• Darlene Nelson

Even off Duty your License May Be At Risk.

Three years ago, while on his computer at home one evening, professor Rodney Hicks clicked the wrong button.

After digitally recording a lesson for his graduate nursing students at Texas Tech University, he accidentally reduced the screen instead of completely exiting out of it. Then he logged onto a private chat room. Because he hadn't closed the window, the program continued to capture screen shots of his sexually explicit session.

Hicks, who holds a doctorate in his field and taught under an endowed professorship, had earned high reviews as both a nurse and an academic. Months earlier, the Texas Tech University Health Science Center's School of Nursing had named him "Outstanding Teacher of the Year." In more than 30 years of nursing practice he'd never had a patient complaint filed against him, court records say. Colleagues praised his high ethical standards.

But when the single college student who saw the mistakenly posted graphic discussion reported it, none of that mattered. Hicks said he left his university job under pressure in 2011.

The Austin-based state Board of Nursing also moved to suspend or revoke the professional license essential to his livelihood. Even though he was never charged with any crime, the board asserted Hicks had nevertheless engaged in "unprofessional or dishonorable conduct" that threatened patient and public safety.

It's not an isolated case. In recent years, Texas boards that oversee the growing number of state-regulated occupations have punished licensed professionals not for on-the-job missteps that imperil the public, but for legal behavior that occurs outside of work hours — often saying the incidents dishonor the profession or indicate character failings that might seep into their work.

Legal critics say the cases are based on an unproven connection between off-duty behavior and acceptable work performance, and that they distract licensing boards from attending to genuine public threats. Once regulators begin linking professional licenses to personal behavior that, while perhaps objectionable is not against the law, they say it's hard to know where to stop.

"Should we take away the license of a cardiologist who smokes cigarettes?" asked Adam Slote, a San Francisco lawyer considered an expert in the field through his representation of nurses in several high-profile California cases. "Or the nurse who doesn't vaccinate her children, or the Realtor who goes into foreclosure because he paid too much for his own home?"

Civil libertarians fear such broad reach can overstep the government's authority. "I don't think that when people get an occupational license they should be giving up their privacy," said Marc Levin, an analyst with the conservative Texas Public Policy Foundation.

Board of Nursing Executive Director Katherine Thomas stressed that regulators must act aggressively on behalf of patients who in many instances can't look out for themselves. "If you are a nurse, you are caring for the most vulnerable people — unconscious, elderly, children — who are putting their entire trust in you," she said. "You need to uphold standards to where that trust is deserved." She added that it is uncommon for nurses to be sanctioned for their legal off-duty actions.

Yet the board also has taken the official position that a licensed nurse may be judged on his or her behavior 24 hours a day, regardless of whether he or she is on the clock.

In 2009, after nurse Terri Dye reached into her car and drew a handgun on an unfamiliar man advancing aggressively on her in a Lubbock hospital parking lot, a jury may or may not have concluded she acted in self-defense; the man, a process server in her divorce, never filed a complaint. But that didn't stop the nursing board from moving in 2011 to suspend her license.

Never mind that Dye hadn't yet checked in at work, where her nursing skills were not in question: In legal filings, regulators contended the parking lot incident had grave — if theoretical — implications for patients. While none had actually witnessed the incident, a board expert testified that if they had, they might have been frightened by the gun.

Dye's behavior "did not conform to the minimum standards of nursing practice [because] Dye did not appropriately assess the situation," the board's legal filings explained. "If a nurse reacts without appropriately assessing a situation, it could cause an unsafe environment."

"It was 'could've, could've, could've,'" recalled Dye, who now lives in Amarillo.

At the judge's recommendation, the board eventually decided not to punish Dye for the incident. But its final order in the matter stressed its authority: "The Board reiterates that a nurse may be subject to disciplinary action for unprofessional or dishonorable conduct whether such conduct occurs while the nurse is 'on duty or on call' or not."

The nursing board can discipline licensees for any conduct that might hurt not just patients, but also "the public." It doesn't have to prove actual harm to pursue disciplinary proceedings.

In 2010, when Ollie Traylor was found asleep on the couch at the house of her Houston home health patient, the state nursing board moved to revoke her license. The judge concluded her conduct wasn't serious; there was no evidence it had happened repeatedly, for example, or that Traylor's nap harmed, or was likely to harm, the patient. He recommended dropping the case.

The board disagreed, contending it only had to show there was potential for patient harm. Last July, it overrode the judge's recommendation and revoked Traylor's license.

The nursing board's definition of "patient," too, has been expansive. Hospice nurse Lori Jan Vazquez cared for a man dying of cardiac disease in Austin for two months in late 2007. The two stayed in touch afterwards, and he gave Vazquez and her children several gifts before he died.

In 2010, when regulators sought to reprimand Vazquez for violating "the professional boundaries of the nurse/patient relationship" for accepting the gifts, she noted their professional relationship had ended. Before he'd died, the patient testified he gave her the gifts as a friend.

But an expert for the board recommended a penalty because a nurse's duties "don't just end when the nurse stops caring for a patient." The expert testified there were no definitive rules when the relationship ended, so "the nurse/patient relationship may extend ad infinitum."

Such interpretations suggest "the nursing board is taking an extraordinarily broad interpretation of the law," said Baylor University law professor Ron Beal, who teaches and practices administrative law. Other attorneys agreed the nursing board had an aggressive approach to off-duty behavior, though it wasn't unique.


Excerpt from The Statesman : www.statesman.com/article/20132010/NEWS302109767


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