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2 posts from October 2017

Oct 23, 2017

Important Information Regarding Senate Bill 202 and the Texas Medical Board’s Recent Fingerprint Background Check of its Licensees.

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In the fall of 2015, Senate Bill 202 transferred certain licensing programs that were formerly administered by the Texas Department of State Health Services (DSHS) to the Texas Medical Board (TMB).  These programs included:  respiratory care practitioners, medical radiologic technologists, medical physicists, and perfusionists.   As to be expected, there was a transition period involved with this transfer, including development of new rules for each of these programs by the TMB.  Due to this transition, not all of the requirements under the bill were realized promptly.  One of those requirements was a fingerprint background check of these licensees by the TMB.  Beginning in January 2016, however, the TMB began scheduling and processing the registration/renewal of existing licenses/permits and started to perform a fingerprint background check; a check that was required to be completed prior to registration/renewal.   As a result, many licensees under these respective programs who had been practicing for a significant period of time while under the auspices of the DSHS, and who possessed criminal histories, but had never before been alerted to that fact by the predecessor agency (TDHS), began receiving disciplinary action notices from the TMB alerting them that the TMB had initiated a complaint and investigation against them in regard to their criminal histories.  To many, including the firm’s clients, this was unsettling.  Thus, many of these licensees who had been practicing and who had long forgotten their criminal histories were now forced to revisit events in their past with the serious realization that it could impact their ability to practice.  

Because these cases oftentimes deal with the application of new licensing rules, some of which have only been recently promulgated by the TMB as it relates to these license programs, a careful review of these rules must be analyzed to determine applicability (or, as the case may be, the potential for retroactive application or lack thereof) and the strength or weakness of the TMB’s complaint if pursued based on a licensee's criminal history.  Setting aside the legal arguments that may exist, which is important, licensees should realize that the lapsed time period from the criminal event to today may play a significant role in determining outcomes in a Board complaint and that this important consideration and the factors that may be present in that licensees case would need to be carefully reviewed and, where possible, highlighted in a manner that would best advance the licensee’s position and case in the TMB investigation, especially in an Informal Settlement Conference setting.  One such case handled by the firm for an affected licensee saw that the TMB had opened up a complaint and investigation for criminal conduct that occurred over two decades ago, a time period that predated this individual’s obtainment of a license.  These cases, like many that the firm has seen, are not atypical and they are reflective of the current attempt by the TMB to ensure that those it licenses can viably remain licensed.  When a situation like this occurs, it is best to contact experienced counsel for assistance.

Oct 19, 2017

Texas Board of Nursing Rule 217.11(1)(A) and the Authority to Discipline a Nurse That Extends Beyond the Reaches of the Nursing Practice Act and Board Rules; Understanding This Rule in Defending Against Board Complaints

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Can the Texas Board of Nursing discipline a nurse where the nurse has complied with a Board rule related to the discharge of duties concerning the safeguarding and handling of a patient who reported being a victim of sexual abuse, but fails to make a reporting of the alleged abuse in the prescribed manner and method as required not by the Board, but by another licensing agency, the Texas Department of Aging and Disability (TDADS).  In this case, pursuant to a TDADS rule, a nurse is required to report the abuse with respect to when it must be done and the manner and method (i.e., telephone call to a hotline and written report) in which it must be done.   The short answer is that the Board may pursue such a case.  However, the more important question is whether the Board will be able to successfully pursue such a case resulting in disciplinary action against a nurse.  The answer, discussed herein, lies in the correct interpretation of TDADS’s rule and the legal defenses that must be raised and pursued by the nurse. 

It may come as a surprise to many who believe that the Board can only discipline nurses for violations of the Nursing Practice Act and/or Board rules, but the Board’s authority, pursuant to the Act and Board rules, is more expansive.  Although it is true that the basis for pursing disciplinary action must be grounded in the Act and/or Board rules, the Board may occasionally rely upon another statutory or rule-based scheme of another agency or entity to impose discipline against nurses.  When one realizes this to be the case this forces nurses to realize the magnitude of the authority of the Board to pursue disciplinary against a nurse for violations of all federal, state, local laws, rules or regulations affecting the nurse’s area of practice. 

In a recent case involving the firm’s defense of a registered nurse, the nurse, who was alerted to an alleged case of  reported abuse by a patient, followed the Board’s rule regarding the safeguarding of a patient with respect to ensuring the safety of the patient and alerting the nurse’s superiors.  The nurse then personally conducted an investigation into the claim of abuse.  However, and per the Board complaint, the Board alleged that the nurse failed to comply with another agency’s rule; a rule in effect because the nurse was employed at a place that brought into consideration another licensing agency’s authority, making that agency’s rule equally as applicable.  The authority for the Board to do this lies in a little know (but powerful) generic, catch-all rule, Board rule 217.11(1).  Board rule 217.11(1) provides: 

All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (A) Know and conform to the Texas Nursing Practice Act and the board’s rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse’s current area of nursing practice.”  (Emphasis added).

