Texas Board of Nurse Examiners

Starting September 1st, 2013, the Texas Peer Assistance Program for Nurses (TPAPN) will significantly increase the length of their standard monitoring contracts. Previously an RN or LVN participant could expect to sign a two-year participation agreement while an Advanced Practice Nurse or CRNA would be asked to participate for three years. RN/LVN’s and APN/CRNA’s will now need to participate for three and five years, respectively. The new change applies to both nurses who enter TPAPN with or without an accompanying Board Order.

This policy change is probably meant to bring TPAPN more in line with the monitoring programs used by other Texas healthcare licensing agencies. For example, the Professional Recovery Network, which serves as the official peer assistance program for the Texas Pharmacy, Dental, and Veterinary Boards normally asks its participants to sign a five-year agreement. The Texas Physician Health Program also frequently makes use of a five-year agreement, although this can be much longer depending on the case.

While it is understandable why the Texas Board of Nursing would want to increase the standard timeframe for TPAPN participation, I have concerns as to how effective this change will be without corresponding reform of the TPAPN process. My firm has represented hundreds of nurses who have participated in TPAPN both with and without a corresponding Board Order. Many of these nurses have ended up in TPAPN even though they do not have a qualifying substance abuse, chemical dependency, or mental health issue. Usually this is due to the nurse believing they have no other option to retain their license and/or avoid action by the Board. This is oftentimes incorrect and our firm has helped numerous nurses achieve a better result.

This being said, for many nurses participation in TPAPN is a good option. TPAPN does provide a level of structure and direction which can be helpful to someone who is new to sobriety and just learning the tools necessary to remain abstinent. Ideally, this should be accompanied by a supportive and non-punitive atmosphere designed to assist this process. TPAPN’s goal is, and should be, assisting nurses to become and stay sober while monitoring this process through objective indicators such as drug and alcohol screening and regular reports from employers and medical/mental health providers. Unfortunately, it has been my experience that many of TPAPN’s rules and policies are counterproductive to these goals, lead to unnecessary referrals to the Board, and discourage potential participants from enrolling in the program.

Flaws with TPAPN include its policy of refusing to allow a participant to work until they have been cleared by an evaluator and passed a drug and alcohol screen. While sometimes this makes sense, oftentimes it does not as the nurse is already sober and may have been so for some time. This requirement frequently results in the nurse losing their job which significantly undermines their ability to successfully participate both from a sobriety, financial, and mental health standpoint.

TPAPN also prohibits its participants from taking any medication that is potentially abusable even if it is medically indicated, validly prescribed, and completely unrelated to the reason for their participation. For example, a nurse who enrolls in TPAPN due to a history of alcohol abuse but who also has a longstanding and well documented chronic pain syndrome will be asked to discontinue all narcotics. A nurse may also be forced to discontinue psychiatric medications even though these are medically indicated and beneficial. This rule automatically disqualifies a whole range of potential participants who would otherwise be good candidates and can make compliance for existing participants extremely difficult. Continue Reading TPAPN shifts to three-year program for LVN/RN’s and five-year program for APN/CRNA’s

 

During the last month my firm has experienced an influx of calls from nurses who have tested positive for alcohol while on an Order with the Texas Board of Nursing. The consequences of testing positive for a prohibited substance, including alcohol, while under a Board Order can be quite severe. This includes an automatic temporary suspension of the nurse’s license and a high likelihood that this suspension will be continued until the nurse has subsequently obtained twelve consecutive months of sobriety verified by additional random drug and alcohol testing. Moreover, from a legal perspective it is very difficult to mount an effective defense in the face of a positive test and avoid these harsh consequences.

The reason for the sudden increase in nurses testing positive for alcohol appears to be the Texas Board of Nursing’s new decision to include testing for ethyl glucuronide (EtS) and ethly sulfate (EtS) in their screening panel. Previously, the screening company used by the Texas Board of Nursing only tested for ethanol, however, the Board recently signed a contract with a new vendor that includes both EtG and EtS screening in their panel. This is crucial as the sensitivity and detection window of EtG and EtS testing is much higher than a traditional urine ethanol screen.

Ethanol, or alcohol, is the primary intoxicating ingredient in alcoholic beverages. Accordingly, a person who has ingested alcohol will only test positive for ethanol as long as the alcohol remains in their system. Once it has been fully metabolized by the liver, the person will no longer test positive. Given this is a relatively quick process ethanol testing will generally only provide a 10-12 hour window in which to detect if a person has ingested alcohol. If the person has only had one or two drinks, the detection window is even shorter.

