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.

 

Texas pharmacists should take note of a new Rule recently adopted by the Texas State Board of Pharmacy which places increased responsibility on the licensee to ensure that dispensed medications were prescribed for a valid medical purpose and pursuant to a proper patient-physician relationship. The Rule, which can be found at §291.29 in Title 22 of the Texas Administrative Code, is clearly aimed at controlling some of the worst abuses of internet pharmacy as well as the non-therapeutic prescribing of pain medications. The potential problem lies in that it creates a duty for pharmacists to verify that the prescriptions they dispense were generated by physicians working within their own practice standards as outlined in the Medical Practice Act and Rules of the Texas Medical Board. It is unclear to what extent this means Texas pharmacists are now expected to be fully educated on the applicable standards of care for Texas physicians, as interpreted by the TMB, in the treatment of chronic pain and use of internet and telemedicine. 

Specifically, the rule requires a Texas pharmacist to “make every reasonable effort” to confirm that a prescription has been issued for a legitimate medical purpose. A licensee is prohibited from dispensing a prescription if the pharmacist “knows or should have known” that the order was issued without a valid pre-existing patient-physician relationship as defined in the Texas Medical Board’s administrative Rules. Interested pharmacists can find these Rules at §§174.4 and 190.8 in Title 22 of the Texas Administrative Code.

Internet pharmacies are expressly barred from dispensing a prescription unless such medication is for a valid medical purpose and the prescribing physician has conducted at least one in-person physical evaluation of the patient. Prescription by online questionnaire is explicitly noted as unacceptable. The Rule goes further to prohibit a pharmacist from dispensing medications in the absence of a valid patient-physician relationship or if the prescription is “otherwise in violation of the practitioner’s standard of practice.”

Plainly, the Pharmacy Board’s new Rule could be interpreted as imposing a wide-sweeping burden on Texas pharmacists to perform their due diligence and ensure they are not filling prescriptions that do not meet the appropriate medical standard of care or were prescribed without an in-person physical examination. The obvious target of the new regulation is pharmacists who are seen as functioning as the tail end of a “pill mill” whether such prescriptions are generated online or at a physician’s office. Pharmacists who fill large quantities of pain medications, particularly the popular chronic pain “cocktails,” or other suspect drugs such as cough syrup should be aware that under the new rule they could risk a disciplinary action by the Texas State Board of Pharmacy if a reasonable person would have known the prescriptions were not medically valid or were issued without a proper examination or physician-patient relationship. It is not simply enough that the pharmacist can disclaim actual knowledge; if a reasonable pharmacist should have known or suspected they were being asked to fill such prescriptions, they are potentially vulnerable to a disciplinary action by the Pharmacy Board.

It is important to stress that Section 291.29 refers back to parts of the Medical Practice Act and the Texas Medical Board’s own Rules to define what constitutes a non-therapeutic prescription or a valid patient-physician relationship. This may be confusing to Texas pharmacists who are unfamiliar with the law and regulations as it applies to physicians, However, as an attorney who has represented hundreds of physicians before the Medical Board, I can affirm the TMB takes a strict and conservative stance towards these same issues and regularly pursues practitioners whose primary practice involves the treatment of chronic pain on the basis that they engage in non-therapeutic prescribing of narcotics and related medications. The TMB is also zealous in pursuing physician’s engaged in telemedicine which does not conform to the strict standards outlined in their Rules on Telemedicine (which can be found at Chapter 174 in Title 22 of the Texas Administrative Code). Given the strong interweaving of Rule 291.29 with the Medical Practice Act, I its adoption was coordinated with the Texas Medical Board and that Pharmacy Board and TMB attorneys and Staff may start to synchronize their enforcement actions against “bad” physicians and the pharmacists who fill their prescriptions.

Thankfully, the recently adopted Rule does provide some guidance as to when a pharmacist should be on guard. Several potential warning signs of bad prescriptions are expressly listed: these include the number of prescriptions authorized on a day-to-day basis by a practitioner, the geographical distance between the practitioner and the patient, the manner in which the prescriptions are authorized and received by the pharmacy, and whether the pharmacist knows the prescriptions are issued based on a questionnaire or over the internet.     

