The Texas Board of Nursing and TPAPN's Continued Misuse of EtG Testing

Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the discipline of the nursing license / registration. In most of these cases a favorable result is anticipated for the nurse, but not without a long and arduous fight against the staff and lawyers of the Texas Board of Nursing.

Generally the cases arise in one of two ways:

  1. The Texas Peer Assistance Program for Nurses (TPAPN) is monitoring someone’s nursing practice pursuant to a Board Directive or Agreed Order and as such any low level test per TPAPN policy is considered a violation and is per se grounds for dismissal from TPAPN. This is also cause for a new report to the Texas Board of Nursing and Staff’s allegations / Formal Charges that the Nurse’s conduct is “unprofessional”;
  2. The Texas Board of Nursing has disciplined the license of a Nurse who is now under an Agreed Order and monitored by staff of the Board’s compliance and enforcement division (Carolyn Hudson for LVN Practice and Diane Burell for RN and APN practice).

In either case my law firm has seen low level tests where the result is less than 1000 ng/ml being used as an attempted basis for the unwarranted discipline of a nursing license by the attorneys and executive director of the Texas Board of Nursing in spite of clear advisory warnings that the test is in-and-of-itself flawed. Despite clear evidentiary problems staff of the Texas Board of Nursing still attempts to impose new disciplinary action against the nurse and their nursing license that generally involves either a voluntary surrender or an order of enforced suspension. This is especially egregious, as in most of the cases that the lawyers in my law firm have reviewed there is no indication that the nurse has actually violated their agreed order or the Texas Nursing Practice Act.

In a recent case I am the attorney for a Nurse (RN) who admitted truthfully on her license renewal form that she had attended treatment for alcohol use and dependency (Substance Abuse). There were no practice issues alleged and a long history of quality nursing care provided. The Nurse was ordered to TPAPN under a Board Order and she had been compliant in TPAPN for almost two (2) years -22 months to be exact. 

The client then threw off a low lying result for EtG which was under 500 ng/ml. Nevertheless TPAPN deemed her non-compliant and reported her to the Texas Board of Nursing for further prosecution and licensure discipline. Staff of the Board is now attempting to revoke her license even though she has never been charged or deemed to have committed a nursing practice error and there is no evidence that she has been anything but sober.

SAMSHA (the Substance Abuse and Mental Health Services Administration) has posted an advisory warning that the EtG lacks proven reliability and should not be used as the basis for regulatory action on its own. Despite this fact, staff of the Texas Board of Nursing continues to harass and punish nurses who do not hire an experienced attorney to defend themselves in a license defense matter involving allegations / violations of the Nursing Practice Act.  The punishment is executed in the form of an Agreed Order of Surrender or Enforced Suspension until the nurse goes through unnecessary treatment again and demonstrates one-year of objective and verifiable proof of sobriety / abstinence. Any nurse with a vested interest in thier license owes it to themselves to call an experienced attorney so they may better understand and properly assert their rights.

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