New Legislative Session

I am starting to see the drafts of proposed legislation for 2009. Be sure that you are monitoring what is being proposed for nursing. If you are looking at proposing new legislation that impacts nurses, please consider the following changes that would help to make the administrative process fair:

My wishes:

-make the State Office of Administrative Hearings the final decision in administrative cases. Stop allowing agencies the opportunity to overturn the Judge's decision. If a party is unhappy with the decision, either party can appeal the decision to the District Court. This would make the administrative process fair and just for both the licensee and the agency. This needs to apply to all licensed health care practitioners, not just nurses.

-stop allowing deferred adjudications to be considered as convictions in administrative actions. This goes against the rationale for deferred adjudications and it is very unfair to licensees.

Jurisprudence Exam

Since there have been some interesting comments on the new Jurisprudence Exam, I thought it might be interesting to set up a poll for those of you that want to express your thoughts, but don't want to leave a comment. So, go ahead and vote.

What to Study when taking the Jurisprudence Exam

I have not heard from anyone who has taken the exam, so I am giving this information based on what I know about the exam. My understanding is that it is a review of Texas Board of Nursing laws, regulations, guidelines and policies. You are allowed to read these resources while taking the online exam since it is an open book exam. The Board has set up a handy resource list to help in finding the answers to questions. They have given students 2 hours to answer 50 questions.

Texas Nursing Jurisprudence Exam

The Texas Nursing Jurisprudence Exam is now available online. It will be interesting to hear what the applicants think of the exam (easy, hard, confusing, straight forward). I also wonder whether the applicants will consider themselves well prepared for the exam and if they believe they learned important information to prepare them for nursing practice in Texas.

Defend and Protect Your Nursing License

There are still too many uninsured nurses and no insurance means that the nurses are financially responsible and that can costs thousands. I have posted blogs on all three of my blogs relating to the importance of nurses purchasing malpractice insurance with a regulatory coverage rider, but I continue to speak with nurses that have not purchased insurance. [See "Good Nurses Don't Need Insurance", "My Employer will Pay", "My employer has insurance", "Malpractice Insurance will get you sued", and more (see my blog entries).

All nurses providing patient care should carry their own malpractice insurance. Not only does the insurance provide legal representation for a lawsuit, but also for an investigation before the Board of Nursing. Nurses that have insurance that receive notice of a complaint before the BON are so relieved to know that they do not have to find the monetary resources to pay for an attorney to represent them before the Board.

The pros of malpractice insurance far outweigh the cons (having to pay for the insurance and that having insurance can keep you in a lawsuit). I have addressed these misconceptions previously (see my previous blog entries on all three of my blogs). When deciding on a malpractice policy, be sure that they pay enough to cover the hourly rate of an attorney (usually over $200 an hour, the more liberal the better for you), that there is a high ceiling (at least $15,000 per occurrence) and that allows you to pick the attorney you want.

Waiting for Licensure

If you have an issue, such as a criminal history or a mental illness diagnosis, do not wait to find out if the Texas Nursing Board will license you. You should not wait until graduation or almost graduation time to find out what action the Board is going to take, because occasionally the Board’s decision can delay a graduate nurse or keep him/her from working permanently.

You are able to petition the Board even before entering nursing school to discover what actions, if any; they propose to resolve your issue. Under Board rule, section 213.30(a), “A person enrolled or planning to enroll in an educational nursing program that prepares a person for an initial license as a registered or vocational nurse or an applicant who seeks licensure by endorsement pursuant to §217.5 of this title (relating to Temporary License and Endorsement) who has reason to believe that he or she may be ineligible for licensure, may petition the Board for a declaratory order or apply for a license by endorsement as to his or her eligibility.” Please note that there is a charge for Petitioning the Board for a Declaratory Order, but it is best to know if you are eligible for licensure before spending all the money on nursing school.

Also note that since this is the first opportunity the Board has to “see” a potential nurse, it is important that the nurse seek experienced help in preparing the documents to the Board. An attorney that regularly represents nurses before the Board can assist in this. Do not rely upon friends, family or instructors because they are not familiar with the Board’s policies and rules.

