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.

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.

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.

WHAT NOT TO DO:  answer the Board without having an attorney review your response.  It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid.  Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue.  In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted.  DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc.  This is not a time to risk talking to inexperienced people.  Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board.  For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO:  Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board.  When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research?  If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed.  This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions.  If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public.  What about a licensee who is wrongly accused (it happens more than you think:  bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.).  A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board.  The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and  loses their job and is now on public assistance because no one wants to hire them.  It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession.   One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county.  Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal?  Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal.  But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article,  like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board.  This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so.  Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations.  Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny.  Ask yourself, who is on the side of the licensee?  Who is making sure there are enough professionals to provide care to the people of Texas?  Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring?  The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

The rules are not strictly limiting;  according to the Board’s posted rationale, “It should be noted in this example, however, that a nurse who works in a cardiac unit is not necessarily limited to such specialized continuing education courses under the adopted amendments. A cardiac nurse could complete continuing education courses covering a wider range of topics, provided that the courses are designed to enhance, enrich, and update the knowledge and skills she reasonably utilizes in her area of practice. Examples include courses related to patient assessment, kidney function, the healing environment, progressive care, diabetes, depression, medication administration, nutrition, the safety and efficacy of needless IV access, nurse/patient interaction, pain management, and infection control, just to name a few. A cardiac nurse must be knowledgeable and skilled in all types of issues that may affect her patient care. Each of these courses contain information and material that is reasonably designed to enhance a cardiac nurses’s ability to identify, recognize, and react to such issues. As such, a cardiac nurse could complete any of these courses in order to demonstrate her continuing competency. Further, this example is not meant to limit the types of continuing education courses that a cardiac nurse could complete under the adopted amendments. Any continuing education course in which a cardiac nurse learns about new technology or treatment regimens that are relevant to her practice area or any course which is designed to update or enhance her clinical skills will meet the adopted requirements. The completion of such continuing education courses should result in a better quality of care for her patients because the information she receives as part of those continuing education courses directly relates to the issues she encounters regularly in her area of practice, and her skills and knowledge should better reflect a mastery of that information.”

This is a change from what we have always thought–that since the questions are meant to disclose unknown situations or occurrences, an investigation by the BON does not need to be disclosed to the BON.   But the Board wants to make sure there are no areas of confusion and they want everything disclosed to them even if the nurse thinks the Board knows about an issue, the nurse should disclose it.  The only exception is when the nurse receives a letter from the Board informing the nurse he/she no longer has to disclose a specific listed occurrence (Hint-Make sure you keep this letter forever in case it becomes an issue later on).

Don’t forget to disclose pending charges for criminal incidents as well as needing to disclose deferred adjudications, pleas of nolo contendere, or no contest.  These questions continue to trip up nurses.   Above all, read the questions carefully EACH time you renew.  Questions change and a failure to answer truthfully will result in a BON investigation.  Also, don’t wait until the last few weeks to renew.   A nurse can renew up to 60 days prior to the end of the renewal period–early is better.