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Nurses working their way through the Ohio Board of Nursing’s hearing process should be aware of Ohio Administrative Code 4723-16-07 (C), which the Board can apply in a manner that arguably deprives nurses of due process.  The nursing license defense attorneys at Graff & McGovern have observed this in recent cases and wanted to alert nurses and their counsel to the problem.

Nurses charged with violating the Ohio Nurse Practice Act (Ohio Revised Code Chapter 4723) are afforded due process rights under the Ohio Administrative Procedure Act (Ohio Revised Chapter 119).  In a general sense, those due process rights include the Ohio Board of Nursing being required to issue the nurse a Notice of Opportunity for Hearing that alleges the facts constituting a violation of the Nurse Practice Act.  If the nurse timely requests a hearing in response to the charges in the Notice of Opportunity for Hearing, then the Board must afford the nurse a hearing, at which: 1) the State must prove the allegations; and 2) the nurse may defend against the allegations and/or present evidence in mitigation of any violation of the Nurse Practice Act.

The system works well and complies with due process when the Notice of Opportunity for Hearing alleges the facts in manner that provides the nurse with fair notice of the conduct that the Ohio Board of Nursing believes is in violation of the Nurse Practice Act.  That is because a properly drafted Notice of Opportunity enables the nurse to know, prior to the hearing, what is of concern to the Board, so that the nurse can prepare a defense and/or present evidence in mitigation. The problem arises when the Board uses Ohio Administrative Code 4723-16-07 (C) to introduce evidence at the hearing of matters that were not raised as a concern in the Notice of Opportunity for Hearing.

Ohio Administrative Code 4723-16-07 (Evidence or factors to be considered by the board), in part provides:      ***

(C) When making a decision regarding disciplinary action, the board may consider factors including, but not limited to, the following:

(1) Whether the act is willful, intentional, irresponsible, or unintentional;

(2) Whether the respondent failed to cooperate with the board investigation;

(3) Whether the respondent provided false, misleading or deceptive information to the board or board staff;

(4) The frequency of occurrence of the act at issue;

(5) Whether the act represents a pattern of commissions or omissions;

(6) The outcome of the actions of a licensee or certificate holder; or

(7) The level of harm or potential harm to a patient.

A hypothetical example of how the Board could use this rule to deprive a nurse of due process would be as follows:  1) the Notice of Opportunity for Hearing alleges that the nurse violated the standard of care provisions in the Nurse Practice Act by failing to document the wasting of a narcotic medication administered by the nurse on a single date to a single patient; and 2) at the hearing, the State presents evidence of what was alleged in the Notice plus evidence of the nurse failing to document the wasting of narcotic medications administered by the nurse on 4 other occasions (to the same and/or other patients).  An argument can be made that the nurse was unfairly surprised at hearing by reference to the 4 other medication incidents not referenced in the Notice of Opportunity for Hearing.  However, the Nursing Board will likely take the position that the 4 other medication incidents (not referenced in the Notice) are evidence of pattern of commissions or omissions under Ohio Administrative code 4723-16-07 (C)(5) that the Board can consider in deciding what type of sanction to impose.

The take away for nurses and their counsel is to be aware of the Board’s potential use of Ohio Administrative Code 4723-16-07 (C) as a way for the Board to add to the original charges in the Notice of Opportunity for Hearing; and then be prepared to voice a timely objection to the violation of the nurse’s due process rights through the Board’s improper use of Ohio Administrative Code 4723-16-07 (C).

If you have any questions regarding the matters discussed herein or any other part of the Ohio Board of Nursing’s hearing process, please do not hesitate to contact the nursing license defense lawyers at Graff & McGovern.  Jim McGovern can be reached at 614-228-5800, x2, or jmcgovern@grafflaw.com