Inappropriate Referrals to the Texas Physician Health Program

 

Since its inception several years ago, the Texas Physician Health Program has provided a valuable option for physicians suffering from chemical dependency, serious mental illness, or physical impairment. For appropriate Texas physicians, the Physician Health Program (also known by its acronym “PHP”) can help a practitioner set up a structured recovery or monitoring program based on recommendations by qualified medical and mental health professionals. Additionally, in most instances participation in PHP is confidential and will not be reportable to the National Practitioner Databank, hospitals, insurance networks, or other credentialing entities.

Unfortunately, my firm has observed an increasing number of Texas physicians referred to PHP by the Texas Medical Board for marginal issues. This includes physicians with a single DWI conviction, long stable mental health conditions, and physical conditions unlikely to affect their practice. Such a physician can quickly find themselves asked to sign a long-term participation agreement with PHP that imposes restrictions on their practice and onerous monitoring conditions. This situation is tragic as in many instances it is possible to obtain a dismissal if the physician hires an attorney and allows the Board to review their case.

A common scenario begins with a physician fulfilling their duty to self-report a first-time DWI or Public Intoxication conviction to the Texas Medical Board. As a follow-up, the physician will often receive a letter from the TMB stating the Board is referring their case to the Physician Health Program for evaluation in lieu of an investigation or possible disciplinary action. The physician is then typically contacted by PHP and asked to set up a meeting with the program director, also a physician, at their office in Austin, Texas. Out of an abundance of caution, PHP will then usually ask the physician to sign a participation agreement with or without further evaluation or treatment. At this juncture, many physicians will enter into the agreement out of a fear of Board action even though their case would likely be dismissed by the Board at an informal conference.

My firm has represented many physicians in the same and similar situations and, through skillful representation before the Medical Board, obtained a dismissal at or before an informal conference. If the issue is marginal, not supported by a diagnosis, or is an existing diagnosis in long-term remission, it is often possible to put together appropriate evidence and expert opinion, present this to the TMB, and convince the Board to dismiss the case without taking any action.

The Board’s decision to refer a case to the Physician Health Program is usually reflexive and done prior to any real review of the physician’s case and circumstances. Effective advocacy by an attorney familiar with the Board’s process can allow a physician with a marginal issue to avoid both discipline by the Board or participation in PHP. Any physician finding themselves in this type of situation should contact an attorney to discuss their options. Evaluation and participation in the Texas Physician Health Program may be inappropriate and unnecessary.

 

Request for Mental Health Evaluation by Texas Pharmacy Board or PRN

 

A Texas pharmacist who is suspected of having a potential substance abuse or dependency problem or other mental health issue which could impact their ability to safely practice is almost always asked by the Texas State Board of Pharmacy or Professional Recovery Network (PRN) to undergo an evaluation with a mental health provider (MHP). This request is typically made in one of two contexts:

  • A pharmacist has just been referred to PRN and is asked to undergo an evaluation to determine whether they suffer from an impairment issue, and, if so, what is the appropriate course of treatment; or
  • The pharmacist has been invited to attend an informal conference with the Texas State Board of Pharmacy about a disciplinary issue and is also asked to complete a PRN-coordinated mental health evaluation prior to the scheduled conference.

In both instances the pharmacist should be wary of accepting and undergoing this process unassisted by legal counsel, particularly if the pharmacist has some doubt as to whether they suffer from an impairment or mental health issue. I have seen many, many pharmacists who have unwittingly undercut their own case by failing to hire an attorney until after they are evaluated by an MHP.

The potential pitfalls of this process are multifold. First, the pharmacist is always asked to see a mental health provider who is on PRN's pre-approved evaluator list. PRN's list is primarily composed of licensed chemical dependency counselors (LCDC) as, pursuant to their contract with the Pharmacy Board, PRN is required to pay for the evaluation and, as a lower level provider, an LCDC can charge a much lower rate than a forensic psychologist or psychiatrist.

