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May 13, 2012

Nothing Ventured Nothing Gained

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“Nothing Ventured, Nothing Gained.”   This proverb, dating back to Chaucer ( c. 1374), means that you cannot get anywhere unless you are willing to take a risk.  In my line of work defending professional licensees, this idiom holds true, excercising of course a great deal of measure, careful reflection, and purposeful scrutiny.  This proverb proved none more true than in relation to several such recent cases that we successfully defended before the Texas Board of Nursing.  Success in these cases is always measured by achieving the best possible outcome for the client.  

In one case, the client, a home health nurse, was found in an untenable situation dealing with a former home health agency that had employed this nurse and had operated, for some period of time, in a less than aboveboard manner.  The violations involved allegations that the client had failed to perform skilled nursing visits for several patients and that the client had submitted documentation of visits after another nurse had submitted documentation for the same visits.

Although the client and the firm raised valid explanation and points regarding the allegation of failure to perform skilled nursing visits which resulted in dismissal of these allegations, allegations remained that the client had submitted documentation after the fact that mirrored the nursing notes another nurse had already submitted.  Pursuant to the Board’s position, this was a willful “falsification” of documents.  In these types of cases, if a nurse’s truthfulness is in question, the nurse’s veracity, or lack thereof, is viewed rather skeptically by the Board. 

Because of the defenses raised, including a showing that the intent element in the falsification charge was absent, and mitigation shown, the Board proposed discipline short of revocation, but still proposed discipline restricting the client.  Because the client was a home health nurse, the Board’s standard protocol is to prohibit or ban a nurse from working as a home health nurse for a specified period of time.  Our attempts to persuade the Board staff during negotiations that this prohibition was not justified was met with little success largely because the Board staff generally operates as creatures of habit and would not relent from this stance.  Because the Board could, it chose to end negotiations and instead, filed public, formal charges in this matter, setting this for consideration before an administrative law judge at the State Office of Administrative Hearings ("SOAH").

The practice of limiting a nurse’s ability to perform home health is born out of the rationale that home health patients are the most vulnerable given the relatively structure free constraints of home health nursing and the complete reliance of patients upon the home health nurse.  Such rationale, which we do not disagree with, however, does not delineate between those violations involving home health nurses who either completely abandon and/or fail to visit patients from those violations involving home health nurses that may be in violation of lesser charges such documentation errors or other less serious concerns.

After weighing the risks, and after consultation with the firm, the client decided to reject the Board’s proposed disciplinary offer which included unworkable stipulations and restrictions, including the prohibition against home health.  The client, instead, elected to take this matter to a contested case hearing at the SOAH.  We recognized that a one size fits all stipulation that barred all home health nurses from practicing in the area of home health nurse if there were violations was not supportable based on the facts of our case, our interpretation of the Nursing Practice Act, and applicable Board rules, including mitigating factors.  The client accepted that fighting the Board would add costs, time, angst, and stress.  However, when measured against the prohibition against doing home health nursing, which would effectively end a career given the client’s age, tenure, and professional standing, the client agreed that this risk was worth the venture.  Not soon after engaging the Board in discovery, preparing witnesses, and preparing the matter for a contested hearing, we were able to resolve this matter without a hearing, but more importantly, with the client prevailing on central issues—the removal of several stipulations including being allowed to practice home health. 

Upon reflection, this case strikes at the very heart of the axiom that in order to gain something very important, one had to be willing to take a risk.  Not many clients would have been able to make the difficult decision to keep fighting for what was truly right.  At the time, taking the Board’s initial proposed disciplinary order may have been the easier choice.  However, in the end, rejecting that initial proposed order made all the difference.  Should you find yourself in a similar situation contemplating whether to accept a proposed Board disciplinary order, I would strongly urge you to contact counsel prior to deciding your next step.  At the very least, your visit with counsel will allow you to go over your options and determine whether there is a basis to reject the order or to negotiate more favorable terms.

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