Health License Defense

Before you go any further–if you do not have professional license defense/malpractice insurance right now, get it.  Most nurses do not realize the need for nursing malpractice insurance and they either think their employer will cover them or they will never have the need for insurance.  The main need these days is Nursing License Defense not malpractice.  The complaints before the Texas BON have increased approximately 25% every year:  In 2006, there were just over 6,500 complaints at the Texas BON and only four years later in 2010, that number had increased by 10,000 to just over 16, 800.  In addition, the number of hearings set by the Texas BON has increased significantly.  In 2010, the BON set 42 cases.  In 2011, that number jumped to 163 and so far 2012 has seen 137 cases filed and we are only in the first month [note-the date of the filing is taken from the middle number on the SOAH docket numbers which represent the year and some cases may have a "12" number and have been filed at the end of 2011].

As the initial complaints move through the system, many nurses are very unhappy with the settlement offers being made by the Board (either the offers are too harsh or the nurse believes he/she has done nothing wrong to warrant discipline).  If the nurse refuses to settle the case, those complaints then move to the filing of Formal Charges, which are not “filed” any where but at the Board, but the downside is the nurse’s license is now tagged with “Formal Charges filed” and anyone reviewing the license verification page for that nurse will see these Formal Charges.  If one reads the Nurse Practice Act, it is obvious Formal Charges were not to be filed until the case was ready to be set for a hearing before an Administrative Law Judge because the NPA speaks to discovery after the filing of Formal Charges; however, the Texas BON files the Formal Charges and it may take months or even over a year to get any resolution to the case and the entire time the nurse’s license is handicapped by this “filing.”  [Note-the Board has been working very  hard to move "old" cases which have been in their system for more than two years and the backlog is decreasing.  One can only hope the Board also revamps their current methodology of filing Formal Charges without also setting a case for a hearing]

Once the case moves to a contested case hearing, the nurse is going to need money to hire legal representation for the hearing and for the expenses involved with preparation of a defense.  This is where having malpractice insurance really helps in that nurses can proceed to fight for what they believe without the worry of where the money will come from.  So, the numbers support the need for malpractice insurance.  Do not delay–Good Nurses get reported to the Board.

The Legislature during the last session strengthened the whistle-blower protections for nurses in response to the Winkler County Nurses’ experiences.  As a result of that legislation, the Texas BON has proposed amendments to the Board rules.  What happened to the two nurses as result of standing up for patients is horrible.  There have been repercussions for all involved in directly ruining the nurses’ career (the physician, the sheriff, the County Attorney), but the drafting of protection for nurses who may find themselves in similar situations in the future is a help.  For a good synopsis of the Winkler case, go to the Texas Nurses Association.

The Texas Nursing Board has sent out the October newsletter.  Be sure to read the newsletter to get up to date on the new legislation passed this Legislative session regarding nurses.  Remember that if a particular law affects your practice you need to read the actual law and not only the summary in the newsletter.  Bills can be found online through the Texas Legislature.  Just enter the HB (House Bill) or SB (Senate Bill).  Texas Legislature online is also the place to find out who your legislators are.

At the Eligibility and Disciplinary Committee meeting for tomorrow, August 9, 2011, there are approximately 97 Default Revocation Orders to be presented to the committee, which means 97 nurses face losing their licenses.  Defaults occur when an investigation before the Texas Board of Nursing progresses resulting in a hearing before an Administrative Law Judge and the nurse (or the nurse’s attorney) fails to appear at the hearing; the Judge may then enter a default revocation of the nurse’s license.    Nurses fail to show up at hearings for various reasons:  the nurse either fails to respond to the Board or a nurse indicates she/he wants a hearing before a Judge and then does not show up or a nurse has failed to update his/her mailing address with the Board and the nurse is unaware of the proceedings occurring at the Board.

Keep Your Address Current With the Board or Risk Losing Your License:  The nurse must keep a valid, current address on file with the Board and the burden on the Board is only to send notice to the last known address; the Board is not required to do a search for a nurse who has not responded, which is why it is so important to ensure your address is current.

The Nurse Assumes “No news is good news”: A nurse is under an investigation and assumes that since it has been ____ (a certain number of months) since the Board sent anything regarding the complaint, the Board must have closed the case.  Not true!!  The Board will notify the nurse of the ongoing investigation and the Board will notify the nurse when the investigation is closed.  If a nurse is under investigation and is not receiving mail from the Board, the nurse needs to check his/her address with the Board to be sure it is correct and that no further action has occurred or is pending against the license.  This also applies to a nurse who is aware of a Peer Review Finding against the nurse, a lawsuit naming a nurse, a complaint from a patient or family; the nurse cannot just assume the Board is not going to do anything.  The Board will open an investigation if they receive a complaint and they have jurisdiction regarding the complaint.

