My blogs have moved to www.nursingattorney/b. I have not posted in a while because we were busy setting up the new blog site. I hope that putting the blogs on my website will help readers navigate the blogs and the articles. Let me know what you think.

How to Explain past Board Orders to Employers

If a nurse receives an Agreed Order from the Texas Board of Nursing it is a disciplinary action and will forever be on the nurse's license (unless some future legislation allows for this to be changed). Even though the nurse has completed the probation/restrictions/stipulations and the nurse's license is now active and clear, the nurse will have a disciplinary history. This means that if the nurse is applying for a job and on the application is a question - "Has your license ever been sanctioned, disciplined, revoked, suspended or otherwise had action taken against it?"(or some similar type of question), the nurse will have to answer "yes."

The nurse should keep a copy of the Order and of the letter from the Board indicating that the Order has been completed and be prepared to present this to the employer.

New Continuing Education Hours

Do you have a nursing license and are not currently working as a nurse? If so, you should read the Texas Board's proposed CUE rules because they will affect you. Go to the Board's website and click on the May 15, 2009 proposed rules for Chapter 216. The new rules require nurses to demonstrate continuing competency in the nurse's specific area of practice. The problem is that if you are not working as a nurse, you do not have an "area of practice."

Every nurse that this impacts needs to immediately read the rules and send a comment to the Board detailing how they would be impacted by the new rules. According to the Board "To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on June 14, 2009, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.state.tx.us, or faxed to (512) 305-8101. An additional copy of the comments on the proposal or any request for a public hearing must be simultaneously submitted to Denise Benbow, Nursing Practice Consultant, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to denise.benbow@bon.state.tx.us, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

New laws and rules (TPAPN, Substance Abuse, Psychiatric Examinations, Minor violations)

HB 3961 has been sent to the Governor for his signature, which will most likely occur. Every nurse needs to be familiar with this bill because of its impact on nursing practice. Especially if a nurse has or accused of having a substance abuse problem or a mental health issue or a physical impairment. The Legislature has granted many more regulator powers to the Board including immediate suspension of a nurse's license for violations of conditions of a Board Order.

IT IS CRITICAL that a nurse seek the advice of an experience administrative attorney prior to entering into an Order with the Board for a substance abuse problem or a mental health issue or a physical impairment. The best approach is to contact an attorney as soon as something arises so that the attorney can prepare your case and start your defense.

Unfortunately, HB 998 stalled in the House and so the procedure still allows the Boards to change an Administrative Law Judge's decision after a hearing.

A bright light is that SB 1415 has been signed into law. The first section of the law instructs the Board to set up a pilot program to evaluate a deferral of disciplinary action when a nurse has been a violation that does not rise to the level of a denial, suspension or revocation. The second section is even more interesting: the Board is instructed to adopt guidelines for violations types that can have a "corrective action" imposed. This corrective action would be a fine, remedial education or both. I see lots of cases where this could apply and it is going to be very important that a nurse get assistance from an administrative lawyer familiar with the Board in order to make sure that they do not miss out on the potential resolution. The bill takes effect on 9/1/09.

Bill to defer BON disciplinary actions

According to the analysis of SB1415, "The 80th Legislature, Regular Session, 2007, passed S.B. 993, authored by Senator Nelson and sponsored by Representative McReynolds, in order to promote a less punitive regulatory environment for nurses who have committed minor violations and to have the Texas Board of Nursing (board) focus its disciplinary efforts and resources on nurses whose continued practice poses a risk of harm to patients. This legislation is in keeping with the recommendations of the Institute of Medicine's report, To Err Is Human and Keeping Patients Safe: Transforming the Work Environment of Nurses, which concluded that patient safety is best promoted by a regulatory environment which focuses more on system issues and less on individual blame for minor infractions.

Deferred disciplinary action is a decision made by the board to defer taking final disciplinary action against a nurse, and if the nurse meets certain conditions, dismissing the complaint. This bill would build on S.B. 993 by directing the board to determine the feasibility of conducting a pilot program to evaluate a model of deferred disciplinary action for minor violations, and if determined to be feasible, to conduct such a pilot program.

C.S.S.B. 1415 amends current law relating to certain corrective actions by the Texas Board of Nursing, including a pilot program on deferred disciplinary action, and provides corrective actions."

The bill has made it over the House's Public Health Committee. The Legislature is moving quickly on several bills and we are in the last few legs of the process. I am disappointed with several bills, but others look promising. More to come once the session is over.

Texas Senate Bill 1415 - Looks good!

