THE AMERICAN ASSOCIATION OF NURSE ATTORNEYS

Transcription

1 THE AMERICAN ASSOCIATION OF NURSE ATTORNEYS TEXAS CHAPTER P.O. Box Dallas, Texas President!!!!!!!!! President-Elect Kathleen M. Kearney, RN, MSN, JD!!!!! Taralynn Mackay, RN, JD! Treasurer!!!!!!!!! Secretary Nancy Roper-Willson, RN, JD, MSN!!! Melinda Mitchell Jones, RN, MSN, JD Board of Directors Patricia Blair, PhD, LLM, JD, MSN!!!!! Colleen Carboy, RN, JD Marc Meyer, RN, JD!!!!!!! Kip Poe, RN, MSN, JD Thursday, October 27, 2011 Attn: Attorney Jason Boatright!!! via Honorable Greg Abbott!!!!!! & fax: (512) Attorney General of Texas Office of the Attorney General!!! P.O. Box Austin, Texas Re:! RQ-0997-GA; TEXAS BOARD OF NURSING Request of September 23, 2011 Dear Attorney General Abbott and the Opinion Committee:! The Texas chapter of The American Association of Nurse Attorneys (TAANA-Texas) respectfully submits this letter brief in response to the above-referenced request seeking your opinion as to whether the receipt of a non-disclosure order requires the Texas Board of Nursing ( Board ) to redact information relating to a licensee's criminal history record. A copy of the request is attached.! TAANA-Texas is a statewide, non-profit, non-partisan organization with 20 active members who are educated and/or licensed as both registered nurses and attorneys. TAANA-Texas supports measures to protect patients and the nurses who care for them.! In short, and as explained further below, the receipt of a non-disclosure court order requires the Texas Board of Nursing to redact the applicable criminal history text from all public records of the licensee.

2 TAANA-Texas RQ-0997-GA Page 2 of 3! Pursuant to TEX. GOVT. CODE (i)(15) and TEX. GOVT. CODE , the Texas Board of Nursing has a right to criminal history information in cases when an Order of Non-Disclosure is in place for a licensee and the Board may consider that information with regard to disciplinary actions under TEX. OCC. CODE (b)(3). Based on the statutory language contained in adjacent sections of the TEX. GOVT. CODE, the statute does not permit the Texas Board of Nursing to disclose sealed records to the general public.! A plain reading of the statutory text indicates any individual or entity shall seal any criminal history record information maintained by the individual or entity that is the subject of the order. TEX. GOVT. CODE (g-1b). The use of the word shall indicates this action is a mandatory, not discretionary, and requires the Texas Board of Nursing to redact any reference to criminal history record information subject to the Order of Non-Disclosure. Additionally, under TEX. GOVT. CODE (a)(1), criminal record information obtained from the Department of Public Safety is for the exclusive use of the authorized recipient of the information. TEX. GOVT. CODE (a)(2) allows disclosure only if such information is authorized or directed under separated authority. In this matter, no such authority exists in the Nursing Practice Act or TEX. OCC. CODE 301 et. seq., especially since it is specifically considered privileged under TEX. OCC. CODE (b): (b)! Criminal history record information received by the board may be used only by the board and is privileged. The information may not be disclosed to any person other than: (1)! as required under a court order; or (2)! to a nursing board that is a member of the nurse licensure compact under Chapter 304.! Under TEX. GOVT. CODE (c), [a]n agency or individual may not confirm the existence or nonexistence of criminal history record information to any person that is not eligible to receive the information. Thus, under provisions of both the TEX. GOVT. CODE AND the Texas Nursing Practice Act, the Texas Board of Nursing may not disclose criminal history record information that is subject to an Order of Non-Disclosure to the public because such information is required to be sealed and is considered privileged.! Therefore, even if a licensee agrees to a public Board order that contains criminal history information before an Order of Non-Disclosure is issued, the Texas Board of Nursing must redact the applicable criminal history text from all public records of the licensee, including public Board orders, after an Order of Non-Disclosure is issued by a Texas court. There is no Texas statute or case law that provides an exception or exemption for the Texas Board of Nursing to disregard an Order of Non-Disclosure merely because the licensee agreed to a public Board order before the criminal history information was Ordered Confirmed July 2009 Template