Besides not possessing the same level of expertise as a physician or psychologist, it has been my experience that the LCDCs on PRN's list tend to repeatedly misdiagnose pharmacists with impairment issues they do not have. A classic case is a person with two alcohol related criminal offenses, such as two DWIs, which are multiple years apart. According to DSM-IV criteria, the near universally accepted gold standard for diagnosis in this area, this fact alone would not qualify the pharmacist for an alcohol abuse or dependency diagnosis. Yet, time and time again, my firm has been retained by a pharmacist who was improperly diagnosed based on stale criminal history or other criteria not recognized in addiction medicine.

Also an issue, most LCDC's are employed by or closely affiliated with a treatment center. Because of this, there is often a presumption on the part of the evaluator that the pharmacist must have a problem simply because they have been referred to their office. Additionally, the LCDC's connection to a treatment center creates an incentive to find some diagnosis in order to justify treatment.

Finally, many of the evaluators on the PRN's pre-approved list suffer from the perception, whether accurate or not, that in order to stay on the list and continue to receive referrals, they must find problems with the pharmacists sent to their office.

All of these factors combine to create a pool of pharmacists who are misdiagnosed with substance abuse or mental health issues they do not have. Once a pharmacist has been diagnosed with a problem they will at a minimum be required to enter into a five year monitoring agreement with PRN. If they refuse, PRN is required by law to refer their case to the Texas State Board of Pharmacy. Once the Pharmacy Board is involved, the Board's disciplinary policies mandate that the person be placed on a five-year Board Order which requires full PRN participation as well as workplace reporting and restrictions. In either scenario, the pharmacist will be required to regularly attend AA, abstain from alcohol and any other potentially addicting substances, and undergo expensive inpatient or outpatient treatment.

In most cases, such a poor outcome could have been avoided had the pharmacist hired an attorney prior to undergoing an evaluation with an MHP either by command of the Board or PRN. Our attorneys have years of experience working with both the Board and PRN and are familiar with evaluators on PRN's approved list. We have the knowledge necessary to collaborate with PRN to locate an evaluator who is fair and holds the expertise necessary for an individual case.

In matters involving allegations of impairment the selection of an appropriate evaluator is oftentimes the single most important point in the pharmacist's entire case. Once a pharmacist has received some form of impairment diagnosis, the damage is often irreparable. If you have been asked to undergo an evaluation by either PRN or the Board, it is absolutely crucial that you immediately contact an attorney familiar with both entities prior to moving forward.

PRN and the Texas State Board of Pharmacy: The Limitations of Confidentiality

 

As many pharmacists are aware, the Professional Recovery Network (PRN) is a peer assistance program designed to aid licensees seeking treatment and other assistance with problems related to alcohol and substance abuse as well as certain mental illnesses. In this role PRN can play a valuable part in helping troubled pharmacists receive the counseling and intervention they need to regain control over their lives while continuing to exercise their skills and expertise through their practice.

 

While PRN is commendable in this regard, a recurrent problem I encounter in representing pharmacists before the Texas State Board of Pharmacy is that PRN does not fully disclose upfront the significant limitations in their confidentiality protections and their captured role vis a vis the Pharmacy Board. As an attorney, I frequently see this lack of full disclosure on the part of PRN result in significant harm to a pharmacist’s ability to defend themselves in any related Board disciplinary action avoid the imposition of a severe and prolonged public disciplinary orders.

 

There are two primary ways in which pharmacists can become involved with PRN: These are through a referral, either by the individual themselves or a third party, or through a disciplinary investigation initiated by the Texas State Board of Pharmacy. In either case, PRN will take an initial history and likely perform an in-house assessment on the pharmacist licensee in addition to having the individual evaluated by an outside expert. Following this PRN, will present the pharmacist with a contract asking them to agree to participate for a number of years in a list of recovery activities and other requirements. This typically includes agreeing to complete an intensive inpatient or outpatient recovery program, regular attendance of AA or other support group meetings, submission to randomized drug testing, and potentially other restrictions focused on their ability to function as a PIC or working without being unsupervised by another pharmacist. Another mandated requirement is a consent form allowing PRN to turn the pharmacist’s entire file over to the Pharmacy Board in the event they fail to comply with any aspect of the agreement.