I just received this Call to Action that was issued by the Texas Nurses Association and thought they did such a good job describing the bill that I wanted to share it:

"SB 1415 by Senator Hegar was heard in the Senate Health and Human Services Committee yesterday, April 14, 2009 and left pending. Your Senator is a member of the committee and needs to hear from you that he or she should vote for favorably reporting the bill from committee. The Health and Human Services Committee will meet tomorrow, Thursday, April 16, beginning at 9:00 am, and we would like the committee to vote on SB 1415 at that meeting. A committee substitute was laid out (CSSB 1415)

The Committee Substitute for SB 1415 gives the Board of Nursing (BON) additional options when addressing minor violations:
1. It gives the BON a new option of taking “corrective action” against a nurse the board finds has committed a minor violation of the Nursing Practice Act or BON rule. A “corrective action” would be a non-disciplinary, administrative action.
2. It directs the BON to pilot test a new concept of “deferred disciplinary action” as an option for addressing minor violations. A “deferred disciplinary action” would be a disciplinary action in which final action would be delayed pending the nurse’s successfully fulfilling certain conditions, e.g., remedial education. If successfully completed the case would be closed without final disciplinary action being taken against the nurse.
Under current law, the BON has only two options for addressing minor violations – dismiss the case or impose disciplinary action that remains on the nurse’s record permanently. CSSB 1415 gives the BON a third option.

CSSB 1415 is good for patient care because it will allow the Board of Nursing (BON) to spend less time on nurses who are reported for a minor violation of the Nursing Practice Act or BON rules and more time on reports that raise a question about the nurse’s ability to practice nursing safely. It is obviously good for nurses because it permits the BON to address reports of minor violations in a more expeditious, non-disciplinary manner that does not stay on the nurse’s record permanently."


Are you contacting your Legislators yet about all the important bills pending involving nursing?

WARNING - Legislation to Watch For

If you have not been tracking legislation that could affect your nursing practice, you need to do so NOW. The Board of Nursing has a great handout listing the various proposed bills. The bills that I have been watching closely are:

**HB 998, in support [this bill makes the current contested case procedure fair and is long overdue]

**SB 1880, against [see my explanation below]

Please take the time to educate yourself on the bills and contact your Senators and Representatives to tell them what you think about the bills. Too often the actual people that are going to be affected by the bills do not voice their opinion regarding the legislation.

I am very worried about various sections in SB 1880 and that the bill is trying to fix a few isolated problems with a mighty big hammer and that the resulting effect on nurses will be very sad. This bill came in the middle of my dear friend's illness and death, so I was not able to voice my opinion but I plan on doing so now. What bothers me is that when I looked at the witness list, I did not see any organizations or individuals that had experience with the day-to-day application of the incidents this bill proposes to affect. As I said, the bill on its face seems reasonable until you know about the actual application and the unfair, adverse effects the various sections will have on hard-working good nurses. I think it is crucial that our Legislators know about the effect various sections of this bill will have on nurses and ultimately the public because this bill will cause nurses to leave nursing, thereby increasing the nursing shortage.

Please contact your Legislators now or you will have to suffer the consequences of no action. I also want to point out that, unlike organizations with paid lobbyists, no one pays me to watch these bills or to take time to contact my Legislators or to sit at the Capitol for hours to testify; I do these things because I want to try to help nurses get the best possible laws in place that protect them and the public. And some of the proposed sections that I am fighting against or fighting for would actually take work away from attorneys, so there is no compensation there either. I am taking these stands because I believe that it is the right action to take.

Avoiding Litigation

I am speaking at a seminar, "Avoiding Litigation", on April 4, 2009 at the Thompson Conference Center, Austin Texas. The one day event is sponsored by the Texas Nurses Association District 5 and is incredibly CHEAP to attend ($15 for TNA members and $30 for non-members)!!!!

License Questions-How to Answer

What do you answer when asked by the Board of Nursing:

Have you ever been arrested?
Have you ever been convicted?
Has another licensing agency taken disciplinary action?
Have you ever....

If the answer is YES, then please answer YES. Do not assume that the BON will not find out. I have seen the Board find incidents that other background checks ignored. It also does not matter how long it has been, you must answer YES if the answer is YES. Do not make the mistake of assuming that your case has been expunged or sealed unless you have a court document in your hand that states that it has been expunged or sealed. Many nurses answer NO because they were told that since their case was a deferred adjudication, they can answer NO. This is faulty and dangerous advice.

If a nurse fails to answer correctly, the nurse will be subject to disciplinary action. No one wants to start their career off with a disciplinary action. If you are not sure how to answer a question. Do not ask your criminal attorney or family friend or instructor; ask an administrative lawyer that practices before the Board. There are more hints if you are facing a current criminal action on my firm's website.

