Joe Flores, NP, JD, has been defending nurses against investigations by the Texas Board of Nursing for several years. Flores, a Corpus Christi attorney and part-time hospice care nurse practitioner, rarely turns away these clients. He feels it's important they have representation if they have a case.
But since the pandemic started, Flores has had to turn away many cases. Demand for his services is up, he says, as nurses are being investigated by the Board even as they struggle to perform their jobs with the added stress of the pandemic.
The nature of the complaints is also different: "I have never had [board] reports regarding masks, gowns; this is new, this is particular to the pandemic," said Flores, who is now representing a dozen nurses facing potential discipline. "They are overworked, understaffed." But, he added, patients and management "just report them" and the board opens cases against many of them -- as a nursing board did recently against a Minnesota nurse.
These actions aren't unique to Texas or to the pandemic, nursing advocates say. In their view, boards nationwide have aggressively pursued complaints against nurses and intimidated them for years. Boards have stripped nurses of their licenses and taken other disciplinary actions against them for engaging in personality conflicts with managers or reporting safety issues publicly; even for offenses unrelated to their work, such as missing child support payments.
"When I started digging, I was horrified, really," said Aurora Kim Paradisis, EdD, RN, a law student whose 2018 doctoral dissertation was subtitled, "The Lived Experience of Unjust Discipline Among Registered Nurses."
"It's really retaliatory," she told MedPage Today. "People are scared because it's their livelihood and they don't want to get to the point where it gets to nursing boards because once they get you, they don't let you go."
Board staff and their advocates disagree. They defend disciplinary actions by pointing to their overarching mission: to ensure public safety by keeping nurses accountable.
"To my knowledge they're doing an excellent job. I know they are extraordinarily conscientious about their mission and their role," said Maryann Alexander, PhD, chief officer of nursing regulation with the National Council of State Boards of Nursing (NCSBN).
But nursing advocates cited several states for egregious actions over several years, including California, Arizona, and Missouri.
The Texas board especially stood out in news reports and conversations with MedPage Today.
"There's a problem here," said Darlene Nelson, RN, a long-time nurse who runs a Texas consultancy to assist nurses facing board reviews. "We have helped nurses in many states, and it's the same everywhere."
Board Allegiance, Nursing Experience Questioned
The Texas board is structured like the majority of nursing boards. The state's governor appoints members, and the governor and legislature have authority over the board. Staff handle everyday tasks including triaging complaints, conducting investigations, and arguing the board's position at hearings. Board members make ultimate decisions about sanctions at hearings.
The Texas board has 13 members: nine nursing representatives and four representing consumers.
MedPage Today conducted online backgrounding of board members and top executives as of the start of this year -- finding that of the nine nursing reps, just three reported being active nurses. Four worked in healthcare management, according to official bios, LinkedIn pages, and other reports.
Even some of the consumer representatives have been involved in healthcare. Mazie Mathews Jamison is a former healthcare executive. David Saucedo II is vice president of a lock company, and he invests in the Borderplex Alliance, an El Paso advisory and community group that has partnered with HCA Healthcare, CardinalHealth, and other healthcare organizations, according to its website.
Similarly, full-time staff -- including executives -- have more administrative than nursing experience. Katherine Thomas, MSN, worked for 6 years as a nurse practitioner, but has been the organization's executive director since 1995.
Enforcement director Tony Diggs, general counsel Dusty Johnston, and operations chief Mark Majek don't report any nursing experience in their public profiles. Diggs oversees some 50 staff in the enforcement division. Along with Thomas, they have all been in their roles for more than 20 years.
"They're not nurses. They can't possibly understand what a nurse is trying to explain" during investigations, said Lolly Lockhart, PhD, RN, a long-time nursing consultant and Texas Nurses Association member.
Board members and staff take their role seriously and are trained to handle their responsibilities, Johnston said, adding he has never seen a member use the board for personal or political gain.