NCLEX help

Here is a site that has helpful information as well as a starting point for links to other NCLEX websites.

Texas Nursing Jurisprudence Exam

The Board of Nursing has posted their proposed rules for the Nursing Jurisprudence Exam that takes effect 9/1/08. The pertinent part is as follows:

§217.17.Nursing Jurisprudence Exam (NJE).

(a) Exam Development.

(1) The Board will develop a Nursing Jurisprudence Exam (NJE) as authorized by Nursing Practice Act (NPA) 301.252.

(2) The NJE will be required for each person who submits an application seeking initial licensure on or after September 1, 2008.

(3) The NJE will be a minimum of 50 questions and shall be psychometrically validated.

(4) The NJE shall be designed to test an applicant's knowledge relating to board statutes, rules, position statements, guidelines, disciplinary sanction policies, frequently asked questions, and other resource documents accessible on the board's web page relating to the regulation, licensure, and practice of nursing under the following categories:

(A) Nursing Licensure and Regulation in Texas;

(B) Nursing Ethics;

(C) Nursing Practice;

(D) Nursing Peer Review;

(E) Disciplinary Action.

Nursing Jurisprudence Exam

The Board's current newsletter lists the following information about the upcoming Jurisprudence Exam:

The Texas Board of Nursing (BON) will begin administering the Nursing Jurisprudence Examination (NJE) to all initial nursing licensure applicants by examination and endorsement who apply on or after September 1, 2008. A passing score on the NJE will be a new licensure requirement for LVN and RN students seeking licensure through the applicable NCLEX examination, as well as licensed nurses (including advanced practice nurses) seeking licensure by endorsement from out-of-state and from foreign countries. The NJE will be psychometrically validated and will consist of a minimum of 50 multiple-choice questions. The examination will be administered on-line, and accessible from most Internet-capable computers with an applicant’s unique sign-on code. Applicants who fail the jurisprudence exam will be allowed to retest.

License renewal

The Board of Nursing is going paperless. As seen in the current newsletter:

Reminder: No More Paper Licenses Upon Renewal After
September 1, 2008
The Board of Nursing (BON) will discontinue issuing wallet-sized paper licenses for nurses renewing their licenses beginning September 1, 2008. The BON will continue to issue paper license certificates for:

* Graduate nurses who pass the NCLEX® exam and obtain their initial nurse
license in Texas;
* Nurses who hold licenses in other states and are obtaining a Texas nurse license for the first time; and
* Nurses who receive full authorization to practice as advanced practice nurses.

After September 1, 2008 Nurses and nurse employers should go to the agency website at www.bon.state.tx.us and to verify a license online. The verification, once printed, will resemble a license and will allow the nurse to have the document laminated for the purpose of carrying with them. Also, after September 1, 2008, the Texas BON will no longer issue duplicate or replacement licenses. The Texas Board of Nursing strongly suggest that licensed nurses provide a copy of this article to their employer, director of nursing and/or human resource department.

Minor Criminal Crimes and the BON

At the January 2008 full Board meeting, the Board staff presented a list of one-time only crimes that the Board staff had chosen as those that the explanation for the conduct had no relation to patient care and thus, no action would be taken by the Board. This issue is being revisited at the July 17-18, 2008 Board meeting. This is because the Board members had recommendations and comments when the report was presented at the January meeting:

After review of this report, Staff was instructed to revisit the propriety of declining (by policy) whether to investigate or take action on these crimes. For example, it was noted by Board members that DUI/DWI crimes and Public Intoxication Crimes, even if isolated, should be examined to determine whether a person is safe to practice given this nature of the criminal behavior and it potential impact on nursing practice. Similarly, isolated crime involving domestic/family violence may justify further scrutiny before a person is licensed without stipulations.