Support HB 998, Support Nurses

I am asking you to take a few minutes to contact your State Representative and your State Senator and ask them to support HB 998.

I have told you of the frustration I face before the Board of Nursing when it comes to fighting a decision at the Board and I have blogged about it. Currently, if a nurse chooses to go to an administrative hearing before a Judge and fight the Board, the nurse can get a favorable decision by the Judge only to have the Board overturn the Judge's recommendation. This means the nurse must spend more time and money to appeal the case before District Court.

There have even been instances of other Boards (my example is the Texas Medical Board) overturning the Judge's decision to revoke a license which then allowed a physician to continue harming patients (he was nick-named Dr. Death by the media). So, the current system has the potential to harm not only licensees, but also the public. Plus, it is not a fair and just system.

HB 998 will change the current system to make the Judge's decision be the final decision and then if either the licensee or the Board wants to appeal it, they have to go to District Court. This is a great bill and we need to make sure that it gets passed. If you want to give personal examples of where the current system impacted you, please do so because it shows that you are very interested in getting the law changed. Letters and phone calls have more impact than emails, but something is better than not contacting them at all.

You can find out who represents you in the State Legislature by going to Texas Legislature online. On the right hand side is a "Who Represents Me?"

Please take a few minutes to help Texas nurses and you never know, you may be helping yourself.

New Legislative Session

The Legislature is in session and the filing of the bills have started. You must keep up with the bills that are being filed regarding nursing and you must contact your state Senator and Representative regarding which bills you want them to support and which need to be fought down. The big argument that I am receiving emails about regards nursing staffing with the lines being drawn between TNA and NNOC. There are two companion bills filed right now: SB 476 and HB 591 (SB means Senate Bill and HB means House Bill). You should go to the Texas Legislature Online and read one of the companion bills to determine whether you want to urge your Legislator to support or defeat the bills. There are also bills regarding prescriptive authority for Advanced Practice Nurses and HB 70 involving Chapter 53 of the Occupations Code that impacts nurses and the BON.

Keep informed, express your wants and be represented.

Texas Jurisprudence Exam Results 88% passage

The following is from the Executive Director's report for the upcoming January Board of Nurses' meeting:

The following are statistics for all Jurisprudence exam takers from 09/2008 -
01/04/2009. CN are candidates for licensure and END are endorsement applicants.

Applicant-Type, Disconnected, Failed, Exam Passed, Exam Total
LVN-CN 26, 31, 421, 478
LVN-END 13, 20, 93, 126
RN-CN 71, 11, 1011, 1093
RN-END 78, 60, 733, 871

Total 188, 122, 2258, 2568

Percentage Passed - 88%
Percentage Not Passing - 5%
Percentage of Disconnects - 7%.

New Minor Incident Rules for Peer Review

The Board of Nursing just passed new rules for Minor Incidents. This information is found at the Texas Register. I think there is a difference between what the Nurse Practice Act requires for reporting by Peer Review Committees and what the new Board rules state. First the new rule as reported in the Texas Register and then I compare the two:

§217.16. Reporting of Minor Incidents.

(a) Purpose. The Board believes protection of the public is not enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act or a board rule. This is particularly true when there are mechanisms in place in the nurse's practice setting to identify nursing errors, detect patterns of practice, and take corrective action to remediate deficits in a nurse's judgment, knowledge, training, or skill. This rule is intended to provide guidance to nurses, nursing peer review committees and others in determining whether a nurse has engaged in conduct that indicates the nurse's continued practice would pose a risk of harm to patients or others and should [clarify what constitutes a minor incident and when a minor incident need not] be reported to the board.

(b) Definition [and Scope]. A "minor incident" as defined under Nursing Practice Act §301.401(2) means [ is defined by Texas Occupations code §301.419(a) as"] conduct by a nurse that may be a violation of the Nursing Practice Act or a Board rule but does not indicate the Nurse's continued [that does not indicate that the continuing] practice [ of nursing by an affected nurse] poses a risk of harm to a patient [the client] or another [ other] person.["]

(c) Factors to be Considered in Evaluating if Conduct Must Be Reported to the Board.

(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct indicates the nurse:

(A) ignored a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;

(B) lacked a conscientious approach to or accountability for his/her practice;

(C) lacked the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or

(D) indicates the nurse has engaged in a pattern of multiple minor incidents that demonstrate the nurse's continued practice would pose a risk of harm to patients or others.

(2) Evaluation of Multiple Incidents.

(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.

(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse must be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period must be reported to the Board.

(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm that cannot be remediated, the nurse should be reported to the Board or Peer Review Committee.

