Nurse Discipline

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According to the Texas Board of Nursing’s Administrative Rules any nurse who has a diagnosis of chemical dependency or who otherwise has a history of abuse of controlled substances must demonstrate through “objective, verifiable evidence” that they have been sober for the past twelve months before they can be allowed to continue practicing licensed…

All nurses who have been convicted or pled guilty or no contest to certain felony offenses should be aware that under a recent addition to the Nursing Practice Act, the Texas Nursing Board holds expanded authority to impose tough sanctions. Already a serious matter, an initial conviction for these offenses now carries additional consequences including mandatory revocation under certain conditions.

Chapter 301.4535 of the Texas Nursing Practice Act states that the Texas Board of Nursing must suspend or refuse to initially license any nurse / applicant who has been initially convicted of:

  • Murder under § 19.02, capital murder under § 19.03, or manslaughter under § 19.04 of the Texas Penal Code;
  • Kidnapping or unlawful restraint under § 20 of the Penal Code, when the offense was punished as a felony or state jail felony;
  • Sexual Assault under § 22.011 of the Penal Code;
  • Aggravated Sexual Assault under § 22.021
  • Continuous sexual abuse of a young child or children under § 21.02, or indecency with a child under § 21.11 of the Penal Code;
  • Aggravated Assault under Section 22.021 of the Penal Code:
  • Intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual under § 22.04 of the Penal Code;
  • Intentionally, knowingly, or recklessly abandoning or endangering a child under § 22.041 of the Penal Code;
  • Aiding suicide under § 22.08 when the offense was punished as a state jail felony;
  • An offense under § 25.07 of the Penal Code that was punished as a felony;
  • An offense under § 25.071 of the Penal Code that was punished as a felony;
  • An agreement to abduct a child from custody under § 25.031 of the Penal Code;
  • The sale or purchase of a child under § 25.08 of the Penal Code;
  • Robbery under § 29.02 of the Penal Code;
  • Aggravated Robbery under § 29.03 of the Penal Code;
  • An offense for which a defendant is required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure; or
  • An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.

Note that the statute’s coverage includes licensees who have been convicted or pled guilty to one of the above offenses and who are then sentenced to deferred adjudication, community supervision, or probation. The basic message of §301.4535 is that the Board must and will automatically suspend an active license or refuse to initially license a nurse who has been initially convicted of one of the above specified offenses.

Over the objections of the Nursing Board, my law firm has successfully argued before the State Office of Administrative Hearings that when read in conjunction with the rest of the Nursing Practice Act, the Board’s own rules, and the Texas Occupations Code, § 301.4535 authorizes the Board to issue a stayed suspension as well as an enforced suspension. The former allows a licensee to continue practicing as a nurse while the latter does not. However, in order to effectively show that they qualify for a stayed order, a nurse will almost certainly need to present evidence and argument at an official hearing as to why, given the circumstances of their case, a stayed suspension would be appropriate. This involves the gathering and presentation of remedial evidence, possibly before an Administrative Law Judge in a trial-like setting. The eye of an experienced attorney is often able to pick out the kinds of beneficial remedial evidence which a layperson will miss. Further, a nurse’s right to such a hearing is contingent on their making a timely request for it. To ensure that you meet this deadline, consultation with an attorney may be advisable.Continue Reading Serious Felony Offesnes & Discipline by the Texas Board of Nursing

Effective May 2, 2007, the Texas Board of Nurse Examiners (recently renamed to the Texas Board of Nursing) adopted new language regarding rules §§ 214 and 215 governing Professional and Vocational Nursing Education. First published in the Texas Register on March 9, 2007, the rule change was designed to eliminate any misunderstanding as to the necessary student-to-faculty ratio required for an approved nursing school. The rule makes clear that by using preceptors, the maximum student-to-faculty ratio can be increased to 1:24 and for teaching assistants with a faculty member in a clinical setting, a ratio of 1:15.

More recently on June 22, 2007, the Board adopted numerous changes regarding Continuing Education requirements. Rule § 216 was modified so that a contact hour for continuing education requirements purposes was extended from 50 to 60 minutes. The Rule was also changed such that it is no longer mandatory for RNs to take a CE course on Hepatitis C.

More significantly, the Board has changed its policy on auditing and investigating nurses for compliance with CE requirements. Previously Board rules provided for a random audit of licensees for fulfillment of CE provisions. If no evidence of compliance was provided by the nurse an investigation was initiated which could lead to possible disciplinary action. Under the rule change, all licensees are required to submit evidence of CE compliance when seeking license renewal and if insufficient proof is provided the Board will simply deny their renewal application. This new rule is found at § 216.11. 

In March, the Board adopted several amendments to §§ 213.28 and 213.33, two rules related to practice and procedure in disciplinary matters. Language was added to § 213.33 outlining the specific qualifications required of a Board appointed psychologist or psychiatrist who is charged with evaluating a licensee’s present fitness to practice nursing (§ 213.33(e)). The new provisions also permit the Board to request that the licensee be examined by a forensic psychologist or psychiatrist to determine the likelihood of future violations by the nurse and the level of danger they pose to the public (§ 213.33(f)). Continue Reading Recently Adopted Rules: The Texas Board of Nursing

Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.

Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.

Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e).  Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.

Continue Reading The Vanishing Informal Conference & The Texas Board of Nursing

Established under Chapter 467 of the Health and Safety Code, TPAPN is a state-approved peer assistance program for Texas nurses. Operated by the Texas Nurses Association, TPAPN offers licensed nurses who are impaired by chemical dependency or mental illness an opportunity to undergo treatment and to safely return back to nursing practice -all under the protection of confidentiality.Available to Licensed Vocational and Registered Nurses who are diagnosed with substance abuse, chemical dependency, anxiety disorders, major depression, bipolar disorder, schizophrenia or schizoaffective disorder, program participation is an alternative to being reported to the Board of Nurse Examiners. A nurse suffering or who thinks they may be afflicted with one of the above diagnoses can either self-report or be referred to TPAPN by their employer. Completely voluntary, the program allows a nurse who has entered TPAPN to decline to participate or withdraw at any time. However, failure to adequately fulfill the TPAPN contract may result in a report being generated to the Texas Board of Nurse Examiners.

The self-proclaimed goal of the program is to provide an effective channel for recovery from chemical dependency and/or mental illness and effective re-integration back into nursing practice, thus protecting the public and providing incentives for professional accountability. Once in TPAPN, the nurse is assigned a case manager with extensive academic and clinical expertise in chemical dependency and psychiatric nursing. The program also includes advocates, LVN and RN volunteers who are there to support nurses throughout the program. Advocates create another layer of support for when a nurse’s case manager is not available.Continue Reading What is TPAPN -The Texas Peer Assistance Program for Nurses?

Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.   Continue Reading DWI & Nursing License Discipline by the Texas Board of Nurse Examiners