The revised recommendation to the Board by staff is now as follows:

Staff’s Recommendation:
As a result of the discussions, Staff has reviewed its processes and intends to implement the following procedures for single incident criminal behavior. Each positive hit for criminal behavior will not be closed until such time as the applicant/petitioner has provided a copy of the underlying court documents or an explanation as to why the documents are not available. The applicant/petitioner must provide a letter of explanation regarding the criminal charge along with any other material to verify the minor nature of the conduct or the lack of nexus to nursing practice. Before a matter is closed without further investigation or action, Staff will review the documents, information and explanation. From a cumulative review, the matter will not be closed unless it is established;
1. There appear to be no material omissions or misrepresentations.
2. The incident is isolated or minor
3. No recency of conduct or other evidence of failure to rehabilitate; and
4. No reasonable basis to conclude the behavior will effect applicant’s ability to practice nursing safely.


What this will ultimately mean is further delays in processing these types of cases and further increase in workload for the Board. Furthermore, nurses will have to be very careful to provide all required information to the Board in order to show "the minor nature of the conduct or the lack of nexus to nursing practice." Seems like for every step forward, there are 3 steps back.

Dangers of Telephone Orders

The Institute for Safe Medication's (ISMP) newsletter Nurse Advise-ERR has some interesting information and cases regarding telephone orders in the July 2008 newsletter. They give warnings about several cases where fraudulent telephone orders were given and then follow with helpful hints for nurses getting telephone orders.

My favorite is a teenager who worked at the hospital who had aspirations to be a physician began answering pages to on-call residents. As an employee, the teenager could access the paging system. His actions of issuing orders for 6 patients (lab tests, oxygen orders, heparin orders) were not caught right away because the orders were medically appropriate!!!

The ISMP points out that telephone orders are only in emergent or urgent cases and that nurses should be suspicious if anything seems unusual or if you don't recognize the caller. They then detail steps that can be taken to verify the caller's identity.

Be sure to sign up for the monthly newsletter because it has helpful hints and they give examples of medication errors that have arisen. There is one in the July issue involving a handwriting problem that could have led to a medication error. There is also a link to a web seminar titled "Physical Design and Workflow of an Organization to Support Patient Safety." This webinar will discuss how design can help patient safety.

The state of regulation in Texas- it is not working!

The Texas Medical Board is holding town hall meetings across the state to "invite all medical professionals and the public to a Town Hall meeting to provide input and feedback about regulation of the medical profession." There is meeting next week in Fort Worth.

An article by Mary Ann Roser in the Austin American Statesman described the Town Hall meeting in Austin. Ms. Roser wrote, "some of the 35 doctors who attended the hearing told board representatives that the board is perceived as being harsh and obsessed with minor infractions." What bothered me about the article was that only 35 doctors showed up to voice their opinions!!! Ms. Roser also notes a comment by a member of a consumer group, "'I have some very real concerns about the political pressure that is on the board to go easy on doctors and to not be as vigorous as possible on potential licensees,' said Alex Winslow, executive director of Texas Watch, a consumer organization. In the board's push to improve its public relations, it seems to be focusing its attention on doctors and ignoring patients, Winslow said. 'I hope the board doesn't become unduly influenced by the complaints of a small number of doctors in our state.'"

Not only do I represent nurses before the BON, I have worked at the Texas Medical Board. Consumer groups seem to focus on the number of disciplinary actions and on a few select cases. They assume that disciplinary orders are only issued against "bad" doctors that are harming patients and so the more orders the better the protection. However, what I have seen are disciplinary actions against physicians and other professions for very minor issues (not releasing records on time, not documenting adequately etc)that do not indicate a safety concern. These types of issues do not need disciplinary action.

There is a way to regulate without disciplining health care professionals. Discipline should be reserved for severe violations that truly impact patient safety. Other issues, like inadequate documentation or business type violations, should be handled in a non-disciplinary manner (if the practitioner shows a continued lack of concern or diligence, then the result should be disciplinary action). Too often, violations occur because of a lack of knowledge about the regulations and rules or because of a lack of support (being overwhelmed with work/understaffed or relying upon staff to complete their duties).

The public may take the stand that it is better to be careful by over regulating health care professionals. There is currently an approach that allows for NO errors and if an error occurs, then discipline must be dolled out and that this approach is the only way to ensure patient safety. The reality is that over regulation is harming patient safety. Too many practitioners are leaving the practice of medicine, nursing, etc. because of the hurdles they have to deal with every day and the punitive regulation of their practice is a very big hurdle. Part of patient safety is ensuring that there are enough practitioners available to provide the care.

