Ohio § 4723.28

§ 4723.28.

(A) The board of nursing, by a vote of a quorum, may impose one or more of the following

sanctions if it finds that a person committed fraud in passing an examination required

to obtain a nursing license or dialysis technician certificate issued by the board

or committed fraud, misrepresentation, or deception in applying for or securing a

nursing license or dialysis technician certificate issued by the board:  deny, revoke,

suspend, or place restrictions on any nursing license or dialysis technician certificate

issued by the board;  reprimand or otherwise discipline a holder of a nursing license

or dialysis technician certificate;  or impose a fine of not more than five hundred

dollars per violation. (B) Except as provided in section 4723.092 of the Revised Code , the board of nursing, by a vote of a quorum, may impose one or more of the following

sanctions:  deny, revoke, suspend, or place restrictions on any nursing license or

dialysis technician certificate issued by the board;  reprimand or otherwise discipline

a holder of a nursing license or dialysis technician certificate;  or impose a fine

of not more than five hundred dollars per violation.  The sanctions may be imposed for any of the following: (1) Denial, revocation, suspension, or restriction of authority to engage in a licensed

profession or practice a health care occupation, including nursing or practice as

a dialysis technician, for any reason other than a failure to renew, in Ohio or another

state or jurisdiction; (2) Engaging in the practice of nursing or engaging in practice as a dialysis technician,

having failed to renew a nursing license or dialysis technician certificate issued

under this chapter, or while a nursing license or dialysis technician certificate

is under suspension; (3) Conviction of, a plea of guilty to, a judicial finding of guilt of, a judicial finding

of guilt resulting from a plea of no contest to, or a judicial finding of eligibility

for a pretrial diversion or similar program or for intervention in lieu of conviction

for, a misdemeanor committed in the course of practice; (4) Conviction of, a plea of guilty to, a judicial finding of guilt of, a judicial finding

of guilt resulting from a plea of no contest to, or a judicial finding of eligibility

for a pretrial diversion or similar program or for intervention in lieu of conviction

for, any felony or of any crime involving gross immorality or moral turpitude; (5) Selling, giving away, or administering drugs or therapeutic devices for other than

legal and legitimate therapeutic purposes;  or conviction of, a plea of guilty to,

a judicial finding of guilt of, a judicial finding of guilt resulting from a plea

of no contest to, or a judicial finding of eligibility for a pretrial diversion or

similar program or for intervention in lieu of conviction for, violating any municipal,

state, county, or federal drug law; (6) Conviction of, a plea of guilty to, a judicial finding of guilt of, a judicial finding

of guilt resulting from a plea of no contest to, or a judicial finding of eligibility

for a pretrial diversion or similar program or for intervention in lieu of conviction

for, an act in another jurisdiction that would constitute a felony or a crime of moral

turpitude in Ohio; (7) Conviction of, a plea of guilty to, a judicial finding of guilt of, a judicial finding

of guilt resulting from a plea of no contest to, or a judicial finding of eligibility

for a pretrial diversion or similar program or for intervention in lieu of conviction

for, an act in the course of practice in another jurisdiction that would constitute

a misdemeanor in Ohio; (8) Self-administering or otherwise taking into the body any dangerous drug, as defined

in section 4729.01 of the Revised Code , in any way that is not in accordance with a legal, valid prescription issued for

that individual, or self-administering or otherwise taking into the body any drug

that is a schedule I controlled substance; (9) Habitual or excessive use of controlled substances, other habit-forming drugs, or

alcohol or other chemical substances to an extent that impairs the individual's ability

to provide safe nursing care or safe dialysis care; (10) Impairment of the ability to practice according to acceptable and prevailing standards

of safe nursing care or safe dialysis care because of the use of drugs, alcohol, or

other chemical substances; (11) Impairment of the ability to practice according to acceptable and prevailing standards

of safe nursing care or safe dialysis care because of a physical or mental disability; (12) Assaulting or causing harm to a patient or depriving a patient of the means to summon

assistance; (13) Misappropriation or attempted misappropriation of money or anything of value in the

course of practice; (14) Adjudication by a probate court of being mentally ill or mentally incompetent.  The board may reinstate the person's nursing license or dialysis technician certificate

upon adjudication by a probate court of the person's restoration to competency or