The bottom-line is Texas pharmacists need to be extra vigilant in confirming dispensed prescriptions were written in line with the applicable standard of care and were issued following a valid face-to-face medical examination. The adoption of §291.29 could potentially signal the beginning of a new round of enforcement actions by the Texas State Board of Pharmacy and any pharmacist unsure as to their possible liability would be wise to consult with an attorney familiar with the TSBP and the applicable legal standards. 

 

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.

 

When confronted with allegations of drug diversion or intemperate use, an employer will frequently present a nurse with a choice: either accept a referral into TPAPN or face a report to the Texas Board of Nursing. For a nurse who actually suffers from a substance abuse or chemical dependency diagnosis, acceptance of a referral toTPAPN may be a wise first step towards recovery. Nurses who do not believe they are an appropriate candidate for TPAPN, however, may want to give pause prior to pursuing that route as the restrictions and conditions imposed on a participant are onerous and will affect, sometimes drastically, their ability to continue practicing in their present capacity. 

 

This is doubly so for Advanced Practice Nurses such as Certified Nurse Anesthetists and Nurse Practitioners. At a minimum both CRNA’s and Nurse Practitioner’s will be precluded from practicing in their respective fields for one year. Moreover, the TPAPN participation term for Advanced Practice Nurses is three years instead of the two years applicable to regular RNs and LVNs. A CRNA or Nurse Practitioner’s enrollment in TPAPN is also clearly reportable to provider networks, malpractice insurers, hospitals, and other credentialing agencies and can affect their ability to successfully enter into agreements with these entities for years to come.

 

A CRNA or NP who has been referred to TPAPN, or the Board of Nursing, should know there are other potential options available and I strongly advise them to speak with an attorney well versed in representation before both TPAPN and the Texas Board of Nursing prior to making a final decision. At the outset, it may be possible for you and your attorney to refute or dispel the allegations underlying the TPAPN or Board referral. Even if this is not possible, a CRNA, Nurse Practitioner, or any other nurse is not eligible to participate in TPAPN or be placed on an equivalent Board Order unless they have a diagnosis of substance abuse or chemical dependency. Depending on the allegation and the nurse’s history of use or abuse of mind-altering substances, they might not carry such a diagnosis.

 

Some cases may even be eligible to be resolved through a referral to the Extended Evaluation Program (EEP), a sub-program operated by TPAPN which is meant to apply to nurses who may have some history indicating an issue with drugs or alcohol but who do not carry a DSM-IV diagnosis of substance abuse or chemical dependency. A nurse in EEP is only required to verify their sobriety through one year of negative random drug screening. It does not involve any restrictions on their scope of practice or, in the case of Nurse Practitioner’s, their prescribing authority. Moreover, a nurse’s participation in EEP is confidential, not a part of the public record, and is not disclosable on credentialing and other similar applications. Furthermore, participation in EEP is not considered to be discipline under the Nursing Practice Act.

 

A CRNA or Nurse Practitioner who is being asked to enroll in TPAPN and who thinks this is not an appropriate route should explore their options prior to making a decision which will dramatically affect their ability to practice as an APN. The unfortunate truth is that many nurses are in TPAPN when they shouldn’t be, likely because they felt they had no other choice. Even more tragically, it is often these nurses who have the most problem complying with their participation agreement as an individual who is in a treatment program but who don’t belong there is more likely to not give sufficient attention to remaining in compliance. Completing 90 Alcoholic’s Anonymous meetings in 90 days is hard enough for someone who genuinely belongs in and can benefit from AA. It is especially difficult for someone who does not. If you are in such a situation, I emphatically suggest that you talk to an attorney and weigh your options prior to making a final decision.  

