Wednesday, July 31, 2019

What if I am reported to the Texas Nursing Board and fired? Straight talk from Joe Flores, nurse practitioner and attorney




The Termination
1. You have rights under Texas and Federal Law. Get an employment law consult within 1 week of termination.
2. If you have seen fraud or been asked to document fraudulently, write down details including who said what, where, when, how. Even write down patient names and try to remember room numbers. HIPPA does not apply to the federal and state agencies I will plug you in with.
3. Did your employer violate Medicare/Medicaid rules? Services not rendered? You may not have the power but your lawyer and the government do.
4. Get a Texas Workforce Hearing with your lawyer at your side. It is recorded sworn testimony that can be used for an employment lawsuit later.
****Please note that lawsuits are not easily won-especially in labor law. Often even a small settlement with a positive letter of rehire is a major victory. Losing cases is a reality before they really get going. Fraud, sexual harassment with witnesses and a past pattern are the strongest cases. The EMR "gotcha" write up game is the easiest way a nurse is railroaded and deemed unsafe by employers.

I am general counsel for employers but do not play those games. If there is ethical room, I offer the option to resign and if it is a minor incident found by the peer review committee than no board complaint.
The Board Complaint
 You may receive a Board Complaint especially if fired or a  negative outcome occurred. The law requires reporting of terminated nurses but facilities rarely give due process-- which includes proper peer review under the Health Care Quality Improvement Act. Seldom do facilities follow proper employment or BON rules. 

BON's Standard Policy
"We don't get involved in employment issues"
The Board's position is VERY slowly changing, but for now they don't get involved with employment issues. You can argue this issue but you could risk looking like someone who thinks everyone is always out to get them...and you are innocent. 

The BON wants to hear mitigating circumstances not excuses or finger pointing. The "Ain't Fair Law" if it ever existed, never or seldom if ever works. The Board's job is to make sure a nurse practices safely and if you catch a complain, your job is to convince them you are safe. Very safe. 
The Machines
EMR/MAR the electronic shield vs. sword. Nurses get tarred and feathered all the time by the EMR/MAR game. While others in the same group where you worked may have gotten away with murder, you may have be singled out for complaining justly about poor staffing, danger to patients, abusive supervisors or physicians being bullies, etc. 

You are the problem for whistle blowing? The irony: they are the problem yet you are the danger. Everyone makes documentation and med documentation errors. The EMR in my opinion, not because I am over 40, is a real pain in the A__. It takes away from real patient care by at least 10 percent. What a waste of time and it dehumanizes the nurse/patient relationship. In all fairness, the government first gave a carrot then the stick unless doctors and institutions played ball and used EMR a decade-plus ago. A multi-billion dollar industry is what it is now.  
More about the Board Complaint 
They give you 20 days to not only get over the stress ulcer and near MI that the complaint (which will make you sound like the worst nurse on the planet as you read the allegation(s))gives you, but also the lock starts ticking the date on the document--not when received. Do not get into long winded free-advice seeking conferences with the Board investigator that signed the complaint. I know their boss, Tony Diggs, big Chief Investigator. It will only make your case worse.

What if I do not go and pick up the certified letter? Now is not the time to bury your head in the sand. Pick up the letter from the post office! 
                                                    Now what?
Do not go out and spend thousands on a lawyer who handles car wrecks. You do not go to an OB/GYN or procto for a growth you saw on our shoulder that is asymmetrical, versicolor, over 5 millimeters and irregularly shaped or to a procto for a board complaint! 
Get a Qualified Attorney 
Get a lawyer who is known for nurse board cases (and, NO! This is not a solicitation--I have colleagues I trust that I can refer you to if you cannot decide on someone...but that takes 1-3 hours out of my staff and my day so I do bill administratively for the 40+ requests per week). 
The Smart Move 
Get a consult first. Translation: Ask for an hour or two ($250-$600) before you buy the whole enchilada. You can see if  you are a good fit or not. Well worth it. 

Why should I pay for a consult much less someone to defend me? Want to learn more? Email info@floreslawfirm.com to receive a free copy of this chapter.  

****Note: The views expressed in this article are solely the opinions of Joe Flores, JD, Family Nurse Practitioner and do not reflect the views of www.ExceptionalNurse.com. Mr. Flores is not selling anything. This is part of 120 plus hours of work he is doing for the Texas Bar Pro Bono College.  

With thanks for all you do Joe!

Donna

1 comment:

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