upon submission to the board of other proof of competency. (15) The suspension or termination of employment by the United States department of defense

or department of veterans affairs for any act that violates or would violate this

chapter; (16) Violation of this chapter or any rules adopted under it; (17) Violation of any restrictions placed by the board on a nursing license or dialysis

technician certificate; (18) Failure to use universal and standard precautions established by rules adopted under section 4723.07 of the Revised Code ; (19) Failure to practice in accordance with acceptable and prevailing standards of safe

nursing care or safe dialysis care; (20) In the case of a registered nurse, engaging in activities that exceed the practice

of nursing as a registered nurse; (21) In the case of a licensed practical nurse, engaging in activities that exceed the

practice of nursing as a licensed practical nurse; (22) In the case of a dialysis technician, engaging in activities that exceed those permitted

under section 4723.72 of the Revised Code ; (23) Aiding and abetting a person in that person's practice of nursing without a license

or practice as a dialysis technician without a certificate issued under this chapter; (24) In the case of an advanced practice registered nurse, except as provided in division

(M) of this section, either of the following: (a) Waiving the payment of all or any part of a deductible or copayment that a patient,

pursuant to a health insurance or health care policy, contract, or plan that covers

such nursing services, would otherwise be required to pay if the waiver is used as

an enticement to a patient or group of patients to receive health care services from

that provider; (b) Advertising that the nurse will waive the payment of all or any part of a deductible

or copayment that a patient, pursuant to a health insurance or health care policy,

contract, or plan that covers such nursing services, would otherwise be required to

pay. (25) Failure to comply with the terms and conditions of participation in the safe haven

program conducted under sections 4723.35 and 4723.351 of the Revised Code ; (26) Failure to comply with the terms and conditions required under the practice intervention

and improvement program established under section 4723.282 of the Revised Code ; (27) In the case of an advanced practice registered nurse: (a) Engaging in activities that exceed those permitted for the nurse's nursing specialty

under section 4723.43 of the Revised Code ; (b) Failure to meet the quality assurance standards established under section 4723.07 of the Revised Code . (28) In the case of an advanced practice registered nurse other than a certified registered

nurse anesthetist, failure to maintain a standard care arrangement in accordance with section 4723.431 of the Revised Code or to practice in accordance with the standard care arrangement; (29) In the case of an advanced practice registered nurse who is designated as a clinical

nurse specialist, certified nurse-midwife, or certified nurse practitioner, failure

to prescribe drugs and therapeutic devices in accordance with section 4723.481 of the Revised Code ; (30) Prescribing any drug or device to perform or induce an abortion, or otherwise performing

or inducing an abortion; (31) Failure to establish and maintain professional boundaries with a patient, as specified

in rules adopted under section 4723.07 of the Revised Code ; (32) Regardless of whether the contact or verbal behavior is consensual, engaging with

a patient other than the spouse of the registered nurse, licensed practical nurse,

or dialysis technician in any of the following: (a) Sexual contact, as defined in section 2907.01 of the Revised Code ; (b) Verbal behavior that is sexually demeaning to the patient or may be reasonably interpreted

by the patient as sexually demeaning. (33) Assisting suicide, as defined in section 3795.01 of the Revised Code ; (34) Failure to comply with the requirements in section 3719.061 of the Revised Code before issuing for a minor a prescription for an opioid analgesic, as defined in section 3719.01 of the Revised Code ; (35) Failure to comply with section 4723.487 of the Revised Code , unless the state board of pharmacy no longer maintains a drug database pursuant

to section 4729.75 of the Revised Code ; (36) The revocation, suspension, restriction, reduction, or termination of clinical privileges

by the United States department of defense or department of veterans affairs or the

termination or suspension of a certificate of registration to prescribe drugs by the

drug enforcement administration of the United States department of justice; (37) In the case of an advanced practice registered nurse who is designated as a clinical

nurse specialist, certified nurse-midwife, or certified nurse practitioner, failure

to comply with the terms of a consult agreement entered into with a pharmacist pursuant

to section 4729.39 of the Revised Code ; (38) Violation of section 4723.93 of the Revised Code ; (39) Failure to cooperate with an investigation conducted by the board under this chapter,

including failure to comply with a subpoena or order issued by the board or failure

to answer truthfully a question presented by the board in an investigative interview,

in an investigative office conference, at a deposition, or in written interrogatories,

except that failure to cooperate with an investigation does not constitute grounds

for discipline if a court of competent jurisdiction has issued an order that either

quashes a subpoena or permits the individual to withhold testimony or evidence at

issue. (C) Disciplinary actions taken by the board under divisions (A) and (B) of this section

shall be taken pursuant to an adjudication conducted under Chapter 119. of the Revised