Don’t Give Up When Facing An Investigation: There are also nurses who give up when faced with an investigation assuming there is no hope or that the issue is so bad they will surely lose their license.   I have spoken to many nurses who think their incident is horrible and they will surely lose their license, but rarely is this true.   If a nurse can be remediated/educated the Board is not always inclined to remove the nurse’s license.  Unless a nurse wishes to cease nursing, it is worth participating in the investigative process and not to just give up.  At the same August 9, 2011 E&D meeting, there are   39 (Disciplinary Orders) + 3 (Reinstatement Orders) + 13 (Eligibility Orders) + 6 (Deferred Disciplinary Orders) Agreed Orders to be presented.  These are the stipulations/restrictions placed on a nurse’s license in response to a complaint filed at the Board.

So, the numbers stack up at 97 revocations versus 61 disciplinary orders; this seems to indicate there are more nurses that deserve to lose their license than are appropriate for restricted licenses and the statistics just don’t support that assumption.  These revocation orders will more than likely show nurses who either did not know about the Board action or decided for whatever reason not to work with the Board in resolving the complaint against them–how unfortunate.  Be cautious and do not allow this to happen to your license.

Whenever the Texas Legislature goes into session, one has to pay attention to what bills are proposed and then watch for which bills are signed into law.  For this most recent session, the 82nd Regular, the following bills were passed that impact nursing (this is only a short list of what I think are most important for nurses to know and is not reflective of all the laws passed; there is a list under agenda item 1.3 for the BON’s July 20011 meeting.):

1.  Texas BON budget:  It is interesting when there is so much outcry over severe budget cuts that the BON received the following:

a.  Last year 5% was required to be cut from each agency’s budget for 2010-2011; HB 1 gives that 5% cut back to the Board (the BON explains this in discussing HB4 in their July 2011 meeting agenda , but the bottom line is the Board received a total of $269,638 on June 1, 2011).

b. The Board has received appropriations to hire 11 new positions.  Although this bill does not go into effect until 9/1/11, there are currently job postings on their website:  Accountant, two Administrative Assistants,  two Consumer Service Reps, and two Nursing practice consultants.

c. The Board received an increase of $300,000 in litigation costs, which means they will have more money to take nurses before an Administrative Law Judge.

The Board did lose some money:  merit increases and capital expenditures.  Another interesting note – the Board must raise an additional $401,877 in indirect costs.  I don’t know what that will ultimately mean, but it bears watching.

Senator Chris Harris reported he suffered from a tick borne disease and he was one of the authors of a new law was passed which encourages a nurse who treats such patients to obtain CUE in that area so if the nurse is subsequently investigated, the nurse can provide proof of the CUE within the past 2 years for consideration in the investigation (HB2975 and SB 1360)

SB 192 expands patient advocacy protections and SB 193 makes some changes to the Nurse Practice Act such as allowing nurses under age 65 to apply for retired status.

If you work with unlicensed personnel, it is important to look at SB 1857 because there have been some changes involving the UAP administering medications.

The Winkler County Sheriff who took action against two nurses, Ann Mitchell and Vickilyn Galle, that reported a physician, Dr. Rolando Arailes, Jr., to the Texas Medical Board has been found guilty.  According to  Mywesttexas.com Sheriff Robert L. Roberts was sentenced to four years of probation with a waiver of appeal, 100 days of jail, a $6000 fine, will lose his job as Sheriff and his Texas Peace Officers License permanently.

Gov. Rick Perry has named Cynthia Tays of Austin chair of the Texas Board of Chiropractic Examiners for a term to expire at the pleasure of the governor, and appointed three members to the board for terms to expire Feb. 1, 2017.

Cynthia Tays is president and owner of Austin Chiropractic Associates P.A. She is a member of the American Chiropractic Association (ACA), ACA Sports Council and ACA Physical Therapy Council. She is also a member of the Texas Chiropractic Association and American College of Chiropractic Orthopedists, and is the chiropractic consultant for Ballet Austin and Tapestry Dance Company. Tays received a bachelor’s degree from St. Cloud State University and a doctorate of chiropractic degree from Texas Chiropractic College.

