Texas Nursing Jurisprudence

2009-10-20T15:18:00.000-07:00

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

2009-07-28T11:19:00.000-07:00

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

2009-06-09T16:23:00.000-07:00

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)

2009-05-28T07:03:00.001-07:00

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

2009-05-12T11:59:00.000-07:00

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!

2009-04-22T07:51:00.000-07:00

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

2009-04-21T15:19:00.000-07:00

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

2009-03-25T13:48:00.001-07:00

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

2009-03-09T16:55:00.000-07:00

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

2009-02-13T08:15:00.000-08:00

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

2009-02-04T09:40:00.000-08:00

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

2009-01-11T11:07:00.001-08:00

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

2009-01-07T18:35:00.000-08:00

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."

New Legislative Session

2008-12-10T06:39:00.000-08:00

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

2008-11-19T07:44:00.000-08:00

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

2008-10-31T08:56:00.000-07:00

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

2008-10-01T15:31:00.000-07:00

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

2008-09-15T06:41:00.000-07:00

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

2008-09-02T21:06:00.000-07:00

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

2008-08-14T11:10:00.000-07:00

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

Texas Nursing Jurisprudence Exam

2008-08-11T12:38:00.000-07:00

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

2008-07-24T10:21:00.001-07:00

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

2008-07-24T10:18:00.001-07:00

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

2008-07-11T14:48:00.000-07:00

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

2008-07-11T13:24:00.000-07:00

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!

2008-06-26T09:41:00.001-07:00

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?

2008-06-12T07:31:00.000-07:00

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?

2008-06-02T07:18:00.000-07:00

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

2008-05-05T02:31:00.000-07:00

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

2008-04-24T07:47:00.000-07:00

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

2008-04-10T08:41:00.000-07:00

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

2008-03-14T20:22:00.000-07:00

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

2008-02-18T11:27:00.000-08:00

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

2008-02-12T15:52:00.000-08:00

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

2008-02-04T11:33:00.000-08:00

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

2008-01-20T20:13:00.001-08:00

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

2008-01-15T11:05:00.000-08:00

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."

Violence has no place in Nursing

2007-12-12T07:31:00.001-08:00

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

2007-12-03T08:39:00.000-08:00

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

2007-11-15T13:00:00.000-08:00

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

2007-11-06T09:16:00.000-08:00

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

2007-10-30T11:18:00.000-07:00

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

2007-10-17T13:46:00.001-07:00

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

2007-10-09T08:41:00.000-07:00

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?

2007-10-05T14:25:00.000-07:00

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

2007-10-01T07:34:00.000-07:00

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?

2007-09-24T06:55:00.001-07:00

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

2007-09-10T08:27:00.000-07:00

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

2007-08-29T07:00:00.000-07:00

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

2007-08-09T08:59:00.000-07:00

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

2007-08-09T08:48:00.000-07:00

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

2007-06-04T12:08:00.000-07:00

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

2007-05-28T14:28:00.001-07:00

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?

2007-05-28T14:09:00.000-07:00

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

2007-05-23T05:56:00.000-07:00

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

2007-05-18T04:05:00.000-07:00

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?

2007-05-15T13:22:00.000-07:00

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

2007-05-14T17:28:00.000-07:00

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

2007-05-11T08:08:00.000-07:00

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

2007-05-10T08:59:00.000-07:00

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

2007-05-09T09:16:00.000-07:00

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....

2007-05-08T16:48:00.000-07:00

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?!?