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.