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.