Changes to Texas BON's Crminal Guidelines

I continue to hear from nurses (who have spoken with other attorneys in regards to criminal convictions) that are told they are going to receive disciplinary action or that they will have to obtain some type of evaluation; in many cases this is not true because the guidelines changed.  The Texas BON revised  their criminal guidelines in 2018 and some attorneys apparently have not kept up with the new regulations and policies.  What the Texas BON used to do in response to convictions before 2/2018 has changed and you need to be sure you are receiving current information.  Before agreeing to anything, be sure to speak to several attorneys that have experience with the BON (check Google or AVVO.com for information on attorneys and their experience).

"SOAH" State Office of Administrative Hearings

The State Office of Administrative Hearings ["SOAH"] is where contested cases are tried between a nurse and the Texas Board of Nursing. An administrative law judge (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the Board. The nurse’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD. The PFD is then presented to either the full Board or the Board’s Eligibility and Disciplinary Committee for approval. If presented to the full Board, they will hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action. (this is taken from information contained on my firm's website)

Very few nurses ever have to go to SOAH, which is good news considering the potential pitfalls discussed above and in an earlier blog. An experienced attorney can negotiate a resolution with the BON that addresses the Board's concerns for public safety and that is acceptable to the nurse. SOAH should be reserved for those times where a satisfactory resolution cannot be reached with the Board by way of negotiation.

Nurses need to beware of attorneys that use SOAH as a means to churn fees by creating unnecessary litigation. When I worked for the Medical Board, we were well aware that certain attorneys when hired would never negotiate and the case would end up in litigation at SOAH. To us it always seemed like such a shame that a licensee would be subjected to the stress and expense of a hearing when the Board was willing to negotiate. By failing to negotiate, the licensee is subject to a drawn out process that may generate unnecessary fees and expenses and the licensee potentially risks receiving more severe restrictions. Hearings should be reserved for those special cases where negotiation fails to reach a fair conclusion to the claim.

Teenage Crimes Prevent Licensure

I have been seeing several cases lately where an individual's actions as a teenager have come back to haunt him/her when they attempt to become licensed as a nurse. Frequently it is a felony offense and the individual may still be on probation for the action. I wanted to know if you think that crimes (I am referencing crimes such as possession of controlled substances or theft crimes, not murder or attempted murder) committed while a teenager should affect someone's ability to become a licensed nurse so I posted the poll to the right.

How does this help the public?

I have been receiving several phone calls regarding Office of Inspector General letters informing nurses that they may be excluded from the Medicare/Medicaid program. I discuss this on my Information for Nurses blog, but I wanted to address the underlying issue of the over intrusive government (both state and federal). When the OIG first began the exclusion, it was for providers that defrauded the government and the exclusion would seem to be warranted, but the exclusions have exploded.

Now, when we are in the middle of a HUGE nursing shortage, nurses are facing exclusion for a large variety of reasons that have nothing to do with fraud. This is nothing more that yet one more governmental entity getting a bite of the nurse when an issue arises. How many entities does one nurse have to face over one issue?

It is an election year, encourage your state and federal legislators to stop this overreaching. They are harming the public, not helping. We do not need more governmental control, we need less. Administrative Lawyers, such as myself, know that an agency/regulatory entity is only as good as the people working there and even then, they could be hindered by policies or supervisors.

Another burden for Disciplined Nurses

Every nurse used to be worried about their name showing up in the Board's newsletter. That worry is still present, but now there is an additional burden for the disciplined nurse to endure; their Agreed Orders are available online for all to review. No more just seeing numbers and wondering what the nurse did, but now the facts are available for review.

My hope is that there will be positive outcomes from this additional information. I hope that nurses will recognize how vulnerable they are while practicing and become more involved in advocacy for nurses to limit disciplinary actions against nurses for minor violations. I also hope that nurses will realize that another nurse that has been disciplined by the Board is not a "bad" nurse and that after reviewing the facts, they realized that they have also been in the same situation and that only luck prevented them from ending up with disciplinary action. Just a note - I am not saying that there should not be regulation because there are often valid reasons to discipline licensees; my concern has always been a just review of the facts of the case and if the FACTS show a valid concern for the public's safety, then the application of appropriate discipline to protect the public.

My hope is always that nurses band together to provide a united front against those that are a danger to the nursing profession. Too many nurses are leaving nursing because of unjust actions and non-support from their fellow nurses. Nursing is a grand profession and nurses deserve respect from everyone including fellow nurses.

