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?!?