3 TAANA-Texas RQ-0997-GA Page 3 of 3 to be sealed from public consumption. The Texas Board of Nursing does not have any authority to disregard a Texas court s Order of Non-Disclosure.! Redacting criminal history information from all public records is consistent with the purpose of, and public policy surrounding, an Order of Non-Disclosure, and does not frustrate the Texas Board of Nursing s ability to obtain and consider a licensee s otherwise sealed criminal history information.! Regulation of professional licenses is intended to protect the general public. But allowing the general public access to information a Texas court Ordered to be removed from public records is punishment, not regulation, and does not serve to improve nursing care and patient safety in Texas.! Why are the rights of nurses being considered as less than other Texans? A licensee who has been disciplined by the Texas Board of Nursing will only be further stigmatized, both personally and professionally, if the Board is permitted to ignore Orders of Non- Disclosure.! Thank you for taking this letter into consideration when preparing your advisory opinion.!!!!!! Respectfully submitted,!!!!!!!!!!!! Kathleen M. Kearney, RN, MSN, JD!!!!!! on behalf of the Texas Chapter of!!!!!! The American Association of Nurse Attorneys!!!!!!!! Attachment!!!!!!!! cc:! Katherine A. Thomas, MN, RN!! Executive Director, Texas Board of Nursing Confirmed July 2009 Template

4 RECEIVED September 16, 2011 Texas Board of Nursin 333 Guadalupe Street, Ste , Austin, Texas Phone: (512) Fax: (512) Katherine A. Thomas, MN, RN Executive Director RECEIVED SEP OCf _ /',,1 ~/T FILE. #/Vl.L-LJ LrL'6'J-.1o -II LD.#~~ Attorney General Greg Abbott Office of the Attorney General Opinion Committee PO Box Austin, TX Via Certified Mail No Re: Non-Disclosure Orders - Request for Opinion from the Office of the Attorney General Dear Attorney General Abbott: The Board herein request an opinion concerning the impact of non-disclosure orders upon the operational licensing operations of the Texas Board of Nursing. Particularly, whether an order of non-disclosure prevents the Board from citing the previous criminal behavior that supports disciplinary action under Texas Occupation Code (b)(3) and whether previously cited criminal behavior must be redacted from a disciplinary order if that criminal history record is later subject to a non-disclosure order. The criminal history is often expressly mentioned and cited in these disciplinary orders wherein the criminal behavior was relevant. Non-disclosure orders issued pursuant to the Texas Government Code, Section , prohibit criminal justice agencies from disclosing criminal history record information to the public, which relates to an offense giving rise to deferred adjudications. There is, however, an exception in Section (i) in that a criminal justice agency may disclose criminal history record information that is the subject of an order of non-disclosure to "the following noncriminal justice agencies or entities only:... (15) the Texas Board of Nursing;... " Thus, the Board is explicitly entitled to receive this information and presumably may use it for regulatory purposes. In fact, the Board is authorized to take disciplinary action against a licensee based on criminal history that may later be subject to a non-disclosure order. See Texas Occupations Code (b)(3) (disciplinary action may be based on deferred order). If, however, the non-disclosure order comes to the Board's attention after order is entered what action is required of Board Staff? Section (g-lb) states that" not later than 30 days after receipt of relevant criminal history information... an individual or entity described by Subsection (g-1 )(1) shall seal any criminal history record information maintained by the individual or entity that is the subject of the order." The Board would be included in Section (g-l)(1)'s definition as "law Members of the Board Linda Rounds, PhD, FNP, RN Galveston, President Deborah Bell, CLU, ChFC Kristin Benton, MSN, RN Patricia Clapp, BA Tamara Cowen, MN, RN Sheri Crosby, JD, SPHR Marilyn Davis, BSN, RN, MPA Abilene Austin Dallas Harlingen Dallas Sugar Land Blanca Rosa Garcia, PhD, RN Richard Gibbs, LVN Kathy Leader-Horn, LVN Joselina Lujan, PhD, RN Beverley Jean Nutall, LVN Mary Jane Salgado, MEd Corpus Christi Mesquite Granbury El Paso Bryan Eagle Pass

5 Attorney General Greg Abbott September 16, Page 2 enforcement agencies... and other officials and agencies or other entities of this state... " Does the nondisclosure law require the Board to "seal" or attempt to redact the applicable text from public records often agreed to by the licensee upon receipt of a non-disclosure order? Y our assistance and guidance in this matter would be greatly appreciated. Should you have any questions, please contact me at (512) , or Dusty Johnston, General Counsel, at (512) Very truly yours, --~ /l.~!&~s,mn,rn Executive Director KAT/JFLlcil.