In contrast, EtG and EtS testing can detect even light alcohol use over a period of several days. Additionally, these tests, and the low cut-off levels used by the Board, are highly sensitive to even a small amount of alcohol ingetsion. It is also well documented that inadvertent, casual exposure to alcohol in the environment can cause a person to test positive. Sources of incidental exposure to alcohol that can cause positive results include:

  • hand sanitizers containing alcohol;
  • foods containing trace amounts of alcohol;
  • non-alcoholic beers such as O’Doul’s;
  • colognes and perfumes;
  • sustained exposure to gasoline and other chemical agents containing alcohol;
  • mouthwashes containing alcohol such as Listerine and Scope;
  • over-the-counter medications containing alcohol;
  • certain natural and herbal medications.

I am unaware whether the Board has provided nurses testing pursuant to a Board Order with information concerning this new testing panel. Ideally, nurses should also be provided with a list of different substances which can inadvertently cause a positive result. For many years, nurses in the Texas Peer Assistance Program for Nurses been given this information prior to their enrollment in testing and hopefully the Board is doing or will soon be doing the same. This is also the standard of practice for the Texas Physician Health Program and the Professional Recovery Network.

Texas nurses testing through the Board need to be made aware that they are now being tested for EtG and EtS and receive education on how to avoid an inadvertent positive. Whether a nurse who has already tested positive can mount a legal defense is largely dependent on their test level and whether they were positive for both EtG and EtS. A low positive can be an indication of only inadvertent exposure to alcohol while a test that is positive for EtG but negative for EtS strongly suggests either a contaminated sample or the spontaneous production of ethyl glucuronide in the specimen container. In District Court actions, my firm has previously successfully challenged on these bases two automatic suspension orders entered against physicians by the Texas Medical Board.

If you have tested positive for EtG or EtS, it is prudent to contact an attorney with Board experience immediately to explore your legal options. The Board is likely to move quickly to temporarily suspend your license and time is of the essence. Even if a suspension is inevitable, oftentimes an attorney can be useful in negotiating a subsequent Order with the Board that minimizes the amount of time the nurse will be unable to practice.

 

 

I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s.  During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.

 

Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.

 

Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.

 

If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.

 

Continue Reading The Texas Board of Nursing and the Changing Landscape of its Disciplinary Process

 

The Texas Board of Nursing has recently started offering a new type of agreed order which allows, with some significant reservations, nurses to avoid a permanent disciplinary mark on their record. Pursuant to the Legislature’s mandate that the Board administer a pilot program to study the feasibility of deferred disciplinary actions, the BON has enacted rules governing this program and outlining what type of cases are eligible for the new deferred disciplinary order. For those interested, the enacting statute is located at Section 301.1607 of the Nursing Practice Act and the governing rule is found at Title 22, Section 213.34 of the Texas Administrative Code.

A nurse who receives a deferred disciplinary order can have the order and original complaint dismissed and removed from their licensure record with the Board of Nursing if they successfully complete the terms of the order and receive no further disciplinary actions within the next five years. At the end of the five year period the deferred order is effectively sealed and any record of its existence is removed from the Board’s website. Additionally, this disciplinary action is then deemed confidential and is not subject to disclosure to either the public or a nurse’s employer.

There are significant limitations to these confidentiality protections. First, prior to the five year mark, the deferred disciplinary order is completely public and will appear in both the Board’s Newsletter and on the nurse’s online licensure page. Second, as with any Board order, the BON is required to file a report with the Healthcare Integrity Protections Data Bank (HIPDB). As this is a creation of Congress, it is subject to federal law and does not recognize confidentiality protections created at the state level. This means that a record of the disciplinary action taken against the nurse will stay in HIPDB indefinitely and remain accessible to employers regardless of its erasure in Texas.

Eligibility for a deferred disciplinary order is restricted to those cases which can be resolved through either a Warning with Stipulations or less severe order. Matters normally disposed of through a Reprimand, Probated Suspension, Enforced Suspension, or Revocation are not eligible for a deferred disciplinary action. Furthermore cases involving criminal or sexual misconduct, chemical dependency or substance abuse, intentional acts, falsification, or deception are likewise not eligible for the pilot program. The program is designed to apply to nurses whose cases show a lack of situational awareness or a knowledge or practice deficit. Finally, nurses with a prior disciplinary history with the Board cannot receive a deferred disciplinary order.

Its limitations aside, the deferred discipline pilot program is a welcome development and should prove beneficial in resolving marginal cases involving minor violations of the Nursing Practice Act. A nurse with an active case before the Board of Nursing curious about whether they may be eligible for a deferred disciplinary order should contact an attorney experienced in administrative law and in representing clients before the BON.