Code, except that in lieu of a hearing, the board may enter into a consent agreement

with an individual to resolve an allegation of a violation of this chapter or any

rule adopted under it.  A consent agreement, when ratified by a vote of a quorum, shall constitute the findings

and order of the board with respect to the matter addressed in the agreement.  If the board refuses to ratify a consent agreement, the admissions and findings

contained in the agreement shall be of no effect. (D) The hearings of the board shall be conducted in accordance with Chapter 119. of the

Revised Code, the board may appoint a hearing examiner, as provided in section 119.09 of the Revised Code , to conduct any hearing the board is authorized to hold under Chapter 119. of the

Revised Code. In any instance in which the board is required under Chapter 119. of the Revised Code

to give notice of an opportunity for a hearing and the applicant, licensee, or certificate

holder does not make a timely request for a hearing in accordance with section 119.07 of the Revised Code , the board is not required to hold a hearing, but may adopt, by a vote of a quorum,

a final order that contains the board's findings.  In the final order, the board may order any of the sanctions listed in division

(A) or (B) of this section. (E) If a criminal action is brought against a registered nurse, licensed practical nurse,

or dialysis technician for an act or crime described in divisions (B)(3) to (7) of

this section and the action is dismissed by the trial court other than on the merits,

the board shall conduct an adjudication to determine whether the registered nurse,

licensed practical nurse, or dialysis technician committed the act on which the action

was based.  If the board determines on the basis of the adjudication that the registered nurse,

licensed practical nurse, or dialysis technician committed the act, or if the registered

nurse, licensed practical nurse, or dialysis technician fails to participate in the

adjudication, the board may take action as though the registered nurse, licensed practical

nurse, or dialysis technician had been convicted of the act. If the board takes action on the basis of a conviction, plea, or a judicial finding

as described in divisions (B)(3) to (7) of this section that is overturned on appeal,

the registered nurse, licensed practical nurse, or dialysis technician may, on exhaustion

of the appeal process, petition the board for reconsideration of its action.  On receipt of the petition and supporting court documents, the board shall temporarily

rescind its action.  If the board determines that the decision on appeal was a decision on the merits,

it shall permanently rescind its action.  If the board determines that the decision on appeal was not a decision on the merits,

it shall conduct an adjudication to determine whether the registered nurse, licensed

practical nurse, or dialysis technician committed the act on which the original conviction,

plea, or judicial finding was based.  If the board determines on the basis of the adjudication that the registered nurse,

licensed practical nurse, or dialysis technician committed such act, or if the registered

nurse, licensed practical nurse, or dialysis technician does not request an adjudication,

the board shall reinstate its action;  otherwise, the board shall permanently rescind

its action. Notwithstanding the provision of division (D)(2) of section 2953.32 or division (F)(1) of section 2953.39 of the Revised Code specifying that if records pertaining to a criminal case are sealed or expunged under

that section the proceedings in the case shall be deemed not to have occurred, sealing

or expungement of the following records on which the board has based an action under

this section shall have no effect on the board's action or any sanction imposed by

the board under this section:  records of any conviction, guilty plea, judicial finding

of guilt resulting from a plea of no contest, or a judicial finding of eligibility

for a pretrial diversion program or intervention in lieu of conviction. 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. (F) The board may investigate an individual's criminal background in performing its duties

under this section.  As part of such investigation, the board may order the individual to submit, at

the individual's expense, a request to the bureau of criminal identification and investigation

for a criminal records check and check of federal bureau of investigation records

pursuant to section 4723.091 of the Revised Code . (G) During the course of an investigation conducted under this section, the board may

compel any registered nurse, licensed practical nurse, or dialysis technician or applicant

under this chapter to submit to a mental or physical examination, or both, as required

