Texas Nursing License Defense Attorneys
Nurses spend considerable time and expense obtaining their licenses and are vital to the medical community. They are responsible for most of the care patients receive and for most, nursing is a lifelong pursuit.
When criminal charges, a simple mistake, or allegations of professional misconduct threaten a nurse’s ability to care for people, the results can be life-shattering. Even false accusations or what you might consider an easily explainable situation can result in significant penalties from the Texas Board of Nursing (BON). If you believe your nursing license is in danger, it is time to consult our Texas nursing license defense attorneys.
At McDonald, Mackay, Porter & Weitz, LLP, we are passionate about defending nurses before the Texas BON, whether you are located locally or outside Texas. With extensive experience protecting the rights of nurses in matters before the Texas Board of Nursing, we are ready to stand by your side. Contact us today and schedule an initial consultation.
About the Texas Board of Nursing
Most nurses only think about the Texas Board of Nursing when they are obtaining a Texas nursing license or when they are renewing their license, but the Nursing Board is involved with more than just licensing. The Board is also charged with the regulation of nursing and as such, the Board is tasked with protecting the public by ensuring that every registered nurse (RN), licensed vocational nurse (LVN), and advanced practice registered nurse (APRN) in Texas can safely practice.
Many nurses believe the BON was established to support and advocate for nurses in Texas. However, the Board’s mission is to protect the public, which is accomplished by licensing only qualified individuals, ensuring competency, investigating complaints against nurses, and imposing disciplinary action on nurses who have violated the Nursing Practice Act (NPA) or the Board’s Rules and Regulations. There are various proceedings where a nurse needs assistance from a medical license defense attorney with experience before the BON:
- Nursing Incident Based Peer Review
- Criminal Incidents
- Texas Peer Assistance for Nurses (TPAPN)
- BON Complaint/Investigation
- BON Agreed Order
- BON Informal Settlement Conference
- BON Formal Charges
- State Office of Administrative Hearings (SOAH) Contested Case Proceeding
- SOAH Mediation
- Temporary Suspension of Nursing License Hearings
- Reinstatement of a Nursing License
- Request for modification/exception to an Agreed Order
Nurses and Peer Review
Peer Review for nurses has been unique to Texas for years and McDonald, Mackay, Porter & Weitz, LLP has been involved with and advocated for rule changes to increase the rights afforded to nurses. Peer Review is governed by the NPA and Board rules, which set due process rights.
Peer Review can take one of two forms: 1) Incident-based, which allows for the evaluation of a patient care incident, or 2) Safe Harbor, where a nurse requests peer review to determine if the duty to a patient is being violated by performing or not performing a certain act. In incident based peer review, the role of the peer review committee is to determine if licensure violations have occurred and if so, if the violations require reporting to the board or if remediation of the nurse is a minor incident. If a nurse believes their duty to a patient is in jeopardy of being violated, the nurse can request Safe Harbor peer review. The Board’s rules set out specific steps which must be undertaken in order to successfully complete the Safe Harbor peer review process.
The Board of Nursing has Peer Review rules, which set out in detail what is required for Incident Based Nursing Peer Review. If a nurse receives notification of a pending peer review meeting, the nurse should immediately review the Nurse Practice Act and the Board’s rules to ensure that the facility is following all the legal requirements. The laws regarding peer review can be confusing and it can be intimidating appearing by yourself in front of the peer review committee. Our nursing license defense attorneys assist nurses in preparing for peer review meetings to attending the actual peer review committee meeting with the nurse.
Safe Harbor Peer Review is different from Incident Based Peer Review. Safe Harbor provides protection for nurses who have been asked to engage in conduct, which the nurse believes, would violate the nurse’s duty to a patient. By enacting Safe Harbor, a nurse cannot be retaliated against for their actions pending a peer review determination. The nurse in question is not required to be reported to the Board and may not be disciplined by the Board pending the peer review. There are specific requirements to enact Safe Harbor, so a nurse must know the rules prior to enacting the safeguard.
Nurses with Criminal Issues
As one of the most ethical and trusted professions, nurses are held to a very high standard by the public and the Texas BON. Nurses can face difficulty obtaining a license or with their current license due to criminal convictions and even arrests. Analyzing the effect a criminal issue can have on a nursing license depends on several factors. It involves not only looking at the incident, but also any mitigating factors and its impact on the nurse’s ability to practice. The laws are different for the nursing board, meaning that a deferred adjudication is considered a conviction under the Texas BON’s law. Our nursing license defense attorneys can help navigate these confusing provisions.