Everyone makes mistakes. Once again - EVERYONE MAKES MISTAKES. The concern should be what was the thought process that led to the mistake. Does this thought process show a competent practitioner who made an error or a competent practitioner who was uninformed or a competent practitioner that made an error because of system problems or does it show a serious lack of concern, knowledge or skill? Only the last scenario deserves discipline because it represents a definite concern for patient safety. The others may need regulation or they may not. Regulation can involve checking to see if the practitioner completed an educational course or if the practitioner held an in service to educate office staff on the correct procedure for doing whatever the issue is. Regulation may involve having the practitioner come to the Board's office and explain what their thought process was and then dismissing the case if there is no indication of a lack of competency. Regulation may involve having reports submitted by a current employer as to the apparent skills and knowledge observed in the practitioner. Perhaps it is requiring a practice evaluation before dismissing a complaint. Regulation is not always discipline!!!

So, what is the big issue with discipline? People see discipline and they think "bad" or "incompetent" and that is not always the case with current Texas Board actions. I just heard about a hospital where the nursing staff relishes when the BON's newsletter comes out so that they can go to the disciplinary section and see if they know anyone that "got into trouble" and then they can gossip about that nurse. This shows a serious lack of understanding and an incredible lack of support, but too often it is the norm. The damage to one's reputation is huge, especially if the discipline is for something very minor or because of something outside of one's control. For some practitioners, discipline results in being dropped by insurers for reimbursement, which then impacts patients further because their health care provider can no longer treat them because there is no longer any payment for services. Often, practitioners lose their jobs because of a Board Order, no matter what the incident was - minor or serious. Then their family is impacted, especially if they are the sole wage earner. I have too many clients that are facing losing their homes and other belongings, that are unable to support their kids and more just because of a Board Order or the filing of Formal Charges by the BON. These ramifications are the big deal and why regulation needs to be revamped.

Let's work on regulating the professions and not just disciplining. Regulation protects the public! Discipline destroys public safety! Let the consumer groups/professional organizations/Legislators know; get involved before it is too late!

What is TPAPN?

I spoke with a nurse that agreed to TPAPN, yet she did not understand what the Texas Peer Assistance Program was all about. When she asked a clerk at the BON, she was given very vague information and she agree to what she thought was a short term monitoring of her practice consisting of providing drug screens and being supervised at work. TPAPN is much more. I have discussed this issue before in a previous blog.

TPAPN is an approved peer assistance program. As a peer assistance program, TPAPN assists the nurse to practice nursing while in recovery for chemical dependency or while returning to competent practice for nurses with mental health issues.
A nurse can self-report to TPAPN, be referred by an employer or be ordered to participate by the BON. If a nurse recognizes impairment within their life, it is better for the nurse to self-report rather than to receive a third party referral or to be ordered to participate by the BON. Sometimes employers report nurses to TPAPN when there are no impairment issues. Some nurses agree to participate in TPAPN even when there are no impairment issues in order to avoid investigation by the BON; however, this is a dangerous path because in order to participate in TPAPN, a nurse must admit to being impaired and once a nurse starts this process it is very difficult to later discount the admissions.

The TPAPN program lasts for 2 years (3 years for APNs). The program is very intensive. For substance abuse issues, some of the requirements are: the nurse must complete 90 meetings in 90 days and then continue to go to very frequent meetings; the nurse is subjected to random drug screens, which for more frequent initially and then taper off; the nurse is limited to certain hours and specialties when working; and the nurse cannot administer or handle narcotics. The restrictions common for nurses with mental health issues involve counseling requirements.

TPAPN is not an absolute solution to an investigation by the Board and a nurse should discuss the case with an attorney prior to agreeing to go to TPAPN. There have been cases where the BON sent a nurse with years of sobriety to TPAPN and there have been nurses that have agreed to go to TPAPN just because the BON sent them a TPAPN Order and not because the facts of their case warrant a peer assistance program. It is not the BON's responsibility to educate a nurse about their case or to suggest the best resolution, so be sure to get proper advice.