Karen Campion of Bryan is president and owner of Campion Chiropractic Clinic. She is a member of the American and Texas Chiropractic associations, American Board of Chiropractic Sports Physicians, Texas Chiropractic College Alumni Association, Texas Society of Radiologic Technologists, and Bryan/College Station Chamber of Commerce. She is also team chiropractor for Brazos Valley Club Volleyball and A&M Consolidated High School Athletics, and a past team chiropractor for the Texas A&M University Athletic Department. Campion received a doctorate of chiropractic degree from Texas Chiropractic College, is a certified chiropractic sports physician, and a fellow of the International Academy of Medical Acupuncture.

Tim McCullough of Friendswood is director of Biotech Chiropractic Clinic Inc. He is a member of the American and Texas Chiropractic associations, past chair of the American Academy of Chiropractic Physicians, past president of the American Chiropractic Association Council on Diagnosis and Internal Disorders, and past director of the Texas Chiropractic Association District 11. McCullough served in the U.S. Army. He received a bachelor’s degree from Louisiana State University, a master’s degree in education from the University of Louisiana at Lafayette, and a doctorate of chiropractic degree from Texas Chiropractic College, and is a board certified chiropractic internist and clinical nutritionist.

Kenya S. Woodruff of Dallas is deputy general counsel for the Dallas County Hospital District. She is past chair of the Dallas Bar Association Health Law Section, and a member of the State Bar of Texas, American Health Lawyers Association, and J.L. Turner Legal Association. She is also co-chair of the Aids Arms Inc. Community Advisory Committee and a volunteer teacher for Eirene Christian Fellowship Children’s Ministry. Woodruff received a bachelor’s degree from Emory University and a law degree from the Duke University School of Law. She is being reappointed.

Gov. Rick Perry has appointed three members to the Texas State Board of Social Worker Examiners for terms to expire Feb. 1, 2017.

Theresa Argumaniz Gomez of El Paso is healthcare administrator at Pueblo De Salud Home Health Services LLC. She is a licensed advanced clinical practitioner and chemical dependency counselor. She is a member of the National Association of Social Workers, and past chair of the Veteran’s Health Administration Combined Federal Campaign in El Paso. Gomez received a bachelor’s degree and master’s degree in social work from Arizona State University.

Nancy Pearson of Burton is a licensed social worker and branch support manager for Hospice Brazos Valley. She is past service coordinator and case manager of the Texana Mental Health and Mental Retardation Services Center, and chair of the St. Ann’s Catholic Church Pastoral Council in Somerville.

Denise Pratt of Baytown is a family law judge of the 311th Harris County District Court. She is a member of the Houston Bar Association and State Bar of Texas. Pratt received a bachelor’s degree from the University of Texas and a law degree from the University of Memphis Cecil C. Humphrey School of Law.

Gov. Rick Perry has appointed seven members to the Texas State Board of Dental Examiners.

Renee Cornett of Austin is a licensed dental hygienist and chair of the Austin Community College Department of Dental Hygiene. She is a member of the American Dental Education Association, American Dental Hygiene Association and Texas Dental Hygiene Directors’ Association. She is a member of the Texas Dental Hygiene Educators’ Association, Texas Community College Teachers’ Association, and Sigma Phi Alpha Dental Hygiene Honor Society. She is also a member of the Austin Community College Faculty Senate, a dental hygiene examiner for the Western Regional Dental Examining Board, and past chair of the Texas Dental Hygiene Advisory Committee. Cornett received a bachelor’s degree from Carroll College and a Master of Business Administration from the University of Texas at San Antonio. She is appointed for a term to expire Feb. 1, 2015.

D. Bradley Dean of Frisco is a dentist and board certified periodontist in private practice. He is a member of the American and Texas Dental associations, a diplomate of the Academy of Periodontology, past president of the North Texas Dental Association, and past program chair for the Southwest Society of Periodontists. He is a former delegate to the Texas Dental Association and past chair of the Council on Dental Economics. He is also an advisory board member of the Collin County Community College Dental Hygiene program, a former assistant professor in the Baylor College of Dentistry Graduate Periodontics Department, and a volunteer with Give Kids a Smile and Rite to Smile. Dean received a bachelor’s degree from Texas A&M University, and a doctorate of dental surgery and a master’s degree in periodontics from Baylor College of Dentistry. He is appointed for a term to expire Feb. 1, 2017.