Some nurses falsely believe that they can avoid reporting criminal issues because either it had nothing to do with nursing, it happened when they were a minor, or the charge resulted in deferred adjudication. However, the Board considers a failure to report criminal incidents to be an act of deception. Oftentimes, this can result in a harsher reaction than the actual criminal incident would have. The nursing license defense lawyers at McDonald, Mackay, Porter & Weitz, LLP can assist with how to disclose a criminal offense to the Texas BON and advise on what is required to provide.
If you have questions about what needs to be reported to the Nursing Board for a renewal of your license or are involved in a criminal case that will be reported, you should act quickly and discuss your obligations and options with a knowledgeable professional license defense attorney.
The Texas Peer Assistance Program for Nurses
The Texas Peer Assistance Program for Nurses (TPAPN) was created as an alternative to reporting a nurse to the Board of Nursing when the nurse has mental health issues or chemical dependency issues. A nurse can self-report to TPAPN, be referred by an employer, reported by an individual, or ordered to participate by the Nursing Board.
As a peer assistance program, TPAPN supports the nurse and allows them to gradually return to nursing, while in recovery or treatment. Unfortunately, sometimes being in the TPAPN program can cause difficulty for a nurse with their employment. This is often due to misunderstandings regarding TPAPN or misconception related to substance abuse or mental health in general.
Investigations, Hearings & the Disciplinary Process
The Texas Board of Nursing is considered to be one of the toughest of the state nursing boards. Disciplinary action has a long-lasting impact on a nurse’s career and reputation, so it is crucial for nurses to know the risks they are facing and how to properly handle the BON’s investigation and disciplinary process. Complaints and allegations of misconduct against nursing professionals can stem from various sources such as employers, patients, co-workers, peer-reviews, insurance providers, and law enforcement following a criminal issue.
The issues raised by the Texas Nursing Board can cover a variety of issues, from relatively minor to serious charges, including:
- Substance Abuse
- Failing to Provide the Proper Standard of Care
- Unethical/ Unprofessional Conduct
- Being Convicted or Charged with a Crime
- Inappropriate client relationships
- HIPAA Violations
- Failing to Document
- Mental Illness
While there are quite a few variations and combinations of things that can take place, we’ve provided a general summary of the stages involved in the disciplinary process. There are many aspects that hinge on specific facts and most nurses dealing with the Nursing Board should contact a qualified nursing license defense lawyer immediately to better understand the process and how to reach the best possible conclusion.
After a credible issue is raised with the Nursing Board, the disciplinary process starts when the nurse is notified of the investigation by certified mail, unless doing so would jeopardize the investigation. This letter informs the nurse they have an opportunity to respond to the allegations within a very short time period and that they can be represented by a nursing license defense attorney. Responding to a notice letter should not be taken lightly. Once sent, the response cannot be withdrawn. If you write an angry response, misstate facts, or admit to misconduct, this statement can come back to haunt you. Even a neutral response can be harmful to a nurse’s case if it does not properly address the allegations. The best advice is to have an experienced nursing license defense attorney assist you in drafting the response. Our attorneys know what needs to be included, what mitigating factors are needed, and the pitfalls to avoid.
Before the nurse is even notified of the complaint, an investigator will be assigned, who will request various records pertaining to the allegations, such as patient medical records, the nurse’s personnel records, witness statements, treatment records, urine screens, criminal records. Occasionally, the BON investigator will go in person to the nurse’s place of employment to investigate, but this is more likely to happen with Advanced Practice Nurses. After these materials are collected and reviewed along with the nurse’s response, a case review is performed and the investigator decides if a violation has occurred. The case may be dismissed, a proposed Agreed Order can be recommended, the nurse may be referred to the Texas Peer Assistance Program for Nurses [TPAPN], set for an Informal Conference, or referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings (SOAH).
At an Informal Conference, the allegations and evidence are presented to a group of Board staff members, who then ask questions of the nurse. The nurse and their nursing license attorney can provide any mitigating information for consideration. After deliberation, a recommendation is announced, which can range from a dismissal, a proposed Agreed Order or a referral to the Texas Peer Assistance Program for Nurses (TPAPN), or to have the case progress to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings (SOAH).
It is important to know that anything you say during the Informal Conference can be used against you in future proceedings. It is also vital for the nurse to communicate effectively to convey the intended information. Without prior experience appearing before the Nursing Board, this can be difficult and intimidating. That is why it is critical to have a skilled professional license defense attorney to help articulate your side of the story.