(3) Other factors that may be considered in determining whether a minor incident should be reported to the Board are:

(A) the significance of the nurse's conduct in the particular practice setting; and

(B) the presence of contributing or mitigating circumstances, including systems issues or factors beyond the nurse's control, in relation to the nurse's conduct.

(d) Conduct Required to be Reported.

(1) A nurse must be reported to the board or to a nursing peer review committee for the following conduct:

(A) An error that contributed to a patient's death or serious harm.

(B) Criminal Conduct defined in Texas Occupations Code §301.4535.

(C) A serious violation of the board's Unprofessional Conduct rule §217.12 of this title (relating to Unprofessional Conduct) involving intentional or unethical conduct including but not limited to fraud, theft, patient abuse or patient exploitation.

(D) A practice-related violation involving impairment or suspected impairment by reason of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity required to be reported in accordance with §301.410(b) of the Nursing Practice Act and §217.19(g) of this title (relating to Incident Based Nursing Peer Review and Whistle Blower Protections).

(2) If a nursing peer review committee determines that a nurse engaged in the conduct listed in subsection (c)(1)(A) - (D) of this section the committee must report the nurse to the board. For errors involving the death or serious injury of a patient, if a nursing peer review committee makes a determination that a nurse has not engaged in conduct subject to reporting to the board, the committee must maintain documentation of the rationale for their belief that the nurse's conduct failed to meet each of the factors in paragraph (1)(A) - (D) of this subsection.

>[(c) Exclusions. The following conduct shall not be deemed a minor incident under any circumstance:]

[(1) An error that contributed to a patient's death or serious harm.]

[(2) Criminal Conduct defined in Texas Occupations Code §301.4535.]

[(3) A serious violation of the board's Unprofessional Conduct Rule (22 TAC §217.12) involving intentional or unethical conduct such as fraud, theft, patient abuse or patient exploitation.]

[(d) Criteria for Determining if Minor Incident is Board-Reportable.]

[(1) A nurse involved in a minor incident need not be reported to the Board unless the conduct:]

[(A) creates a significant risk of physical, emotional or financial harm to the client;]

[(B) indicates the nurse lacks a conscientious approach to or accountability for his/her practice;]

[(C) indicates the nurse lacks the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated; or]

[(D) indicates a pattern of multiple minor incidents demonstrating that the nurse's continued practice would pose a risk of harm to clients or others.]

[(2) Evaluation of Multiple Incidents.]

[(A) Evaluation of Conduct. In evaluating whether multiple incidents constitute grounds for reporting it is the responsibility of the nurse manager or supervisor or peer review committee to determine if the minor incidents indicate a pattern of practice that demonstrates the nurse's continued practice poses a risk and should be reported.]

[(B) Evaluation of Multiple Incidents. In practice settings with nursing peer review, the nurse shall be reported to peer review if a nurse commits five minor incidents within a 12-month period. In practice settings with no nursing peer review, the nurse who commits five minor incidents within a 12 month period shall be reported to the Board.]

[(C) Nurse Manager and Nurse Supervisor Responsibilities. Regardless of the time frame or number of minor incidents, if a nurse manager or supervisor believes the minor incidents indicate a pattern of practice that poses a risk of harm, the nurse should be reported to the Board or Peer Review Committee.]

(e) Conduct Normally Not Required to Be Reported to the Board [ Special Considerations in Evaluating Incidents].

(1) An incident should be evaluated [ In evaluating whether a nurse's conduct constitutes a minor incident or should be reported] to determine if [the Board, the following should be considered]:

(A) [(1)] the [If an ] incident is primarily the result of factors beyond the nurse's control and addressing those factors is more likely to prevent the incident from reoccurring; or [, a presumption should exist that the incident is a non-reportable minor incident.]

(B) [(2)] the incident was [ Multiple factors may contribute to medication errors. For the purposes of this rule,] a medication error caused primarily by factors beyond the nurse's control rather than [should be evaluated to determine whether the error resulted from] failure of the nurse to exercise proper clinical judgment [or if there were other extraneous factors that were the primary cause of the error]. Board Position Statement 15.17 Texas Board of Nursing/Board of Pharmacy Joint Position Statement/Medication Error provides guidelines for evaluating medication errors found at http://www.bon.state.tx.us/practice/position.html#15.17.

(2) If either of the conditions listed in paragraph (1) of this subsection are present, a presumption should exist that the nurse's conduct does not indicate the nurse's continued practice poses a risk of harm to a patient or another person and does not need to be reported to the board.

(f) Documentation of Minor Incidents. A minor incident should be documented as follows:

(1) A report must [shall] be prepared and maintained for a minimum of 12 months that contains a complete description of the incident, patient record number, witnesses, nurse involved and the action taken to correct or remedy the problem.

