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Rise in Temporary Suspensions by the Texas Board of Nursing

Posted Apr 22 2010 1:34pm

 

          Recent months have seen a sharp upswing in the Board of Nursing’s use of temporary suspension as a disciplinary measure against licensees. This is likely due to an influx of new attorneys, investigators, and other staff at the Board following the last Legislative session. The Board typically does not utilize the temporary suspension procedure lightly; it is reserved for serious cases involving allegations that could indicate that the nurse’s continued practice poses an immediate and imminent threat to public and patient safety. These cases usually involve serious allegations of improper sexual conduct, patient abuse or neglect, violence, or the repeated intemperate use of controlled substances, particularly while at work.  

From a statutory standpoint, temporary suspension is authorized by the Nursing Practice Act, Section 301 of the Occupations Code. Tex. Occ. Code § 301. The Texas Legislature has carved out two specific areas in which temporary suspension is mandated: continuing and imminent threats to the public welfare, and “intemperate use” cases. Tex. Occ. Code § 301.455 and 4551.

First, temporary suspension is required by the Act “on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the nurse would constitute a continuing and imminent threat to the public welfare.” Tex. Occ. Code § 301.455(a). If the Board or a panel of the Board makes such determination and temporarily suspends a nurse’s license with or without notice, the Board of Nursing is then required to comply with two conditions or else the temporary suspension is potentially void. First, institution of proceedings for a hearing before SOAH must be initiated simultaneously with the suspension, and second, a de novo probable cause hearing must be held “as soon as possible under this chapter and Chapter 2001, Government Code,” at least within fourteen days of the temporary suspension. Tex. Occ. Code § 301.455(b)(1) and (2).

Second, Section 301.4551 mandates temporary suspension for so-called “intemperate use” cases. This is a new addition to the Nursing Practice added by the last Legislative session. This statute concerns nurses who are already subject to a board order prohibiting the use of alcohol and nonprescribed drugs or requiring their participation in a peer assistance program. Tex. Occ. Code § 301.4551. The Board may temporarily suspend the license of such a nurse if the individual in question tests positive for alcohol or a prohibited drug, refuses to comply with a board order to submit to a drug or alcohol test, or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the board for noncompliance. Tex. Occ. Code § 301.4551. This section is typically used when a nurse is already subject to a Board Order but shows a continued pattern of repeatedly engaging in intemperate use of alcohol or other prohibited drugs, especially while at work.

Cases involving temporary suspensions tend to involve very serious and complicated allegations. Moreover, the normal time period provided for the parties and their respective attorney’s to prepare and engage in discovery is compressed into a narrow two month window.  Any nurse who has been temporarily suspended or anticipates that such an action may be forthcoming should immediately consult with an experienced attorney about their situation and potential options.

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