Health License Defense » nursing jurisprudence

97 Nurses Face Losing Their License on August 9, 2011

Taralynn Mackay — Mon, 08 Aug 2011 17:17:45 +0000

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.

It is time to renew, do I tell the Board about my arrest or conviction?

Taralynn Mackay — Mon, 02 May 2011 22:39:44 +0000

It is time to renew and when you review the questions asked by the Board on the renewal paperwork, you see the question about a potential criminal history and have no clue what you should do and what you should not do. The best answer is to call an experienced administrative lawyer. There is no substitute for an experienced answer from an attorney, but this blog will attempt to give basics answers but is not intended to be legal advice.

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.

Texas BON new continuing education rules

Taralynn Mackay — Mon, 04 Oct 2010 14:30:41 +0000

The Texas BON just posted the remaining rule changes for the continuing education rules. The complete revised rules are intended to stop nurses from taking “fluff” education courses that do nothing to enrich their nursing practice or nursing knowledge. The other changes were done last year and these are the remaining rules that had to be revised. The rationale can be found at the Texas Register. The new rules are specifically 216.1 and 216.3. The entire set of continuing education rules can be found at the Board’s website under Board rules. The new rules involve competency of nurses and the types of continuing education rules a nurse must take to ensure continued competency. The new rules address nurses that still have an active license, but that are no longer practicing nursing. For those nurses, the area of continuing education would be what their last area of nursing was.

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.”

Live in one state and practice in another? BEWARE

Taralynn Mackay — Wed, 09 Jun 2010 21:37:11 +0000

Multistate Compact Licensure rules can impact a nurse even if the nurse is not working under a compact license. If you have a license in the state in which you practice, but live in another state, you may be affected by the compact rules for multistate licensing even if you are not working under a compact license. If a nurse moves to a compact party state, the nurse must obtain a nursing license in that state. The nurse has 30 days to obtain the new license. Wherever the nurse’s legal residence is located is where the nurse is considered to be living. For example, a nurse has a Texas nursing license and is working in El Paso. The nurse moves to New Mexico, but continues to work in Texas. Because Texas and New Mexico are both compact license states, the nurse would have 30 days to obtain a New Mexico license. The nurse would then work in Texas under the nurse’s New Mexico multistate nursing license. There are many nurses that live and work near Texas borders and they need to be aware of these rules (this also applies to other compact states as well). The compact states are found at the National Council of State Boards of Nursing

I have an arrest in my background criminal history, what do I do?

Taralynn Mackay — Mon, 12 Apr 2010 20:46:42 +0000

There is not a simple answer to this question because there can be so many variables. The one sure thing is – DO NOT LIE TO THE BOARD!! Many nurses answer the Board’s application/renewal questions based on what they think a criminal background shows or what other employers/agencies/etc. have found when they ran criminal background checks. This is a dangerous decision because the Board can obtain criminal background information that other entities cannot seem to find. Do NOT assume that your background is clear because: someone told you that it would be (even if it was your attorney), that the criminal incidents occurred while you were a juvenile, that you completed deferred adjudication or pre-trial diversion or that your case has been expunged/sealed (unless you have the actual court paperwork showing the expunction/sealing of the records in your hand). Also, don’t think that the Board will not want to know about a particular incident because you think it has nothing to do with nursing practice–the BON wants to know about everything in your criminal background even if they decide not to take any action in response to the incident(s), the BON still wants to know. Remember that even if your non-disclosure to the Board is a mistake, you will still be found to have been deceptive to the Board and disciplinary action can be the result.

There are so many pitfalls associated with the questions posed on the Board’ s renewal/application paperwork, that it is prudent to speak to an attorney who has experience working with the Texas Board of Nursing before you complete the questions.

A Disciplinary Action or Agreed Order Is Forever

Taralynn Mackay — Mon, 01 Mar 2010 15:10:11 +0000

Disciplinary actions or Agreed Orders remain on a nurse’s license forever. When stipulations/restrictions are placed on the license, the nurse’s license is encumbered and those restrictions show up on the license when the license is verified (for example, the verification page will show “Warning with Stipulations” or “Remedial Education”). Once the stipulations/restrictions are completed and the Board sends a letter of completion to the nurse, the verification page will show clear; however, the disciplinary history remains. If asked if the nurse has ever been sanctioned or disciplined*, the nurse will have to answer “yes.”

