Policy Update: TNA and the Texas School Nurses Organization in the Supreme Court of Texas

In the middle of 2023, the Texas Nurses Association (TNA) and Texas School Nurses Organization (TSNO) became aware of a lawsuit in which a Texas nurse’s employer allegedly terminated her for making a report of suspected abuse or neglect of a minor to Child Protective Services (CPS). The lawsuit involved a complicated set of facts, one of which was the allegation that the nurse had contacted the minor patient’s school nurse in violation of the Health Insurance Portability and Accountability Act’s (HIPAA) privacy rule. The case made it to the Supreme Court of Texas without anyone informing the Court that communications between licensed caregivers and school nurses do not constitute HIPAA violations.

TNA and TSNO filed an amicus brief with the Court to inform them of federal guidance on the intersection between HIPAA and the Family Educational Rights and Privacy Act (FERPA). These two privacy laws govern the privacy rights of patients in the healthcare setting and minors in the educational setting, and their overlap can be technical and confusing.

Amicus curiae is Latin for “friend of the court,” and amicus briefing is an opportunity for organizations, such as ours, to inform the Court of important considerations that will narrow the issues and assist their deliberations.

We deemed it imperative that the Court be apprised of the federal guidance on this matter, and the Court explicitly noted, “We have received an informative amicus brief from the Texas Nurses Association and the Texas School Nurses Organization contending [the nurse’s] disclosure in fact did not violate HIPAA.” Nonetheless, the Court ultimately decided the case on a narrower issue: whether the organization would have fired the nurse when it did for disclosing information to the school nurse even if the nurse had not made the report to CPS.

Ultimately, the Court decided the termination was lawful.

The Court explained, “[The] evidence must establish that the employer would not have taken the adverse action ‘but for’ the professional’s protected conduct, meaning no violation occurs if the employer would have taken the adverse action when it did even if the employee had not engaged in the protected conduct.”

The rule is strictly applied by Texas courts, and this case is an example of how difficult it can be to prevail on a wrongful termination claim when the evidence shows another basis for termination besides the protected activity. Texas courts look at whether the employer’s perception of its employee’s performance was the real reason for the employee’s termination, as opposed to the protected conduct.

Nurses have a duty to report suspected abuse or neglect of a minor within 48 hours of learning of it. As a result, there is little time to review employer policies before making the report. In this case, it was decided that the employer believed the nurse engaged in a personal-conduct policy violation, and that the employer’s belief was a lawful reason for the termination even despite the CPS report.

TNA and TSNO are concerned that the narrow protection offered by the anti-retaliation statute may cause a chilling effect on reporting and harm the state’s interest in protecting minors from abuse and neglect.

Our organizations will study the decision and develop recommendations for statutory amendments to better protect nurses and other licensed professionals who make reports to CPS in the future.