Receiving a complaint about your professionalism or the quality of care you have provided your patients can be unexpected, stressful, and without merit. However, since complaints can lead to disciplinary action against your license, you must always take these complaints seriously. Enlisting the help of a nursing license defense lawyer can help you fight back against baseless complaints and protect your career. With legal assistance, you also may be able to negotiate the best possible resolution of your disciplinary proceedings.
Nursing and the Scope of Practice
The Texas Board of Nursing (TBON) regulates all licensed nurses in the state, including licensed vocational nurses (LVNs), registered nurses (RNs), and advanced practice registered nurses (APRNs). As a result, the TBON receives complaints about nurses from patients, employers, and members of the public, including about alleged violations of the scope of practice.
The Texas Nursing Practice Act (NPA) and the TBON’s rules and regulations govern the scope of practice for each type of nurse. Nurses who exceed the scope of practice for their license can be subject to disciplinary action by the NPA.
Scope of Practice for LVNs
LVNs must practice under the supervision of an RN, APRN, physician, physician assistant, podiatrist, or dentist, although direct or on-site supervision is not always necessary. As a result, under Tex. Occ. Code § 301.002(5), LVNs may not perform acts of medical diagnosis or prescribe therapeutic or corrective measures. However, LVNs may assist in determining patients’ physical and mental health status, needs, and preferences, analyzing data gathered from patients, planning nursing care needs, and implementing the plan of care.
Scope of Practice for RNs
RNs may engage in professional nursing as defined by Tex. Occ. Code § 301.002(2). Like LVNs, RNs may not perform acts of medical diagnosis or prescribe therapeutic or corrective measures. However, they may:
- observe, assess, intervene, evaluate, rehabilitate, provide care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes;
- maintain health or prevention of illness
- administer medication or treatment as ordered by a physician, podiatrist, or dentist;
- supervise or teach nurses;
- administer, supervise, and evaluate nursing practices, policies, and procedures;
- request, receive, sign for, and distribute prescription drug samples to patients at practices at which an advanced practice registered nurse is authorized to sign prescription drug orders as provided by Subchapter B, Chapter 157;
- perform acts delegated by a physician under Section 157.0512, 157.054, 157.058, or 157.059; and
- develop nursing care plans.
Scope of Practice of APRNs
The scope of practice of APRNs varies according to experience, evidence-based practice, technology development, and changes in the health care delivery system. As a result, the scope of practice of APRNS depends on the types of patients for whom they can care, what procedures or activities they can perform, and their ability to seek reimbursement for the services provided. APRNs must practice within both their professional and individual scope of practice, taking any potential legal implications into account.
Scope of Practice Violations
22 Tex. Admin. Code § 217.11(1)(A) requires that all nurses comply with the Texas Nursing Practice Act and the TBON’s rules and regulations, including those related to the scope of practice. Furthermore, 22 Tex. Admin. Code § 217.11(1)(T) provides that nurses must “accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse’s educational preparation, experience, knowledge, and physical and emotional ability.” As a result, actions violating the scope of practice rules can result in disciplinary action against your LVN, RN, or APRN license.
Potential Sanctions for Scope of Practice Violations
22 Tex. Admin. Code § 213.33 requires TBON and the State Office of Administrative Hearings (SOAH) to utilize a Disciplinary Matrix in determining the appropriate sanctions in a disciplinary case. TBON and SOAH must analyze the following factors in selecting the tier and sanction level of the Matrix for one or more violations of the NPA and Board rules:
- evidence of actual or potential harm to patients, clients, or the public;
- evidence of a lack of truthfulness or trustworthiness;
- evidence of misrepresentation(s) of knowledge, education, experience, credentials, or skills which would lead a member of the public, an employer, a member of the health-care team, or a patient to rely on the fact(s) misrepresented where such reliance could be unsafe;
- evidence of practice history;
- evidence of present fitness to practice;
- whether the person has been subject to previous disciplinary action by the Board or any other health care licensing agency in Texas or another jurisdiction, and if so, the history of compliance with those actions;
- the length of time the person has practiced;
- the actual damages, physical, economic, or otherwise, resulting from the violation;
- the deterrent effect of the penalty imposed;
- attempts by the person to correct or stop the violation;
- any mitigating or aggravating circumstances, including those specified in the Disciplinary Matrix;
- the extent to which system dynamics in the practice setting contributed to the problem;
- whether the person is being disciplined for multiple violations of the NPA or its derivative rules and orders;
- the seriousness of the violation;
- the threat to public safety;
- evidence of good professional character as set forth and required by §213.27 of this chapter (relating to Good Professional Character);
- participation in a continuing education course described in §216.3(f) of this title (relating to Requirements) completed not more than two years before the start of the Board’s investigation if the nurse is being investigated by the Board regarding the nurse’s selection of clinical care for the treatment of tick-borne diseases; and
- any other matter that justice may require.
Depending on the circumstances, a nurse could receive various sanctions for a scope of practice violation, including the assessment of administrative penalties or fines. In addition, TBON may place probationary conditions on the nurse’s license, including submitting to an evaluation, undergoing counseling or education, practicing only on a limited scope, and practicing under the supervision of a nurse designated by the TBON.
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Don’t Face a Disciplinary Complaint Without Legal Representation
A single complaint can endanger your license and ruin your reputation. After you have worked so hard to finish your education and build your career, this is not a risk you can take lightly. As a result, having an experienced nursing license defense attorney can be essential to a positive outcome in your case. You can reach the offices of Bertolino, LLP by calling (512) 515-9518 today or filling out our contact form online.
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