Changes to the BON’s Rules on Unprofessional Conduct after Sunset Review

This is the fourth part in an ongoing series in which we review some of the changes to Board of Nursing (BON) rules after its recent Sunset review. On December 8, 2017, the Board of Nursing proposed changes to Rule §217.12 regarding Unprofessional Conduct. These rules became effective on February 25, 2018. Like its review of the BON’s Good Professional Character and Criminal History Licensure rules, the Sunset Commission found that the statutory provision in the Nursing Practice Act (NPA) related to unprofessional conduct and the associated Board rule defining the term included broad and subjective language that extended the Board’s reach beyond the practice of nursing. The BON described its own actions by saying it “eliminated tenuous connections and subjective language and requirements not specifically related to the practice of nursing from the rule.”

For example, in the purpose of the rule, the rule no longer states that “unprofessional or dishonorable” behaviors are targeted, but instead states that behaviors “in the practice of nursing” are under consideration. See the below excerpt, with the added language underlined:

The purpose of these rules is to identify [unprofessional or dishonorable] behaviors in the practice of nursing [of a nurse] which [the board believes] are likely to deceive, defraud, or injure clients or the public.

Likewise, subsection (2) ties unprofessional conduct to specific standards “required by federal or state law or regulation or by facility policy,” rather than the more vague “appropriate and recognized” standards.

(2) Failure of a chief administrative nurse to follow [appropriate and recognized] 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.

Unlike the other recent rule changes, the BON also expanded the scope of the Unprofessional Conduct rules in subsections (1)(B) and (4) by removing the requirement that such conduct be “careless or repetitive” on the belief that unprofessional conduct may be dangerous without being either “careless or repetitive”:

(1)(B) Failing [Carelessly or repeatedly failing] to conform to generally accepted nursing standards in applicable practice settings;

(4) Conduct [Careless or repetitive conduct] that may endanger a client’s life, health, or safety. [Actual injury to a client need not be established.]

If you would like to read more about these rule changes, you can find more information at the Sunset website.

Changes to the BON’s Rules on Licensure of Individuals with Criminal History after Sunset Review

This is the third part in an ongoing series in which we review some of the changes to Board of Nursing (BON) rules after its recent Sunset review. On December 8, 2017, the Board of Nursing proposed changes to Rule §213.28 regarding Good Professional Character. These rules became effective on February 25, 2018. In the issue of the Texas Register proposing these rules, the BON stated that the Sunset Commission found that, “although the Occupations Code Chapter 53 requires criminal conduct to directly relate to the duties and responsibilities of the regulated profession, the Board’s Guidelines, did not, in all cases, clearly consider the factors required under Chapter 53 or establish a direct relationship between the crimes and the practice of nursing.” Thus, “the Commission directed the Board to review its Guidelines to ensure that the Guidelines do not expand beyond those crimes that affect actual nursing practice. The Commission further stated that the Board’s rules should not include crimes indicating subjective traits like honesty, trustworthiness, or good professional character if those crimes have not occurred in relation to or reasonably correlate to a nurse’s job.”

In response, the BON made a number of changes to Rule 213.28. The BON’s Advisory Committee on Licensure, Eligibility and Discipline recommended removing the following crimes from the Guidelines: felony and misdemeanor bail jumping, misdemeanor burglary of vehicle, misdemeanor criminal trespass, misdemeanor deadly conduct, misdemeanor evading arrest, misdemeanor failure to identify, misdemeanor harassment, misdemeanor harboring runaway child, misdemeanor hindering apprehension or prosecution, felony and misdemeanor hindering secured creditors, and felony and misdemeanor unlawful carrying a weapon.

Additionally, in subsection (g), the BON recognizes that a sanction (or punishment) may not be necessary in response to every criminal activity: “Not all criminal conduct will result in a sanction. The Board recognizes that an individual may make a mistake, learn from it, and not repeat it in the nursing practice setting. As such, each case will be evaluated on its own merits to determine if a sanction is warranted.”

Finally, in subsection (j), the BON modified its rules governing “youthful indiscretions.” These rules govern some circumstances when a nurse has committed a crime, but need not be punished. There are two significant changes to this provision. First, the BON removed the requirement that the nurse be 22 years old or less at the time of the behavior, meaning that the BON now recognizes that older nurses can commit a “youthful indiscretion.” Second the BON added the requirement that there be “evidence of current ability to practice nursing in accordance with the NPA, Board rules, generally accepted standards of nursing, and other laws that affect nursing practice.” This is consistent with the overall rules changes in favor of looking to the nurse’s ability to currently comply with the NPA and Board rules, rather than subjective standards of conduct.

If you would like to read more about these rule changes, you can find more information at the Sunset Website.

 

 

Changes to the BON’s Rules on Good Professional Character after Sunset Review

This is the second part in an ongoing series reviewing some of the changes to Board of Nursing (BON) rules after its recent Sunset review. As we discussed previously, the BON was recently reviewed under the Sunset process, leading to several changes in its investigative and sanctioning processes. On December 8, 2017, the Board of Nursing proposed changes to Rule §213.27 regarding Good Professional Character. These rules became effective on February 25, 2018. The changes made were consistent with the Sunset Commission’s review that “the board’s use of subjective standards to link most any mistake, even off-the-clock conduct, to nursing can result in harsh sanctions for nurses.”

