COLLATERAL DAMAGE CAUSED BY TEXAS BOARD OF NURSING
The number of nurses reported to the Texas Board of Nursing has increased to over 1,600 a year. Of those more than 1,400 are subjected to the long investigations that bring about destruction to the nurse’s career, and reputation. Nurses report losing their homes, cars, medical insurance for their families and so much more as the months and even years drag on stemming from an often-untrue complaint. Even if the nurse is found innocent, or the violation a first-time, non-egregious error, the collateral damage to an investigation is extensive.
A review of disciplinary actions posted on the Texas Board of Nursing web site reveals a significant number of complaints are made by an employer. Nurses report complaints being alleged to their licensing board as an act of retaliation from facilities because the nurse spoke out about patient safety concerns or the nurse was caught in the fall out of unsafe conditions. Hospitals benefit from reporting nurses to the board. Scapegoating a nurse allows the hospital to avoid accountability for a bad patient outcome that may have been related more to system failures. Hospitals and facilities, therefore, protect their reputation and avoid addressing unsafe conditions that threaten patient’s lives. And the cult of silence continues.
The landscape of healthcare has changed with the widespread cooperate takeover of hospitals and health care systems. Healthcare is no longer patient focused but instead the focus is profit. A common cry from nurses is that they can no longer take care of their patients in a safe and thorough way. Nurses report such factors affecting their ability to provide safe care as critically low staffing, lack of experienced nurses, and cooperate pressures to meet metrics. Metrics include such as incentive to decrease patient length of stays, which results in rushing patient care to expedite discharge. This limits the number of patients receiving hospital care after their insurance coverage for the days allowed has been met. The goal for the hospital is to increase the number of patients seen and treated. Increased numbers equal increased profit. This change in healthcare has resulted in preventable medical error now being the third leading cause of death.
Preventable medical error is most often the result of administrative decisions, lack of resources and system failures. It is the bedside nurse however, that is made to pay the price of such conditions that places the nurse in no win situations and the nurse finds themselves reported to the board when things go wrong.
Nurses find themselves chronically being asked to assume care of patients in conditions that are unsafe and impossible to manage. Patients are living longer and therefore present to hospitals with severe disease and increased acuity. Patients have an increase in complexity of their nursing needs. Patients that at one time would be admitted to a higher level of care, such as the intensive care unit are routinely admitted to medical surgical or intermediate areas. These units cannot provide the level of care needed by sicker, complex patients and staffing is not adjusted to meet the increased demand. In the intensive care unit, a patient would be cared for by a nurse who has no other patients assigned to her/him. On a medical surgical unit, the nurse find themselves assigned complex, often severely ill patients as well as four to six other patients thereby, unable to provide the level of care needed by any of the patients.
A 2014 study in Policy, Politics & Nursing Practice revealed that an estimated 17.5 percent of newly-licensed RNs leave their first nursing job within the first year, and one in three (33.5%) leave within two years. Recent studies show that an increasing number of new graduate nurses intend to leave the bedside within two years. Streamline Verify published statistics in March 2016 that 43 percent of new graduate nurses leave their hospital positions within the first three years. An article in Minority Nurse reports the reason is unbearable working conditions:
- In fact, many nurses run from the bedside as soon as possible because conditions are so deplorable. They look for jobs in advanced practice, teaching, and other non-bedside related areas of nursing, while the number of nurses taking care of the most critical patients continues to dwindle.
Further, worsening the national shortage of nurse is that older nurses are retiring and fleeing from the patient bedside. A reason experienced nurses give for leaving the bedside is the disproportionate numbers of continuously cycling new graduates which overburdens experienced nurses and threatens patient safety. In such unsafe conditions error and bad patient outcomes are predictable. And it will be the bedside nurse who finds herself held responsible when bad things happen. Even though the system failed the nurse and hospital nurse administrators knowingly permitted unsafe conditions, it will be the bedside nurse who is reported and investigated by the Texas Board of Nursing. Though the board historically fails to hold nurse leaders accountable who contributed to an environment where patients were at risk, Texas Administrative Code (TAC) states that Chief Nursing Officers are to be held accountable in RULE §217.12:
- (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.