 

In the past two months I have noticed a significant rise in the number of Dentist’s seeking potential legal representation before the Texas State Board of Dental Examiners. This is not surprising as the Dental Board has recently come under fire from both the press and Legislature for what is perceived as a record of lax or ineffectual enforcement. To attempt to remedy this situation the last Legislative Session authorized a sizable increase in the Dental Board’s budget for investigations and disciplinary matters.

 

The Texas Dental Board has been rapidly placing these new funds to use by hiring a new General Counsel, Joy Sparks, as well as several other new attorneys, paralegals, investigators, and miscellaneous support staff. Combined with the additional personnel, the Dental Board has begun pursuing dentists and other licensees for complaints and criminal episodes it would have likely either ignored or sought minimal discipline for in the past.

 

In one of my recent cases, the Board of Dental Examiners is seeking to impose a multi-year reprimand on the basis of a comparatively minor misdemeanor for which the dentist was placed on deferred adjudication. Previously, this kind of offense would have probably been ignored by the Board or only resulted in them demanding a less severe sanction; however, in this new climate the dentists may be facing a lengthy fight to avoid the imposition of an unreasonable Order.

 

The dilemma faced by this dentist and other’s like him is even if they are the subject of a comparatively minor case, should they agree to such discipline they will potentially be required to report it to their provider networks, malpractice insurers, any other credentialing bodies, other state’s where they are licensed, and the Department of Public Safety and DEA in reference to their controlled substances registration. The import is that what may start as a small case at the Dental Board can lead to a whole host of secondary effects which can affect a dentist’s ability to smoothly function as an ongoing concern.

 

The Dental Board has also initiated the process necessary to promulgate new disciplinary rules which promise to sharpen the teeth of the Board’s enforcement wing. I intend to dedicate a blog article to this topic once these proposed rules assume a more definite shape.    

 

The bottom-line is that Texas dentists should expect to see more activity from the Dental Board in the coming year and should ensure they keep abreast of rule changes and how they may impact their practice. Due to the Texas State Board of Dental Examiners’ more severe stance towards discipline, I strongly encourage any dentist subject to an investigation or disciplinary action to contact an attorney with experience in both administrative law and the representation of licensees before the Dental Board. In almost every case, early involvement by an attorney familiar with the process will lead to a better outcome and minimize any negative effects on the dentist’s practice. 

 

As many pharmacists are aware, the Professional Recovery Network (PRN) is a peer assistance program designed to aid licensees seeking treatment and other assistance with problems related to alcohol and substance abuse as well as certain mental illnesses. In this role PRN can play a valuable part in helping troubled pharmacists receive the counseling and intervention they need to regain control over their lives while continuing to exercise their skills and expertise through their practice.

 

While PRN is commendable in this regard, a recurrent problem I encounter in representing pharmacists before the Texas State Board of Pharmacy is that PRN does not fully disclose upfront the significant limitations in their confidentiality protections and their captured role vis a vis the Pharmacy Board. As an attorney, I frequently see this lack of full disclosure on the part of PRN result in significant harm to a pharmacist’s ability to defend themselves in any related Board disciplinary action avoid the imposition of a severe and prolonged public disciplinary orders.

 

There are two primary ways in which pharmacists can become involved with PRN: These are through a referral, either by the individual themselves or a third party, or through a disciplinary investigation initiated by the Texas State Board of Pharmacy. In either case, PRN will take an initial history and likely perform an in-house assessment on the pharmacist licensee in addition to having the individual evaluated by an outside expert. Following this PRN, will present the pharmacist with a contract asking them to agree to participate for a number of years in a list of recovery activities and other requirements. This typically includes agreeing to complete an intensive inpatient or outpatient recovery program, regular attendance of AA or other support group meetings, submission to randomized drug testing, and potentially other restrictions focused on their ability to function as a PIC or working without being unsupervised by another pharmacist. Another mandated requirement is a consent form allowing PRN to turn the pharmacist’s entire file over to the Pharmacy Board in the event they fail to comply with any aspect of the agreement.