The firm was able to successfully resolve this case in our client’s favor (i.e., no disciplinary action entered).  The penultimate issue was whether the nurse, who worked in a long-term nursing home or nursing facility, could be disciplined for failure to make a timely reporting of sexual abuse claimed by a patient perpetrated by another patient as required under a TDADS rule.  In this case, the nurse learned of the sexual abuse claim and, on the same day, immediately took action by informing the nurse’s supervisor and personally visiting and speaking with the patient alleged to have suffered abuse and interviewing all affected individuals, including multiple interviews with colleagues and staff that were working while this purported incident occurred.   The nurse had taken all appropriate measures under the Board’s rules related to abuse to ensure the patient’s safety, complying with Board rule 217.12(6)(C).  Board Rule 217.12(6)(C) makes it a violation for a nurse to:

“[cause] or [permit] physical, emotional or verbal abuse or injury or neglect to the client or the public, or failing to report same to the employer, appropriate legal authority and/or licensing board.”  The nurse later timely made a written report to TDADS regarding the incident.  Based on the facts of this case, the nurse complied with Board rule 217.12(6)(C) (Emphasis added).

In this case no actual abuse had occurred.  Despite reporting the event to the nurse’s employer and later making a written report to TDADS, the Board brought a disciplinary case against the nurse claiming that the reporting to TDAS was not timely nor was it in the manner prescribed by TDADS rule.  In this instance, TDADS’ rule required a telephone reporting to TDADS along with a written report made within five days of the telephone reporting.  In this case, the applicable TDADS rule 19.602(a), (b)(1) provides:

(a) A facility owner or employee who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person must report the abuse, neglect, or exploitation.

(b) Reports described in subsection (a) of this section must be made to TDADS at 1-800-458-9858 and written reports must be sent to: TDADS Consumer Rights and Services, P.O. Box 14930, Austin, Texas 78714-9030.

(1) The person reporting must make the telephone report immediately on learning of the alleged abuse, neglect, exploitation, conduct, or conditions. The person must send a written report to TDADS Consumer Rights and Services within five days after the telephone report.

Ultimately, this case turned on the proper interpretation of when the duty to make the reporting (both as to the telephone reporting and paper reporting) attached.  This is due to the language in the provision providing for “cause to believe.”  We argued that although the rule does not expressly provide that the nurse, the facility owner, or any other employee is to make a determination that abuse occurred before making a report, the rule provides in its subsection (a) that “[a] facility owner or employee who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person must report the abuse, neglect, or exploitation.”  40 TEX. ADMIN. CODE § 19.602(a) (Vernon Supp. 2013).  Based on this language, we further argued that the rule presupposes a requirement that there must be some determination made by someone at a facility that things are awry before a report to TDADS is made.  That is, someone must decide that there is abuse. Second, we argued that someone must decide that the abuse is or may adversely affect a patient’s physical or mental health or welfare.  We acknowledged that these decisions must be made quickly because if a situation is indeed abuse, it must be reported immediately.  But, as this rule is written, the facility or any other like it must conduct some sort of investigation into an incident of a sexual (or physical) nature before deciding if it is a reportable incident.  We argued that that if the requirement of this rule is to immediately report abuse of any kind, as urged by the Staff  and irrespective of whether the incident actually constitutes sexual abuse in this instance then the rule should expressly provide so. The rule, in our reading, does not.  Because the rule does not, no disciplinary action can be imposed against the nurse.  In our estimation, to follow the Staff’s position logically, any reporting by a resident of an incident, and irrespective of whether it may be abuse or not, must be reported immediately by telephone (i.e., when a person learns of alleged conduct) no matter how innocuous, outlandish, or unbelievable in nature it may be.   Contrary to this position, the Board staff took the position that all nurses should report any claim, whether it may or may not be sexual abuse, and report it immediately by telephone before (or perhaps, irrespective of) the nurse, the facility, and/or the remainder of the facility staff conducts an internal investigation into whether the incident was really abuse.  In short, the Board staff argued that the duty to report attaches when the nurse first learns of abuse.

Because the Board, without much surprise, was convinced in its position, the informal settlement process failed to result in a dismissal of this case.  In my experience, making legal arguments such as these oftentimes is an exercise in futility as the Board Staff rarely budges when it believes that it is correct on the interpretation of the law.  As such, this matter was set for a contested case hearing at the State Office of Administrative Hearings.  Once set, the firm briefed the issues in a motion for summary disposition for an administrative law judge.  In light of this motion, and before consideration of these issues were addressed by the administrative law judge, the Board extended settlement, effectively mooting this matter which resulted in no disciplinary action taken against the nurse.

The above is an important reminder that all nurses must pay particular attention to all laws and regulations affecting their practice and not just those found in the Nursing Practice Act or the Board’s rules.  In this case, the Board staff was not hesitant to pursue a disciplinary case more aggressively, as it did initially in this matter, based on a theory that a nurse is also responsibility for all federal, state, or local laws, rules or regulations affecting the nurse’s current area of nursing practice; doing so where it saw fit to interpret and apply another provision belonging to a separate regulatory agency.  Understanding and recognizing that the Board may be able to pursue disciplinary action under this generic rule which brings into account all laws and regulations affecting a nurse’s practice would best serve all nurses who practice and are facing a Board complaint under this provision.