Nursing Board Investigations-Helpful Hints

There is a very good article in the December 2007 "Nursing That Works" newsletter. In the article, "When the State Board Calls: "Part I: Guidance from Nurse Attorney, Latonia Denise Wright" by Diane E. Scott, RN, MSN, Ms. Wright is asked multiple questions about Board of Nursing Investigations. The recommendations are straightforward and helpful.

Ms. Wright points out that nurses should strongly consider hiring an experienced attorney to assist them before the BON because the adverse effects of representing oneself can be detrimental. The next issue will feature an interview with an Executive Director of one of the BONs.

The BON is not your friend

I just heard from another nurse that initially thought the BON was there to protect nurses and was a friend to nurses. The Board's mission is to protect the public, not nurses. An additional note - if you are going to hire an attorney, DO NOT speak to the Board staff about your case. You can potentially harm your case because you are looking at the situation with emotion and you respond with emotion. The BON keeps extensive notes regarding these conversations.

Using Formal Charges as Intimidation

Once again, I have heard from a nurse, distraught over their case with the Board of Nursing, who is threatening to leave nursing (and the alleged complaint is SO MINOR) because of their interaction with the Board's investigator. I always hate when I hear these type of stories because it reeks of unfairness and manipulation: A nurse is unsure whether the nurse wants to sign an Agreed Order with the Board and expresses that to the Board investigator. The investigator replies that if the nurse does not sign the Order, then FORMAL CHARGES will be filed. The nurse thinks that this means that the case will then proceed to a judge, which may be very terrifying to the nurse. Actually, the Texas Board of Nursing files Formal Charges within their agency, not with the State Office of Administrative Hearings. The Board says that they do so that the public is informed of the nurse's actions and thus can be protected from the nurse while the administrative case continues through the regulatory process. But, when you look at the cases where formal charges are file and the timing of those filings, I begin to suspect that the filing was more of an intimidation play rather than a protection of the public.

The good news is that most of the investigators at the Texas Board of Nursing do not function in this manner, but the few that do cast a bad light on the entire agency. I have always thought that regulators accomplish more and receive fewer criticisms if their actions are professional, fair and just. It involves looking at the allegations and determining whether the actions or inactions warrant restrictions in order to protect the public and then what degree of restrictions are required in light of the violation and the mitigating factors.

Regulation means to control or direct according to law or rule. The Nurse Practice Act under Sec. 301.416 states that if the Board determines that the reported conduct does not indicate that the continued practice of nursing by the nurse poses a risk of harm, the Board does not have to continue with the investigation or to file formal charges. So, the Board can be effective in the regulation of nurses without having to punish every error or incident. This ensures not only that the public is protected from nurses that are really a threat, but it also ensures that nurses do not stop being nurses (which protects the public by having enough nurses to care for patients).

The Boards Need Changes To Be Fair

If you want to listen to the broadcast of the Appropriations subcommittee regarding the Texas Medical Board, go to the Texas House of Representatives and click on the 10/23/07 link. My law partner, Tim Weitz, chose to testify and you can hear his comments at about 6:64. Tim's comments are appropriate not only for the Medical Board, but also other regulatory boards such as the Texas Nursing Board.

For example, currently if a nurse(or doctor) goes to a contested case hearing with the Board at the State Office of Administrative Hearings (SOAH) and the Judge finds in favor of the nurse, the case still goes back to the Board for final determination. It has happened many times that the Board imposes their determination for that of the SOAH Judge, which means that the nurse spent money and time for the same result. The nurse's only recourse is to take the case to District Court. The fair way of resolving these cases as Tim explains to the Subcommittee is to have SOAH be the final decision maker and then either party (the health care provider or the Board) can appeal.

Another problem specific to the Texas Nursing Board is that the Board files "Formal Charges" within their agency, but this does not mean that the Board has submitted the case to SOAH and the procedure rules do not apply until the case is filed with SOAH. The main problem is that once these Formal Charges are filed, the charges are published online in the verification system. The problem with this is that the matter has not been resolved, it has not been submitted to SOAH, but it is now public knowledge.

Tim also points out ideals for regulatory agencies to follow. One of those is his statement that "Regulation does not always mean punishment." The idea that not every violation deserves regulatory action. Nurses need to pay attention to what is going on with the Medical Board because it may end up impacting nursing practice as well and if there are some legislative changes to improve the regulation of physicians, nurses need to be ready to request those changes for their agency as well.

