Serious Felony Offesnes & Discipline by the Texas Board of Nursing
All nurses who have been convicted or pled guilty or no contest to certain felony offenses should be aware that under a recent addition to the Nursing Practice Act, the Texas Nursing Board holds expanded authority to impose tough sanctions. Already a serious matter, an initial conviction for these offenses now carries additional consequences including mandatory revocation under certain conditions.
Chapter 301.4535 of the Texas Nursing Practice Act states that the Texas Board of Nursing must suspend or refuse to initially license any nurse / applicant who has been initially convicted of:
- Murder under § 19.02, capital murder under § 19.03, or manslaughter under § 19.04 of the Texas Penal Code;
- Kidnapping or unlawful restraint under § 20 of the Penal Code, when the offense was punished as a felony or state jail felony;
- Sexual Assault under § 22.011 of the Penal Code;
- Aggravated Sexual Assault under § 22.021
- Continuous sexual abuse of a young child or children under § 21.02, or indecency with a child under § 21.11 of the Penal Code;
- Aggravated Assault under Section 22.021 of the Penal Code:
- Intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual under § 22.04 of the Penal Code;
- Intentionally, knowingly, or recklessly abandoning or endangering a child under § 22.041 of the Penal Code;
- Aiding suicide under § 22.08 when the offense was punished as a state jail felony;
- An offense under § 25.07 of the Penal Code that was punished as a felony;
- An offense under § 25.071 of the Penal Code that was punished as a felony;
- An agreement to abduct a child from custody under § 25.031 of the Penal Code;
- The sale or purchase of a child under § 25.08 of the Penal Code;
- Robbery under § 29.02 of the Penal Code;
- Aggravated Robbery under § 29.03 of the Penal Code;
- An offense for which a defendant is required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure; or
- An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.
Note that the statute’s coverage includes licensees who have been convicted or pled guilty to one of the above offenses and who are then sentenced to deferred adjudication, community supervision, or probation. The basic message of §301.4535 is that the Board must and will automatically suspend an active license or refuse to initially license a nurse who has been initially convicted of one of the above specified offenses.
Over the objections of the Nursing Board, my law firm has successfully argued before the State Office of Administrative Hearings that when read in conjunction with the rest of the Nursing Practice Act, the Board’s own rules, and the Texas Occupations Code, § 301.4535 authorizes the Board to issue a stayed suspension as well as an enforced suspension. The former allows a licensee to continue practicing as a nurse while the latter does not. However, in order to effectively show that they qualify for a stayed order, a nurse will almost certainly need to present evidence and argument at an official hearing as to why, given the circumstances of their case, a stayed suspension would be appropriate. This involves the gathering and presentation of remedial evidence, possibly before an Administrative Law Judge in a trial-like setting. The eye of an experienced attorney is often able to pick out the kinds of beneficial remedial evidence which a layperson will miss. Further, a nurse’s right to such a hearing is contingent on their making a timely request for it. To ensure that you meet this deadline, consultation with an attorney may be advisable.
Another issue nurses who have been convicted of one of the listed offenses should be aware of is of the need to disclose this fact to the Board. Chapter 301.4535(b) holds that the failure of a nurse to disclose their felony conviction to the Board will result in the automatic revocation of their license, or a refusal to grant or renew a license, if the Board later learns that the conviction has been made final and it has not yet been 5 years since the nurse completed the probation or community supervision associated with the offense. Note that this subsection also applies to a plea of guilty or nolo contendre. Thus a failure to report can remove even the possibility of a stayed order.
Self-reporting facts that may lead to a disciplinary action can be a delicate matter, and I urge nurses to seek the advice of an attorney with experience before the Board when considering if and how to make such a disclosure. In the past my firm has represented numerous clients who have followed the mistaken advice of lawyers who are not familiar with the Board’s policies on full-disclosure for initial and renewal license applications. Self-reporting under § 301.4535(b) is all the more potentially hazardous given the serious minimum penalties involved.