 

The fundamental problem is that up until this point pharmacists (even self-referrals) are not told that if they, for whatever reason, decide not to enter into the PRN agreement then PRN will forward their full file to the Pharmacy Board. Based on the stories of many of my clients, prior to this juncture licensees are assured that everything they tell PRN is confidential. As seen above, this is seriously misleading and, in my opinion, arguably illegal.

 

By this point the pharmacist has likely made numerous statements and admissions to PRN which will be turned over to the Texas State Board of Pharmacy and used as evidence in any disciplinary action. The licensee has probably also undergone an assessment with an addiction specialist or other mental health professional. This expert’s report will likewise be forwarded to the Board. With the receipt of the above damaging admissions and other evidence, which likely would not have been made had the pharmacist been aware that PRN does not, in fact, strictly maintain their confidentiality, the Board’s case is already fully formed and ready to prosecute. The licensee’s legal options at this time are likely very circumscribed even though this is often the first time they may consider contacting an attorney. With little room to maneuver, the pharmacist can essentially be forced to sign a public and long-term Agreed Order that significantly restricts their ability to function as an ongoing concern.

 

What pharmacist’s need to understand is that PRN is the Texas State Board of Pharmacy’s statutory peer assistance program under the Health and Safety Code and as such can function as an arm of the Board in disciplinary actions. The first and primary consequence of this captured status is the disclosure of supposedly confidential information to the Board. In the future I hope to write about other issues with this conflicting mandate and the way it can subvert PRN’s ostensible role as an agency set-up to encourage troubled pharmacists to seek need treatment and intervention.  

 

The bottom-line is that every pharmacist who is dealing with or considering contacting PRN needs to be aware that any information or statements provided by them can be, and often is, turned over to the Pharmacy Board. Consulting with a Texas pharmacy license attorney either prior to or after you have made contact with PRN is likely a prudent step to ensure you aren’t unnecessarily jeopardizing your ability to continue practicing as a pharmacist..

Recent Amendments to the Nursing Practice Act and the Subsequent Granting of Power to the Texas Board of Nursing

 

The statutory amendments to the Texas Nursing Practice Act as proposed by House Bill 3961 came into effect on September 1, 2009. The Amendments were largely suggested by the Texas Board of Nursing’s executive staff and attorneys in an effort to circumvent difficulties they were experiencing prosecuting disciplinary and licensure cases  involving the nursing practice of Registered Nurses (RN’s), Licensed Vocational Nurses (LVN’s) and Advanced Practice Nurses (APN’s) such as CRNA’s or Clinical Nurse Specialists (CNS).

 

The lawyers and staff of the Texas Board of Nursing (TBON) proposed these legislative changes to the Nursing Practice Act in response to challenges they were encountering when experienced administrative law and professional license defense attorneys opposed the abuses and tactics that Nursing Board Staff employed in license investigation(s) and contested case hearings.

While it is unclear how Staff of the Board will try to utilize its new regulatory authority the House Research Organization Bill Analysis does help to explain the bill and does confer what the legislature interpreted the provisions / amendments to mean. The changes also require the Board to adopt rules relating to the practice and procedure surrounding its new ability to request / require forensic psychological evaluations and the questionable polygraph report. This procedure is to be accomplished through a probable cause hearing at the State Office of Administrative Hearings (SOAH) and will be the topic of an independent and subsequent blog article.

 

The changes that will affect the way that license defense / disciplinary cases are handled involve Board Staff’s ability to request and potentially order a chemical dependency analysis or forensic psychological evaluation of a nurse. The Nursing Practice Act now also mandates that the Board utilize its Temporary Suspension Authority when a nurse tests positive for drugs or alcohol while under a Board Order or while participating in the activities of the Texas Peer Assistance Program for Nurses (TPAPN). The statute also requires the Temporary Suspension of a Nurse who is deemed non-compliant with TPAPN. This is especially troubling (as it has been my experience in handling over 500 nursing license defense cases) that oftentimes a nurse ends up in TPAPN due to routine practices by Nursing Board Staff despite the fact that the nurse is neither appropriate nor eligible for TPAPN per TPAPN’s own standards. Oftentimes TPAPN deems a person non-compliant for a cause that does not relate to drugs or alcohol such as the inability to find employment or disqualification to an ongoing medical condition.   Unfortunately these nurses may find themselves temporarily suspended without good cause. 