After receiving a letter of investigation from the Texas Board of Nursing and providing their initial response, it is quite common for a licensed nurse to wait for a long time prior to hearing any additional word from Board Staff. When a response does come, however, it is often in the form of a proposed Agreed Order or even a request that the nurse voluntarily surrender their nursing license. If a nurse has not yet sought legal advice from an attorney farmiliar with professional license defense, now would be the time to do so, as signing the proposed Agreed Order is a final resolution of their case and effectively serves as an express or tacit admission that the Board of Nursing’s allegations are true.

So what exactly is an Agreed Order in the context of the Texas Board of Nursing? The Nursing Practice Act, the Board’s administrative rules, and the Administrative Procedure Act authorize a state licensing board such as the Board of Nursing to resolve disciplinary cases through an Agreed Order. By signing the Agreed Order, both the licensed nurse (LVN, RN or APN) and the Board are agreeing to a legal settlement resolving all outstanding allegations in exchange for a set of requirements or stipulations to be imposed on the nurse. These stipulations can range from the active suspension of the nurse’s license, a mandate that the licensee submit to random drug testing over a number of years, a restriction on where and when a nurse can work, supervision requirements, fines, and even demands that the licensee complete additional CE courses.

A common inquiry received by my law office is whether or not a nurse who has already signed an Agreed Order which has been ratified by the full Board can now back out of its requirements. Please know that once an order has been signed and officially entered by the Board, it is extremely difficult to negate the stipulations or re-litigate the underlying allegations with the lawyers for the Board. In a small minority of cases it may be possible to modify the Order by petitioning the Nursing Board’s Eligibility and Disciplinary Committee which typically meets every other month. However; it is very rare to even be granted a hearing before the E & D Committee let alone be granted the requested relief.

A nurse should never sign an Agreed or Voluntary Surrender Order lightly and without first seeking legal advice form a lawyer who is well versed in administrative law and nursing license defense. Otherwise they will not know if the requested Order is legally justifiable or is backed up by sufficient evidence. The Board, coming from their perspective as the protector of public safety, usually seeks, at least initially, the most severe punishment which they feel is supported by their rules and various disciplinary guidelines. Oftentimes, a nurse may be able to achieve a better result with adequate representation by an experienced professional licensing attorney. I strongly urge Texas nurses to seek legal advice before signing any proposed Order; otherwise they may find themselves regretting it later or even belatedly discover they are no longer allowed to work at their preferred place of employment. Too often I see nurses who have signed Orders which they never should have been on in the first place become trapped in a downward spiral of compliance and other issues which threaten their ability to continue practicing.

 

Recent months have seen a sharp upswing in the Board of Nursing’s use of temporary suspension as a disciplinary measure against licensees including RN’s LVN’s, APN’s and CRNA’s. This is likely due to an influx of new attorneys, investigators, and other staff at the Nursing Board. Temporary suspension is authorized by the Nursing Practice Act (The Act), Section 301 of the Occupations Code. Tex. Occ. Code § 301. The Texas Legislature has carved out two specific areas in which temporary suspension is mandated: continuing and imminent threats to the public welfare, and “intemperate use” cases. Tex. Occ. Code § 301.455 and 4551.

First, temporary suspension is required by the Act “on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the nurse would constitute a continuing and imminent threat to the public welfare.” Tex. Occ. Code § 301.455(a). The Texas Legislature has also authorized the Board of Nursing to suspend or restrict a license without notice or a hearing, provided that two conditions are met. Tex. Occ. Code § 301.455(a). First, institution of proceedings for a hearing before SOAH must be initiated simultaneously with the suspension, and second, a hearing must be held “as soon as possible under this chapter and Chapter 2001, Government Code.” Tex. Occ. Code § 301.455(b)(1) and (2).Our lawyers have seen a number of cases in which a temporary suspension on this basis resulted from allegations of egregious sexual misconduct, serious criminal charges, and violence.

Second, Section 301.4551 mandates temporary suspension of a license for so-called “intemperate use” cases. These cases concern nurses who are subject to a board order prohibiting the use of alcohol and nonprescribed drugs or requiring participation in a peer assistance program. Tex. Occ. Code § 301.4551. The Board may temporarily suspend the license of such a nurse if the nurse in question tests positive for alcohol or a prohibited drug, refuses to comply with a board order to submit to a drug or alcohol test, or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the board for noncompliance. Tex. Occ. Code § 301.4551. Our law firm has seen numerous cases in which a nurse is placed on temporary suspension if that nurse shows a pattern of repeatedly engaging in intemperate use of alcohol or other prohibited drugs, especially while at work.