Recently, I have received several inquiries regarding “setting aside board orders.” This cannot be done and this is misinformation. While criminal incidents can sometimes be expunged or sealed, administrative actions currently cannot be removed from one’s license. Once a disciplinary action occurs, the history remains even once the “probation” is complete.

* The Texas BON currently asks, “Has any licensing authority refused to issue you a license or ever revoked, annulled, cancelled, accepted surrender of, suspended, placed on probation, refused to renew a professional license, certificate or multi-state privilege held by you now or previously, or ever fined, censured, reprimanded or otherwise disciplined you?” to obtain information about past disciplinary actions.

Trial of Winkler County Nurse who reported Doctor to Texas Medical Board-Part 1

Taralynn Mackay — Wed, 10 Feb 2010 19:50:41 +0000

The trial began on February 8, 2010 with jury selection. Prior to the trial, one of the two nurses, Vicki Galle, originally indicted was dismissed from the case. Anne Mitchell’s trial involves felony charges for mis-using private, patient files to harass the County hospital’s doctor. On February 9, 2010, testimony began in the trial. The IT person testified and then Dr. Arafiles testified. The allegations of his poor care were discussed and Dr. Arafiles actually testified that he did not think there was a difference in the way diabetic patients healed compared to non-diabetics. It was also pointed out that the Sheriff is a friend of Dr. Arafiles and a business associate as well. For news articles see: CBS7 and the New York Times.
Personal take: The fact that these nurses were ever charged with anything is not justice. The actions taken by the Sheriff and the DA reek of “good ol’ boy” tactics. This case should be thrown out and the “officials” involved investigated for misuse of official power. The “system” only works if all involved believe in it–that it is fair and that the people in power have no personal agendas for their actions and are acting based on the best for the public. For a Sheriff and DA to go after whistle blowers is an affront to their job of protecting the public.

Trying to find a job while under a Board Order

Taralynn Mackay — Wed, 03 Feb 2010 16:30:09 +0000

I have heard from another nurse who is having a difficult time obtaining a job while under a Board Order. This is an ongoing problem especially in this economy. Some employers are refusing to hire a nurse no matter what the basis for the Order. Most nurses cannot afford to fight an Order in court or the facts of the nurse’s case are such that there is a definite violation and fighting in an administrative law court may not gain the nurse much. There are some solutions that can help:

1. Make sure you have malpractice insurance so that you have the financial resources to go to a hearing if you do not agree with the BON’s decision in your case.

2. When looking for a job, ask everyone you know for help in finding a job. It tends to be easier to get a job if someone is on the “inside” vouching for you and your skills. There are also employers out there that understand that most nurses with a Board Order are not “bad” nurses; that the nurse just made a mistake, or was overworked/understaffed, or had a disease relapse etc. These employers recognize that most nurses that have had a Board Order become extremely cautious nurses and become definite assets to the facility.

3. Make sure that you have an experienced and BON knowledgeable attorney assist you with your case before the BON so that you get the best outcome possible.

4. You must present a professional appearance (this includes your resume, your social networking site pages, and any application you complete).

5. Contact your state senators and representatives and ask them to make some changes for the next legislative session in 2011. Some areas that need changes: expand the corrective action provisions to apply to minor practice violations, allow non-public orders for mental health issues and substance abuse (these are diseases, so why allow the publicity?), allow deferred adjudications to be just that and not be considered a conviction by the BON, and change the language in the NPA from shall to may to allow the BON leeway to make determinations based on mitigating factors. As 2010 progresses, I will probably think of more…

I also have more info here: http://nursinglaw.blogspot.com/2009/07/how-to-explain-past-board-orders-to.html

New Nursing Jurisprudence Course Set

Taralynn Mackay — Mon, 04 Jan 2010 16:25:02 +0000

I just received the Texas Board of Nursing’s brochure for their upcoming Nursing Jurisprudence course. It looks like instead of having a course in August in Austin (which is what has happened the past few years), the Board is having the course for central Texas in San Antonio on February 25 or February 26, 2010. So, if you were going to wait for the Austin course to complete your stipulation, you should consider taking the upcoming San Antonio course. Likewise, the other typical dates have been changed as well, so plan accordingly.

The other posted dates for the Nursing Jurisprudence course by the Board (the formal title is “Texas Board of Nursing: Protecting Your Patients and Your Practice”, the course is only one day and is offered on two consecutive days):

June 23/24, 2010 – Arlington, Texas
August 18/19, 2010 – Houston, Texas