"If you don't want experienced nurses reviewing the competency of nursing practice, that doesn't sound quite right," he said, discounting that many board nursing reps have not been practitioners in years. "I guarantee you we are not evaluating the standard of care today based on standards of care that may have been in place in 1983," he said, alluding to the last year Thomas was a practicing nurse.
Alexander, the NCSBN official, praised the blend of state boards' composition in general, including in Texas: "It's what we would probably call a well-balanced board because you want a mix of public [members] who ensure the board members who are representing the profession are doing their job, and you want the expertise of members of the profession."
More Investigations, Sanctions
National and state data show increases in several disciplinary categories at nursing boards over the last two decades, particularly from 2005 to 2016.
Nationally, adverse actions reported against registered nurses (RNs) more than doubled from 2001 to 2011, according to the National Practitioner Data Bank (NPDB), and increased steadily from 14,092 in 2012 to 16,190 in 2016. These actions fell slightly from 2016 to 2019, the last year for which complete data were available.
Similarly, actions against advanced practice nurses (APNs) surged more than five-fold from 2001 to 2014, according to NPDB data.
NPDB data for Texas show that adverse actions against RNs and other nurses more than doubled from 2008 until 2012. The number of actions against Texas APNs in 2016 was nine times the 2013 number.
The Texas board's own data show the total number of actions taken against all nurses increased sharply in the first decade of this century, which Johnston said is due to a change in policy: criminal background checks were mandated in 2005. Nurses with criminal histories were found to be in violation, thus forcing actions against many nurses. (An NPDB official said the data don't match exactly, in large part because not all state board actions are reportable.)
Texas board data also show that the number of investigations involving RNs nearly tripled from 2006 to 2013, and sanctions against their licenses rose 70% from 2010 to 2013. Published numbers show subsequent declines, but MedPage Today found significant data were missing, particularly from 2018 and on.
While the number of complaints has also risen over time, the percentage of complaints leading to discipline has increased as well -- notably in the first half of the last decade for RNs, rising from 18.1% in 2010 to 22.7% in 2012, for example.
In addition to practice violations, nurses can be disciplined for actions in their personal lives. The Texas board, for example, is required by state law to discipline nurses found by the attorney general's office to have neglected child support payments, Johnston confirmed, and the board has taken action for violations as trivial as accepting gifts from former patients.
"Attorneys agreed the nursing board had an aggressive approach to off-duty behavior, though it wasn't unique" among state boards, according to a 2013 report by the Austin American-Statesman.
Darlene Nelson and Maggie Ortiz run Expert Nurse Consultants, a San Antonio-based organization that assists nurses. Nelson was disciplined by the board in 2019, while Ortiz said she worked for the board for 6 months before quitting over moral objections.
Along with two other nursing consultants, Joe Flores and Texas attorney Mark Weitz, they depicted a board that unjustly penalized nurses in an overzealous and apparently retaliatory fashion for years, while deliberately minimizing communication during reviews.
"They delay because they try to railroad you, they try to scare you," said Nelson, a three-decade emergency department trauma nurse veteran. In a typical year, more than 80% of complaints are resolved within 6 months, Johnston said. But among reviews, about half take longer -- and at least one-quarter exceed a year.
Ortiz left her emergency department job in November 2013 to join the board as an investigator. She opened new reviews weekly as others that were a couple of years old sat untouched.
"I was told any nurses reported to the board were all guilty, so why are you wasting your time reading their response [to the initial board letter]?" she said. "That is the culture of the board." Ortiz quit early in 2014.
Another problem is the board follows administrative law, which lacks sufficient due process protections, several sources said. For instance, the board can overrule recommendations about sanctions made by the administrative judge who oversees hearings. One client of Expert Nurse Consultants remained under investigation even after her former employer stated she had not committed any violations.
During the pandemic, nurses have been investigated after speaking to managers and/or publicly about pandemic-era PPE problems and staffing shortages, Flores said.
