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.