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The nursing license defense attorneys at Graff & McGovern have represented hundreds of nurses in helping them through the Ohio Board of Nursing’s hearing process.  In doing so, our attorneys are always learning of different ways in which nurses without legal counsel, nurses with inexperienced legal counsel and sometimes even nurses with experienced nursing board counsel can run into problems with the Ohio Board Board’s of Nursing’s hearing process.  One problem that can and should be avoided involves the timing of when the nurse will be permitted to address the Ohio Board of Nursing prior to the Board’s deliberations upon the Report and recommendation.

For background purposes, please know that the hearing process begins when the nurse who receives a Notice of Opportunity for Hearing from the Ohio Board of Nursing timely requests a hearing.  After the hearing is scheduled and completed, it is the duty of the Board’s Attorney Hearing Examiner who presides over  the case to prepare and file a Report and Recommendation that: 1) outlines the issues in the case; 2) summarizes the evidence; 3) outlines proposed Findings of Fact and Conclusions of Law; and 4) outlines the proposed sanction the Board should consider imposing for any violations of the Nurse Practice Act that the Hearing Examiner determines were committed.  When the Board mails the Report and Recommendation to the nurse and her attorney (where applicable), the cover letter, in part,  reads as follows:

“Pursuant to Section 119.09, Ohio Revised Code, you may file written objections to the Report and Recommendation.  Such written objections must be received at the Board office within ten (10) days (calendar days) of receipt of the Report and Recommendation.  The Board will consider the objections before approving, modifying, or disapproving the Hearing Examiner’s recommendation.  If the Board does not receive any objections within the ten (10) days of receipt of the Report and Recommendation the Board will proceed with an Adjudication Order.”

Timely preparing and filing objections to the Report and Recommendation can be very important in cases where the nurse does not agree with: 1) how the evidence was summarized; 2) how the Hearing Examiner ruled upon legal issues; 3) the proposed Findings of Fact and Conclusions of Law; and/or 4) proposed sanction the Board should consider imposing for any violations of the Nurse Practice Act.

Also important, but not mentioned in the Board’s cover letter to the nurse regarding the Report and Recommendation, is the nurse’s ability to request to address the Board prior to the Board’s deliberations upon the Report and Recommendation.  If requested in a timely manner (which would always be the case if submitted at the time the same time as the timely filed objections to the Report and Recommendation), the nurse can request permission to address the Board.  If that timely request is made, then the nurse and/or his attorney will be allowed 7 minutes to address the Board members at the regularly scheduled Ohio Board of Nursing Meeting that the Board decides it will deliberate upon the Report and Recommendation.  From the perspective of experienced nursing license defense counsel, it is almost always recommended that the nurse request to address the Board for one or more of the following reasons: 1) it provides the one and only opportunity for the Board Members to actually observe the nurse in person; 2) it allows the nurse to speak directly to the Board Members regarding key components of his defense or mitigation; and 3) it shows the Board Members that the nurse cares enough about her nursing license to travel to the Board’s Office and address the Board Members about her case.

The Ohio Board of Nursing meets every other month and it it sometimes difficult to predict which Board Meeting the Board will select to deliberate upon a particular case.  Because the above referenced cover letter does not indicate at which Board Meeting the Board will consider the nurse’s case, it is important for the nurse or his attorney to contact the Board (at hearing@nursing.ohio.gov ) in order to confirm when the deliberations will occur.  That inquiry should occur no more than 3 days after the above referenced cover letter is received.  Otherwise, the nurse runs the risk of submitting a timely request to address the Board and then being told that he needs to appear at the Board 1-2 days later to address the Board.  For an employ nurse whose employer / patients require advance notice of a nurse’s absence, such short notice can cause serious problems for the nurse, the employer and/or the patients.

In addition, it is important for the nurse to know the date the Board will deliberate upon the Report and Recommendation in his case, because the Adjudication Order adopted by the Board will become effective the day.  In cases where there is the potential that the Adjudication Order will include a period of suspension (where the nurse will not be permitted to practice in Ohio until reinstated), it will be important for the  the nurse, the employer and/or the patients to know the Board Meeting date that the Adjudication Order imposing the suspension will be adopted and become effective.

Finally, for those nurses who timely request and receive approval to address the Board prior to deliberations upon the Report and Recommendation, it is advisable for the nurse to plan to arrive at the Board’s Office at least 15 minutes before the designated start time.  That extra time will allow for the nurse to pass through the security system the Board has in place, which can occasionally get backed up as part of the last minute rush to enter the Board Meeting Room.

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 attorneys at Graff & McGovern.  Jim McGovern can be reached at 614-228-5800, x2, or jmcgovern@grafflaw.com