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Prepared By: Jim McGovern, Esq. & Simone Armour

Effective March 21, 2025, the Ohio Board of Nursing (“OBN”) has adopted a new enforcement posture based on authority that has existed in the statute since at least September 2024. Specifically, the OBN is now fully exercising its statutory discretion to decline to redact or alter disciplinary records even after a licensee’s underlying criminal case is sealed or expunged.

While many assumed the law required redaction of disciplinary records after sealing, a provision in Ohio Revised Code §4723.28, in effect since at least September 2024, gives the Board discretion to do otherwise. And, as of March 2025, the OBN has made clear that it intends to exercise that discretion.

This position is not the result of a new statute, but rather a reaffirmation and formal application of an existing clause in Ohio Revised Code § 4723.28, which now appears in its same form in both the prior (9/20/2024) and current (3/21/2025) versions of the law. Recent legislation, Substitute Senate Bill 109 of the 135th General Assembly, reinforces this language across multiple healthcare licensing boards, crystallizing a coordinated legislative intent that sealed court records do not erase public discipline against licensee of Ohio’s healthcare licensing boards.

The Statutory Clause at the Center
The focal point of this issue is a single sentence buried in the OBN’s disciplinary authority statute, ORC § 4723.28:

“The board shall not be required to seal, destroy, redact, or otherwise modify its records to reflect the court’s sealing or expungement of conviction records.”

This clause appears in the September 2024 and March 2025 versions of ORC § 4723.28. But while the language itself is not new, the Board’s operational interpretation of it has shifted from a discretionary, redaction-friendly approach, to strict literal enforcement.

Prior Practice: Good-Faith Measures in Discretionary Redactions

Prior to March 2025, the OBN showed some flexibility, especially in cases where sealed court records no longer reflected the basis for the OBN’s sanction imposed upon a licensee and/or where the underlying court case did not lead to a licensee being conviction. A prior case of ours stands as a clear example. Upon learning that the underlying criminal record had been sealed, the OBN redacted the associated consent agreement to remove reference to the underlying court case, but the sanction imposed by the consent agreement remained in place.  This discretionary practice honored the spirit, if not the letter, of Ohio’s sealing statutes, which hold that sealed proceedings “shall be deemed not to have occurred.”

That approach appears to be over. The OBN is now interpreting the statute as a green light to leave such information in the public disciplinary record, regardless of any court-ordered sealing.

When a court has sealed or expunged a criminal conviction or other disposition of criminal charges, if that conviction or disposition was used as a basis for an OBN sanction imposed against a licensee, then the OBN is neither required nor authorized to alter the public disciplinary record. This isn’t just about the OBN choosing not to help, it’s the Board saying, out loud, that it won’t.

Implications for Licensees

Under OBN’s new approach, implications for licensees with criminal histories are substantial.

Here’s how this plays out: a nurse pleads to a misdemeanor. Years later, the nurse petitions a court to seal the record and the court agrees. Legally, after sealing occurs, that criminal case is treated as if it “never occurred.” But on Ohio eLicense and NURSYS, the nurse’s disciplinary record (including reference to the sealed criminal case) stays public. Unlike before, there is no update and no redaction of reference to the sealed criminal case from the OBN’s disciplinary records.  Thus, a sanction imposed by the OBN becomes a kind of digital fossil: a record of something the courts have ruled should no longer legally exist—but that still shows up every time a hospital, employer, or another licensing board runs a background check.

This development seems to assert authority upon ambiguities that previously existed between the mandates of sealing statutes (R.C. 2953.32 and 2953.39) and the Board’s responsibilities under public records laws and regulatory duties.  For most, sealing is expected to provide an opportunity to have a clean slate, which removes barriers to employment, housing, and professional opportunities. However, for Ohio licensed nurses, that opportunity does not extend to their disciplinary records. The sealed criminal case may disappear from court databases, but not from the OBN’s consent agreements / adjudication orders, Ohio eLicense, or NURSYS.

This disconnect between criminal record relief and professional licensing transparency raises legal and ethical concerns about fairness, proportionality, and the enduring collateral consequences of a sealed offense.

The Bigger Picture: Policy, Not Law, Has Shifted
It’s important to emphasize that this is a policy shift, not a legal one. The statute always allowed the Board to take this position—but the discretionary redactions of the past seem to have been replaced by a more rigid, literal interpretation of the law.

This raises deeper questions about the balance between transparency in licensing records and respect for criminal record sealing, which exists to promote rehabilitation and reintegration. As other licensing boards grapple with similar issues, Ohio’s approach may become a model—or a cautionary tale.

In this current environment, Ohio licensed nurses and/or their attorneys negotiating consent agreements with the Ohio Board of Nursing should be aware that unless ORC § 4723.28 is changed or successfully challenged, no future sealing accommodations should be expected from the OBN.

Divergence from Sealing Expectation

This issue isn’t unique to nursing. Substitute Ohio Senate Bill 109 echoed the same language across other Ohio healthcare licensing boards, signaling a broader trend that once a sanction is imposed, it’s permanent, regardless of what the courts say about the criminal records underlying the sanction.  Unfortunately, this isn’t a technical tweak. It’s a full-blown policy reset. And it’s out of step with jurisdictions that treat professional discipline as a measure of current fitness, not as a record-keeping arm of the criminal justice system.

What Should Practitioners and Licensees Do?

Adjust your expectations. If you’re negotiating a consent agreement tied to a criminal matter, assume it will remain public—even if the underlying case is later sealed, expunged, or dismissed.

Don’t expect redaction. Don’t expect modification. Unless the law changes, or the OBN walks this back, sealed means sealed in court, but not at the OBN or where the OBN reports the sanctions it imposes upon its licensees – like Ohio eLicense and NURSYS.

This article provides general information regarding O.R.C. § 4723.28 as effective March 21, 2025. It is not legal advice. For case-specific guidance, contact a Graff & McGovern attorney at 614-228-5800.