Recently Adopted Rules: The Texas Board of Nursing
Effective May 2, 2007, the Texas Board of Nurse Examiners (recently renamed to the Texas Board of Nursing) adopted new language regarding rules §§ 214 and 215 governing Professional and Vocational Nursing Education. First published in the Texas Register on March 9, 2007, the rule change was designed to eliminate any misunderstanding as to the necessary student-to-faculty ratio required for an approved nursing school. The rule makes clear that by using preceptors, the maximum student-to-faculty ratio can be increased to 1:24 and for teaching assistants with a faculty member in a clinical setting, a ratio of 1:15.
More recently on June 22, 2007, the Board adopted numerous changes regarding Continuing Education requirements. Rule § 216 was modified so that a contact hour for continuing education requirements purposes was extended from 50 to 60 minutes. The Rule was also changed such that it is no longer mandatory for RNs to take a CE course on Hepatitis C.
More significantly, the Board has changed its policy on auditing and investigating nurses for compliance with CE requirements. Previously Board rules provided for a random audit of licensees for fulfillment of CE provisions. If no evidence of compliance was provided by the nurse an investigation was initiated which could lead to possible disciplinary action. Under the rule change, all licensees are required to submit evidence of CE compliance when seeking license renewal and if insufficient proof is provided the Board will simply deny their renewal application. This new rule is found at § 216.11.
In March, the Board adopted several amendments to §§ 213.28 and 213.33, two rules related to practice and procedure in disciplinary matters. Language was added to § 213.33 outlining the specific qualifications required of a Board appointed psychologist or psychiatrist who is charged with evaluating a licensee’s present fitness to practice nursing (§ 213.33(e)). The new provisions also permit the Board to request that the licensee be examined by a forensic psychologist or psychiatrist to determine the likelihood of future violations by the nurse and the level of danger they pose to the public (§ 213.33(f)).
Rule § 213.28 pertaining to the licensure of persons with criminal convictions has received significant additions to what the Board considers to be a crime related to and affecting the practice of nursing. The new language expressly provides that the following types of offenses are now deemed to relate to the practice of nursing: 1) offenses against the person similar to those outlined in Title 5 of the Penal Code; 2) offenses against property including robbery, theft, and burglary; 3) offenses involving fraud and deception; 4) offenses involving lying and falsification; and 5) offenses involving the delivery, possession, manufacture, or use of, or dispensing or prescribing a controlled substance, dangerous drug, or mood-altering substance (§ 213.28(b)). Note that the modified rule retains all of its old contents; Subsection (d) has simply been inserted into the middle of the rule.
During the comment period for this rule, one party raised the objection that this new list of crimes held to relate to the practice of nursing merely piles another vague standard on top of the already amorphous rules on what constitutes unprofessional conduct. This amendment to § 213.28 simply provides another readily malleable means for the Nursing Board to discipline nurses for conduct over which they have no original jurisdiction by simply stating that it “relates to the practice of nursing.” The Board dismissed this valid criticism with the comment that it was authorized under the Nursing Practice Act to adopt such a rule and that other state licensing agencies have similar rules. Of course the obvious response to this argument is that other Board’s who have similarly vague rules on unprofessional conduct are vulnerable to precisely the same criticism and should also adopt clearer and more reasonable rules on what actually relates to the practice of their particular professional. No licensing Board should respond to public pressure to go after “bad” professionals by crafting an all-encompassing standard on what constitutes grounds for disciplinary action. This policy results in numerous nurses being subject to the high personal and financial costs of an investigation and disciplinary action who have engaged in what may perhaps be regrettable conduct that was, however, completely outside of their work and professional environment. In the long term such a stance can only erode the trust of both the public and Texas nurses with the Texas Board of Nursing
The Vanishing Informal Conference & The Texas Board of Nursing
Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.
Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.
Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e). Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.