Tonya Randolph, RN, said she was fired by Lake Granbury Medical Center in March for wearing a mask after management asked nurses not to wear one "because it scared their patients," according to a Texas Public Radio report. She was reported and the board is now reviewing her case, according to a source who asked to remain anonymous, citing client confidentiality. (Randolph could not be reached through her employer, TravelMed USA.)
Such behavior follows a longstanding board pattern, sources said.
"[Nurses] are prohibited from reporting or even raising concerns and, in too many instances, are intimidated and even fired for raising concerns. In retaliation, they are often over scrutinized [sic] and blamed for some problem and reported to the Board of Nursing," Lockhart, the nurse consultant, wrote in a January 2014 letter to the board. "When nurses are wrongfully terminated they often cannot find employment in other facilities close by, and their nursing careers come to an end."
In general, state boards tend to over-discipline because "boards of nursing, especially in Texas, are so terrified of making a mistake" and letting a guilty nurse off, Lockhart told MedPage Today. "They don't have bad intentions."
"The issues are structurally how this nursing board functions," Weitz said. A review is "just such an arduous process."
Weitz has represented nurses in some cases that had been open for so long, "it's like the staff attorney has never seen the file because they probably haven't looked at it in a year."
Weitz has an ongoing case in which a nurse is accused of a medication error involving a male patient. A board witness had not worked on men in 25 years and did not know anything about the patient's procedure.
Physicians are usually affluent enough to resist strongly when accused of wrongdoing. Many nurses, however, "don't have the financial wherewithal to fight the kind of fight that a doctor can."
"Once you get in the system, it sucks," he added. "It breaks my heart sometimes because a lot of women I get have never had a complaint."
Afraid to Practice Nursing
Johnston, the Texas board's general counsel, denied that the board acts aggressively or overzealously. "I would not be surprised if there are cases when we have over 12,000 matters being investigated that these attorneys wouldn't be complimentary of how their particular case is being handled," he said. "But I'm satisfied with our efficiencies, but we are always working on that; it's something we need to improve."
A recent 5% state-mandated budget cut means the board cannot add any staff, Johnston said, although it has been permitted to fill a few open investigative positions.
Johnston also denied the accusation that the board doesn't provide due process: "The board is required to follow the due process provisions outlined in the Texas Administrative Procedures Act ... and in the Texas Nursing Practice Act."
The Texas board is "one of the most respected" nationally, NCSBN's Alexander said, with a "highly regarded" staff.
Nursing advocates feel differently, and not just about the Texas board.
While the NCSBN publicly catalogues violations on a national database called Nursys, Alexander confirmed that no national guidelines exist concerning discipline. "It would be too difficult," she said. "There are a number of different reasons why a nurse can be disciplined."
The NCSBN has not weighed in on how its own members could handle issues during the pandemic, including nurse discipline, other than recommending they allow previously disciplined nurses to temporarily return to work.
Investigators are also motivated to at least sometimes build cases finding nurses at fault, Paradisis and others said, to demonstrate they are doing their jobs.
Paradisis noted that the boards are not conducting research on administrative intimidation of healthcare workers, particularly during the pandemic.
Nor does the NCSBN study the effectiveness of nurse discipline. MedPage Today found little research on the topic, save for a 2019 review that concluded, "More systematic research is needed, together with clear definitions of disciplinary procedures."
"It's a topic that people don't want to take on," said Paradisis, who spent most of her 20-year nursing career in management. "These are giants in our society. These are entire institutional structures and they are not going away."
Nelson said that because of nursing boards' behavior, "nurses operate in a culture of fear."
Said Lockhart: "Nurses can't be afraid of practicing nursing, which is what's going on now."
Last Updated March 04, 2021
Ryan Basen reports for MedPage’s enterprise & investigative team. He has worked as a journalist for more than a decade, earning national and state honors for his investigative work. He often writes about issues concerning the practice and business of medicine. Follow
The Complaint Process
Thank you for your continued hard work and professional dedication during the COVID-19 pandemic.
