Board of Nursing Attorney and Nurse Practitioner Attorney

22 Tex Admin Code 217.11  “The Texas Board of Nursing (BON) is responsible for regulating the practice of nursing within the State of Texas for Vocational Nurses, Registered Nurses, and Registered Nurses with advanced practice authorization. The standards of practice establish a minimum acceptable level of nursing practice in any setting for each level of nursing licensure or advanced practice authorization. Failure to meet these standards may result in action against the nurse’s license even if no actual patient injury resulted.”   (emphasis added).  

The emphasized language highlights the following:

            1.  It is negligence for a nurse or a nurse employer to conclude: “I only need to know whether I am/the nurse is licensed.” The BON  “standards of practice” are standards used by the state licensing BON alone – for their purposes; they are NOT the legal standard for nurse clinical practice.

The legal standard for clinical practice is the evidence based standard, the standard based on valid peer reviewed research used by reasonable prudent practitioners for a patient with the same or similar condition at the time the events at issue occurred

            2.  The Advanced Practice Nurse must comply with the Board of Nursing for Licensure requirements – AND, the “evidence based standards of practice for a  physician who is treating a patient with the same or similar condition(s).

            3.   An employer of nurses must not only establish procedures for regular credentialing of all licensed employees but take reasonable prudent measures to ensure the employee’s practice comports with “evidence based standards of practice. 

            4.  The BON standard for judging a licensee is determined by members of the Board at their own discretion. 

The primary basis for the BON to allege a violation is a complaint.  By law, the Board must notify the nurse who is the subject of a complaint and identify the regulation that was allegedly violated.  The source of the complaint allegation remains anonymous.   However, that person/entity is given a copy of the results of the investigation.   If a the final result of the investigation and process of resolution is that the reported nurse committed a violation, the name of the nurse and final Board Order is made public. 

The BON has subpoena power and uses it to obtain “relevant” information for its investigation.  The defendant may request documents from the Board and if represented by an attorney may also request subpoena power by demonstrating its relevance to the Board.  If the nurse is represented by an attorney, she is offered certain rights and bargaining power as to submission of evidence and law that allows a defense, including evidence of fact and expert witness to establish that she met the highest evidence based standard of practice – i.e. exceeded the minimum BON standard.

 Unless the nurses’ conduct meets one of the specific regulatory exceptions, the Texas

Board gives deference to the complainant party, and assigns penalties, which publically appears on the internet nurse license search, and is permanent on the national nurse data base which is accessed by health care provider employers.  The Texas BON is notoriously “tough” on nurses, and not forgiving for a nurse who ignores a Board notice of alleged misconduct.  However, a nurse may reject the BON decision and choose to file suit in a district court administrative proceeding, at the nurse’s expense.   

Nurse misconduct is increasingly cited, even as nurse shortage increases.  Board rules, regulations and notices should be reviewed frequently for changes.  Employers are increasingly responsible for heeding Board requirements.  Health care facilities and organizationsthat employ nurses must establish supervisory oversight responsibility, policies and procedure, perform nurse peer review, identify, investigate “incidents” for reports to the BON.     As example, 217.12 – Unprofessional Conduct in relevant part states:

The following unprofessional conduct rules are intended to protect clients and the public from incompetent, unethical, or illegal conduct of licensees. The purpose of these rules is to identify behaviors in the practice of nursing that are likely to deceive, defraud, or injure clients or the public. Actual injury to a client need not be established. These behaviors include but are not limited to:

            (1) Unsafe Practice–actions or conduct including, but not limited to:

(A) Carelessly failing, repeatedly failing, or exhibiting an inability to perform vocational, registered, or advanced practice nursing in conformity with the standards of minimum acceptable level of nursing practice set out in § 217.11 of this chapter;

(B) Failing to conform to generally accepted nursing standards in applicable practice settings [evidence based];

                        (C) Improper management of client records;

(D)  Delegating or assigning nursing functions or a prescribed health function when the delegation or assignment could reasonably be expected to result in unsafe or ineffective client care;

(F) Failing to supervise the performance of tasks by any individual working pursuant to the nurse’s delegation or assignment; or

(2) Failure of a chief administrative nurse to follow standards and guidelines required by federal or state law or regulation or by facility policy in providing oversight of the nursing organization and nursing services for which the nurse is administratively responsible.

The Board of Nursing collaborates with health care entities and agencies to integrate Board authority so that its authority cannot be ignored.  As examples, see Board Position Statements that impose requirements on employers.