Besides failing to adhere to the law, the Board’s contested hearing practice also deprives licensees of due process. This is not surprising given that the rules being ignored by the Board were designed precisely to safeguard this Constitutional guarantee. Whenever the Board files formal charges against a licensee they also provide public notice that such licensee faces pending charges of a disciplinary nature. This public notice, without the presence of an agreed order finding any actual wrong-doing by the licensee, in turn causes significant damage to a nurse’s current and future employment prospects, their finances, and their professional reputation. This is all the more so if the BNE has also chosen to wrongly circumvent the informal settlement process. If the licensee was able to actively pursue dismissal of the BNE’s allegations or whatever relief they are entitled to, public notice would not rise to the level of a due process problem. Yet absent the docketing of the case this issue comes into plain focus; the nurse is subjected to the stigma of pending formal charges without any chance to clear their name. The BNE’s heinous policy of filing formal charges against a licensee accusing them of violating the Nursing Practice Act and Board Rules without taking the next step of ensuring they will have their day in court not only violates applicable law, it also represents a deprivation of even the most basic semblance of due process.
Unfortunately, the BNE’s inexcusable trial tactics do not appear to be a merely temporary turn. I speculate that the Board’s current practices may be due to the sharp increase in licensure actions pursued by the Board in recent years and the resulting difficulty to an overburdened Board Staff. Since the surge in licensure actions has no signs of letting up in the near future, the BNE will likely continue its current tact. In truth, these two practices should be seen as linked: the Board shouldered with more disciplinary actions than it can handle starts to bypass informal conferences and instead goes straight to SOAH, but then in order to place the matter on the back-burner, the BNE avoids their responsibility to docket the case. Yet, regardless of the administrative difficulties they may be facing, the law says what it says and that is that a licensee is entitled to and “opportunity to be heard” in an informal hearing and then in a formal hearing on the merits once formal charges have been filed. If the Board truly is experiencing difficulty in handling their case load the correct recourse is to petition the state government for more resources. It is not an excuse to violate the clear mandates of state administrative law.
Name Change for the BNE to The Texas Board of Nursing
The Texas Board of Nurse Examiners (BNE) became the Texas Board of Nursing (BON) on September 1, 2007 pursuant to House Bill 2426 otherwise known as the Sunset Bill for the Board of Nurse Examiners.
This should have no effect on the public other than some confusion as to why the agency continues to use its old stationary and have not updated their website. Arguably they will use the old stationary until it runs out and when the State gets around to it I imagine the website will be tweaked to reflect the new agency title –Budget Constraints.
Email addresses for all Board Staff have changed to the name.lastname@bon.state.tx.us format, but old emails should be active as well for at least another month. Whatever are they going to do about business cards for all of the employees? Let’s hope they don’t wait until they run out to order new ones.
Unfortunately, the name change means no relief for nurses involved in the disciplinary process or for those seeking declaratory orders. Board Staff, Board Policies, The Nursing Practice Act and Board Rules remain –the agency just has a different title.
What is TPAPN -The Texas Peer Assistance Program for Nurses?
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Established under Chapter 467 of the Health and Safety Code, TPAPN is a state-approved peer assistance program for Texas nurses. Operated by the Texas Nurses Association, TPAPN offers licensed nurses who are impaired by chemical dependency or mental illness an opportunity to undergo treatment and to safely return back to nursing practice -all under the protection of confidentiality.Available to Licensed Vocational and Registered Nurses who are diagnosed with substance abuse, chemical dependency, anxiety disorders, major depression, bipolar disorder, schizophrenia or schizoaffective disorder, program participation is an alternative to being reported to the Board of Nurse Examiners. A nurse suffering or who thinks they may be afflicted with one of the above diagnoses can either self-report or be referred to TPAPN by their employer. Completely voluntary, the program allows a nurse who has entered TPAPN to decline to participate or withdraw at any time. However, failure to adequately fulfill the TPAPN contract may result in a report being generated to the Texas Board of Nurse Examiners.
The self-proclaimed goal of the program is to provide an effective channel for recovery from chemical dependency and/or mental illness and effective re-integration back into nursing practice, thus protecting the public and providing incentives for professional accountability. Once in TPAPN, the nurse is assigned a case manager with extensive academic and clinical expertise in chemical dependency and psychiatric nursing. The program also includes advocates, LVN and RN volunteers who are there to support nurses throughout the program. Advocates create another layer of support for when a nurse’s case manager is not available.