Since March 2020, the California Department of Consumer Affairs (DCA) and the California Department of Public Health (CDPH) have been issuing waivers of state law and public health orders that temporarily alter the state laws and typical standards that govern the provision of healthcare during the COVID-19 pandemic.
Please be assured any complaint that the Board of Registered Nursing receives about a licensee’s provision of care during the COVID-19 pandemic is evaluated according to the Board’s standard complaint review process - on a case-by-case basis. Complaints are always reviewed and evaluated under the applicable laws and accepted standards of care at the time the patient received the care or treatment, which can include any amended standards stemming from an applicable state law waiver or public health order.
The Board of Registered Nursing regulates the practice of registered nurses and certified advanced practice nurses in order to protect the public health, safety and welfare. The Board exists to protect patients by ensuring that registered nurses are competent and safe to practice. The Nursing Practice Act located in the California Business and Professions Code is the body of the law that authorizes the Board to accomplish this.
The following information is provided to help you understand the complaint process:
Who Can/Should file a complaint with the Board of Registered Nursing?
A complaint should be filed by anyone who believes that a licensee of the Board has engaged in illegal activities which are related to his/her professional responsibilities.Allegations may include:
- gross negligence or incompetence
- unprofessional conduct
- license application fraud
- substance abuse
- mental illness
- unlicensed activity
Complaints received by the Board of Registered Nursing are reviewed to determine if the Board has the authority to investigate the complaint. The Board can only investigate registered nurses (RNs) who are licensed by the Board, applicants for licensure, or individuals who hold themselves out to the public as RNs. The Board can only investigate complaints that, if found to be valid, are violations of the Nursing Practice Act or the regulations that have been adopted by the Board.
Complaints involving allegations which are not within the jurisdiction of this Board will be referred to other agencies which may be better able to assist the complainant. If the Board does not know of another agency that can investigate the complaint, a letter is sent to the person who filed the complaint advising that no investigation will be conducted.Allegations which are not within the authority of the Board:
- fee/billing disputes
- general business practices
- personality conflicts
- providers licensed by other boards/bureaus such as physicians, chiropractors, dentists, hospitals, vocational nurses, psychiatric technicians, nursing assistants, physician assistants, respiratory therapists, and pharmacists
Complaints related to facilities such as hospitals and nursing homes should be brought to the attention of the California Department of Public Health.
How Do I File a Complaint?
Complaints may be filed online through DCA BreEZe Online Services.
In filing your complaint, the information you provide will determine the action the Board will take. The most effective complaints are those that contain firsthand, verifiable information. Therefore, please provide a statement, in your own words, which describes the nature of your complaint. Please include as many specific details as possible, including dates and times, as well as any documentary evidence related to your complaint. The emphasis should be on providing necessary factual information. While anonymous complaints will be reviewed, they may be impossible to pursue unless they document evidence of the allegations made.
If you are unable to file your complaint online, you may complete a Complaint form and mail to:Board of Registered Nursing
Attn: Complaint Intake
PO Box 944210
Sacramento, CA 94244-2100
Fax: (916) 574-7693
How are Complaints Processed?
Within 10 days after receipt of the complaint, the Board sends a written notification of receipt to the complainant. Complaints containing allegations of the greatest consequences (e.g. gross negligence/incompetence, patient abuse, etc.) are given priority attention. The complaint is then investigated by the Department of Consumer Affairs Division of Investigation and/or Board nursing consultants. If no violation can be substantiated, the case is closed and the complainant is notified. Investigations which provide evidence that the nurse has violated the Nursing Practice Act and that the violation warrants formal disciplinary action will be resolved by informal or formal proceedings. If a case involves unlicensed or criminal activity, it is referred to the local district attorney for prosecution.
To ensure that the success of the investigation is not jeopardized in any way, the details of the investigation remain confidential and are not public record. If, however, disciplinary or criminal action is taken, some information may become a matter of public record. In addition, if disciplinary action or criminal action is taken, you may be called to testify as a possible witness.
