Violence has no place in Nursing

This is such an important issue that I am posting it on each of my blogs. Go to my "A Nurse Attorney's Thoughts" to read my post on horizontal violence where I discuss "nurses eat their young."

Medication Errors

I am shocked to hear that a preceptor told a new nurse that performing the five rights of medication administration was a waste of time!!!! The five rights are there as a safety stop-gap to hopefully prevent an error. I won't even spend the time writing about how skipping the five rights is a violation of the law and can result in disciplinary action against your license.

I can look at cases where my client has made a medication error and point to which right(s) was skipped. Most of the time the nurse is able to move on and learn from these errors, but what of those errors that will haunt a nurse forever---to know that by cutting seconds, you killed someone.

I have spoken with nurses that face that knowledge every single day and it does haunt them. Most quit nursing and many face years of therapy to deal with the depression and guilt. It is even worse when it is a child.

Does this horror seem worth the few seconds gained?

Criminal Actions

I was told by a caller the other day that an attorney did not know the difference between parole and probation, so I thought it might be helpful to put the definitions here as an FYI:

Parole is a condition of early release from prison. The person has served some portion of their sentence. The person usually has restrictions and is supervised by a Parole Officer.

Probation means that the imposition of a sentence is suspended or stayed. The person has to fulfill certain requirements in order to avoid the imposition of a sentence.

Attention Texas Nurses

The Board of Nursing has proposed new rules concerning Peer Review in Texas. Be sure to read these today and if you disagree or agree with any of the proposed rules, send a comment immediately to the Board and contact your nursing organization and let them know your thoughts. These rules have the potential to affect your license, so do not sit by and be uninformed.

Medicare/Medicaid Exclusion

I posted this today but it showed up when I first began writing it, so I wanted to put a post today so that those of you that look for new entries would see it.

Basic Information about Nursing Boards

Be sure to check out my new article "The Nurse Police". I explain the role of Nursing Boards and some basic steps nurses can take to protect themselves.

Medicare/Medicaid Exclusion

You decided that you can't fight the Nursing Board any longer or something has come up that affects your ability to fight the Nursing Board, so you decide to voluntarily surrender your nursing license or perhaps the Board suspends or revokes your license, so you decide that you will work as a nurse's aide or maybe a tech in a hospital or clinic. However, if the cause of the suspension or revocation is one designated by the Social Security Act as a practice violation that merits action, you may find yourself unable to even work as an aide or tech.

The specific law is: Pursuant to section 1128(b)(4) of the Social Security Act, the Office of the Inspector General may exclude an individual or entity-

(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity, or

(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual's or entity's professional competence, professional performance, or financial integrity.

Pursuant to section 1128(c)(3)(E) of the Act, the length of an exclusion under section 1128(b)(4) -

shall not be less than the period during which the individual's or entity's license to provide health care is revoked, suspended, or surrendered, or the individual or entity is excluded or suspended from a Federal or State health care program.

So, what this means is that you are not allowed to work for any entity, no matter what your role, that receives Medicare/Medicaid funding. Also, when the exclusion period is over, you have to make a formal request to be removed from the excluded list; your name is not automatically removed when the time is up. There are many more caveats to this law, but this is just a quick glance in order to warn nurses that may be looking at voluntary surrender.

Administrative Hearings- What are Those?

Having spoken with several nurses recently, it is obvious that an Administrative Hearing is not well understood. A hearing in Administrative Law is comparable to a trial in criminal or civil courts. The main exception is that there is no jury in Administrative Law and some of the evidence rules are different. But, an Administrative Hearing is just as serious as a criminal case or a civil lawsuit.

The Texas Board of Nursing does not usually go to a hearing at the State Office of Administrative Hearings (SOAH)with a nurse unless the allegations are serious or the Board has not been able to obtain a response from the nurse or the parties have not been able to resolve the case through negotiations. The case may not be negotiated either because the nurse does not believe she/he did anything wrong, or they do not agree with the severity of the proposed restrictions by the Board.

Hearings are very expensive and time consuming and there is little control over the outcome, which are the reasons I try to avoid hearings. The Board is usually reasonable and a negotiated agreement that the nurse is content with and that protects the public can usually be reached by the parties. However, this is not always true and at times the only solution is to proceed to a hearing in order to protect one's rights.

The key hint to nurses is to NOT ignore the correspondence sent by the Board and to be sure and seek appropriate legal advice when that correspondence is received.

