Is Nursing Board Discipline Getting More Aggressive?


 
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By Ryan Basen

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 said. "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.

"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.

An online background check was conducted 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 significant data was 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.

'Presumed Guilty'

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 said. "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.


 
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