If the evidence shows a violation of the Nurse Practice Act (NPA) or the Nursing Board’s rules and regulations, the BON may propose a settlement offer, referred to as a proposed Agreed Order. This will list a description of the nurse’s work history, the allegations against the nurse, the sections of the law that have been violated and the restrictions/stipulations to be placed on the nurse’s license. The restrictions and duration of the order can vary. The types of restrictions may include educational courses, job restrictions (such as no agency, home health, or hospice employment), a fine, urine screens, employer notifications, supervision requirements, counseling requirements, etc.
The Agreed Order is a disciplinary order which is reported to the national data bank. The discipline is also entered onto the Board’s website and printed in the quarterly newsletter. Disciplinary orders can affect employment (current and future), other state licenses (current or future) and a nurse’s reputation. Because a disciplinary action can be devastating to a nurse, it is critically important that you seek a nursing license defense attorney with years of experience before the Texas Board of Nursing. Make sure you check the attorney’s reputation and do not just hire the first lawyer that you speak with.
If you are notified that Formal Charges have been filed against your license, you have a short time period to respond to the Texas BON before they begin default proceedings resulting in the revocation (loss) of your nursing license. The BON files Formal Charges for various reasons but the most common is when a nurse fails to respond to the Board’s request for a response to the complaint either by choice or because the nurse moved and the BON can no longer find the nurse. The filing of Formal Charges means your case is on track to a hearing and you need legal help.
If an Agreed Order cannot be reached, the case moves to the State Office of Administrative Hearings (SOAH). There may be an opportunity for formal mediation, which may avoid a hearing or the case may proceed as normal. While the process is similar to a malpractice trial or other civil litigation, the case is not held before a jury but an administrative law judge (ALJ). Like a civil trial, witnesses are called to testify, records are put into evidence, and legal arguments are presented. After the hearing, the ALJ issues a Proposal for Decision (PFD) that analyzes the evidence and recommends a decision to the Board for the BON’s ultimate approval. The Board either votes to adopt the PFD, adopt something different than the PFD, or dismisses the case, even if the PFD recommends action. Once a final determination is made (unless dismissal is recommended) the nurse will typically be subjected to discipline, which can include training or education requirements, restrictions on their ability to work as a nurse, a temporary suspension, or the permanent revocation of their nursing license.
Reinstatement of Nursing License
After one year of a voluntary surrender or revocation of a nursing license, you can request its reinstatement. Reinstatement of a license is not automatic and you are required to prove various mitigating factors in order to prove it is in the public’s best interest for you to have your nursing license reactivated. Once the license is reinstated, there will be various stipulations on the license, including educational courses, job restrictions (such as no agency, home health, or hospice employment), a fine, urine screens, employer notifications, supervision requirements, counseling requirements, etc. Our Texas nursing license defense attorneys can help navigate this confusing process by guiding you through the reinstatement proceeding.
Request for modification/exception to existing Agreed Board Order
A nurse may be able to request an exception to an existing Board Agreed Order. Our nursing license attorneys can evaluate your current Order and help you determine areas which can be eligible for modification.
Reporting to Other Boards & States
When a nurse either accepts a final Agreed Order or some other penalty, the Texas Board of Nursing will also notify the National Council of State Boards of the outcome, so the information is entered into their databank (thus informing all other states where the nurse may be licensed). All disciplinary actions are public information and become a permanent part of the nurse’s license. This means that even when the stipulations are completed and the nurse’s license becomes “clear,” the nurse will always have a disciplinary action record unless the action is approved for deferred discipline.
Our Texas Nursing License Defense Attorneys Can Help
Nurses sometimes believe the Nursing Board will be on their side in a complaint. Legally, the BON is concerned with public safety and welfare and not the defense of the nurse. The career you dedicated so much of your life to may not matter to the Board, depending on the allegation. Additionally, Nursing Board operations are rarely straightforward and their procedures are not generally structured in a nurse’s favor. It often takes a professional license defense lawyer with keen insight into how state regulatory agencies approach these matters to cut through the bureaucracy and properly tell your side or reduce the impact to your license.
At McDonald, Mackay, Porter & Weitz, LLP, our Texas nursing license defense lawyers know nurses face long hours, demanding patients, and stand at the front lines of the medical field. A nurse’s job is hard and even the finest RN, LVN, or APRN can make mistakes or have legal troubles outside the scope of their jobs. The risks and penalties for nurses are a very real concern, but that does not mean you need to handle them all on your own. That’s why we strive to protect the licensed professionals that protect and care for so many others.
Whether you are having trouble obtaining a nursing license, have a practice error, need help with a renewal or have other license issues, we will review every detail and find a path forward. From drafting your initial response to standing with you during any hearing, you can rely on our personalized attention and a strategy uniquely designed to preserve your Texas nursing license.
To schedule an initial consultation with a dedicated Texas professional license defense lawyer, contact us today.