Remember that knowledge is power and the first step for nurses to gain power in their occupation is to become knowledgeable about the laws governing the practice and then to join together to make the changes needed to fix the problems.

CEU gone BAD, BAD, BAD

The Texas Board of Nurses has adopted the new CEU rules I warned you about in a June posting. The new rule allows the Board to refuse to renew a license if the nurse does not comply with continuing education requirements. Besides the complaints I had in that posting, I also question the legality of taking away a license without notice and a hearing. Since there were no comments about the proposed law and there were no complaints about the broad application of section 301.303(a) Nurse Practice Act, the rule will stand until there is a rule challenge.

The lessons to be learned here are to join organizations that monitor proposed rules and legislation and be sure that those organizations reflect your concerns about nursing practice AND be sure that your address is current with the Board so that you get all notices AND be sure to keep up with your continuing education credits and any audits.

Will I lose my license?

This is always a question I get asked by nurses facing investigations by the Texas Board of Nursing. It comes from seeing so many names in the Board’s newsletter that have been revoked or suspended. The majority of nurses listed in the revocation section are there because they did not respond to the Board’s inquires or they allowed their case to proceed to a hearing and they failed to show up at the hearing. A few may not have even known that the Board was investigating them because the nurses failed to keep their address current with the Board and thus never received notification of the investigation/hearing.

The Board usually seeks revocation or suspension in cases where there is a concern for patient safety, such as an addicted nurse that is not in good recovery or an incompetent nurse that cannot be educated. If there is a violation, most nurses receive stipulations, not revocation. However, the amount and type of stipulations depends on how a nurse presents his/her case to the Board, which is why it is important to seek appropriate legal counsel.

Does the Nursing Board consider a nurse guilty when he/she has an attorney?

No. I previously worked for the Texas Medical Board and I know that whether you have an attorney or not does not impact how your case is viewed - the Board has received a complaint and they must investigate it. This seems to come up frequently and it may be one of the causes as to why so many nurses go before the Board unrepresented (a VERY RISKY thing to do).

LaTonia Denise Wright, R.N., a nurse attorney that represents nurses in Ohio, Indiana and Kentucky, also discusses this issue in her "My 2 cents worth"blog

More Nurses in Trouble with the Nursing Board

Two other Nurse Attorneys have pointed out on their blogs/websites that there has been an alarming increase in Board of Nursing actions against nurses. On Constance Morrison's website the following is posted:

Did you know:
An alarming trend is that the numbers of state board of nursing actions against nurses has been steadily increasing since the 0.2-0.3 percent of all United States registered nurses who were annually disciplined at the turn of the twenty-first century (Benner et al., 2002). At the same time, the numbers of nurses who have had increased responsibility and accountability in their scope of practice have also faced intensified scrutiny by these same boards of nursing.

In her blog "My 2 Cents", LaTonia Denise Wright notes some personal experiences:

This is an alarming trend especially considering there is a documented need for more nurses across the country to practice in a variety of settings. Maybe Congress and the state legislatures when considering studies and funding for nursing schools/colleges, centers of nursing, and the lack of nursing faculty should also consider the following: Are we recruiting potential nurses only to have these nurses disciplined at some point in their career by a state Board of Nursing?

This does not even take into account criminal convictions (misdemeanor and/or felony) and the legal headaches faced by nursing students who have criminal convictions and then apply for initial licensure in a particular state. Or licensed nurses who face disciplinary investigations for a criminal conviction (misdemeanor or felony) even if unrelated to nursing practice in some states.

I had a family member of mine inquire about nursing school last week. She has several misdemeanor convictions from several years ago but no felony convictions. I advised her if she does enroll in nursing school and complete her education that depending on the state where she seeks initial RN or LPN licensure, she may need legal representation, counseling, and advising. I don't think she plans to apply now and if she does I will counsel her to seek initial nursing licensure in an appropriate state.

Should a new graduate and newly minted nurses start his/her career on probation with a Board of Nursing (depending on the Board of Nursing, this is akin to being "on criminal probation" or "on criminal parole") or with "action" against his/her license prior to the first day at work?

What a way to welcome new nurses to the practice of professional nursing!

I have found the same changes in Texas. I have been representing nurses before the Texas Board of Nursing for over 10 years (it is the only type of law I practice) and I have seen a big change in the way the Board of Nurse Examiners reviews complaints against nurses. It seems like the worse the shortage, the harsher the approach to regulation or perhaps it is in relation to the conservative political environment of the Board currently. It is distressing to see nurses disciplined when the discipline does nothing to protect the public, but only serves as punishment. I have always considered administrative law to be concerned with public welfare and not punishment.