Help for Nurses Accused of Impairment

The Texas Board of Nursing and TPAPN have developed a program called the Extended Evaluation Program (EEP) that promises to be a big help to those nurses accused of substance abuse, that have a positive drug screen, but that have been evaluated as having a low probability of substance abuse. Think about a situation where a nurse took a pain pill and then was screened at work and came up positive. The nurse is adamant that he/she does not have a problem with drugs and is not a candidate for traditional TPAPN. The Board wants to monitor the nurse to assure that the nurse does not have an issue with drugs or alcohol. EEP seems to be the answer.

EEP allows TPAPN to screen the nurse for drugs and alcohol for a year. Participation in EEP is confidential and if after one year, the nurse remained compliant with the program, the matter is dismissed. Because the program is so new, I have not heard of any issues or problems.

Who Reviews The Board?

There is an article in the 9/23/07 Austin American Statesman that asks Should The Sun Set On The Sunset Committee? The Sunset Committee is charged with reviewing state agencies to determine if they are fulfilling their mandates and deserve to continue. I personally have not been pleased with the Sunset Committee. I testified this summer when the Texas Nursing Board was being reviewed. Although everyone that testified informed the Sunset Committee that TPAPN should not be altered, the Sunset Committee still recommended changes which the Legislature enacted. The impression was that it did not make a difference to testify before the Committee.

To Lie or Not To Lie

The Legislature passed HB1168, which allows a licensing authority (like the Board of Nursing) to deny an application for licensure or to suspend or revoke a license if the individual (nurse) knowingly:

1. made a false statement when applying or renewing a license
2. misrepresented information when applying or renewing a license
3. refuses to provide information when requested by the agency
4. failed to provide all of the individual’s criminal history

The Texas Nursing Board has been doing this, but this new legislation establishes a more formal proceeding and adds these provisions to the Government Code, a state statute.

Never, Ever Lie to the Board. True, they may not find out, but if they do discover the falsification, the resulting disciplinary action on the individual is increased.

DWI and Nursing

The Board's new proposed rules (due to the most recent legislative session) puts into writing what has been informal for a while: the Board does not typically take action unless a nurse has two DWIs. §213.28(5)(a)(ii).Licensure of Persons with Criminal Offenses. This helps for those cases when people have bad judgment. The rationale for the rules is interesting: "DWI offenses involve the use and/or abuse of mood altering drugs while performing a state licensed activity affecting public safety; repeated violations suggest a willingness to continue in reckless and dangerous conduct, or an unwillingness to take appropriate corrective measures, despite previous disciplinary action by the state."

Even though the Board does not prosecute for one DWI, I still advise all health care providers to never drink (even one drink) and drive. The ramifications are too great: You can hurt or kill someone or hurt yourself, criminal prosecution, monetary costs (estimates can be $25,000 to $50,000 for the costs associated with defending the DWI and the probation costs). If you drink and drive with children in your vehicle, you may face felony child endangerment charges which will get the Board interested in your case.

It is too easy to get a taxi or have a designated driver or walk or take public transportation or drink at home, just don't drink and drive.

Reporting Nurses to the Board

Due to the recent Legislative session, there were some significant changes to the rules at the Texas Board of Nursing and they are currently posted as proposed rule changes:

§217.11.Standards of Nursing Practice.
(K) Comply with mandatory reporting requirements of Texas Occupations Code ch. 301, Subchapter I, which include reporting a nurse :

(i) who violates this chapter or a board rule and contributed to the death or serious injury of a patient;

(ii) whose conduct causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;

(iii) whose actions constitute abuse, exploitation, fraud, or a violation of professional boundaries; or

(iv) whose actions indicate that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.

I am waiting to see how this change plays out because it seems to finally get rid of all of those minimal violations that seemed to plague nurses working in a shortage situation (documentation errors, delay in administering medication etc.). Now the violation must have resulted in Death or serious injury to a patient or the nurse is suspected of substance abuse or the nurse violated boundaries or committed abuse, exploitation or fraud or the nurse shows incompetence to a level that could harm a patient.

I think it is going to be hard to punish a nurse currently in the system for documentation issues or something likewise minor, when the Board knows that the Legislature is wanting nursing discipline to actually protect the public. For more information about the problems that have been plaguing regulatory actions and nursing see More Nurses in Trouble with the Board.