(2) If a medication error is attributable or assigned to the nurse as a minor incident, the record of that incident should indicate why the error is being attributed or assigned to the nurse.

(g) Nursing Peer Review Committee.

(1) If a report is made to the peer review committee, the committee must investigate and conduct incident-based nursing peer review in compliance with Nursing Peer Review Law in Texas Occupations Code §303 and §217.19 of this title.

(2) Review of a nurse's conduct or practice may be accomplished by either an informal work group of the nursing peer review committee as provided under §217.19(e) of this title or the full nursing peer review committee prior to a report being made to the board.

(3) [(1)] A nursing peer review committee receiving a report involving a minor incident or incidents must [shall] review the incident(s) and other conduct of the nurse during the previous 12 months to determine if the nurse's continuing to practice poses a risk of harm to patients [clients] or other persons and whether remediation would be reasonably expected to adequately mitigate such risk if it exists. The committee must [shall] consider the special considerations set out in subsection (c) [(d) ] of this section.

[(2) Regardless of the number of incidents, the facility may choose to initiate an informal review process utilizing a workgroup of the nursing peer review committee Peer review of minor incidents under this Rule may be conducted by a special workgroup of the nursing peer review committee. The workgroup may conduct its review using an informal process as long as the nurse has opportunity to meet with the workgroup and provided the nurse is given an opportunity to be peer reviewed in accordance with §217.19 of this title (relating to Incident-Based Nursing Peer Review) prior to any report being made to the Board.]

(4) [(3)] The nursing [If the ] peer review committee [determines either that the nurse's continuing to practice does not pose a risk of harm to clients or other persons or that remediation could reasonable be expected to adequately mitigate any such risk, the committee] need not report the nurse to the Board if the peer review committee determines that either:

(A) the nurse's continuing to practice does not pose a risk of harm to patients or other persons; or

(B) [provided any] remediation could reasonably be expected to adequately mitigate any such risk and the nurse [is] successfully completes the remediation [completed].

(5) If a nurse terminates employment while undergoing remediation activities as directed by a peer review committee under paragraph (3) of this subsection, the peer review committee may either:

(A) report the nurse to the BON;

(B) report to the peer review committee of the new employer, if known, with the nurses written consent;

(C) re-evaluate the nurse's current conduct to determine if the nurse did complete sufficient remediation and is deemed safe to practice.

(h) A Right to Report. Nurses and other persons are encouraged not to report minor incidents to the Board unless required to do so by this rule, but nothing in this rule is intended to prevent reporting of a potential violation directly to the Board or to a nursing peer review committee.

(i) Mis-classifying to Avoid Reporting. [Bad Faith Determination.] Intentionally mis-classifying an incident [in bad faith] to avoid reporting may result in violation of the mandatory reporting statute.

(j) Chief Nursing Officer or Nurse Administrator [ Officer's] Responsibility. The Chief Nursing Officer, Nurse Administrator or registered nurse by any title who is responsible for nursing services [chief nursing officer] shall be responsible for taking reasonable steps to assure that minor incidents are handled in compliance with this rule and any other applicable law.

(k) Nurses Reported to the Board. If a nurse is reported to the board, the board shall review the nurse's conduct to determine if it indicates the nurse's continued practice poses a risk of harm to a patient or another person. If it does not the board may elect not to proceed with filing formal charges.


Now the part I think is inconsistent: The Board rule is cited in italics and then the Nurse Practice Act Chapter 301.401 and 301.403 in bold, followed by my comments.

(c) Factors to be Considered in Evaluating if Conduct Must Be Reported to the Board.Sec. 301.403. Duty of Peer Review Committee to Report and Conduct Subject to Reporting.

The nurse need not be reported unless the conduct indicates that the nurse (A) ignored a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;

A Peer Review Committee is not required to report a nurse to the Board unless the nurse has engaged in conduct subject to reporting and the conduct subject to reporting means that a nurse(A) violates this chapter or a board rule and contributed to the death or serious injury of a patient;

So, it appears to me that the Board rule is much more broad than the statute. The Board rule allows for reporting if a nurse ignored a risk that either harmed or could have harmed a patient. This means that a nurse is subject to reporting for just the potential of a problem. The statute states that there must be a violation of a board rule AND the conduct must have contributed to the DEATH or SERIOUS INJURY of a patient. I do not understand the change from the statute requirements especially when the Board's preamble to the proposed rule states, "the board does not believe the protection of the public is enhanced by the reporting of every minor incident that may be a violation of the Texas Nursing Practice Act."