McDonald, Mackay and White, LLP

Texas BON: Investigations & Disciplinary Actions

The risk for being the subject of a Board of Nursing [BON] investigation is increasing each year:

Year#of complaints received by BON#of disciplinary actions
  RN/LVN RN/LVN
2004 2894/1278 796/395
2005 3889/2453 996/581
2006 3904/2769 1281/988

Investigations

As can be seen above, the number of investigations is increasing and the chance of having restrictions placed on a nurse’s license is also increasing. The Texas Board of Nursing is considered to be one of the toughest of the state nursing boards. It is crucial for nurses to understand the BON’s role and the process that a nurse undergoes if he/she is under investigation.

What follows below are process basics simply for reader convenience. The procedures and governing law are broad brushed to give the reader an overview of the disciplinary process. There are a number of variations that can occur and many more layers of detail involved. Most nurses will need or want to seek experienced and specialized legal counsel to get a better understanding of the process and to get the best possible outcome. The investigation portion of the disciplinary process with the BON starts when the nurse is notified of the investigation by the BON (usually by certified mail to the last address on file with the BON), unless doing so would jeopardize the Board's investigation. This letter informs the nurse that he/she has an opportunity to respond to the allegations within thirty days and that they can be represented by an attorney. The complaint can come from many different sources such as patients or their families, co-workers, ex-significant others, law enforcement agencies, and other state agencies. But most of the complaints originate from employers. Complainant’s names are kept confidential as set out by the Nurse Practice Act.

The BON’s investigator will request various records pertaining to the allegations, such as patient medical records, the nurse’s personnel records, witness statements, treatment records, urine screens, criminal records. Occasionally, the BON investigator will go in person to the nurse’s place of employment to investigate, but this is more likely to happen with Advanced Practice Nurses. Part of the process is to obtain the nurse’s response to the allegations. Many nurses have a tendency to say too much because they assume that the investigator is on their side. Anything a nurse says can be used against him or her. Remember: The investigators can be friendly, but they are not your friend. They have a job to do and take it very seriously. Responding to a notice letter should not be taken lightly. Once sent, the response cannot be withdrawn. If a nurse writes an angry response, says something colossally stupid, misstates facts, or admits to misconduct, this paperwork is likely to come back to haunt the nurse. Letting the paperwork sit at the bottom of an inbox is not a good idea, but rushing out a poorly thought out response can be just as big a mistake. The best advice is to get to experienced counsel as quickly as possible to assist in drafting the response to the Board.

Once the nurse 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 supervisors and the legal team and an ultimate decision is made regarding the disposition of the case. The case may be dismissed, or a proposed Agreed Order is recommended or the nurse is referred to the Texas Peer Assistance Program for Nurses [TPAPN], or the case is set for an Informal Conference 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 Nurse Practice Act [NPA] or the BON’s rules and regulations, the BON may propose a settlement offer in the form of a proposed Agreed Order. The Agreed Order will list a description of the nurse’s work history, the allegations against the nurse, the sections of the law that have been violated and the restrictions being placed on the nurse’s license. The restrictions can be varied and may include educational courses, job restrictions (such as no agency, home health or hospice employment), a fine, urine screens, employer notifications, supervision requirements, counseling requirements, etc. If there are any mitigating factors in the nurse’s case, the severity of the restrictions may be decreased. Examples of mitigating factors are the number of years as a nurse, the work record of the nurse, letters of support, etc. The length of the Agreed Order can vary, but most are from 1-3 years in length. An experienced attorney can frequently negotiate the best possible language.

If the nurse agrees with the proposed Agreed Order, the nurse signs the order and the Order is presented to the BON 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 BON, a final copy of the signed Order is mailed to the nurse, to the nurse’s attorney, to the nurse’s last known employer and to the person/entity who filed the complaint against the nurse. The disciplinary action is entered onto the Board’s website and printed in the quarterly newsletter. The BON will also notify the National Council of State Boards so that the information will be entered into their databank (thus informing all other states where the nurse may be licensed). All BON disciplinary actions are public information and become a permanent part of the nurse’s license, which means that even when the stipulations are completed and the nurse’s license becomes “clear”, the nurse will always have a disciplinary action record.

Informal Conference

While the BON calls this proceeding an INFORMAL Conference, it is not an informal proceeding. The date of the proceeding is usually set on a Tuesday and the nurse’s attorney or the nurse if the nurse has not hired an attorney yet is informed of the date of the meeting a few months in advance. At the Informal Conference, the allegations and evidence are presented to a group of Board staff members, including one of the Board’s attorneys, and those members then ask questions of the nurse. The nurse and his/her attorney are allowed to provide mitigating information for the staff to take into consideration. After an exchange of information, questions, answers, and discussions that can last anywhere from about 30 minutes to about an hour, the nurse and the nurse’s counsel are excused from the room while the staff members deliberate. After deliberation, everyone comes back into the room and a recommendation is announced. The nurse knows the recommendation prior to leaving the BON’s offices. The recommendations can be a dismissal, or a proposed Agreed Order (either the same that was previously recommended or one that is less or more restrictive,) or the nurse is referred to the Texas Peer Assistance Program for Nurses [TPAPN], or the case is referred directly to a hearing before an Administrative Law Judge at the State Office of Administrative Hearings [SOAH].

It is important to know that anything the nurse says during the Informal Conference can be used against the nurse in future proceedings such as SOAH hearings or other investigations. It is important for the nurse to communicate effectively with the staff in order to convey the information, but the nurse must also be aware of how to present his or her story to the Board. For example, the nurse will not benefit from challenging the Board or from asking why other nurses have not faced similar investigations. The nurse’s attorney will be able to help prepare the nurse for the Informal Conference.

SOAH Hearings

If in any case an ISC does not lead to a satisfactory conclusion, the case goes to the State Office of Administrative Hearings (SOAH). Formal public charges are filed. These charges contain detailed allegations and legal citations. The nurse has a short time to answer or risk a default judgment. Discovery is initiated much like in a malpractice suit or other civil litigation to include depositions, interrogatories, requests for production of documents, etc. While there is the possibility of being fined and assessed hearing costs, the case is really about whether the nurse violated the standard of care and the ability to continue to practice and under what terms and conditions if any. An administrative law judge (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the Board. The nurse’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD.

The PFD is then presented to either the full Board or the Board’s Eligibility and Disciplinary Committee for approval. If presented to the full Board, they will hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action.

The nurse usually becomes subject to unilateral disciplinary action, but the licensee does have a chance to meet some very short deadlines to ask for a rehearing, and if that is denied, to appeal the case in Travis County District Court. It is important to act quickly and follow the law carefully to preserve the right to appeal. Usually, all administrative remedies must be exhausted before the case goes to court. Appeals can go all the way to the Texas Supreme Court and conceivably in rare circumstances through the federal court system depending on the issues. It is important to keep in mind that courts will typically not change an agency’s decision, but usually defer to the presumed expertise of the agency. If the courts disagree with the agency, they send the case back for reconsideration by the agency (reverse and remand) rather than make their own decision (reverse and render).

It should be noted that at just about any stage of the SOAH contested process, although usually very early on, the parties can agree to take the case off the contested docket to try to resolve it through mediation. This process is usually a daylong event with ALJs functioning as mediators in an effort to help the parties reach an agreement. If no agreement is reached, the case goes back on the contested docket and continues down the road to hearing.