Tammy Gough of McKinney is a pediatric dentist in private practice. She is a member of the American and Texas Dental associations, and a member and past president of the Texas Academy of Pediatric Dentistry, Southwest Society of Pediatric Dentistry and the Paul P. Taylor Academy of Pediatric Dentistry. She is board certified by the American Board of Pediatric Dentistry, and is a member of the American Academy of Pediatric Dentistry. Gough received a bachelor’s degree from the University of Illinois, and a doctor of dental surgery degree and a master’s degree in pediatric dentistry from Baylor College of Dentistry. She is appointed for a term to expire Feb. 1, 2017.

Christie Leedy of Abilene is a dentist and owner of Abilene Dental. She is a member of the American and Texas Dental associations, American Academy of Cosmetic Dentistry, and Dental Organization for Conscious Sedation, a founding member of the American Academy of Oral Systemic Health, and a member and past board member of the 17th District Dental Society. She is also a founding member and president of Angel Smiles, an advisory board member of the Noah Project, and a member of the Community Foundation of Abilene. Leedy attended Tarleton State University and received a doctor of dental surgery degree from the University of Texas Health Science Center at San Antonio. She is appointed for a term to expire Feb. 1, 2017.

Evangelia ‘Lia’ Mote of Cedar Park is owner of LV Mote Consulting Group, and founder and executive director of Mosaic Arts Group. She is a volunteer summer camp coordinator for Royal Purpose Ministries. Mote received a bachelor’s degree and master’s degree in dramatic production from Bob Jones University. She will serve as a public member on the board for a term to expire Feb. 1, 2017.

Ann Pauli of El Paso is a certified public accountant (CPA), and is retired president and CEO of Paso del Norte Health Foundation. She is a member of the Texas Society of CPA’s, president of the El Paso Public Libraries Foundation, and an El Paso Master Gardner volunteer. Pauli received a bachelor’s degree from the University of Illinois and a master’s degree in organizational management from the University of Phoenix. She is reappointed and will serve as a public member on the board for a term to expire Feb. 1, 2013.

John T. Steen III of Houston is Director of Commercial Development for Lone Star NGL LLC. He is a Chartered Financial Analyst (CFA) charterholder, an Eagle Scout, and a life member of the Sons of the Republic of Texas. Steen received a bachelor’s degree from Vanderbilt University, a Master of Business Administration from the Wharton School of Business, and a master of arts in international studies from the University of Pennsylvania. He will serve as a public member on the board for a term to expire Feb. 1, 2017.

• Adopted Rules re:
  • Professional Conduct-Anesthesia and Anesthetic Agents.  The repeal of Chapter 108, Subchapter C  is adopted in order to publish revised anesthesia and sedation rules. Concurrent with this is the adoption of new anesthesia rules contained in new Chapter 110 regarding: Effective Date, Definitions, Minimum Standard of Care, Anesthesia, Sedation/Anesthesia Permit, Permit Requirements and Clinical Provisions, Authority to Demonstrate Anesthesia.
  • Enteral Conscious Sedation-Repeal of Anesthesia Rules regarding:  Definitions, Permit, Permit Requirements and Clinical Provisions, Effective Date .
  • Enteral Conscious Sedation-Adoption of New Anesthesia Rules regarding: Definitions; Sedation/Anesthesia Permit; Nitrous Oxide/Oxygen Inhalation Sedation; Minimal Sedation; Moderate Sedation; Deep Sedation or General Anesthesia; Portability; Provisional Anesthesia and Portability Permits; Anesthesia Permit Renewal .
• Ad-Hoc Committee updated rules based on sedation guidelines adopted by the American Dental Association (ADA) House of Delegates in 2007

The most significant change in the revisions is to the levels of anesthesia and sedation permitting. The permitting process emphasizes the level of sedation of the patient rather than the route of administration of the medication. The new sections establish five levels of anesthesia and sedation permits beyond the standard dental license: Nitrous Oxide/Oxygen Inhalation Sedation;

• Level 1: Minimal Sedation;
• Level 2: Moderate Sedation (enteral sedation);
• Level 3: Moderate Sedation (parenteral sedation); and
• Level 4: Deep Sedation or General Anesthesia.

Most levels of permitting will change in name only. Licensed dentists who lack sedation permits may continue to utilize local anesthetic and prescribe minor tranquilizers for anxiolysis. A licensed dentist who holds an active Nitrous Oxide/Oxygen Inhalation Conscious Sedation permit, Parenteral Sedation permit, or Deep Sedation or General Anesthesia permit on or before the effective date of the new sections will have his or her permit automatically reclassified as a Nitrous Oxide/Oxygen Inhalation Sedation permit, Level 3 permit, and Level 4 permit respectively on the effective date.