 

Fortunately the new statute appears to require the agency to demonstrate that probable cause exists that the nurse through their continued practice would pose an imminent danger or threat to the public health & welfare.

 

While reading the House Bill Analysis it is clear that Board Staff lobbied the legislature and attempted to legitimize its use of polygraph tests as a tool in the forensic psychological evaluations. Nurses however should take note that this tactic is still illegal and inappropriate under Texas Case Law and the Supreme Court’s rulings on the admissibility of polygraph test results in a Court of Law. 

 

Any Nurse who falls prey to Staff of the Texas Board of Nursing’s new use of its authority with respect to mandated psychological evaluations or a temporary suspension should contact an experienced administrative law and professional license defense attorney immediately. The Statutes changes clearly allow for defense and rights relevant to these changes and it is best to assert them before Staff of the Board and its lawyers gain an unfair advantage a nurses license / ability to practice.

 

Texas Board of Nursing's Pre-Approved Evaluator List: What Every Texas Nurse Should Know

 

In cases involving possible alcohol/controlled substance abuse or mental health issues, the Texas Board of Nursing frequently asks nurses to submit to a forensic psychological evaluation and polygraph examination. This standard letter also contains a list of pre-approved evaluators and polygraph examiners. Any nurse who receives such a request should immediately stop and call an attorney with experience practicing before the Texas Board of Nursing.

 

The psychologists and psychiatrists referenced on this pre-approved list are there solely because they have a history of providing one-sided reports supporting whatever disciplinary measures the Board is considering imposing on your license. During the past decade I have represented approximately one thousand nurses before the Texas Board of Nursing. Throughout this period I have never seen an evaluation performed by a professional on the pre-approved list that is favorable to the nurse. This includes individuals whose entire history involves one or two DWIs or misdemeanor marijuana charges from two or more decades ago.

 

The bulk of these questionable evaluations are performed by two forensic psychologists in Richardson Texas. When reading an evaluation by one of these evaluators, I am frequently shocked by the vast leap between the verifiable facts in a given case, the results from the relevant forensic tests (such as the SASSI), and the final recommendations of the Board evaluators. Regardless of whether or not it is objectively justified, this recommendation is typically for revocation, referral to TPAPN, or the imposition of a long period of Board monitoring.

 

For example, one recent case involved a nurse with a ten-year old deferred adjudication involving possession of methamphetamines. Despite ten intervening years of incident-free nursing practice, my client’s successful completion of five years of community supervision (including the provision of five years of clean drug screens), and no other evidence of a problem, one of the above-referenced doctors wrote an evaluation finding that the nurse was an addict, unfit to practice nursing, and that the Board should seek to revoke her license. At this point the nurse felt the situation was so hopeless she had already sent started voluntarily surrendering to the Board; however, thanks to a last minute call to my office, I was able to rescind her surrender and ultimately have her case dismissed without any disciplinary action.

 

I have previously blogged about the Board’s use of polygraph examinations on this site which I urge you to read. The bottom line is that despite being scientifically invalid and clearly inadmissible in court, the Board continues to request polygraph exams. This is presumably so that their pre-approved evaluators can then use the questionable results to claim that a nurse was lying or overly defensive during the examination. Yet, even in the rare instance where the nurse obtains a clean polygraph, the forensic psychologist’s evaluation is invariably still negative.