Want to sue the State?

Often I hear from clients that they would like to sue the Board (take your pick: Medical, Nursing etc.) for _______ (usually something to do with the investigation or disciplinary or monitoring action). I always tell them that it is very difficult to sue the State of Texas because you have to get permission from the state to sue the state. Yes, you read that correctly.

A current matter is discussed in today's Austin American Statesman, "Body parts at center of long-running feud" that further illustrates this issue. The story details how a man left his body to UT Medical Branch for research, but that after wrongdoings at "The Willed Body Program" the family began investigating what happened to their family member's body. Apparently 19 families, including the one profiled, sued the school. The article discusses how the school being a state institution is "protected from lawsuits under the sovereign immunity doctrine. The Legislature must approve lawsuits against the state and resolutions that lawmakers filed in 2005 and 2007 to allow the lawsuits by the Whitingers and other families to go forward died in committees. The article by Mary Ann Roser is a very interesting look into a complex issue within administrative law. I think it is yet another example of how powerful the government is and why one must be informed and then, hopefully involved.

SOAH Hearings and Justice

If you have never been to a Board of Nurses' hearing before the State Office of Administrative Hearings, you are very lucky. This proceeding is what the BON uses if all methods of informal resolution fail. SOAH hearings are similar to trials, although there is no jury only an administrative law judge. During the hearings, evidence is offered and testimony is given and after all pleadings are completed by both the Board and the nurse, the Judge makes a proposal for decision. It is now when the process becomes unfair.

With normal trials, if one of the parties to the proceeding does not like the outcome, they must appeal the decision to a higher court. In Administrative cases in Texas, the Administrative Law Judge issues a proposal for decision, but they are not the ultimate decision maker, they are only proposing a resolution of the case based on the evidence. The case is then presented to the BON to decide whether to accept or alter the Judge's decision. So, even though the nurse has spent lots of time and money to present his/her case, the BON can decide not to accept the Judge's recommendation. Then the only recourse is for the nurse to spend more time and more money to take the matter to a higher court.

The just and fair process would be to have the SOAH Judges be the ultimate fact finders and then if either side is unhappy with the recommendation, they can appeal it. As the process is currently, the BON has vast power over a process in which they were not present to hear or review the evidence. I was recently at the BON regarding a hearing in which the Judge recommended that the charges against my client be dismissed. At the Board meeting, there were some Board members voicing their dislike of the recommendation and wanting to impose restrictions. This was without reviewing any of the evidence or the testimony. One member even stated that the recommendation for dismissal could have been due to legal maneuvering. If the Board members had been able to be at the hearing, they would have heard testimony that overwhelmingly supported my client, they would have heard that the Board's expert was confused as to the facts and was basing his opinion on faulty information, they would have heard how my client was being held responsible for something she had no control over or responsibility for and they would have seen that there was no evidence to support the Board's allegations. The problem is that the Board is used to seeing violations of the Nurse Practice Act and they are not accustomed to having an innocent nurse come before them, so they assume that there must be some other explanation other than the evidence that the Judge considered.

What ended up happening is that the Board issued an Order and Opinion that contained information which was incorrect and not supported by the evidence of the case. Although, I pointed this out to them and told them that the Judge in the case had also stated that the rationale being presented by the Board's staff was incorrect in light of the evidence. Yet, the Board accepted the Board staff's position and enacted this arbitrary and capricious Order which is a valid appellate issue. But, my client does not want to spend additional money to pursue the case with an upper court.

Too often nurses do not fight the Board, even when they are innocent, because they cannot afford the fight and even if they could what good will it do when the Board can alter the Judge's recommendation. Nurses must contact their professional associations and their state Senators and state Representatives to get this changed. The process should be fair for all, nurses and BON alike. SOAH needs to be the ultimate decision maker in administrative law hearings.

As a final note, please be sure to read my posts regarding malpractice insurance and why all nurses should have insurance to cover administrative actions. Also, be sure that the insurance you get offers at least $20,000 for administrative hearings and that they do not put a cap on the attorney's billable rate (so that you are not restricted in whom you want to hire).