Once an order of temporary suspension has been issued, the Board must hold a hearing to determine probable cause within fourteen days of the issuance of the order. Following that, a hearing on the merits must be held within sixty days. The probable cause hearing is in reality the first opportunity the nurse may get to explain their side of the story and why their nursing license should not be subject to an on-going order of temporary suspension. The hearing is held in accordance with the Administrative Procedures Act and the administrative rules governing the State Office of Administrative Hearings (SOAH). The Board’s case is prosecuted by one of its staff attorneys and is ruled upon by an Administrative Law Judge (ALJ) from SOAH.

 

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.

 

Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the discipline of the nursing license / registration. In most of these cases a favorable result is anticipated for the nurse, but not without a long and arduous fight against the staff and lawyers of the Texas Board of Nursing.

Generally the cases arise in one of two ways:

  1. The Texas Peer Assistance Program for Nurses (TPAPN) is monitoring someone’s nursing practice pursuant to a Board Directive or Agreed Order and as such any low level test per TPAPN policy is considered a violation and is per se grounds for dismissal from TPAPN. This is also cause for a new report to the Texas Board of Nursing and Staff’s allegations / Formal Charges that the Nurse’s conduct is “unprofessional”;
  2. The Texas Board of Nursing has disciplined the license of a Nurse who is now under an Agreed Order and monitored by staff of the Board’s compliance and enforcement division (Carolyn Hudson for LVN Practice and Diane Burell for RN and APN practice).

In either case my law firm has seen low level tests where the result is less than 1000 ng/ml being used as an attempted basis for the unwarranted discipline of a nursing license by the attorneys and executive director of the Texas Board of Nursing in spite of clear advisory warnings that the test is in-and-of-itself flawed. Despite clear evidentiary problems staff of the Texas Board of Nursing still attempts to impose new disciplinary action against the nurse and their nursing license that generally involves either a voluntary surrender or an order of enforced suspension. This is especially egregious, as in most of the cases that the lawyers in my law firm have reviewed there is no indication that the nurse has actually violated their agreed order or the Texas Nursing Practice Act.

In a recent case I am the attorney for a Nurse (RN) who admitted truthfully on her license renewal form that she had attended treatment for alcohol use and dependency (Substance Abuse). There were no practice issues alleged and a long history of quality nursing care provided. The Nurse was ordered to TPAPN under a Board Order and she had been compliant in TPAPN for almost two (2) years -22 months to be exact. 

The client then threw off a low lying result for EtG which was under 500 ng/ml. Nevertheless TPAPN deemed her non-compliant and reported her to the Texas Board of Nursing for further prosecution and licensure discipline. Staff of the Board is now attempting to revoke her license even though she has never been charged or deemed to have committed a nursing practice error and there is no evidence that she has been anything but sober.

SAMSHA (the Substance Abuse and Mental Health Services Administration) has posted an advisory warning that the EtG lacks proven reliability and should not be used as the basis for regulatory action on its own. Despite this fact, staff of the Texas Board of Nursing continues to harass and punish nurses who do not hire an experienced attorney to defend themselves in a license defense matter involving allegations / violations of the Nursing Practice Act.  The punishment is executed in the form of an Agreed Order of Surrender or Enforced Suspension until the nurse goes through unnecessary treatment again and demonstrates one-year of objective and verifiable proof of sobriety / abstinence. Any nurse with a vested interest in thier license owes it to themselves to call an experienced attorney so they may better understand and properly assert their rights.

 

In cases involving possible alcohol/controlled substance abuse or mental health issues, the Texas Board of Nursing frequently asks nurses to submit to a forensic psychological evaluation and polygraph examination. This standard letter also contains a list of pre-approved evaluators and polygraph examiners. Any nurse who receives such a request should immediately stop and call an attorney with experience practicing before the Texas Board of Nursing.

 

The psychologists and psychiatrists referenced on this pre-approved list are there solely because they have a history of providing one-sided reports supporting whatever disciplinary measures the Board is considering imposing on your license. During the past decade I have represented approximately one thousand nurses before the Texas Board of Nursing. Throughout this period I have never seen an evaluation performed by a professional on the pre-approved list that is favorable to the nurse. This includes individuals whose entire history involves one or two DWIs or misdemeanor marijuana charges from two or more decades ago.

