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Is Nursing Board Discipline Getting More Aggressive

— Texas Board epitomizes national trend, with nurses seeing campaign of intimidation

by Ryan Basen, Enterprise & Investigative Writer, MedPage Today

February 23, 2021https://www.medpagetoday.com/special-reports/exclusives/91322

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.

‘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 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

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