McDonald, Mackay and White, LLP

Texas Board of Social Worker Examiners
Investigations and Disciplinary Actions

By law there are currently nine members of the Board, six are licensed social workers and three are public members.

In Fiscal 2006, the latest public numbers, the Board disciplined fifteen licensees. Of those, ten licensees had their license revoked, surrendered or suspended/probated. In Fiscal 2005, the Board disciplined twenty-one licensees. Of those, fifteen had their license revoked, surrendered or suspended/probated. In Fiscal 2004, fourteen were disciplined and ten had their license revoked, surrendered or suspended/probated.

Clearly, of those disciplined, the vast majority suffered very serious consequences.

Investigations

The Board is under the Texas Department of Health. Thus, it shares staff with other Board’s. Please know, Board can be aggressive in its investigations and there is a chance of losing one’s license if you do not take the process seriously. It is crucial for social workers to understand the Board’s role and the process that a social worker undergoes if he/she is under investigation.

The investigation portion of the disciplinary process with the Board starts when the social worker is notified of the investigation by mail, unless doing so would jeopardize the Board's investigation. The Board “fast tracks” cases with allegations of sexual misconduct or imminent patient harm. This letter informs the social worker that he/she has an opportunity to respond to the allegations within thirty days and that they can be represented by an attorney. The Board often provides a copy of the complaint. This initial response to the Board is critical that it be done right the first time. A professional response can make a significant difference in the outcome of an investigation.

The Board’s investigator will request various records pertaining to the allegations, such as medical records, witness statements, and other information related to the investigation. Occasionally, the Board investigator will go in person to the social worker’s practice. Once the social worker has responded and the investigator has obtained all pertinent information, the investigator makes a recommendation regarding the allegations and what the evidence has shown. The information obtained by the investigator is presented to senior staff and an ultimate decision is made regarding the disposition of the case. The case may be dismissed, or the case is set before the Ethics Committee.

Ethics Committee

The social worker may be invited to attend the Ethics Committee. This is a public meeting where the complainant is also invited. Either side can speak to the Committee. The Committee can also ask questions to the parties present. It also reviews information presented to it. The Committee can vote to close the matter or offer an Agreed Order [see below] to resolve the case at that time. This meeting is very critical to be present and be prepared to defend your actions in public. The questioning can, at times, be difficult and tense. Preparation for such matters is critical.

Informal Settlement Conference

If the social worker does not consent to the Agreed Order, the individual has the right to an Informal Settlement Conference. While this proceeding is called an “Informal” Conference, it is not an informal proceeding. The informal means the rules of procedure and evidence do not apply. This is a closed meeting and not open to the public. However, the complainant is given the chance to be present and speak; they are not permitted to stay and participate in the social worker’s presentation. Nor does the complaint receive the opportunity to know the decision, until there is a final outcome.

At the Informal Conference, the allegations and evidence are presented to Board members and those members then ask questions of the social worker. The social worker and his/her attorney are allowed to provide evidence and other mitigating information for the members to take into consideration. After all the information is presented and questions are asked, the members convene separately and discuss the information presented during the Informal Conference. The social worker is then called back into the meeting room and the Board presents their decision. The social worker knows the recommendation prior to leaving the Board’s offices. The recommendations can be a dismissal, or a proposed Agreed Order, or the case is referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings [SOAH].

Agreed Orders

If the evidence shows a violation of the Licensing Act or the Board’s rules and regulations, the Board may propose a settlement offer in the form of a proposed Agreed Order. The Agreed Order will state the allegations against the social worker, the sections of the law that have been violated and the restrictions being placed on the individual’s license. The restrictions can be varied and may include educational courses, job restrictions, a fine, employer notifications, supervision requirements, counseling requirements, practice restrictions and other actions deemed necessary. If there are any mitigating factors in the social worker’s case, the severity of the restrictions may be decreased. The length of the Agreed Order can vary depending on individual circumstances. Agreed Order can be negotiated.

If the social worker agrees with the proposed Agreed Order, the social worker signs the order and the Order is presented to the Board for ratification. The Board may either ratify the Order as is, or suggest a modification, or reject the Order. If the Order is accepted by the Board, a final copy of the signed Order is mailed to the social worker and to the social worker’s attorney. The disciplinary action is entered onto the Board’s website and printed in the quarterly newsletter. It is also given to national data banks. All of the Board’s disciplinary actions are public information and become a permanent part of the social worker’s license, which means that even when the stipulations are completed and the social worker’s license becomes “clear”, the social worker will always have a disciplinary action record.

SOAH Hearings

The hearing process begins with the filing of Formal Charges with SOAH and sets a hearing date. Hearings are similar to trials except that the proceeding is before an Administrative Law Judge instead of a judge/jury and some of the evidence and procedural rules are different. The Board has the burden to prove the allegations against the social worker and the social worker is allowed to present his/her side of the case. After the completion of the hearing, the Judge will issue his or her proposal for decision, which contains findings of fact and conclusions of law and recommended actions. This proposal for decision is presented to the Board and the Board either accepts the Judge’s recommendations or the Board rejects all or part of the Judge’s recommendations and substitutes their own, in limited circumstances. The recommendations may be a dismissal, or proposed restrictions on the social worker’s license, a suspension of the social worker’s license, or a revocation of the social worker’s license. If a social worker disagrees with either the SOAH Judge or the Board’s substituted Order, the social worker may appeal the process to District Court.

This can be a timely and burdensome process. It is wise to be prepared and assistance of an attorney knowledgeable in this process to help you navigate these difficult processes preserves your rights and protects your livelihood.