Texas Administrative Code › Title 22 - EXAMINING BOARDS › Part 11 - TEXAS BOARD OF NURSING › Chapter 213 - PRACTICE AND PROCEDURE › Section 213.28 - Licensure of Individuals with Criminal History

Current through Reg. 49, No. 28; July 12, 2024
(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 not 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.