Restarting the Information Roll

I gave it a month to see if having too many blogs affected our website ranking and I have seen no difference, so I am restarting my postings to this site. This site is used to give insight into Texas laws, rule changes, and policy changes that affect nurses. Watch for new postings to come.

I have two other blogs that each focus on different areas: Information for Nurses is a blog used to inform nurses of issues, changes, and important news. A Nurse Attorney's Thoughts focuses on my opinions and views of what I see as a nurse attorney representing nurses and other health care providers before regulatory boards in Texas.

Pause on this Blog

I have been told that I have too many blogs and that they are affecting page rankings, so I am going to incorporate this blog into Information for Nurses and A Nurse Attorney's Thoughts. Hopefully, I will be able to restart this blog after the search engines realize that this is not spam.

Administrative Laws for Nurses

The Legislature passes laws, called statutes, which govern nursing practice. An example of such an enacted law is the Nurse Practice Act (“NPA”). The NPA is very general because it is intended to apply to all registered or vocational nurses regardless of their practice specialty. The Board of Nurses enact rules and regulations that further interpret the NPA (The Legislature gives the Board the power to enact rules and regulations). For example, the NPA may state that the Board has the power to investigate complaints against nurses, but how the Board goes about doing an investigation is detailed in the Board's rules and regulations.

With each legislative session, there is an opportunity for the NPA to undergo changes and the Board can enact new rules and regulations throughout the year. So, nurses must pay attention to what legislators are trying to pass as laws in order to protect their nursing practice and nurses need to watch for proposed rule postings by the Board. Nursing Associations are an easy way to monitor these potential changes to nursing practice.

Nurses should have a current copy of the nursing practice act, rules and regulations or know how to access them on the Internet. Ignorance is No Defense.

Can the Board Arrest Me?

NO. In Texas, the BON does not have arrest powers. This does open up an area of uncertainty - the various types of law can be very confusing, sometimes even for attorneys! Attorneys get calls from nurses looking for a lawyer to assist them before the Board of Nurses and the attorney does not have a clue on who to refer the nurse to because they are not sure what area of law covers the Board of Nursing. Many nurses are also perplexed as to the Board's powers; they are fearful that an action by the Board will result in them being arrested or serving jail time or they are concerned that they will have to pay some type of settlement.

Regulatory Boards function under a type of law known as Administrative Law. As stated in a earlier blog, the Board of Nurses are under the Executive Branch of state government. Administrative law involves the laws, rules, and regulations governing the administration of government agencies and the regulation of the individuals licensed or registered under those agencies.

Who Cares About Documentation

Who Cares About Documentation? Nurses had better care and take action. Documentation is required as part of the nursing process. Documentation is not just some tedious task that can wait till the end of the day. A lack of documentation or inadequate documentation lends creditability to the premise that the nursing care was not provided. Inadequate documentation is a violation of the Board's rules and regulations and it can seriously harm a nurse in lawsuits as well. I hear over and over from clients that they wished they had documented "such and such" and "If only I had documented, I would not be before the Board." Nurses must change their way of thinking and organize their workdays so that they can timely and adequately document.

So you want to be a nurse in Texas

Texas issues nursing licenses by examination or endorsement, which means that a person is either a new graduate or a nurse that has a license in another state. The Board's website has a FAQ section that goes into detail about the various questions involving licensure.

I want to give a few helpful hints regarding licensure in Texas:

1. Don't lie to the Board because when they find out that you misrepresented facts to obtain a license, they will react very sternly. Falsification of facts on a license application can lead to a revocation of that license or if the license has not been issued, denial of licensure.
2. Read all questions carefully. Have a third party review your application to check for errors. There have been many nurses that have been accused of falsification of application information because they answered a question incorrectly. This usually occurs with the criminal, substance abuse or mental health questions.
3. Keep a copy of your licensure application just in case any future issues arise.
4. Give yourself plenty of time. Do not wait until the last minute to file paperwork because if there are any issues, your application will be delayed.

Why Does the Board of Nursing Have to Post Those Names?

As a part of the executive branch of the government, the Texas Board of Nursing is subject to the open record laws. Any time the Board takes formal action, whether it be stipulations on a license, revocation or suspension, or the filing of formal charges, the Board must make the information public. This is the case with any regulatory agency, unless they have a provision in their laws allowing for private actions. It could be worse, in Hawaii the Nursing Board's actions are published in the local newspaper!

