyes on my elderly grandparents but I would love to muster up a real desire to return to school. Maybe for a MSN in education or community health. Or maybe a Masters in Women's Health Studies.

Are you currently in school? If so, how are you managing?  

My Grandmother is Recovering!

My grandmother is recovering after her surgery. One of the nurses, a male nurse when he could not understand her would say to her "what?" "what did you say?" in a condescending manner. I am not a nurse who attempts to micromanage the care provided to a hospitalized family member, believe I am not.

But I approached the nurse after he left the room and has a nice chat with him. This nurse is obviously a new nurse and I asked him not to address my grandmother in this manner. I also instructed him in our culture, I am black if you didn't know, it is a sign of disrespect to address an elderly black women or man in this manner. 

Even if you don't take CE on cultural diversity, I would think this should be a common sense way of treating and caring for elderly patients regardless of color or nationality.  

Comment Sought for an ANA Position Statement: Just Culture in Healthcare

http://www.nursingworld.org/HomepageCategory/NursingInsider/Public-Comment.aspx

Please Say a Prayer for My Grandmother, She is Having Surgery Today

My paternal grandmother is having surgery today to have her gallbladder removed. She is in excellent health. I love both of my grandmothers (maternal and paternal) so much and it is a joy for me to be able to be there for them as they are aging because they were there for me as a child, teenager, and as a single mother obtaining ASN, BSN, and JD degrees. Even now both of my grandmothers are still here for me.

I can honestly say I don't how my life would have turned out and I certainly would not be the person who I am today if I didn't have such caring, loving, sacrificing, and gracious grandmothers.

Both of my grandmothers are very special and mean the world to me. My paternal grandmother told me at age of 17 to go to nursing school and not to major in pre-law because there were too many lawyers already. Excellent and very pointed advice some 20+ years ago.  

My grandmothers are a gift from heaven; please say a prayer for my paternal grandmother today.