 

Any nurse who receives a request from the Board that they should submit to a forensic evaluation and polygraph exam should immediately contact an attorney with experience before the Texas Board of Nursing. You need to know your rights including the ability to refuse the polygraph exam and request an evaluator not on the pre-approved list. By seeing one of the Board’s evaluators and polygraph examiners you place your nursing license at significant risk. A negative report will have to be rebutted, likely through a second evaluation by a neutral and better credentialed evaluator. Even then there is still a disfavorable evaluation out there raising an issue as to your fitness to practice.

 

I sincerely urge you to contact a lawyer prior to simply acceding to the request. More is at stake than you might think and you shouldn’t go ahead without some advice from someone other than the agency who holds authority over your license.

Board of Nursing Overreaches Mandate in Pursuit of Ancient Criminal History

 

As most Texas nurses are now aware, the Texas Board of Nursing has for several years been performing criminal background checks as part of the renewal process. Each year a certain number of nurses who are up for renewal are required to submit fingerprints for an FBI background check. Those persons who lack any criminal history or who have previously disclosed that history to the Board need not worry. However, any licensees who do have an undisclosed criminal matter, even a minor one, should be concerned as the Board will likely use that record as an excuse to open an investigation and vigorously probe for any history or other indications that they feel indicates the person may lack fitness to practice nursing. Perhaps the most frustrating part of the Board’s policy is that they will apply the same searching examination no matter how old or miniscule the criminal record.

 

As an example, I recently served as the attorney for the spouse of a former client, who is also a nurse. His issue was that he recently received a letter from a Board investigator stating that a twenty year old arrest for misdemeanor possession of marijuana had popped up during his renewal background check and that they were opening an investigation based on it. The charge was so old that my client didn’t even remember it which is also the reason he had not disclosed it the Board. The arrest in fact is so old that it predates his entrance into nursing school. Furthermore, the fact that only an arrest showed up indicates that the local prosecutor likely decided that the matter was so minor that it did not warrant prosecution. Yet, the Board’s desire to pursue this old charge meant that he had to contact me and I dutifully sent a not so nice letter to the Board telling them to back off.

 

Essentially the Board is wasting state tax dollars and subjecting veteran nurses to searching and oftentimes humiliating investigations on the basis of decades-old minor criminal offenses which likely committed before the person was even licensed. This goes well beyond any investigatory/disciplinary mandate extended by the state legislature when they granted the Board the authority to perform extensive background checks as part of the renewal process.

The Texas Board of Nursing’s functions do include the screening of new and current licensees for the kind of criminal record which could indicate that they lack fitness to practice nursing. However, this authority does not extend to investigations and possible disciplinary action based on minor offenses committed one or two decades ago with years of uninterrupted, problem-free practice in the interim. All this does is waste Board funding and misdirect their limited resources away from pursuing licensees with genuine and ongoing issues that raise real questions about their safe practice.

 

It is unfortunate that it often takes the hiring of an attorney to convince the Board to retreat from this type of baseless investigation since they should never occur in the first place. It has been my experience as an attorney in many of these cases that the Board is essentially using the old offense as an excuse to sift into the nurse’s record and try and find anything which can then be added on as firmer grounds for disciplinary action. For example, the nurse will frequently be asked to submit to a polygraph examination and post-test forensic evaluation. As I have discussed elsewhere in my blog the Board has no authority to request this and the nurse is full within their rights to simply refuse. The problem is the nurse is never informed of this right of refusal as submission to test is presented as a mandatory matter-of-course. Following this the Board will habitually make an inappropriate referral to TPAPN based on the original criminal matter and whatever admissions or suspicious responses result from the polygraph and interview. Again the foundation for all of this can be nothing more than a decades old DWI or possession charge. 

 

Any nurse facing such a situation should consider hiring an attorney with experience representing clients before the Texas Board of Nursing. Unless they face a lawyer who knows what is and is not within their authority, the Board will likely try to initiate their own minor inquisition into your work and life history.

