The Texas Board of Nursing & Minor Criminal Infractions
For the January 17-18, 2008 meeting of the Texas Board of Nursing (formerly the Texas Board of Nurse Examiners), attorney and general counsel Dusty Johnson presented an informational report on the Board’s policy in regards to minor criminal infractions and licensing. Of particular interest for current and future Texas nurses, the report provides a list of crimes which the Board has deemed to be too minor to warrant an investigation or disciplinary order in connection with a license application or renewal. Following the mandate of Chapter 53 of the Texas Government Code, the BON (BNE) recognizes that there are some forms of criminal conduct which are not sufficiently related to nursing to bring into question the licensee’s competency. Specifically, the listed criminal offenses are compared to the Board’s own Rule 213.28(i) concerning “youthful indiscretions.” Also of note is the finding that the Nursing Board now annually investigates approximately 3000 “positive hits” resulting from the standard FBI criminal background check required of all license applicants.
The criminal offenses considered not to be sufficiently related to the practice of nursing as to warrant an investigation or disciplinary action are:
- One misdemeanor DWI/DUI (not on probation)
- One misdemeanor offense of possession of marijuana
- Up to two misdemeanor theft by check
- One misdemeanor domestic/family violence
- One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
- One misdemeanor shop lifting
- One misdemeanor criminal mischief
- Misdemeanor graffiti
- One misdemeanor criminal trespass
- One misdemeanor disorderly conduct
- Up to two misdemeanor Public Intoxication
- Up to two misdemeanor Pan Handling
- Misdemeanor “loud noise” violations
- One misdemeanor Reckless Driving
- Misdemeanor minor in possession of tobacco
- One misdemeanor selling alcohol to a minor
- Failure to appear
- Vehicular molestation (slashing tires)
It has been my experience that the Board is oftentimes less than faithful to the above stated policy. In fact a discerning reader will note that the exemption of the above offenses is subject to the proviso that the Board does not deem them connected with patient care or the practice of nursing. In reality BNE attorney’s are all too ready to stretch any reading of what relates to the practice of nursing beyond all plausibility in their crusade to discipline nurses. For example, of the above, DWI convictions/deferred adjudication, domestic/family violence, and any form of theft are frequently the basis of Board of Nurse Examiners license investigations and disciplinary action. The Board’s mandate of protecting Texas medical consumers while also ensuring the licensing of much needed new nurses would be better served when the BNE decides to rigorously adhere to these stated policies.
Timely License Renewal Under the Texas Administrative Procedure Act
The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.
Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals.A licensed professional who fails to seek timely application for renewal loses this guaranteed extension of their existing license. Moreover, once an application is not timely made per the APA, agency rule will dictate the matter and any leverage once afforded to the licensee by a timely application for renewal is lost. Finally, if a licensee is in the midst of a disciplinary investigation it is imperative that they renew their license timely as a failure to do so might allow the agency to impose restrictions against or tacitly deny the re-registration.
The Polygraph Test: Just Say No to the BNE
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The 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.