New Jurisprudence Online Course

The Texas Board of Nursing posted this on their BNE news: The BON wishes to contract with a vendor approved to conduct business with the State of Texas, to transform the case content of the BON’s Jurisprudence and Ethics workshop content into an interactive, online format that utilizes the principles of adult learning for the target audience. Content will need to vary in the levels of complexity based on educational preparation i.e. (LVN, RN, APN/APRN).

Proposals will be accepted until the end of day, May 7, 2008.

This is interesting because currently if a nurse is required to take a Jurisprudence Course (for disciplinary reasons), the nurse must take the course in person.

Nursing School Horror

According to the Texas Board of Nursing's agenda for the April Board meeting, there have been schools presenting themselves as approved nursing education programs when they are not. According to the Board, "BON nursing consultants for education began receiving calls in September 2007 from students who thought they were attending Board approved nursing education programs that in fact were fraudulent, unapproved programs."

The programs that the Board mentions are: Career Advanced, Esther
Medical Tutorial and Nursing Review Center, IF Tech and Merit Excellence Institute,
Vocational Training Education Center or VTEC

How horrible to pay to attend a nursing school and then discover that you are paying for nothing because the program is not approved by the BON. This is important information for anyone looking at schools -- make sure that they are approved programs.

Nursing Continuing Education Credit

This was just posted on the Texas Board of Nursing website:

Senate Bill 993 (80th Texas Legislative Session, 2007) amended the Nursing Practice Act (NPA) section 301.303, eliminating the restriction that the BON could only require 10 hours of the 20 hours of continuing education (CE) required for license renewal/reactivation/reinstatement to be from approved programs (Type I CE). Reviewing the past several months of CE audits, Board staff determined that fewer than 5 nurses out of the hundreds who were randomly audited for CE compliance met any part of their requirements through non-approved (Type II) CE programs.

Thus, the new rule language in Rule 216 Continuing Education that became effective January 8, 2008, effectively eliminates Type II CE. The proposed amendments were initially published in the November 16, 2007, edition of the Texas Register (32 TexReg 8248).

In order to allow time for nurses and providers of CE to become aware of these changes in nursing continuing education requirements, the BON will recognize an implementation phase through the end of October 2008. This means a nurse who is required to show evidence of meeting the BON’s CE requirements through the end of October 2008 may submit up to 10 hours of CE that meets the formerly recognized criteria for Type II CE.

The number of CE hours required for nurses with volunteer retired status on their license in compliance with rule 217.9 remain unchanged (10 hours for VR-VNs and VR-RNs, and 20 hours for VR-APNs), but the same provisions for acceptable in rule 216 do apply.

Beginning November 1, 2008, all nurses who are renewing, reactivating, or reinstating their license must meet the criteria listed in the revised Rule 216.

New Peer Review Rules

The Texas Board of Nursing has posted their new proposed rules for Peer Review. Every nurse should find time to review these rules since they will apply if you are sent to peer review. Are there enough protections for you? Are the rules slanted more for employers rather than nurses? You have to read and decide for yourself.

Nursing Jurisprudence Course

The Board has in the past traveled around Texas giving their course on Nursing Practice. This year they are staying in Austin due to staff being needed to work on other tasks. Here is the info from their website:

Austin Texas Workshop - Nursing in Texas: A Regulatory Foundation for Safe Practice. This ONE-DAY workshop will be presented on three dates in 2008.

* March 21, 2008
* June 20, 2008
* September 12, 2008

Texas Nursing Board Formal Complaints

On February 12, 2008, the E&D Committee for the Texas Board of Nursing will consider default revocation actions against 26 nurses. So what? you may be thinking. Well, it is doubtful that all 26 nurses deserve to loose their license and the bigger picture is that there will be 26 fewer nurses practicing. Granted, the public will be better off with some of those nurses not working, but many nurses are revoked because they do not understand the procedure at the Board.

I spoke with a nurse that thought that the initial investigation by the Board meant that she could not work as a nurse and that it was a done deal that she would loose her license. So, she has not been working since 2006 and thought her license was gone. She did not understand the board's investigatory procedure or her rights. If you receive a notice of investigation by the Board, do not ignore the letter nor should you give up. Read as much as possible about the procedure and obtain legal counsel ASAP.