The public, and the Legislature as well, is misled by ALL regulatory boards into acquainting disciplinary actions against licensees with public safety. So the public and the Legislature sees the names of licensees that have been disciplined or they see the number of board actions and they assume that their safety is being protected. The correlation is just not there. Too often I have seen fine health care practitioners disciplined for a problem with documentation years ago--where is the public safety concern? When the practitioner provides evidence of a lack of intent, of self-policing, and of correction of the problem with documented proof of improvement, the response from the regulatory agency is that they are glad the practitioner fixed the problem, but there was still a violation and they must punish that violation.

The Legislature could fix these problems. They could rein in the extensive power regulatory agencies have, but first they have to recognize the issues and then they have to want to correct the problems. What seems to happen is that the Legislature is very busy trying to do a large amount of work in a short time period and they rely on the very people they should be reviewing to provide insight into how their agencies are functioning.

But how can we hope to make these changes when we don't take the time to be informed or to be active in issues that matter (not whether Lindsey Lohan is in rehab or not and what is Paris Hilton doing or details about Anna Nichole, Tom Cruise, etc. etc. etc.). Those in power like it when the "people" are distracted and non-participatory. The lack of involvement allows for easier governing (akin to forcing a baby to go with you to the store compared to forcing a toddler who doesn't want to go). So, if you don't like where nursing is going, whether it is the Board of Nursing, the workplace situation for nurses, the pay for nurses, whatever, get involved and make a difference. Join nursing organizations, make your ideas known, get others involved, and don't be a sheep.

Complaint before the Board of Nurses

I just spoke with a Board Investigator. Apparently they have had 2 investigators leave recently which bumps up the caseload per investigator to almost 200 cases. Most of my cases are taking 1-2 years to be resolved and it looks like it is just going to get worse. This makes it extremely frustrating for nurses under investigation because for 1-2, maybe even 3 years, the nurse is under constant stress from the pending investigation.

And now, the Board is in the process of getting background checks on every licensed nurse. This is only going to add more cases to an already bottlenecked situation. There are solutions but they are going to have come from the Legislature, which means that the issues have to be presented by nursing associations and advocates.

Renewal Dangers

There is a new trap waiting for the unwary:

The Board of Nurses is getting fingerprints on every licensed nurse that has not already submitted fingerprints and they are also conducting CEU audits. So, if a nurse waits until a couple of weeks prior to the end of his/her renewal period, the nurse might be without an active license to practice with.

Don't be fooled by the Board's wording about "delinquent" licenses, if a nurse does not have an active license, he/she cannot work as a nurse. There is no grace period while the license is delinquent. The Board does not function like creditors where delinquent means that you are just late paying, delinquent for the Board means so much more.

Nurses be sure to renew 2 months prior to the expiration of your license and get those CEUs certificates organized to be sure that there are enough CEUs. Worried about your past criminal history and the effect on your license? Contact an experienced Administrative Lawyer with experience before the Board of Nursing.

The Board Wants a Forensic Psychiatric Evaluation and Polygraph

The Board of Nurse Examiners has sent a nurse a request to obtain a forensic psychiatric/psychological evaluation and/or a polygraph examination, what should the nurse do? I have found that in some cases an evaluation and/or a polygraph are not warranted. The examinations are expensive and time consuming, so I do not recommend them unless there is a need based on the facts of the nurse's case.

I am also careful on which evaluator I recommend to the nurse. There are some evaluators on the BNE's list that will almost always find fault with the nurse. I prefer to use an evaluator that is middle of the road, that looks at the facts and findings and issues an opinion without taking the side of the Board or the nurse.

The best response to a request for a forensic evaluation and/or a polygraph examination is to contact an experienced Administrative lawyer immediately. See the post on "The best attorney for the job" and "Representing Yourself before the Board of Nurses".

The Most Aggressive Board

The Star-Telegram has written an article about the Texas Board of Nursing. The article states that "The board is perhaps the most aggressive healthcare regulator in Texas, taking patient safety to heart." I have represented nurses before the Board for over 10 years and before that I interacted with the Board while I worked at the Texas Medical Board, so I have seen the Board change over the years. What I have seen is that the Board has become much more conservative and much more punitive.

