| (a) Purpose and Applicability. This section establishes
the criteria utilized by the Board in determining the effect of criminal
history on nursing licensure and eligibility for nursing licensure
and implements the requirements of Texas Occupations Code §53.025
and Code of Criminal Procedure Article 42A.111. This section applies
to all individuals seeking to obtain or retain a license or multistate
licensure privilege to practice nursing in Texas.
(b) An individual is subject to denial of licensure
or to disciplinary action for a conviction for, or placement on deferred
adjudication community supervision or deferred disposition for, a
felony that is directly related to the practice of nursing or for
a misdemeanor involving moral turpitude that is directly related to
the practice of nursing (collectively referred to as crimes hereafter). This section applies
to crimes that have been adjudicated through agreement or judicial
order by a state or federal criminal justice system, without re-litigation
of the underlying factual basis for the agreement or judicial order.
(c) The Board considers the crimes listed in the attached
Criminal Guidelines (Guidelines) to be directly related to the practice
of nursing. The Guidelines reflect the most common or well known crimes.
The vast majority of an individual's criminal history that is reviewed
by the Board will fall within the Guidelines. However, the Guidelines
are note intended to an exhaustive listing, and they do not prohibit
the Board from considering an offense not specifically listed in the
Guidelines. In matters involving an offense that is not specifically
listed in the Guidelines, such as a violation of another state's law,
federal law, or the Uniform Code of Military Justice, a determination
shall be made by comparing that offense to the crime listed in the
Guidelines that contains substantially similar elements. The offense
must meet the requirements of subsection (b) of this section to be
actionable. Further, because the practice of nursing may involve direct
contact with children in the normal course of official nursing duties,
the Board may consider an individual's prior deferred adjudication
community supervision, even if successfully completed, in its licensure
decisions.
Attached Graphic
(d) The Board has determined that the crimes listed
in the Guidelines in subsection (c) of this section are directly related
to the practice of nursing for the following reasons.
(1) Nursing is a unique profession. Nurses practice
autonomously in a wide variety of settings and provide care to individuals
who are, by virtue of their illness or injury, physically, emotionally,
and financially vulnerable. These individuals include the elderly;
children; individuals with mental disorders; sedated and anesthetized
patients; individuals with mental or cognitive disorders; and disabled
and immobilized individuals. Nurses that engage in criminal conduct
potentially place patients, healthcare employers, and the public at
future risk of harm.
(2) Crimes involving fraud or theft. Nurses often have
unfettered access to individuals' privileged information, financial
information, and valuables, including medications, money, jewelry,
credit cards/checkbook, and sentimental items. Nurses also provide
around the clock care, working night and weekend shifts at hospitals,
long term care facilities, nursing homes, assisted living facilities,
and in home health and home-like settings, where there is often no
direct supervision of the nurse. Patients in these settings are particularly
vulnerable to the unethical, deceitful, and illegal conduct of a nurse.
When a nurse has engaged in criminal behavior involving fraud or theft
in the past, the Board is mindful that similar misconduct may be repeated
in these nursing settings, thereby placing patients, healthcare employers,
and the public at risk.
(3) Crimes involving sexual misconduct. Nurses also
frequently provide care to partially clothed or fully undressed individuals,
who are particularly vulnerable to exploitation. Due to the intimate
nature of nursing care, professional boundaries in the nurse-patient
relationship are extremely important. When a nurse has engaged in
criminal behavior involving any type of sexual misconduct in the past,
the Board is mindful that similar misconduct may be repeated in nursing
settings. Such conduct may involve touching intimate body parts when
the touch is not necessary for care, voyeurism, exposure of body parts
when not necessary, and surreptitious touching. As such, the Board
considers crimes involving any type of sexual misconduct to be highly
relevant to an individual's ability to provide safe nursing care.
(4) Crimes involving lying, falsification, and deception.
Nurses are expected to accurately and honestly report and record information
in a variety of sources, such as medical records, pharmacy records,
billing records, nursing notes, and plans of care, as well as report
errors in their own nursing practice. When a nurse has engaged in
criminal behavior involving lying, falsification, or deceptive conduct,
the Board is mindful that similar misconduct may be repeated in nursing
settings, thereby placing patients, healthcare employers, and the
public at risk.
(5) Crimes involving drugs and alcohol. Nurses have
a duty to their patients to provide safe, effective nursing care and
to be fit to practice. Nurses who have a substance use disorder may
exhibit impairment in both cognitive and motor functioning. A nurse
affected by a substance use disorder may be unable to accurately assess
patients, make appropriate judgments, or intervene in a timely and
appropriate manner. This danger may be heightened when the nurse works
in an autonomous setting where other healthcare providers are not
present to provide interventions for the patient. As such, the Board
considers crimes related to the use or possession of drugs or alcohol
to be highly relevant to a nurse's fitness to practice.
(6) Crimes involving violence or threatening behavior.
Nurses provide care to the most vulnerable of populations, including
individuals who often have no voice of their own and cannot advocate
for themselves. Further, patients are dependent on the nurse-patient
relationship for their daily care. When a nurse has engaged in violent
or threatening criminal behavior in the past, the Board is mindful
that patients may be at risk for similar behavior in a healthcare
setting. As such, the Board considers crimes involving violence and
threatening behavior to be highly relevant to a nurse's fitness to
practice.