One of the areas where many nurses harm themselves is by NOT responding to a filing of Formal Charges. If you receive a letter from the Board that discusses default proceedings and included in the letter is a document title Formal Charges, you must file an answer to those formal charges within 3 weeks or the Board can enter default proceedings against you. What a default judgment means is that you chose not to participate in the process and because of your lack of action, the Board is allowed to determine that all allegations against you are true and thus seek revocation of your license.

Do not be like those 26 nurses, fight for your license or at least speak with an experienced attorney to determine if revocation is the only outcome.

Texas Medical Board Complaint

I have received calls from physicians that find my blogs asking me to represent them before the Texas Medical Board. I refer physicians to one of my law partners, Jon Porter, Tim Weitz, or Jeff McDonald. Please go to our website at www.healthlicensedefense.com to read the bios of each of my partners.

Crimes and Nurses, Chapter 53 impact

At the upcoming Texas Board of Nursing meeting (1/17/08-1/18/08), the Board staff is going to present the following report to the Board. I wanted to put that report here in its entirety because the information can be very helpful when trying to make decisions about nursing and past crimes.

"Crimes that have a potential impact on the ability to practice a profession safely or predict how the nurse might treat vulnerable clients in his or her care must be considered as part of a licensing decision. Texas Government Code provides that the Board of Nurse Examiners is entitled to receive criminal background checks from the Texas Department of Public Safety (DPS) and the Federal Bureau of Investigation (FBI) for any licensed nurse, any applicant for licensure or any person requesting a determination of eligibility for license from the board.

The number of positive hits (i.e. an individual with a reported crime on his or her criminal background record) reviewed or investigated by the Board has grown to approximately 3000 annually since the implementation of criminal checks through the F.B.I.

The Texas Government Code, Chapter 53, recognizes that there are some forms of criminal behavior which may have little potential impact on licensed occupational competency, and therefore should not affect an agency’s licensure decisions.

The Board has historically recognized the lack of public risk for many minor criminal offenses when they have been committed when the person was young and naive. For example, Rule 213.28(I)outlines the criteria for “youthful indiscretions” which would not impede a decision to license a nurse.

There are a number of minor crimes reported to the Board that appear to have little impact on the ability of an individual to practice nursing safely. Some crimes by there nature do not relate to nursing or there is little potential to associate the crime to the practice of nursing in a manner that would justify a licensure action.

Therefore, Staff believes that when confronted with a positive hit related to minor criminal conduct that meets a criteria similar to “youthful indiscretion” or does not justify application of chapter 53 there should be no impediment to licensure or license renewal. These crimes would not be listed on the Board’s Disciplinary Guidelines for Criminal Conduct.

BELOW IS A LIST OF THE SINGLE INCIDENT CRIMINAL BEHAVIOR (CONVICTION/DEFERRED
ADJUDICATION) WHICH DOES NOT RESULT IN AN INVESTIGATION OR PROBATIONARY STIPULATIONS ON PETITIONS FOR DECLARATORY ORDER OR APPLICATIONS FOR LICENSURE:
1. One misdemeanor DWI/DUI (not on probation)
2. One misdemeanor offense of possession of marijuana
3. Up to two misdemeanor theft by check
4. One misdemeanor domestic/ family violence
5. One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
6. One misdemeanor shop lifting
7. One misdemeanor criminal mischief
8. Misdemeanor graffiti
9. One misdemeanor criminal trespass
10. One misdemeanor disorderly conduct
11. Up to two misdemeanor Public Intoxication
12. Up to two misdemeanor Pan handling
13. Misdemeanor “loud noise” violations
14. One misdemeanor Reckless driving
15. Misdemeanor minor in possession of tobacco
16. One misdemeanor selling alcohol to a minor
17. Failure to appear
18. Vehicular molestation (slashing tires)
These listed crimes are the types of crimes that staff has chosen not to open an investigation on based on the positive hit when the explanation for the conduct had no relation to patient care."