Statute of Limitations for the Nursing Board

Generally, in civil litigation, there is a two year statute of limitations for filing a lawsuit.* However, there is NO statute of limitations for a licensing board action. This comes as a shock to many health care providers. They believe that if they can make it past two years after an incident, then they are free of any ramifications. States have incredible power and they do not limit their powers with limitations on when they have to take action, so a state licensing board can investigate a licensee within any time frame.

The states do face an issue of staleness in that the more time that passes affects their credibility, it can limit the availability of witnesses and evidence, and it affects a judge's viewpoint on whether the public really needs to be protected by a particular licensee if so much time has passed.

For example: The Texas Board of Nursing is doing criminal background checks and if an undisclosed criminal history is found, the Board opens an investigation to check whether the nurse is a potential harm to the public. There have been several instances where more than two years have passed since the criminal activity and nurses are finding themselves having to defend their license.


*The two year statute of limitations may be extended in several instances (minor, patient did not know of injury etc.).

A Look Into the Board's Mind

The Texas Board of Nursing has many position statements covering topics such as nurses carrying out order from PAs to role of RNs and LVNs as school nurses to the administration of medications and treatments by LVNs. There are also guidelines adopted by the Board. These guidelines cover areas such as the new graduate or the nurse returning to work or how to transition to a new clinical area.

These position statements or guidelines are not law, but they are a window into the Board's "mind." These give guidance into the manner in which the Board reviews issues and what the Board expects to occur in certain circumstances. It is prudent for nurses to review these lists of statements/guidelines to find areas that may apply to their particular area or situation.

The guidelines are available at www.bne.state.tx.us under guidelines and under position statements.

Texas Board of Nursing

HB 2426/SB 907 should pass into law this legislative session and the name of the Board will change from the Texas Board of Nurse Examiners to the Texas Board of Nursing. This more accurately reflects the Board's duties. So, who exactly are the people comprising the Texas Board of Nursing?

The Board consists of 13 members appointed to staggered terms by the governor with the advice and consent of the senate: Six of the members are nurses, three members are nurse faculty and four members represent the public. The Board meets in full four times a year. Committees of the Board, such as the Eligibility and Disciplinary Committee, meet more frequently.

When nurses have investigations before the Board, they often think that the Board members are actively involved with their case and the investigation. Some nurses think that the Board members are employees that work at the Board every working day. Neither is correct. The Board of Nurses is similar to Board of Directors. They meet as a group a few times a year, they are responsible for drafting rules and policies to enforce the Nurse Practice Act and their mission and they direct the activities of the Board staff.

The actual day-to-day activities of the Board are performed by the Board staff. The staff is headed by the Executive Director. There are supervisors and directors that head up various departments of the Board. Each department has various staff members and these are the people nurses deal with when they contact the Board.

The Nurse Police

The Board of Nurses' mission comes as a surprise to many nurses. When I graduated from nursing school in 1984, I did not know what the Board did other than give me a license and want me to complete continuing education hours every year. I did not know that there were rules and regulations governing my nursing practice. We did not have Jurisprudence classes in nursing school and when I look back, I know that I was lucky. Up until I worked for the Texas Medical Board as a lawyer, I would have thought that if I had an issue with nursing, the Texas Nursing Board would be my advocate because the name itself suggests that it is a board for nurses. This is such a common misconception amongst all health care professionals, not just nurses.

The regulatory boards have a mission to protect the public. The Board of Nurses' mission statement is located on the home page of their website "Our mission is to protect and promote the welfare of the people of Texas by ensuring that each person holding a license as a nurse in the State of Texas is competent to practice safely." The Board staff has given perhaps one of the best descriptions of the Board's mission and that is that they are the Nurse Police. When dealing with any regulatory Board, it helps to know that their mission is to protect the public against the particular Board's licensees.

In the Beginning....

Texas has three branches of government: Judical (courts), Executive (governor and state agencies), and Legislative (House and Senate). In 1909, the Legislature created the Texas Board of Nurse Examiners. The Board of Nurses is under the Executive Branch as a state regulatory agency that is vested with the power to regulate nursing practice. The Legislature drafts laws or statutes involving nursing practice. The Board of Nurses then further interprets those statutes with rules and regulations. The Courts decide arguments about the meaning of laws and how they are applied. Thus, all three branches of Texas state government can be involved with nursing practice.

Coming Next...Their mission is What?!?