by the board and at the expense of the individual, if the board finds reason to believe

that the individual under investigation may have a physical or mental impairment that

may affect the individual's ability to provide safe nursing or dialysis care. The board shall not compel an individual who has been referred to the safe haven program

as described in sections 4723.35 and 4723.351 of the Revised Code to submit to a mental or physical examination. Failure of any individual to submit to a mental or physical examination when directed

constitutes an admission of the allegations, unless the failure is due to circumstances

beyond the individual's control, and a default and final order may be entered without

the taking of testimony or presentation of evidence. If the board finds that an individual is impaired, the board shall require the individual

to submit to care, counseling, or treatment approved or designated by the board, as

a condition for initial, continued, reinstated, or renewed authority to practice.  The individual shall be afforded an opportunity to demonstrate to the board that

the individual can begin or resume the individual's occupation in compliance with

acceptable and prevailing standards of care under the provisions of the individual's

authority to practice. For purposes of this division, any registered nurse, licensed practical nurse, or

dialysis technician or applicant under this chapter shall be deemed to have given

consent to submit to a mental or physical examination when directed to do so in writing

by the board, and to have waived all objections to the admissibility of testimony

or examination reports that constitute a privileged communication. (H) The board shall investigate evidence that appears to show that any person has violated

any provision of this chapter or any rule of the board.  Any person may report to the board any information the person may have that appears

to show a violation of any provision of this chapter or rule of the board.  In the absence of bad faith, any person who reports such information or who testifies

before the board in any adjudication conducted under Chapter 119. of the Revised Code

shall not be liable for civil damages as a result of the report or testimony. (I) All of the following apply under this chapter with respect to the confidentiality

of information: (1) Information received by the board pursuant to a complaint or an investigation is

confidential and not subject to discovery in any civil action, except that the board

may disclose information to law enforcement officers and government entities for purposes

of an investigation of either a licensed health care professional, including a registered

nurse, licensed practical nurse, or dialysis technician, or a person who may have

engaged in the unauthorized practice of nursing or dialysis care.  No law enforcement officer or government entity with knowledge of any information

disclosed by the board pursuant to this division shall divulge the information to

any other person or government entity except for the purpose of a government investigation,

a prosecution, or an adjudication by a court or government entity. (2) If an investigation requires a review of patient records, the investigation and proceeding

shall be conducted in such a manner as to protect patient confidentiality. (3) All adjudications and investigations of the board shall be considered civil actions

for the purposes of section 2305.252 of the Revised Code . (4) Any board activity that involves continued monitoring of an individual as part of

or following any disciplinary action taken under this section shall be conducted in

a manner that maintains the individual's confidentiality.  Information received or maintained by the board with respect to the board's monitoring

activities is not subject to discovery in any civil action and is confidential, except

that the board may disclose information to law enforcement officers and government

entities for purposes of an investigation of a licensee or certificate holder. (J) Any action taken by the board under this section resulting in a suspension from practice

shall be accompanied by a written statement of the conditions under which the person

may be reinstated to practice. (K) When the board refuses to grant a license or certificate to an applicant, revokes

a license or certificate, or refuses to reinstate a license or certificate, the board

may specify that its action is permanent.  An individual subject to permanent action taken by the board is forever ineligible

to hold a license or certificate of the type that was refused or revoked and the board

shall not accept from the individual an application for reinstatement of the license

or certificate or for a new license or certificate. (L) No unilateral surrender of a nursing license or dialysis technician certificate issued

under this chapter shall be effective unless accepted by majority vote of the board.  No application for a nursing license or dialysis technician certificate issued under

this chapter may be withdrawn without a majority vote of the board.  The board's jurisdiction to take disciplinary action under this section is not removed

or limited when an individual has a license or certificate classified as inactive

or fails to renew a license or certificate. (M) Sanctions shall not be imposed under division (B)(24) of this section against any

licensee who waives deductibles and copayments as follows: (1) In compliance with the health benefit plan that expressly allows such a practice.  Waiver of the deductibles or copayments shall be made only with the full knowledge

and consent of the plan purchaser, payer, and third-party administrator.  Documentation of the consent shall be made available to the board upon request. (2) For professional services rendered to any other person licensed pursuant to this

chapter to the extent allowed by this chapter and the rules of the board.