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What authority does a board of nursing possess?

In many of my blogs, I have reviewed a board of nursing’s power granted to it by a state legislature.

The power of a board of nursing is quite broad and includes the ability to grant a license to an applicant as an RN, LPN or advanced practice registered nurse.

The board’s power also extends to denying such a license and to discipline a nurse licensee. It can impose disciplines such as a reprimand, probation, suspension of the license and revocation of the license.

In the State of Ohio v. Fontana (2019), a nurse practitioner questioned the criminal court’s order denying her participation in an Intervention in Lieu of Conviction program and to surrender her APRN license after pleading guilty to several drug felonies.

Facts of the case

The nurse practitioner, who had prescriptive privileges, suffered from multiple sclerosis and was in severe pain.

The nurse practitioner wrote prescriptions for various opioids for her mother, who was not a patient of hers and who did not have a legitimate need for the opioids. Instead, the nurse practitioner used the prescribed medications for herself.

When this was discovered, she was charged with 15 counts in the criminal case. Twelve counts were for the “illegal processing of drug documents,” fourth-degree felonies in Ohio, and three more counts of “illegal processing of drug documents,” fifth-degree felonies in Ohio.

The nurse practitioner pleaded guilty to six of the fourth-degree felony charges and two of the fifth-degree felony charges.

Asserting her rights under Ohio law, she filed a Motion for Intervention in Lieu of Conviction, which would allow her to participate in the program if she met certain requirements. If eligible, the nurse practitioner would be in the program for a year, which included not using illegal drugs or alcohol, participating in treatment and recovery support services, and submiting to regular random drug screens.

Upon successful completion of the program, her case would be dismissed, no conviction would occur and the court records would be sealed.

After a hearing to determine her eligibility, the court denied her request to participate in the Intervention in Lieu of Conviction program due to the 16 instances she improperly used her prescriptive authority.

The court also required the nurse practitioner to relinquish her RN and APRN licenses.

The nurse practitioner appealed the court’s order.

Appellate court’s decision

The appeals court carefully reviewed the criminal trial court’s order and applicable case law. The court clearly held the trial court exceeded its authority when it ordered the forfeiture of her nursing licenses.

“The authority to revoke or suspend a nursing license lies with the board of nursing. The board can revoke, suspend or restrict an individual’s nursing license if the person is convicted of a felony,” the ruling stated.

The court also opined that the trial court properly determined the nurse practitioner was not a “good candidate” for participation in the Intervention in Lieu of Conviction program, which is not a legal right nor a mandatory option. Rather, a court’s determination is discretionary.

The case was affirmed in part, reversed in part and remanded back to the trial court for “imposition of use limitations on the nurse practitioner’s nursing license, if any.”

Implications for your nursing practice

Since the case was just decided in January of this year, it is unknown what the criminal trial court will decide.

One issue is what the court will order concerning her illegal prescriptive authority (i.e., probation or other sentence based on state or federal laws). Remember, she did plead guilty to several of those felonies.

A second question is whether or not the nurse practitioner will appeal the Appeals Court decision to the Ohio Supreme Court since she now faces sentencing for several criminal felonies.

There is no doubt, though, that the court clearly held the board of nursing has the sole authority to discipline a licensed RN who also is an APRN. Unfortunately, the nurse practitioner will face a hearing before the board of nursing, the outcome of which is still unknown.

Although this case is a “victory” of sorts for you as a nurse licensee and is an assurance that only your board of nursing can discipline you as a licensee, suggestions for your nursing practice exist.

They include the following:

  • If you are an APRN with prescriptive authority, do not abuse that authority in any way.

  • If you are an RN or APRN suffering from a medical diagnosis that includes pain, seek treatment from a physician or APRN as a patient.

  • If you are charged with a crime that relates to your practice, obtain legal representation from a nurse attorney or attorney immediately.

  • Remember that your state board of nursing retains exclusive authority over you, your nursing practice and your license.

I delve into the power of boards of nursing even further in these two blogs “Case Shows Board’s Power to Discipline Nurses” and “Is challenging a board of nursing discipline an uphill battle?” for extended reading.

 


Take these courses to learn more about nursing regulation:

Document It Right: A Nurse’s Guide to Charting
(5.2 contact hrs)
From the earliest beginnings of the nursing profession, nurses have carefully recorded their observations of patients and their interventions to help patients recover from illness and achieve optimal health. In the beginnings of the profession, the primary purpose of nurses’ notes was to verify that physician orders were completed. Today, professional nurses are vital partners with other healthcare professionals, and nursing documentation is an essential part of comprehensive patient care. Although documentation has always been an important part of nursing practice, the increasingly complex healthcare environment, litigious society and the diversity of settings in which patients receive care require that nurses pay more attention to documentation. The computerized patient record has become standard practice, and the days of repetitive task-oriented narrative notes are becoming part of nursing history.

The Nurses’ Bill of Rights
(1 contact hr)
The American Nurses Association held a nursing staffing summit in Washington, D.C., in 2000. In a survey preceding the summit, 75% of nurses reported the quality of nursing care at their facilities had declined because of inadequate staffing and decreased nurse satisfaction. More than 200 summit attendees determined the need for a document to detail what nurses need and deserve to do the best for their patients. This need served as the impetus for the Nurses’ Bill of Rights, which was approved by the ANA board of directors in 2001. The Nurses’ Bill of Rights is a statement of professional rights rather than a legal document. It establishes an informal covenant between nurses and their employing institutions to help guide organizational policy and to focus discussions between nurses and employers on issues related to patient care and working conditions. Nurses can advocate more effectively for patients’ rights when they have critical information about their own rights. Not every nurse is familiar with the Nurses’ Bill of Rights or related rights described by various state boards of nursing and nursing associations in their position statements. This module provides an overview of them.

Texas Nursing Jurisprudence and Ethics
(2 contact hrs)
This course examines and explains the Texas Nursing Practice Act and the Licensure Compact for RNs, with which Texas nurses must be familiar. In addition, it explains important sections of the Texas Administrative Code and the Rules and Regulations Relating to Nurse Education, Licensure, and Practice, which further delineate requirements that the Nursing Practice Act sets forth.

By | 2019-03-05T20:45:29+00:00 February 28th, 2019|Categories: Nursing careers and jobs|0 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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