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2 posts from July 2017

Jul 20, 2017

A Closer Look at Misconduct Under the Texas Board of Nursing’s Rule 217.12(6)(H), Providing Information Which was False, Deceptive, or Misleading in Connection With the Practice of Nursing.

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If you are a nurse (or any other licensee for that matter) who has renewed your license with the Texas Board of Nursing (or your respective licensing agency), you have no doubt come across questions that the Board asks of its licensees as part of the licensure renewal process.  Although intuitive, it bears repeating that careful attention should be paid to these questions, answering them and answering them honestly.  Perhaps there is no other form question that I get calls about or in which I have assisted in defending than to the following question, or a variation of this question:

“[h]ave you, within the past 24 months or since your last renewal, for any criminal offense, including those pending appeal: 

  1. been arrested and have any pending criminal charges?
  2. been convicted of a misdemeanor?
  3. been convicted of a felony?
  4. pled nolo contendere, no contest, or guilty?
  5. received deferred adjudication?
  6. been placed on community supervision or court-ordered probation, whether or not adjudicated guilty?
  7. been sentenced to serve jail, prison time, or court-ordered confinement?
  8. been granted pre-trial diversion?
  9. been cited or charged with any violation of the law?
  10. been subject of a court-martial; Article 15 violation; or received any form of military judgment/ punishment/action? (You may only exclude Class C misdemeanor traffic violations or offenses previously disclosed to the Texas Board of Nursing on an initial licensure or renewal application.)

This question, more so than any other, gives rise to a great deal of consternation and angst among licensees, especially in light of a Board rule that makes it misconduct for a nurse to provide information which was false, deceptive, or misleading in connection with the practice of nursing.  See Board Rule 217.12(6)(H).  Those with criminal histories (including arrests) who previously answered this question in the negative and submitted same to the Board should most likely expect a Board complaint to ensue at some point; the basis of which alleging misconduct for failing to provide information to the Board which it considers false, deceptive, or misleading in connection with the practice of nursing in addition to the underlying criminal history which may also subject the licensee to discipline.   

If this occurs, it is highly advisable to contact an experienced administrative law attorney as the determination on whether answering no to this question when it should have been yes (which forms the basis for the disciplinary action) will turn on whether the licensee knowingly and intentionally misrepresented true facts to the Board at the time the licensee completed the renewal form and answered the question.  Because this is the standard that must be utilized, each case will turn on that case’s facts.  In other words, the mental impression and/or understanding of the licensee at the time he or she completed this question.  In handling previous cases, and even though the latest version of this question qualifies the relevant period of time to “within the past 24 months or since your last renewal,” I have seen the Board produce initial applications for licensure or renewal forms submitted by its licensees from many years past; in some instances several decades in the past claiming that the answer(s) provided were false, deceptive, or misleading.  Of course, any underlying conduct that may be actionable such as criminal history must also be further explored and analyzed.

Jul 17, 2017

Recent Changes to Internal Procedures at the TSBDE Involving the Disciplinary Process Makes Hiring Experienced Counsel Even More Important.

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Regulating licensees is a difficult and often thankless task.  Having served in that capacity for different licensing agencies in the role of head counsel, it is not surprising that I tend to agree with this notion.   However, when an agency overacts and implements policies that appear to tilt the process in its favor in the disciplinary process against its licensees, the notion of protecting the public isn’t served.  Some licensing agencies have a long history of turmoil in terms of carrying out its mission, finding great difficulty in attaining the balance of protecting the public juxtaposed to not unduly punishing its licensees or imposing inconsistent disciplinary measures.  The Texas State Board of Dental Examiners (TSBDE) is no different from most other agencies in this regard as it strives to carry out its mission, ensuring the protection of Texas citizens relative to the licensees it licenses.  However, the TSBDE has been plagued with continuing difficulty in applying consistency in its disciplinary methods.  In a report from the Texas Sunset Commission in 2016, a governmental agency who reviews the conduct of administrative agencies to determine if those agencies are operating efficiently and as their mission requires, the findings of the Sunset Commission were not particularly favorable for the TSBDE.  (The report and the TSBDE’s response to the report can be found here).

One of the deficiencies identified by the Sunset Commission was that the TSBDE clarify the use and role of Board members at informal settlement conferences.  The Sunset Commission recommended that the TSBDE clarify the use and role of Board members at informal settlement conferences, limiting the scope of consideration that a board member has in his or her role at an informal settlement conference.  Not surprisingly, the TSBDE disagreed with this recommendation of limiting the scope of consideration that a board member has at an informal settlement conference.  

Having attended countless scores of these informal settlement conferences involving the TSBDE, both as its General Counsel and now in private practice representing dentists, a recent change in the internal policy of the TSBDE makes the necessity of counsel for licensees at these conferences all the more important.  This change, it appears, allows the TSBDE board member at the informal settlement conference, despite having its own in-house counsel attend and participate in the proceeding, to deliberate by himself or herself and without the assistance of its own legal counsel present during the deliberations.  That is to say, only the board member can propose how that particular complaint or investigation should be resolved.  More often than not, the deliberation process critically involves the determination as to what disciplinary action, if any, will be proposed or recommended.  This deliberation, which was previously done in a round circle format amongst the board member and the staff, including its legal counsel, is now done without the assistance of the TSBDE’s legal counsel during these deliberations.  More striking, once the licensee (and his or her attorney) has presented their matter and urged their position(s), they are dismissed for the board member to deliberate.  As part of the dismissal process, the TSBDE's own counsel is also excused from the room and not allowed to deliberate on what course of action, if any, should be pursued.  This is a substantial departure from previous policy and practice in which the in-house counsel and staff continued to be present during these deliberations with the board member, counseling and discussing with the board member through difficult issues regarding a case that is often embodied in these types of cases.  It stands to reason that since the TSBDE’s counsel, who understands burdens of proof, and who would be the individual to take the proceeding to a contested case hearing at the State Office of Administrative Hearings, would be in a position to best understand whether positions or arguments advanced by the TSBDE (and/or the opposition) could withstand scrutiny or challenge at the SOAH level.  Because  of this, the previous practice of the TSBDE (and most other licensing boards) is to allow deliberation and consideration with input from its legal counsel during deliberations as to whether that case should receive a recommendation of discipline.   As it stands, the deliberations are now made solely by the board member at the informal settlement conference without any input from its legal counsel.  As such, and presuming that the recommendations were inconsistent or rejected because they had no basis, negotiations on these points, among other things, between the parties after the informal settlement conference just became much more difficult.  If anything, this underscores the importance of hiring knowledgeable counsel familiar with this agency’s process in order to best determine the course of action in the face of an internal policy change that appears to be heavy-handed.