 

The fundamental problem is that up until this point pharmacists (even self-referrals) are not told that if they, for whatever reason, decide not to enter into the PRN agreement then PRN will forward their full file to the Pharmacy Board. Based on the stories of many of my clients, prior to this juncture licensees are assured that everything they tell PRN is confidential. As seen above, this is seriously misleading and, in my opinion, arguably illegal.

 

By this point the pharmacist has likely made numerous statements and admissions to PRN which will be turned over to the Texas State Board of Pharmacy and used as evidence in any disciplinary action. The licensee has probably also undergone an assessment with an addiction specialist or other mental health professional. This expert’s report will likewise be forwarded to the Board. With the receipt of the above damaging admissions and other evidence, which likely would not have been made had the pharmacist been aware that PRN does not, in fact, strictly maintain their confidentiality, the Board’s case is already fully formed and ready to prosecute. The licensee’s legal options at this time are likely very circumscribed even though this is often the first time they may consider contacting an attorney. With little room to maneuver, the pharmacist can essentially be forced to sign a public and long-term Agreed Order that significantly restricts their ability to function as an ongoing concern.

 

What pharmacist’s need to understand is that PRN is the Texas State Board of Pharmacy’s statutory peer assistance program under the Health and Safety Code and as such can function as an arm of the Board in disciplinary actions. The first and primary consequence of this captured status is the disclosure of supposedly confidential information to the Board. In the future I hope to write about other issues with this conflicting mandate and the way it can subvert PRN’s ostensible role as an agency set-up to encourage troubled pharmacists to seek need treatment and intervention.  

 

The bottom-line is that every pharmacist who is dealing with or considering contacting PRN needs to be aware that any information or statements provided by them can be, and often is, turned over to the Pharmacy Board. Consulting with a Texas pharmacy license attorney either prior to or after you have made contact with PRN is likely a prudent step to ensure you aren’t unnecessarily jeopardizing your ability to continue practicing as a pharmacist..

 

In the past year the Texas State Board of Pharmacy has started attempting to strictly enforce their recent amendments to the Board’s administrative rules related to punishment for criminal offenses. These rules prescribe certain standard disciplinary sanctions for a wide-ranging list of specific offenses. Pharmacists with either a criminal record or a pending criminal case should take note as the sanctions involved are generally quite severe and can include revocation of a licensee’s registration by the Pharmacy Board.

 

For example, according to the guidelines a pharmacist who is convicted or placed on deferred adjudication/probation for a felony drug-related offense under Chapter 481 or 483 of the Health and Safety Code related to fraud, or the manufacture, delivery, theft, or possession with intent to deliver of drugs is subject to the denial or revocation of their pharmacist license until 20 years after the date of disposition. Even at the twenty year mark, the guidelines state the Texas State Board of Pharmacy’s intent to place the pharmacist on a five year probationary order.

 

For those pharmacists convicted or placed on deferred adjudication for the felony possession of drugs, the guidelines state that the Board will deny, revoke, or suspend the professional’s license if they are still on probation. Likewise, if the pharmacist is not on probation but it has been five or less years since the date of disposition, then they are eligible for a five year probationary order but only if they have first been evaluated by an addiction specialist who opines that they are safe to continue practicing pharmacy. Even if it has been over twenty years since the date of disposition, the TSBP still wants to place the pharmacist on a one year probationary order. Of additional note is that the guidelines apply essentially the same set of penalties to a pharmacist convicted or placed on deferred adjudication for misdemeanor possession.

 

It has been my experience as an attorney that the Texas State Board of Pharmacy tries to strictly adhere to these guidelines at the informal stage of the investigatory process only to become somewhat more receptive to mitigating evidence and other factors once a case has been filed at SOAH. Unfortunately, I have seen many pro se or poorly represented pharmacists accept the Board’s settlement offer, however harsh, at the informal stage out of sense that nothing better is possible.