The entire complaint review, investigation and legal review process may take an extended period of time depending on the complexity of the case. During the investigation stage, all information is confidential and may not be discussed. When a case is finally resolved, you will be notified of the action taken by the Board except in the case of anonymous complaints. Please keep in mind that any action taken by the Board of Registered Nursing has no impact on civil remedies which may be available to you. If you have questions about filing a complaint please call (916) 557-1213.
The Intervention Program
The Board of Registered Nursing's Intervention Program is a rehabilitation program for nurses whose practice may be impaired due to chemical dependency and/or mental illness. The program is designed to provide intervention at the earliest signs of impaired practice which point to chemical dependency or mental illness, long before public harm occurs. When a report or complaint comes to the Board, it is analyzed to determine whether the nurse is a candidate for the Intervention Program. When a nurse who qualifies to participate in the program is identified, the nurse is given an opportunity to participate in the program as an alternative to disciplinary action against the license. The Intervention Program strictly monitors participants to ensure public safety. For more information on the Intervention Program, please call (916) 574-7692 or send email to [email protected] NOTE: By law, this is a confidential program. The complainant will not be notified if a nurse enters the Intervention Program or successfully completes the Intervention Program.
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The Texas Board of Nursing launches new online Texas Nurse Portal
The new Texas Nurse Portal is a confidential and secure system that allows applicants to apply for nurse licensure by examination, endorsement, or renewal.
The new paperless system is completely online. All applicants and licensees can apply for an initial license or renew a license 60 days prior to their expiration date. The system requires applicants to register and create an account with the Board through the Texas Nurse Portal.
Click here to go to the Texas Nurse Portal
Video: "How to Create a Nurse Portal Account WITH an Existing Nursing License" in order to renew or update your license.
Video: "How to Create a Nurse Portal Account WITHOUT an Existing Nursing License"
Video: "How to Submit a NCLEX Application to the Texas Nurse Portal"
Video: "How to do a Name Change on the Texas Nurse Portal"
Discipline & Complaints - What Happens When a Complaint Gets Filed
Investigatory & Disciplinary Process
General Overview of the Disciplinary Process
Investigatory & Disciplinary Process Flow Chart
A streaming video, Board of Nursing Complaint Process: Investigation to Resolution, has been developed by the National Council State Boards of Nursing (NCSBN) 2010 Disciplinary Resource Committee and produced by NCSBN. The video is intended for information purposes for nurses facing disciplinary action and provides a high level overview on the topics:
- The Board of Nursing investigation process;
- Due process rights;
- Formal and informal administrative hearings; and
- Types of resolutions.
Texas Board of Nursing Overview:
More than 16,000 complaints per year are typically received by the Texas Board of Nursing (BON or Board). However, not all complaints result in an investigation or disciplinary action by the Board. Many of the complaints received by the Board contain insufficient information about the nurses identity, are out of the Board's jurisdiction, are considered "minor incidents" or are about issues that, even if proven, would not constitute violations of the Nursing Practice Act (NPA). In all cases, the identity of the complainant is kept confidential.
The BON provides due process to nurses by notifying them of the investigation and the allegations, unless doing so would jeopardize the investigation, and nurses are given an opportunity to respond to the alleged conduct and to show compliance with the Nursing Practice Act (NPA). During the course of the investigation, relevant evidence is obtained and witnesses are contacted. While the majority of most investigations is conducted through the mail and over the phone, on-site investigations are occasionally conducted also.
After relevant evidence has been obtained, the investigations team reviews the evidence in order to determine whether or not a violation of the NPA occurred. Based on the review of the evidence, some cases are closed, and, depending upon the specific type of closure, the complaint and all evidence will either be expunged immediately from the nurse’s file or expunged after being retained for a specific period of time according to the Board’s retention policies. Closed cases in which the file has been retained may be reopened if additional information, evidence, or complaints are received before the file has been expunged.