Complaints against nurses that used to be dismissed if the nurse could show knowledge of the incident and remediation of the issue. For several years now, those same types of complaints have resulted in increasingly harsher actions by the Board. Whenever the public sees the number of disciplinary orders increasing, they assume that the public is being protected. That is an illusion. Public Safety and high numbers do not go hand in hand. To obtain those numbers, many good nurses that were forced to choose between violating the Nurse Practice Act and caring for their patients are finding themselves under disciplinary sanctions. Yes, they violated the law, but the reality of nursing practice (too many very sick patients and too few nurses) is the cause of the violation, not the competency of the nurse.

I have always believed that all regulatory Boards need to focus on true public safety issues, which means discipline of those licensees that are truly a threat: incompetent without remediation potential, addicts that are not in recovery (although I do believe there needs to be a non-disciplinary, non-public method of monitoring all addicts), and those missing core ethical boundaries. SB 993/HB 2158 seems to be a step in that direction. this legislation defines what conduct by a nurse is subject to reporting. The requirements for reporting are:
1. Violating the law AND contributing to the death or SERIOUS injury of a patient;
2. Substance abuse impairment;
3. Intentional or knowing abuse, exploitation or fraud, violation of boundaries;
4. Incompetency where the nurse's continued practice could harm a patient.

This legislation should stop all the minor reporting of documentation issues and simple medication errors that are not due to incompetency. Perhaps this legislation will slow the reporting of nurses for minor, non-public safety issues and the Board can focus on those nurses that require monitoring by the Board to ensure public safety.

First Impressions

I was sitting in the waiting room of the Texas BON today waiting to present a client's case. The room was full of individuals seeking licensure as either a registered nurse or licensed vocational nurse. When one young lady was called back to meet with the Board, as soon as she left the waiting room, the other people in the room began to comment on her appearance. The applicant had shown up to meet with the Board dressed in casual pants, a tight fitting shirt made of t-shirt material, and flip flops. One of the other applicants commented, "She is sending the Board a message that she does not take them or her license seriously." Everyone noticed that when the Board staff member called the girl back to meet with the Board members, that the staff member's face showed that she thought the exact same thing as the other people in the waiting room.

First impressions count so much when meeting with the Board of Nurses. It is important to look and act professional. The Board members/staff do not know the applicants/licensees and so they rely upon information gathering to determine which course is the best for the Board to take. A person's appearance becomes part of that information gathering, even if it is done on a subconscious level.

The girl left in tears and they were not tears of joy, so I would surmise that she was denied licensure.

Who Is In Trouble Now?

You just received your Nursing Board newsletter, now it is time to quickly flip to the back and see who got in trouble. I know you do it, but please take a minute to realize how those nurses came to be in the newsletter. Most nurses just made a mistake. It is hard to practice nursing today without violating some aspect of the Nursing Practice Act or rules and regulations. Sometimes the nurse was overworked, maybe it was due to politics at the workplace, maybe the nurse did not know the correct law, maybe the nurse was relying on a physician order or an administrator's directive. There are some nurses that have issues that affect their competency or their ability to safely practice nursing, but the majority just made a mistake or overextended themselves.

As you look at those names, say a little prayer that it is not your name there because if you take the time, you will see all the little mistakes you made that were also violations of law, rules or regulations. So, do not shun your co-workers if their names are in the newsletter. Nursing is hard enough without nurses not being able to rely upon one another.

DWI

Do not take even one drink and drive because it is too costly: not only could you kill or harm yourself and others, but if you are arrested, you start down a course that can have extreme adverse results. DWIs/DUIs are expensive. A recent article in the Austin American-Statesman listed the various costs associated with a DWI. When I added up the high ranges for these costs it came to approximately $50,000 and that did not include recurrent costs such as drug screens. Then you are faced with the criminal repercussions. In addition, if you are licensed by a regulatory board, you will most likely be investigated for possible intemperate use.

For example, a nurse accused of intemperate use must prove his or her sobriety (the DWI or positive urine screen is used by the Board as evidence of the substance abuse). It takes a lot of time and money and produces quite a bit of stress to prove one's sobriety.

It is so much easier and cheaper to just pay for a taxi or have a true designated driver. Also, these decisions must be made prior to engaging in drinking because once a person drinks, their decision-making can be impaired and they will think that they are fine to drive. I represent many health care providers that are accused of substance abuse/addiction and they will agree - Not even one drink if you are going to drive!