It bears mentioning that the improving patient safety could be greatly improved if the Board of Nursing did recognize the root causes of errors and hold nurse leaders also accountable to the nurse practice act as in the board’s own RULE §217.12. In only going after the bedside nurse and ignoring the root causes of bad outcomes the board of nursing is not meeting its mission to protect the public.
The Texas Board of Nursing Sunset final report was published in 2017 and is available at https://www.sunset.texas.gov/reviews-and-reports/agencies/texas-board-nursing-bon The Sunset Commission found that the board uses subjective standards to evaluate nurses conduct and assign harsh discipline to nurses who are investigated for mistakes, or even lawful, off the clock behavior. The Sunset Commission report states:
- ….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. House Bill 2950 limits these subjective standards and requires the board to demonstrate a connection between a nurse’s conduct and the practice of nursing. The bill also continues an exception to licensure requirements for graduates of Excelsior College’s nursing program and creates a process similar to instate programs to improve the program or expire the exception if certain standards are not met.
Texas Right To Know (TRTK) is actively lobbying the Texas Legislature regarding the reported abuses of the Texas Board of Nursing and the need for oversight of this agency. They are proposing a bill for the creation of an office of the Ombudsmen and other needed changes such as ensuring nurses are offered due process when subjected to an action against their license. The Unites States Ombudsman Association provides the history of Ombudsman on their web site at http://www.usombudsman.org/public-sector-ombudsman/. The Unites States Ombudsman Association defines an Ombudsman as: a public official to be appointed by the legislature to receive and investigate citizen complaints against administrative acts of Texas Board of Nursing.
TRTK have been working with and interviewing numerous nurses, attorneys and members of the public who have reported egregious actions of the Texas Board of Nursing. Reports include but are not limited to subjecting the nurse to excessively long investigation times, and long delays in docketing the nurse for a State Office of Administrative Hearing (SOAH) so that they may have the opportunity to present their defense to an unbiased Judge. These delays often amount to years and leave the nurse in limbo unable to practice due to the stigma of being under investigation. Most egregiously the board denies the nurse the right to discovery during the long delays in applying to SOAH to set a hearing. Many nurses report that they are not provided discovery, despite multiple requests, until just before their hearing. This denies the nurse the opportunity to review the evidence and prepare a thoughtful defense or to even know what she/he are being accused of. The board of nursing often goes on a fishing expedition researching the nurses past back to the age of eighteen looking for anything to pile on. Social media and even dating sites are reviewed though this information has nothing to do with the stated charges. The board seeks to impugn the character of the nurse as part of their prosecution. Other egregious actions of the BON are: withholding or prohibiting evidence supporting the nurse’s innocence, relying on hearsay, relying upon opinions made by retained experts that the nurse is denied the opportunity to rebut, offering witnesses immunity, utilizing biased experts who are advocates for the BON, filing formal charges before the nurse has been docketed for SOAH, denial of an informal hearing or settlement hearing pre-SOAH, violating their own board rules, and violating the constitutional rights of nurses.
Further, the Board of Nursing is permitted to disregard the proposed final decision of the SOAH Administrative Law Judge. The Board may ratify the Judge’s decision, found in the nurse’s favor, and still proceed with disciplinary actions. The opportunity to seek an unbiased decision at SOAH becomes a moot point and comes at a huge financial cost for the Nurse. Many innocent nurses simply concede, accepting board sanctions because they are left unable to afford the cost of a SOAH trial. Nurses are forced into financial ruin because the disciplinary process goes on for years. Nurses often cannot find gainful employment because of the stigma of being investigated, or because the board has reported them to federal provider databases even though the nurse’s charges remain non-adjudicated. Tragically, even if the nurse’s charges are ultimately dismissed their reputation has been destroyed and their career leveled. Nurse’s and their families suffer enormous loss and undue stress that impacts them financially, emotionally and physically. Though the board does have a duty to protect the public for from unfit nurses, they do not have to do so in a way that is cruel, over such extended periods of time.
Please share this page with your nurse peers, family and contacts. If you know any nurse who has undergone a Texas Board of Nursing investigation, please have them contact us and share their story. Nurse’s real-life stories are needed by Legislators to successfully pass amendments to the current Texas Nurse Practice act (NPA) and bring about a fair and just disciplinary process. All information will be kept confidential unless permission is received otherwise. It is critical that we have involvement from Texas nurses and the public to defend the changes needed to the NPA to ensure due process of law.