Cases in which the evidence indicates that a sanction against the nurse is needed in order to protect the public will result in an Order of the Board and will include both the sanction and any requirements placed on the nurse for retention of his/her license. Possible sanctions include remedial education, fine, warning, reprimand, suspension, probation, and revocation. Most Board Orders are public information and, except for deferred disciplinary orders that have been successfully completed, are permanent designations in the licensure records of the nurse.
An investigation typically takes five (5) to twelve (12) months to complete, depending on the circumstances. While numerous factors beyond the control of Board staff and the nurse under investigation affect complaint resolution time, case resolution time is diligently monitored and internal processes are routinely reviewed and often improved to ensure complaints are resolved as quickly as possible. Both the complainant and the nurse being investigated are notified periodically of the status of each investigation, and unless instructed otherwise, all complainants are notified of the final outcomes of investigations.
Informal Settlement Processes:
Informal settlement processes typically begin with nurses being offered proposed agreed orders containing the investigative findings, conclusions of law, sanction, and stipulated requirements necessary to ensure that the nurse is safe to practice.
When nurses agree with the contents of the proposed agreed order, they sign their order before a notary and return it to the Board’s office. Agreed orders are then scheduled for review and ratification by the Board each month. Although the majority of agreed orders reviewed by the Board are accepted and ratified, the Board may alternatively vote to modify or reject any order with which they disagree.
If nurses do not agree with their proposed orders, they may submit specific suggested revisions to the proposed orders in writing for the Board’s consideration. If any of the submitted revisions are accepted, new proposed agreed orders incorporating the accepted revisions will typically be sent.
In some cases, and at the Board’s discretion, nurses may be invited to attend informal settlement conferences, often scheduled a month or more in advance, at the Board’s offices in Austin, Texas. Informal conferences are conducted by the Executive Director, or his/her designee, and are attended by the Director of Enforcement, one of the Board’s attorneys, and the assigned investigator, as well as other Board staff. During each conference, the nurse and Board staff dialogue regarding the evidence, possible violations, and acceptable settlement. At the conclusion of the majority of conferences, nurses are informed of the panel’s recommended disposition of their case. When the panel determines action is warranted to protect the public, new proposed agreed orders are mailed to nurses. As with other proposed agreed orders, nurses may sign their order before a notary and return it or they may submit specific suggested revisions to the proposed orders in writing for the Board’s consideration.
When orders are ratified, they become final Board orders and the terms become effective. A copy of each final Board order is mailed to the nurse and to the last known employer, and complainants are notified of the outcome. Most disciplinary actions taken by the Board are public information and become a permanent part of the licensure record. Disciplinary actions are printed in the Board’s quarterly newsletter and are also reported to the National Council of State Boards of Nursing, Inc., and the National Practitioner Data Bank (NPDB).
Formal Settlement Processes:
When nurses and the Board are unable to reach agreements for informal settlement, or if the Board is unable to make contact with nurses during investigations, the Board files formal charges, which require nurses to file answers to the charges in writing. When required answers to formal charges are not filed, cases may proceed toward revocation of the license(s) by default.
If answers to the formal charges are filed, negotiations may continue toward agreed settlements while formal, public disciplinary hearings before an Administrative Law Judge (ALJ) are being scheduled. When cases do not reach agreed settlements, they proceed to hearings at which Board staff present evidence and nurses present their side of the case. After each hearing, the ALJ submits a proposal for decision (PFD) to the Board, and each PFD contains the Judge’s findings of fact and conclusions of law. The Board reviews and acts on each PFD by imposing appropriate penalties or by closing the case with no action.
Should you have further questions or are in need of clarification, please feel free to contact the Board.
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Well, still, I told you that I am a sports man. We reached the restroom on my floor and Oksana, quickly thanking me, rushed inside with a bullet. Apparently the tea really did not go in vain.Texas BON Texas Board of Nursing October 21, 2021
He moved his hips rigidly. Pulling roughly on my mouth. Abruptly grabbing my collar and pulling me against the wall.
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