The Texas Board of Nursing’s Treatment of an Employer’s Unreported Corrective Action (“Minor Incident”) in the Complaint and Disciplinary Process
In the law firm’s representation of Texas registered and vocational nurses before the Texas Board of Nursing, I frequently see allegations for prior acts/conduct handled as corrective action that are reported to the Texas Board of Action for disciplinary action alongside the underlying alleged misconduct giving rise to a Board complaint. The acts/conduct were treated with corrective action–considered as a “minor incident” by the employer–and not reported at the time.
A nurse must be aware of the implications of these previously unreported acts/conduct and how it impacts the complaint and the disciplinary process.
The Board’s “Minor Incident” Provision Under the Nursing Practice Act and Board Rule
Generally, the Nursing Practice Act and Board rules provide for mandatory reporting requirements of a nurse who violates the Nursing Practice Act or Board rule. A nurse’s employer has a duty to report violations to the Board. However, even though an act may be a violation, the Nursing Practice Act and Board rule provide that not all violations need to be reported to the Board. Violations are not necessarily reportable to the Board if they are determined as “minor incidents.” See TEX. OCC. CODE §§ 301.403, 303.007, 22 TEX. ADMIN. CODE §217.19.
Per Board rule 213.1(25), a minor incident is, “conduct in violation of the Nursing Practice Act, which after a thorough evaluation of factors enumerated under Board rule 217.16 of this title (relating to Minor Incidents), indicates that the nurse’s continuing to practice professional or vocational nursing does not pose a risk of harm to a client or other person and, therefore, does not need to be reported to the Board or peer review committee.” Further, Board rule 217.16(b) defines “minor incident” as, “. . . conduct by a nurse that may be a violation of the Nursing Practice Act or a Board rule but does not indicate the Nurse’s continued practice poses a risk of harm to a patient or another person.”
The Implications of Minor Incidents in a Nurse’s History if Reported to the Board for Disciplinary Action
Can the Board take action on acts/conduct that were deemed a “minor incident” and handled previously in-house by the nurse’s employer and not reported to the Board at such time (i.e., corrective action)? The short answer is yes.
A nurse should be aware that if there are subsequent claims of wrongdoing, the employer is more likely to refer the underlying alleged conduct to the Board to investigate and alert the Board of the previous conduct (i.e., minor incident) that was not originally reported. The previoulsy unreported conduct then comes into the Board’s purview and subjects the nurse for discipline for the previously unreported conduct.
Even it not included as an alleged violation(s), the Board is likely to have information of the previous unreported conduct when it obtains the nurse’s personnel file. One must exercise caution that this knowledge by the Board does not unduly color its impression of the nurse, leading to unfavorable or skewed results in the disciplinary process. Based on the cases that the firm has handled, previous unreported conduct was used to paint an unfavorable picture of the nurse or used to support the contention that because the nurse may have made errors in the past, he or she likely did so in the underlying matter.
The inclusion of these previously resolved, but unreported matters often catches unsuspecting nurses by surprise. Quite simply, they naturally presume that these incidents were already resolved between them and their employer. Because it is now the basis of an allegation with the Board it comes as a rather abrupt awakening. The nurse must not only defend against the primary allegation(s) that gave rise to the complaint against them, but they must also defend against the previously unreported conduct.
The Bottom Line
One should keep in mind that defenses to all conduct alleged against the nurse may still exist and will depend upon the facts and circumstances of each case. Given the practice of taking disciplinary action for “minor incidents” in subsequent complaints and investigations, it would serve the nurse to contact an experienced Texas Board defense lawyer or a professional license defense attorney prior to responding to the Board’s inquiry.
My prior experience working as an in-house Assistant General Counsel for the Texas Board of Nursing makes me uniquely qualified to assist any nurse dealing with a Texas Board complaint.