 

The bulk of these questionable evaluations are performed by two forensic psychologists in Richardson Texas. When reading an evaluation by one of these evaluators, I am frequently shocked by the vast leap between the verifiable facts in a given case, the results from the relevant forensic tests (such as the SASSI), and the final recommendations of the Board evaluators. Regardless of whether or not it is objectively justified, this recommendation is typically for revocation, referral to TPAPN, or the imposition of a long period of Board monitoring.

 

For example, one recent case involved a nurse with a ten-year old deferred adjudication involving possession of methamphetamines. Despite ten intervening years of incident-free nursing practice, my client’s successful completion of five years of community supervision (including the provision of five years of clean drug screens), and no other evidence of a problem, one of the above-referenced doctors wrote an evaluation finding that the nurse was an addict, unfit to practice nursing, and that the Board should seek to revoke her license. At this point the nurse felt the situation was so hopeless she had already sent started voluntarily surrendering to the Board; however, thanks to a last minute call to my office, I was able to rescind her surrender and ultimately have her case dismissed without any disciplinary action.

 

I have previously blogged about the Board’s use of polygraph examinations on this site which I urge you to read. The bottom line is that despite being scientifically invalid and clearly inadmissible in court, the Board continues to request polygraph exams. This is presumably so that their pre-approved evaluators can then use the questionable results to claim that a nurse was lying or overly defensive during the examination. Yet, even in the rare instance where the nurse obtains a clean polygraph, the forensic psychologist’s evaluation is invariably still negative.

 

Any nurse who receives a request from the Board that they should submit to a forensic evaluation and polygraph exam should immediately contact an attorney with experience before the Texas Board of Nursing. You need to know your rights including the ability to refuse the polygraph exam and request an evaluator not on the pre-approved list. By seeing one of the Board’s evaluators and polygraph examiners you place your nursing license at significant risk. A negative report will have to be rebutted, likely through a second evaluation by a neutral and better credentialed evaluator. Even then there is still a disfavorable evaluation out there raising an issue as to your fitness to practice.

 

I sincerely urge you to contact a lawyer prior to simply acceding to the request. More is at stake than you might think and you shouldn’t go ahead without some advice from someone other than the agency who holds authority over your license.

 

Recently I have represented several nurses before the Texas Board of Nursing who were being pursued by Board Staff for allegations for which they had already been acquitted by the criminal justice system. As one would expect, this quasi-double jeopardy is extremely frustrating to the nurse. Despite already having hired a criminal lawyer and clearing their name in criminal court, they must now hire a license defense attorney to do the same thing before the Board of Nursing.

 

The most recent example, involved a case where the nurse had been accused of an inappropriate touching by a ten year old girl. The girl claimed that she had awaken at a sleep over at the client’s house to discover the nurse touching her; however, there were several inconsistencies with the girl’s testimony and it later came out that she was friends with another young girl who had made the exact same allegation (down to every detail) against my client several years prior but had subsequently admitted to her mother that she had made it up.

 

At the close of the nurse’s criminal trial, the jury returned a unanimous verdict of not guilty. Moreover, Child Protective Services had conducted their own investigation into the matter and determined that nothing had occurred. Yet, despite his acquittal and the negative finding by Child Protective Services, the Texas Board of Nursing decided to pursue their own disciplinary action against my client, seeking the revocation of his nursing license.

 

Thankfully, my firm was able to enforce the expunction order which had previously been entered by the criminal court to prevent the Board from using second-hand records from that trial to prove their case. Instead, the Board of Nursing was forced to bring the girl to testify in person at a hearing at the State Office of Administrative Hearings. Based on conflicting testimony from our witnesses and several discrepancies between the girl’s original outcry and her testimony at the hearing, the Administrative Law Judge concluded that the Board of Nursing had not met their burden of proof and accordingly entered an opinion favorable to the nurse.

 

I understand that the Board has a mission to protect the public from bad nurses; nevertheless, at some point one has to think that enough is enough. A person should only have to clear their name so many times before it is reasonable for the Board to think twice about wasting state money to retry a licensee for the same conduct.

 

The underlying lesson is that simply because you received a not guilty verdict in criminal court or the District Attorney decided not to prosecute, you are not shielded from a licensure action by the Texas Board of Nursing. They frequently subject a nurse licensee to yet another legal action where they are forced to again clear their name or face severe restrictions on, or even termination, of their livelihood. If you are facing such a situation with the Texas Board of Nursing, I highly recommend that you contact a seasoned administrative attorney with experience before the Texas Board of Nursing and the State Office of Administrative Hearings as otherwise you could be risking your license.