For example, subsection (a) was changed emphasize that good professional character was limited to the practice of nursing, rather than unrelated conduct, by including the underlined sentence:

Every individual who seeks to practice nursing in Texas must have good professional character related to the practice of nursing. This requirement includes all individuals seeking to obtain or retain a license or privilege to practice nursing in Texas.

Additionally, the BON added a provision to subsection (b) to clarify that “An individual who provides satisfactory evidence that he/she has not committed a violation of the Nursing Practice Act or a rule adopted by the Board is considered to have good professional character related to the practice of nursing.” This replaced the following subsection: “An individual must maintain good professional character to ensure that he/she is able to consistently act in the best interest of patients/clients and the public. In all cases, it is the individual’s burden to provide evidence of good professional character in order to obtain or retain licensure.” This language change ensures that good professional character is only considered in the context of the Nursing Practice Act (NPA) and the BON’s rules, not the “subjective standards” that concerned the Sunset Commission.

Likewise, subsection (c) was also changed to emphasize that sanctions are appropriate only in the context of violations of the NPA and BON rules and not subjective transgressions of good professional character:

A determination that an individual does not have good professional character related to the practice of nursing must be based on a showing by the Board of a clear and rational connection between a violation of the Nursing Practice Act or a rule adopted by the Board and the individual’s ability to effectively practice nursing.

Finally, the BON eliminated from subsection (c) a number of factors presumably not containing a “clear and rational connection between a violation” of the NPA or BON rules. The eliminated factors were

  • the individual’s age, education, experience, and behavioral history;
  • whether the individual is able to distinguish right from wrong;
  • whether the individual is able to think and act rationally;
  • whether the individual is able to keep promises and honor obligations;
  • whether the individual is accountable for his/her own behavior and/or accepts responsibility for his/her actions;/her own behavior and/or accepts responsibility for his/her actions; and
  • any other behaviors bearing on the individual’s honesty, accountability, trustworthiness, reliability, or integrity.

If you would like to read more about these rule changes, you can find more information at the Sunset website.

The Texas Board of Nursing and the Sunset Process

This is the first part of a series in which we will discuss some of the changes to Texas Board of Nursing (BON) rules after its recent Sunset review. The Sunset process in Texas is a process that entails a review of state agencies by the Texas Sunset Advisory Commission and Texas Legislature. Approximately 140 Texas state agencies are subject to this process. An agency can expect to undergo Sunset review roughly every 12 years. Sunset starts with the basic question of whether or not the agency’s functions continue to be needed and continues with an analysis of how any necessary functions are performed. Recently, the BON was Sunsetted, and the BON has started to implement changes to several of its processes based on the Sunset review. The Sunset review stated that the Board of Nursing “is a shining example of a health licensing agency with experienced, capable staff that perform well.” However, the Sunset review noticed many problems that affect nurses, especially those that FosterDanowsky represents: “the board’s use of subjective standards to link most any mistake, even off-the-clock conduct, to nursing can result in harsh sanctions for nurses.”

The Sunset review made two recommendations regarding licensure enforcement by the BON:

  • Recommendation 2.1—Limit the use of subjective standards for licensure decisions by requiring the board to demonstrate a connection between a nurse’s conduct and the practice of nursing.
  • Recommendation 2.2—Direct the board to review its criminal conduct guidelines to limit disciplinary action to crimes directly related to the practice of nursing.

Additionally, the legislature proposed two additional recommendations:

  1. Remove public disciplinary information—Require the board to remove a nurse’s disciplinary action from the board’s website and the public coordinated licensure information system if the nurse and action meet certain criteria.
  2. Administrative hearings—Prohibit the board from charging a nurse for the administrative costs of conducting an administrative hearing and changing an administrative law judge’s findings of fact or conclusions of law in issuing a disciplinary order.

Since the Sunset review, the BON has made changes to its rule and procedures that make the investigative and sanctioning process less harsh and punitive. Over the next several blog posts, FosterDanowsky will review some of these changes and discuss how these will impact nurses under investigation and facing sanctions. If you would like to read about the Sunset process, you can do so at the Sunset website.

CPNI Compliance Report Due at the FCC on March 1, 2018.

The annual report required from telecommunications carriers and VoIP providers has been reinstated at the FCC, and reports are due March 1, 2018.  The CPNI Reporting Requirement was eliminated by the FCC in its 2016 Privacy Order dated November 2, 2016.  However, that FCC order was repealed by the Congressional Review Act in April, 2017. Because the Congressional Review Act repealed the 2016 Privacy Order, the elimination of the CPNI reporting requirement was effectively repealed. As a result, the CPNI reporting requirement is reinstated, and companies should make this filing on March 1, 2018 and thereafter on an annual basis.  If you have any questions about the requirements to protect Customer Proprietary Network Information (CPNI) or how to make your report to the FCC, contact FosterDanowsky.