Misuse of EtG Testing by the Texas Board of Nurse Exmainers & TPAPN

Recently I have had a flurry of cases where Texas nurses are accused of violating their Agreed Board Orders or their Texas Peer Assistance Program for Nurses (TPAPN) contracts due to positive Ethylglucuronide (EtG) tests in the 300 to 500 ng/ml range. In each case the Nurse denied consuming alcohol and corroborating evidence suggested they were sober; nevertheless, TPAPN expelled them from participation and a subsequent BNE investigation ensued against their nursing license.

This is clearly contrary to the admissibility of EtG testing in Court or as valid scientific evidence for the Board of Nurse Examiners to consider regarding these individuals knowing or intentional use of ethyl alcohol (ETOH). Please see my blog post: “What is EtG”. Moreover, it is a clear abuse of the power of both TPAPN and the BNE as they have decided their interpretations and determinations regarding EtG testing validity and use are superior to that of the Courts, SAMSHA and the scientific community at large.

Properly utilized, EtG testing can be an excellent screening tool to confront someone about a positive test. Oftentimes the initial confrontation will yield to an admission of a return to active drinking. However, when denied and all circumstances suggest that sobriety is in tact the EtG test in this range is insufficient in and of itself to prove alcohol consumption. 

The BNE, however, is actively pursuing these cases in an effort to exact a surrender or active suspension of each nurse’s license. Moreover, one Client came to me after they had submitted to Board Staff’s request to undergo a forensic psychological evaluation and polygraph test. Although the test(s) yielded abstinence, Board Staff maintains other evidence developed during the psychological testing yielded information which shows the individual is otherwise unfit to possess a license to practice professional nursing in the State of Texas. The result –Formal Charges.

The bottom line is nurses who have been subjected to a BNE or TPAPN test for EtG and have tested positive should contact an attorney immediately for advice. Statements made to TPAPN or a Board investigator will be used by Board Staff against the licensee to pursue misconduct. Moreover, the inevitable request for a polygraph test is forthcoming and should be suitably denied. Please see my post titled - "The Polygraph Test: Just Say No to the BNE".

DWI & Nursing License Discipline by the Texas Board of Nurse Examiners

Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.  

The Nursing Practice Act also requires that a license holder maintain good professional character throughout their licensure tenure. Any instance of professional misconduct that, in the Board’s opinion, poses a risk to the public or patients can subject a nurse to a disciplinary sanction. The broad reach of this amorphous standard is utilized by Board Staff in an effort to discipline a nurse where no other statute applies. The final legal force of this rule, however, is restricted by the requirement that criminal convictions must be shown to relate to the practice of nursing in order to sustain a disciplinary action.

An illustration of these two statutes in play can be seen in the 2006 case In the Matter of Charles Stephen Phillips. Here Board Staff initiated disciplinary action against Phillips due to his guilty plea to the felony offense of intoxication assault. Pursuant to the plea agreement Phillips’ prison sentence was probated and he was placed on felony community supervision. The defendant had struck and severely injured a pedestrian while driving home after playing pool and consuming numerous alcoholic beverages. Board Staff sought to revoke Phillips’ license on separate but related theories:

  1. That his felony conviction related to the practice of nursing; and
  2. For committing unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a patient or the public.

However, after reviewing the facts and testimony of several expert witnesses, the Administrative Law Judge recommended that Phillips should retain his nursing license due to the Board’s failure to connect the unique criminal conduct and the criminal offense of intoxication assault with the practice of nursing. Moreover, the Board’s own expert (a forensic psychologist) determined that the Phillips was not chemically dependent and in fact had quit drinking since the accident. Further, the Board’s position that such conduct was unprofessional and likely to injure the public or patient’s was not substantiated due to Board Staff’s failure to establish a nexus between the criminal offense of intoxication assault and the practice of nursing.