 

Legally speaking, the TSBP’s sanction guidelines are only just that: guidelines. Although an Administrative Law Judge will give the guidelines some deference at a formal administrative hearing, Pharmacy Board attorneys are still required to show that under the specific factors present in that case, the requested sanction is warranted. On the flipside, it is the burden of the pharmacist and their attorney to draw out the mitigating factors and demonstrate why a lesser sanction is in order. This necessarily demands an intimate and working knowledge of the rest of the Pharmacy Board’s rules, the Texas Pharmacy Act, and other pertinent sections of the Texas Occupations Code, including Chapter 53, as to first, what are the relevant mitigating factors and second, how to get them into evidence.

 

Every pharmacist with a criminal record or a pending criminal case should be aware of the Texas State Board of Pharmacy’s new sanction policies. If you are in such a situation I strongly advise that you contact an attorney experienced in administrative law and representation before the Texas State Board of Pharmacy to discuss possible outcomes and preemptive courses of action.

 

Currently, physicians and physician assistants with a history of substance abuse, mental illness, or other medical conditions which could affect their ability to safely practice medicine have been eligible to receive a rehabilitation order from the Texas Medical Board. Pursuant to a set of specific criteria, physicians and PA’s with such issues are also frequently able to have such orders be confidential from the public and colleagues.

 

In line with general national trends in regards to medical licensing, this current arrangement is set for a major change next year due to the passage of Senate Bill No. 292 by the Texas Legislature. This bill adds Section 167 to the Medical Practice Act thereby establishing the Texas Physician Health Program (TPHP) as a replacement for the old regime of rehabilitation orders administered and monitored through the Medical Board. Somewhat similar to the Professional Recovery Network of the Texas State Board of Pharmacy and Texas Dental Board, the Texas Physician Health Program is designed to become the first stop for impaired and ill physicians. Like the older rehabilitation order system, the Physician Health Program would be directed towards impaired and mentally ill physicians, although it would still also cover other licensees with rarer medical conditions which could affect their safe practice.

 

Once the TPHP springs into existence on January 1st, 2010, a physician can now be referred into the Physician Health Program in lieu of an investigation and disciplinary action by the Medical Board. Virtually anyone can refer a physician into the Program, including the Board, a hospital, another physician, a physician health and rehabilitation committee, or a concerned member of the public. Importantly the new law also notes that the Physician Health Program is not allowed to accept a referral which also involves a violation of the standard of care as a result of the use of drugs or alcohol or a boundary violation with a patient or their family. Also significant, the Medical Board now has the authority to make the granting of an initial license contingent on the physician’s agreement to enroll and participate in TPHP.

 

Similar to the current rehabilitation orders, a referral to TPHP and participation therein remains completely confidential unless the physician or physician assistant leaves the program, fails to adhere to their participation agreement, or otherwise is determined to pose a risk to patient safety by Program Staff. In such an event, the Physician Health Program will forward the licensee’s file to the Medical Board and the TMB will likely open a disciplinary investigation.

 

What is still left unclear is the process when a licensee is referred by a non-Board individual to the Physician Health Program for an impairment or mental health issue that does not involve a standard of care violation and that physician decides not to enroll in the Program. It has been my experience serving as an attorney in cases involving PRN and the Board of Nursing’s TPAPN program that the peer assistance entity is then required to forward the matter to the Board.

 

In the same vein, it is also unclear as to what extent the physician and physician assistant will be notified that they can hire an attorney to represent them before the Texas Physician Health Program. As it stands now, basic due process concerns require that the Medical Board inform physicians of their right to legal representation whenever they open an investigation. This is a potential issue as based on my dealings with PRN and TPAPN, a peer assistance program like TPHP, while having nothing but good intentions, is unfortunately often beholden to their governing Board. In such situations the threat is that they could become a mere instrument of the Board collecting potential damaging evidence and admissions from the physician while acting under the guise of being an independent entity.

 

Nevertheless, I am cautiously optimistic as I believe if run well, the Texas Physician Health Program has the potential to be a great resource for impaired and mentally ill physicians and consequently their patients and the public at large. It remains to be seen, however, how the Program performs once it launches into action at the start of the new year. 

 

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.