The Texas Board of Nursing has recently created and implemented a new, confidential procedure in which to resolve disciplinary investigations. Typically, the Nursing Practice Act limits the Board’s discretion to resolve a case through anything other than a public Order. In a welcome innovation, the Board now has the authority to settle a restricted set of cases involving minor violations of the Nursing Practice Act through a confidential, non-disciplinary corrective action procedure.
Eligibility for a corrective action plan is limited and at the sole discretion of the Nursing Board’s Executive Director. A nurse may be eligible to have their case resolved through a corrective action proceeding if this is the first time they are being charged with one of the following violations:
- Practice on a delinquent (expired) license for more than six months but less than one year;
- Failure to comply with continuing competency requirements;
- Failure to verify licensure/credentials of person for whom nurse is administratively responsible;
- Failure to provide complete and accurate answers to the Board, your employers, or potential employers about matters like your employment history, licensure history, or criminal history;
- Failure to comply with Board requirements for change of name/address;
- Failure to develop, maintain, and implement a peer review plan according to peer review requirements; and
- Failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area.
See 22 Tex. Admin. Code § 213.32(2)
There are several benefits to receiving a corrective action plan as opposed to a normal disciplinary order. These include:
A nurse is typically ineligible for a corrective action plan if they have committed more than one of the violations listed above. Id. at § 213.32(3). Moreover, if a case has already progressed to a contested case hearing at the State Office of Administrative Hearings, the Executive Director no longer possess the discretion to resolve a matter through corrective action.
- Not Disciplinary Action: Corrective Action is not considered disciplinary action. 22 Tex. Admin. Code § 213.32(1);
- Limited Penalty: The penalty may only be a fine, remedial education, or any combination thereof. See Tex. Occ. § 301.652(a)(1). Should a fine be imposed the amount for first time offenders is $500. 22 Tex. Admin. Code § 213.32(3). Hence a nurse doesn’t have to worry about having their license revoked or suspended or being subjected to a period of monitoring by the Board;
- Finality: Once the nurse accepts the corrective action the case is closed. Tex. Occ. Code § 301.655(a);
- Greater Confidentiality: The corrective action is not public information unlike an agreed order or a formal hearing. Tex. Occ. Code § 301.652. As a result it is not subject to public disclosure, does not appear in the Board’s Newsletter, nor is it reported to the Healthcare Integrity and Protection Databank;
- Non-Admission of Guilt: A person’s acceptance of corrective action does not constitute an admission of a violation but only constitutes a plea of nolo contendere. Tex. Occ. Code § 301.657. However, if the board imposes a sanction on the person for a subsequent violation then it may treat a person’s acceptance of corrective action as an admission of a violation. Id.
It is important to note that the Legislature has included a provision within the authorizing statute requiring that the nurse accept an offer of corrective action within twenty days of receiving the proposed resolution from the Board, otherwise the Executive Director will have to pursue the complaint via the normal investigation process which could end with a public disciplinary action. Tex. Occ. Code §§ 301.654, 301.655.
As an attorney who represents numerous nurses before the Texas Board of Nursing each year, I view this as a positive initiative which should prevent relatively minor disciplinary issues from resulting in a potentially embarrassing public order. In fact, if anything, I feel the Board of Nursing could benefit from even greater authority to resolve cases through the kind of confidential order/process that is available to other state licensing entities such as the Texas State Board of Pharmacy and the Texas Medical Board through the new Physician Health Program.
The corrective action procedure has been especially helpful in my own practice for cases involving a nurse’s isolated failure to disclose minor criminal history on a licensure or renewal application. In the past, this could only be resolved through a public remedial education order which would remain on a nurse’s record indefinitely and be published in the Board’s Newsletter.
Any nurse with an active investigation with the Texas Board of Nursing would be well advised to consult with an attorney as to whether or not their case may be eligible for resolution through a corrective action plan. As stated above, this is an opportunity which can disappear once a case has proceeded to an advanced stage leaving a nurse with a limited choice between either litigating their case to its conclusion or accepting a public disciplinary order even if the Board’s allegations are of a de minis character.