(e) The Board has considered the nature and seriousness
of each of the crimes listed in the Guidelines in subsection (c) of
this section, the relationship of the crime to the purposes for requiring
a license to engage in nursing; the extent to which a license to practice
nursing might offer an opportunity to engage in further criminal activity
of the same type as that in which the individual previously was involved;
and the relationship of the crime to the ability, capacity, or fitness
required to perform the duties and discharge the responsibilities
associated with the practice of nursing. The Board has determined
that each crime listed in the Guidelines in subsection (c) of this
section raises concerns about the propensity of the individual to
repeat similar misconduct in the workplace, if provided the opportunity.
The Board has also determined that similar misconduct in the workplace
would place vulnerable individuals at risk of exploitation or victimization.
As a result, if an individual has committed a crime listed in the
Guidelines in subsection (c) of this section, the Board will evaluate
that conduct to determine if disciplinary action is warranted.
(f) Additionally, a crime will be considered to be
directly related to the practice of nursing if the act:
(1) arose out of the practice of vocational, professional,
or advanced practice nursing, as those terms are defined by the Nursing
Practice Act (NPA);
(2) involves a current or former patient;
(3) arose out of the practice location of the nurse;
(4) involves a healthcare professional with whom the
nurse has had a professional relationship; or
(5) constitutes a criminal violation of the NPA or
another statute regulating another profession in the healing arts
that also applies to the individual.
(g) Sanction. Not all criminal conduct will result
in a sanction. The Board recognizes that an individual may make a
mistake, learn from it, and not repeat it in the nursing practice
setting. As such, each case will be evaluated on its own merits to
determine if a sanction is warranted. If multiple crimes are present
in a single case, a more severe sanction may be considered by the
Board pursuant to Texas Occupations Code §301.4531. If a sanction
is warranted, the Board will utilize the schedule of sanctions set
forth in §213.33(e) (relating to Factors Considered for Imposition
of Penalties/Sanctions) of this chapter. At a minimum, an individual
will be required to successfully complete the terms of his/her criminal
probation and provide evidence of successful completion to the Board.
If an individual's criminal behavior is due to, or associated with,
a substance use disorder or a mental health condition, evidence of
ongoing sobriety, effective clinical management, and/or appropriate
ongoing treatment may be required. Further, if an individual's criminal
history implicates his/her current fitness to practice, the individual
may also be required to meet the requirements of §213.29 to ensure
he/she is safe to practice nursing.
(h) Factors. The following factors will be considered
when determining the appropriate sanction, if any, in eligibility
and disciplinary matters involving criminal conduct:
(1) the nature, seriousness, and extent of the individual's
past criminal activity;
(2) the age of the individual when the crime was committed;
(3) the amount of time that has elapsed since the individual's
last criminal activity;
(4) the conduct and work activity of the individual
before and after the criminal activity;
(5) evidence of the individual's rehabilitation or
rehabilitative effort while incarcerated or after release;
(6) other evidence of the individual's fitness, including
letters of recommendation from prosecutors and law enforcement and
correctional officers who prosecuted, arrested, or had custodial responsibility
for the individual; the sheriff or chief of police in the community
where the individual resides; and any other individual in contact
with the convicted individual;
(7) a record of steady employment;
(8) support of the individual's dependents;
(9) a record of good conduct;
(10) successful completion of probation/community supervision
or early release from probation/community supervision;
(11) payment of all outstanding court costs, supervision
fees, fines, and restitution ordered;
(12) the actual damages, physical or otherwise, resulting
from the criminal activity;
(13) the results of an evaluation performed pursuant
to Texas Occupations Code §301.4521 and §213.33(k) and (l)
of this chapter;
(14) evidence of remorse and having learned from past
mistakes;
(15) evidence of current support structures that will
prevent future criminal activity;
(16) evidence of current ability to practice nursing
in accordance with the NPA, Board rules, generally accepted standards
of nursing; and other laws that affect nursing practice; and
(17) any other matter that justice requires.
(i) Evaluations. Pursuant to Texas Occupations Code §301.4521
and §213.33(k) and (l) of this chapter, the Board may request
or require an individual to undergo an evaluation with a Board-approved
evaluator to better determine whether the individual is safe to practice
nursing and is able to comply with the NPA, Board rules, and generally
accepted standards of nursing. If an individual's criminal behavior
is due to, or associated with, a substance use disorder or a mental
health condition, evidence of ongoing sobriety, effective clinical
management, and/or appropriate ongoing treatment may also be required.
(j) Youthful Indiscretions. Some criminal behavior
that is otherwise actionable may be deemed a youthful indiscretion
under this paragraph. In that event, a sanction will not be imposed.
The following criteria will be considered in making such a determination:
(1) the offense was not classified as a felony;
(2) absence of criminal plan or premeditation;
(3) presence of peer pressure or other contributing
influences;
(4) absence of adult supervision or guidance;
(5) evidence of immature thought process/judgment at
the time of the activity;
(6) evidence of remorse;
(7) evidence of restitution to both victim and community;
(8) evidence of current maturity and personal accountability;
(9) absence of subsequent criminal conduct;
(10) evidence of having learned from past mistakes;
(11) evidence of current support structures that will
prevent future criminal activity; and
(12) evidence of current ability to practice nursing
in accordance with the NPA, Board rules, generally accepted standards
of nursing, and other laws that affect nursing practice.
(k) Bars to Licensure.
Cont'd... |