My law firm has tried numerous similar matters. In Debra Ross vs. Board of Nurse Examiners, Board Staff denied the Registered Nurse reinstatement application of Ms. Ross due to four convictions for Driving While Intoxicated. Moreover, Board Staff insisted Ms. Ross was ineligible for licensure because she was on felony probation. Ms. Ross appealed Board Staff’s decision and requested a hearing on the merits at the State Office of Administrative Hearings (SOAH). The Administrative Law Judge (ALJ) recommended that Ms. Ross’ license be reinstated, once again, because of the Nursing Board’s failure to sufficiently relate her conviction to the practice of nursing. In Fact the ALJ made light of Board Staff’s failure to relate Ms. Ross’ criminal conduct of DWI to the practice of nursing through opining:

“Even Assuming one can practice nursing while driving, there was no showing in this case that Applicant was ever intoxicated while practicing nursing, on duty or on call as a nurse. There was no factual nexus established between Applicant’s performance of her professional duties as a nurse and her DWI arrests. Further, the record contains ample, persuasive evidence of her current sobriety."

These cases show that, as a legal matter, many DWI’s will not relate to the practice of nursing: However -this is not always the case. If, for example, a nurse is arrested while coming to or from work or is found intoxicated sufficiently close to their time on duty or on call, this could very well be found to relate to the practice of nursing and result in the discipline of the nurse’s license. Likewise, a finding of alcohol abuse / dependency following an arrest could result in a sanction. This frequently occurs as a result of the pre-trial services and assessment / evaluation process or due to the criminal defense attorney recommending alcohol treatment in an effort to obtain a better plea offer. Evidence of treatment participation is considered by Board Staff as prima facie evidence of a DSM IV diagnosis of chemical abuse or dependence. Criminal defense attorneys would be wise to seek the advice of an experienced administrative law attorney prior to advising a client as to the ramifications of defense strategy and plea bargains on their Client's professional registrations / licenses.

The Polygraph Test: Just Say No to the BNE

polygraph forensic quandryThe Board of Nurse Examiners for the State of Texas (BNE) evaluates applicant's for RN and LVN licensure per the Nursing Practice Act and the Nursing Board's Rules found in 22 Texas Administrative Code Sec. 217.11  et al.  Per the Nursing Practice Act, Board Staff has the ability to investigate an applicant's character and fitness to practice Nursing based on indications that an applicant may lack the "good professional character" to be a licensed nurse. 

In an effort to weed out poor or marginal applicants Board Staff notifies individuals that due to their criminal, work, mental health or drug use history they must Petition the Board's Executive Director for a Declaratory Order to practice nursing.  Then Board Staff (through the Executive Director) requests that they undergo a forensic psychological evaluation with a polygraph test component.  Although it is not explicitly stated in the request the implication is that a failure to submit to the "illegally requested" tests will result in a denial of the application for a license.

Although not legally authorized, Board Staff requests these evaluations for crimes that are often thirty (30) years old and that in and of themselves do not relate to the practice of nursing.  Moreover,  the forensic evaluation and polygraph tests are often nothing  more than a fishing expedition to determine if a person has done something in their past to render them ineligible.  Oftentimes what is dicovered is then used as the basis for denial even though it is often not legally admissible evidence. The simple truth is JUST Say No to the polygraph and call an attorney. 

You have a right to be heard which is something Board Staff does not tell you when they ask you to undergo the expensive, unauthorized and oftentimes inapproriate and unathorized tests.

Over the last several years I have had Client's asked to submit a Petition for a Declaratory Order for some of the the following reasons:

  • A thirty-two year old plea of no-contest to a felony possession charge that resulted in a deferred adjudication and dismissal.  This Client also had an impeccable military and professional career, yet Board Staff requested him to undergo a Forensic Evaluation and Polygraph test and tried to force him to agree to a two year probationary term;
  • A twenty-five year old arrest and conviction for prostitution;
  • A twenty year old Driving While Intoxicated arrest, plea and probation;
  • Pleas of no contest to crimes that were misdemeanors and unrealted to the practice of nursing that were all over ten years old;
  • Criminal Arrests that resulted in dismissals

In all of these cases we declined the invitation to undergo the forensic / polygraph evaluations and challenged the Staff of the Board of Nurse Examiners by requesting either a hearing on the merits at the State Office of Administrative Hearings or an appearance in front of the Eligibility & Disciplinary Committee.  In each case the applicant was granted an unrestricted license to practice nursing.