In the past few years, my Firm has handled an increasing number of cases with the Texas Board of Nursing involving social media websites and the disclosure of confidential patient information. This can be a confusing topic as there is considerable gray area as to what constitutes the impermissible release of patient information and what is an appropriate communication by a nurse in a public forum.
Every nurse is aware of the duty to safeguard patients' identities and confidential health information. Maintaining this confidentiality is a requirement under both federal and state health care privacy laws as well as one of the Texas Nursing Board's minimum standard of nursing practice. In most circumstances, nurses are well aware of how to protect patient confidentiality and are knowledgeable of the procedure to follow when it appears as though a privacy breach has occurred. The growing prevalence and usage of social media and smart phones, however, has significantly increased opportunities for the improper release of confidential information and the resulting receipt of a Board complaint.
A greater awareness of this problem has led the Texas Board to directly address this issue in both its October 2011 and April 2012 quarterly newsletters. In these articles Board Staff outline several representative scenarios involving the improper disclosure of patient information and discuss what went wrong. While limited in content, these articles are helpful in that they provide some indication of the Board's approach to this issue and general guidance on what is considered to cross the line.
A common thread through the Board's examples is the limited control a nurse can exercise over communications posted on the internet or sent via social media. As an example, one of the scenarios discussed in the Texas Board of Nursing's April 2012 quarterly newsletter involves a nurse who posted in the comment section of her local newspaper's website. Although the content of the post did not identify the patient in any way, the Board's concern was that someone familiar with the nurse or patient's family could infer the patient's identity. To the Board's credit, the article states that this nurse was only issued a warning letter informing her that any future improper disclosures could result in disciplinary action.
As seen in the above example, the posting of even veiled statements about a patient that do not disclose the patient's identify can be problematic. This is because a posting on a public website can be viewed by potentially anyone. While the same statement to one person may be sufficiently disguised to prevent a confidentiality breach, another individual may have sufficient outside knowledge to guess the patient's identity and thereby be exposed to protected health information. In contrast to a one-on-one verbal exchange, a nurse who writes about work on Facebook, an online messaging board, or even in an email, has little control on who will subsequently view it. Additionally, the nature of online communications is that they will often remain in place indefinitely.
If a nurse has disclosed confidential patient information, the Texas Board of Nursing will take into account factors such as whether it was intentional or not, the nature of the information disclosed, how it was disclosed, and what sort of remedial measures taken by the nurse to correct it. Cases where the statement at issue has been carefully obscured by the nurse in order to protect the patient's identity can often be dismissed if handled appropriately by an attorney. As stated above there is always substantial gray area where it is not clear what constitutes an improper disclosure.
In the ongoing debate on patient confidentiality and social media, it is imperative to remember that nurses should retain the ability to discuss cases amongst themselves as this is an important source of learning through shared experience as well as a way to blow off steam in what is a difficult profession. A nurse must keep in mind to do so in an appropriate manner, however, and to avoid online discussions, even in a nurses only forum, due to the lack of control over who may ultimately view the communication. The bottom-line is that the Texas Board of Nursing's general approach in this area is highly conservation and Staff frequently pursue cases against what to an independent observer would not constitute an improper disclosure.
Any nurse who is already facing an investigation by the Texas Board of Nursing for the disclosure of confidential patient information should contact an attorney. It has been the experience of the attorneys at the Leichter Law Firm that early intervention by a seasoned nursing board lawyer can substantially impact the ultimate outcome with the Texas Board of Nursing.
Mirroring general trends, the number of standard of care complaints against Texas nurses have risen dramatically in the past few years. All too often, the Board has chosen to punish nurses as individuals for what are actually institutional defects in the larger medical entities where they practice. This is particularly true for nurses serving marginalized patients such as those found in the prison system. Further, just as in cases of chemical dependency, unprofessional conduct, and criminal convictions, the danger to a nurse’s license is very real.
These cases can be especially frustrating for clients because the basic challenge is to their competency as a nurse. All too often the Board is willing to pin the blame on a nurse for situations in which there was no clear breach of the standard of care and in fact no evidence that the stated medical intervention would have made a difference. Modern nursing practice can be a hectic experience and unfortunately the Texas Nursing Board is often reluctant to accept that people do in fact die or get sicker in hospitals without a breach in the standard of care by a nurse. Additionally, the dynamic of these matters is such that the Board may investigate one nurse who then tries to shift blame, whether real or nonexistent, onto another.
The need for legal representation in such cases cannot be stressed enough. Effective advocacy in standard of care cases generally requires the parsing of voluminous medical records and the development of expert testimony on the applicable standard of care and whether or not it was met in that case. A nurse without an attorney will be placed in a decided disadvantage by the lack of their own expert who can independently challenge or verify the opinion of the Board of Nursing’s expert who, not too surprisingly, seems to always side with BON. Add to this the development of any applicable mitigation evidence, and most nurses will be left with a complex situation where an attorney on your side will be an immeasurable help. It’s not worth going it alone, as the Board generally feels they can do what they want to a nurse who doesn’t have a lawyer. Remember, your license and ability to provide for yourself and your family is at stake.
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
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.
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.
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.
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.