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It is very common for the Ohio Board of Nursing to resolve its concerns regarding alleged violations of the Ohio Nurse Practice Act by entering into Consent Agreements with the nurses alleged to have committed a violation. However, before any nurse enters into a Consent Agreement with the Ohio Board of Nursing that contains probationary terms and conditions, it is important that the nurse recognize the potential trap he or she is falling into, which could lead to a longer than expected and potentially never ending need to comply with the probationary terms.

When the Ohio Board imposes probationary terms through a Consent Agreement, the agreement specifies that the probationary terms will remain in place for a minimum period of time, such as 1, 2 or 3 years. However, the agreement also includes language that: “Any period during which NURSE X does not work in a position for which a nursing license is required shall not count toward fulfilling the probationary period imposed by this Consent Agreement.” Even though the Ohio Board does not explain or clarify that language up front for nurses who are negotiating a Consent Agreement, the Ohio Board interprets and applies that language to mean that the nurse must be employed as a nurse in Ohio in order for the period of probation to count down towards zero.

For example, if the Consent Agreement imposes a 2 year minimum period of probation, the nurse needs to work as a nurse in Ohio for 2 years in order to be released from the probation. Therefore, if 2 years go by (during which time the nurse is expected to remain in full compliance with the probationary terms in order to avoid the Ohio Board automatically suspending his / her Ohio nursing), but the nurse has only worked for 1 year as a nurse in Ohio, that nurse would still need to work for 1 more year in Ohio in order to be eligible for release from the probationary terms. Under this example, the nurse would have complied with his or her probationary terms for 3 years in order to satisfy the minimum 2 year period of probation agreed to in the Consent Agreement. That additional year of compliance can be time consuming and expensive if the probationary terms require random screening for alcohol or drugs, which costs the nurse approximately $1,200 per year in charges / fees, plus the time associated with checking in every day and taking time to provide a sample when randomly selected to do so.

The situation can be even worse for the nurse if he or she has steady and fulfilling nursing employment in a state outside of Ohio and is either unwilling or unable to find work as a nurse in Ohio to make the clock count down on his or her period of probation. Under that scenario, the nurse would conceivably need to comply with the terms of his or her Ohio probation forever, which, as referenced above, could be very expensive and time consuming. To make matters worse, when nurses find themselves in the trap outlined above and attempt to resolve matters with the Ohio Board, the Ohio Board has been known to: 1) refuse to count the time spent in out of state nursing employment as time towards the probationary period; and 2) offer the solution of having the nurse permanently surrender his / her Ohio nursing license as a way to avoid having to continue to comply with the probationary terms. While a permanent surrender may not sound bad at first, it is a terrible option considering that the Ohio Board insists the permanent surrender be noted on its official journal as a permanent revocation, which will be reported to NURSYS (a national data base) and other state nursing boards. Thus, the permanent surrender / permanent revocation that nurse would need to agree to is likely to expose the nurse to sanctions upon the nursing license(s) held outside Ohio, which likely impact the nursing employment held outside Ohio.

Please know that in a case handled by the nursing license defense attorneys at Graff & McGovern, the Franklin County Court of Common Pleas is currently considering the legality of the Ohio Board of Nursing’s requirement that a nurse must be employed as a nurse in Ohio (instead of outside Ohio) in order for his or her Ohio Board imposed probation period to count down to zero. Although the Franklin County case involves an Adjudication Order instead of a Consent Agreement, it should still settle whether the Ohio Board of Nursing’s position is unconstitutional under the Equal Protection Clauses of the United States / Ohio Constitutions and under the Commerce Clause of the United States Constitution. A decision from Court is expected within the next 6 months and an update will be posted here when that occurs.

If you have questions about the Ohio Board of Nursing, your nursing license and/or your nursing employment, please contact James McGovern at 614-228-5800, x2, or any of the other Ohio nursing license defense attorneys at Graff & McGovern for a no charge initial consultation.