The TPAPN program combines the roles of overseeing appropriate treatment, continuing care, self-help groups, practice restrictions, drug screens and monthly/quarterly reporting to ensure that nurses honor their TPAPN agreements. When a nurse self-reports or is referred to TPAPN, the program staff will make an initial assessment as to eligibility. During the first 90 days after treatment, program participants must attend daily self-help meetings such as those conducted by AA or NA and afterwards continue to attend at least four meetings per week. Nurses participating due to mental illness must follow the recommendations of their mental health professionals. Once the nurse is ready to return to work they must receive authorization by their case manager and will be subject to temporary practice restrictions. These restrictions include a requirement to be supervised by another nurse, being barred from access to controlled medications during the first six months of work, shifts limited to a maximum of twelve hours, no overtime, on-call, or night-shift assignments, and not accepting employment with temporary staffing agencies. Program participants must also both abstain from all alcohol and abusable drugs/medications and agree to provide random drug screens. The program runs for a minimum of two years.
Program staff must report to the nurse’s employer as well as the Board if the participant is non-compliant, has a positive drug screen, withdraws from the program, or moves out of state. If the nurse is a self-referral, the TPAPN staff will report the nurse to the Board only if they determine that the participant may pose an immediate threat to themselves or others.
The primary legal benefit of TPAPN is that participation is confidential and successful completion serves as an alternative to being reported to the Texas Board of Nurse Examiners and possible disciplinary action taken against the nurse’s license. The greater advantage of TPAPN participation, however, is the advocacy and assistance it offers to help guide impaired nurses back into control over their lives and the effective practice of their profession.
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:
- That his felony conviction related to the practice of nursing; and
- 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.
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.
Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners
The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process, allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.
Clearly a great number of people are under the false impression that a dismissal and an order of expunction are one and the same. Perhaps Board Staff is attempting to make sure that the arrest has truly been expunged. Unfortunately, this violates the spirit of the expunction statute as the effect of the expunction allows an individual the right to deny the arrest and the existence of the expunction order.
Moreover, the Board of Nurse Examiners can clearly discipline a nurse’s license or deny an application for failing to completely and fully disclose discoverable criminal history. They can not however, use an expunged offense (or the conduct behind the offense) as a basis for discipline or denial. In the last several years my law firm has expunged several arrests for both Registered Nurses (RN’s) and Licensed Vocational Nurses (LVN’s) and have always noticed the BNE in the Petition for Expunction. They have never contested the expunction or attempted to utilize the information.
If a nurse finds themselves in a situation of uncertainty with respect to whether or not an arrest has been expunged or needs to be disclosed they should contact an attorney who is familiar with both criminal law & the administrative process. If the offense is truly expunged a nurse does not have to prove that it is. However, if it is not then it must be disclosed. Finally, oftentimes DPS and other agencies make mistakes so sometimes truly expunged arrests are not properly destroyed by the reporting entities. It is therefore imperative that a certified copy of the Order of Expunction be retained indefinitely.BNE & Criminal History -Public Image or Public Safety?
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The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
A recent article published by the Fort Worth Star Telegraph entitled Nursing Board Sets High Standards describes Staff of the Board referring to public opinion concerning nurses. The Executive Director of the Board was quoted as saying: "Americans rate nurses at the top of the list of trusted professionals. And there's plenty of reason why". So is the BNE more concerned about the way they appear to the press and the public or ensuring there are enough quality nurses available to meet the demands of the workforce? Arguably, the stance and the approach suggest that public appearance and image is what is priority.
Recently I have had a flurry of client's who are being invesigated for alcohol related Class C offenses that are over a decade old. Staff of the Board maintains they are worried that the nurse may suffer from alcohol abuse or chemical dependency. What Board Staff fails to look at however, are the last ten years of a perfect working history, with no practice related errors. Board Staff would like to predicate a nurse's future on their remote past without due consideration given to recent history. This absurd infringement was taken to an extreme when a prospective Client was being investigated for an arrest for marijuana possesion that occurred overseas over thirty years ago. What is even more ludicrous is that no conviction ever was imposed and the country is now a war zone. I would like to see staff of the Board issue a subpoena to this war ridden country for a police report that is written in hyroglyphics. BNE lawyers and attorneys may be adequate trial lawyers, but any Administrative Law Judge would be hard pressed to admit such evidence given the numerous evidentiary and admissibility problems inherent with such a report.
