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.
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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

 

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.


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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

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

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

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