The Texas Board of Nursing and the Changing Landscape of its Disciplinary Process

 

 

I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s.  During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.

 

Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.

 

Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.

 

If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.

 

 

 

Once the matter is docketed a hearing date is set and discovery begins. Unfortunately, the Board of Nursing’s Staff Attorneys do not provide much time for the hearing’s preparation. Skilled defense counsel is required if the nurse is to walk away with a dismissal or a good result. On average our law firm receives settlement offers or dismissals on the vast majority of cases set at SOAH. Approximately ten to twenty per year make it to hearing and this is largely a result of Staff’s failure to objectively look at the evidence or there are conflicting expert reports over the contested issues. 

 

This changing landscape has caused increased uncertainty for the nurse and unless competent counsel is retained a less than desired outcome can be the result. Now, even if the matter ends up dismissed, the public is often made aware of the process through the formal charges and SOAH progression. To the Board’s credit their back log of cases is severely diminished and the timetable to complete a case has been drastically decreased. What this means for the nurse is that a solid proactive and consistent approach to their case is required as anything else can result in an unwanted disciplinary process and action against their nursing registration / license. This process is a matter of public record and becomes a part of the nurse’s permanent licensure file. 

 

If you are going through part of this process or have questions pertaining to your nursing license please feel free to call one of our Texas Nursing Board defense lawyers today for a free consultation -512-495-9995. 

 

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